UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 8-K
 
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
 
Date of Report (date of earliest event reported):   March 7, 2014
 
ENLINK MIDSTREAM, LLC
(Exact name of registrant as specified in its charter)

DELAWARE	 	001-36336	 	46-4108528	
(State or Other Jurisdiction of
Incorporation or Organization)	 	(Commission File
Number)	 	(I.R.S. Employer Identification No.)	

2501 CEDAR SPRINGS RD.
DALLAS, TEXAS	 	75201	
(Address of Principal Executive Offices)	 	(Zip Code)	
 
Registrant’s telephone number, including area code:  (214) 953-9500

(Former name or former address, if changed since last report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
 
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 
Explanatory Note
 
On March 7, 2014, EnLink Midstream, LLC (“ EnLink Midstream ”) consummated the transactions contemplated by the Agreement and Plan of Merger, dated as of October 21, 2013 (the “ Merger Agreement ”), among EnLink Midstream, Crosstex Energy, Inc. (the “ Corporation ”), Devon Energy Corporation (“ Devon ”), Acacia Natural Gas Corp I, Inc., formerly a wholly-owned subsidiary of Devon (“ New Acacia ”), and certain other wholly-owned subsidiaries of Devon pursuant to which the Corporation and New Acacia each became wholly-owned subsidiaries of EnLink Midstream (collectively, the “ Mergers ”).  Upon the closing of the Mergers (the “ Closing ”), each issued and outstanding share of the Corporation’s common stock was converted into the right to receive (i) one Common Unit and (ii) an amount in cash equal to approximately $2.06, which is an amount equal to the quotient of (x) $100,000,000 divided by (y) the number of shares of the Corporation’s common stock issued and outstanding immediately prior to the effective time of the Mergers.
 
Also, on March 7, 2014, EnLink Midstream Partners, LP (formerly known as Crosstex Energy, L.P.) (the “ Partnership ”) consummated the transactions contemplated by the Contribution Agreement, dated as of October 21, 2013 (the “ Contribution Agreement ”), among the Partnership, EnLink Midstream Operating, LP (formerly known as Crosstex Energy Services, L.P.), a wholly-owned subsidiary of the Partnership (“ EnLink Midstream Operating ”), Devon and certain of Devon’s wholly-owned subsidiaries.  Following the consummation of these transactions, Devon indirectly owns approximately 70% of the outstanding limited liability company interests in EnLink Midstream, with the remaining 30% owned by former stockholders of the Corporation, as well as 52% of the outstanding limited partner interests in the Partnership.  EnLink Midstream, through its ownership of the Corporation, owns approximately 7% of the outstanding limited partner interests, the approximate 1% general partner interest and the incentive distribution rights in the Partnership, and the Partnership’s public unitholders own the remaining 40% of the outstanding limited partner interests in the Partnership.
 
Item 1.01.                                         Entry into a Material Definitive Agreement.
 
Registration Rights Agreement
 
In connection with the closing of the Mergers (the “ Closing ”), on March 7, 2014, EnLink Midstream entered into a Registration Rights Agreement (the “ Registration Rights Agreement ”) with Devon Gas Services, L.P. (“ Gas Services ”) relating to the Class B Units representing limited liability company interests in EnLink Midstream (the “ Class B Units ”)  issued to Gas Services upon the Closing.  Pursuant to the Registration Rights Agreement, EnLink Midstream has agreed to prepare and file a shelf registration statement as soon as reasonably practicable following the written request of Gas Services with respect to the common units (the “ Common Units ”) representing limited liability company interests in EnLink Midstream to be issued to Gas Services upon conversion of the Class B Units and to use its reasonable best efforts to cause such registration statement to be effective, supplemented, amended or replaced until such Common Units have been sold pursuant to (a) an effective registration statement, (b) Rule 144, in a sale where the transferee does not receive restricted securities, or (c) a private transaction in which the registration rights are not assigned to the transferee, or until the Common Units otherwise
 
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cease to be outstanding. The registration rights agreement will also provide certain customary piggyback rights and information rights. In the Registration Rights Agreement, the Partnership has agreed to indemnify Unitholders (as defined in the Registration Rights Agreement) that elect to dispose of their registered Common Units in an underwritten offering against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “ Securities Act ”), or to contribute to payments such unitholder may be required to make because of any of those liabilities.
 
The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Registration Rights Agreement, a copy of which is filed as Exhibit 4.1 to this Current Report on Form 8-K (this “ Current Report ”) and is incorporated herein by reference.
 
Unitholder Agreement
 
In connection with the closing of the transactions contemplated by the Contribution Agreement (the “ Contribution Closing ”), on March 7, 2014, the Partnership and EnLink Midstream GP, LLC, the general partner of the Partnership (the “ General Partner ”), entered into a Unitholder Agreement (the “ Unitholder Agreement ”) with Devon, Devon Gas Corporation (“ Devon Gas ”), Gas Services and Southwestern Gas Pipeline, Inc. (“ Southwestern Gas ” and, together with Gas Services, the “ Contributors ” and, together with Devon and Devon Gas, the “ Devon Parties ”) relating to the Class B Units representing limited partner interests in the Partnership (the “ Partnership Class B Units ”)  issued to the Contributors upon the Contribution Closing.  The Unitholder Agreement contains registration rights relating to the common units (the “ Partnership Common Units ”) representing limited partner interests in the Partnership to be issued to the Devon Parties upon conversion of the Partnership Class B Units substantially identical to those described above with respect to the Registration Rights Agreement.
 
The foregoing description of the Unitholder Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Unitholder Agreement, a copy of which is filed as Exhibit 4.2 to this Current Report and is incorporated herein by reference.
 
First Offer Agreement
 
Also on March 7, 2014, EnLink Midstream and Devon entered into a First Offer Agreement (the “ First Offer Agreement ”) pursuant to which Devon will be obligated to offer EnLink Midstream a right of first offer with respect to any proposed transfer of Devon’s 50% interest in the Access Pipeline transportation system held by Devon (the “ Access Pipeline Interest ”).  The right of first offer is perpetual and subject to obtaining all required consents of governmental authorities and other third parties to the transfer of the Access Pipeline Interest.
 
The foregoing description of the First Offer Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the First Offer Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report and is incorporated herein by reference.
 
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Preferential Rights Agreement
 
Also on March 7, 2014, EnLink Midstream, the Partnership and the Corporation entered into a Preferential Rights Agreement (the “ Preferential Rights Agreement ”) pursuant to which EnLink Midstream and the Corporation granted the Partnership a right of first refusal for a 10-year period with respect to (i) the Corporation’s interest in E2 Appalachian Compression, LLC, a services company, and E2 Energy Services, LLC, a services company and the manager of E2 Appalachian Compression, LLC, and (ii) the Access Pipeline Interest, to the extent EnLink Midstream in the future obtains such interest pursuant to the First Offer Agreement.  In addition, if EnLink Midstream has the opportunity to exercise its right of first offer pursuant to the First Offer Agreement but determines not to exercise such right, it will be required to assign such right to the Partnership.
 
The foregoing description of the Preferential Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Preferential Rights Agreement, a copy of which is filed as Exhibit 10.2 to this Current Report and is incorporated herein by reference.
 
Commercial Arrangements
 
Concurrently with the Contribution Closing, EnLink Midstream Services, LLC (“ EnLink Midstream Services ”), a wholly-owned subsidiary of EnLink Midstream Holdings, LP (“ Midstream Holdings ” and, together with its subsidiaries, the “ Midstream Group Entities ”), in which the Partnership acquired a 50% equity interest upon the Contribution Closing, entered into three 10-year gathering and processing agreements with Gas Services pursuant to which EnLink Midstream Services provides gathering, treating, compression, dehydration, stabilization, processing and fractionation services, as applicable, for natural gas delivered by Gas Services to the Midstream Group Entities’ gathering and processing systems in the Barnett, Cana-Woodford and Arkoma-Woodford Shales.  SWG Pipeline, L.L.C. (“ SWG Pipeline ”), another wholly-owned subsidiary of Midstream Holdings, entered into a 10-year gathering agreement with Gas Services pursuant to which SWG Pipeline provides gathering, treating, compression, dehydration and redelivery services, as applicable, for natural gas delivered by Gas Services to another of the Midstream Group Entities’ gathering system in the Barnett Shale.  See the “Explanatory Note” for a description of Devon’s interest in EnLink Midstream.
 
These agreements are effective as of March 1, 2014 and provide the Midstream Group Entities with dedications of all of the natural gas owned or controlled by Devon and produced from or attributable to existing and future wells located on certain oil, natural gas and mineral leases covering lands within the acreage dedications, excluding properties previously dedicated to other natural gas gathering systems not owned and operated by Devon.
 
Pursuant to the agreements, Gas Services has committed to deliver specified average minimum daily volumes of natural gas to the Midstream Group Entities’ gathering and processing systems in the Barnett, Cana-Woodford and Arkoma-Woodford Shales during each calendar quarter for a five-year period following execution of the agreements. These commitments include 850 million cubic feet per day
 
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(MMcf/d) to the Bridgeport gathering systems, 650 MMcf/d to the Bridgeport processing facility, 125 MMcf/d to the East Johnson County gathering system, 330 MMcf/d to the Cana system and 40 MMcf/d to the Northridge system.  Gas Services is entitled to firm service, meaning that if capacity on a system is curtailed or reduced, or capacity is otherwise insufficient, the Midstream Group Entities will take delivery of as much Devon natural gas as is permitted in accordance with applicable law.
 
The gathering and processing agreements are fee-based, and the Midstream Group Entities are paid a specified fee per million British thermal units (MMBtu) for natural gas gathered on the Midstream Group Entities’ gathering systems and a specified fee for natural gas processed as well. The particular fees, all of which are subject to an automatic annual inflation escalator on January 1 st  of each year, differ from one system to another and the agreements do not contain a fee redetermination clause. The gathering and processing agreements accounted for approximately $547.8 million of the Partnership’s combined revenues on a pro forma basis for the year ended December 31, 2013.
 
In the event that Devon sells, transfers or otherwise disposes to a third party properties within the acreage dedications in the Barnett, Cana-Woodford or Arkoma-Woodford Shales, such third party will be subject to the existing gas gathering and processing agreement with the Midstream Group Entities.
 
The foregoing description of the gathering and processing agreements does not purport to be complete and is qualified in its entirety by reference to the complete text of the gathering and processing agreements, copies of which are filed as Exhibits 10.3, 10.4, 10.5 and 10.6 to this Current Report and are incorporated herein by reference.
 
Credit Facility
 
In connection with the Closing and the Contribution Closing, EnLink Midstream entered into a Credit Agreement, dated as of March 7, 2014 (the “ EnLink Midstream Credit Agreement ”), with Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer thereunder, Citibank, N.A. and Wells Fargo Bank, National Association, as Co-Syndication Agents, Royal Bank of Canada and Bank of Montreal, as Co-Documentation Agents, and the other lenders party thereto.  A copy of the EnLink Midstream Credit Agreement is filed as Exhibit 10.7 to this Current Report.
 
The EnLink Midstream Credit Agreement permits EnLink Midstream to borrow up to $250.0 million on a revolving credit basis and includes a $125.0 million sublimit for letters of credit. EnLink Midstream’s obligations under the EnLink Midstream Credit Agreement are guaranteed by the Corporation and New Acacia and secured by first priority liens on (i) 16,414,830 Partnership Common Units and the 100% membership interest in the General Partner held by the Corporation, (ii) the 100% equity interest in each of New Acacia and the Corporation held by EnLink Midstream, (iii) the 50% limited partner interest in Midstream Holdings held by New Acacia and (iv) any additional equity interests subsequently pledged as collateral under the
 
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EnLink Midstream Credit Agreement.  All such guarantees, liens and security interests will be released after the occurrence of an investment grade event (as defined in the EnLink Midstream Credit Agreement).
 
The EnLink Midstream Credit Agreement includes procedures for additional financial institutions to become lenders, or for any existing lender to increase its revolving commitment thereunder, subject to an aggregate maximum of $350.0 million for all commitments under the EnLink Midstream Credit Agreement.
 
The EnLink Midstream Credit Agreement will mature on March 7, 2019.  The EnLink Midstream Credit Agreement contains certain financial, operational and legal covenants.  The financial covenants will be tested on a quarterly basis, based on the rolling four-quarter period that ends on the last day of each fiscal quarter.  The financial covenants include (i) maintaining a maximum consolidated leverage ratio (as defined in the EnLink Midstream Credit Agreement, but generally computed as the ratio of consolidated funded indebtedness to consolidated earnings before interest, taxes, depreciation, amortization and certain other non-cash charges) of 4.00 to 1.00, provided that the maximum consolidated leverage ratio is 4.50 to 1.00 during an acquisition period (as defined in the EnLink Midstream Credit Agreement) and (ii) maintaining a minimum consolidated interest coverage ratio (as defined in the EnLink Midstream Credit Agreement, but generally computed as the ratio of consolidated earnings before interest, taxes, depreciation, amortization and certain other non-cash charges to consolidated interest charges) of 2.50 to 1.00 at all times prior to the occurrence of an investment grade event (as defined in the EnLink Midstream Credit Agreement).
 
Borrowings under the EnLink Midstream Credit Agreement bear interest, at EnLink Midstream’s option, at either the Eurodollar Rate (the LIBOR Rate) plus an applicable margin or the Base Rate (the highest of the Federal Funds Rate plus 0.50%, the 30-day Eurodollar Rate plus 1.0%, or the administrative agent’s prime rate) plus an applicable margin.  The applicable margins vary depending on EnLink Midstream’s leverage ratio.  Upon breach by EnLink Midstream of certain covenants governing the EnLink Midstream Credit Agreement, amounts outstanding under the EnLink Midstream Credit Agreement, if any, may become due and payable immediately and the liens securing the EnLink Midstream Credit Agreement could be foreclosed upon.
 
The description set forth above is qualified in its entirety by the EnLink Midstream Credit Agreement, which is filed as Exhibit 10.7 to this Current Report and is incorporated herein by reference.
 
Item 1.02.                                         Termination of a Material Definitive Agreement.
 
Termination of Prior Credit Agreement
 
In connection with the Closing and the Contribution Closing, on March 7, 2014, the Partnership terminated the Amended and Restated Credit Agreement, dated as of February 10, 2010, as amended to date (the “ 2010 Credit Agreement ”), by and among the Partnership, Bank of America, N.A., as Administrative Agent and L/C Issuer, and the other
 
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lenders party thereto.  The termination of the 2010 Credit Agreement was a condition to the Partnership’s ability to borrow funds and obtain letters of credit under the Credit Agreement (the “ New Credit Agreement ”) with Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer thereunder, Citibank, N.A. and Wells Fargo Bank, National Association, as Co-Syndication Agents, Royal Bank of Canada and Bank of Montreal, as Co-Documentation Agents, and the other lenders party thereto that the Partnership entered into on February 20, 2014, and the Partnership used borrowings under the New Credit Agreement to repay the outstanding borrowings under the 2010 Credit Agreement.
 
Termination of Margin Loan Facility
 
In connection with the Closing and the Contribution Closing, on March 7, 2014, XTXI Capital, LLC, a wholly-owned subsidiary of the Corporation (“ XTXI Capital ”), terminated the Credit Agreement, dated as of March 5, 2013, as amended to date (the “ Margin Loan Facility ”), by and among XTXI Capital, Citibank, N.A., as Administrative Agent, Collateral Agent and a lender, and the other lenders party thereto.  The termination of the Margin Loan Facility was a condition to the closing of, and EnLink Midstream’s ability to borrow funds and obtain letters of credit under, the EnLink Midstream Credit Agreement, and EnLink Midstream used borrowings under the EnLink Midstream Credit Agreement to repay the outstanding borrowings under the Margin Loan Facility.  Immediately following the termination of the Margin Loan Facility, on March 7, 2014, XTXI Capital merged with and into the Corporation.
 
Termination of Obligations under Omnibus Agreement
 
As a result of the closing of the Mergers, the Corporation experienced a Change of Control, as defined by the Omnibus Agreement, dated as of December 17, 2002 (the “ Omnibus Agreement ”), among the Partnership, the Corporation, the General Partner and the other parties thereto. Pursuant to the terms of the Omnibus Agreement and as a result of such Change of Control, on March 7, 2014, the Corporation delivered to the Partnership a notice of termination of Article II of the Omnibus Agreement, which governed the Corporation’s obligation not to compete with the Partnership in the business of gathering, transmitting, treating, processing, storing and marketing of natural gas and the transportation, fractionation, storing and marketing of natural gas liquids unless it first offered the Partnership the opportunity to engage in the activity or acquire the business.  Article II of the Omnibus Agreement was the only remaining operative provision under such agreement.
 
Item 2.01.                                         Completion of Acquisition or Disposition of Assets.
 
Merger Agreement Closing
 
On March 7, 2014, EnLink Midstream, the Corporation and Devon completed the Mergers pursuant to which the Corporation and New Acacia became wholly-owned subsidiaries of EnLink Midstream.  Upon the Closing, EnLink Midstream issued 115,495,669 Class B Units to a wholly-owned subsidiary of Devon, which units represent approximately 70% of the
 
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outstanding limited liability company interests in EnLink Midstream, with the remaining 30% held by the former stockholders of the Corporation.
 
The Class B Units are substantially similar in all respects to the Common Units, except that they will only be entitled to a pro rata distribution for the fiscal quarter ended March 31, 2014.  The Class B Units will automatically convert into Common Units on a one-for-one basis on the first business day following the record date for distribution payments with respect to the distribution for the quarter ended March 31, 2014.  The private placement of the Class B Units pursuant to the Merger Agreement was made in reliance upon an exemption from the registration requirements of the Securities Act pursuant to Section 4(2) thereof.
 
A copy of the Merger Agreement was included as Annex B to the Prospectus filed by EnLink Midstream with the Securities and Exchange Commission on February 5, 2014 (the “ Prospectus ”) and is incorporated herein by reference.
 
Contribution Agreement Closing
 
On March 7, 2014, the Partnership consummated the transactions contemplated by the Contribution Agreement, pursuant to which the Contributors contributed to EnLink Midstream Operating a 50% limited partner interest in Midstream Holdings and all of the outstanding equity interests in EnLink Midstream Holdings GP, LLC, the general partner of Midstream Holdings, in exchange for the issuance by the Partnership of 120,542,441 Partnership Class B Units.  New Acacia owns the remaining 50% limited partner interest in Midstream Holdings.  The Midstream Group Entities own midstream assets previously held by Devon in the Barnett Shale in North Texas, the Cana and Arkoma Woodford Shales in Oklahoma and contractual rights to the benefits and burdens associated with Devon’s interest in Gulf Coast Fractionators, which owns a fractionation facility in Mt. Belvieu, Texas.
 
The Partnership Class B Units represent approximately 52% of the outstanding limited partner interests in the Partnership, with approximately 40% of the outstanding limited partner interests held by the Partnership’s public unitholders and approximately 7% of the outstanding limited partner interests, and the approximate 1% general partner interest and the incentive distribution rights held indirectly by EnLink Midstream.  The Partnership Class B Units are substantially similar in all respects to the Partnership Common Units except that they will only be entitled to a pro rata distribution for the fiscal quarter ended March 31, 2014.  The Partnership Class B Units will automatically convert into Partnership Common Units on a one-for-one basis on the first business day following the record date with respect to the distribution for the quarter ended March 31, 2014.  The private placement of the Partnership Class B Units pursuant to the Contribution Agreement was made in reliance upon an exemption from the registration requirements of the Securities Act, pursuant to Section 4(2) thereof.
 
A copy of the Contribution Agreement was filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Partnership with the Securities and Exchange Commission on October 22, 2013 and is incorporated herein by reference.
 
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Item 2.03.                                         Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
The information set forth under Item 1.01 of this Current Report under the heading “Credit Facility” is incorporated herein by reference.
 
Item 3.02.                                         Unregistered Sales of Equity Securities.
 
The information set forth under Item 2.01 of this Current Report regarding the issuance of the Class B Units and the Partnership Class B Units is incorporated herein by reference.
 
Item 5.01.                                         Changes in Control of Registrant.
 
Upon the Contribution Closing and the closing of the Mergers, on March 7, 2014, Devon acquired control of the Partnership in exchange for (i) combining Midstream Holdings with the assets of the Partnership and the Corporation and (ii) the other merger consideration consisting of an aggregate cash amount of $100.0 million and common units of EnLink Midstream (exchanged on a one-for-one basis) to former stockholders of the Corporation pursuant to the Merger Agreement.  Devon funded the cash consideration in the Mergers with cash on hand.  See the “Explanatory Note” for a description of Devon’s interest in the Partnership and EnLink Midstream.  Devon also owns the managing member of EnLink Midstream, and, as a result of EnLink Midstream’s indirect ownership of the General Partner, Devon has the ability to control the Partnership’s management and operations.
 
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Item 5.02.                                         Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
 
Director Appointments
 
Effective upon the Closing, each of the following individuals was appointed to the Board of Directors (the “ Board ”) of EnLink Midstream Manager, LLC, the managing member of EnLink Midstream (the “ Managing Member ”):

John Richels	
Barry E. Davis	
Thomas L. Mitchell	
David A. Hager	
Darryl G. Smette	
Mary P. Ricciardello	
James C. Crain	
Leldon E. Echols	
Rolf A. Gafvert	
 
The Board also established three standing committees of the Board, the Audit Committee, Conflicts Committee and Governance and Compensation Committee, each of which will be comprised of the following members:

Audit Committee	
Leldon E. Echols (Chairman)	
James C. Crain	
Mary P. Ricciardello	
 	
Conflicts Committee	
James C. Crain (Chairman)	
Rolf A. Gafvert	
 	
Governance and Compensation Committee	
Rolf A. Gafvert (Chairman)	
David A. Hager	
 
Biographical information for each of the members of the Board is set forth below:
 
John Richels (62) has been President and Chief Executive Officer of Devon since June 2010.  From January 2004 to June 2010, Mr. Richels served as President of Devon.  He joined the Board of Directors of Devon in 2007.  Prior to 2004, Mr. Richels served as a Senior Vice President of Devon and President and Chief Executive Officer of Devon’s Canadian subsidiary.  Mr. Richels joined Devon through its 1998 acquisition of Canadian-based Northstar Energy Corp.  Prior to joining Northstar, Mr. Richels was Managing and Chief Operating Partner of the Canadian-based national law firm, Bennett Jones.  Mr. Richels has served as a director of the Managing Member and the General Partner since the Closing and the Contribution Closing on March 7, 2014.  Mr. Richels also currently serves on the Boards of
 
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Devon Energy, TransCanada Corp. and BOK Financial Corporation.  He holds a Bachelor of Arts degree in Economics from York University and a law degree from the University of Windsor.  Mr. Richels was appointed to the Board pursuant to the terms of the Merger Agreement.
 
Barry E. Davis (52) led the management buyout of the midstream assets of Comstock Natural Gas, Inc. in December 1996, which transaction resulted in the formation of the Partnership’s predecessor. Mr. Davis has served as director of the General Partner since the Partnership’s initial public offering in December 2002 and as a director of the Corporation since its initial public offering in January 2004. Mr. Davis was President and Chief Operating Officer of Comstock Natural Gas and founder of Ventana Natural Gas, a gas marketing and pipeline company that was purchased by Comstock Natural Gas. Mr. Davis started Ventana Natural Gas in June 1992. Prior to starting Ventana, he was Vice President of Marketing and Project Development for Endevco, Inc. Before joining Endevco, Mr. Davis was employed by Enserch Exploration in the marketing group. Mr. Davis holds a B.B.A. in Finance from Texas Christian University.  Mr. Davis was appointed to the Board pursuant to the terms of the Merger Agreement.
 
Thomas L. Mitchell (53) has over 30 years of experience in the oil and gas industry and joined Devon as Executive Vice President and Chief Financial Officer in February 2014.  Prior to Devon, Mr. Mitchell served on the board of directors and as the Executive Vice President and Chief Financial Officer of Midstates Petroleum Company throughout its initial public offering process.  Prior to that, Mr. Mitchell served as Senior Vice President and Chief Financial Officer of Noble Corporation and spent 18 years with Apache Corporation in various financial and commercial roles.  Mr. Mitchell has served as a director of the Managing Member and the General Partner since the Closing and the Contribution Closing on March 7, 2014.  He also is a Director on the Board of Hines Global REIT, Inc., a public real estate investment trust managed by Hines Interests, and holds a Bachelor of Science degree in Accounting from Bob Jones University.
 
David A. Hager (57) is the Chief Operating Officer of Devon.  He joined Devon in 2009 as Executive Vice President of Exploration and Production.  Prior to Devon, Mr. Hager held several positions within Kerr-McGee Corp, most recently as Chief Operating Officer in the period just before its merger with Andarko Petroleum.  Mr. Hager has been a Director and Chairman of the Reserves Committee on Devon’s Board since 2007 and has served as a Director for Pride International, Inc.  Mr. Hager has served as a director of the Managing Member and the General Partner since the Closing and the Contribution Closing on March 7, 2014.  He holds a Bachelor of Science degree in Geophysics from Purdue University and a Master’s in Business Administration degree from Southern Methodist University.
 
Darryl G. Smette (66) has been the Executive Vice President Marketing, Midstream and Supply Chain of Devon since 1999.  Prior to joining Devon, he spent 15 years in various marketing roles with Energy Reserves Group Inc. / BHP Petroleum (Americas) Inc.  He is involved with the University of Texas Department of Continuing Education as an oil and gas industry instructor.  Mr. Smette is also a member of the Oklahoma Independent Producers Association, Natural Gas Association of Oklahoma and the American Gas Association.  Mr. Smette has served as a director of the Managing Member and the General Partner since the Closing and the Contribution Closing on March 7, 2014.  He also is serving as a Director on the Board of Panhandle Oil & Gas Inc. and holds a Bachelor degree from Minot State University and a Masters in Business Administration degree from Wichita State University.
 
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Mary P. Ricciardello (58) was Senior Vice President and Chief Accounting Officer at Reliant Energy Inc., a leading independent power producer and marketer until 2002.  She began her career with Reliant in 1982 and served in various financial management positions with the company including Comptroller and Vice President.  Ms. Ricciardello has served as a director of the Managing Member and the General Partner since the Closing and Contribution Closing on March 7, 2014.  Ms. Ricciardello also serves on the Board of Directors of Devon Energy, Noble Corporation and Midstates Petroleum Company, and has served on the Board of Directors for US Concrete. Ms. Ricciardello holds a Bachelor of Science degree in Business Administration from the University of South Dakota and a Master’s in Business Administration with an emphasis in Finance from the University of Houston.  She is a licensed Certified Public Accountant.
 
James C. Crain (65) joined the Corporation as a director in July 2006 and has served as a director of the Managing Member since the Closing on March 7, 2014.  Mr. Crain retired as president of Marsh Operating Company in July 2013, where he worked since 1984 and currently is a private investor.  Prior to Marsh, he was a partner at the law firm of Jenkens & Gilchrist.  Mr. Crain also serves on the boards of GeoMet, Inc., and Approach Resources, Inc.  Mr. Crain served as a director of the General Partner from December 2005 to August 2008.  He graduated from the University of Texas at Austin with a B.B.A. degree, a master of professional accounting and a doctor of jurisprudence.
 
Leldon E. Echols (58) joined the Corporation as a director in January 2008 and has served as a director of the Managing Member since the Closing on March 7, 2014.  Mr. Echols is a private investor. Mr. Echols also currently serves as an independent director of Trinity Industries, Inc. and HollyFrontier Corporation, an independent petroleum refiner and marketer. Mr. Echols brings 30 years of financial and business experience to Enlink Midstream. After 22 years with the accounting firm Arthur Andersen LLP, which included serving as managing partner of the firm’s audit and business advisory practice in North Texas, Colorado and Oklahoma, Mr. Echols spent six years with Centex Corporation as executive vice president and chief financial officer. He retired from Centex Corporation in June 2006. Mr. Echols is also a member of the board of directors of Roofing Supply Group Holdings, Inc., a private company. He also served on the board of TXU Corporation where he chaired the Audit Committee and was a member of the Strategic Transactions Committee until the completion of the private equity buyout of TXU in October 2007. Mr. Echols earned a Bachelor of Science degree in accounting from Arkansas State University and is a Certified Public Accountant. He is a member of the American Institute of Certified Public Accountants and the Texas Society of CPAs. Mr. Echols has also served as a director of the General Partner since January 2008.
 
Rolf A. Gafvert (60) was President, CEO and Director of Boardwalk GP, LLP, the General Partner of Pipeline Partners, LP from 2007 to 2011.  Prior to that, Mr. Gafvert served as Co-President of Boardwalk GP, LLC from 2005 to 2007.  Mr. Gafvert served as President of South Pipeline, which became affiliated with Pipeline Partners, LP in 2005, from 2000 to 2011.  Mr. Gafvert was involved in Gulf South and its affiliates from 1993 to 2000, including acting as Managing Director of Koch Energy International, VP of Corporate Development for Koch Energy, Inc. and President of Gulf South.  Mr. Gafvert has served as a director of the Managing Member since the Closing on March 7, 2014.  He holds a Master’s degree in Agricultural Economics and a Bachelor of Science degree in Psychology from Iowa State University.
 
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Each director of the Managing Member who is not an employee of the Managing Member or Devon is paid an annual retainer fee of $50,000 and equity compensation valued at $100,000.  Directors do not receive an attendance fee for each regularly scheduled quarterly board meeting but are paid $1,500 for each additional meeting that they attend. Also, an attendance fee of $1,500 is paid to each director for each committee meeting that is attended, other than the Audit Committee which pays a fee of $3,000 per meeting. The respective Chairs of each committee receive the following annual fees: Audit—$12,500, Governance and Compensation—$10,000 and Conflicts—$10,000.  Directors are also reimbursed for related out-of-pocket expenses. John Richels, Barry E. Davis, Thomas Mitchell, David Hager and Darryl Smette, as officers of the Managing Member or Devon, receive no separate compensation for their respective service as directors.  For directors that serve on both the Board and the board of General Partner, the annual retainer fee is generally allocated 50% to us and 50% to the Partnership and equity grants are comprised of 50% EnLink Midstream units and 50% Partnership units.
 
Four of the Managing Member’s directors, including John Richels, the chairman of the Board, and David Hager, Thomas Mitchell and Darryl Smette, are officers of Devon and may have conflicts of interest arising from Devon’s interest as the controlling equityholder of EnLink Midstream and the Partnership as well as Devon’s interest in the commercial arrangements described above as well as the following transactions between Devon and the Partnership or Midstream Holdings:
 
Historical Customer Relationship with Devon
 
The Partnership has historically maintained a customer relationship with Devon pursuant to which certain of the Partnership’s subsidiaries provide gathering, transportation, processing and gas lift services to Devon subsidiaries in exchange for fee-based compensation under several agreements with such Devon subsidiaries.  The terms of these agreements vary, but the agreements expire between July 2014 and July 2021 and they automatically renew for month-to-month or year-to-year periods unless canceled by Devon prior to expiration.  In addition, one of the Partnership’s subsidiaries has agreements with a subsidiary of Devon pursuant to which the Partnership’s subsidiary purchases and sells NGLs and pays or receives, as applicable, a margin-based fee.  These NGL purchase and sale agreements have either month-to-month terms or expire in July 2014, depending on the agreement, but none renews automatically.  These historical agreements collectively comprise $72.2 million, or 2.8%, of the Partnership’s combined revenue on a pro forma basis for the year ended December 31, 2013.
 
Transition Services Agreement
 
In connection with the Contribution Closing, the Partnership entered into a transition services agreement with Devon pursuant to which Devon will provide certain services to the Partnership with respect to the business and operations of Midstream Holdings, including IT, accounting, pipeline integrity, compliance management and procurement services, and the Partnership will provide certain services to Devon and its subsidiaries, including IT, human resources and other commercial and operational services. The Partnership expects this agreement will have minimal to no impact on its annual revenue.
 
GCF Agreement
 
In connection with the Contribution Closing, Midstream Holdings entered into an agreement with a wholly-owned subsidiary of Devon pursuant to which Devon agreed, from and after the closing of the business combination, to hold for the benefit of Midstream Holdings the economic benefits and burdens of Devon’s 38.75% interest in Gulf Coast Fractionators, which owns a Fractionation facility in Mont Belvieu, Texas.  The Partnership expects this agreement to contribute approximately $12.0 million to its income from equity investments for fiscal year 2014.
 
13 

 
Lone Camp Gas Storage Agreement
 
In connection with the Contribution Closing, Midstream Services entered into an agreement with Gas Services under which Midstream Holdings will provide gas storage services at its Lone Camp storage facility.  Under this agreement, Gas Services will reimburse Midstream Services for the expenses it incurs in providing the storage services.  The Partnership expects this agreement will have minimal to no impact on its annual revenue.
 
Acacia Transportation Agreement
 
In connection with the Contribution Closing, a subsidiary of Midstream Holdings entered into an agreement with a wholly-owned subsidiary of Devon pursuant to which Midstream Holdings provides transportation services to Devon on its Acacia pipeline. This agreement accounted for approximately $14.4 million of the Partnership’s combined revenues on a pro forma basis for the year ended December 31, 2013.
 
Office Leases
 
In connection with the Contribution Closing, EnLink Midstream Operating entered into three office lease agreements with a wholly-owned subsidiary of Devon pursuant to which EnLink Midstream Operating will lease office space from Devon at its Bridgeport, Oklahoma City and Cresson office buildings.  Rent payable to Devon under these lease agreements is $174,000, $31,000 and $66,000, respectively, on an annual basis.
 
Tax Sharing Agreement
 
In connection with the Contribution Closing, the Partnership, EnLink Midstream and Devon entered into a tax sharing agreement providing for the allocation of responsibilities, liabilities and benefits relating to any tax for which a combined tax return is due.  In 2013, EnLink Midstream and Devon incurred approximately $3.0 million in taxes that would have been subject to the tax sharing agreement, had it been effective.
 
14 

 
Executive Officer Appointments
 
On March 7, 2014, pursuant to the terms of the Merger Agreement, the Board appointed Barry E. Davis as President and Chief Executive Officer of the Managing Member.  The Board also appointed Joe A. Davis as Executive Vice President, General Counsel and Secretary of the Managing Member and Michael J. Garberding as Executive Vice President and Chief Financial Officer of the Managing Member, along with additional members of senior management, including Steve J. Hoppe as Executive Vice President and President of Gas Gathering, Processing and Transmission of the Managing Member and McMillan (Mac) Hummel as Executive Vice President and President of Natural Gas Liquids and Crude of the Managing Member.  Barry E. Davis and Joe A. Davis are not related.
 
Biographical information for each of the foregoing executive officers (other than Barry E. Davis, whose biography is included above) is set forth below:
 
Joe A. Davis (53) is the Executive Vice President, General Counsel and Secretary of the Managing Member. Mr. Davis previously joined Enlink Midstream’s predecessor, the Corporation, in October 2005. He began his legal career in 1985 with the Dallas firm of Worsham Forsythe, which merged with the international law firm of Hunton & Williams in 2002. Most recently, he served as a partner in the firm’s Energy Practice Group, and served on the firm’s Executive Committee. Mr. Davis specialized in facility development, sales, acquisitions and financing for the energy industry, representing entrepreneurial start up/development companies, growth companies, large public corporations and large electric and gas utilities. He received his J.D. from Baylor Law School in Waco and his B.S. degree from the University of Texas in Dallas.
 
Michael J. Garberding (45) is the Executive Vice President and Chief Financial Officer of the Managing Member. Mr. Garberding previously joined Enlink Midstream’s predecessor, the Corporation, in February 2008. Mr. Garberding assumed the role of Senior Vice President and Chief Financial Officer of the Corporation in August 2011 and the role of Executive Vice President and Chief Financial Officer of the Corporation in January 2013. Mr. Garberding previously led the finance and business development organization for Crosstex Energy, L.P. Mr. Garberding has 20 years experience in finance and accounting. From 2002 to 2008, Mr. Garberding held various finance and business development positions at TXU Corporation, including assistant treasurer. In addition, Mr. Garberding worked at Enron North America as a Finance Manager and Arthur Andersen LLP as an Audit Manager. He received his Masters in Business Administration from the University of Michigan in 1999 and his B.B.A. in Accounting from Texas A&M University in 1991.
 
Steve J. Hoppe (51) is the Executive Vice President and President of Gas Gathering, Processing and Transmission of the Managing Member.  Previously, Mr. Hoppe served as Senior Vice President of Midstream Operations for Devon, which he joined in 2007.  Mr. Hoppe has more than 25 years of midstream energy-industry experience, including eight years at Thunder Creek Gas Services, where he most recently served as President.  Mr. Hoppe holds a Bachelor of Science degree in civil engineering from the University of Wyoming.
 
15 

 
McMillan (Mac) Hummel (51) is the Executive Vice President and President of Natural Gas Liquids and Crude of the Managing Member.  Previously, Mr. Hummel served in various positions with The Williams Companies, which he joined in 1985, including Vice President of Commodity Services, Vice President of Natural Gas Liquids and Olefins and Vice President of Western Region Gathering and Processing. Mr. Hummel began his career with Williams’ serving as Director of Business Development for the Northwest Pipeline while living in Calgary, Alberta.  Mr. Hummel has been a member of the American Fuel & Petrochemical Manufacturers Petrochemical Committee and the Association of Oil Pipe Lines Pipeline Subcommittee.  Mr. Hummel earned a Bachelor of Science degree in accounting and a Masters of Business Administration from the University of Utah.
 
Indemnification Agreements
 
EnLink Midstream has entered into indemnification agreements (the “ Indemnification Agreements ”) with each of the Managing Member’s directors and executive officers (collectively, the “ Indemnitees ”).  Under the terms of the Indemnification Agreements, EnLink Midstream agrees to indemnify and hold each Indemnitee harmless, subject to certain conditions, against any and all losses, claims, damages, liabilities, expenses (including legal fees and expenses), judgments, fines, ERISA excise taxes, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which the Indemnitee is involved, or is threatened to be involved, as a party or otherwise, because the Indemnitee is or was a director, manager or officer of the Managing Member or EnLink Midstream, or is or was serving at the request of the Managing Member or EnLink Midstream as a manager, managing member, general partner, director, officer, fiduciary, or trustee of another entity, organization or person of any nature.  EnLink Midstream has also agreed to advance the expenses of an Indemnitee relating to the foregoing. To the extent that a change in the laws of the State of Delaware permits greater indemnification under any statute, agreement, organizational document or governing document than would be afforded under the Indemnification Agreements as of the date of the Indemnification Agreements, the Indemnitee shall enjoy the greater benefits so afforded by such change.
 
The foregoing description of the Indemnification Agreements does not purport to be complete and is qualified in its entirety by reference to the complete text of the Form of Indemnification Agreement, the form of which is filed as Exhibit 10.8 to this Current Report and is incorporated herein by reference.
 
Amended and Restated Long-Term Incentive Plans
 
On March 7, 2014, effective as of the closing of the Mergers, EnLink Midstream (i) assumed the Crosstex Energy, Inc. 2009 Long-Term Incentive Plan (the “ Plan ”) and all awards thereunder outstanding following the Mergers and (ii) amended and restated the Plan (the
 
16 

 
“ EnLink Midstream 2009 Long-Term Incentive Plan ”) to reflect the conversion of the awards under the Plan relating to the Corporation’s common stock to awards in respect of Common Units.  The foregoing description of the EnLink Midstream 2009 Long-Term Incentive Plan does not purport to be complete and is qualified in its entirety by reference to the complete text of the EnLink Midstream 2009 Long-Term Incentive Plan, a copy of which is filed as Exhibit 10.9 to this Current Report and is incorporated herein by reference.
 
Item 5.03.                                         Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
 
On March 7, 2014, in connection with the Closing, the Managing Member amended and restated EnLink Midstream’s operating agreement and entered into the First Amended and Restated Operating Agreement of EnLink Midstream (as amended and restated, the “ Operating Agreement ”).  A description of the Operating Agreement is contained in the Prospectus in the section entitled “The EnLink Midstream Operating Agreement” and is incorporated herein by reference.
 
The foregoing description of the Operating Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Operating Agreement, a copy of which is filed as Exhibit 3.1 to this Current Report.
 
Effective March 7, 2014, the General Partner changed its name from Crosstex Energy GP, LLC to EnLink Midstream GP, LLC (the “ General Partner Name Change ”).  The General Partner filed a Certificate of Amendment to its Certificate of Formation (the “ GP Certificate Amendment ”) with the Delaware Secretary of State, and the Corporation, as the sole member of the General Partner, executed the Second Amended and Restated Limited Liability Company Agreement (the “ Amended GP LLC Agreement ”) to effect the General Partner Name Change and incorporate other technical updates.  The GP Certificate Amendment and the Amended GP LLC Agreement are attached hereto as Exhibits 3.2 and 3.3, respectively, to this Current Report.
 
Additionally, effective March 7, 2014, the Partnership changed its name from Crosstex Energy, L.P. to EnLink Midstream Partners, LP (the “ Partnership Name Change ” and, together with the General Partner Name Change, the “ Name Change ”).  The Partnership filed a Second Amendment to its Certificate of Limited Partnership (the “ Partnership Certificate Amendment ”) with the Delaware Secretary of State to effect the Partnership Name Change and reflect the General Partner Name Change.  The Partnership Certificate Amendment is attached hereto as Exhibit 3.4 to this Current Report.
 
The General Partner also amended (the “ Partnership Agreement Amendment ”) the Sixth Amended and Restated Agreement of Limited Partnership of the Partnership, as amended to date, to reflect the Name Change and to establish the Class B Units.  The Class B Units are substantially similar in all respects to the Partnership’s Common Units, except that they will only be entitled to a pro rata distribution for the fiscal quarter ended March 31, 2014.  The Class B Units will automatically convert into Common Units on a one-for-one basis on the first business day following the record date with respect to the distribution for the quarter ended March 31, 2014.
 
17 

 
The foregoing description of the Partnership Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the complete text of the Partnership Agreement Amendment, a copy of which is filed as Exhibit 3.5 to this Current Report.
 
In connection with the Partnership Name Change, the Partnership’s trading symbol for its Common Units changed to “ENLK” in connection with the commencement of trading upon the New York Stock Exchange on March 10, 2014.  The new CUSIP number for the Partnership’s Common Units is 29336U 10 7.
 
Item 9.01.                                         Financial Statements and Exhibits.
 
(a)                                  Financial Statements of Business Acquired
 
As permitted under this item, EnLink Midstream will file any financial statements required by this item not later than 71 days after the date this Current Report is required to be filed.
 
(b)                                  Pro Forma Financial Information
 
As permitted under this item, EnLink Midstream will file any financial statements required by this item not later than 71 days after the date this Current Report is required to be filed.
 
(d)                                  Exhibits.

EXHIBIT
NUMBER	 	 	 	DESCRIPTION	
 	 	 	 	 	
3.1	 	—	 	First Amended and Restated Operating Agreement of EnLink Midstream, LLC, dated as of March 7, 2014.	
3.2	 	—	 	Certificate of Amendment to the Certificate of Formation of Crosstex Energy GP, LLC (incorporated by reference to Exhibit 3.1 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
3.3	 	—	 	Second Amended and Restated Limited Liability Company Agreement of EnLink Midstream GP, LLC, dated as of March 7,	
 
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 	 	 	 	2014 (incorporated by reference to Exhibit 3.2 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
3.4	 	—	 	Second Amendment to the Certificate of Limited Partnership of Crosstex Energy, L.P. (incorporated by reference to Exhibit 3.3 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
3.5	 	—	 	Amendment No. 6 to Sixth Amended and Restated Agreement of Limited Partnership of Crosstex Energy, L.P., dated as of March 7, 2014 (incorporated by reference to Exhibit 3.4 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
4.1	 	—	 	Registration Rights Agreement, dated as of March 7, 2014, by and among Devon Gas Services, L.P. and EnLink Midstream, LLC.	
4.2	 	—	 	Unitholder Agreement, dated as of March 7, 2014, by and among Devon Energy Corporation, Devon Gas Corporation, Devon Gas Services, L.P., Southwestern Gas Pipeline, Inc. and EnLink Midstream Partners, LP (incorporated by reference to Exhibit 4.1 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.1	 	—	 	First Offer Agreement, dated as of March 7, 2014, by and between EnLink Midstream, LLC and Devon Energy Corporation.	
10.2	 	—	 	Preferential Rights Agreement, dated as of March 7, 2014, by and among Crosstex Energy, Inc., EnLink Midstream Partners, LP and EnLink Midstream, LLC (incorporated by reference to Exhibit 10.1 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.3†	 	—	 	Gas Gathering and Processing Contract—Bridgeport Plant, dated as of March 7, 2014, by and between Devon Gas Services, L.P. and EnLink Midstream Services, LLC (incorporated by reference to Exhibit 10.2 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.4†	 	—	 	Gas Gathering and Processing Contract—Cana Plant, dated as of March 7, 2014, by and between Devon Gas Services, L.P. and EnLink Midstream Services, LLC (incorporated by reference to Exhibit 10.3 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.5†	 	—	 	Gas Gathering and Processing Contract—Northridge Plant, dated as of March 7, 2014, by and between Devon Gas Services, L.P. and EnLink Midstream Services, LLC (incorporated by reference to Exhibit 10.4 to EnLink Midstream Partners, LP’s Current Report on	
 
19 

 

 	 	 	 	Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.6†	 	—	 	Gas Gathering and Processing Contract—East Johnson County System, dated as of March 7, 2014, by and between Devon Gas Services, L.P. and SWG Pipeline, L.L.C. (incorporated by reference to Exhibit 10.5 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.7	 	—	 	Credit Agreement, dated as of March 7, 2014, among EnLink Midstream, LLC, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer thereunder, Citibank, N.A. and Wells Fargo Bank, National Association, as Co-Syndication Agents, Royal Bank of Canada and Bank of Montreal, as Co-Documentation Agents, and the other lenders party thereto.	
10.8	 	—	 	Form of Indemnification Agreement.	
10.9	 	—	 	EnLink Midstream 2009 Long-Term Incentive Plan, as amended and restated on March 7, 2014.	

†                  Application has been made to the Securities and Exchange Commission for confidential treatment of certain provisions of this exhibit. Omitted material for which confidential treatment has been requested has been separately filed with the Securities and Exchange Commission.
 
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SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 	ENLINK MIDSTREAM, LLC	
 	 	
 	By:	EnLink Midstream Manager, LLC,	
 	 	its Managing Member	

Date: March 11, 2014	By:	 /s/ Michael J. Garberding	
 	 	Michael J. Garberding	
 	 	Executive Vice President and	
 	 	Chief Financial Officer	
 
21 

 
INDEX TO EXHIBITS

EXHIBIT
NUMBER	 	 	 	DESCRIPTION	
 	 	 	 	 	
3.1	 	—	 	First Amended and Restated Operating Agreement of EnLink Midstream, LLC, dated as of March 7, 2014.	
3.2	 	—	 	Amendment to the Certificate of Formation of Crosstex Energy GP, LLC (incorporated by reference to Exhibit 3.1 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
3.3	 	—	 	Second Amended and Restated Limited Liability Company Agreement of EnLink Midstream GP, LLC, dated as of March 7, 2014 (incorporated by reference to Exhibit 3.2 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
3.4	 	—	 	Second Amendment to the Certificate of Limited Partnership of Crosstex Energy, L.P. (incorporated by reference to Exhibit 3.3 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
3.5	 	—	 	Amendment No. 6 to Sixth Amended and Restated Agreement of Limited Partnership of Crosstex Energy, L.P., dated as of March 7, 2014 (incorporated by reference to Exhibit 3.4 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
4.1	 	—	 	Registration Rights Agreement, dated as of March 7, 2014, by and among Devon Gas Services, L.P. and EnLink Midstream, LLC.	
4.2	 	—	 	Unitholder Agreement, dated as of March 7, 2014, by and among Devon Energy Corporation, Devon Gas Corporation, Devon Gas Services, L.P., Southwestern Gas Pipeline, Inc. and EnLink Midstream Partners, LP (incorporated by reference to Exhibit 4.1 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.1	 	—	 	First Offer Agreement, dated as of March 7, 2014, by and between EnLink Midstream, LLC and Devon Energy Corporation.	
10.2	 	—	 	Preferential Rights Agreement, dated as of March 7, 2014, by and among Crosstex Energy, Inc., EnLink Midstream Partners, LP and EnLink Midstream, LLC (incorporated by reference to Exhibit 10.1 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.3†	 	—	 	Gas Gathering and Processing Contract—Bridgeport Plant, dated as of March 7, 2014, by and between Devon Gas Services, L.P. and EnLink Midstream Services, LLC (incorporated by reference to	
 
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 	 	 	 	Exhibit 10.2 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.4†	 	—	 	Gas Gathering and Processing Contract—Cana Plant, dated as of March 7, 2014, by and between Devon Gas Services, L.P. and EnLink Midstream Services, LLC (incorporated by reference to Exhibit 10.3 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.5†	 	—	 	Gas Gathering and Processing Contract—Northridge Plant, dated as of March 7, 2014, by and between Devon Gas Services, L.P. and EnLink Midstream Services, LLC (incorporated by reference to Exhibit 10.4 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.6†	 	—	 	Gas Gathering and Processing Contract—East Johnson County System, dated as of March 7, 2014, by and between Devon Gas Services, L.P. and SWG Pipeline, L.L.C. (incorporated by reference to Exhibit 10.5 to EnLink Midstream Partners, LP’s Current Report on Form 8-K dated March 6, 2014, filed with the Commission on March 11, 2014).	
10.7	 	—	 	Credit Agreement, dated as of March 7, 2014, among EnLink Midstream, LLC, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer thereunder, Citibank, N.A. and Wells Fargo Bank, National Association, as Co-Syndication Agents, Royal Bank of Canada and Bank of Montreal, as Co-Documentation Agents, and the other lenders party thereto.	
10.8	 	—	 	Form of Indemnification Agreement.	
10.9	 	—	 	EnLink Midstream 2009 Long-Term Incentive Plan, as amended and restated on March 7, 2014.	

†                  Application has been made to the Securities and Exchange Commission for confidential treatment of certain provisions of this exhibit. Omitted material for which confidential treatment has been requested has been separately filed with the Securities and Exchange Commission.
 
23 

Exhibit 3.1

 
 
FIRST AMENDED AND RESTATED
 
OPERATING AGREEMENT
 
OF
 
ENLINK MIDSTREAM, LLC

 

 
TABLE OF CONTENTS

 	 	Page No.	
 	
ARTICLE I	
DEFINITIONS	
 	 	 	
Section 1.1	Definitions	1	
Section 1.2	Construction	9	
 	 	 	
ARTICLE II	
ORGANIZATION	
 	 	 	
Section 2.1	Formation	9	
Section 2.2	Name	9	
Section 2.3	Registered Office; Registered Agent; Principal Office; Other Offices	9	
Section 2.4	Purpose and Business	10	
Section 2.5	Powers	10	
Section 2.6	Term	10	
Section 2.7	Title to Company Assets	10	
 	 	 	
ARTICLE III	
RIGHTS OF MEMBERS	
 	 	 	
Section 3.1	Limitation of Liability	11	
Section 3.2	Management of Business	11	
Section 3.3	Outside Activities of the Non-Managing Members	11	
Section 3.4	Rights of Non-Managing Members	11	
 	 	 	
ARTICLE IV	
CERTIFICATES; RECORD HOLDERS; TRANSFER OF MEMBERSHIP INTERESTS; REDEMPTION OF MEMBERSHIP INTERESTS	
 	 	 	
Section 4.1	Certificates	12	
Section 4.2	Mutilated, Destroyed, Lost or Stolen Certificates	13	
Section 4.3	Record Holders	13	
Section 4.4	Transfer Generally	14	
Section 4.5	Registration and Transfer of Non-Managing Member Interests	14	
Section 4.6	Transfer of the Managing Member’s Managing Member Interest	15	
Section 4.7	Restrictions on Transfers	15	
 	 	 	
ARTICLE V	
CAPITAL CONTRIBUTIONS AND ISSUANCE OF MEMBERSHIP INTERESTS	
 	 	 	
Section 5.1	Organizational Contributions	16	
Section 5.2	Contributions and Issuances on the Closing Date	16	
Section 5.3	Interest and Withdrawal	16	
Section 5.4	Issuances of Additional Membership Interests and Derivative Instruments	16	
Section 5.5	Limited Preemptive Right	17	
Section 5.6	Splits and Combinations	17	
 
ii 

 

Section 5.7	Fully Paid and Non-Assessable Nature of Membership Interests	18	
Section 5.8	Establishment of Class B Common Units	18	
 	 	 	
ARTICLE VI	
DISTRIBUTIONS	
 	
Section 6.1	Distributions	19	
 	 	 	
ARTICLE VII	
MANAGEMENT AND OPERATION OF BUSINESS	
 	
Section 7.1	Management	20	
Section 7.2	Replacement of Fiduciary Duties	22	
Section 7.3	Certificate of Formation	22	
Section 7.4	Restrictions on the Managing Member’s Authority	23	
Section 7.5	Reimbursement of the Managing Member	23	
Section 7.6	Outside Activities	24	
Section 7.7	Indemnification	25	
Section 7.8	Liability of Indemnitees	27	
Section 7.9	Standards of Conduct and Modification of Duties	27	
Section 7.10	Other Matters Concerning the Managing Member and Indemnitees	30	
Section 7.11	Purchase or Sale of Membership Interests	30	
Section 7.12	Reliance by Third Parties	30	
 	 	 	
ARTICLE VIII	
BOOKS, RECORDS, ACCOUNTING AND REPORTS	
 	
Section 8.1	Records and Accounting	31	
Section 8.2	Fiscal Year	31	
Section 8.3	Reports	31	
 	 	 	
ARTICLE IX	
TAX MATTERS	
 	
Section 9.1	Tax Elections and Information	32	
Section 9.2	Withholding	32	
 	 	 	
ARTICLE X	
ADMISSION OF MEMBERS	
 	
Section 10.1	Admission of Non-Managing Members	32	
Section 10.2	Admission of Successor Managing Member	33	
Section 10.3	Amendment of Agreement and Certificate of Formation	33	
 	 	 	
ARTICLE XI	
WITHDRAWAL OR REMOVAL OF MEMBERS	
 	
Section 11.1	Withdrawal of the Managing Member	34	
Section 11.2	Removal of the Managing Member	35	
Section 11.3	Interest of Departing Managing Member and Successor Managing Member	36	
Section 11.4	Withdrawal of Non-Managing Members	37	
 
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ARTICLE XII	
DISSOLUTION AND LIQUIDATION	
 	
Section 12.1	Dissolution	37	
Section 12.2	Continuation of the Business of the Company After Dissolution	38	
Section 12.3	Liquidator	38	
Section 12.4	Liquidation	39	
Section 12.5	Cancellation of Certificate of Formation	39	
Section 12.6	Return of Contributions	39	
Section 12.7	Waiver of Partition	40	
 	 	 	
ARTICLE XIII	
AMENDMENT OF OPERATING AGREEMENT; MEETINGS; RECORD DATE	
 	
Section 13.1	Amendments to be Adopted Solely by the Managing Member	40	
Section 13.2	Amendment Procedures	41	
Section 13.3	Amendment Requirements	42	
Section 13.4	Special Meetings	43	
Section 13.5	Notice of a Meeting	43	
Section 13.6	Record Date	43	
Section 13.7	Adjournment	44	
Section 13.8	Waiver of Notice; Approval of Meeting; Approval of Minutes	44	
Section 13.9	Quorum and Voting	44	
Section 13.10	Conduct of a Meeting	45	
Section 13.11	Action Without a Meeting	45	
Section 13.12	Right to Vote and Related Matters	46	
 	 	 	
ARTICLE XIV	
MERGER OR CONSOLIDATION	
 	
Section 14.1	Authority	46	
Section 14.2	Procedure for Merger or Consolidation	46	
Section 14.3	Approval by Non-Managing Members	48	
Section 14.4	Certificate of Merger	49	
Section 14.5	Effect of Merger or Consolidation	49	
 	 	 	
ARTICLE XV	
RIGHT TO ACQUIRE NON-MANAGING MEMBERSHIP INTERESTS	
 	
Section 15.1	Right to Acquire Non-Managing Member Interests	50	
 	 	 	
ARTICLE XVI	
GENERAL PROVISIONS	
 	
Section 16.1	Addresses and Notices; Written Communications	51	
Section 16.2	Further Action	52	
Section 16.3	Binding Effect	52	
Section 16.4	Integration	52	
Section 16.5	Creditors	52	
Section 16.6	Waiver	52	
 
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Section 16.7	Third-Party Beneficiaries	52	
Section 16.8	Counterparts	52	
Section 16.9	Applicable Law; Forum; Venue and Jurisdiction; Waiver of Trial by Jury	53	
Section 16.10	Invalidity of Provisions	54	
Section 16.11	Consent of Members	54	
Section 16.12	Facsimile Signatures	54	
 
v 

 
FIRST AMENDED AND RESTATED
OPERATING AGREEMENT
OF ENLINK MIDSTREAM, LLC
 
THIS FIRST AMENDED AND RESTATED OPERATING AGREEMENT of EnLink Midstream, LLC (the “ Company ”), dated as of March 7, 2014, is entered into by EnLink Midstream Manager, LLC, a Delaware limited liability company, as the Managing Member, and any other Persons who become Members in the Company or parties hereto as provided herein.  In consideration of the covenants, conditions and agreements contained herein, the parties hereto hereby agree as follows:
 
ARTICLE I
DEFINITIONS
 
Section 1.1                                     Definitions .  The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.
 
“ Acacia ” means Acacia Natural Gas Corp I, Inc., a Delaware corporation.
 
“ Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question.  As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
 
“ Agreement ” means this First Amended and Restated Operating Agreement of EnLink Midstream, LLC, as it may be amended, supplemented or restated from time to time.
 
“ Associate ” means, when used to indicate a relationship with any Person, (a) any corporation or organization of which such Person is a director, officer, manager, general partner or managing member or is, directly or indirectly, the owner of 20% or more of any class of voting stock or other voting interest; (b) any trust or other estate in which such Person has at least a 20% beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity; and (c) any relative or spouse of such Person, or any relative of such spouse, who has the same principal residence as such Person.
 
“ Board of Directors ” means the board of directors of the Managing Member.
 
“ Business Day ” means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State of Texas shall not be regarded as a Business Day.
 
“ Capital Contribution ” means any cash, cash equivalents or the fair market value of property that a Member contributes to the Company or that is contributed or deemed contributed
 
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to the Company on behalf of a Member (including, in the case of an underwritten offering of Units, the amount of any underwriting discounts or commissions).
 
“ Cause ” means a court of competent jurisdiction has entered a final, non-appealable judgment finding the Managing Member is liable to the Company or any Non-Managing Member for actual fraud or willful misconduct in its capacity as a managing member of the Company.
 
“ Certificate ” means a certificate in such form (including in global form if permitted by applicable rules and regulations) as may be adopted by the Managing Member, issued by the Company evidencing ownership of one or more Membership Interests.
 
“ Certificate of Formation ” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware as referenced in Section 7.3 , as such Certificate of Formation may be amended, supplemented or restated from time to time.
 
“ Class B Common Unit ” means a Membership Interest having the rights and obligations specified with respect to Class B Common Units in this Agreement.
 
“ Closing Date ” means the date on which Common Units and Class B Common Units are issued and delivered by the Company to Crosstex Stockholders and Devon Gas, respectively, pursuant to the Crosstex Merger Agreement.
 
“ Closing Price ” means, in respect of any class of Non-Managing Member Interests, as of the date of determination, the last sale price on such day, regular way, or in case no such sale takes place on such day, the average of the closing bid and asked prices on such day, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal National Securities Exchange on which such Non-Managing Member Interests are listed or admitted to trading or, if such Non-Managing Member Interests are not listed or admitted to trading on any National Securities Exchange, the last quoted price on such day or, if not so quoted, the average of the high bid and low asked prices on such day in the over-the-counter market, as reported by the primary reporting system then in use in relation to such Non-Managing Member Interests of such class, or, if on any such day such Non-Managing Member Interests of such class are not quoted by any such organization, the average of the closing bid and asked prices on such day as furnished by a professional market maker making a market in such Non-Managing Member Interests of such class selected by the Managing Member, or if on any such day no market maker is making a market in such Non-Managing Member Interests of such class, the fair value of such Non-Managing Member Interests on such day as determined by the Managing Member.
 
“ Code ” means the U.S. Internal Revenue Code of 1986, as amended and in effect from time to time.  Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of any successor law.
 
“ Combined Interest ” is defined in Section 11.3(a) .
 
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“ Commission ” means the United States Securities and Exchange Commission.
 
“ Common Unit ” means a Membership Interest having the rights and obligations specified with respect to Common Units in this Agreement.  The term “Common Unit” does not refer to or include any Class B Common Unit prior to its conversion into a Common Unit pursuant to the terms hereof.
 
“ Company ” means EnLink Midstream, LLC, a Delaware limited liability company.
 
“ Company Group ” means, collectively, the Company and its Subsidiaries.
 
“ Conflicts Committee ” means a committee of the Board of Directors composed entirely of two or more directors, each of whom (a) is not an officer or employee of the Managing Member, (b) is not an officer or employee of any Affiliate of the Managing Member or a director of any Affiliate of the Managing Member (other than any Group Member), (c) is not a holder of any ownership interest in the Managing Member or any of its Affiliates, including any Group Member, other than Common Units and awards that are granted to such director under the LTIP and (d) is determined by the Board of Directors of the Managing Member to be independent under the independence standards for directors who serve on an audit committee of a board of directors established by the Securities Exchange Act and the rules and regulations of the Commission thereunder and by the National Securities Exchange on which any class of Membership Interests is listed or admitted to trading (or, if the Membership Interests are not listed or admitted on any National Securities Exchange, the New York Stock Exchange).
 
“ Contribution Agreement ” means that certain Contribution Agreement, dated as of October 21, 2013, by and among Devon, Devon Gas, Devon Gas Corporation, Southwestern Gas Pipeline, Inc., Crosstex Energy, L.P. and Crosstex Energy Services, L.P.
 
“ Crosstex Energy ” means Crosstex Energy, Inc., a Delaware corporation.
 
“ Crosstex Merger Agreement ” means the Agreement and Plan of Merger, dated as of October 21, 2013, by and among the Company, Devon, Devon Gas, Acacia, Crosstex Energy, Rangers Merger Sub, Inc. and Boomer Merger Sub, Inc.
 
“ Crosstex Stockholder ” means a Person who receives the Crosstex Merger Consideration (as defined in the Crosstex Merger Agreement) in exchange for shares of Crosstex Common Stock (as defined in the Crosstex Merger Agreement) pursuant to the Crosstex Merger Agreement.
 
“ Current Market Price ” means, in respect of any class of Non-Managing Member Interests, as of the date of determination, the average of the daily Closing Prices per Non-Managing Member Interest of such class for the 20 consecutive Trading Days immediately prior to such date.
 
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“ Delaware Act ” means the Delaware Limited Liability Company Act, 6 Del. C. Section 18-101, et seq., as amended, supplemented or restated from time to time, and any successor to such statute.
 
“ Departing Managing Member ” means a former Managing Member from and after the effective date of any withdrawal or removal of such former Managing Member pursuant to Section 11.1 or 11.2 .
 
“ Derivative Instruments ” means options, rights, warrants, appreciation rights, tracking, profit and phantom interests and other derivative instruments (other than equity interests in the Company) relating to, convertible into or exchangeable for Membership Interests.
 
“ Devon ” means Devon Energy Corporation, a Delaware corporation.
 
“ Devon Gas ” means Devon Gas Services, L.P., a Texas limited partnership.
 
“ EnLink Midstream Group Member ” means each of the Company and its Subsidiaries, but excluding Crosstex Energy, L.P. and its Subsidiaries (other than EnLink Midstream Holdings, LP for so long as the Company owns an equity interest thereof).
 
“ Event of Withdrawal ” is defined in Section 11.1(a) .
 
“ Group ” means two or more Persons that with or through any of their respective Affiliates or Associates have any contract, arrangement, understanding or relationship for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent given to such Person in response to a proxy or consent solicitation made to 10 or more Persons), exercising investment power or disposing of any Membership Interests with any other Person that beneficially owns, or whose Affiliates or Associates beneficially own, directly or indirectly, Membership Interests.
 
“ Group Member ” means a member of the Company Group.
 
“ Group Member Agreement ” means the partnership agreement of any Group Member that is a limited or general partnership, the limited liability company agreement of any Group Member, other than the Company, that is a limited liability company, the certificate of incorporation and bylaws or similar organizational documents of any Group Member that is a corporation, the joint venture agreement or similar governing document of any Group Member that is a joint venture and the governing or organizational or similar documents of any other Group Member that is a Person other than a limited or general partnership, limited liability company, corporation or joint venture, as such may be amended, supplemented or restated from time to time.
 
“ Indemnitee ” means (a) any Managing Member, (b) any Departing Managing Member, (c) any Person who is or was an Affiliate of the Managing Member or any Departing Managing Member, (d) any Person who is or was a manager, managing member, general partner, director,
 
4 

 
officer, employee, agent, fiduciary or trustee of any (i) EnLink Midstream Group Member, a Managing Member or any Departing Managing Member or (ii) any Affiliate of any  EnLink Midstream Group Member, a Managing Member or any Departing Managing Member, (e) any Person who is or was serving at the request of a Managing Member, any Departing Managing Member or any of their respective Affiliates as an officer, director, manager, managing member, general partner, employee, agent, fiduciary or trustee of another Person owing a fiduciary or similar duty to any EnLink Midstream Group Member; provided that a Person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services and (f) any Person the Managing Member designates as an “Indemnitee” for purposes of this Agreement because such Person’s service, status or relationship exposes such Person to potential claims, demands, actions, suits or proceedings relating to the business and affairs of any EnLink Midstream Group Member.
 
“ Initial Non-Managing Members ” means (a) Devon Gas, and (b) Crosstex Stockholders, in each case with respect to the Class B Common Units and Common Units, respectively, received by them as described in Section 5.2 and upon being admitted to the Company in accordance with Section 10.1 .
 
“ Liquidator ” means one or more Persons selected by the Managing Member to perform the functions described in Section 12.4 as liquidating trustee of the Company within the meaning of the Delaware Act.
 
“ LTIP ” means benefit plans, programs and practices adopted by the Managing Member pursuant to Section 7.5(c) .
 
“ Managing Member ” means EnLink Midstream Manager, LLC, a Delaware limited liability company, and its successors and permitted assigns that are admitted to the Company as managing member of the Company, in their capacities as managing member of the Company (except as the context otherwise requires).
 
“ Managing Member Interest ” means the non-economic management interest of the Managing Member in the Company (in its capacity as a managing member and without reference to any Non-Managing Member Interest held by it) and includes any and all rights, powers and benefits to which the Managing Member is entitled as provided in this Agreement, together with all obligations of the Managing Member to comply with the terms and provisions of this Agreement.  The Managing Member Interest does not include any rights to profits or losses or any rights to receive distributions from operations or upon the liquidation or winding-up of the Company.
 
“ Members ” means the Managing Member and the Non-Managing Members.
 
“ Membership Interest ” means any class or series of equity interest (or, in the case of the Managing Member, management interest) in the Company, which shall include any Managing Member Interest and Non-Managing Member Interests but shall exclude all Derivative Instruments.
 
5 

 
“ Merger Agreement ” is defined in Section 14.1 .
 
“ National Securities Exchange ” means an exchange registered with the Commission under Section 6(a) of the Securities Exchange Act (or any successor to such Section).
 
“ Non-Managing Member ” means, unless the context otherwise requires, each Initial Non-Managing Member and each additional Person that becomes a Non-Managing Member pursuant to the terms of this Agreement, in each case, in such Person’s capacity as a member (other than a managing member) of the Company.
 
“ Non-Managing Member Interest ” means the ownership interest of a Non-Managing Member in the Company, which may be evidenced by Common Units, Class B Common Units or other Membership Interests (other than the Managing Member Interest) or a combination thereof or interest therein, and includes any and all benefits to which such Non-Managing Member is entitled as provided in this Agreement, together with all obligations of such Non-Managing Member to comply with the terms and provisions of this Agreement.
 
“ Notice of Election to Purchase ” is defined in Section 15.1(b) .
 
“ Opinion of Counsel ” means a written opinion of counsel (who may be regular counsel to the Company or the Managing Member or any of its Affiliates) acceptable to the Managing Member.
 
“ Outstanding ” means, with respect to Membership Interests, all Membership Interests that are issued by the Company and reflected as outstanding on the Company’s books and records as of the date of determination; provided , however , that if at any time any Person or Group (other than the Managing Member or its Affiliates) beneficially owns 20% or more of the Membership Interests of any class, none of the Membership Interests owned by such Person or Group shall be entitled to be voted on any matter or be considered to be Outstanding when sending notices of a meeting of Non-Managing Members to vote on any matter (unless otherwise required by law), calculating required votes, determining the presence of a quorum or for other similar purposes under this Agreement (such Membership Interests shall not, however, be treated as a separate class of Membership Interests for purposes of this Agreement or the Delaware Act); provided , further , that the foregoing limitation shall not apply to (i) any Person or Group who acquired 20% or more of the Membership Interests of any class directly from the Managing Member or its Affiliates (other than the Company), (ii) any Person or Group who acquired 20% or more of the Membership Interests of any class directly or indirectly from a Person or Group described in clause (i)  provided that the Managing Member shall have notified such Person or Group in writing that such limitation shall not apply, or (iii) any Person or Group who acquired 20% or more of any Membership Interests issued by the Company with the written approval of the Managing Member.
 
“ Percentage Interest ” means, as of any date of determination, as to any Unitholder with respect to Units, the quotient obtained by dividing (A) the number of Units held by such
 
6 

 
Unitholder by (B) the total number of Outstanding Units.  The Percentage Interest with respect to the Managing Member Interest shall at all times be zero.
 
“ Person ” means an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.
 
“ Pro Rata ” means (a) when used with respect to Units or any class thereof, apportioned among all designated Units in accordance with their relative Percentage Interests, and (b) when used with respect to Members or Record Holders, apportioned among all Members or Record Holders in accordance with their relative Percentage Interests.
 
“ Purchase Date ” means the date determined by the Managing Member as the date for purchase of all Outstanding Non-Managing Member Interests of a certain class (other than Non-Managing Member Interests owned by the Managing Member and its Affiliates) pursuant to Article XV .
 
“ Quarter ” means, unless the context requires otherwise, a fiscal quarter of the Company, or, with respect to the fiscal quarter of the Company in which the Closing Date occurs, the portion of such fiscal quarter after the Closing Date.
 
“ Record Date ” means the date established by the Managing Member or otherwise in accordance with this Agreement for determining (a) the identity of the Record Holders entitled to notice of, or to vote at, any meeting of Non-Managing Members or entitled to vote by ballot or give approval of Company action in writing without a meeting or entitled to exercise rights in respect of any lawful action of Non-Managing Members or (b) the identity of Record Holders entitled to receive any report or distribution or to participate in any offer.
 
“ Record Holder ” means (a) with respect to any class of Membership Interests for which a Transfer Agent has been appointed, the Person in whose name a Membership Interest of such class is registered on the books of the Transfer Agent as of the closing of business on a particular Business Day, or (b) with respect to other classes of Membership Interests, the Person in whose name any such other Membership Interest is registered on the books that the Managing Member has caused to be kept as of the closing of business on such Business Day.
 
“ Registration Statement ” means the Registration Statement on Form S-4 (Registration No. 333-192419) as it has been or as it may be amended or supplemented from time to time, as filed by the Company with the Commission, under the Securities Act to register the offering of the Common Units in pursuant to the Crosstex Merger Agreement.
 
“ Securities Act ” means the Securities Act of 1933, as amended, supplemented or restated from time to time and any successor to such statute.
 
“ Securities Exchange Act ” means the Securities Exchange Act of 1934, as amended, supplemented or restated from time to time and any successor to such statute.
 
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“ Special Approval ” means approval by a majority of the members of the Conflicts Committee, acting pursuant to Section 7.9(a) .
 
“ Subsidiary ” means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general partner of such partnership, but only if such Person, directly or by one or more Subsidiaries of such Person, or a combination thereof, controls such partnership on the date of determination or (c) any other Person in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person.
 
“ Surviving Business Entity ” is defined in Section 14.2(b)(ii) .
 
“ Trading Day ” means a day on which the principal National Securities Exchange on which the referenced Membership Interests of any class are listed or admitted to trading is open for the transaction of business or, if such Membership Interests are not listed or admitted to trading on any National Securities Exchange, a day on which banking institutions in New York City generally are open.
 
“ transfer ” is defined in Section 4.4(a) .
 
“ Transfer Agent ” means such bank, trust company or other Person (including the Managing Member or one of its Affiliates) as may be appointed from time to time by the Managing Member to act as registrar and transfer agent for any class of Membership; provided , that if no such Person is appointed as registrar and transfer agent for any class of Membership Interests, the Managing Member shall act in such capacity.
 
“ Unit ” means a Membership Interest that is designated as a “Unit” and shall include Common Units and Class B Common Units but shall not include the Managing Member Interest.
 
“ Unitholders ” means the Record Holders of Units.
 
“ Unit Majority ” means a majority of the Units.
 
“ Unrestricted Person ” means (a) each Indemnitee, (b) each Member, (c) each Person who is or was a member, partner, director, officer, employee or agent of any Group Member, a Managing Member or any Departing Managing Member or any Affiliate of any Group Member, a Managing Member or any Departing Managing Member and (d) any Person the Managing Member designates as an “Unrestricted Person” for purposes of this Agreement.
 
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“ U.S.  GAAP ” means United States generally accepted accounting principles, as in effect from time to time, consistently applied.
 
“ Withdrawal Opinion of Counsel ” is defined in Section 11.1(b) .
 
Section 1.2                                     Construction .  Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms; (b) references to Articles and Sections refer to Articles and Sections of this Agreement; (c) the terms “include”, “includes”, “including” and words of like import shall be deemed to be followed by the words “without limitation”; and (d) the terms “hereof”, “herein” and “hereunder” refer to this Agreement as a whole and not to any particular provision of this Agreement.  The table of contents and headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement.  The Managing Member has the power to construe and interpret this Agreement and to act upon any such construction or interpretation.  Any construction or interpretation of this Agreement by the Managing Member and any action taken pursuant thereto and any determination made by the Managing Member in good faith shall, in each case, be conclusive and binding on all Record Holders and all other Persons for all purposes.
 
ARTICLE II
ORGANIZATION
 
Section 2.1                                     Formation .  The Managing Member has previously formed the Company as a limited liability company pursuant to the provisions of the Delaware Act.  This amendment and restatement shall become effective on the date of this Agreement.  Except as expressly provided to the contrary in this Agreement, the rights, duties (including fiduciary duties), liabilities and obligations of the Members and the administration, dissolution and termination of the Company shall be governed by the Delaware Act.
 
Section 2.2                                     Name .  The name of the Company shall be “EnLink Midstream, LLC.” The Company’s business may be conducted under any other name or names as determined by the Managing Member, including the name of the Managing Member.  The words “Limited Liability Company,” “L.L.C.” or “LLC,” or similar words or letters shall be included in the Company’s name where necessary for the purpose of complying with the laws of any jurisdiction that so requires.  The Managing Member may change the name of the Company at any time and from time to time and shall notify the Non-Managing Members of such change in the next regular communication to the Non-Managing Members.
 
Section 2.3                                     Registered Office; Registered Agent; Principal Office; Other Offices .  Unless and until changed by the Managing Member, the registered office of the Company in the State of Delaware shall be located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, and the registered agent for service of process on the Company in the State of Delaware at such registered office shall be The Corporation Trust Company.  The principal office of the Company shall be located at 2501 Cedar Springs Rd., Dallas, Texas 75201, or such
 
9 

 
other place as the Managing Member may from time to time designate by notice to the Non-Managing Members.  The Company may maintain offices at such other place or places within or outside the State of Delaware as the Managing Member determines to be necessary or appropriate.
 
Section 2.4                                     Purpose and Business .  The purpose and nature of the business to be conducted by the Company shall be to (a) engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that is approved by the Managing Member, in its sole discretion, and that lawfully may be conducted by a limited liability company organized pursuant to the Delaware Act and, in connection therewith, to exercise all of the rights and powers conferred upon the Company pursuant to the agreements relating to such business activity, and (b) do anything necessary or appropriate to the foregoing, including the making of capital contributions or loans to a Group Member.  To the fullest extent permitted by law, the Managing Member shall have no duty or obligation to propose or approve, and may, in its sole discretion, decline to propose or approve, the conduct by the Company Group of any business.
 
Section 2.5                                     Powers .  The Company shall be empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described in Section 2.4 and for the protection and benefit of the Company.
 
Section 2.6                                     Term .  The term of the Company commenced upon the filing of the Certificate of Formation in accordance with the Delaware Act and shall continue in existence until the dissolution of the Company in accordance with the provisions of Article XII .  The existence of the Company as a separate legal entity shall continue until the cancellation of the Certificate of Formation as provided in the Delaware Act.
 
Section 2.7                                     Title to Company Assets .  Title to Company assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Company as an entity, and no Member, individually or collectively, shall have any ownership interest in such Company assets or any portion thereof.  Title to any or all of the Company assets may be held in the name of the Company, the Managing Member, one or more of its Affiliates or one or more nominees, as the Managing Member may determine.  The Managing Member hereby declares and warrants that any Company assets for which record title is held in the name of the Managing Member or one or more of its Affiliates or one or more nominees shall be held by the Managing Member or such Affiliate or nominee for the use and benefit of the Company in accordance with the provisions of this Agreement; provided , however , that the Managing Member shall use reasonable efforts to cause record title to such assets (other than those assets in respect of which the Managing Member determines that the expense and difficulty of conveyancing makes transfer of record title to the Company impracticable) to be vested in the Company or one or more of the Company’s designated Affiliates as soon as reasonably practicable; provided , further , that, prior to the withdrawal or removal of the Managing Member or as soon thereafter
 
10 

 
as practicable, the Managing Member shall use reasonable efforts to effect the transfer of record title to the Company and, prior to any such transfer, will provide for the use of such assets in a manner satisfactory to the Managing Member.  All Company assets shall be recorded as the property of the Company in its books and records, irrespective of the name in which record title to such Company assets is held.
 
ARTICLE III
RIGHTS OF MEMBERS
 
Section 3.1                                     Limitation of Liability .  The Members shall have no liability under this Agreement except as expressly provided in this Agreement or the Delaware Act.
 
Section 3.2                                     Management of Business .  No Non-Managing Member, in its capacity as such, shall participate in the operation, management or control of the Company’s business, transact any business in the Company’s name or have the power to sign documents for or otherwise bind the Company.
 
Section 3.3                                     Outside Activities of the Non-Managing Members .  Subject to the provisions of Section 7.6 , which shall continue to be applicable to the Persons referred to therein, regardless of whether such Persons shall also be Non-Managing Members, each Non-Managing Member shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Company, including business interests and activities in direct competition with the Company Group.  Neither the Company nor any of the other Members shall have any rights by virtue of this Agreement in any business ventures of any Non-Managing Member.
 
Section 3.4                                     Rights of Non-Managing Members .
 
(a)                                  Each Non-Managing Member shall have the right, for a purpose that is reasonably related, as determined by the Managing Member, to such Non-Managing Member’s interest as a Non-Managing Member in the Company, upon reasonable written demand stating the purpose of such demand and at such Non-Managing Member’s own expense, to obtain:
 
(i)                                      true and full information regarding the status of the business and financial condition of the Company (provided that the requirements of this Section 3.4(a)(i)  shall be satisfied to the extent the Non-Managing Member is furnished the Company’s most recent annual report and any subsequent quarterly or periodic reports required to be filed (or which would be required to be filed) with the Commission pursuant to Section 13 of the Exchange Act);
 
(ii)                                   a current list of the name and last known business, residence or mailing address of each Record Holder; and
 
(iii)                                a copy of this Agreement and the Certificate of Formation and all amendments thereto, together with copies of the executed copies of all powers of attorney
 
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pursuant to which this Agreement, the Certificate of Formation and all amendments thereto have been executed.
 
(b)                                  The rights to information granted the Non-Managing Members pursuant to Section 3.4(a)  and Section 8.3 replace in their entirety any rights to information provided for in Section 18-305(a) of the Delaware Act and each of the Members and each other Person or Group who acquires an interest in Membership Interests hereby agrees to the fullest extent permitted by law that they do not have any rights as Members to receive any information either pursuant to Sections 18-305(a) of the Delaware Act or otherwise except for the information identified in Section 3.4(a) .
 
(c)                                   The Managing Member may keep confidential from the Non-Managing Members, for such period of time as the Managing Member deems reasonable, (i) any information that the Managing Member reasonably believes to be in the nature of trade secrets or (ii) other information the disclosure of which the Managing Member believes (A) is not in the best interests of the Company Group, (B) could damage the Company Group or its business or (C) that any Group Member is required by law or by agreement with any third party to keep confidential (other than agreements with Affiliates of the Company the primary purpose of which is to circumvent the obligations set forth in this Section 3.4 ).
 
(d)                                  Notwithstanding any other provision of this Agreement or Section 18-305 of the Delaware Act, each of the Members, each other Person who acquires an interest in a Membership Interest and each other Person bound by this Agreement hereby agrees to the fullest extent permitted by law that they do not have rights to receive information from the Company or any Indemnitee for the purpose of determining whether to pursue litigation or assist in pending litigation against the Company or any Indemnitee relating to the affairs of the Company except pursuant to the applicable rules of discovery relating to litigation commenced by such Person.
 
ARTICLE IV
CERTIFICATES; RECORD HOLDERS; TRANSFER OF MEMBERSHIP INTERESTS; REDEMPTION OF MEMBERSHIP INTERESTS
 
Section 4.1                                     Certificates .  Notwithstanding anything to the contrary herein, unless the Managing Member shall determine otherwise in respect of some or all of any or all classes of Membership Interests, Membership Interests shall not be evidenced by certificates.  Any Certificates that are issued shall be executed on behalf of the Company by the Chairman of the Board, Chief Executive Officer, President or any Executive Vice President or Vice President and the Chief Financial Officer or the Secretary or any Assistant Secretary of the Managing Member.  No Certificate for a class of Membership Interests shall be valid for any purpose until it has been countersigned by the Transfer Agent for such class of Membership Interests; provided , however , that if the Managing Member elects to cause the Company to issue Membership Interests of such class in global form, the Certificate shall be valid upon receipt of a certificate from the Transfer Agent certifying that the Membership Interests have been duly registered in accordance with the directions of the Company.
 
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Section 4.2                                     Mutilated, Destroyed, Lost or Stolen Certificates .
 
(a)                                  If any mutilated Certificate is surrendered to the Transfer Agent, the appropriate officers of the Managing Member on behalf of the Company shall execute, and the Transfer Agent shall countersign and deliver in exchange therefor, a new Certificate evidencing the same number and type of Membership Interests as the Certificate so surrendered.
 
(b)                                  The appropriate officers of the Managing Member on behalf of the Company shall execute and deliver, and the Transfer Agent shall countersign, a new Certificate in place of any Certificate previously issued if the Record Holder of the Certificate:
 
(i)                                      makes proof by affidavit, in form and substance satisfactory to the Managing Member, that a previously issued Certificate has been lost, destroyed or stolen;
 
(ii)                                   requests the issuance of a new Certificate before the Managing Member has notice that the Certificate has been acquired by a purchaser for value in good faith and without notice of an adverse claim;
 
(iii)                                if requested by the Managing Member, delivers to the Managing Member a bond, in form and substance satisfactory to the Managing Member, with surety or sureties and with fixed or open penalty as the Managing Member may direct to indemnify the Company, the Members, the Managing Member and the Transfer Agent against any claim that may be made on account of the alleged loss, destruction or theft of the Certificate; and
 
(iv)                               satisfies any other reasonable requirements imposed by the Managing Member or the Transfer Agent.
 
If a Non-Managing Member fails to notify the Managing Member within a reasonable period of time after such Non-Managing Member has notice of the loss, destruction or theft of a Certificate, and a transfer of the Non-Managing Member Interests represented by the Certificate is registered before the Company, the Managing Member or the Transfer Agent receives such notification, the Non-Managing Member shall be precluded from making any claim against the Company, the Managing Member or the Transfer Agent for such transfer or for a new Certificate.
 
(c)                                   As a condition to the issuance of any new Certificate under this Section 4.2 , the Managing Member may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Transfer Agent) reasonably connected therewith.
 
Section 4.3                                     Record Holders .  The Company and the Managing Member shall be entitled to recognize the Record Holder as the Member with respect to any Membership Interest and, accordingly, shall not be bound to recognize any equitable or other claim to, or interest in, such Membership Interest on the part of any other Person, regardless of whether the Company or the Managing Member shall have actual or other notice thereof, except as otherwise provided by
 
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law or any applicable rule, regulation, guideline or requirement of any National Securities Exchange on which such Membership Interests are listed or admitted to trading.  Without limiting the foregoing, when a Person (such as a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing) is acting as nominee, agent or in some other representative capacity for another Person in acquiring and/or holding Membership Interests, as between the Company on the one hand, and such other Persons on the other, such representative Person shall be (a) the Record Holder of such Membership Interest and (b) bound by this Agreement and shall have the rights and obligations of a Member hereunder as, and to the extent, provided herein.
 
Section 4.4                                     Transfer Generally .
 
(a)                                  The term “transfer,” when used in this Agreement with respect to a Membership Interest, shall mean a transaction (i) by which the Managing Member assigns its Managing Member Interest to another Person, and includes a sale, assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange or any other disposition by law or otherwise or (ii) by which the holder of a Non-Managing Member Interest assigns such Non-Managing Member Interest to another Person who is or becomes a Non-Managing Member, and includes a sale, assignment, gift, exchange or any other disposition by law or otherwise, excluding a pledge, encumbrance, hypothecation or mortgage but including any transfer upon foreclosure of any pledge, encumbrance, hypothecation or mortgage.
 
(b)                                  No Membership Interest shall be transferred, in whole or in part, except in accordance with the terms and conditions set forth in this Article IV .  Any transfer or purported transfer of a Membership Interest not made in accordance with this Article IV shall be, to the fullest extent permitted by law, null and void.
 
(c)                                   Nothing contained in this Agreement shall be construed to prevent a disposition by any stockholder, member, partner or other owner of any Member of any or all of the shares of stock, membership interests, partnership interests or other ownership interests in such Member and the term “transfer” shall not mean any such disposition.
 
Section 4.5                                     Registration and Transfer of Non-Managing Member Interests .
 
(a)                                  The Managing Member shall keep or cause to be kept on behalf of the Company a register in which, subject to such reasonable regulations as it may prescribe and subject to the provisions of Section 4.5(b) , the Company will provide for the registration and transfer of Non-Managing Member Interests.
 
(b)                                  The Company shall not recognize any transfer of Non-Managing Member Interests evidenced by Certificates until the Certificates evidencing such Non-Managing Member Interests are surrendered for registration of transfer.  No charge shall be imposed by the Managing Member for such transfer; provided , that as a condition to the issuance of any new Certificate under this Section 4.5 , the Managing Member may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed with respect
 
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thereto.  Upon surrender of a Certificate for registration of transfer of any Non-Managing Member Interests evidenced by a Certificate, and subject to the provisions hereof, the appropriate officers of the Managing Member on behalf of the Company shall execute and deliver, and the Transfer Agent shall countersign and deliver, in the name of the holder or the designated transferee or transferees, as required pursuant to the holder’s instructions, one or more new Certificates evidencing the same aggregate number and type of Non-Managing Member Interests as was evidenced by the Certificate so surrendered.
 
(c)                                   Subject to (i) the foregoing provisions of this Section 4.5 , (ii)  Section 4.3 , (iii)  Section 4.7 , (iv) with respect to any class or series of Non-Managing Member Interests, the provisions of any statement of designations or an amendment to this Agreement establishing such class or series, (v) any contractual provisions binding on any Non-Managing Member and (vi) provisions of applicable law including the Securities Act, Non-Managing Member Interests shall be freely transferable.
 
Section 4.6                                     Transfer of the Managing Member’s Managing Member Interest .
 
(a)                                  Subject to Section 4.6(b) , the Managing Member may at its option transfer all or any part of its Managing Member Interest without approval from any other Member.
 
(b)                                  Notwithstanding anything herein to the contrary, no transfer by the Managing Member of all or any part of its Managing Member Interest to another Person shall be permitted unless (i) the transferee agrees to assume the rights and duties of the Managing Member under this Agreement and to be bound by the provisions of this Agreement and (ii) the Company receives an Opinion of Counsel that such transfer would not result in the loss of limited liability under the Delaware Act of any Non-Managing Member.  In the case of a transfer pursuant to and in compliance with this Section 4.6 , the transferee or successor (as the case may be) shall, subject to compliance with the terms of Section 10.2 , be admitted to the Company as the Managing Member effective immediately prior to the transfer of the Managing Member Interest, and the business of the Company shall continue without dissolution.
 
Section 4.7                                     Restrictions on Transfers .
 
(a)                                  Notwithstanding the other provisions of this Article IV , no transfer of any Membership Interests shall be made if such transfer would (i) violate the then applicable federal or state securities laws or rules and regulations of the Commission, any state securities commission or any other governmental authority with jurisdiction over such transfer or (ii) terminate the existence or qualification of the Company under the laws of the jurisdiction of its formation.
 
(b)                                  Nothing contained in this Agreement, other than Section 4.7(a) , shall preclude the settlement of any transactions involving Membership Interests entered into through the facilities of any National Securities Exchange on which such Membership Interests are listed or admitted to trading.
 
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ARTICLE V
CAPITAL CONTRIBUTIONS AND ISSUANCE OF MEMBERSHIP INTERESTS
 
Section 5.1                                     Organizational Contributions .  In connection with the formation of the Company under the Delaware Act, the Managing Member has contributed $1,000 to the Company and has been admitted as the sole Member of the Company.
 
Section 5.2                                     Contributions and Issuances on the Closing Date .  Pursuant to the Crosstex Merger Agreement, (i) a newly-formed, wholly-owned Subsidiary of the Company has merged with and into Crosstex Energy (with Crosstex Energy surviving as a wholly-owned subsidiary of the Company), (ii) a second newly-formed, wholly-owned Subsidiary of the Company has merged with and into Acacia (with Acacia surviving as a wholly-owned subsidiary of the Company), and (iii) in consideration for the mergers described in clauses (i)  and (ii) , the Company has issued or will issue Common Units and Class B Common Units to the Crosstex Stockholders and Devon, respectively.
 
Section 5.3                                     Interest and Withdrawal .  No interest shall be paid by the Company on Capital Contributions.  No Member shall be entitled to the withdrawal or return of its Capital Contribution, except to the extent, if any, that distributions made pursuant to this Agreement or upon liquidation of the Company may be considered as such by law and then only to the extent provided for in this Agreement.  Except to the extent expressly provided in this Agreement, no Member shall have priority over any other Member either as to the return of Capital Contributions or as to profits, losses or distributions.
 
Section 5.4                                     Issuances of Additional Membership Interests and Derivative Instruments .
 
(a)                                  The Company may issue additional Membership Interests and Derivative Instruments for any Company purpose at any time and from time to time to such Persons for such consideration and on such terms and conditions as the Managing Member shall determine, all without the approval of any Non-Managing Members.
 
(b)                                  Each additional Membership Interest authorized to be issued by the Company pursuant to Section 5.4(a)  may be issued in one or more classes, or one or more series of any such classes, with such designations, preferences, rights, powers and duties (which may be senior to existing classes and series of Membership Interests), as shall be fixed by the Managing Member, including (i) the right to share in Company distributions; (ii) the rights upon dissolution and liquidation of the Company; (iii) whether, and the terms and conditions upon which, the Company may or shall be required to redeem the Membership Interest (including sinking fund provisions); (iv) whether such Membership Interest is issued with the privilege of conversion or exchange and, if so, the terms and conditions of such conversion or exchange; (v) the terms and conditions upon which each Membership Interest will be issued, evidenced by Certificates and assigned or transferred; (vi) the method for determining the Percentage Interest as to such Membership Interest; and (vii) the right, if any, of each such Membership Interest to
 
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vote on Company matters, including matters relating to the relative rights, preferences and privileges of such Membership Interest.
 
(c)                                   The Managing Member shall take all actions that it determines to be necessary or appropriate in connection with (i) each issuance of Membership Interests and Derivative Instruments pursuant to this Section 5.4 , (ii) the conversion of the Combined Interest into Units pursuant to the terms of this Agreement, (iii) reflecting admission of such additional Non-Managing Members in the books and records of the Company as the Record Holders of such Non-Managing Member Interests and (iv) all additional issuances of Membership Interests.  The Managing Member shall determine the relative rights, powers and duties of the holders of the Units or other Membership Interests being so issued.  The Managing Member shall do all things necessary to comply with the Delaware Act and is authorized and directed to do all things that it determines to be necessary or appropriate in connection with any future issuance of Membership Interests or in connection with the conversion of the Combined Interest into Units pursuant to the terms of this Agreement, including compliance with any statute, rule, regulation or guideline of any federal, state or other governmental agency or any National Securities Exchange on which the Units or other Membership Interests are listed or admitted to trading.
 
(d)                                  No fractional Units shall be issued by the Company.
 
Section 5.5                                     Limited Preemptive Right .  Except as provided in this Section 5.5 or as otherwise provided in a separate agreement by the Company, no Person shall have any preemptive, preferential or other similar right with respect to the issuance of any Membership Interest, whether unissued, held in the treasury or hereafter created.  The Managing Member shall have the right, which it may from time to time assign in whole or in part to any of its Affiliates, to purchase Membership Interests from the Company whenever, and on the same terms that, the Company issues Membership Interests to Persons other than the Managing Member and its Affiliates, to the extent necessary to maintain the Percentage Interests of the Managing Member and its Affiliates equal to that which existed immediately prior to the issuance of such Membership Interests.  The determination by the Managing Member to exercise (or refrain from exercising) its right pursuant to the immediately preceding sentence shall be a determination made in its individual capacity.
 
Section 5.6                                     Splits and Combinations .
 
(a)                                  The Company may make a distribution of Membership Interests to all Record Holders or may effect a subdivision or combination of Membership Interests so long as, after any such event, each Member shall have the same Percentage Interest in the Company as before such event (subject to the effect of Section 5.6(d) ), and any amounts calculated on a per Unit basis or stated as a number of Units are proportionately adjusted.
 
(b)                                  Whenever such a distribution, subdivision or combination of Membership Interests is declared, the Managing Member shall select a Record Date as of which the distribution, subdivision or combination shall be effective and shall send notice thereof at least
 
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20 days prior to such Record Date to each Record Holder as of a date not less than 10 days prior to the date of such notice.  The Managing Member also may cause a firm of independent public accountants selected by it to calculate the number of Membership Interests to be held by each Record Holder after giving effect to such distribution, subdivision or combination.  The Managing Member shall be entitled to rely on any certificate provided by such firm as conclusive evidence of the accuracy of such calculation.
 
(c)                                   Promptly following any such distribution, subdivision or combination, the Company may issue Certificates to the Record Holders of Membership Interests as of the applicable Record Date representing the new number of Membership Interests held by such Record Holders, or the Managing Member may adopt such other procedures that it determines to be necessary or appropriate to reflect such changes.  If any such combination results in a smaller total number of Membership Interests Outstanding, the Company shall require, as a condition to the delivery to a Record Holder of such new Certificate, the surrender of any Certificate held by such Record Holder immediately prior to such Record Date.
 
(d)                                  The Company shall not issue fractional Units upon any distribution, subdivision or combination of Units.  If a distribution, subdivision or combination of Units would result in the issuance of fractional Units but for the provisions of Section 5.4(d)  and this Section 5.6(d) , each fractional Unit shall be rounded to the nearest whole Unit (and a 0.5 Unit shall be rounded to the next higher Unit).
 
Section 5.7                                     Fully Paid and Non-Assessable Nature of Membership Interests .
 
All Membership Interests issued pursuant to, and in accordance with the requirements of, this Article V shall be fully paid and non-assessable Membership Interests in the Company, except as such non-assessability may be affected by Section 18-607 or 18-804 of the Delaware Act.
 
Section 5.8                                     Establishment of Class B Common Units .
 
(a)                                  General . The Managing Member hereby designates and creates a class of Units to be designated as “Class B Common Units” and consisting of a total of 115,495,669 Class B Common Units, and fixes the designations, preferences and relative, participating, optional or other special rights, powers and duties of holders of the Class B Common Units as set forth in this Section 5.8 .
 
(b)                                  Rights of Class B Common Units . During the period commencing upon issuance of the Class B Common Units and ending upon the conversion of the Class B Common Units into Common Units pursuant to Section 5.8(d) , except as otherwise provided in this Agreement, the Class B Common Units shall have the right to share in distributions on a Pro Rata basis with the Common Units (excluding distributions with respect to (A) the calendar quarter in which the Closing Date occurs and (B) the calendar quarter prior to the calendar quarter in which the Closing Date occurs), so that the amount of any distribution to each Common Unit will equal the amount of such distribution to each Class B Common Unit. The
 
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Class B Common Units shall have the right to share in distributions with respect to the calendar quarter in which the Closing Date occurs, so that the amount of any distribution to each Class B Common Unit will equal (A) the amount of such distribution to each Common Unit multiplied by (B) a fraction, (x) the numerator of which is the number of days commencing with the Closing Date and ending with the last day of such calendar quarter and (y) the denominator of which is the total number of days in such calendar quarter.
 
(c)                                   Voting Rights . The Class B Common Units shall be entitled to vote as a single class with the holders of the Common Units on any matters on which Unitholders are entitled to vote, and shall be entitled to vote as a separate class on any matter that adversely affects the rights or preferences of the Class B Common Units in relation to other classes of Membership Interests (including as a result of a merger or consolidation) or as required by law. The approval of a majority of the Class B Common Units shall be required to approve any matter for which the holders of the Class B Common Units are entitled to vote as a separate class. Each Class B Common Unit will be entitled to the number of votes equal to the number of Common Units into which a Class B Common Unit is convertible at the time of the record date for the vote or written consent on the matter.
 
(d)                                  Conversion . Each Class B Common Unit shall automatically convert into one Common Unit (subject to appropriate adjustment in the event of any split-up, combination or similar event affecting the Common Units or other Units that occurs prior to the conversion of the Class B Common Units) effective as of the first business day following the record date for the distribution with respect to the calendar quarter in which the Closing Date occurs without any further action by the holders thereof and without the approval of any Member.
 
ARTICLE VI
DISTRIBUTIONS
 
Section 6.1                                     Distributions .
 
(a)                                  The Board of Directors may adopt a cash distribution policy, which it may change from time to time without amendment to this Agreement.
 
(b)                                  Except as set forth in Section 5.8(b) , the Company will make distributions, if any, to Unitholders Pro Rata.
 
(c)                                   All distributions required to be made under this Agreement or otherwise made by the Company shall be made subject to Sections 18-607 and 18-804 of the Delaware Act.
 
(d)                                  Notwithstanding Section 6.1(a) , in the event of the dissolution and liquidation of the Company, all Company assets shall be applied and distributed solely in accordance with, and subject to the terms and conditions of, Section 12.4 .
 
(e)                                   Each distribution in respect of a Membership Interest shall be paid by the Company, directly or through any Transfer Agent or through any other Person or agent, only to
 
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the Record Holder of such Membership Interest as of the Record Date set for such distribution.  Such payment shall constitute full payment and satisfaction of the Company’s liability in respect of such payment, regardless of any claim of any Person who may have an interest in such payment by reason of an assignment or otherwise.
 
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
 
Section 7.1                                     Management .
 
(a)                                  The Managing Member shall conduct, direct and manage all activities of the Company.  Except as otherwise expressly provided in this Agreement, but without limitation on the ability of the Managing Member to delegate its rights and power to other Persons, all management powers over the business and affairs of the Company shall be exclusively vested in the Managing Member, and no other Member shall have any management power over the business and affairs of the Company.  In addition to the powers now or hereafter granted to a managing member of a limited liability company under applicable law or that are granted to the Managing Member under any other provision of this Agreement, the Managing Member, subject to Section 7.4 , shall have full power and authority to do all things and on such terms as it determines to be necessary or appropriate to conduct the business of the Company, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4 , including the following:
 
(i)                                      the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness, including indebtedness that is convertible or exchangeable into Membership Interests, and the incurring of any other obligations;
 
(ii)                                   the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Company;
 
(iii)                                the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Company or the merger or other combination of the Company with or into another Person (the matters described in this clause (iii)  being subject, however, to any prior approval that may be required by Section 7.4 or Article XIV );
 
(iv)                               the use of the assets of the Company (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Company Group; the lending of funds to other Persons (including other Group Members); the repayment or guarantee of obligations of any Group Member; and the making of capital contributions to any Group Member;
 
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(v)                                  the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Company under contractual arrangements to all or particular assets of the Company;
 
(vi)                               the distribution of cash or cash equivalents by the Company;
 
(vii)                            the selection, employment, retention and dismissal of employees (including employees having titles such as “president,” “vice president,” “secretary” and “treasurer”) and agents, outside attorneys, accountants, consultants and contractors of the Managing Member or the Company Group and the determination of their compensation and other terms of employment or hiring;
 
(viii)                         the maintenance of insurance for the benefit of the Company Group, the Members and Indemnitees;
 
(ix)                               the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any further limited or general partnerships, joint ventures, corporations, limited liability companies or other Persons (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time);
 
(x)                                  the control of any matters affecting the rights and obligations of the Company, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation;
 
(xi)                               the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
 
(xii)                            the entering into of listing agreements with any National Securities Exchange and the delisting of some or all of the Membership Interests from, or requesting that trading be suspended on, any such exchange;
 
(xiii)                         the purchase, sale or other acquisition or disposition of Membership Interests, or the issuance of Derivative Instruments;
 
(xiv)                        the undertaking of any action in connection with the Company’s participation in the management of any Group Member; and
 
(xv)                           the entering into of agreements with any of its Affiliates, including agreements to render services to a Group Member or to itself in the discharge of its duties as Managing Member of the Company.
 
(b)                                  Notwithstanding any other provision of this Agreement, any Group Member Agreement, the Delaware Act or any applicable law, rule or regulation, each of the
 
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Members, each other Person who acquires an interest in a Membership Interest and each other Person who is otherwise bound by this Agreement hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of this Agreement, the Crosstex Merger Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement (in the case of each agreement other than this Agreement, without giving effect to any amendments, supplements or restatements after the date hereof); (ii) agrees that the Managing Member (on its own behalf or on behalf of the Company) is authorized to execute, deliver and perform the agreements referred to in clause (i)  of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement without any further act, approval or vote of the Members, the other Persons who acquire a Membership Interest and the Persons who are otherwise bound by this Agreement; and (iii) agrees that the execution, delivery or performance by the Managing Member, any Group Member or any Affiliate of any of them of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the Managing Member or any Affiliate of the Managing Member of the rights accorded pursuant to Article XV ) shall not constitute a breach by the Managing Member of any fiduciary or other duty existing at law, in equity or otherwise that the Managing Member may owe the Company, the Non-Managing Members, the other Persons who acquire a Membership Interest or the Persons who are otherwise bound by this Agreement.
 
Section 7.2                                     Replacement of Fiduciary Duties .  Notwithstanding any other provision of this Agreement, to the extent that, at law or in equity, the Managing Member or any other Indemnitee would have duties (including fiduciary duties) to the Company, to another Member, to any Person who acquires an interest in a Membership Interest or to any other Person bound by this Agreement, all such duties (including fiduciary duties) are hereby eliminated, to the fullest extent permitted by law, and replaced with the duties expressly set forth herein.  The elimination of duties (including fiduciary duties) and replacement thereof with the duties expressly set forth herein are approved by the Company, each of the Members, each other Person who acquires an interest in a Membership Interest and each other Person bound by this Agreement.
 
Section 7.3                                     Certificate of Formation .  The Managing Member has caused the Certificate of Formation to be filed with the Secretary of State of the State of Delaware as required by the Delaware Act.  The Managing Member shall use all reasonable efforts to cause to be filed such other certificates or documents that the Managing Member determines to be necessary or appropriate for the formation, continuation, qualification and operation of a limited liability company in the State of Delaware or any other state in which the Company may elect to do business or own property.  To the extent the Managing Member determines such action to be necessary or appropriate, the Managing Member shall file amendments to and restatements of the Certificate of Formation and do all things to maintain the Company as a limited liability company under the laws of the State of Delaware or of any other state in which the Company may elect to do business or own property.  Subject to the terms of Section 3.4(a) , the Managing Member shall not be required, before or after filing, to deliver or mail a copy of the Certificate of Formation, any qualification document or any amendment thereto to any Member.
 
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Section 7.4                                     Restrictions on the Managing Member’s Authority .  Except as provided in Article XII and Article XIV , the Managing Member may not sell, exchange or otherwise dispose of all or substantially all of the assets of the Company Group, taken as a whole, in a single transaction or a series of related transactions without the approval of a Unit Majority; provided , however , that this provision shall not preclude or limit the Managing Member’s ability to mortgage, pledge, hypothecate or grant a security interest in all or substantially all of the assets of the Company Group and shall not apply to any forced sale of any or all of the assets of the Company Group pursuant to the foreclosure of, or other realization upon, any such encumbrance.
 
Section 7.5                                     Reimbursement of the Managing Member .
 
(a)                                  Except as provided in this Section 7.5 , the Managing Member shall not be compensated for its services as Managing Member or as a general partner or managing member of any Group Member.
 
(b)                                  The Managing Member shall be reimbursed on a monthly basis, or such other basis as the Managing Member may determine, for (i) all direct and indirect expenses it incurs or payments it makes on behalf of the Company Group (including salary, bonus, incentive compensation and other amounts paid to any Person (including Affiliates of the Managing Member) to perform services for the Company Group or for the Managing Member in the discharge of its duties to the Company Group), and (ii) all other expenses allocable to the Company Group or otherwise incurred by the Managing Member in connection with operating the Company Group’s business (including expenses allocated to the Managing Member by its Affiliates).  The Managing Member shall determine the expenses that are allocable to any Group Member.  Reimbursements pursuant to this Section 7.5 shall be in addition to any reimbursement to the Managing Member as a result of indemnification pursuant to Section 7.7 .  The Managing Member and its Affiliates may charge any Group Member a management fee to the extent necessary to allow the Company Group to reduce the amount of any state franchise or income tax or any tax based upon revenues or gross margin of any Group Member if the tax benefit produced by the payment for such management fee exceeds the amount of such fee.
 
(c)                                   The Managing Member, without the approval of the Non-Managing Members (who shall have no right to vote in respect thereof), may propose and adopt on behalf of the Company benefit plans, programs and practices (including plans, programs and practices involving the issuance of Membership Interests), or cause the Company to issue Membership Interests in connection with, or pursuant to, any benefit plan, program or practice maintained or sponsored by the Managing Member or any of its Affiliates, any Group Member or their Affiliates, or any of them, in each case for the benefit of employees, officers, consultants and directors of the Managing Member or its Affiliates, in respect of services performed, directly or indirectly, for the benefit of the Company Group.  The Company agrees to issue and sell to the Managing Member or any of its Affiliates any Membership Interests that the Managing Member or such Affiliates are obligated to provide to any employees, officers, consultants and directors pursuant to any such benefit plans, programs or practices.  Expenses incurred by the Managing
 
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Member in connection with any such plans, programs and practices (including the net cost to the Managing Member or such Affiliates of Membership Interests purchased by the Managing Member or such Affiliates, from the Company or otherwise, to fulfill awards under such plans, programs and practices) shall be reimbursed in accordance with Section 7.5(b) .  Any and all obligations of the Managing Member under any benefit plans, programs or practices adopted by the Managing Member as permitted by this Section 7.5(c)  shall constitute obligations of the Managing Member hereunder and shall be assumed by any successor Managing Member approved pursuant to Section 11.1 or Section 11.2 or the transferee of or successor to all of the Managing Member’s Managing Member Interest pursuant to Section 4.6 .
 
Section 7.6                                     Outside Activities .
 
(a)                                  The Managing Member, for so long as it is the Managing Member of the Company  agrees that (i) its sole business will be to act as a general partner or managing member, as the case may be, of the Company and other entities of which the Company is, directly or indirectly, a partner or member and (ii) that it shall not engage in any other business or activity or incur any debts or liabilities, provided that the Managing Member may engage in any business or activity or incur any debts or liabilities in connection with or incidental to (A) its performance as general partner or managing member, if any, of one or more Group Members, (B) the acquiring, owning or disposing of debt securities or equity interests in any Group Member or (C) the direct or indirect provision of management, advisory, and administrative services to its Affiliates or to other Persons.
 
(b)                                  Each Unrestricted Person (other than the Managing Member) shall have the right to engage in businesses of every type and description and other activities for profit and to engage in and possess an interest in other business ventures of any and every type or description, whether in businesses engaged in or anticipated to be engaged in by any Group Member, independently or with others, including business interests and activities in direct competition with the business and activities of any Group Member.  No such business interest or activity shall constitute a breach of this Agreement, any fiduciary or other duty existing at law, in equity or otherwise, or obligation of any type whatsoever to the Company or other Group Member, to another Member, to any Person who acquires an interest in a Membership Interest or any Person who is otherwise bound by this Agreement.
 
(c)                                   Notwithstanding anything to the contrary in this Agreement, the doctrine of corporate opportunity, or any analogous doctrine, shall not apply to any Unrestricted Person (including the Managing Member).  No Unrestricted Person (including, subject to Section 7.6(a) , the Managing Member) who acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Company, shall have any duty to communicate or offer such opportunity to any Group Member, and such Unrestricted Person (including the Managing Member) shall not be liable to the Company or any other Group Member, to another Member, to any Person who acquires a Membership Interest or any other Person who is otherwise bound by this Agreement for breach of any fiduciary or other duty existing at law, in equity or otherwise by reason of the fact that such Unrestricted Person
 
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(including the Managing Member) pursues or acquires such opportunity for itself, directs such opportunity to another Person or does not communicate such opportunity or information to any Group Member.
 
(d)                                  The Managing Member and each of its Affiliates may acquire Units or other Membership Interests in addition to those acquired on the Closing Date and, except as otherwise expressly provided in Section 7.11 , shall be entitled to exercise, at their option, all rights relating to all Units or other Membership Interests acquired by them.
 
Section 7.7                                     Indemnification .
 
(a)                                  To the fullest extent permitted by law, all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee and acting (or refraining to act) in such capacity; provided , that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  For purposes of this Agreement, any determination, other action or failure to act by any Indemnitee will be considered to be in bad faith only if such Indemnitee subjectively believed such determination, other action or failure to act was adverse to the interest of the Company.  Any indemnification pursuant to this Section 7.7 shall be made only out of the assets of the Company, it being agreed that the Managing Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
 
(b)                                  To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7.7(a)  in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7 , the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7.7 .
 
(c)                                   The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the holders of Outstanding Non-Managing Member Interests, as a matter of law, in equity
 
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or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
 
(d)                                  The Company may purchase and maintain (or reimburse the Managing Member or its Affiliates for the cost of) insurance, on behalf of an Indemnitee and such other Persons as the Managing Member shall determine, against any liability that may be asserted against, or expense that may be incurred by, such Indemnitee in connection with the Company’s activities or such Indemnitee’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Indemnitee against such liability under the provisions of this Agreement.
 
(e)                                   For purposes of this Section 7.7 , the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 7.7(a) ; and action taken or omitted by an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.
 
(f)                                    In no event may an Indemnitee subject the Non-Managing Members to personal liability by reason of the indemnification provisions set forth in this Agreement.
 
(g)                                   An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
 
(h)                                  The provisions of this Section 7.7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
 
(i)                                      No amendment, modification or repeal of this Section 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
 
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Section 7.8                                     Liability of Indemnitees .
 
(a)                                  Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall be liable for monetary damages to the Company, the Members or any other Persons who have acquired interests in a Membership Interest or is otherwise bound by this Agreement, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct, or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  In the case where an Indemnitee is liable for damages, those damages shall only be direct damages and shall not include punitive damages, consequential damages or lost profits.
 
(b)                                  The Managing Member may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents, and the Managing Member shall not be responsible for any misconduct or negligence on the part of any such agent appointed by the Managing Member in good faith.
 
(c)                                   To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company, the Members, any Person who acquires an interest in a Membership Interest or is otherwise bound by this Agreement, the Managing Member and any other Indemnitee acting in connection with the Company’s business or affairs shall not be liable, to the fullest extent permitted by law, to the Company, the Members, any Person who acquires an interest in a Membership Interest or is otherwise bound by this Agreement, for its reliance on the provisions of this Agreement.
 
(d)                                  Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
 
Section 7.9                                     Standards of Conduct and Modification of Duties .
 
(a)                                  Whenever the Managing Member, acting in its capacity as the managing member of the Company, makes a determination or takes or declines to take any action in such capacity (or the Board of Directors or any committee of the Board of Directors (including the Conflicts Committee) or any Affiliates of the Managing Member cause the Managing Member to make a determination or take or decline to take any action in such capacity), whether under this Agreement, any Group Member Agreement or any other agreement contemplated hereby or otherwise, then, unless another express standard is provided for in this Agreement, the Managing Member (or the Board of Directors, such committee or such Affiliates), shall make such determination or take or decline to take such other action in good faith.  The foregoing is the sole
 
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and exclusive standard governing any such determinations, actions and omissions of the Managing Member, the Board of Directors, any committee of the Board of Directors (including the Conflicts Committee) and any Affiliate of the Managing Member and no such Person shall be subject to any fiduciary duty or other duty or obligation, or any other, different or higher standard (all of which duties, obligations and standards are hereby waived and disclaimed), under this Agreement any Group Member Agreement or any other agreement contemplated hereby, or under the Delaware Act or any other law, rule or regulation or at equity.  A determination, other action or failure to act by the Managing Member, the Board of Directors of the Managing Member or any committee thereof (including the Conflicts Committee) will be deemed to be in good faith so long as the Managing Member, the Board of Directors of the Managing Member or any committee thereof (including the Conflicts Committee) subjectively believed such determination, other action or failure to act was in, or not opposed to, the best interests of the Company. In any proceeding brought by the Company, any Non-Managing Member, or any Person who acquires an interest in a Non-Managing Member Interest or any other Person who is bound by this Agreement challenging such action, determination or failure to act, the Person bringing or prosecuting such proceeding shall have the burden of proving that such determination, action or failure to act was not in good faith.
 
(b)                                  Whenever the Managing Member makes a determination or takes or declines to take any other action, or any of its Affiliates causes it to do so, in its individual capacity or its sole discretion as opposed to in its capacity as the managing member of the Company, whether under this Agreement or any other agreement contemplated hereby or otherwise, then the Managing Member, or such Affiliates causing it to do so, are entitled, to the fullest extent permitted by law, to make such determination or to take or decline to take such other action free of any fiduciary duty or other duty existing at law, in equity or otherwise or obligation whatsoever to the Company, any Non-Managing Member, any other Person who acquires an interest in a Membership Interest or any other Person who otherwise is bound by this Agreement, and the Managing Member, or such Affiliates causing it to do so, shall not, to the fullest extent permitted by law, be required to act in good faith or pursuant to any other standard imposed by this Agreement or any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity.
 
(c)                                   For purposes of Sections 7.9(a)  and (b)  of this Agreement, “acting in its capacity as the managing member of the Company” means and is solely limited to, the Managing Member exercising its authority as a managing member under this Agreement, other than when it is “acting in its individual capacity or its sole discretion.”  For purposes of this Agreement, “acting in its individual capacity or its sole discretion” means:  (A) any action by the Managing Member or its Affiliates other than through the exercise of the Managing Member of its authority as a managing member under this Agreement; and (B)  any action or inaction by the Managing Member by the exercise (or failure to exercise) of its rights, powers or authority under this Agreement that are modified by:  (i) the phrase “at the option of the Managing Member,” (ii) the phrase “in its sole discretion” or “in its discretion” or (iii) some variation of the phrases set forth in clauses (i)  and (ii) .  For the avoidance of doubt, whenever the Managing Member acquires or votes (or refrains from voting) Non-Managing Member Interests or transfers (or refrains from
 
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transferring) its Membership Interests, it shall be and be deemed to be “acting in its individual capacity or its sole discretion.”
 
(d)                                  Whenever a potential conflict of interest exists or arises between the Managing Member or any of its Affiliates, on the one hand, and the Company, any Group Member or any Member, any other Person who acquires an interest in a Membership Interest or any other Person who is bound by this Agreement on the other hand, the Managing Member may in its sole discretion submit any resolution, course of action with respect to or causing such conflict of interest or transaction (i) for Special Approval or (ii) for approval by the vote of a majority of the Units (excluding Units owned by the Managing Member and its Affiliates).  If any resolution, course of action or transaction:  (i) receives Special Approval; or (ii) receives approval of a majority of the Units (excluding Units owned by the Managing Member and its Affiliates), then such resolution, course of action or transaction shall be conclusively deemed to be approved by the Company, all the Members, each Person who acquires an interest in a Membership Interest and each other Person who is bound by this Agreement, and shall be and be deemed to be duly authorized, legal and binding and to be fair to the Company, all the Members, each Person who acquires an interest in a Membership Interest and each other Person who is bound by this Agreement, and shall not constitute a breach of this Agreement, of any Group Member Agreement, of any agreement contemplated herein or therein, or of any fiduciary or other duty or obligation existing at law, in equity or otherwise or obligation of any type whatsoever.
 
(e)                                   Notwithstanding anything to the contrary in this Agreement, the Managing Member and its Affiliates or any other Indemnitee shall have no duty or obligation, express or implied, to (i) sell or otherwise dispose of any asset of the Company Group other than in the ordinary course of business or (ii) permit any Group Member to use any facilities or assets of the Managing Member and its Affiliates, except as may be provided in contracts entered into from time to time specifically dealing with such use.  Any determination by the Managing Member or any of its Affiliates to enter into such contracts shall be in its sole discretion.
 
(f)                                    The Members, each Person who acquires an interest in a Membership Interest or is otherwise bound by this Agreement hereby authorize the Managing Member, on behalf of the Company as a partner or member of a Group Member, to approve actions by the general partner or managing member of such Group Member similar to those actions permitted to be taken by the Managing Member pursuant to this Section 7.9 .
 
(g)                                   For the avoidance of doubt, whenever the Board of Directors, any committee of the Board of Directors (including the Conflicts Committee), the officers of the Managing Member or any Affiliates of the Managing Member make a determination on behalf of the Managing Member, or cause the Managing Member to take or omit to take any action, whether in the Managing Member’s capacity as the Managing Member or in its individual capacity or its sole discretion, the standards of care applicable to the Managing Member shall apply to such Persons, and such Persons shall be entitled to all benefits and rights of the
 
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Managing Member hereunder, including waivers and modifications of duties, protections and presumptions, as if such Persons were the Managing Member hereunder.
 
Section 7.10                              Other Matters Concerning the Managing Member and Indemnitees .
 
(a)                                  The Managing Member and any other Indemnitee may rely upon, and shall be protected in acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties.
 
(b)                                  The Managing Member and any other Indemnitee may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisers selected by it, and any act taken or omitted in reliance upon the advice or opinion (including an Opinion of Counsel) of such Persons as to matters that the Managing Member or such other Indemnitee, as applicable, reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such advice or opinion.
 
(c)                                   The Managing Member shall have the right, in respect of any of its powers or obligations hereunder, to act through any of its duly authorized officers, a duly appointed attorney or attorneys-in-fact or the duly authorized officers of any Group Member.
 
Section 7.11                              Purchase or Sale of Membership Interests .  The Managing Member may cause the Company to purchase or otherwise acquire Membership Interests.  As long as Membership Interests are held by any Group Member, such Membership Interests shall not be entitled to any vote and shall not be considered Outstanding for any purpose.
 
Section 7.12                              Reliance by Third Parties .  Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Company shall be entitled to assume that the Managing Member and any officer of the Managing Member authorized by the Managing Member to act on behalf of and in the name of the Company has full power and authority to encumber, sell or otherwise use in any manner any and all assets of the Company and to enter into any authorized contracts on behalf of the Company, and such Person shall be entitled to deal with the Managing Member or any such officer as if it were the Company’s sole party in interest, both legally and beneficially.  Each Non-Managing Member, each other Person who acquires an interest in a Membership Interest and each other Person bound by this Agreement hereby waives, to the fullest extent permitted by law, any and all defenses or other remedies that may be available to such Member to contest, negate or disaffirm any action of the Managing Member or any such officer in connection with any such dealing.  In no event shall any Person dealing with the Managing Member or any such officer or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the Managing Member or any such officer or its representatives.  Each and every certificate, document or other instrument executed on behalf of the Company by the
 
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Managing Member or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (a) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (b) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Company and (c) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Company.
 
ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
 
Section 8.1                                     Records and Accounting .  The Managing Member shall keep or cause to be kept at the principal office of the Company appropriate books and records with respect to the Company’s business, including all books and records necessary to provide to the Non-Managing Members any information required to be provided pursuant to Section 3.4(a) .  Any books and records maintained by or on behalf of the Company in the regular course of its business, including the record of the Record Holders of Units or other Membership Interests, books of account and records of Company proceedings, may be kept on, or be in the form of, computer disks, hard drives, photographs, micrographics or any other information storage device; provided , that the books and records so maintained are convertible into clearly legible written form within a reasonable period of time.  The books of the Company shall be maintained, for financial reporting purposes, on an accrual basis in accordance with U.S. GAAP.
 
Section 8.2                                     Fiscal Year .  The fiscal year of the Company shall be a fiscal year ending December 31.
 
Section 8.3                                     Reports .
 
(a)                                  As soon as practicable, but in no event later than 105 days after the close of each fiscal year of the Company, the Managing Member shall cause to be mailed or made available, by any reasonable means, to each Record Holder of a Unit or other Membership Interest as of a date selected by the Managing Member, an annual report containing financial statements of the Company for such fiscal year of the Company, presented in accordance with U.S. GAAP, including a balance sheet and statements of operations, Company equity and cash flows, such statements to be audited by a firm of independent public accountants selected by the Managing Member.
 
(b)                                  As soon as practicable, but in no event later than 50 days after the close of each Quarter except the last Quarter of each fiscal year, the Managing Member shall cause to be mailed or made available, by any reasonable means to each Record Holder of a Unit or other Membership Interest, as of a date selected by the Managing Member, a report containing unaudited financial statements of the Company.
 
(c)                                   The Managing Member shall be deemed to have made a report available to each Record Holder as required by this Section 8.3 if it has either (i) filed such report with the
 
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Commission via its Electronic Data Gathering, Analysis and Retrieval system and such report is publicly available on such system or (ii) made such report available on any publicly available website maintained by the Company.
 
ARTICLE IX
TAX MATTERS
 
Section 9.1                                     Tax Elections and Information .
 
(a)                                  The Company is authorized and has elected to be treated as an association taxable as a corporation for U.S. federal income tax purposes.
 
(b)                                  Except as otherwise provided herein, the Managing Member shall determine whether the Company should make any other elections permitted by the Code.
 
(c)                                   The tax information reasonably required by Record Holders for U.S. federal income tax reporting purposes shall be furnished to Record Holders on or before the date required under the Code and treasury regulations thereunder, but in any event no later than 90 days after the close of each calendar year.
 
Section 9.2                                     Withholding .  Notwithstanding any other provision of this Agreement, the Managing Member is authorized to take any action that may be required to cause the Company to comply with any withholding requirements established under the Code or any other federal, state or local law.  To the extent that the Company is required or elects to withhold and pay over to any taxing authority any amount with respect to a distribution or payment to or for the benefit of any Member, the Managing Member may treat the amount withheld as a distribution of cash pursuant to Section 6.1 in the amount of such withholding from such Member.
 
ARTICLE X
ADMISSION OF MEMBERS
 
Section 10.1                              Admission of Non-Managing Members .
 
(a)                                  A Person shall be admitted as a Non-Managing Member and shall become bound by the terms of this Agreement if such Person purchases or otherwise lawfully acquires any Non-Managing Member Interest and becomes the Record Holder of such Non-Managing Member Interests in accordance with the provisions hereof.  Upon the issuance by the Company of Units to Devon Gas and Crosstex Stockholders as described in Article V , such parties will be automatically admitted to the Company as Initial Non-Managing Members in respect of the Units issued to them.
 
(b)                                  By acceptance of the transfer of any Non-Managing Member Interests in accordance with Article IV or the acceptance of any Non-Managing Member Interests issued pursuant to Article V or pursuant to a merger or consolidation or conversion pursuant to Article XIV , and each transferee of, or other such Person acquiring, a Non-Managing Member
 
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Interest (including any nominee holder or an agent or representative acquiring such Non-Managing Member Interests for the account of another Person) (i) shall be admitted to the Company as a Non-Managing Member with respect to the Non-Managing Member Interests so transferred or issued to such Person when any such transfer or issuance is reflected in the books and records of the Company and such Non-Managing Member becomes the Record Holder of the Non-Managing Member Interests so transferred or issued, (ii) shall become bound, and shall be deemed to have agreed to be bound, by the terms of this Agreement, (iii) represents that the transferee or other recipient has the capacity, power and authority to enter into this Agreement and (iv) makes the consents, acknowledgements and waivers contained in this Agreement, all with or without execution of this Agreement by such Person.  The transfer of any Non-Managing Member Interests and the admission of any new Non-Managing Member shall not constitute an amendment to this Agreement.  A Person may become a Non-Managing Member or Record Holder of a Non-Managing Member Interest without the consent or approval of any of the Members.  A Person may not become a Non-Managing Member without acquiring a Non-Managing Member Interest and until such Person is reflected in the books and records of the Company as the Record Holder of such Non-Managing Member Interest.
 
(c)                                   The name and mailing address of each Record Holder shall be listed on the books and records of the Company maintained for such purpose by the Company or the Transfer Agent.  The Managing Member shall update the books and records of the Company from time to time as necessary to reflect accurately the information therein (or shall cause the Transfer Agent to do so, as applicable).
 
(d)                                  Any transfer of a Non-Managing Member Interest shall not entitle the transferee to distributions or to any other rights to which the transferor was entitled until the transferee becomes a Non-Managing Member pursuant to Section 10.1(b) .
 
Section 10.2                              Admission of Successor Managing Member .  A successor Managing Member approved pursuant to Section 11.1 or 11.2 or the transferee of or successor to all of the Managing Member Interest pursuant to Section 4.6 who is proposed to be admitted as a successor Managing Member shall be admitted to the Company as the Managing Member, effective immediately prior to the withdrawal or removal of the predecessor or transferring Managing Member, pursuant to Section 11.1 or 11.2 or the transfer of the Managing Member Interest pursuant to Section 4.6 , provided, however, that no such successor shall be admitted to the Company until compliance with the terms of Section 4.6 has occurred and such successor has executed and delivered such other documents or instruments as may be required to effect such admission.  Any such successor shall, subject to the terms hereof, carry on the business of the members of the Company Group without dissolution.
 
Section 10.3                              Amendment of Agreement and Certificate of Formation .  To effect the admission to the Company of any Member, the Managing Member shall take all steps necessary or appropriate under the Delaware Act to amend the records of the Company to reflect such admission and, if necessary, to prepare as soon as practicable an amendment to this Agreement
 
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and, if required by law, the Managing Member shall prepare and file an amendment to the Certificate of Formation.
 
ARTICLE XI
WITHDRAWAL OR REMOVAL OF MEMBERS
 
Section 11.1                              Withdrawal of the Managing Member .
 
(a)                                  The Managing Member shall be deemed to have withdrawn from the Company upon the occurrence of any one of the following events (each such event herein referred to as an “ Event of Withdrawal ”);
 
(i)                                      The Managing Member voluntarily withdraws from the Company by giving written notice to the other Members;
 
(ii)                                   The Managing Member transfers all of its Managing Member Interest pursuant to Section 4.6 ;
 
(iii)                                The Managing Member is removed pursuant to Section 11.2 ;
 
(iv)                               The Managing Member (A) makes a general assignment for the benefit of creditors; (B) files a voluntary bankruptcy petition for relief under Chapter 7 of the United States Bankruptcy Code; (C) files a petition or answer seeking for itself a liquidation, dissolution or similar relief (but not a reorganization) under any law; (D) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Managing Member in a proceeding of the type described in clauses (A)-(C)  of this Section 11.1(a)(iv) ; or (E) seeks, consents to or acquiesces in the appointment of a trustee (but not a debtor-in-possession), receiver or liquidator of the Managing Member or of all or any substantial part of its properties;
 
(v)                                  A final and non-appealable order of relief under Chapter 7 of the United States Bankruptcy Code is entered by a court with appropriate jurisdiction pursuant to a voluntary or involuntary petition by or against the Managing Member; or
 
(vi)                               (A) if the Managing Member is a corporation, a certificate of dissolution or its equivalent is filed for the Managing Member, or 90 days expire after the date of notice to the Managing Member of revocation of its charter without a reinstatement of its charter, under the laws of its state of incorporation; (B) if the Managing Member is a partnership or a limited liability company, the dissolution and commencement of winding up of the Managing Member; (C) if the Managing Member is acting in such capacity by virtue of being a trustee of a trust, the termination of the trust; (D) if the Managing Member is a natural person, his death or adjudication of incompetency; and (E) otherwise upon the termination of the Managing Member.
 
If an Event of Withdrawal specified in Section 11.1(a)(iv) , (v)  or (vi)(A) , (B) , (C)  or (E)  occurs, the withdrawing Managing Member shall give notice to the Non-Managing Members
 
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within 30 days after such occurrence.  The Members hereby agree that only the Events of Withdrawal described in this Section 11.1 shall result in the withdrawal of the Managing Member from the Company.
 
(b)                                  Withdrawal of the Managing Member from the Company upon the occurrence of an Event of Withdrawal shall not constitute a breach of this Agreement under the following circumstances: (i) the Managing Member withdraws by giving at least 90 days’ advance notice to the Unitholders, such withdrawal to take effect on the date specified in such notice; or (ii) at any time that the Managing Member ceases to be the Managing Member pursuant to Section 11.1(a)(ii)  or is removed pursuant to Section 11.2 .  If the Managing Member gives a notice of withdrawal pursuant to Section 11.1(a)(i) , a Unit Majority may, prior to the effective date of such withdrawal, elect a successor Managing Member.  If, prior to the effective date of the Managing Member’s withdrawal pursuant to Section 11.1(a)(i) , a successor is not selected by the Unitholders as provided herein or the Company does not receive an Opinion of Counsel (“ Withdrawal Opinion of Counsel ”) that such withdrawal (following the selection of the successor Managing Member) would not result in the loss of the limited liability under the Delaware Act of any Non-Managing Member, the Company shall be dissolved in accordance with Section 12.1 unless the business of the Company is continued pursuant to Section 12.2 .  Any successor Managing Member elected in accordance with the terms of this Section 11.1 shall be subject to the provisions of Section 10.2 .
 
Section 11.2                              Removal of the Managing Member .  The Managing Member may be removed if such removal is approved by the Unitholders holding at least 66 2/3% of the Outstanding Units (including Units held by the Managing Member and its Affiliates) voting as a single class.  Any such action by such holders for removal of the Managing Member must also provide for the election of a successor Managing Member by the Unitholders holding a majority of the Outstanding Units (including Units held by the Managing Member and its Affiliates).  Such removal shall be effective immediately following the admission of a successor Managing Member pursuant to Section 10.2 .  The removal of the Managing Member shall also automatically constitute the removal of the Managing Member as general partner or managing member, to the extent applicable, of the other Group Members of which the Managing Member is a general partner or a managing member.  If a Person is elected as a successor Managing Member in accordance with the terms of this Section 11.2 , such Person shall, upon admission pursuant to Section 10.2 , automatically become a successor general partner or managing member, to the extent applicable, of the other Group Members of which the Managing Member is a general partner or a managing member.  The right of the holders of Outstanding Units to remove the Managing Member shall not exist or be exercised unless the Company has received an opinion opining as to the matters covered by a Withdrawal Opinion of Counsel.  Any successor Managing Member elected in accordance with the terms of this Section 11.2 shall be subject to the provisions of Section 10.2 .
 
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Section 11.3                              Interest of Departing Managing Member and Successor Managing Member .
 
(a)                                  In the event of (i) withdrawal of the Managing Member under circumstances where such withdrawal does not violate this Agreement or (ii) removal of the Managing Member by the holders of Outstanding Units under circumstances where Cause does not exist, if the successor Managing Member is elected in accordance with the terms of Section 11.1 or Section 11.2 , the Departing Managing Member shall have the option, exercisable prior to the effective date of the withdrawal or removal of such Departing Managing Member, to require its successor to purchase its Managing Member Interest and its or its Affiliates’ managing member interest (or equivalent interest), if any, in the other Group Members (collectively, the “ Combined Interest ”) in exchange for an amount in cash equal to the fair market value of such Combined Interest, such amount to be determined and payable as of the effective date of its withdrawal or removal.  If the Managing Member is removed by the Unitholders under circumstances where Cause exists or if the Managing Member withdraws under circumstances where such withdrawal violates this Agreement, and if a successor Managing Member is elected in accordance with the terms of Section 11.1 or Section 11.2 (or if the business of the Company is continued pursuant to Section 12.2 and the successor Managing Member is not the former Managing Member), such successor shall have the option, exercisable prior to the effective date of the withdrawal or removal of such Departing Managing Member (or, in the event the business of the Company is continued, prior to the date the business of the Company is continued), to purchase the Combined Interest for such fair market value of such Combined Interest.  In either event, the Departing Managing Member shall be entitled to receive all reimbursements due such Departing Managing Member pursuant to Section 7.5 , including any employee-related liabilities (including severance liabilities), incurred in connection with the termination of any employees employed by the Departing Managing Member or its Affiliates (other than any Group Member) for the benefit of the Company or the other Group Members.
 
For purposes of this Section 11.3(a) , the fair market value of the Combined Interest shall be determined by agreement between the Departing Managing Member and its successor or, failing agreement within 30 days after the effective date of such Departing Managing Member’s withdrawal or removal, by an independent investment banking firm or other independent expert selected by the Departing Managing Member and its successor, which, in turn, may rely on other experts, and the determination of which shall be conclusive as to such matter.  If such parties cannot agree upon one independent investment banking firm or other independent expert within 45 days after the effective date of such withdrawal or removal, then the Departing Managing Member shall designate an independent investment banking firm or other independent expert, the Departing Managing Member’s successor shall designate an independent investment banking firm or other independent expert, and such firms or experts shall mutually select a third independent investment banking firm or independent expert, which third independent investment banking firm or other independent expert shall determine the fair market value of the Combined Interest.  In making its determination, such third independent investment banking firm or other independent expert may consider the value of the Units, including the then current trading price of Units on any National Securities Exchange on which Units are then listed or admitted to
 
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trading, the value of the Company’s assets, the rights and obligations of the Departing Managing Member, and other factors it may deem relevant.
 
(b)                                  If the Combined Interest is not purchased in the manner set forth in Section 11.3(a) , the Departing Managing Member (and its Affiliates, if applicable) shall become a Non-Managing Member and the Combined Interest shall be converted into Common Units pursuant to a valuation made by an investment banking firm or other independent expert selected pursuant to Section 11.3(a) , without reduction in such Membership Interest (but subject to proportionate dilution by reason of the admission of its successor).  Any successor Managing Member shall indemnify the Departing Managing Member as to all debts and liabilities of the Company arising on or after the date on which the Departing Managing Member becomes a Non-Managing Member.  For purposes of this Agreement, conversion of the Combined Interest to Common Units will be characterized as if the Departing Managing Member (and its Affiliates, if applicable) contributed the Combined Interest to the Company in exchange for the newly issued Common Units.
 
Section 11.4                              Withdrawal of Non-Managing Members .  No Non-Managing Member shall have any right to withdraw from the Company; provided , however , that when a transferee of a Non-Managing Member’s Non-Managing Member Interest becomes a Record Holder of the Non-Managing Member Interest so transferred, such transferring Non-Managing Member shall cease to be a Non-Managing Member with respect to the Non-Managing Member Interest so transferred.
 
ARTICLE XII
DISSOLUTION AND LIQUIDATION
 
Section 12.1                              Dissolution .  The Company shall not be dissolved by the admission of additional Non-Managing Members or by the admission of a successor Managing Member in accordance with the terms of this Agreement.  Upon the removal or withdrawal of the Managing Member, if a successor Managing Member is elected pursuant to Section 11.1 , Section 11.2 or Section 12.2 , the Company shall not be dissolved and such successor Managing Member is hereby authorized to, and shall, continue the business of the Company.  Subject to Section 12.2 , the Company shall dissolve, and its affairs shall be wound up, upon:
 
(a)                                  an Event of Withdrawal of the Managing Member as provided in Section 11.1(a)  (other than Section 11.1(a)(ii) ), unless a successor is elected and such successor is admitted to the Company pursuant to this Agreement;
 
(b)                                  an election to dissolve the Company by the Managing Member that is approved by a Unit Majority;
 
(c)                                   the entry of a decree of judicial dissolution of the Company pursuant to the provisions of the Delaware Act; or
 
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(d)                                  at any time there are no Non-Managing Members, unless the Company is continued without dissolution in accordance with the Delaware Act.
 
Section 12.2                              Continuation of the Business of the Company After Dissolution .  Upon (a) an Event of Withdrawal caused by the withdrawal or removal of the Managing Member as provided in Section 11.1(a)(i)  or (iii)  and the failure of the Members to select a successor to such Departing Managing Member pursuant to Section 11.1 or Section 11.2 , then within 90 days thereafter, or (b) an event constituting an Event of Withdrawal as defined in Section 11.1(a)(iv) , (v)  or (vi) , then, to the maximum extent permitted by law, within 180 days thereafter, a Unit Majority may elect to continue the business of the Company on the same terms and conditions set forth in this Agreement by appointing as a successor Managing Member a Person approved by a Unit Majority.  Unless such an election is made within the applicable time period as set forth above, the Company shall conduct only activities necessary to wind up its affairs.  If such an election is so made, then:
 
(i)                                      the Company shall continue without dissolution unless earlier dissolved in accordance with this Article XII ;
 
(ii)                                   if the successor Managing Member is not the former Managing Member, then the interest of the former Managing Member shall be treated in the manner provided in Section 11.3 ; and
 
(iii)                                the successor Managing Member shall be admitted to the Company as Managing Member, effective as of the Event of Withdrawal, by agreeing in writing to be bound by this Agreement;
 
provided, that the right of a Unit Majority to approve a successor Managing Member and to continue the business of the Company shall not exist and may not be exercised unless the Company has received an Opinion of Counsel that the exercise of the right would not result in the loss of limited liability under the Delaware Act of any Non-Managing Member.
 
Section 12.3                              Liquidator .  Upon dissolution of the Company, unless the business of the Company is continued pursuant to Section 12.2 , the Managing Member shall select one or more Persons to act as Liquidator.  The Liquidator (if other than the Managing Member) shall be entitled to receive such compensation for its services as may be approved by holders of a majority of the Outstanding Units.  The Liquidator (if other than the Managing Member) shall agree not to resign at any time without 15 days’ prior notice and may be removed at any time, with or without cause, by notice of removal approved by holders of a majority of the Outstanding Units.  Upon dissolution, removal or resignation of the Liquidator, a successor and substitute Liquidator (who shall have and succeed to all rights, powers and duties of the original Liquidator) shall within 30 days thereafter be approved by holders of a majority of the Outstanding Units.  The right to approve a successor or substitute Liquidator in the manner provided herein shall be deemed to refer also to any such successor or substitute Liquidator approved in the manner herein provided.  Except as expressly provided in this Article XII , the
 
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Liquidator approved in the manner provided herein shall have and may exercise, without further authorization or consent of any of the parties hereto, all of the powers conferred upon the Managing Member under the terms of this Agreement (but subject to all of the applicable limitations, contractual and otherwise, upon the exercise of such powers, other than the limitation on sale set forth in Section 7.4 ) necessary or appropriate to carry out the duties and functions of the Liquidator hereunder for and during the period of time required to complete the winding up and liquidation of the Company as provided for herein.
 
Section 12.4                              Liquidation .  The Liquidator shall proceed to dispose of the assets of the Company, discharge its liabilities, and otherwise wind up its affairs in such manner and over such period as determined by the Liquidator, subject to Section 17-804 of the Delaware Act and the following:
 
(a)                                  The assets may be disposed of by public or private sale or by distribution in kind to one or more Members on such terms as the Liquidator and such Member or Members may agree.  If any property is distributed in kind, the Member receiving the property shall be deemed for purposes of Section 12.4(c)  to have received cash equal to its fair market value; and contemporaneously therewith, appropriate cash distributions must be made to the other Members.  The Liquidator may defer liquidation or distribution of the Company’s assets for a reasonable time if it determines that an immediate sale or distribution of all or some of the Company’s assets would be impractical or would cause undue loss to the Members.  The Liquidator may distribute the Company’s assets, in whole or in part, in kind if it determines that a sale would be impractical or would cause undue loss to the Members.
 
(b)                                  Liabilities of the Company include amounts owed to the Liquidator as compensation for serving in such capacity (subject to the terms of Section 12.3 ) and amounts to Members otherwise than in respect of their distribution rights under Article VI .  With respect to any liability that is contingent, conditional or unmatured or is otherwise not yet due and payable, the Liquidator shall either settle such claim for such amount as it thinks appropriate or establish a reserve of cash or other assets to provide for its payment.  When paid, any unused portion of the reserve shall be distributed as additional liquidation proceeds.
 
(c)                                   All property and all cash in excess of that required to discharge liabilities as provided in Section 12.4(b)  shall be distributed 100% to the Members Pro Rata.
 
Section 12.5                              Cancellation of Certificate of Formation .  Upon the completion of the distribution of Company cash and property as provided in Section 12.4 in connection with the liquidation of the Company, the Certificate of Formation and all qualifications of the Company as a foreign limited liability company in jurisdictions other than the State of Delaware shall be canceled and such other actions as may be necessary to terminate the Company shall be taken.
 
Section 12.6                              Return of Contributions .  The Managing Member shall not be personally liable for, and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate, the return of the Capital Contributions of the Non-Managing
 
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Members or Unitholders, or any portion thereof, it being expressly understood that any such return shall be made solely from Company assets.
 
Section 12.7                              Waiver of Partition .  To the maximum extent permitted by law, each Member hereby waives any right to partition of the Company property.
 
ARTICLE XIII
AMENDMENT OF OPERATING AGREEMENT; MEETINGS; RECORD DATE
 
Section 13.1                              Amendments to be Adopted Solely by the Managing Member .  Each Member agrees that the Managing Member, without the approval of any Member, may amend any provision of this Agreement and execute, swear to, acknowledge, deliver, file and record whatever documents may be required in connection therewith, to reflect:
 
(a)                                  a change in the name of the Company, the location of the principal place of business of the Company, the registered agent of the Company or the registered office of the Company;
 
(b)                                  admission, substitution, withdrawal or removal of Members in accordance with this Agreement;
 
(c)                                   a change that the Managing Member determines to be necessary or appropriate to qualify or continue the qualification of the Company as a limited liability company or other entity in which the Non-Managing Members have limited liability under the laws of any state;
 
(d)                                  a change that the Managing Member determines (i) does not adversely affect the Non-Managing Members (including any particular class of Membership Interests as compared to other classes of Membership Interests) in any material respect, (ii) to be necessary or appropriate to (A) satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal or state agency or judicial authority or contained in any federal or state statute (including the Delaware Act) or (B) facilitate the trading of the Units (including the division of any class or classes of Outstanding Units into different classes to facilitate uniformity of tax consequences within such classes of Units) or comply with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are or will be listed or admitted to trading, (iii) to be necessary or appropriate in connection with action taken by the Managing Member pursuant to Section 5.6 or (iv) is required to effect the intent expressed in the Registration Statement or the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement;
 
(e)                                   a change in the fiscal year or taxable period of the Company and any other changes that the Managing Member determines to be necessary or appropriate as a result of a change in the fiscal year or taxable period of the Company including, if the Managing Member shall so determine, a change in the definition of “Quarter” and the dates on which distributions are to be made by the Company;
 
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(f)                                    an amendment that is necessary, in the Opinion of Counsel, to prevent the Company, or the Managing Member or its directors, officers, trustees or agents from in any manner being subjected to the provisions of the Investment Company Act of 1940, as amended, the Investment Advisers Act of 1940, as amended, or “plan asset” regulations adopted under the Employee Retirement Income Security Act of 1974, as amended, regardless of whether such are substantially similar to plan asset regulations currently applied or proposed by the United States Department of Labor;
 
(g)                                   an amendment that the Managing Member determines to be necessary or appropriate in connection with the creation, authorization or issuance of any class or series of Membership Interests and Derivative Instruments pursuant to Section 5.4 ;
 
(h)                                  any amendment expressly permitted in this Agreement to be made by the Managing Member acting alone;
 
(i)                                      an amendment effected, necessitated or contemplated by a Merger Agreement approved in accordance with Section 14.3 ;
 
(j)                                     an amendment that the Managing Member determines to be necessary or appropriate to reflect and account for the formation by the Company of, or investment by the Company in, any corporation, partnership, joint venture, limited liability company or other entity, in connection with the conduct by the Company of activities permitted by the terms of Section 2.4 or Section 7.1(a) ;
 
(k)                                  a merger, conveyance or conversion pursuant to Section 14.3(d) ; or
 
(l)                                      any other amendments substantially similar to the foregoing.
 
Section 13.2                              Amendment Procedures .  Amendments to this Agreement may be proposed only by the Managing Member.  To the fullest extent permitted by law, the Managing Member shall have no duty or obligation to propose or approve any amendment to this Agreement and may decline to do so in its sole discretion.  An amendment shall be effective upon its approval by the Managing Member and, except as otherwise provided by Section 13.1 or 13.3, a Unit Majority, unless a greater or different percentage is required under this Agreement or by Delaware law.  Each proposed amendment that requires the approval of the holders of a specified percentage of Outstanding Units shall be set forth in a writing that contains the text of the proposed amendment.  If such an amendment is proposed, the Managing Member shall seek the written approval of the requisite percentage of Outstanding Units or call a meeting of the Unitholders to consider and vote on such proposed amendment.  The Managing Member shall notify all Record Holders upon final adoption of any amendments.    The Managing Member shall be deemed to have notified all Record Holders as required by this Section 13.2 if it has either (i) filed such amendment with the Commission via its Electronic Data Gathering, Analysis and Retrieval system and such amendment is publicly available on such system or (ii) made such amendment available on the Company’s website.
 
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Section 13.3                              Amendment Requirements .
 
(a)                                  Notwithstanding the provisions of Section 13.1 (other than Section 13.1(d)(iv) ) and Section 13.2 , no provision of this Agreement (other than Section 11.2 or Section 13.4 ) that establishes a percentage of Outstanding Units  (including Units deemed owned by the Managing Member) or requires a vote or approval of Members (or a subset of Members) holding a specified Percentage Interest to take any action shall be amended, altered, changed, repealed or rescinded in any respect that would have the effect of reducing or increasing such percentage,  unless such amendment is approved by the written consent or the affirmative vote of holders of Outstanding Units whose aggregate Outstanding Units constitute not less than the voting requirement sought to be reduced or increased, as applicable, or the affirmative vote of Members whose aggregate Percentage Interests constitute not less than the voting requirement sought to be reduced or increased, as applicable.
 
(b)                                  Notwithstanding the provisions of Section 13.1 (other than Section 13.1(d)(iv) ) and Section 13.2 , no amendment to this Agreement may (i) enlarge the obligations of (including requiring any holder of a class of Membership Interests to make additional Capital Contributions to the Company) any Non-Managing Member without its consent, unless such shall be deemed to have occurred as a result of an amendment approved pursuant to Section 13.3(c) , or (ii) enlarge the obligations of, restrict, change or modify in any way any action by or rights of, or reduce in any way the amounts distributable, reimbursable or otherwise payable to, the Managing Member or any of its Affiliates without its consent, which consent may be given or withheld at its option.
 
(c)                                   Except as provided in Section 14.3 or Section 13.1 , any amendment that would have a material adverse effect on the rights or preferences of any class of Membership Interests in relation to other classes of Membership Interests must be approved by the holders of not less than a majority of the Outstanding Membership Interests of the class affected.  If the Managing Member determines an amendment does not satisfy the requirements of Section 13.1(d)(i)  because it adversely affects one or more classes of Membership Interests, as compared to other classes of Membership Interests, in any material respect, such amendment shall only be required to be approved by the adversely affected class or classes.
 
(d)                                  Notwithstanding any other provision of this Agreement, except for amendments pursuant to Section 13.1 and except as otherwise provided by Section 14.3(b) , no amendments shall become effective without the approval of the holders of at least 90% of the Percentage Interests of all Non-Managing Members voting as a single class unless the Company obtains an Opinion of Counsel to the effect that such amendment will not affect the limited liability of any Non-Managing Member under applicable limited liability company law of the state under whose laws the Company is organized.
 
(e)                                   Except as provided in Section 13.1 , this Section 13.3 shall only be amended with the approval of Members (including the Managing Member and its Affiliates) holding at least 90% of the Percentage Interests of all Non-Managing Members.
 
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Section 13.4          Special Meetings .  All acts of Non-Managing Members to be taken pursuant to this Agreement shall be taken in the manner provided in this Article XIII .  Special meetings of the Non-Managing Members may be called by the Managing Member or by Non-Managing Members owning 20% or more of the Outstanding Units of the class or classes for which a meeting is proposed.  Non-Managing Members shall call a special meeting by delivering to the Managing Member one or more requests in writing stating that the signing Non-Managing Members wish to call a special meeting and indicating the general or specific purposes for which the special meeting is to be called.  Within 60 days after receipt of such a call from Non-Managing Members or within such greater time as may be reasonably necessary for the Company to comply with any statutes, rules, regulations, listing agreements or similar requirements governing the holding of a meeting or the solicitation of proxies for use at such a meeting, the Managing Member shall send a notice of the meeting to the Non-Managing Members either directly or indirectly through the Transfer Agent.  A meeting shall be held at a time and place determined by the Managing Member on a date not less than 10 days nor more than 60 days after the time notice of the meeting is given as provided in Section 16.1 .  Non-Managing Members shall not vote on matters that would cause the Non-Managing Members to be deemed to be taking part in the management and control of the business and affairs of the Company so as to jeopardize the Non-Managing Members’ limited liability under the Delaware Act or the law of any other state in which the Company is qualified to do business.
 
Section 13.5          Notice of a Meeting .  Notice of a meeting called pursuant to Section 13.4 shall be given to the Record Holders of the class or classes of Units for which a meeting is proposed in writing by mail or other means of written communication in accordance with Section 16.1 .  The notice shall be deemed to have been given at the time when deposited in the mail or sent by other means of written communication.
 
Section 13.6          Record Date .  For purposes of determining the Non-Managing Members entitled to notice of or to vote at a meeting of the Non-Managing Members or to give approvals without a meeting as provided in Section 13.11 the Managing Member may set a Record Date, which shall not be less than 10 nor more than 60 days before (a) the date of the meeting (unless such requirement conflicts with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are listed or admitted to trading or U.S. federal securities laws, in which case the rule, regulation, guideline or requirement of such National Securities Exchange or U.S. federal securities laws shall govern) or (b) in the event that approvals are sought without a meeting, the date by which Non-Managing Members are requested in writing by the Managing Member to give such approvals.  If the Managing Member does not set a Record Date, then (x) the Record Date for determining the Non-Managing Members entitled to notice of or to vote at a meeting of the Non-Managing Members shall be the close of business on the day next preceding the day on which notice is given, and (y) the Record Date for determining the Non-Managing Members entitled to give approvals without a meeting shall be the date the first written approval is deposited with the Company in care of the Managing Member in accordance with Section 13.11 .
 
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Section 13.7          Adjournment .  Prior to the date upon which any meeting of Non-Managing Members is to be held, the Managing Member may postpone such meeting one or more times for any reason by giving notice to each Non-Managing Member entitled to vote at the meeting so postponed of the place, date and hour at which such meeting would be held.  Such notice shall be given not fewer than two days before the date of such meeting and otherwise in accordance with this Article XIII .  When a meeting is postponed, a new Record Date need not be fixed unless such postponement shall be for more than 45 days.  Any meeting of Non-Managing Members may be adjourned by the Managing Member one or more times for any reason, including the failure of a quorum to be present at the meeting with respect to any proposal or the failure of any proposal to receive sufficient votes for approval.  No Non-Managing Member vote shall be required for any adjournment.  A meeting of Non-Managing Members may be adjourned by the Managing Member as to one or more proposals regardless of whether action has been taken on other matters.  When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting and a new Record Date need not be fixed, if the time and place thereof are announced at the meeting at which the adjournment is taken, unless such adjournment shall be for more than 45 days.  At the adjourned meeting, the Company may transact any business which might have been transacted at the original meeting.  If the adjournment is for more than 45 days or if a new Record Date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given in accordance with this Article XIII .
 
Section 13.8          Waiver of Notice; Approval of Meeting; Approval of Minutes .  The transaction of business at any meeting of Non-Managing Members, however called and noticed, and whenever held, shall be as valid as if it had occurred at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy.  Attendance of a Non-Managing Member at a meeting shall constitute a waiver of notice of the meeting, except when the Non-Managing Member attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened; and except that attendance at a meeting is not a waiver of any right to disapprove the consideration of matters required to be included in the notice of the meeting, but not so included, if the disapproval is expressly made at the meeting.
 
Section 13.9          Quorum and Voting .  The holders of a majority, by Percentage Interest, of Membership Interests of the class or classes for which a meeting has been called (including Membership Interests deemed owned by the Managing Member) represented in person or by proxy shall constitute a quorum at a meeting of Members of such class or classes unless any such action by the Members requires approval by holders of a greater Percentage Interest, in which case the quorum shall be such greater Percentage Interest.  At any meeting of the Members duly called and held in accordance with this Agreement at which a quorum is present, the act of Members holding Membership Interests that, in the aggregate, represent a majority of the Percentage Interest of those present in person or by proxy at such meeting shall be deemed to constitute the act of all Members, unless a greater or different percentage is required with respect to such action under the provisions of this Agreement, in which case the act of the Members holding Membership Interests that in the aggregate represent at least such greater or different percentage shall be required; provided , however , that if, as a matter of law or provision of this
 
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Agreement, approval by plurality vote of Members (or any class thereof) is required to approve any action, no minimum quorum shall be required.  The Members present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough Members to leave less than a quorum, if any action taken (other than adjournment) is approved by Members holding the required Percentage Interest specified in this Agreement.
 
Section 13.10       Conduct of a Meeting .  The Managing Member shall have full power and authority concerning the manner of conducting any meeting of the Non-Managing Members or solicitation of approvals in writing, including the determination of Persons entitled to vote, the existence of a quorum, the satisfaction of the requirements of Section 13.4 , the conduct of voting, the validity and effect of any proxies and the determination of any controversies, votes or challenges arising in connection with or during the meeting or voting.  The Managing Member shall designate a Person to serve as chairman of any meeting and shall further designate a Person to take the minutes of any meeting.  All minutes shall be kept with the records of the Company maintained by the Managing Member.  The Managing Member may make such other regulations consistent with applicable law and this Agreement as it may deem advisable concerning the conduct of any meeting of the Non-Managing Members or solicitation of approvals in writing, including regulations in regard to the appointment of proxies, the appointment and duties of inspectors of votes and approvals, the submission and examination of proxies and other evidence of the right to vote, and the revocation of approvals in writing.
 
Section 13.11       Action Without a Meeting .  If authorized by the Managing Member, any action that may be taken at a meeting of the Non-Managing Members may be taken without a meeting, without a vote and without prior notice, if an approval in writing setting forth the action so taken is signed by Non-Managing Members owning not less than the minimum percentage, by Percentage Interest, of the Membership Interests of the class or classes for which a meeting has been called (including Membership Interests deemed owned by the Managing Member), as the case may be, that would be necessary to authorize or take such action at a meeting at which all the Non-Managing Members entitled to vote at such meeting were present and voted (unless such provision conflicts with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are listed or admitted to trading, in which case the rule, regulation, guideline or requirement of such National Securities Exchange shall govern).  Prompt notice of the taking of action without a meeting shall be given to the Non-Managing Members who have not approved in writing.  The Managing Member may specify that any written ballot submitted to Non-Managing Members for the purpose of taking any action without a meeting shall be returned to the Company within the time period, which shall be not less than 20 days, specified by the Managing Member.  If a ballot returned to the Company does not vote all of the Membership Interests held by the Non-Managing Members, the Company shall be deemed to have failed to receive a ballot for the Membership Interests that were not voted.  If approval of the taking of any action by the Non-Managing Members is solicited by any Person other than by or on behalf of the Managing Member, the written approvals shall have no force and effect unless and until (a) they are deposited with the Company in care of the Managing Member and (b) an Opinion of Counsel is delivered to the Managing Member to the effect that the exercise of
 
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such right and the action proposed to be taken with respect to any particular matter (i) will not cause the Non-Managing Members to be deemed to be taking part in the management and control of the business and affairs of the Company so as to jeopardize the Non-Managing Members’ limited liability, and (ii) is otherwise permissible under the state statutes then governing the rights, duties and liabilities of the Company and the Members.  Nothing contained in this Section 13.11 shall be deemed to require the Managing Member to solicit all Non-Managing Members in connection with a matter approved by the holders of the requisite percentage of Membership Interests acting by written consent without a meeting.
 
Section 13.12       Right to Vote and Related Matters .
 
(a)           Only those Record Holders of the Outstanding Membership Interests on the Record Date set pursuant to Section 13.6 shall be entitled to notice of, and to vote at, a meeting of Non-Managing Members or to act with respect to matters as to which the holders of the Outstanding Membership Interests have the right to vote or to act.  All references in this Agreement to votes of, or other acts that may be taken by, the Outstanding Membership Interests shall be deemed to be references to the votes or acts of the Record Holders of such Outstanding Membership Interests.
 
(b)           With respect to Membership Interests that are held for a Person’s account by another Person (such as a broker, dealer, bank, trust company or clearing corporation, or an agent of any of the foregoing), in whose name such Membership Interests are registered, such other Person shall, in exercising the voting rights in respect of such Membership Interests on any matter, and unless the arrangement between such Persons provides otherwise, vote such Membership Interests in favor of, and at the direction of, the Person who is the beneficial owner, and the Company shall be entitled to assume it is so acting without further inquiry.  The provisions of this Section 13.12(b)  (as well as all other provisions of this Agreement) are subject to the provisions of Section 4.3 .
 
ARTICLE XIV
MERGER OR CONSOLIDATION
 
Section 14.1          Authority .  The Company may merge or consolidate with or into one or more corporations, limited liability companies, statutory trusts or associations, real estate investment trusts, common law trusts or unincorporated businesses, including a partnership (whether general or limited (including a limited liability partnership)) or convert into any such entity, whether such entity is formed under the laws of the State of Delaware or any other state of the United States of America, pursuant to a written plan of merger or consolidation (“ Merger Agreement ”) in accordance with this Article XIV .
 
Section 14.2          Procedure for Merger or Consolidation .
 
(a)           Merger or consolidation of the Company pursuant to this Article XIV requires the prior consent of the Managing Member, provided, however, that, to the fullest extent
 
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permitted by law, the Managing Member, in declining to consent to a merger or consolidation, may act in its sole discretion.
 
(b)           If the Managing Member shall determine to consent to the merger or consolidation, the Managing Member shall approve the Merger Agreement, which shall set forth:
 
(i)            the name and jurisdiction of formation or organization of each of the business entities proposing to merge or consolidate;
 
(ii)           the name and jurisdiction of formation or organization of the business entity that is to survive the proposed merger or consolidation (the “ Surviving Business Entity ”);
 
(iii)          the terms and conditions of the proposed merger or consolidation;
 
(iv)          the manner and basis of exchanging or converting the equity interests of each constituent business entity for, or into, cash, property or interests, rights, securities or obligations of the Surviving Business Entity; and (i) if any interests, securities or rights of any constituent business entity are not to be exchanged or converted solely for, or into, cash, property or interests, rights, securities or obligations of the Surviving Business Entity, then the cash, property or interests, rights, securities or obligations of any general or limited partnership, corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity) which the holders of such interests, securities or rights are to receive in exchange for, or upon conversion of their interests, securities or rights, and (ii) in the case of equity interests represented by certificates, upon the surrender of such certificates, which cash, property or interests, rights, securities or obligations of the Surviving Business Entity or any general or limited partnership, corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity), or evidences thereof, are to be delivered;
 
(v)           a statement of any changes in the constituent documents or the adoption of new constituent documents (the articles or certificate of incorporation, articles of trust, declaration of trust, certificate or partnership agreement, certificate of formation or limited liability company agreement or other similar charter or governing document) of the Surviving Business Entity to be effected by such merger or consolidation;
 
(vi)          the effective time of the merger, which may be the date of the filing of the certificate of merger pursuant to Section 14.4 or a later date specified in or determinable in accordance with the Merger Agreement (provided, that if the effective time of the merger is to be later than the date of the filing of such certificate of merger, the effective time shall be fixed at a date or time certain and stated in the certificate of merger); and
 
(vii)         such other provisions with respect to the proposed merger or consolidation that the Managing Member determines to be necessary or appropriate.
 
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Section 14.3          Approval by Non-Managing Members .
 
(a)           Except as provided in Section 14.3(d)  and Section 14.3(e) , the Managing Member, upon its approval of the Merger Agreement shall direct that the Merger Agreement and the merger or consolidation contemplated thereby, as applicable, be submitted to a vote of Non-Managing Members, whether at a special meeting or by written consent, in either case in accordance with the requirements of Article XIII .  A copy or a summary of the Merger Agreement, as the case may be, shall be included in or enclosed with the notice of a special meeting or the written consent.
 
(b)           Except as provided in Sections 14.3(d)  and 14.3(e) , the Merger Agreement shall be approved upon receiving the affirmative vote or consent of the holders of a Unit Majority unless the Merger Agreement contains any provision that, if contained in an amendment to this Agreement, the provisions of this Agreement or the Delaware Act would require for its approval the vote or consent of a greater percentage of the Outstanding Units or of any class of Non-Managing Members, in which case such greater percentage vote or consent shall be required for approval of the Merger Agreement.
 
(c)           Except as provided in Sections 14.3(d)  and 14.3(e) , after such approval by vote or consent of the Non-Managing Members, and at any time prior to the filing of the certificate of merger pursuant to Section 14.4 , the merger or consolidation may be abandoned pursuant to provisions therefor, if any, set forth in the Merger Agreement.
 
(d)           Notwithstanding anything else contained in this Article XIV or in this Agreement, the Managing Member is permitted, without Non-Managing Member approval, to convert the Company or any Group Member into a new limited liability entity, to merge the Company or any Group Member into, or convey all of the Company’s assets to, another limited liability entity that shall be newly formed and shall have no assets, liabilities or operations at the time of such merger or conveyance other than those it receives from the Company or other Group Member if (i) the Managing Member has received an Opinion of Counsel that the merger or conveyance, as the case may be, would not result in the loss of the limited liability under the Delaware Act of any Non-Managing Member, (ii) the sole purpose of such merger, or conveyance is to effect a mere change in the legal form of the Company into another limited liability entity and (iii) the Managing Member determines that the governing instruments of the new entity provide the Non-Managing Members and the Managing Member with substantially the same rights and obligations as are herein contained.
 
(e)           Additionally, notwithstanding anything else contained in this Article XIV or in this Agreement, the Managing Member is permitted, without Non-Managing Member approval, to merge or consolidate the Company with or into another entity if (A) the Managing Member has received an Opinion of Counsel that the merger or consolidation, as the case may be, would not result in the loss of the limited liability under the Delaware Act of any Non-Managing Member, (B) the merger or consolidation would not result in an amendment to this Agreement, other than any amendments that could be adopted pursuant to Section 13.1 , (C) the
 
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Company is the Surviving Business Entity in such merger or consolidation, (D) each Membership Interest outstanding immediately prior to the effective date of the merger or consolidation is to be an identical Membership Interest of the Company after the effective date of the merger or consolidation, and (E) the number of Membership Interests to be issued by the Company in such merger or consolidation does not exceed 20% of the Membership Interests Outstanding immediately prior to the effective date of such merger or consolidation.
 
(f)            Pursuant to Section 18-209(f) of the Delaware Act, an agreement of merger or consolidation approved in accordance with this Article XIV may (a) effect any amendment to this Agreement or (b) effect the adoption of a new operating agreement for the Company if it is the Surviving Business Entity.  Any such amendment or adoption made pursuant to this Section 14.3 shall be effective at the effective time or date of the merger or consolidation.
 
Section 14.4          Certificate of Merger .  Upon the required approval by the Managing Member and the Unitholders of a Merger Agreement, a certificate of merger shall be executed and filed with the Secretary of State of the State of Delaware in conformity with the requirements of the Delaware Act.
 
Section 14.5          Effect of Merger or Consolidation .  At the effective time of the certificate of merger:
 
(a)           all of the rights, privileges and powers of each of the business entities that has merged or consolidated, and all property, real, personal and mixed, and all debts due to any of those business entities and all other things and causes of action belonging to each of those business entities, shall be vested in the Surviving Business Entity and after the merger or consolidation shall be the property of the Surviving Business Entity to the extent they were of each constituent business entity;
 
(b)           the title to any real property vested by deed or otherwise in any of those constituent business entities shall not revert and is not in any way impaired because of the merger or consolidation;
 
(c)           all rights of creditors and all liens on or security interests in property of any of those constituent business entities shall be preserved unimpaired; and
 
(d)           all debts, liabilities and duties of those constituent business entities shall attach to the Surviving Business Entity and may be enforced against it to the same extent as if the debts, liabilities and duties had been incurred or contracted by it.
 
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ARTICLE XV
RIGHT TO ACQUIRE NON-MANAGING MEMBERSHIP INTERESTS
 
Section 15.1          Right to Acquire Non-Managing Member Interests .
 
(a)           Notwithstanding any other provision of this Agreement, if at any time the Managing Member and its Affiliates hold more than 90% of the total Non-Managing Member Interests of any class then Outstanding, the Managing Member shall then have the right, which right it may assign and transfer in whole or in part to the Company or any Affiliate of the Managing Member, exercisable in its sole discretion, to purchase all, but not less than all, of such Non-Managing Member Interests of such class then Outstanding held by Persons other than the Managing Member and its Affiliates, at the greater of (x) the Current Market Price as of the date three days prior to the date that the notice described in Section 15.1(b)  is mailed and (y) the highest price paid by the Managing Member or any of its Affiliates for any such Non-Managing Member Interest of such class purchased during the 90-day period preceding the date that the notice described in Section 15.1(b)  is mailed.
 
(b)           If the Managing Member, any Affiliate of the Managing Member or the Company elects to exercise the right to purchase Non-Managing Member Interests granted pursuant to Section 15.1(a) , the Managing Member shall deliver to the Transfer Agent notice of such election to purchase (the “ Notice of Election to Purchase ”) and shall cause the Transfer Agent to mail a copy of such Notice of Election to Purchase to the Record Holders of Non-Managing Member Interests of such class (as of a Record Date selected by the Managing Member) at least 10, but not more than 60, days prior to the Purchase Date.  Such Notice of Election to Purchase shall also be filed and distributed as may be required by the Commission or any National Securities Exchange on which such Non-Managing Member Interests are listed.  The Notice of Election to Purchase shall specify the Purchase Date and the price (determined in accordance with Section 15.1(a) ) at which Non-Managing Member Interests will be purchased and state that the Managing Member, its Affiliate or the Company, as the case may be, elects to purchase such Non-Managing Member Interests, upon surrender of Certificates representing such Non-Managing Member Interests in the case of Non-Managing Member Interests evidenced by Certificates, in exchange for payment, at such office or offices of the Transfer Agent as the Transfer Agent may specify, or as may be required by any National Securities Exchange on which such Non-Managing Member Interests are listed or admitted to trading.  Any such Notice of Election to Purchase mailed to a Record Holder of Non-Managing Member Interests at his address as reflected in the records of the Transfer Agent shall be conclusively presumed to have been given regardless of whether the owner receives such notice.  On or prior to the Purchase Date, the Managing Member, its Affiliate or the Company, as the case may be, shall deposit with the Transfer Agent cash in an amount sufficient to pay the aggregate purchase price of all of such Non-Managing Member Interests to be purchased in accordance with this Section 15.1 .  If the Notice of Election to Purchase shall have been duly given as aforesaid at least 10 days prior to the Purchase Date, and if on or prior to the Purchase Date the deposit described in the preceding sentence has been made for the benefit of the holders of Non-Managing Member Interests subject to purchase as provided herein, then from and after the Purchase Date, notwithstanding
 
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that any Certificate shall not have been surrendered for purchase, all rights of the holders of such Non-Managing Member Interests shall thereupon cease, except the right to receive the purchase price (determined in accordance with Section 15.1(a) )for Non-Managing Member Interests therefor, without interest, upon surrender to the Transfer Agent of the Certificates representing such Non-Managing Member Interests in the case of Non-Managing Member Interests evidenced by Certificates, and such Non-Managing Member Interests shall thereupon be deemed to be transferred to the Managing Member, its Affiliate or the Company, as the case may be, on the record books of the Transfer Agent and the Company, and the Managing Member or any Affiliate of the Managing Member, or the Company, as the case may be, shall be deemed to be the owner of all such Non-Managing Member Interests from and after the Purchase Date and shall have all rights as the owner of such Non-Managing Member Interests.
 
ARTICLE XVI
GENERAL PROVISIONS
 
Section 16.1          Addresses and Notices; Written Communications .
 
(a)           Any notice, demand, request, report or proxy materials required or permitted to be given or made to a Member under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class United States mail or by other means of written communication to the Member at the address described below.  Any notice, payment or report to be given or made to a Member hereunder shall be deemed conclusively to have been given or made, and the obligation to give such notice or report or to make such payment shall be deemed conclusively to have been fully satisfied, upon sending of such notice, payment or report to the Record Holder of such Membership Interests at his address as shown on the records of the Transfer Agent or as otherwise shown on the records of the Company, regardless of any claim of any Person who may have an interest in such Membership Interests by reason of any assignment or otherwise.  Notwithstanding the foregoing, if (i) a Member shall consent to receiving notices, demands, requests, reports or proxy materials via electronic mail or by the Internet or (ii) the rules of the Commission shall permit any report or proxy materials to be delivered electronically or made available via the Internet, any such notice, demand, request, report or proxy materials shall be deemed given or made when delivered or made available via such mode of delivery.  An affidavit or certificate of making of any notice, payment or report in accordance with the provisions of this Section 16.1 executed by the Managing Member, the Transfer Agent or the mailing organization shall be prima facie evidence of the giving or making of such notice, payment or report.  If any notice, payment or report given or made in accordance with the provisions of this Section 16.1 is returned marked to indicate that such notice, payment or report was unable to be delivered, such notice, payment or report and, in the case of notices, payments or reports returned by the United States Postal Service (or other physical mail delivery mail service outside the United States of America), any subsequent notices, payments and reports shall be deemed to have been duly given or made without further mailing (until such time as such Record Holder or another Person notifies the Transfer Agent or the Company of a change in his address) or other delivery if they are available for the Member at the principal office of the Company for a period of one year from the date of the giving or
 
51 

 
making of such notice, payment or report to the other Members.  Any notice to the Company shall be deemed given if received by the Managing Member at the principal office of the Company designated pursuant to Section 2.3 .  The Managing Member may rely and shall be protected in relying on any notice or other document from a Member or other Person if believed by it to be genuine.
 
(b)           The terms “in writing”, “written communications,” “written notice” and words of similar import shall be deemed satisfied under this Agreement by use of e-mail and other forms of electronic communication.
 
Section 16.2          Further Action .  The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.
 
Section 16.3          Binding Effect .  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
 
Section 16.4          Integration .  This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
 
Section 16.5          Creditors .  None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.
 
Section 16.6          Waiver .  No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach of any other covenant, duty, agreement or condition.
 
Section 16.7          Third-Party Beneficiaries .  Each Member agrees that (a) any Indemnitee shall be entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement affording a right, benefit or privilege to such Indemnitee and (b) any Unrestricted Person shall be entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement affording a right, benefit or privilege to such Unrestricted Person.
 
Section 16.8          Counterparts .  This Agreement may be executed in counterparts, all of which together shall constitute an agreement binding on all the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart.  Each party shall become bound by this Agreement immediately upon affixing its signature hereto or, in the case of a Person acquiring a Non-Managing Member Interest, pursuant to Section 10.1(a)  without execution hereof.
 
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Section 16.9          Applicable Law; Forum; Venue and Jurisdiction; Waiver of Trial by Jury .
 
(a)           This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of law.
 
(b)           Each of the Members and each Person holding any beneficial interest in the Company (whether through a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing or otherwise):
 
(i)            irrevocably agrees that any claims, suits, actions or proceedings (A) arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among Members or of Members to the Company, or the rights or powers of, or restrictions on, the Members or the Company), (B) brought in a derivative manner on behalf of the Company, (C) asserting a claim of breach of a fiduciary or other duty owed by any director, officer, or other employee of the Company or the Managing Member, or owed by the Managing Member, to the Company or the Members, (D) asserting a claim arising pursuant to any provision of the Delaware Act or (E) asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the Court of Chancery of the State of Delaware (or, if such court does not have subject matter jurisdiction thereof, any other court located in the State of Delaware with subject matter jurisdiction), in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims;
 
(ii)           irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if such court does not have subject matter jurisdiction thereof, any other court located in the State of Delaware with subject matter jurisdiction) in connection with any such claim, suit, action or proceeding;
 
(iii)          agrees not to, and waives any right to, assert in any such claim, suit, action or proceeding that (A) it is not personally subject to the jurisdiction of the Court of Chancery of the State of Delaware or of any other court to which proceedings in the Court of Chancery of the State of Delaware may be appealed, (B) such claim, suit, action or proceeding is brought in an inconvenient forum, or (C) the venue of such claim, suit, action or proceeding is improper;
 
(iv)          expressly waives any requirement for the posting of a bond by a party bringing such claim, suit, action or proceeding; and
 
(v)           consents to process being served in any such claim, suit, action or proceeding by mailing, certified mail, return receipt requested, a copy thereof to such party at the address in effect for notices hereunder, and agrees that such services shall constitute good and sufficient service of process and notice thereof; provided , nothing in this clause (v)  shall affect or limit any right to serve process in any other manner permitted by law.
 
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Section 16.10       Invalidity of Provisions .  If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and/or parts thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.
 
Section 16.11       Consent of Members .  Each Member hereby expressly consents and agrees that, whenever in this Agreement it is specified that an action may be taken upon the affirmative vote or consent of less than all of the Members, such action may be so taken upon the concurrence of less than all of the Members and each Member shall be bound by the results of such action.
 
Section 16.12       Facsimile Signatures .  The use of facsimile signatures affixed in the name and on behalf of the transfer agent and registrar of the Company on Certificates representing Units is expressly permitted by this Agreement.
 
[ Remainder of this page intentionally left blank. ]
 
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

 	MANAGING MEMBER:	
 	 	
 	ENLINK MIDSTREAM MANAGER, LLC	
 	 	
 	By:	Devon Gas Services, L.P., its sole member	
 	 	 	
 	By:	Devon Gas Operating, Inc., its general partner	

 	By:	/s/ Darryl G. Smette	
 	Name:	Darryl G. Smette	
 	Title:	Executive Vice President	
 
SIGNATURE PAGE
ENLINK MIDSTREAM, LLC
FIRST AMENDED AND RESTATED OPERATING AGREEMENT

Exhibit 4.1

REGISTRATION RIGHTS AGREEMENT
 
BY AND BETWEEN
 
DEVON GAS SERVICES, L.P.
 
AND
 
ENLINK MIDSTREAM, LLC

dated as of March 7, 2014

 
TABLE OF CONTENTS

 	 	Page	
 	 	 	
ARTICLE I	
DEFINITIONS	
 	
1.1	Definitions	1	
 	 	 	
ARTICLE II	
REGISTRATION RIGHTS	
 	
2.1	Registration	5	
2.2	Piggyback Rights	7	
2.3	Registration Procedures	8	
2.4	Conditions to Offerings	11	
2.5	Suspension Period	11	
2.6	Registration Expenses	12	
2.7	Indemnification; Contribution	12	
2.8	Rule 144	15	
 	 	 	
ARTICLE III	
TRANSFER RESTRICTIONS	
 	
3.1	Unrestricted Transfers	15	
 	 	 	
ARTICLE IV	
GENERAL PROVISIONS	
 	
4.1	Notices	15	
4.2	Expenses	16	
4.3	Amendments: Waivers	16	
4.4	Interpretation	16	
4.5	Severability	17	
4.6	Facsimiles; Counterparts	17	
4.7	Entire Understanding; No Third-Party Beneficiaries	17	
4.8	Governing Law and Venue; Consent to Jursidiction	18	
4.9	Assignment	19	
4.10	Books and Records; Financial Information	19	
4.11	Specific Performance	20	
4.12	Termination	20	
 
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Schedules	 	
 	 	
Schedule I	– Accounting and Financial Information	 	
 	 	 	
Exhibits	 	
 	 	
Exhibit A	– Form of Joinder	 	
 
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REGISTRATION RIGHTS AGREEMENT
 
This REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”), dated as of March 7, 2014 (the “ Effective Date ”), is made and entered into by and between Devon Gas Services, L.P., a Texas limited partnership (“ Devon Gas Services ”), and EnLink Midstream, LLC, a Delaware limited liability company (the “ Company ”).
 
Devon Gas Services, together with any other Person that becomes a unitholder under this Agreement pursuant to the terms hereof, is sometimes referred to individually in this Agreement as a “ Unitholder ” and are sometimes collectively referred to in this Agreement as the “ Unitholders .” Each party to this Agreement is sometimes referred to individually in this Agreement as a “ Party ” and all of the parties to this Agreement are sometimes collectively referred to in this Agreement as the “ Parties .”
 
R E C I T A L S
 
WHEREAS, Devon Gas Services and the Company are parties to that certain Agreement and Plan of Merger, dated as of October 21, 2013, by and among Devon Gas Services, the Company and the other parties thereto (the “ Merger Agreement ”);
 
WHEREAS, the execution and delivery of this Agreement is a condition to the obligations of the parties thereto to consummate the transactions contemplated by the Merger Agreement; and
 
WHEREAS, the Company has agreed to provide the registration and other rights set forth in this Agreement for the benefit of Devon Gas Services pursuant to the Merger Agreement.
 
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
 
ARTICLE I
DEFINITIONS
 
1.1          Definitions .  As used in and for purposes of this Agreement, the following terms have the following meanings:
 
“ Affiliate ” means a Person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified Person.  A Person shall be deemed to control another Person if such first Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.
 
“ Agreed Securities Exchange ” means the New York Stock Exchange.
 
“ Agreement ” means this Agreement, as amended from time to time.
 
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“ beneficial owner ” and words of similar import have the meaning assigned to such terms in Rule 13d-3 promulgated under the Exchange Act as in effect on the Effective Date.
 
“ Business Day ” means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings, or, in the case of determining a date when any payment is due, any day on which banks are not required or authorized to close in the City of Dallas in the United States of America.
 
“ Devon Gas Services ” has the meaning set forth in the preamble to this Agreement.
 
“ Devon Gas Unitholder ” means any Unitholder that is either (i) Devon Gas Services or (ii) an Affiliate of Devon or Devon Gas Services.
 
“ Effective Date ” has the meaning set forth in the preamble to this Agreement.
 
“ Effectiveness Period ” has the meaning set forth in Section 2.1(a) .
 
“ EnLink Midstream Class B Common Units ” means the class B common units representing limited liability company interests in the Company, having the terms provided in the limited liability company agreement of the Company, as amended from time to time.
 
“ EnLink Midstream Common Units ” means the common units representing limited liability company interests in the Company, having the terms provided in the limited liability company agreement of the Company, as amended from time to time.
 
“ Equity Interests ” means any type of equity ownership in the Company, or right to acquire any equity ownership in the Company, including EnLink Midstream Common Units or other units or a similar security, or any other interest entitling the holder thereof to participate in distributions or otherwise granting any other economic, voting or other rights, obligations, benefits or interests in, or attaching to, such interests.
 
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
 
“ Governmental Entity ” means any (i) nation, region, state, province, county, city, town, village, district or other jurisdiction, (ii) federal, state, local, municipal, foreign or other government, (iii) governmental or quasi-governmental body of any nature (including any governmental agency, branch, department, court or tribunal, or other entities), (iv) multinational organization or body or (v) body entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature.
 
“ Included Registrable Securities ” has the meaning set forth in Section 2.2(a) .
 
“ Indemnifying Party ” has the meaning set forth in Section 2.7(c) .
 
“ Information ” has the meaning set forth in Section 4.10(d) .
 
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“ Law ” means any law, statute, code, ordinance, order, rule, rule of common law, regulation, judgment, decree, injunction, franchise, permit, certificate, license or authorization of any Governmental Entity.
 
“ Losses ” means any and all losses, claims, damages, liabilities, obligations, costs and expenses (including, without limitation, as a result of any notices, actions, suits, proceedings, claims, demands, assessments, judgments, awards, costs, penalties, taxes and reasonable out-of-pocket expenses, including reasonable attorneys’ fees).
 
“ Merger Agreement ” has the meaning set forth in the recitals to this Agreement.
 
“ Offering Expenses ” has the meaning set forth in Section 2.6 .
 
“ Opt-Out Notice ” has the meaning set forth in Section 2.2(a) .
 
“ Participating Unitholders ” has the meaning set forth in Section 2.1(b) .
 
“ Participating Unitholder Indemnified Persons ” has the meaning set forth in Section 2.7(a) .
 
“ Party ” has the meaning set forth in the preamble to this Agreement.
 
“ Person ” means any natural person, group (including a “ group ” under Section 13(d) of the Exchange Act), corporation, limited partnership, general partnership, limited liability company, joint stock company, joint venture, association, company, estate, trust, bank trust company, land trust, business trust, or other organization, whether or not a legal entity, custodian, trustee-executor, administrator, nominee or entity in a representative capacity and any Governmental Entity.
 
“ Prospectus ” means the prospectus (including any preliminary prospectus and any final prospectus) included in any Registration Statement, as amended or supplemented by any free writing prospectus, whether or not required to be filed with the SEC, prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by the Registration Statement and by all other amendments and supplements to the prospectus, and all material incorporated by reference in such prospectus.
 
“ Registrable Securities ” means all EnLink Midstream Common Units received by Devon Gas Services pursuant to the Merger Agreement, including the EnLink Midstream Common Units that will be issued to the Unitholders upon the conversion of the EnLink Midstream Class B Common Units received by Devon Gas Services pursuant to the Merger Agreement, that are beneficially owned by Unitholders, and any Equity Interests issued as a dividend or other distribution with respect to, or in exchange for, or in replacement of, such EnLink Midstream Common Units or EnLink Midstream Class B Common Units; provided , however , that a Registrable Security shall cease to be a Registrable Security when (a) such Registrable Security has been sold pursuant to an effective Registration Statement under the Securities Act, (b) such Registrable Security has been sold pursuant to Rule 144 (or any similar provision then in force under the Securities Act) and the transferee thereof does not receive “restricted securities” as
 
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defined in Rule 144, (c) such Registrable Security shall have ceased to be outstanding or (d) such Registrable Security has been sold in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of the securities.
 
“ Registration Statement ” means any registration statement of the Company that covers Registrable Securities pursuant to the provisions of this Agreement, including the prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.
 
“ Representative ” means, with respect to any Person, such Person’s, or such Person’s Subsidiaries’, directors, officers, employees, accountants, investment bankers, commercial bank lenders, attorneys and other advisors or representatives (including the employees or attorneys of such accountants, investment bankers or attorneys).
 
“ Rule 144 ” means Rule 144 promulgated under the Securities Act or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such rule.
 
“ SEC ” means the U.S. Securities and Exchange Commission.
 
“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
 
“ Selling Expenses ” has the meaning set forth in Section 2.7(b) .
 
“ Suspension Period ” has the meaning set forth in Section 2.5(a) .
 
“ Underwriter ” means, with respect to any underwritten offering, a securities dealer who purchases any Registrable Securities as a principal in connection with a distribution of such Registrable Securities.
 
“ Underwritten Offering Request ” has the meaning set forth in Section 2.1(b) .
 
“ Unitholders ” has the meaning set forth in the preamble to this Agreement.
 
“ Voting Interests ” of any Person as of any date means the Equity Interests of such Person pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers, general partners or trustees of such Person (regardless of whether, at the time, Equity Interests of any other class or classes shall have, or might have, voting power by reason of the occurrence of any contingency) or, with respect to a partnership (whether general or limited), any general partner interest in such partnership.
 
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ARTICLE II
REGISTRATION RIGHTS
 
2.1          Registration .
 
(a)           As soon as reasonably practicable following the written request of the Unitholders, but in any event prior to the date that is 90 days after such written request, the Company shall prepare and file a Registration Statement under the Securities Act to permit the public resale of Registrable Securities then outstanding from time to time as permitted by Rule 415 of the Securities Act with respect to all of the Registrable Securities specified by the Unitholders. The Registration Statement filed pursuant to this Section 2.1(a) shall be on such appropriate registration form of the SEC as shall be selected by the Company so long as it permits the public resale of the Registrable Securities from time to time pursuant to Rule 415 of the Securities Act or such other similar rule as is then applicable.  The Company shall use its reasonable best efforts to cause each Registration Statement filed pursuant to this Section 2.1(a) to be effective, supplemented, amended or replaced to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Unitholders until the earliest of (i) all Registrable Securities covered by the Registration Statement have been distributed in the manner set forth and as contemplated in such Registration Statement and (ii) there are no longer any Registrable Securities outstanding (the “ Effectiveness Period ”).
 
(b)           In the event that a Unitholder (together with any Affiliates that are Unitholders) elects to dispose of Registrable Securities pursuant to an underwritten offering of Registrable Securities (the “ Participating Unitholders ”), the Company will, at the request of the Participating Unitholders (an “ Underwritten Offering Request ”), use its reasonable best efforts to file a prospectus supplement that shall be deemed to be part of a Registration Statement filed pursuant to Section 2.1(a) that is useable for a resale of Registrable Securities by the Participating Unitholders conducted pursuant to an underwritten offering; provided , however , that in no event shall the Company be required to file a prospectus supplement or Registration Statement (as applicable) or otherwise participate in more than two (2) underwritten offerings during any twelve-month period; provided , that if the Company determines in good faith that effecting an underwritten offering on behalf of the Unitholders would have an adverse effect on the price, timing or distribution of a primary offering of EnLink Midstream Common Units by the Company, then the Company shall be entitled, not more than once in any 360-day period, to postpone any such underwritten offering for a reasonable period of time not to exceed 30 consecutive days . The Underwritten Offering Request will specify the aggregate value of the Registrable Securities proposed by the Participating Unitholders to be included in such underwritten offering (calculated based on the volume-weighted average trading price of the EnLink Midstream Common Units for the 20 Business Days prior to the date of the Underwritten Offering Request), which aggregate value may not be less than $50 million. Participating Unitholders may change the number of Registrable Securities proposed to be offered in any underwritten offering at any time prior to commencement of such offering unless the Company has been advised by the managing Underwriter or Underwriters for such underwritten offering that such change will have an adverse effect on the price, timing or distribution of the EnLink Midstream Common Units in the underwritten offering. Participating Unitholders will be permitted to rescind an Underwritten Offering Request at any time prior to the public
 
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announcement of the underwritten offering; provided , that (i) the Participating Unitholders reimburse the Company for all reasonable, out-of-pocket expenses incurred by the Company in connection with such underwritten offering and (ii) the Unitholders will not be entitled to submit an Underwritten Offering Request during the two months following the date of the rescission.
 
(c)           The Company will use its reasonable best efforts to cause the Registration Statement filed pursuant to Section 2.1(a) to be declared effective as promptly as practicable and no later than 180 days following the date of written request set forth in Section 2.1(a) . The Company further agrees to use its reasonable best efforts to supplement or make amendments to each such Registration Statement as may be necessary to keep such Registration Statement effective for the Effectiveness Period, including (A) to respond to the comments of the SEC, if any, (B) as may be required by the registration form utilized by the Company for such Registration Statement or by the instructions to such registration form, (C) as may be required by the Securities Act, or (D) as may be reasonably requested in writing by the Participating Unitholders or any Underwriter and reasonably acceptable to the Company. The Company agrees to furnish to the Participating Unitholders copies of any such supplement or amendment no later than the time it is first being used or filed with the SEC. A Registration Statement when it becomes or is declared effective (including the documents incorporated therein by reference) will comply as to form in all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (and, in the case of any prospectus contained in such Registration Statement, in the light of the circumstances under which a statement is made).  As soon as practicable following the effective date of a Registration Statement, but in any event within three (3) Business Days of such date, the Company shall notify the Unitholders of the effectiveness of such Registration Statement.
 
(d)           Subject to the following sentence, the Company may include in any underwritten offering any securities for its own account or for the account of holders of EnLink Midstream Common Units (other than Unitholders). Notwithstanding anything to the contrary contained herein, if the lead Underwriters of an underwritten offering advise the Company that, in their reasonable opinion the number of Equity Interests (including any Registrable Securities) that the Company, the Participating Unitholders and any other Persons intend to include in any underwritten offering is such that the success of any such offering would be materially and adversely affected, including with respect to the price at which the securities can be sold, then the number of EnLink Midstream Common Units or other Equity Interests to be included in the Registration Statement for the account of the Company, the Participating Unitholders and any other Persons will be reduced to the extent necessary to reduce the total number of securities to be included in any such underwritten offering to the number recommended by such lead Underwriter; provided , however , that such reduction shall be made: (i)  first , to remove or reduce any EnLink Midstream Common Units or other Equity Interests proposed to be offered by the Company for its own account and (ii)  second , to remove or reduce pro rata among the Participating Unitholders and any other holders of EnLink Midstream Common Units or other Equity Interests requested to be registered or disposed of, as applicable, so that the total number of Equity Interests to be included in any such offering for the account of all such Persons will not exceed the number recommended by such lead Underwriter.
 
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2.2          Piggyback Rights .
 
(a)           Participation .  So long as a Unitholder has Registrable Securities, if at any time the Company proposes to file (i) a registration statement and such Unitholder has not previously included its Registrable Securities in a Registration Statement contemplated by Section 2.1(a) of this Agreement that is currently effective, or (ii) a prospectus supplement to an effective registration statement so long as the Registrable Securities are included in the underlying shelf Registration Statement or are included on an effective Registration Statement, or in any case in which Unitholders may participate in such offering without the filing of a post-effective amendment, in each case, for the sale of EnLink Midstream Common Units in an underwritten offering for its own account and/or another Person, other than (a) a registration relating solely to employee benefit plans, (b) a registration relating solely to a Rule 145 transaction, or (c) a registration statement on any registration form which does not permit secondary sales, then as soon as reasonably practicable following the engagement of counsel by the Company to prepare the documents to be used in connection with an underwritten offering, the Company shall give notice (which may be limited to notification by electronic mail) of such proposed underwritten offering to each Unitholder (together with its Affiliates) holding at least $15 million of the then-outstanding Registrable Securities (calculated based on the volume-weighted average trading price of the EnLink Midstream Common Units for the 20 Business Days prior to the date of such notice) and such notice shall offer such Unitholders the opportunity to include in such underwritten offering such number of Registrable Securities (the “ Included Registrable Securities ”) as each such Unitholder may request in writing; provided, however , that (A) the Company shall not be required to provide such opportunity unless the Unitholders propose to offer, in the aggregate, at least $50 million of Registrable Securities (calculated based on the volume-weighted average trading price of the EnLink Midstream Common Units for the 20 Business Days prior to the date of such notice), and (B) if the Company has been advised by the managing Underwriter or Underwriters for such underwritten offering that the inclusion of Registrable Securities for sale for the benefit of the Unitholders will have an adverse effect on the price, timing or distribution of the EnLink Midstream Common Units in the underwritten offering, then (1) if no Registrable Securities can be included in the underwritten offering in the opinion of the managing Underwriter or Underwriters, the Company shall not be required to offer such opportunity to the Unitholders or (2) if any Registrable Securities can be included in the underwritten offering in the opinion of the managing Underwriter or Underwriters, then the amount of Registrable Securities to be offered for the accounts of Unitholders shall be determined in accordance with the provisions of Section 2.1(d)(ii) .  Any notice required to be provided in this Section 2.2(a) to Unitholders shall be provided on a Business Day pursuant to Section 4.1 hereof and receipt of such notice shall be confirmed by the Unitholder.  Each such Unitholder shall then have two (2) Business Days (or one (1) Business Day in connection with any overnight or bought underwritten offering) after notice has been delivered to request in writing the inclusion of Registrable Securities in the underwritten offering.  If no written request for inclusion from a Unitholder is received within the specified time, each such Unitholder shall have no further right to participate in such underwritten offering.  If, at any time after giving written notice of its intention to undertake an underwritten offering and prior to the closing of such underwritten offering, the Company shall determine for any reason not to undertake or to delay such underwritten offering, the Company may, at its election, give written notice of such determination to the Unitholders and, (x) in the case of a determination not to undertake such
 
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underwritten offering, shall be relieved of its obligation to sell any Included Registrable Securities in connection with such terminated underwritten offering, and (y) in the case of a determination to delay such underwritten offering, shall be permitted to delay offering any Included Registrable Securities for the same period as the delay in the underwritten offering.  Any Unitholder shall have the right to withdraw such Unitholder’s request for inclusion of such Unitholder’s Registrable Securities in such underwritten offering by giving written notice to the Company of such withdrawal at or prior to the time of pricing of such underwritten offering.  Any Unitholder participating in an Underwriting Offering pursuant to this Section 2.2 shall be a “Participating Unitholder” for the purposes of this Agreement. Any Unitholder may deliver written notice (an “ Opt-Out Notice ”) to the Company requesting that such Unitholder not receive notice from the Company of any proposed underwritten offering; provided, however , that such Unitholder may later revoke any such Opt-Out Notice in writing.  Following receipt of an Opt-Out Notice from a Unitholder (unless subsequently revoked), the Company shall not be required to deliver any notice to such Unitholder pursuant to this Section 2.2(a) and such Unitholder shall no longer be entitled to participate in underwritten offerings by the Company pursuant to this Section 2.2 .
 
2.3          Registration Procedures .  Subject to the provisions of Section 2.1 and 2.2 , in connection with the registration of the sale of Registrable Securities in an underwritten offering pursuant to this Agreement, the Company will as promptly as reasonably practicable:
 
(a)           furnish to each Participating Unitholder participating in an underwritten offering without charge, prior to the filing of a Registration Statement, copies of such Registration Statement as it is proposed to be filed, and thereafter such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto, including each preliminary prospectus), copies of any and all transmittal letters or other correspondence with the SEC relating to such Registration Statement and such other documents in such quantities as such Participating Unitholder may reasonably request from time to time in order to facilitate the disposition of such Registrable Securities, and give each Participating Unitholder and its Representatives a reasonable opportunity to review and comment on the same prior to filing any such documents;
 
(b)           (i) cause the Company’s Representatives to supply all information reasonably requested by a Participating Unitholder, any Underwriter, or its Representatives in connection with the Registration Statement and (ii) provide each Participating Unitholder, any Underwriter and its Representatives with the opportunity to participate in the preparation of such Registration Statement and the related Prospectus;
 
(c)           if applicable, use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as a Participating Unitholder reasonably requests and do any and all other acts and things as may be reasonably necessary or advisable to enable a Participating Unitholder to consummate the disposition of such Registrable Securities in such jurisdictions; provided , however , that the Company shall in no event be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) subject itself to taxation in any jurisdiction where it is not otherwise then so subject, (iii) take any action that would subject it to service of process in suits other than those
 
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arising out of the offer and sale of the securities covered by the Registration Statement or (iv) consent to general service of process in any jurisdiction where it is not then so subject;
 
(d)           notify each Participating Unitholder at any time when a prospectus relating to Registrable Securities is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in a Registration Statement or the Registration Statement or amendment or supplement relating to such Registrable Securities contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and the Company will promptly prepare and file with the SEC a supplement or amendment to such prospectus and Registration Statement (and comply fully with the applicable provisions of Rules 424, 430A and 430B under the Securities Act in a timely manner) so that, as thereafter delivered to the purchasers of the Registrable Securities, such prospectus and Registration Statement will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
 
(e)           advise any Underwriter(s) and each Participating Unitholder promptly of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Registrable Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes. If at any time the SEC shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Registrable Securities under state securities or “blue sky” laws, the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order as promptly as practicable;
 
(f)            use its reasonable best efforts to cause such Registrable Securities to be registered with or approved by such other Governmental Entities as may be necessary by virtue of the business and operations of the Company to enable each Participating Unitholder to consummate the disposition of such Registrable Securities; provided , however , that the Company shall in no event be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified, (ii) subject itself to taxation in any jurisdiction where it is not otherwise then so subject, (iii) take any action that would subject it to service of process in suits other than those arising out of the offer and sale of the securities covered by the Registration Statement or (iv) consent to general service of process in any jurisdiction where it is not then so subject;
 
(g)           enter into customary agreements and use reasonable best efforts to take such other actions as are reasonably requested by each Participating Unitholder and are consistent with the other obligations of the Company hereunder in order to expedite or facilitate any underwritten offering;
 
(h)           if requested by a Participating Unitholder, promptly include in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, and subject to the provisions of this Agreement, such information as such Participating  Unitholder
 
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may reasonably request to have included therein, including any terms of the underwritten offering, and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be included in such prospectus supplement or post-effective amendment;
 
(i)            otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders, within the required time period, an earnings statement covering a period of 12 months, beginning with the first fiscal quarter after the effective date of the Registration Statement relating to such Registrable Securities (as the term “effective date” is defined in Rule 158(c) under the Securities Act), which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder or any successor provisions thereto;
 
(j)            use reasonable best efforts to provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement;
 
(k)           cooperate with any Participating Unitholder and any Underwriter to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold under the Registration Statement in a form eligible for deposit with The Depository Trust Company not bearing any restrictive legends and not subject to any stop transfer order with any transfer agent, and cause such Registrable Securities to be issued in such denominations and registered in such names as the lead Unitholder may request in writing in connection with the closing of any sale of Registrable Securities;
 
(l)            use its reasonable best efforts to cause such Registrable Securities to be listed or quoted on the Agreed Securities Exchange or, if EnLink Midstream Common Units are not then listed on the Agreed Securities Exchange, then on such other securities exchange or national quotation system on which the EnLink Midstream Common Units are then listed or quoted; and
 
(m)          the Company will cooperate with each Participating Unitholder and each Underwriter in effecting any underwritten offering as promptly as reasonably practicable following receipt of an Underwritten Offering Request.  In connection with any underwritten offering (i) under Section 2.1(b), Devon Gas Services shall be entitled to select the managing Underwriter or Underwriters and (ii) under Section 2.2 , the Company shall be entitled to select the managing Underwriter or Underwriters.  The Company shall reasonably assist such managing Underwriter or Underwriters in their efforts to sell Registrable Securities pursuant to such underwritten offering and shall make senior executives with appropriate seniority and expertise reasonably available for customary “road show” or other presentations during the marketing period for such Registrable Securities. In furtherance of the foregoing, the Company will use its reasonable best efforts to obtain and deliver to each Underwriter and Participating Unitholder a comfort letter from the independent registered public accounting firm for the Company (and additional comfort letters from the independent registered public accounting firm for any company acquired by the Company whose financial statements are included or incorporated by reference in the Registration Statement) in customary form and covering such matters as are customarily covered by comfort letters as such Underwriter and Participating Unitholder may reasonably request. The Company will use its reasonable best efforts to obtain
 
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and deliver to each Underwriter and Unitholder a 10b-5 statement and legal opinion from the Company’s counsel in customary form and covering such matters as are customarily covered by 10b-5 statements and legal opinions delivered to Underwriters in underwritten offerings as such Underwriter and/or Participating Unitholder may reasonably request.
 
2.4          Conditions to Offerings .
 
(a)           The obligations of the Company to take the actions contemplated by Section 2.1 and Section 2.2 with respect to an offering of Registrable Securities will be subject to the following conditions:
 
(i)            the Company may require any Participating Unitholder to furnish to the Company such information regarding each Participating Unitholder, the Registrable Securities or the distribution of such Registrable Securities as the Company may from time to time reasonably request in writing, in each case to the extent reasonably required by the Securities Act and the rules and regulations promulgated thereunder, or under state securities or “blue sky” laws; and
 
(ii)           each Participating Unitholder, together with the Company and any other holders of the Company’s securities proposing to include securities in any underwritten offering, will enter into a customary underwriting agreement with the Underwriter or Underwriters selected for such underwriting, as well as such other documents customary in similar offerings.
 
(b)           Each Participating Unitholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.3(d) or 2.3(e) or a condition described in Section 2.5 , such Participating Unitholder will forthwith discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering the sale of such Registrable Securities until such Participating Unitholder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.3(d) or notice from the Company of the termination of the stop order or Suspension Period.
 
2.5          Suspension Period .
 
(a)           Notwithstanding anything to the contrary contained in this Agreement, if the Company determines in good faith (because of the existence of, or in anticipation of, any acquisition, financing activity or other transaction involving the Company, the unavailability of any required financial statements, disclosure of information which is in its best interest not to publicly disclose, or any other event or condition of similar significance to the Company) that effecting an underwritten offering would be materially detrimental to the Company or the holders of its EnLink Midstream Common Units, then the Company shall be entitled to postpone any such underwritten offering for a reasonable period of time not to exceed 60 consecutive days (or a longer period of time with the prior written consent of the Unitholders, which consent shall not be unreasonably withheld) or 105 days in the aggregate in any 365-day period (a “ Suspension Period ”). In the event of any such suspension pursuant to this Section 2.5(a) , the Company shall furnish to each Participating Unitholder a written notice setting forth the estimated length of the anticipated delay. The Company will notify each Participating Unitholder
 
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promptly upon the termination of the Suspension Period. Upon notice by the Company to the Participating Unitholders of any determination to commence a Suspension Period, each Participating Unitholder shall, except as required by applicable Law, including any disclosure obligations under Section 13 of the Exchange Act, keep the fact of any such Suspension Period strictly confidential, and during any Suspension Period, promptly halt any offer, sale (including sales pursuant to Rule 144), trading or transfer of any EnLink Midstream Common Units for the duration of the Suspension Period until the Company has provided notice that the Suspension Period has been terminated.
 
(b)           After the expiration of any Suspension Period and without any further request from a holder of Equity Interests, the Company shall as promptly as reasonably practicable prepare a Registration Statement or post-effective amendment or supplement to the applicable shelf Registration Statement or Prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Prospectus will not include a material misstatement or omission or be not effective and useable for resale of Registrable Securities.
 
2.6          Registration Expenses .  All fees and expenses incurred by the Participating Unitholders applicable to Registrable Securities offered for Unitholder’s account in an underwritten offering (including underwriting discounts and commissions and fees and expenses of Unitholder’s counsel) will be borne by the Participating Unitholders.  All other reasonable fees and expenses incident to an underwritten offering, including all fees and expenses incurred by the Company in complying with securities or “blue sky” laws, printing expenses, messenger and delivery expenses, any registration or filing fees payable under any federal or state securities or “blue sky” laws, the fees and expenses incurred in connection with any listing or quoting of the securities to be registered on any national securities exchange or automated quotation system, fees of the Financial Industry Regulatory Authority, reasonable fees and disbursements of counsel for the Company, its independent registered certified public accounting firm and any other public accountants who are required to deliver comfort letters (including the expenses required by or incident to such performance), transfer taxes, fees of transfer agents and registrars, the fees and out of pocket expenses of other Persons retained by the Company (collectively, the “ Offering Expenses ”) will be borne (i) in the event the underwritten offering includes only Registrable Securities offered for the Participating Unitholders’ account, by the Participating Unitholders, and (ii) in the event the underwritten offering includes Registrable Securities offered for the Participating Unitholders account and EnLink Midstream Common Units offered for the Company’s own account or for the account of holders of EnLink Midstream Common Units other than the Participating Unitholders, pro rata based on the percentage of the total amount of EnLink Midstream Common Units offered for the Participating Unitholders’ account and the percentage of the total amount of EnLink Midstream Common Units offered for the Company’s own account or for the account of holders of EnLink Midstream Common Units other than the Participating Unitholders.
 
2.7          Indemnification; Contribution .
 
(a)           By the Company .  In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Company will indemnify and hold harmless each Participating Unitholder thereunder, its directors, officers, managers, employees
 
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and agents and each Person, if any, who controls such Participating Unitholder within the meaning of the Securities Act and the Exchange Act, and its directors, officers, employees or agents (collectively, the “ Participating Unitholder Indemnified Persons ”), against any Losses, joint or several, to which such Participating Unitholder Indemnified Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact (in the case of any prospectus, in light of the circumstances under which such statement is made) contained in the Registration Statement or any other registration statement contemplated by this Agreement, any preliminary prospectus, prospectus supplement, free writing prospectus or final prospectus contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances under which they were made) not misleading, and will reimburse each such Participating Unitholder Indemnified Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Loss or actions or proceedings; provided, however , that the Company will not be liable in any such case if and to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Participating Unitholder Indemnified Person in writing specifically for use in the Registration Statement or such other registration statement, or prospectus supplement, as applicable.  Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Participating Unitholder Indemnified Person, and shall survive the transfer of such securities by such Participating Unitholder.
 
(b)           By Each Participating Unitholder .  Each Participating Unitholder agrees severally and not jointly to indemnify and hold harmless the Company, its directors, officers, employees and agents and each Person, if any, who controls the Company within the meaning of the Securities Act or of the Exchange Act, and its directors, officers, employees and agents, to the same extent as the foregoing indemnity from the Company to the Participating Unitholders, but only with respect to information regarding such Participating Unitholder furnished in writing by or on behalf of such Participating Unitholder expressly for inclusion in the Registration Statement or any other registration statement contemplated by this Agreement, any preliminary prospectus, prospectus supplement, free writing prospectus or final prospectus contained therein, or any amendment or supplement thereof; provided, however , that the liability of each Participating Unitholder shall not be greater in amount than the dollar amount of the proceeds (net of any underwriting discounts and selling commissions or similar fees or arrangements allocable to the sale of the Registrable Securities (“ Selling Expenses ”)) received by such Participating Unitholder from the sale of the Registrable Securities giving rise to such indemnification.
 
(c)           Notice .  Promptly after receipt by a Party hereunder of notice of the commencement of any action (such Party, an “ Indemnified Party ”), such Indemnified Party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve it from any liability that it may have to any Indemnified Party other than under this
 
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Section 2.7 except to the extent that the indemnifying party is materially prejudiced by such failure.  In any action brought against any Indemnified Party, it shall notify the indemnifying party of the commencement thereof.  The indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such Indemnified Party and, after notice from the indemnifying party to such Indemnified Party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such Indemnified Party under this Section 2.7 for any legal expenses subsequently incurred by such Indemnified Party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided, however , that, (i) if the indemnifying party has failed to assume the defense or employ counsel reasonably acceptable to the Indemnified Party or (ii) if the defendants in any such action include both the Indemnified Party and the indemnifying party and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from or additional to those available to the indemnifying party, or if the interests of the Indemnified Party reasonably may be deemed to conflict with the interests of the indemnifying party, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other reasonable expenses related to such participation to be reimbursed by the indemnifying party as incurred.  Notwithstanding any other provision of this Agreement, no indemnifying party shall settle any action brought against any Indemnified Party with respect to which such Indemnified Party is entitled to indemnification hereunder without the consent of the Indemnified Party, unless the settlement thereof imposes no liability or obligation on, and includes a complete and unconditional release from all liability of, and does not contain an admission of wrongdoing by, the Indemnified Party.
 
(d)           Contribution .  If the indemnification provided for in this Section 2.7 is held by a court or government agency of competent jurisdiction to be unavailable to any Indemnified Party or is insufficient to hold them harmless in respect of any Losses, then each such indemnifying party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of such Indemnified Party on the other in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations; provided, however , that in no event shall such Participating Unitholder be required to contribute an aggregate amount in excess of the dollar amount of proceeds (net of Selling Expenses) received by such Participating Unitholder from the sale of Registrable Securities giving rise to such indemnification.  The relative fault of the indemnifying party on the one hand and the Indemnified Party on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact has been made by, or relates to, information supplied by such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The parties hereto agree that it would not be just and equitable if contributions pursuant to this paragraph were to be determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to herein.  The amount paid by an Indemnified Party as a result of the Losses referred to in the first sentence of this paragraph shall be deemed to include
 
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any legal and other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any Loss that is the subject of this paragraph.  No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who is not guilty of such fraudulent misrepresentation.
 
2.8          Rule 144 .  The Company agrees that it will use its reasonable best efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act and take such further action as Unitholder reasonably may request (including providing Unitholder with such information as may be required in order to enable Unitholder to make sales within the limitation of the exemptions provided by Rule 144), all to the extent required from time to time to enable Unitholder to sell Registrable Securities pursuant to the exemptions provided by Rule 144.
 
ARTICLE III
TRANSFER RESTRICTIONS
 
3.1          Unrestricted Transfers .  Any Unitholder may at any time transfer to any other Person any EnLink Midstream Common Units (or, if applicable, EnLink Midstream Class B Common Units).  The rights to cause the Company to register Registrable Securities granted to the Unitholders by the Company under Article II may be transferred or assigned by a Unitholder to one or more transferee(s) or assignee(s) of such Registrable Securities (or, if applicable, EnLink Midstream Class B Common Units) who (a) are Affiliates of such Unitholder, or (b) hold, collectively with its or their Affiliates, after giving effect to such transfer or assignment, at least $25 million of Registrable Securities; provided , that if the Unitholder desires to assign its rights hereunder to such transferee, the Company shall be given written notice prior to any said transfer or assignment, stating the name and address of each such transferee and identifying the securities with respect to which such registration rights are being transferred or assigned, and the proposed transferee of such EnLink Midstream Common Units shall have executed and delivered to the Company a joinder to this Agreement, substantially in the form attached hereto as Exhibit A , which shall provide that such proposed transferee shall be a “Unitholder” for purposes of this Agreement.
 
ARTICLE IV
GENERAL PROVISIONS
 
4.1          Notices .  Any notice or other communication required or permitted under, or otherwise in connection with, this Agreement shall be in writing and shall be deemed to have been given (a) when delivered in person; (b) upon confirmation of receipt when transmitted by an electronic transmission device (but only if followed by transmittal by national overnight courier or by hand for delivery on the next Business Day); or (c) on the next Business Day if transmitted by national overnight courier, in each addressed as follows::
 
If to the Company, to:
 
EnLink Midstream, LLC
2501 Cedar Springs Rd.
Dallas, Texas 75201
Telephone: (214) 953-9500
 
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Facsimile: (214) 953-9501
Attention:  General Counsel
 
And a copy to (which shall not constitute notice):
 
Baker Botts L.L.P.
2001 Ross Avenue, Suite 700
Dallas, Texas 75201
Telephone: (214) 953-6500
Facsimile: (214) 661-4634
Attention: Douglass M. Rayburn
 
If to Devon Gas Services, to:
 
Devon Energy Corporation
333 W. Sheridan Avenue
Oklahoma City, Oklahoma 73102
Telephone: (405) 228-2800
Facsimile: (405) 552-1400
Attention:  General Counsel
 
And a copy to (which shall not constitute notice):
 
Vinson & Elkins LLP
1001 Fannin, Suite 2500
Houston, Texas 77007
Telephone: (713) 758-3708
Facsimile: (713) 615-5861
Attention: David P. Oelman and E. Ramey Layne
 
4.2          Expenses .  Except as otherwise provided in this Agreement, all costs and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense.
 
4.3          Amendments; Waivers .  Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Company and Devon Gas Services or, in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by any Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
 
4.4          Interpretation .  In this Agreement, except as context may otherwise require, references:
 
(a)           to the Preamble, Recitals, Sections, or Exhibits are to the Preamble to, a Recital or Section of, or Exhibit to, this Agreement;
 
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(b)           to this Agreement are to this Agreement and the Exhibits to it, taken as a whole;
 
(c)           to any agreement (including this Agreement), contract, statute or regulation are to the agreement, contract, statute or regulation as amended, modified, supplemented, restated or replaced from time to time (in the case of an agreement or contract, to the extent permitted by the terms thereof); and to any section of any statute or regulation include any successor to the section;
 
(d)           to any Governmental Entity includes any successor to that Governmental Entity;
 
(e)           to a Person are also to its permitted successors and assigns;
 
(f)            to the words “hereby,” “herein,” “hereof,” “hereunder,” and similar terms are to be deemed to refer to this Agreement as a whole and not to any specific Section;
 
(g)           to the words “include,” “includes,” or “including,” are to be deemed followed by the words “without limitation.” Any singular term in this Agreement will be deemed to include the plural, and any plural term the singular. All pronouns and variations of pronouns will be deemed to refer to the feminine, masculine or neuter, singular or plural, as the identity of the Person referred to may require;
 
(h)           the table of contents and article and section headings are for reference purposes only and do not limit or otherwise affect any of the substance of this Agreement; and
 
(i)            this Agreement is the product of negotiation by the Parties, having the assistance of counsel and other advisers. The parties intend that this Agreement not be construed more strictly with regard to one Party than with regard to the other Party.
 
4.5          Severability .  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible.
 
4.6          Facsimiles; Counterparts .  Delivery of an executed signature page of this Agreement by facsimile or other customary means of electronic transmission (e.g., .pdf) shall be deemed binding for all purposes hereof, without delivery of an original signature page being thereafter required.  This Agreement may be executed in one or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document.
 
4.7          Entire Understanding; No Third-Party Beneficiaries .  This Agreement and the Schedules and Exhibits hereto constitute the entire agreement of the Parties and supersede all
 
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prior agreements and undertakings, both written and oral, between the Parties, or any of them, with respect to the subject matter of this Agreement.  This Agreement shall be binding upon and inure solely to the benefit of each Party and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided, however , that each Party agrees that any Participating Unitholder Indemnified Party shall be entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement affording a right, benefit or privilege to such Participating Unitholder Indemnified Party.  Only the parties that are signatories to this Agreement (and their permitted successors and assigns) shall have any obligation or liability under, in connection with, arising out of, resulting from or in any way related to this Agreement or any other matter contemplated hereby or the process leading up to the execution and delivery of this Agreement and the transactions contemplated hereby, subject to delivery of this Agreement and such transactions and other provisions of this Agreement.
 
4.8          Governing Law .
 
(a)           THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN DELAWARE, AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES TO THE EXTENT THAT SUCH PRINCIPLES WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
 
(b)           The parties irrevocably submit to the exclusive personal jurisdiction of the courts of the State of Delaware and the Federal courts of the United States of America located in the State of Delaware in respect of the interpretation and enforcement of the provisions of this Agreement and of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement of this Agreement or of any such document, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts, and the parties irrevocably agree that all claims relating to such action, proceeding or transactions shall be heard and determined in such a Delaware state or Federal court. The parties consent to and grant any such court jurisdiction over the person of such parties and, to the extent permitted by Law, over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 4.1 or in such other manner as may be permitted by Law shall be valid and sufficient service thereof.
 
(c)           EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
 
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CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) IT MAKES THIS WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.8(c) .
 
4.9          Assignment .  This Agreement shall inure the benefit of and be binding upon the successors and assigns of the Parties, including subsequent holders of Registrable Securities to the extent permitted herein.
 
4.10        Books and Records; Financial Information .
 
(a)           The Company shall provide to Devon Gas Services and its Affiliates access to the Company’s books and records relating to the Company to the extent reasonably necessary to prepare financial statements of Devon Gas Services and its Affiliates in such forms and covering such periods as may be required by any applicable securities laws to be filed with the SEC by Devon Gas Services and its Affiliates as a result of the transactions contemplated by this Agreement.  The Company shall use reasonable best efforts to cause its independent accountants to provide any consent necessary to the filing of such financial statements with the SEC and to provide such customary representation letters as are necessary in connection therewith.  Until such time as the EnLink Midstream Common Units held by Unitholders equal less than three percent (3%) of the issued and outstanding EnLink Midstream Common Units, the Company’s obligations under this Section 4.10 shall include the obligation to provide Devon Gas Services and its Affiliates with the accounting and financial information set forth on Schedule I .
 
(b)           The Company hereby consents to the inclusion or incorporation by reference of the financial statements of the Company in any registration statement, report or other filing of Devon Gas Services or any of its Affiliates as to which any such Devon Gas Unitholder reasonably determines that such financial statements are required to be included or incorporated by reference to satisfy any rule or regulation of the SEC or to satisfy relevant disclosure obligations under the Securities Act or the Exchange Act.  The Company shall use reasonable best efforts to cause its independent auditors to consent to the inclusion or incorporation by reference of its audit opinion with respect to any of the financial statements of the Company in any such registration statement, report or other filing of Devon Gas Services or its Affiliates, and the Company shall cause representation letters, in form and substance reasonably satisfactory to the Company’s independent auditors, to be executed and delivered to the independent auditors in connection with obtaining any such consent.
 
(c)           The Company shall provide access to its books and records as may be reasonably necessary for Devon Gas Services or any of its Affiliates, or any of their respective advisors or representatives, to conduct customary due diligence with respect to the financial statements of the Company in connection with any offering of securities by any Unitholder or any of their Affiliates or to enable an accounting firm to prepare and deliver a customary comfort letter with respect to financial information relating to the Company.
 
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(d)           Devon Gas Services and its Affiliates shall not, directly or indirectly, disclose to any Person any confidential Information provided to Devon Gas Services pursuant to this Section 4.10 (“ Information ”), which has not become generally available to the public, other than as a result of a breach of this Agreement.  Notwithstanding the foregoing, (A) in the event that Devon Gas Services or any of its Affiliates are required by Law or applicable stock exchange rules to disclose any Information, such Party shall (1) notify the Company as promptly as practicable of the existence, terms and circumstances surrounding such a request, so that the Company may either waive such Party’s compliance with the terms of this Section 4.10 or seek an appropriate protective order or other remedy and (2) if the Company seeks such a protective order, to provide such cooperation as the Company may reasonably request (at the Company’s sole expense) and (B) the Parties acknowledge and agree that any Devon Gas Unitholder that holds at least three percent (3%) of the outstanding EnLink Midstream Common Units shall be required to include or incorporate into its financial statements the financial information described on Schedule I and nothing in this Section 4.10(d) shall limit or restrict the ability of any such Devon Gas Unitholder to publicly disclose such Information to the extent included or incorporated into the financial statements of such Unitholder. In the event that the Company waives compliance (in whole or in part) with the terms of this Section 4.10 , or such protective order or other remedy is denied, as a result of which such Devon Gas Unitholder is nonetheless legally compelled to disclose such Information, the Devon Gas Unitholder shall furnish only that portion of the Information that its legal counsel advises is legally required, and the Devon Gas Unitholder shall exercise its reasonable best efforts to preserve the confidentiality of the remainder of the Information.  In no event shall a Devon Gas Unitholder oppose action by the Company to obtain a protective order or other relief to prevent the disclosure of Information or to obtain reliable assurance that confidential treatment will be afforded the Information.
 
4.11        Specific Performance .  The Parties acknowledge and agree that each would be irreparably damaged in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that any non-performance or breach of this Agreement by any Party could not be adequately compensated by money damages alone and that the Parties would not have any adequate remedy at law. In the event of any breach or threatened breach by any Party of any provisions contained in this Agreement, the non-breaching Party shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to seek and obtain (a) a decree or order of specific performance to enforce the observance and performance of such provisions, and (b) an injunction restraining such breach or threatened breach. Neither Party nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 4.11 , and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.  The Parties further agree that they shall not object to the granting of an injunctive relief on the basis that there exist adequate remedy at law may exist.
 
4.12        Termination .  This Agreement shall terminate with respect to Devon Gas Services upon the first date on which Devon Gas Services and any other Unitholders that are an Affiliate of Devon Gas Services ceases to hold any Registrable Securities. Nothing in this Agreement shall be deemed to release any Party from any liability for any willful and material
 
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breach of this Agreement occurring prior to any termination hereof or to impair the right of any Party to compel specific performance by any other Party of its obligations under this Agreement.
 
[ Signature page follows. ]
 
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 	DEVON GAS SERVICES, L.P.	
 	 	 	
 	By:	Devon Gas Operating, Inc.,	
 	 	its general partner	
 	 	 	
 	By:	/s/ Darryl G. Smette	
 	Name:	Darryl G. Smette	
 	Title:	Executive Vice President	

 	ENLINK MIDSTREAM, LLC	
 	 	 	
 	By:	EnLink Midstream Manager, LLC,	
 	 	its managing member	

 	By:	/s/ Michael J. Garberding	
 	Name:	Michael J. Garberding	
 	Title:	Executive Vice President and Chief	
 	 	Financial Officer	
 
SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT

 
Schedule I
 
Accounting and Financial Information
 
Requirements to satisfy S-X 3-05
 
·                   Provide the following financial statements as promptly as practicable after closing:
·                   Audited annual financial statements from the Company’s most recent Form 10-K
·                   Unaudited interim financial statements for the most recent quarter-end
 
Requirements to satisfy S-X 3-09
 
·                   Provide audited annual financial statements for each subsequent annual period
·                   Provide in draft form when available; provide in final form with auditors’ report when finalized
 
Requirements for Devon Gas Services and its Affiliates’ accounting
 
·                   Provide estimated income at the end of each calendar quarter, using reasonable best efforts to provide such information no later than the 9th Business Day following the end of the quarter, and in no event later than the 12th Business Day following the end of the quarter
 
Requirements related to income taxes
 
·                   Unless otherwise provided in the Merger Agreement, upon the written request of Devon Gas Services or its Affiliates, provide good faith estimates of the following at the end of each calendar quarter, no later than the 21st calendar day following the end of the quarter
·                   Qualifying income calculation
·                   Projection of net taxable income of the Company for the full year
 
Requirements for Devon Gas Services or its Affiliates footnote and MD&A preparation
 
·                   Provide draft Form 10-Q within 20 business days following the end of a calendar quarter
·                   Provide draft Form 10-K within 30 business days following the end of a calendar year
·                   Provide updated drafts and final versions when available; updated drafts should be in a blacklined PDF or in a Word version
 
Requirements related to the Devon Gas Services and its Affiliates debt and equity offerings
 
·                   Provide assistance with obtaining consent from the Company’s auditor, for example:
·                   Respond to inquiries
·                   Sign management representation letters
·                   Provide updated financial information

 
Exhibit A
 
Form of Joinder
 
The undersigned is executing and delivering this Joinder Agreement (this “ Joinder Agreement ”) pursuant to the Registration Rights Agreement, dated as of March 7, 2014 (the “ Registration Rights Agreement ”), by and between Devon Gas Services, L.P. and EnLink Midstream, LLC.  Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Registration Rights Agreement.
 
By executing and delivering this Joinder Agreement to the Registration Rights Agreement, the undersigned hereby agrees to become a party to, be bound by, and comply with the provisions of the Registration Rights Agreement as a “Unitholder” thereunder.
 
Accordingly, in consideration of the mutual covenants and agreements set forth in the Registration Rights Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned has executed and delivered this Joinder Agreement as of the          day of           , 20    .

 	[UNITHOLDER]	

 	By:	 	
 	Name:	 	
 	Title:	 	

Exhibit 10.1

 
 
FIRST OFFER AGREEMENT
 
between
 
DEVON ENERGY CORPORATION
 
and
 
ENLINK MIDSTREAM, LLC

 

 
FIRST OFFER AGREEMENT
 
THIS FIRST OFFER AGREEMENT (the “ Agreement ”) is being entered into on March 7, 2014, by and between Devon Energy Corporation, a Delaware corporation (“ Devon ”), and EnLink Midstream, LLC, a Delaware limited liability company (“ EnLink Midstream ”).
 
R E C I T A L S:
 
The Parties desire by their execution of this Agreement to evidence their understanding, as more fully set forth in Article II , with respect to EnLink Midstream’s right of first offer with respect to the Assets (as defined herein).
 
In consideration of the premises and the covenants, conditions, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows:
 
ARTICLE I
Definitions
 
1.1                                Definitions .
 
As used in this Agreement, the following terms shall have the respective meanings set forth below:
 
“ Affiliate ” is defined in the EnLink Midstream Agreement.
 
“ Agreement ” is defined in the introduction to this Agreement.
 
“ Applicable Law ” means any applicable statute, law, regulation, ordinance, rule, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, agreement, requirement, or other governmental restriction or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued under any of the foregoing by, or any determination by any Governmental Authority having jurisdiction over the matter or matters in question, whether now or hereafter in effect and in each case as amended (including, without limitation, all of the terms and provisions of the common law of such Governmental Authority), as interpreted and enforced at the time in question.
 
 “ Assets ” means Devon’s 50% interest in Access Pipeline Inc.
 
“ Claim ” means any claim, demand, suit, action, investigation, proceeding, governmental action or cause of action of any kind or character (in each case, whether civil, criminal, investigative or administrative), known or unknown, under any theory, including those based on theories of contract, tort, statutory liability, strict liability, employer liability, premises liability, products liability, breach of warranty or malpractice.
 
“ Claimant ” is defined in Section 3.2 .
 
“ Devon ” is defined in the introduction to this Agreement.
 
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“ Devon Entities ” means Devon and its Affiliates, other than the EnLink Midstream Entities.
 
“ Devon Subsidiary ” means a wholly-owned subsidiary of Devon.
 
“ Disposition Notice ” is defined in Section 2.2(a) .
 
“ EnLink Midstream ” is defined in the introduction to this Agreement.
 
“ EnLink Midstream Agreement ” means the First Amended and Restated Operating Agreement of EnLink Midstream, LLC, dated as of the date hereof.
 
“ EnLink Midstream Entities ” means EnLink Midstream and its controlled Affiliates.
 
“ Governmental Authority ” means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
 
 “ Non-Managing Member ” is defined in the EnLink Midstream Agreement.
 
“ Party ” means each of the entities listed on the signature page to this Agreement, collectively the “ Parties .”
 
“ Person ” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization association, government agency or political subdivision thereof or other entity.
 
“ Proceeding ” means any civil, criminal or administrative actions, suits, investigations or other proceedings.
 
 “ Proposed Transaction ” is defined in Section 2.2(a) .
 
“ ROFO Response ” is defined in Section 2.2(b) .
 
“ Sale Assets ” is defined in Section 2.2(b) .
 
 “ Transfer ” including the correlative terms “ Transferring ” or “ Transferred ” means any direct or indirect transfer, assignment, sale, gift, pledge, hypothecation or other encumbrance, or any other disposition (whether voluntary, involuntary or by operation of law) of the Assets.
 
ARTICLE II
Right of First Offer
 
2.1                                Right of First Offer .
 
(a)                                  Devon hereby grants to EnLink Midstream a right of first offer on any proposed Transfer (other than (i) a grant of a security interest to a bona fide third-party lender or
 
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(ii) a Transfer to a Devon Subsidiary, in which case the provisions of this Article II shall continue to apply) of the Assets.
 
(b)                                  The Parties acknowledge that all potential Transfers of Sale Assets pursuant to this Article II are subject to obtaining any and all required written consents of Governmental Authorities and other third parties and to the terms of all existing agreements in respect of the Sale Assets and are subject to the rights, if any, of third parties under the Initial Project Agreement for the Construction, Ownership and Operation of Access Pipeline between Devon ARL Corporation and MEG ENERGY CORP. and Access Pipeline Inc. dated March 31, 2006.
 
2.2                                Procedures .
 
(a)                                  If Devon (or any Devon Subsidiary) proposes to Transfer all or any portion of the Assets (a “ Proposed Transaction ”), then Devon shall promptly give written notice (a “ Disposition Notice ”) thereof to EnLink Midstream.
 
(b)                                  The Disposition Notice shall identify the Assets proposed to be Transferred (the “ Sale Assets ”) and include any material terms, conditions and details as would be necessary for EnLink Midstream to make a responsive offer to enter into the Proposed Transaction with Devon, which terms, conditions and details shall at a minimum include any terms, condition or details that Devon would provide to any potential Transferee other than a Devon Subsidiary in connection with the Proposed Transaction.  EnLink Midstream shall have 60 days following receipt of the Disposition Notice to propose an offer to enter into the Proposed Transaction with Devon (the “ ROFO Response ”).  The ROFO Response shall set forth the terms and conditions (including, without limitation, the purchase price EnLink Midstream proposes to pay for the Sale Assets and the other terms of the purchase including, if requested by Devon, the terms on which EnLink Midstream will provide services to the Devon Entity to enable the Devon Entity to utilize the applicable Asset) pursuant to which EnLink Midstream would be willing to enter into a binding agreement for the Proposed Transaction. If no ROFO Response is delivered by EnLink Midstream within such 60-day period, then EnLink Midstream shall be deemed to have waived its right of first offer with respect to such Sale Asset, subject to Section 2.2(f) .
 
(c)                                   Unless the ROFO Response is rejected pursuant to written notice delivered by Devon to EnLink Midstream within 30 days of the delivery of the ROFO Response, such ROFO Response shall be deemed to have been accepted by Devon and Devon shall enter into an agreement with EnLink Midstream providing for the consummation of the Proposed Transaction upon the terms set forth in the ROFO Response and, if applicable, EnLink Midstream will enter into an agreement with the Devon Entity setting forth the terms on which EnLink Midstream will provide services to the Devon Entity to enable the Devon Entity to utilize the Asset. Unless otherwise agreed between Devon and EnLink Midstream:
 
(i)                                      the terms of the purchase and sale agreement will contain standard representations, warranties and covenants in respect of the sale of assets in the midstream industry;
 
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(ii)                                   EnLink Midstream will have the right, exercisable at EnLink Midstream’s risk and expense, to make such surveys, tests and inspections of the assets of Access Pipeline Inc. as EnLink Midstream may deem desirable, so long as such surveys, tests or inspections do not damage such assets or interfere with the activities of Devon or other owners or operators of such assets and so long as EnLink Midstream has furnished Devon with evidence that adequate liability insurance is in full force and effect, and the results of any searches, surveys, tests or inspections may give rise to rights mutually agreed between the Parties (e.g. termination rights or purchase price adjustments;
 
(iii)                                the closing date for the purchase of the Sale Assets shall, unless otherwise agreed to by EnLink Midstream and Devon, occur no later than 90 days following (1) receipt by EnLink Midstream of written notice by Devon of its intention to accept the ROFO Response or (2) the deemed acceptance by Devon of the ROFO Response pursuant to Section 2.2(c) ; and
 
(iv)                               neither Devon nor EnLink Midstream shall have any obligation to sell or buy the Sale Assets if any of the material consents referred to in Section 2.1(b) have not been obtained or such sale or purchase is prohibited by Applicable Law.
 
(d)                                  EnLink Midstream and Devon shall cooperate in good faith in obtaining all necessary governmental and other third Person approvals, waivers and consents required for the closing with respect to the Sale Assets.  Any such closing shall be delayed, to the extent required, until the third Business Day following receipt of required governmental approvals or expiration of waiting periods (such as under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or Investment Canada Act); provided , however , that such delay shall not exceed 120 days and, if governmental approvals and waiting periods shall not have been obtained or expired, as the case may be, by such 120th day, then EnLink Midstream shall be deemed to have waived its right of first offer with respect to the Sale Assets described in the Disposition Notice and thereafter neither EnLink Midstream nor Devon shall have any further obligation under this Article II with respect to such Sale Assets unless such Sale Assets again become subject to this Article II pursuant to Section 2.2(f) .
 
(e)                                   If EnLink Midstream has not timely delivered a ROFO Response as specified above with respect to a Proposed Transaction that is subject to a Disposition Notice, Devon shall be free to enter into a Proposed Transaction with any third party on terms and conditions no more favorable to such third party than those set forth in the Disposition Notice. If a ROFO Response with respect to such Proposed Transaction is rejected by Devon, Devon shall be free to enter into a Proposed Transaction with any third party at a price and on terms and conditions which, when taken as a whole, are superior, in the good faith determination of Devon, to those proposed by EnLink Midstream in the ROFO Response, taken as a whole.
 
(f)                                    If a Proposed Transaction with a third party is not consummated as provided in Section 2.2(e) within the later of (A) six months of, as applicable, EnLink Midstream’s failure to timely deliver a ROFO Response with respect to such Proposed Transaction that is subject to a Disposition Notice (and the deemed waiver resulting therefrom) or the rejection by Devon of a ROFO Response with respect to such Proposed Transaction and (B) 10 days after the satisfaction of all governmental approval or filing requirements, then, in
 
4 

 
each case, Devon may not Transfer any Assets described in such Disposition Notice without complying again with the provisions of this Article II if and to the extent then applicable.
 
ARTICLE III
Miscellaneous
 
3.1                                Governing Law .  THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN DELAWARE, AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES TO THE EXTENT THAT SUCH PRINCIPLES WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
 
3.2                                Consent to Jurisdiction .  Each of the Parties irrevocably agrees that any legal action, suit or proceeding with respect to the interpretation and enforcement of this Agreement and the documents referred to in this Agreement, and in respect of the transactions contemplated hereby, including negotiations thereof, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the state of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware, including any applicable appellate court).  Each of the Parties irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts.  Each of the Parties irrevocably waives, and agrees not to assert, as a defense in any legal action, suit or Proceeding for the interpretation or enforcement of this Agreement or of any document referred to in this Agreement, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts.  The Parties consent to and grant to the extent permitted by Applicable Law, any said court jurisdiction over the subject matter of any dispute contemplated by this Section 9.2 and agree that mailing of process or other papers in connection with any such action, suit or proceeding in the manner provided in Section 10.3 or in such other manner as may be permitted by Applicable Law shall be valid and sufficient service thereof.
 
3.3                                Notice .  Any notice or other communication required or permitted under, or otherwise in connection with, this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered in person; (b) upon confirmation of receipt when transmitted by facsimile transmission or electronic mail (but only if followed by transmittal by national overnight courier or by hand for delivery on the next Business Day); or (c) on the next Business Day if transmitted by national overnight courier, in each case addressed as follows:
 
If to Devon to:
 
Devon Energy Corporation
333 West Sheridan Avenue
Oklahoma City, Oklahoma 73102
 
5 

 
Telephone: (405) 228-2800
Facsimile:  (405) 552-1400
Attention:  General Counsel
 
And a copy to (which shall not constitute notice):
 
Vinson & Elkins L.L.P.
1001 Fannin, Suite 2500
Houston, Texas 77007
Telephone: (713) 758-3708
Facsimile: (713) 615-5861
Attention: David P. Oelman and Jeffery B. Floyd
 
If to EnLink Midstream to:
 
EnLink Midstream, LLC
2501 Cedar Springs Rd.
Dallas, Texas 75201
Telephone: (214) 953-9500
Facsimile: (214) 953-9501
Attention:  General Counsel
 
And a copy to (which shall not constitute notice):
 
Baker Botts L.L.P.
2001 Ross Avenue, Suite 700
Dallas, Texas 75201
Telephone: (214) 953-6500
Facsimile: (214) 661-4634
Attention: Douglass M. Rayburn
 
or to such other address as any party shall specify by written notice so given.  Any party to this Agreement may notify any other party of any changes to the address or any of the other details specified in this paragraph; provided, however , that such change shall be effective on the date specified in such notice or five (5) Business Days after the notice is given, whichever is later.
 
3.4                                Entire Agreement .  This Agreement, together with the other agreements and instruments referred to herein, constitutes the entire agreement of the Parties and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter of this Agreement.
 
3.5                                Amendment or Modification .  No amendment or modification of this Agreement shall be valid unless it is in writing and signed by the parties hereto.  No waiver of any provision of this Agreement shall be valid unless it is in writing and signed by the party against whom the waiver is sought to be enforced.  No failure or delay in exercising any right hereunder, and no course of conduct, shall operate as a waiver of any provision of this Agreement.  No single or
 
6 

 
partial exercise of a right hereunder shall preclude further or complete exercise of that right or any other right hereunder.
 
3.6                                Assignment .  No Party shall have the right to assign any of its rights or obligations under this Agreement without the consent of the other Parties hereto; provided that (a) Devon may assign its rights hereunder to another Devon Subsidiary in connection with a Transfer of all or a portion of the Assets to such Devon Subsidiary in accordance with Section 2.1(a) and (b) EnLink Midstream may assign its rights under Article II for any Proposed Transaction to Crosstex Energy, L.P. (to be renamed EnLink Midstream Partners, LP on the date hereof), which shall be a third party beneficiary of this Agreement, if EnLink Midstream determines to not make a ROFO Response in relation to such Proposed Transaction.
 
3.7                                Facsimiles; Counterparts .  Delivery of an executed signature page of this Agreement by facsimile or other customary means of electronic transmission (e.g., .pdf) shall be deemed binding for all purposes hereof, without delivery of an original signature page being thereafter required.  This Agreement may be executed in one or more counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document.
 
3.8                                Severability .  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner to the end that the transactions contemplated by this Agreement be consummated as originally contemplated to the fullest extent possible.
 
3.9                                Further Assurances .  Subject to the terms and conditions of this Agreement, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable under Applicable Law to consummate the transactions contemplated hereby.  Without limiting the generality of the foregoing, each Party, on behalf of itself and its Affiliates, agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.  The Parties will coordinate and cooperate with each other in exchanging such information and assistance as any of the Parties may reasonably request in connection with the foregoing.
 
3.10                         Rights of Non-Managing Members .  The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no Non-Managing Member of EnLink Midstream shall have the right, separate and apart from EnLink Midstream, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement.
 
7 

 
3.11                         Headings .  Headings of the Sections of this Agreement are for convenience of the parties only and shall be given no substantive or interpretative effect whatsoever.  All references in this Agreement to Sections are to Sections of this Agreement unless otherwise stated.
 
[ Remainder of page intentionally left blank .]
 
8 

 
IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the date first written above.

 	ENLINK MIDSTREAM, LLC	
 	 	 	
 	By:	EnLink Midstream Manager, LLC, its sole member	
 	 	 	
 	By:	Devon Gas Services, L.P., its sole member	
 	 	 	
 	By:	Devon Gas Operating, Inc., its general partner	

 	By:	/s/ Darryl G. Smette	
 	Name:	Darryl G. Smette	
 	Title:	Executive Vice President	

 	DEVON ENERGY CORPORATION	

 	By:	/s/ Darryl G. Smette	
 	Name:	Darryl G. Smette	
 	Title:	Executive Vice President, Marketing,	
 	 	Midstream and Supply Chain	

SIGNATURE PAGE TO
FIRST OFFER AGREEMENT

Exhibit 10.7
 
Execution Version
 
Published CUSIP Number: 29290KAA1
 
CREDIT AGREEMENT
 
DATED AS OF MARCH 7, 2014
 
AMONG
 
ENLINK MIDSTREAM, LLC,
AS THE BORROWER,
 
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT, SWING LINE LENDER
AND L/C ISSUER,
 
AND
 
THE OTHER LENDERS PARTY HERETO
 
BANK OF AMERICA MERRILL LYNCH,
CITIGROUP GLOBAL MARKETS INC.,
WELLS FARGO SECURITIES, LLC,
RBC CAPITAL MARKETS, AND
BMO CAPITAL MARKETS CORP.
AS JOINT LEAD ARRANGERS
 
CITIBANK, N.A., AND
WELLS FARGO BANK, NATIONAL ASSOCIATION
AS CO-SYNDICATION AGENTS
 
ROYAL BANK OF CANADA, AND
BANK OF MONTREAL
AS CO-DOCUMENTATION AGENTS

 
TABLE OF CONTENTS

 	 	Page	
 	 	 	
ARTICLE I.	DEFINITIONS AND ACCOUNTING TERMS	1	
 	 	 	
1.01.	Defined Terms	1	
1.02.	Other Interpretive Provisions	30	
1.03.	Accounting Terms	31	
1.04.	Rounding	32	
1.05.	Times of Day	32	
1.06.	Letter of Credit Amounts	32	
 	 	 	
ARTICLE II.	THE COMMITMENTS AND CREDIT EXTENSIONS	32	
 	 	 	
2.01.	Committed Loans	32	
2.02.	Borrowings, Conversions and Continuations of Committed Loans	32	
2.03.	Letters of Credit	34	
2.04.	Swing Line Loans	43	
2.05.	Prepayments	46	
2.06.	Termination or Reduction of Commitments	47	
2.07.	Repayment of Loans	48	
2.08.	Interest	48	
2.09.	Fees	49	
2.10.	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate	49	
2.11.	Evidence of Debt	50	
2.12.	Payments Generally; Administrative Agent’s Clawback	50	
2.13.	Sharing of Payments by Lenders	52	
2.14.	Increase in Commitments	53	
2.15.	Cash Collateral	54	
2.16.	Defaulting Lenders	55	
 	 	 	
ARTICLE III.	TAXES, YIELD PROTECTION AND ILLEGALITY	58	
 	 	 	
3.01.	Taxes	58	
3.02.	Illegality	62	
3.03.	Inability to Determine Rates	63	
3.04.	Increased Costs; Reserves on Eurodollar Rate Loans	63	
3.05.	Compensation for Losses	65	
3.06.	Mitigation Obligations; Replacement of Lenders	66	
 
i 

 
TABLE OF CONTENTS
(CONTINUED)

 	 	Page	
 	 	 	
3.07.	Survival	66	
 	 	 	
ARTICLE IV.	CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	66	
 	 	 	
4.01.	Conditions of Initial Credit Extension	66	
4.02.	Conditions to all Credit Extensions	69	
 	 	 	
ARTICLE V.	REPRESENTATIONS AND WARRANTIES	69	
 	 	 	
5.01.	Existence, Qualification and Power	69	
5.02.	Authorization; No Contravention	70	
5.03.	Governmental Authorization; Other Consents	70	
5.04.	Binding Effect	70	
5.05.	Financial Statements; No Material Adverse Effect	71	
5.06.	Litigation	71	
5.07.	No Default	71	
5.08.	Ownership of Property; Liens	71	
5.09.	Environmental Compliance	72	
5.10.	Insurance	72	
5.11.	Taxes	72	
5.12.	ERISA Compliance	73	
5.13.	Margin Regulations; Investment Company Act	73	
5.14.	Disclosure	74	
5.15.	Compliance with Laws	74	
5.16.	Solvency	74	
5.17.	Collateral Documents	74	
5.18.	OFAC	74	
 	 	 	
ARTICLE VI.	AFFIRMATIVE COVENANTS	75	
 	 	 	
6.01.	Financial Statements	75	
6.02.	Certificates; Other Information	75	
6.03.	Notices	77	
6.04.	Payment of Taxes, Etc.	77	
6.05.	Preservation of Existence, Etc.	78	
6.06.	Maintenance of Properties	78	
6.07.	Maintenance of Insurance	78	
 
ii 

 
TABLE OF CONTENTS
(CONTINUED)

 	 	Page	
 	 	 	
6.08.	Compliance with Laws	78	
6.09.	Books and Records	78	
6.10.	Inspection Rights	78	
6.11.	Use of Proceeds	79	
6.12.	Additional Guarantors	79	
6.13.	Further Assurances	80	
6.14.	Designation of Subsidiaries	80	
6.15.	Maintenance of Control of EnLink MLP and EnLink Holdings	82	
 	 	 	
ARTICLE VII.	NEGATIVE COVENANTS	82	
 	 	 	
7.01.	Liens	82	
7.02.	Investments	84	
7.03.	Indebtedness	85	
7.04.	Fundamental Changes	86	
7.05.	Dispositions	87	
7.06.	Restricted Payments	88	
7.07.	Change in Nature of Business	88	
7.08.	Transactions with Affiliates	89	
7.09.	Burdensome Agreements	89	
7.10.	Use of Proceeds	90	
7.11.	Amendment of Organizational Documents	91	
7.12.	Limitation on EnLink GP’s Activities	91	
7.13.	Financial Covenants	91	
 	 	 	
ARTICLE VIII.	EVENTS OF DEFAULT AND REMEDIES	91	
 	 	 	
8.01.	Events of Default	91	
8.02.	Remedies Upon Event of Default	94	
8.03.	Application of Funds	95	
 	 	 	
ARTICLE IX.	ADMINISTRATIVE AGENT	96	
 	 	 	
9.01.	Appointment and Authority	96	
9.02.	Rights as a Lender	97	
9.03.	Exculpatory Provisions	97	
9.04.	Reliance by Administrative Agent	98	
 
iii 

 
TABLE OF CONTENTS
(CONTINUED)

 	 	Page	
 	 	 	
9.05.	Delegation of Duties	98	
9.06.	Resignation of Administrative Agent	99	
9.07.	Non-Reliance on Administrative Agent and Other Lenders	100	
9.08.	No Other Duties, Etc.	100	
9.09.	Administrative Agent May File Proofs of Claim	100	
9.10.	Collateral and Guaranty Matters	102	
9.11.	Secured Cash Management Agreements and Secured Hedge Agreements	103	
 	 	 	
ARTICLE X.	MISCELLANEOUS	103	
 	 	 	
10.01.	Amendments, Etc.	103	
10.02.	Notices; Effectiveness; Electronic Communication	105	
10.03.	No Waiver; Cumulative Remedies; Enforcement	107	
10.04.	Expenses; Indemnity; Damage Waiver	108	
10.05.	Payments Set Aside	110	
10.06.	Successors and Assigns	110	
10.07.	Treatment of Certain Information; Confidentiality	115	
10.08.	Right of Setoff	116	
10.09.	Interest Rate Limitation	116	
10.10.	Counterparts; Integration; Effectiveness	116	
10.11.	Survival of Representations and Warranties	117	
10.12.	Severability	117	
10.13.	Replacement of Lenders	117	
10.14.	Governing Law; Jurisdiction; Etc.	118	
10.15.	Waiver of Jury Trial	119	
10.16.	No Advisory or Fiduciary Responsibility	119	
10.17.	Electronic Execution of Assignments and Certain Other Documents	120	
10.18.	USA PATRIOT Act	120	
10.19.	Time of the Essence	120	
10.20.	Keepwell	120	
10.21.	Entire Agreement	121	
 
iv 

 
SCHEDULES

2.01	 	Commitments and Applicable Percentages	
5.06	 	Litigation	
5.08	 	Equity Interests	
5.12	 	ERISA	
5.15	 	Compliance with Laws	
7.02	 	Investments	
7.09	 	Burdensome Agreements	
10.02	 	Administrative Agent’s Office; Certain Addresses for Notices	
 
EXHIBITS

Form of	
A	Committed Loan Notice	
B	Swing Line Loan Notice	
C	Note	
D	Compliance Certificate	
E-1	Assignment and Assumption	
E-2	Administrative Questionnaire	
F	Guaranty	
G	Forms of U.S. Tax Compliance Certificates	
 
v 

 
CREDIT AGREEMENT
 
This CREDIT AGREEMENT (“ Agreement ”) is entered into as of March 7, 2014, among ENLINK MIDSTREAM, LLC, a Delaware limited liability company (the “ Borrower ”), each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, CITIBANK, N.A. and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Co-Syndication Agents, and ROYAL BANK OF CANADA and BANK OF MONTREAL, as Co-Documentation Agents.
 
The Borrower has requested that the Lenders provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
 
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
 
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
 
1.01.       Defined Terms.   As used in this Agreement, the following terms shall have the meanings set forth below:
 
“ Acacia ” means Acacia Natural Gas Corp I, Inc., a Delaware corporation.
 
“ Acquired Indebtedness ” means, as to any Person, Indebtedness of any other Person existing at the time such other Person is merged with or becomes a Subsidiary of such specified Person (regardless of the form of the applicable transaction by which such Person becomes a Subsidiary), and not incurred in contemplation of such acquisition.
 
“ Acquisition ” means the direct or indirect purchase or acquisition, whether in one or more related transactions, by the Borrower or any of its Subsidiaries of any Person or group of Persons (or any equity interest in any Person or group of Persons) or any related group of assets, liabilities, or securities of any Person or group of Persons, other than acquisitions of Property in the ordinary course of business.
 
“ Acquisition Period ” means a period commencing with the date on which payment of the purchase price for a Specified Acquisition is made and ending on the earlier of (a) the last day of the third fiscal quarter following the fiscal quarter in which such payment is made, and (b) the date on which the Borrower notifies the Administrative Agent that it desires to end the Acquisition Period for such Specified Acquisition; provided , that , (i) once any Acquisition Period is in effect, the next Acquisition Period may not commence until the termination of such Acquisition Period then in effect and (ii) the Borrower may not terminate an Acquisition Period under clause (b) above unless, after giving effect to the termination of such Acquisition Period (and before giving effect to any subsequent Acquisition Period), the Borrower shall be in compliance with Section 7.13 and no Default or Event of Default shall have occurred and be continuing.

 
“ Administrative Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
 
“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
 
“ Administrative Questionnaire ” means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.
 
“ Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
 
“ Aggregate Commitments ” means the Commitments of all the Lenders.
 
“ Agreement ” means this Credit Agreement.
 
“ Applicable Percentage ” means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time, subject to adjustment as provided in Section 2.16 .  If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
 
“ Applicable Rate ” means (a) from the Closing Date to the date on which the Administrative Agent receives a Compliance Certificate pursuant to Section 6.02(a)  for the fiscal quarter ending March 31, 2014, the applicable percentage per annum set forth below determined by reference to the Consolidated Leverage Ratio as set forth in the Compliance Certificate delivered on the Closing Date pursuant to Section 4.01(a)(vii) , and (b) thereafter, the applicable percentage per annum set forth below determined by reference to the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(a) :
 
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Pricing
Level	 	Consolidated
Leverage Ratio	 	Applicable Rate for
Base Rate Loans (in
basis points)	 	Applicable Rate for
Eurodollar Rate
Loans and Letters of
Credit (in basis
points)	 	Applicable Rate
for
Commitment
Fee (in basis
points)	 	
1	 	Less than 3.00:1.00	 	75	 	175	 	25	 	
2	 	Greater than or equal to 3.00:1.00, but less than 3.50:1.00	 	100	 	200	 	30	 	
3	 	Greater than or equal to 3.50:1.00, but less than 4.00:1.00	 	125	 	225	 	32.5	 	
4	 	Greater than or equal to 4.00:1.00	 	150	 	250	 	35	 	
 
Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(a) ; provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing Level 4 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the date on which such Compliance Certificate is delivered.
 
Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b) .
 
“ Approved Consultant’s Report ” means a report by Barnes & Click, Inc., Purvin & Gertz, Oil & Gas Advisors, Inc. or another consultant selected by the Borrower and reasonably acceptable to the Administrative Agent confirming that the assumptions used by the Borrower in the adjustments to Consolidated EBITDA in connection with any Acquisition are reasonable.
 
“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
 
“ Arrangers ” means Banc of America Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Wells Fargo Securities, LLC, RBC Capital Markets, and BMO Capital Markets Corp., each in its capacity as joint lead arranger and active or passive book manager, as applicable.
 
“ 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 10.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent.
 
“ Attributable Indebtedness ” means, on any date, (a) in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that
 
3 

 
would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease.
 
“ Audited Financial Statements ” means the audited consolidated balance sheet of CEI and its Subsidiaries for the fiscal year ended December 31, 2013 , and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of CEI and its Subsidiaries, including the notes thereto.
 
“ Availability Period ” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.06 , and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02 .
 
“ Bank of America ” means Bank of America, N.A. and its successors.
 
“ Base Rate ” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “ prime rate ”, and (c) the Eurodollar Rate plus 1.00%.  The “ prime rate ” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
 
“ Base Rate Committed Loan ” means a Committed Loan that is a Base Rate Loan.
 
“ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.
 
“ Borrower ” has the meaning specified in the introductory paragraph hereto.
 
“ Borrower Materials ” has the meaning specified in Section 6.02 .
 
“ Borrowing ” means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
 
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day.
 
“ Capital Lease ” means any lease (other than an Operating Lease) of any property by the Borrower or any of its Restricted Subsidiaries, as lessee, that should, in accordance with GAAP, be classified and accounted for as a capital lease on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries.
 
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“ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers or the Lenders, as collateral for L/C Obligations, payment Obligations in respect of Swing Line Loans, or obligations of the Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the Administrative Agent and the L/C Issuer or Swing Line Lender benefitting from such collateral shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Administrative Agent and the L/C Issuer or the Swing Line Lender (as applicable). “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
 
“ 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 with a Loan Party, is a Lender, or an Affiliate of a Lender, in its capacity as a party to a Cash Management Agreement, and any Lender or Affiliate of a Lender that was a Lender or an Affiliate of a Lender on the Closing Date that is also a party to a Cash Management Agreement with a Loan Party, provided , however , that if such Person ceases to be a Lender or an Affiliate of a Lender, such Person shall only be a Cash Management Bank with respect to those certain Cash Management Agreements executed during such time such Person was a Lender or an Affiliate of a Lender, such agreements not to extend past their written terms.
 
“ CEI ” means Crosstex Energy, Inc., a Delaware corporation.
 
“ 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, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
 
“ Change of Control ” means an event or series of events by which:
 
(a)           any “ person ” or “ group ” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Qualifying Owners, becomes the “ beneficial owner ” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “ beneficial ownership ” of all securities that such
 
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person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “ option right ”)), directly or indirectly, of 50% or more of the equity securities of EnLink Manager entitled to vote for members of the board of directors or equivalent governing body of EnLink Manager on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);
 
(b)           during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of EnLink Manager cease to be composed of individuals appointed by the Qualifying Owners;
 
(c)           EnLink Manager ceases to be the managing member of the Borrower; or
 
(d)           EnLink Manager ceases to be a Subsidiary of Devon.
 
“ Closing Date ” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 .
 
“ Code ” means the Internal Revenue Code of 1986.
 
“ Collateral ” means all Collateral as defined in the Pledge Agreement and each other Security Document executed by any Loan Party granting a Lien in the property described therein as security for the Obligations.
 
“ Combination ” means the business combination of EnLink MLP and EnLink Holdings pursuant to the Contribution Agreement (as defined in the Merger Agreement).
 
“ Commitment ” means, as to each Lender, its obligation to (a) make Committed Loans to the Borrower pursuant to Section 2.01 , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
 
“ Commitment Increase ” has the meaning specified in Section 2.14(a) .
 
“ Committed Borrowing ” means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01 .
 
“ Committed Loan ” has the meaning specified in Section 2.01 .
 
“ Committed Loan Notice ” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a) , which, if in writing, shall be substantially in the form of Exhibit A .
 
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“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq .), as amended from time to time, and any successor statute.
 
“ Compliance Certificate ” means a certificate substantially in the form of Exhibit D .
 
“ Consolidated EBITDA ” means, for any period, for the Borrower and its Restricted Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus, without duplication, (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Borrower and its Restricted Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) non-cash items of the Borrower and its Restricted Subsidiaries reducing such Consolidated Net Income, (v) other non-recurring items of the Borrower and its Restricted Subsidiaries reducing such Consolidated Net Income, and (vi) without duplication, the Transaction Costs properly allocated to such period, if applicable, and minus (b) the following to the extent included in calculating such Consolidated Net Income:  (i) Federal, state, local and foreign income tax credits of the Borrower and its Restricted Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income for such period; provided, however, notwithstanding the foregoing, (A) net income attributable to Subsidiaries that are not Restricted Subsidiaries (including EnLink MLP, EnLink Holdings and the other Unrestricted Subsidiaries) shall not be considered in calculating Consolidated EBITDA, but actual cash distributions to the Borrower or any Restricted Subsidiary by such Subsidiaries that are not Restricted Subsidiaries (including EnLink MLP, EnLink Holdings and the other Unrestricted Subsidiaries) shall be included in calculating Consolidated EBITDA and (B) actual cash distributions to the Borrower and its Restricted Subsidiaries by any Persons that are not Subsidiaries shall be included in calculating Consolidated EBITDA.
 
Consolidated EBITDA shall be calculated, on a pro forma basis, after giving effect to, without duplication, any permitted Material Acquisition occurring during the period commencing on the first day of such period to and including the date of such Material Acquisition (the “ Reference Period ”), as if such Material Acquisition occurred on the first day of the Reference Period.  In making the calculation contemplated by the preceding sentence, Consolidated EBITDA attributable to such acquired Person or such acquired Property shall be determined in good faith by the Borrower based on reasonable assumptions and shall take into account pro forma expenses that would have been incurred by the Borrower and its Subsidiaries in the operation of such acquired Person or acquired Property, during such period computed on the basis of personnel expenses for employees retained or to be retained by the Borrower and its Subsidiaries in the operation of such acquired Person or acquired Property and non-personnel costs and expenses incurred by the Borrower and its Subsidiaries in the operation of the Borrower’s and its Subsidiaries’ business at similarly situated facilities of the Borrower or any of its Subsidiaries; provided, however, that such pro forma calculations shall be reasonably acceptable to the Administrative Agent if the Borrower does not provide the Administrative Agent with an Approved Consultant’s Report supporting such pro forma calculations.
 
Consolidated EBITDA shall be calculated by deducting, to the extent previously included in the calculation for any relevant period, Consolidated EBITDA attributable to a particular asset subject to a Material Disposition occurring during the period commencing on the first day of
 
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such period to and including the date of such Material Disposition (the “ Disposition Reference Period ”), as if such Material Disposition occurred on the first day of the Disposition Reference Period.
 
For purposes of calculating the Consolidated Leverage Ratio, Consolidated EBITDA shall be calculated as follows:
 
(i)             Consolidated EBITDA for the four-fiscal quarter period ending March 31, 2014 shall be equal to the sum of (x) $52.5 million and (y) actual cash distributions received by the Borrower, CEI or any other Restricted Subsidiary from EnLink MLP during such fiscal quarter, multiplied by four;
 
(ii)            Consolidated EBITDA for the four-fiscal quarter period ending June 30, 2014 shall be equal to Consolidated EBITDA for such fiscal quarter, multiplied by four;
 
(iii)           Consolidated EBITDA for the four-fiscal quarter period ending September 30, 2014 shall be equal to Consolidated EBITDA for the two fiscal quarter period then ended, multiplied by two;
 
(iv)           Consolidated EBITDA for the four-fiscal quarter period ending December  31, 2014 shall be equal to Consolidated EBITDA for the three fiscal quarter period then ended, multiplied by 4/3; and
 
(v)            Consolidated EBITDA for each four-fiscal quarter period ending thereafter shall be equal to Consolidated EBITDA for the four-fiscal quarter period then ended.
 
“ Consolidated Funded Indebtedness ” means, as of any date of determination, for the Borrower and its Restricted Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including outstanding Loans) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all matured obligations then owed under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments ( i.e. , excluding letters of credit, bankers’ acceptances, bank guaranties, surety bonds and similar instruments that have not been drawn upon), (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness in respect of Capital Leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the Borrower or any Restricted Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or a Restricted Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Borrower or such Restricted Subsidiary.
 
“ Consolidated Interest Charges ” means, for any period, for the Borrower and its Restricted Subsidiaries on a consolidated basis, the sum of (a) all cash interest and premium payments of the Borrower and its Restricted Subsidiaries in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in
 
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each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent expense of the Borrower and its Restricted Subsidiaries with respect to such period under Capital Leases that is treated as interest in accordance with GAAP; provided that Transaction Costs shall be excluded from Consolidated Interest Charges to the extent that such Transaction Costs would have otherwise been included in the calculation of Consolidated Interest Charges.
 
“ Consolidated Interest Coverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such date to (b) Consolidated Interest Charges for such period; provided , that for purposes of any determination of the Consolidated Interest Coverage Ratio with respect to the fiscal quarter ending on (i) March 31, 2014, the Consolidated Interest Coverage Ratio shall be the ratio of (A) an amount equal to the sum of (x) $52.5 million and (y) actual cash distributions received by the Borrower, CEI or any other Restricted Subsidiary from EnLink MLP during such fiscal quarter, to (B) Consolidated Interest Charges for such fiscal quarter, (ii) June 30, 2014, the Consolidated Interest Coverage Ratio shall be the ratio of (A) Consolidated EBITDA for such fiscal quarter to (B) Consolidated Interest Charges for such fiscal quarter, (iii) September 30, 2014, the Consolidated Interest Coverage shall be the ratio of (A) Consolidated EBITDA for the two fiscal quarter period then ended to (B) Consolidated Interest Charges the two fiscal quarter period then ended, and (iv) December 31, 2014, the Consolidated Interest Coverage Ratio shall be the ratio of (A) Consolidated EBITDA for the three fiscal quarter period then ended to (B) Consolidated Interest Charges for the three fiscal quarter period then ended.
 
“ Consolidated Leverage Ratio ” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.
 
“ Consolidated Net Income ” means, for any period, for the Borrower and its Restricted Subsidiaries on a consolidated basis, the net income of the Borrower and its Restricted Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period.
 
“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
 
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “ Controlling ” and “ Controlled ” have meanings correlative thereto.
 
“ Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
 
“ Debt Incurrence ” means any issuance or incurrence by the Borrower or any of its Restricted Subsidiaries of any Indebtedness after the Closing Date other than Indebtedness permitted pursuant to Section 7.03 .
 
“ Debt Incurrence Proceeds ” means, with respect to any Debt Incurrence, all cash and cash equivalents received by any Loan Party from such Debt Incurrence after payment of, or
 
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provision for, all reasonable underwriter fees and expenses, original issue discount, SEC and blue sky fees, printing costs, reasonable fees and expenses of accountants, lawyers and other professional advisors, brokerage commissions and other reasonable out-of-pocket fees and expenses actually incurred in connection with such Debt Incurrence; provided that, an original issue discount shall not reduce the amount of such Debt Incurrence Proceeds unless such discount is due and payable at or immediately following the closing of such Debt Incurrence and such discount has not already been taken into account to reduce the amount of proceeds received by such Loan Party from such Debt Incurrence.
 
“ Debt Rating ” means, as of any date of determination, the rating as determined by either S&P or Moody’s of the Borrower’s (a) non-credit-enhanced, senior unsecured long-term debt or (b) corporate credit.
 
 “ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
 
“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
 
“ Default Rate ” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided , however , that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.
 
“ Defaulting Lender ” means, subject to Section 2.16(b) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the
 
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Borrower that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b) ) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.
 
“ Designated Jurisdiction ” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
 
“ Devon ” means Devon Energy Corporation, a Delaware corporation.
 
“ Disposition ” or “ Dispose ” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
 
“ Dollar ” and “ $ ” mean lawful money of the United States.
 
“ Domestic Subsidiary ” means any Restricted Subsidiary that is organized under the laws of any political subdivision of the United States.
 
“ E2 ” means E2 Energy Services, LLC, a Delaware limited liability company.
 
“ E2 Appalachian ” means E2 Appalachian Compression, LLC, a Delaware limited liability company.
 
“ Eligible Assignee ” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) , and (v) (subject to such consents, if any, as may be required under Section 10.06(b)(iii) ).
 
“ EnLink GP ” means EnLink Midstream GP, LLC (f/k/a Crosstex Energy GP, LLC), a Delaware limited liability company, and its successors and assigns as general partner of EnLink
 
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MLP or as the business entity with the ultimate authority to manage the business and operations of EnLink MLP.
 
 “ EnLink Holdings ” means EnLink Midstream Holdings, LP (f/k/a Devon Midstream Holdings, L.P.), a Delaware limited partnership.
 
“ EnLink Holdings GP ” means EnLink Midstream Holdings GP, LLC (f/k/a Devon Midstream Holdings GP, L.L.C.), a Delaware limited liability company, and its successors and assigns as general partner of EnLink Holdings or as the business entity with the ultimate authority to manage the business and operations of EnLink Holdings; provided that such Person must be a Subsidiary of the Borrower.
 
“ EnLink Manager ” means EnLink Midstream Manager, LLC, a Delaware limited liability company, and its successors and assigns as managing member of the Borrower or as the business entity with the ultimate authority to manage the business and operations of the Borrower.
 
“ EnLink MLP ” means EnLink Midstream Partners, LP (f/k/a Crosstex Energy, L.P.), a Delaware limited partnership.
 
“ Environmental Laws ” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
 
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
 
“ Equity Collateral ” has the meaning set forth in Section 6.12(b) .
 
“ Equity Interests ” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
 
“ ERISA ” means the Employee Retirement Income Security Act of 1974.
 
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“ ERISA Affiliate ” means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
 
“ ERISA Event ” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) notification that any Multiemployer Plan has been determined to be a plan in endangered or critical status within the meaning of Sections 431 and 432 of the Code or Sections 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon  the Borrower or any ERISA Affiliate.
 
“ Eurodollar Rate ” means:
 
(a)           for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to (i) the London Interbank Offered Rate (“ LIBOR ”) or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or, (ii) if such rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two London Banking Days prior to the commencement of such Interest Period; and
 
(b)           for any rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to (i) LIBOR, at or about 11:00 a.m., London time determined two London Banking Days prior to such date for Dollar deposits being with a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made or maintained and with a term equal to one month would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at the date and time of determination.
 
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provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied to the applicable Interest Period in a manner consistent with market practice; provided , further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
 
“ Eurodollar Rate Loan ” means a Committed Loan that bears interest at a rate based on clause (a) of the definition of “ Eurodollar Rate ”.
 
“ Event of Default ” has the meaning specified in Section 8.01 .
 
“ Excluded CFC ” means any Subsidiary of the Borrower that (i) is a “controlled foreign corporation” under Section 957 of the Code and (ii) does not own assets that were previously owned by a Loan Party and constituted Collateral when owned by such Loan Party.
 
 “ Excluded Swap Obligation ” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 10.20 and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.
 
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to any Recipient  or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment or otherwise under a Loan Document pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 3.06(b) ) or becomes  a party to this Agreement or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a) or (c)(i) , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) , (d) any U.S. federal withholding Taxes
 
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imposed pursuant to FATCA, and (e) any U.S. Federal backup withholding Tax imposed pursuant to Section 3406 of the Code.
 
“ Existing Credit Agreement ” means that certain Credit Agreement dated as of March 5, 2013 among the XTXI Capital LLC, Citibank, N.A., as administrative agent, and a syndicate of lenders, as amended or otherwise modified.
 
“ FASB ASC ” means the Accounting Standards Codification of the Financial Accounting Standards Board.
 
“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements that implement or modify the foregoing (together with any law implementing such agreements).
 
“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
 
“ Fee Letter ” means (a) the Active Arranger Fee Letter — GP, dated January 15, 2014, among the Borrower, the Administrative Agent, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citibank, N.A., Citigroup Global Markets Inc., Wells Fargo Bank, National Association, and Wells Fargo Securities, LLC, (b) the Passive Arranger Fee Letter — GP, dated January 15, 2014, among the Borrower, RBC Capital Markets and BMO Capital Markets Corp., and (c) the Administrative Agent Fee Letter - GP, dated January 15, 2014, among the Borrower and the Administrative Agent.
 
“ Forecast Financial Statements ” means forecasts prepared by management of the Borrower, in form reasonably satisfactory to the Administrative Agent, of leverage metrics and distributable cash flow of the Borrower and its Restricted Subsidiaries (a) on a quarterly basis for each fiscal quarter in 2014 ending after the Closing Date and (b) on an annual basis for fiscal years 2015 and 2016.
 
“ Foreign Lender ” means a Lender that is not a U.S. Person.
 
“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.
 
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“ Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
 
“ Fund ” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
 
“ GAAP ” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
 
“ Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
 
“ Guarantee ” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, so long as such Indebtedness or other obligation has not been guaranteed or assumed by such Person and is non-recourse to such Person other than to the assets subject to such Lien (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien) but limited to the fair market value of the assets securing such Indebtedness or other obligations.  The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee
 
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is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “ Guarantee ” as a verb has a corresponding meaning.
 
“ Guarantors ” means, collectively, (a) CEI and Acacia, as of the Closing Date, and each other Restricted Subsidiary of the Borrower that executes a Guaranty pursuant to Section 6.12 , in each case until such Person is released from the Guaranty pursuant to the terms of this Agreement and (b) with respect to Obligations owing by any Loan Party (other than the Borrower) under any Secured Hedge Agreement or any Secured Cash Management Agreement, the Borrower.
 
“ Guaranty ” means, collectively, the Guaranty made by the Guarantors in favor of the Administrative Agent and the Secured Parties, substantially in the form of Exhibit F , together with each other guaranty and guaranty supplement delivered pursuant to Section 6.12 .
 
“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
 
“ Hedge Bank ” means any Person that, at the time it enters into a Swap Contract with any Loan Party, is a Lender or any Affiliate of a Lender, in its capacity as a party to such Swap Contract, and any Lender or Affiliate of a Lender that was a Lender or an Affiliate of a Lender on the Closing Date that is also a party to a Secured Hedge Agreement with any Loan Party provided, however, that if such Person ceases to be a Lender or an Affiliate of a Lender, such Person shall only be a Hedge Bank to the extent that obligations under the Swap Contract arise from transactions under such individual Swap Contract (and not the master agreement between such parties) entered into at or prior to the time such Person was a Lender or Affiliate of a Lender hereunder, without giving effect to any extension, increases or modifications thereof which are made after such Person ceases to be a Lender or Affiliate of a Lender hereunder.
 
“ IFRS ” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under or referred to herein.
 
“ Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
 
(a)           all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
 
(b)           all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
 
(c)           net obligations of such Person under any Swap Contract;
 
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(d)           all obligations (excluding earnout obligations that do not constitute indebtedness in accordance with GAAP) of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);
 
(e)           indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), but limited to the value of such property securing such indebtedness if such indebtedness has not been guaranteed or assumed by such Person and is non- recourse to such Person other than to the assets subject to such Lien;
 
(f)            Capital Leases and Synthetic Lease Obligations;
 
(g)           all mandatory obligations of such Person to purchase, redeem, retire, or defease any Equity Interest in such Person or any other Person prior to one year after the Maturity Date, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and
 
(h)           all Guarantees of such Person in respect of any of the foregoing.
 
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.  The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.  The amount of any Capital Lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
 
“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document (other than any payment relating to (i) any Secured Cash Management Agreement or Secured Hedge Agreement or (ii) any obligation thereunder or with respect thereto) and (b) to the extent not otherwise described in (a), Other Taxes.
 
“ Indemnitees ” has the meaning specified in Section 10.04(b) .
 
“ Information ” has the meaning specified in Section 10.07 .
 
“ Interest Payment Date ” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date.
 
“ Interest Period ” means as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower
 
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in its Committed Loan Notice, or, subject to availability, such other period that is twelve months or less requested by the Borrower and consented to by all the Lenders; provided that:
 
(i)            any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
 
(ii)           any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
 
(iii)          no Interest Period shall extend beyond the Maturity Date.
 
“ Investment ” means, as to any Person, any direct or indirect acquisition or investment made or held by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit; provided that any designation of an Unrestricted Subsidiary shall be deemed to constitute an Investment in such Unrestricted Subsidiary in an amount equal to the value of the assets owned by such Unrestricted Subsidiary at the time of its designation and any assets contributed to such Unrestricted Subsidiary in connection with such designation. For purposes of covenant compliance, the amount of any Investment shall be the original cost of such Investment, minus the amount of any portion of such Investment repaid to the investor as a dividend, repayment of loan or advance, release or discharge of a guarantee or other obligation or other transfer of property or return of capital, as the case may be, but without any other adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment or interest earned on such Investment.  In determining the amount of any Investment involving a transfer of property other than cash, such property shall be valued at its fair market value at the time of such transfer.
 
“ Investment Grade Event ” means the earlier to occur of (a) the Borrower obtaining a Debt Rating of Baa3 or better from Moody’s and BB+ or better from S&P, and (b) the Borrower obtaining a Debt Rating of BBB- or better from S&P and Ba1 or better from Moody’s.
 
“ IRS ” means the United States Internal Revenue Service.
 
“ ISP ” means, with respect to any Letter of Credit, the “ International Standby Practices 1998 ” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
 
“ Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer
 
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and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
 
“ Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
 
“ L/C Advance ” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
 
“ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed Borrowing.
 
“ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
 
“ L/C Issuer ” means, collectively, (a) Bank of America, Citibank, N.A., and Wells Fargo Bank, National Association, each in its individual capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder and (b) any other Lender appointed as a replacement or additional “L/C Issuer” pursuant to the immediately succeeding sentence.  The Administrative Agent may, with the consent of the Borrower and the Lender in question in its sole discretion, or the Borrower may, with the consent of the Lender in question in its sole discretion and notice to the Administrative Agent, appoint any Lender hereunder as an L/C Issuer in place of or in addition to the L/C Issuers listed in clause (a).
 
“ L/C Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 .  For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “ outstanding ” in the amount so remaining available to be drawn.
 
“ Lender ” has the meaning specified in the introductory paragraph hereto and, unless the context requires otherwise, includes the Swing Line Lender.
 
“ Lender Parties ” means the Administrative Agent, L/C Issuer and all Lenders.
 
“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
 
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“ Letter of Credit ” means any standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder.
 
“ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
 
“ Letter of Credit Expiration Date ” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
 
“ Letter of Credit Fee ” has the meaning specified in Section 2.03(h) .
 
“ Letter of Credit Sublimit ” means an amount equal to $125,000,000.  The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.
 
“ Lien ” means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
 
“ Loan ” means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.
 
“ Loan Documents ” means this Agreement, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15 of this Agreement, the Fee Letter, the Guaranty, and the Security Documents.
 
“ Loan Parties ” means, collectively, the Borrower and each Guarantor.
 
“ London Banking Day ” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
 
“ Material Acquisition ” means an Acquisition having an aggregate fair market value greater than $15,000,000.
 
“ Material Adverse Effect ” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), or financial condition of the Borrower, its Restricted Subsidiaries and the Unrestricted Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or the Lenders under any Loan Document, or of the ability of any Loan Party to perform its payment obligations or any other material obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.
 
“ Material Disposition ” means any one or more related transactions pursuant to which the Borrower or any of its Restricted Subsidiaries Disposes of assets (other than issuances of Equity
 
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Interests by the Borrower and Dispositions of assets in the ordinary course of business) to a third party, which Dispositions have an aggregate fair market value greater than $15,000,000.
 
“ Material Restricted Subsidiary ” means any Restricted Subsidiary of the Borrower whose total assets, as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 6.01(a)  or Section 6.01(b) , represent at least 10% of the total assets of the Borrower and its Restricted Subsidiaries, as of such date of determination, on a consolidated basis, but excluding the assets (but not equity value) of the Unrestricted Subsidiaries.
 
“ Material Subsidiary ” means any Subsidiary of the Borrower whose total assets, as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 6.01(a)  or Section 6.01(b) , represent at least 10% of the total assets of the Borrower and its Subsidiaries, as of such date of determination, on a consolidated basis.
 
“ Maturity Date ” means  March 7, 2019; provided , however , that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
 
“ Merger Agreement ” means the Agreement and Plan of Merger dated as of October 21, 2013 by and among Devon, Devon Gas Services, L.P., Acacia, CEI, the Borrower, Boomer Merger Sub, Inc. and Rangers Merger Sub, Inc.
 
“ Minimum Collateral Amount ” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 100% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time plus the amount of all fees, costs and charges described in Section 2.03(i)  for each outstanding Letter of Credit scheduled to be paid through the expiry date of such Letter of Credit, and (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.15(a)(i), (a)(ii) or (a)(iii) , an amount equal to 100% of the Outstanding Amount of all LC Obligations plus the amount of all fees, costs and charges described in Section 2.03(i)  for each outstanding Letter of Credit scheduled to be paid through the expiry date of such Letter of Credit.
 
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.
 
“ Multiemployer Plan ” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
 
“ Multiple Employer Plan ” means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
 
“ Net Cash Proceeds ” means in connection with any Disposition, the proceeds thereof in the form of cash and cash equivalents (including any such proceeds received by way of deferred
 
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payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise, but only as and when received) of such Disposition, net of attorneys’ fees, accountants’ fees, investment banking fees and insurance consultant fees and other customary fees, expenses and other amounts, in each case incurred in connection therewith and net of Taxes paid (including by means of withholding) or reasonably estimated to be payable as a result thereof, including any Taxes paid or reasonably estimated to be payable as a result of any gain recognized in connection therewith.
 
“ Non-Consenting Lender ” means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 10.01 and (ii) has been approved by the Required Lenders.
 
“ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.
 
“ Note ” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C .
 
“ Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that (i) the Obligations shall exclude any Excluded Swap Obligations, and (ii) from and after the occurrence of any Investment Grade Event and the release of all Guaranties and Liens pursuant to the terms of this Agreement in connection with such Investment Grade Event, the Obligations shall exclude all debts, liabilities, obligations, covenant and duties arising under or with respect to any Secured Cash Management Agreement or Secured Hedge Agreement.
 
“ OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury.
 
“ Operating Lease ” means (i) an operating lease under GAAP, (ii) any lease that was treated as an operating lease under GAAP at the time it was entered into that later becomes a capital lease as a result of a change in GAAP during the life of such lease, including any renewals, and (iii) any lease entered into after the date of this Agreement that would have been considered an operating lease under the provisions of GAAP in effect as of December 31, 2013.
 
“ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement,
 
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instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
 
“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
 
“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06 ).
 
“ Outstanding Amount ” means (i) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
 
“ Participant ” has the meaning specified in Section 10.06(d) .
 
“ Participant Register ” has the meaning specified in Section 10.06(d) .
 
“ PBGC ” means the Pension Benefit Guaranty Corporation.
 
“ Pension Act ” means the Pension Protection Act of 2006.
 
“ Pension Funding Rules ” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.
 
“ Pension Plan ” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
 
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“ Permitted Collateral Liens ” means, collectively, (i) inchoate Liens for Taxes, assessments, charges or levies but not yet due and payable or delinquent and Liens for Taxes, assessments, charges or levies that are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien, and (ii) Liens in favor of a securities intermediary that arise by operation of law or the securities account agreement(s) between the Loan Party and the securities intermediary.
 
“ Permitted Liens ” means Liens permitted under Section 7.01 .
 
“ Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
 
“ Plan ” means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.
 
“ Platform ” has the meaning specified in Section 6.02 .
 
“ Pledge Agreement ” means that certain Pledge Agreement dated as of the Closing Date among the Loan Parties and the Administrative Agent for the benefit of the Secured Parties and in form and substance reasonably satisfactory to the Lenders and the Administrative Agent, as amended, restated, amended and restated or otherwise modified from time to time, together with any supplements or joinders thereto.
 
“ Pro Forma Financial Statements ” means the unaudited pro forma consolidated balance sheet of the Borrower and its Subsidiaries (reflecting the Combination) as of September 30, 2013, and the related consolidated pro forma statements of income and cash flows of the Borrower and its Subsidiaries for the nine months then ended, certified by the chief financial officer, vice president - finance or treasurer of the Borrower; provided that if updated pro forma financial statements of the Borrower and its Subsidiaries (reflecting the Combination) are provided in connection with an amendment or modification to the Form S-4 of the Borrower, “Pro Forma Financial Statements” shall be deemed to refer to such updated pro forma financial statements.
 
“ Public Lender ” has the meaning specified in Section 6.02 .
 
“ Qualified ECP Guarantor ” shall mean, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.
 
“ Qualifying Owners ” means Devon and its Subsidiaries.
 
“ Recipient ” means the Administrative Agent, any Lender or any L/C Issuer .
 
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“ Register ” has the meaning specified in Section 10.06(c) .
 
“ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
 
“ Reportable Event ” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
 
“ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
 
“ Required Lenders ” means, at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or L/C Issuer, as the case may be, in making such determination.
 
“ Responsible Officer ” means, with respect to any Loan Party (i) the chief executive officer, president, chief financial officer, any executive vice president, any senior vice president, vice president — finance, treasurer, assistant treasurer or controller of such Loan Party (or its general partner, sole manager, managing member or other governing body, as applicable), (ii) solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01 , the secretary or any assistant secretary of such Loan Party (or its general partner, sole manager, managing member or other governing body, as applicable) and (iii) solely for purposes of notices given pursuant to Article II , any other officer or employee of the Borrower (or its general partner, sole manager, managing member or other governing body, as applicable) so designated by any of the foregoing officers in a notice to the Administrative Agent.  Any document delivered hereunder that is signed by a Responsible Officer shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.
 
“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Borrower or any of its Restricted Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person thereof).
 
“ Restricted Subsidiary ” means each Subsidiary of the Borrower other than an Unrestricted Subsidiary.
 
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“ Revolving Credit Exposure ” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Committed Loans and such Lender’s participation in L/C Obligations and Swing Line Loans at such time.
 
“ S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto.
 
“ Sanction(s) ” means any U.S. laws or regulations prohibiting or restricting transactions involving particular persons, entities, or countries.  This term specifically includes any program maintained and enforced by the Office of Foreign Assets Control (OFAC), such as the Specially Designated Nationals (SDN) list and all other sanctions programs enforced by OFAC.
 
“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
 
“ Secured Cash Management Agreement ” means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank.
 
“ Secured Hedge Agreement ” means any Swap Contract that is entered into by and between any Loan Party and any Hedge Bank.
 
“ Secured Parties ” means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, 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 9.05 , and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Security Documents.
 
“ Security Documents ” means, collectively, the Pledge Agreement, the Guaranty, and (to the extent Liens are granted hereunder to secure any Obligations) this Agreement, and all other instruments and documents, including without limitation Uniform Commercial Code financing statements, required to be executed or delivered pursuant to any Security Document.
 
“ Security Termination ” means the earlier to occur of (a) an Investment Grade Event, and (b) the occurrence of each of the following: (i) termination of the Aggregate Commitments, (ii) termination or expiration of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the relevant L/C Issuer have been made), (iii) termination of, and payment in full in cash of all obligations of the Loan Parties in respect of, all Secured Hedge Agreements (other than Secured Hedge Agreements as to which other arrangements satisfactory to the applicable Hedge Bank have been made), (iv) termination of, and payment in full in cash of all obligations of the Loan Parties in respect of, all Secured Cash Management Agreements (other than Secured Cash Management Agreements as to which other arrangements satisfactory to the applicable Cash Management Bank have been made), and (v) the payment in full in cash of all other Obligations not described above, other than contingent indemnification obligations not then due.
 
“ Specified Acquisition ” means any one or more related transactions (a) pursuant to which the Borrower or any of its Subsidiaries acquires, for an aggregate principal purchase price of not less than $25,000,000, (i) the Equity Interests in any other Person that constitutes a Subsidiary of
 
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the Borrower after such acquisition or (ii) other property or assets (other than acquisitions of Equity Interests of a Person, capital expenditures and acquisitions of inventory or supplies in the ordinary course of business) of, or of an operating division or business unit of, any other Person, and (b) which is designated by the Borrower (by written notice to the Administrative Agent) as a “Specified Acquisition”.
 
“ Specified Loan Party ” means any Loan Party that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 10.20 ).
 
“ Specified Subsidiary ” means each Restricted Subsidiary of the Borrower that directly or indirectly owns (i) any limited partner interests or common units in EnLink MLP or EnLink Holdings, (ii) any Equity Interests in any Guarantor, (iii) any Equity Interests in EnLink GP, and (iv) any Equity Interests in any Material Restricted Subsidiary; provided that, any Subsidiary that is an Excluded CFC shall not be required to be a “Specified Subsidiary.”
 
“ Solvent ” means, with respect to any Person on a particular date, that on such date (a) the present fair salable value of the property and assets of such Person exceeds the debts and liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the property and assets of such Person is greater than the amount that will be required to pay the probable liability of such Person on its debts and other liabilities, including contingent liabilities, as such debts and other liabilities become absolute and matured, (c) such Person does not intend to incur, or believe that it will incur, debts and liabilities, including contingent liabilities, beyond its ability to pay such debts and liabilities as they become absolute and matured, and (d) such Person does not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
 
“ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “ Subsidiary ” or to “ Subsidiaries ” shall refer to a Subsidiary or Subsidiaries of the Borrower.
 
“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing),
 
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whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc. or the North American Energy Standards Board, any International Foreign Exchange Master Agreement, or any other master agreement for transactions of the type described in clause (a) (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.
 
“ Swap Obligations ” means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
 
“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
 
“ Swing Line Borrowing ” means a borrowing of a Swing Line Loan pursuant to Section 2.04 .
 
“ Swing Line Lender ” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
 
“ Swing Line Loan ” has the meaning specified in Section 2.04(a) .
 
“ Swing Line Loan Notice ” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b) , which, if in writing, shall be substantially in the form of Exhibit B .
 
“ Swing Line Sublimit ” means an amount equal to the lesser of (a) $5,000,000 and (b) the Aggregate Commitments.  The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.
 
“ Synthetic Lease Obligation ” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
 
“ Taxes ” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
 
“ Threshold Amount ” means $35,000,000 .
 
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“ Total Credit Exposure ” means, as to any Lender at any time, the unused Commitments and Revolving Credit Exposure of such Lender at such time.
 
“ Total Outstandings ” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
 
“ Transaction Costs ” means all (a) upfront, structuring, consent, original issue discount, legal, professional and advisory fees paid by the Borrower (whether or not incurred by the Borrower) in connection with the negotiation and execution, delivery and performance of the Borrower’s obligations under this Agreement (including any amendments, supplements or restatements), and (b) legal, professional and advisory fees paid by the Borrower (whether or not incurred by the Borrower) or any Restricted Subsidiary in connection with the Combination.
 
“ Type ” means, with respect to a Committed Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
 
“ Unaudited Financial Statements ” means the unaudited consolidated balance sheets of CEI and its Subsidiaries for the fiscal quarter ended September 30, 2013 , and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter of CEI and its Subsidiaries, including the notes thereto.
 
“ United States ” and “ U.S. ” mean the United States of America.
 
“ Unreimbursed Amount ” has the meaning specified in Section 2.03(c)(i) .
 
“ Unrestricted Subsidiary ” means (i) EnLink MLP and each of its Subsidiaries, (ii) EnLink Holdings and each of its Subsidiaries, (iii) E2, E2 Appalachian and each of their respective Subsidiaries, and (iv)  any Subsidiary of the Borrower designated as an Unrestricted Subsidiary pursuant to Section 6.14 , together with each of its Subsidiaries, excluding in the case of this clause (iv), any Unrestricted Subsidiary that becomes a Restricted Subsidiary pursuant to Section 6.14(b)  or (c) .
 
“ U.S. Person ” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
 
“ U.S. Tax Compliance Certificate ” has the meaning specified in Section 3.01(e)(ii)(B)(III) .
 
“ Withholding Agent ” means any Loan Party and the Administrative Agent.
 
1.02.       Other Interpretive Provisions.   With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
 
(a)           The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “ include ,” “ includes ” and “ including ” shall be deemed to be followed by the phrase “ without limitation .”  The word “ will ” shall be construed to have the same meaning and effect as the word “ shall .”  Unless the context
 
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requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “ herein ,” “ hereof ” and “ hereunder ,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
 
(b)           In the computation of periods of time from a specified date to a later specified date, the word “ from ” means “ from and including ;” the words “ to ” and “ until ” each mean “ to but excluding ;” and the word “ through ” means “ to and including .”
 
(c)           Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
 
1.03.       Accounting Terms.   (a)  Generally .  All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Restricted Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.
 
(b)           Changes in GAAP .  If at any time any change in GAAP  (including the adoption of IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that , until so amended, (A) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (B) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested
 
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hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
 
1.04.       Rounding.   Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
 
1.05.       Times of Day.   Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
 
1.06.       Letter of Credit Amounts.  Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
 
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
 
2.01.       Committed Loans.   Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans in Dollars (each such loan, a “ Committed Loan ”) to the Borrower from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment; provided , however , that after giving effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment.  Within the limits of each Lender’s Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01 , prepay under Section 2.05 , and reborrow under this Section 2.01 .  Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
 
2.02.       Borrowings, Conversions and Continuations of Committed Loans .
 
(a)           Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone.  Each such notice must be received by the Administrative Agent not later than 12:00 p.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Committed Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed Loans; provided , however , that if the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 12:00 p.m. four Business Days prior to the requested date of such Borrowing, conversion or
 
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continuation, whereupon the Administrative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Interest Period is acceptable to all of them.  Not later than 12:00 p.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether the requested Interest Period has been consented to by all the Lenders.  Each telephonic notice by the Borrower pursuant to this Section 2.02(a)  must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount not less than $5,000,000.  Except as provided in Sections 2.03(c)  and 2.04(c) , each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount not less than $500,000; provided that any Borrowing of Base Rate Committed Loans may be in the amount of the unused Aggregate Commitments.  Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans.  Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
 
(b)           Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection.  In the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01 ), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.
 
(c)           Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan.  During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders.
 
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(d)           The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
 
(e)           After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to Committed Loans.
 
2.03.       Letters of Credit .
 
(a)           The Letter of Credit Commitment .
 
(i)            Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Restricted Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b)  below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Restricted Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Outstandings shall not exceed the Aggregate Commitments, (x) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit, and (z) the Outstanding Amount of the L/C Obligations in respect of Letters of Credit issued by any specific L/C Issuer shall not exceed $50,000,000, unless such L/C Issuer otherwise consents thereto.  Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
 
(ii)           No L/C Issuer shall issue any Letter of Credit, if, subject to Section 2.03(b)(iii) , the expiry date of the requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date.
 
(iii)          No L/C Issuer shall be under any obligation to issue any Letter of Credit if:
 
(A)          any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from
 
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issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
 
(B)          the issuance of the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
 
(C)          except as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than $25,000;
 
(D)          the Letter of Credit is to be denominated in a currency other than Dollars;
 
(E)           any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv )) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion;
 
(F)           the Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
 
(G)          the expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date.
 
(iv)          The L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
 
(v)           The L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not accept the proposed amendment to the Letter of Credit.
 
(vi)          The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in
 
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connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “ Administrative Agent ” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.
 
(b)           Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit .
 
(i)            Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower.  Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the L/C Issuer, by personal delivery or by any other means acceptable to the L/C Issuer.  Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than 12:00 p.m. at least one Business Day (or such later date and time as the Administrative Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may reasonably require.  In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the L/C Issuer may reasonably require.  Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.
 
(ii)           Promptly after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the L/C Issuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received written notice from any Lender, the Administrative Agent or any Loan Party, not later than 10:00 a.m. at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Restricted Subsidiary) or enter into the applicable amendment, as the case may be, in
 
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each case in accordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.
 
(iii)          If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.  Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit at any time, subject, in the case of an extension to an expiry date later than the Letter of Credit Expiration Date, to the requirement to Cash Collateralize such Letter of Credit in an amount not less than the Minimum Collateral Amount applicable to such Letter of Credit on the Letter of Credit Expiration Date; provided , however , that the L/C Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a)  or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.
 
(iv)          If the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated amount thereof after any drawing thereunder (each, an “ Auto-Reinstatement Letter of Credit ”).  Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C Issuer to permit such reinstatement.  Once an Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to reinstate all or a portion of the stated amount thereof in accordance with the provisions of such Letter of Credit.  Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the L/C Issuer to decline to reinstate all or any portion of the stated amount thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified number of days after such drawing (the “ Non-Reinstatement Deadline ”), the L/C Issuer shall not permit such reinstatement if it has
 
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received a notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Reinstatement Deadline (A) from the Administrative Agent that the Required Lenders have elected not to permit such reinstatement or (B) from the Administrative Agent, any Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied (treating such reinstatement as an L/C Credit Extension for purposes of this clause) and, in each case, directing the L/C Issuer not to permit such reinstatement.
 
(v)           Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
 
(c)           Drawings and Reimbursements; Funding of Participations .
 
(i)            Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative Agent thereof.  Not later than 12:00 p.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each such date, an “ Honor Date ”), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing.  If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i)  may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
 
(ii)           Each Lender shall upon any notice pursuant to Section 2.03(c)(i)  make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the L/C Issuer.
 
(iii)          With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have
 
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incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)  shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03 .
 
(iv)          Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.03(c)  to reimburse the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the L/C Issuer.
 
(v)           Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c)  is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Committed Loan Notice).  No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
 
(vi)          If any Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c)  by the time specified in Section 2.03(c)(ii) , then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
 
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(d)           Repayment of Participations .
 
(i)            At any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c) , if the Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Administrative Agent.
 
(ii)           If any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i)  is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
 
(e)           Obligations Absolute .  The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
 
(i)            any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;
 
(ii)           the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Restricted Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
 
(iii)          any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
 
(iv)          waiver by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Borrower or any waiver by the L/C Issuer which does not in fact materially prejudice the Borrower;
 
(v)           honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;
 
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(vi)                               any payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC or the ISP, as applicable;
 
(vii)                            any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
 
(viii)                         any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any of its Restricted Subsidiaries.
 
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer.  The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid.
 
(f)                                    Role of L/C Issuer .  Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document.  The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i)  through (viii)  of Section 2.03(e) ; provided , however , that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit.  In
 
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furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.  The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“ SWIFT ”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
 
(g)                                   Applicability of ISP; Limitation of Liability .  Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each standby Letter of Credit.  Notwithstanding the foregoing, the L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the L/C Issuer or the beneficiary is located, the practice stated in the ISP or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
 
(h)                                  Letter of Credit Fees .  Subject to Section 2.16 , the Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the “ Letter of Credit Fee ”) for each Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit (but excluding any Fronting Exposure that has been Cash Collateralized by the Borrower pursuant to Section 2.15(a)(iv) ).  For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 .  Letter of Credit Fees shall be (i) due and payable on the third Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears.  If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
 
(i)                                      Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer .  The Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, at the rate per annum specified in the Fee Letter (or as separately agreed in writing by such L/C Issuer and the Borrower), computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable on the fifteenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand.  For purposes
 
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of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 .  In addition, the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
 
(j)                                     Conflict with Issuer Documents .  In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
 
(k)                                  Letters of Credit Issued for Restricted Subsidiaries .  Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Restricted Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and all drawings under such Letter of Credit.  The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Restricted Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Restricted Subsidiaries.
 
2.04.                      Swing Line Loans .
 
(a)                                  The Swing Line .  Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04 , shall make loans (each such loan, a “ Swing Line Loan ”) to the Borrower from time to time on any Business Day during the Availability Period in an aggregate principal amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided , however , that (x) after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, (y) the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (z) the Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension will have, after giving effect to the provisions of Section 2.16(a)(iv) , Fronting Exposure.  Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04 , prepay under Section 2.05 , and reborrow under this Section 2.04 .  Each Swing Line Loan shall be a Base Rate Loan.  Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.
 
(b)                                  Borrowing Procedures .  Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify
 
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(i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower.  Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a) , or (B) that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower.
 
(c)                                   Refinancing of Swing Line Loans .
 
(i)                                      The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02 , without regard to the minimum specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 .  The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount.  The Administrative Agent shall remit the funds so received to the Swing Line Lender.
 
(ii)                                   If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i) , the request for Base Rate Committed Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i)  shall be deemed payment in respect of such participation.
 
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(iii)                                If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c)  by the time specified in Section 2.04(c)(i) , the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing.  If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may be.  A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
 
(iv)                               Each Lender’s obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c)  shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Committed Loans pursuant to this Section 2.04(c)  is subject to the conditions set forth in Section 4.02 .  No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
 
(d)                                  Repayment of Participations .
 
(i)                                      At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.
 
(ii)                                   If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate.  The Administrative Agent will make such demand upon the request of the Swing Line Lender.  The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
 
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(e)                                   Interest for Account of Swing Line Lender .  The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans.  Until each Lender funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.
 
(f)                                    Payments Directly to Swing Line Lender .  The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
 
2.05.                      Prepayments .
 
(a)                                  Optional .
 
(i)                                      The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 12:00 p.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding.  Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 .  Subject to Section 2.16 , each such prepayment shall be applied to the Committed Loans of the Lenders in accordance with their respective Applicable Percentages.
 
(ii)                                   The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
 
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(b)                                  Mandatory .
 
(i)                                      If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then in effect, the Borrower shall immediately after the earlier of (i) the Borrower’s receipt of written notice from the Administrative Agent thereof or (ii) the date any Responsible Officer of the Borrower has actual knowledge thereof, prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided , however , that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i)  unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect.
 
(ii)                                   If any Loan Party receives any Debt Incurrence Proceeds, the Borrower shall immediately after the receipt of such Debt Incurrence Proceeds, prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to the amount of such Debt Incurrence Proceeds. The provisions of this Section do not constitute consent to the issuance or incurrence of any Indebtedness by the Borrower or any of its Restricted Subsidiaries not otherwise permitted hereunder.
 
(iii)                                If any Loan Party receives any Net Cash Proceeds from the Disposition of Equity Interests in EnLink MLP or EnLink Holdings, the Borrower shall immediately after the receipt of such Net Cash Proceeds, prepay Loans and/or, unless the conditions specified in Section 4.02 are satisfied and would be satisfied after giving effect to such transactions, Cash Collateralize the L/C Obligations in an aggregate amount equal to the amount of such Net Cash Proceeds.
 
(iv)                               If any Loan Party completes a Disposition to EnLink MLP in respect of which it receives Net Cash Proceeds in excess of $50,000,000, the Borrower shall immediately after the receipt of such Net Cash Proceeds, prepay Loans and/or, unless the conditions specified in Section 4.02 are satisfied and would be satisfied after giving effect to such transactions, Cash Collateralize the L/C Obligations in an aggregate amount equal to the amount of such Net Cash Proceeds.
 
(v)                                  Notwithstanding anything to the contrary herein, the Aggregate Commitments shall not be reduced by any mandatory prepayments required by this Section 2.05(b) . For the avoidance of doubt, any Net Cash Proceeds remaining after making any prepayment or Cash Collateralization required by Section 2.05(b)(iii)  or (iv)  may be retained by the Borrower and its Restricted Subsidiaries and used for any purpose not prohibited by this Agreement.
 
2.06.                      Termination or Reduction of Commitments.  The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments, in whole or in part; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 p.m. three Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the Aggregate
 
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Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such excess.  The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments.  Any reduction of the Aggregate Commitments shall be applied to the Commitment of each Lender according to its Applicable Percentage.  All fees accrued until the effective date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination.
 
2.07.                      Repayment of Loans .
 
(a)                                  The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of Committed Loans outstanding on such date.
 
(b)                                  The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten Business Days after such Loan is made and (ii) the Maturity Date.
 
2.08.                      Interest .
 
(a)                                  Subject to the provisions of subsection (b)  below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.
 
(b)                                  (i)                                      If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
 
(ii)                                   If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
 
(iii)                                Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
 
(c)                                   Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
 
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2.09.                      Fees .  In addition to certain fees described in subsections (h) and (i) of Section 2.03 :
 
(a)                                  Commitment Fee .  The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.16 . For the avoidance of doubt, the Outstanding Amount of Swing Line Loans shall not be counted towards or considered usage of the Aggregate Commitments for purposes of determining the commitment fee. The commitment fee shall accrue beginning on the earlier of (x) April 15, 2014 and (y) the Closing Date, and regardless of whether one or more of the conditions in Article IV is not met at any time after such date, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period.  The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
 
(b)                                  Other Fees .  (i)The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letters.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
 
(ii)                                   The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
 
2.10.                      Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.  (a)                 All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a) , bear interest for one day.  Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
 
(b)                                  If, as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the Borrower or the Required Lenders determine that (i) the Consolidated Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an
 
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actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period.  This paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case may be, under Section 2.04(c)(iii) , 2.04(h)  or 2.09(b)  or under Article VIII .  The Borrower’s obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.
 
2.11.                      Evidence of Debt .
 
(a)                                  The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
 
(b)                                  In addition to the accounts and records referred to in subsection (a) above, each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
 
2.12.                      Payments Generally; Administrative Agent’s Clawback .
 
(a)                                  General .  All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall
 
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continue to accrue.  If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
 
(b)                                  (i)                                      Funding by Lenders; Presumption by Administrative Agent .  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of Eurodollar Rate Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 1:00 p.m. on the date of such Committed Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Committed Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02 ) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed Borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
 
(ii)                                   Payments by Borrower; Presumptions by Administrative Agent .  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
 
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A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
 
(c)                                   Failure to Satisfy Conditions Precedent .  If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II , and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
 
(d)                                  Obligations of Lenders Several .  The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c)  are several and not joint.  The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.04(c)  on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, to purchase its participation or to make its payment under Section 10.04(c) .
 
(e)                                   Funding Source .  Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
 
2.13.                      Sharing of Payments by Lenders.    If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and other amounts owing them, provided that:
 
(i)                                      if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
 
(ii)                                   the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in
 
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Section 2.15 , or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Borrower or any Affiliate thereof (as to which the provisions of this Section shall apply).
 
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
 
2.14.                      Increase in Commitments .
 
(a)                                  Request for Increase .  Upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to time, request an increase in the Aggregate Commitments (a “ Commitment Increase ”) by an amount (for all such requests that are consummated) not exceeding $100,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $20,000,000, and (ii) the Borrower may make a maximum of four such requests (disregarding any such requests that are not consummated).  At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period (the “ Consent Period ”) within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders).
 
(b)                                  Lender Elections to Increase .  Each Lender shall notify the Administrative Agent prior to the expiration of the Consent Period as to whether it agrees to increase its Commitment in its sole discretion and, if such Lender agrees to increase its Commitment, such Lender shall specify the amount by which it is willing to increase its Commitment.  Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.
 
(c)                                   Notification by Administrative Agent; Additional Lenders .  The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested increase, the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent.
 
(d)                                  Effective Date and Allocations .  If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Borrower shall determine the effective date (the “ Increase Effective Date ”) and the final allocation of such increase.  The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date.
 
(e)                                   Conditions to Effectiveness of Increase .  As a condition precedent to each Commitment Increase, (i) the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date signed by a Responsible Officer of such
 
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Loan Party (x) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Commitment Increase, and (y) in the case of the Borrower, certifying that, before and after giving effect to such Commitment Increase, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (except to the extent such representations and warranties are already qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except to the extent such representations and warranties are already qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.14 , the representations and warranties contained in subsections (a)  and (b)  of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a)  and (b) , respectively, of Section 6.01 (and, to the extent applicable, any references in subsections (a)  and (b)  of Section 5.05 to CEI shall be deemed to be a reference to the Borrower), and (B) no Default exists.  The Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05 ) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.
 
(f)                                    Conflicting Provisions .  This Section shall supersede any provisions in Section 2.13 or 10.01 to the contrary.
 
2.15.                      Cash Collateral.
 
(a)                                  Certain Credit Support Events .  If (i) the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, that remains outstanding for more than two Business Days, then within one Business Day following the written request of the Administrative Agent or the L/C Issuer the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount equal to such L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to Section 8.02(c) , or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in the case of clause (iii)  above) or within one Business Day (in all other cases) following any request by the Administrative Agent or the L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv)  above, after giving effect to Section 2.16(a)(iv)  and any Cash Collateral provided by the Defaulting Lender).
 
(b)                                  Grant of Security Interest .  The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and agrees to maintain, a first priority security interest in all Cash Collateral provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.15(c) .  If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the L/C Issuer as herein provided, or that the
 
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total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
 
(c)                                   Application .  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.15 or Sections 2.03 , 2.05 , 2.16 or 8.02 in respect of Letters of Credit shall be held and applied to the satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
 
(d)                                  Release .  Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 10.06(b)(vi) )) or (ii) the determination by the Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided , however, the Person providing Cash Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
 
2.16.                      Defaulting Lenders .  (a)  Adjustments .  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
 
(i)                                      Waivers and Amendments .  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 10.01 .
 
(ii)                                   Defaulting Lender Waterfall .  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third , to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.15 ; fourth , as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its
 
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portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.15 ; sixth , to the payment of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.16(a)(iv) . Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(ii)  shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
 
(iii)                                Certain Fees .
 
(A)                                No Defaulting Lender shall be entitled to receive any fee payable under Section 2.09(a)  for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
 
(B)                                Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.15 .
 
(C)                                With respect to any fee payable under Section 2.09(a)  or any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause (A)  or (B)  above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Loans
 
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that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv)  below, (y) pay to the L/C Issuer and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
 
(iv)                               Reallocation of Applicable Percentages to Reduce Fronting Exposure .  All or any part of such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans shall be automatically reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment.  No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
 
(v)                                  Cash Collateral, Repayment of Swing Line Loans .  If the reallocation described in clause (a)(iv)  above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure and (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in accordance with the procedures set forth in Section 2.15 .
 
(b)                                  Defaulting Lender Cure .  If the Borrower, the Administrative Agent, Swing Line Lender and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Committed Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.16(a)(iv) ), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
 
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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
 
3.01.                      Taxes .
 
(a)                                  Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes .  Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Law.  If any applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings for Indemnified Taxes applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding for Indemnified Tax been made.
 
(b)                                  Payment of Other Taxes by the Borrower .  Without limiting the provisions of subsection (a)  above, the Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
 
(c)                                   Tax Indemnifications .  (i) The Borrower shall indemnify each Recipient, and shall make payment in respect thereof within 20 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01(c)(i) ) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however, that the Borrower shall not be required to indemnify a Recipient for Indemnified Taxes pursuant to this Section 3.01(c)(i)  unless such Recipient notifies the Borrower of the indemnification claim for such Indemnified Taxes no later than nine months after the earlier of (x) the date on which the relevant Governmental Authority makes written demand upon the Recipient for payment of such Indemnified Taxes, and (y) the date on which such Recipient has made payment of such Indemnified Taxes. A certificate as to the amount of such payment or liability (that provides a summary calculation of such Indemnified Tax) delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. The Borrower shall indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any amount which a Lender for any reason fails to pay to the Administrative Agent as required pursuant to Section 3.01(c)(ii)  below, net of any amounts the Administrative Agent has received as a set off against such Lender pursuant to Section 3.01(c)(ii)  below; provided that such indemnity shall not be available to the extent that such payment is determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the Administrative Agent; and provided further that, if the
 
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Borrower is required to directly indemnify the Administrative Agent pursuant to this sentence, the Administrative Agent shall take all steps reasonably requested by the Borrower in order to ensure that the Borrower is subrogated to the Administrative Agent’s right to collect from the applicable Lender. Prior to seeking indemnity from the Borrower under the immediately preceding sentence, the Administrative Agent shall make demand upon the applicable Lender for such amounts owed and shall use commercially reasonable efforts to exercise any then available set off rights against such Lender to satisfy such amounts owed.
 
(ii)                                   Each Lender shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (y) the Administrative Agent and the Borrower, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d)  relating to the maintenance of a Participant Register, and (z) the Administrative Agent and the Borrower, as applicable, against any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent or the Borrower in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii) .
 
(d)                                  Evidence of Payments .  Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01 , the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
 
(e)                                   Status of Lenders; Tax Documentation .
 
(i)                                      Any Lender (which, for purposes of this Section 3.01(e) , shall include the Administrative Agent) that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable
 
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Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A) , (ii)(B)  and (ii)(D)  below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
 
(ii)                                   Without limiting the generality of the foregoing,
 
(A)                                any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), properly completed and executed originals of IRS Form W-9 (or any applicable successor form) certifying that such Lender is exempt from U.S. federal backup withholding Tax;
 
(B)                                any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
 
(1)                                  in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, properly completed and executed originals of IRS Form W-8BEN (or any applicable successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, properly completed and executed originals of IRS Form W-8BEN (or any applicable successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
 
(2)                                  properly completed and executed originals of IRS Form W-8ECI (or any applicable successor form);
 
(3)                                  in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower
 
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within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) properly completed and executed originals of IRS Form W-8BEN (or any applicable successor form); or
 
(4)                                  to the extent a Foreign Lender is not the beneficial owner, properly completed and executed originals of IRS Form W-8IMY (or any applicable successor form), accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;
 
(C)                                any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
 
(D)                                if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
 
(iii)                                Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it
 
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shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
 
(f)                                    Treatment of Certain Refunds .  If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section 3.01 or any Guaranty, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Loan Parties under this Section 3.01 or any Guaranty with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of such Recipient, agrees to repay the amount paid over to the Borrower pursuant to this subsection (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Recipient in the event such Recipient is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the Borrower pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This subsection shall not be construed to require any Recipient to make available its Tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.
 
(g)                                   Survival .  Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
 
(h)                                  Defined Term .  For purposes of this Section 3.01 , the term “applicable Law” includes FATCA and the term “Lender” includes any L/C Issuer.
 
3.02.                      Illegality.   If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Committed Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, then the interest rate applicable to Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice,
 
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(x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate applicable to Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
 
3.03.                      Inability to Determine Rates.   If in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof, (a) the Administrative Agent determines that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, or (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case with respect to clause (a) above, “ Impacted Loans ”), or (b) the Required Lenders determine that for any reason the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender.  Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the affected Lenders) revokes such notice.  Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.
 
3.04.                      Increased Costs; Reserves on Eurodollar Rate Loans .
 
(a)                                  Increased Costs Generally .  If any Change in Law shall:
 
(i)                                      impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e) ) or the L/C Issuer;
 
(ii)                                   subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (e) of the definition of Excluded Taxes and (C) 
 
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Other Connection Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
 
(iii)                                impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;
 
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer (in each case in its capacity as such) hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
 
(b)                                  Capital Requirements .  If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
 
(c)                                   Certificates for Reimbursement .  A certificate of a Lender or the L/C Issuer setting forth in reasonable detail the calculation of the amount or amounts necessary to compensate such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
 
(d)                                  Delay in Requests .  Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation,
 
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provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof).
 
(e)                                   Reserves on Eurodollar Rate Loans .  The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “ Eurocurrency liabilities ”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender.  If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 10 days from receipt of such notice; provided that the Borrower shall not be required to pay to such Lender any portion of such additional interest that accrued more than 180 days prior to any such demand, unless such additional interest was not determinable on the date that is 180 days prior to such demand.
 
3.05.                      Compensation for Losses.   Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
 
(a)                                  any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
 
(b)                                  any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or
 
(c)                                   any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13 ;
 
including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained, but excluding the Applicable Rate expected to be received by such Lender during the remainder of such Interest Period.  The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
 
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
 
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eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
 
3.06.                      Mitigation Obligations; Replacement of Lenders .
 
(a)                                  Designation of a Different Lending Office .  If any Lender requests compensation under Section 3.04 , or the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender, or any L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01 , or if any Lender gives a notice pursuant to Section 3.02 , then at the request of the Borrower such Lender or such L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02 , as applicable, and (ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender or such L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or assignment.
 
(b)                                  Replacement of Lenders .  If (a) any Lender requests compensation under Section 3.04 , or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 , (b) any Lender is a Defaulting Lender or a Non-Consenting Lender, or (c) any Lender’s obligation to make or to convert or continue outstanding Loans as Eurodollar Rate Loans has been suspended pursuant to Section 3.02 , then the Borrower may replace such Lender in accordance with Section 10.13 .
 
3.07.                      Survival.   All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments, repayment of all other Obligations hereunder, and resignation of the Administrative Agent.
 
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
 
4.01.                      Conditions of Initial Credit Extension.   The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
 
(a)                                  The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
 
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(i)                                      executed counterparts of this Agreement, the Guaranty, and the Pledge Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
 
(ii)                                   a Note executed by the Borrower in favor of each Lender requesting a Note;
 
(iii)                                such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
 
(iv)                               such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
 
(v)                                  an opinion of Baker Botts L.L.P., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender covering such matters concerning the Loan Parties and the Loan Documents as the Lenders may reasonably request and in form and substance reasonably satisfactory to the Lenders;
 
(vi)                               a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(b) , (c)  and (d)  and 4.02(a)  and (b)  have been satisfied;
 
(vii)                            a duly completed Compliance Certificate as of the last day of the most recently ended fiscal quarter (or fiscal year) of the Borrower for which financial statements are available, signed by a Responsible Officer of the Borrower and demonstrating pro forma compliance with the financial covenants set forth in Section 7.13 (after giving effect to the Combination and the incurrence of Indebtedness on the Closing Date);
 
(viii)                         a certificate as to the solvency of the Borrower individually and the Loan Parties taken as a whole (after giving effect to the Combination and the incurrence of Indebtedness on the Closing Date) from the chief financial officer of EnLink Manager;
 
(ix)                               evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
 
(x)                                  a Form U-1 duly executed and completed by the Borrower; and
 
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(xi)                               such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
 
(b)                                  The Administrative Agent shall have received evidence satisfactory to it that on or before the date of the initial Credit Extension hereunder, the transactions contemplated by the Merger Agreement (as amended, restated, supplemented or otherwise modified in a manner not materially adverse to the Lenders unless the consent of each Lender has been obtained), shall have been consummated, without the waiver or modification of any condition precedent thereto or to the Merger Agreement (as defined therein) that is materially adverse to the Lenders unless the consent of each Lender is obtained.
 
(c)                                   There shall not have occurred since December 31, 2012 any event or condition that has had a Material Adverse Effect.
 
(d)                                  There shall not have occurred a Midstream Group Material Adverse Effect or a Crosstex Material Adverse Effect (each as defined in the Merger Agreement).
 
(e)                                   All filings, recordations and searches necessary or reasonably requested by the Administrative Agent in connection with the Liens and security interests on the Collateral shall have been duly made (or, in the case of filings and recordations, provision acceptable to the Administrative Agent shall have been made therefor).
 
(f)                                    The Lenders shall have received satisfactory evidence that the Administrative Agent (on behalf of the Secured Parties) shall have a valid and perfected first priority (subject to Permitted Collateral Liens) Lien and security interest in the Equity Interests in EnLink MLP and EnLink Holdings constituting Collateral and a valid and perfected first priority (subject to Permitted Liens) Lien and security interest in the Collateral other than Equity Interests in EnLink MLP and EnLink Holdings.
 
(g)                                   The Borrower and its Subsidiaries shall have provided the documentation and other information to the Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act.
 
(h)                                  The Lenders shall have received the Audited Financial Statements, the Unaudited Financial Statements, the Pro Forma Financial Statements and the Forecast Financial Statements.
 
(i)                                      Any fees required to be paid on or before the Closing Date shall have been paid.
 
(j)                                     Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one Business Day prior to the Closing Date.
 
(k)                                  The Administrative Agent shall have received a funds flow memorandum in form and substance reasonably satisfactory to it.
 
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Without limiting the generality of the provisions of the last paragraph of Section 9.03 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
 
4.02.                      Conditions to all Credit Extensions.   The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:
 
(a)                                  The representations and warranties of the Borrower contained in Article V and the representations and warranties of the Loan Parties contained in any other Loan Document shall be true and correct in all material respects (except to the extent such representations and warranties are already qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except to the extent such representations and warranties are already qualified as to materiality, in which case such representations and warranties shall be true and correct in all respects) as of such earlier date, and except that for purposes of this Section 4.02 , the representations and warranties contained in subsections (a)  and (b)  of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a)  and (b) , respectively, of Section 6.01 (and, to the extent applicable, any references in subsections (a)  and (b)  of Section 5.05 to CEI shall be deemed to be a reference to the Borrower).
 
(b)                                  No Default shall have occurred and be continuing, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
 
(c)                                   The Administrative Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
 
Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a)  and (b)  have been satisfied on and as of the date of the applicable Credit Extension.
 
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
 
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
 
5.01.                      Existence, Qualification and Power.   Each Loan Party and each Material Restricted Subsidiary thereof (a) is duly organized or formed, validly existing and, as applicable,
 
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in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite corporate or equivalent power and authority to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
 
5.02.                      Authorization; No Contravention.   The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) violate (i) the terms of any of such Person’s Organization Documents; (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (iii) any provision of Law applicable to it, (b) result in the acceleration of any Indebtedness owed by it, except as could not reasonably be expected to have a Material Adverse Effect, (c) result in any breach of, or a default under, any material Contractual Obligation to which such Person is a party or to which its properties are bound, except as could not reasonably be expected to have a Material Adverse Effect or (d) result in the creation of any consensual Lien upon any of its material assets except as expressly contemplated in, or permitted by, the Loan Documents.
 
5.03.                      Governmental Authorization; Other Consents.   Other than the filings which may be necessary to perfect the Administrative Agent’s Lien under the Security Documents and a Federal Reserve Form FR U-1 (OMB No. 7100-0115) with respect to the pledged Equity Interests of EnLink MLP, no material approval, consent, exemption, or authorization of, or other action by, or notice to, or filing with, any Governmental Authority or any other Person that has not been obtained is required to be made or obtained by any of the Loan Parties a party thereto pursuant to the provisions of any material Law applicable to it as a condition to (a) its execution, delivery or performance of this Agreement or any other Loan Document to which it is a party except those relating to performance thereof as would ordinarily be made or done in the ordinary course of business after the Closing Date, (b) the grant by any Loan Party of the Liens granted by it pursuant to any of the Security Documents, (c) the perfection or maintenance of the Liens created under any of the Security Documents (including the first priority (subject to Permitted Collateral Liens) nature thereof with respect to Equity Interests constituting Collateral), or (d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents other than those required pursuant to securities Laws that may be applicable to the disposition of any property subject to such securities Laws.
 
5.04.                      Binding Effect.   This Agreement has been, and each other Loan Document to which any Loan Party is a party, when delivered hereunder, will have been, duly executed and delivered by such Loan Party.  This Agreement constitutes, and each other such Loan Document when so executed and delivered will constitute, a legal, valid and binding obligation of the Loan Party party hereto or thereto, as the case may be, enforceable against such Loan Party in accordance with its terms, except, in each case (a) as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws relating to or affecting the enforcement of creditors’ rights generally, and by general principles of equity which may limit the right to obtain equitable remedies (regardless of whether such enforceability is a proceeding
 
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in equity or at law) and (b) as to the enforceability of provisions for indemnification and the limitations thereon arising as a matter of law or public policy.
 
5.05.                      Financial Statements; No Material Adverse Effect .
 
(a)                                  The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (ii) fairly present in all material respects the financial condition of CEI and its Subsidiaries on a consolidated basis as of the date thereof and their results of operations for the period covered thereby.
 
(b)                                  The Unaudited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present in all material respects the financial condition of CEI and its Subsidiaries on a consolidated basis as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
 
(c)                                   As of the Closing Date, for the period from December 31, 2012 through the Closing Date, there exists no event or circumstance with respect to the Borrower, the Restricted Subsidiaries and the Unrestricted Subsidiaries taken as a whole, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.
 
(d)                                  The Pro Forma Financial Statements fairly present in all material respects the consolidated pro forma financial condition of the Borrower and its Subsidiaries as at the date specified therein and the consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with GAAP, subject to the absence of footnotes and to normal year-end audit adjustments.
 
(e)                                   The Forecast Financial Statements were prepared in good faith and on the basis of information and assumptions that the Borrower believed to be reasonable as of the date such information was furnished (it being recognized by the Lenders that such estimates, financial projections and forecasts as they relate to future events are not to be viewed as fact and that actual results during the period or periods covered by such estimates, financial projections and forecasts may differ from the projected results set forth therein by a material amount).
 
5.06.                      Litigation.   Except as disclosed in the Audited Financial Statements, or in Schedule 5.06 , there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, overtly threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against any Loan Party, or against any of their properties or revenues that, as of the Closing Date, either individually or in the aggregate would reasonably be expected to have a Material Adverse Effect.
 
5.07.                      No Default.   No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.
 
5.08.                      Ownership of Property; Liens.   Each Loan Party and each Restricted Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in, all real
 
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property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  The property of each Loan Party and the Restricted Subsidiaries is subject to no Liens, other than Permitted Liens. All of the outstanding limited partner interests and common units in EnLink MLP and EnLink Holdings directly or indirectly owned by the Borrower and its Restricted Subsidiaries, and all of the outstanding Equity Interests in EnLink GP, each Guarantor and each Material Restricted Subsidiary directly or indirectly owned by the Borrower and its Restricted Subsidiaries have been validly issued, are fully paid and non-assessable and, as of the Closing Date, are owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.08 , free and clear of all Liens other than Permitted Collateral Liens and Liens granted to the Administrative Agent for the benefit of the Secured Parties under the Security Documents. Set forth on Part (b) of Schedule 5.08 is a complete and accurate list of all Loan Parties, showing as of the Closing Date for each Loan Party the jurisdiction of its incorporation or organization, the address of its principal place of business and its U.S. taxpayer identification number, if any.
 
5.09.                      Environmental Compliance.   Each Loan Party and the Restricted Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof the Borrower has reasonably concluded that each Loan Party and the Restricted Subsidiaries are in compliance with such Environmental Laws and are not subject to any claims thereunder except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
 
5.10.                      Insurance.   The properties of each Loan Party and the Restricted Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates of a Loan Party, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Loan Party or the applicable Restricted Subsidiary operates.
 
5.11.                      Taxes.   Each Loan Party and its Restricted Subsidiaries have filed all Federal, state and other Tax returns and reports required to be filed by them, and have paid all Federal, state and other Taxes, governmental assessments, governmental fees and other governmental charges levied or imposed upon them or their properties, income or assets that are due and payable by them, except (i) those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or (ii) where failure to do so would not reasonably be expected to have a Material Adverse Effect. To the Borrower’s knowledge, there is no proposed tax assessment against any Loan Party or any Subsidiary that would, if made, have a Material Adverse Effect.  As of the Closing Date, neither the Borrower nor any Restricted Subsidiary is party to any tax sharing agreement with a party other than the Borrower and/or any of its Restricted Subsidiaries, except for customary arrangements with respect to Texas franchise taxes (including, for the avoidance of doubt, margin taxes).
 
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5.12.                      ERISA Compliance .
 
(a)                                  Except as disclosed in the Audited Financial Statements or in Schedule 5.12 , each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Federal or state laws to the extent that any non-compliance therewith could reasonably be expected to result in a Material Adverse Effect.  Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an application for such a letter has been submitted to the IRS.  To the knowledge of the Borrower, nothing has occurred with respect to the Borrower, or any ERISA Affiliate that would prevent or cause the loss of such tax-qualified status.
 
(b)                                  Except as disclosed in the Audited Financial Statements or in Schedule 5.12 , there are no pending or, to the knowledge of the Borrower, overtly threatened in writing, claims, actions or  lawsuits, or action by any Governmental Authority, with respect to any Plan that  could reasonably be expected to have a Material Adverse Effect.  Except as disclosed in the Audited Financial Statements or in Schedule 5.12 , there has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
 
(c)                                   Except as disclosed in the Audited Financial Statements or in Schedule 5.12 , (i) no ERISA Event has occurred, and neither the Borrower nor any ERISA Affiliate has actual knowledge of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) each Loan Party and each ERISA Affiliate has met in all material respects all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither the Borrower nor any ERISA Affiliate has actual knowledge of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) neither any Loan Party nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums or obligations of immaterial amounts, and there are no premium payments which have become due that are delinquent or are being contested in good faith; (v) neither the Borrower nor any ERISA Affiliate has, to its actual knowledge, engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) to the actual knowledge of the Borrower, no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.
 
5.13.                      Margin Regulations; Investment Company Act .
 
(a)                                  No Loan Party or any of its Subsidiaries is engaged nor will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock.
 
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(b)                                  Neither the Borrower, nor any of its Subsidiaries is an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940.
 
5.14.                      Disclosure.   No report, financial statement, certificate or other information (other than projected and forecast financial information and information of a general economic nature or industry specific information) furnished by or on behalf of any Loan Party, or any of their respective Subsidiaries to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement (including those delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished, when so modified or supplemented)) contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained herein or therein not misleading when taken as a whole with other previously provided information, in the light of the circumstances under which made or deemed made and as of the date made or deemed made (or if such information expressly relates or refers to an earlier date, as of such earlier date); provided that, to the extent relating to Devon or any of its Subsidiaries or affiliates (excluding the Loan Parties and their Subsidiaries) or their respective businesses, such representation and warranty is made only to the knowledge of the Borrower after due inquiry.
 
5.15.                      Compliance with Laws.   Except as set forth in Schedule 5.15 , each of the Loan Parties and each of their Restricted Subsidiaries is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith, and if necessary, by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
 
5.16.                      Solvency .  The Borrower, individually, is Solvent. The Loan Parties, together with their Subsidiaries on a consolidated basis taken as a whole, are Solvent.
 
5.17.                      Collateral Documents .  The provisions of the Security Documents are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority (subject to Permitted Collateral Liens) perfected Lien on all right, title and interest of the respective Loan Parties in Equity Interests constituting Collateral and first priority (except for Permitted Liens entitled to priority under applicable law) Lien on all right, title and interest of the respective Loan Parties in the Collateral (other than Equity Interests) described therein.  Except for filings and other actions as contemplated hereby and by the Security Documents, no filing or other action will be necessary to perfect or protect such Liens.
 
5.18.                      OFAC .  Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of the Borrower or any of its Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity currently the subject of any Sanctions, nor is the Borrower or any of its Subsidiaries located, organized or resident in a Designated Jurisdiction.
 
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ARTICLE VI.
AFFIRMATIVE COVENANTS
 
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation (other than contingent obligations not yet due and payable and Obligations in respect of Secured Cash Management Agreements and Secured Hedge Agreements) hereunder shall remain unpaid or unsatisfied, or (unless a collateral arrangement satisfactory to the L/C Issuer has been entered into) any Letter of Credit shall remain outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01 , 6.02 , and 6.03 ) cause each Restricted Subsidiary to:
 
6.01.                      Financial Statements.  Deliver to the Administrative Agent:
 
(a)                                  as soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower (or, if earlier, 15 days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)) (commencing with the fiscal year ending December 31, 2014), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “ going concern ” or like qualification or any qualification as to the scope of such audit; and
 
(b)                                  as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or, if earlier, 5 days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)) (commencing with the fiscal quarter ending March 31, 2014), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or operations for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, and the related consolidated statements of changes in shareholders’ equity, and cash flows for the portion of the Borrower’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, certified by the chief executive officer, chief financial officer, vice president — finance, treasurer or controller of the Borrower as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.
 
6.02.                      Certificates; Other Information.   Deliver to the Administrative Agent:
 
(a)                                  concurrently with the delivery of the financial statements referred to in Sections 6.01(a)  and (b)  (commencing with the delivery of the financial statements for the fiscal quarter ending March 31, 2014), a duly completed Compliance Certificate signed by the chief
 
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executive officer, chief financial officer, vice president — finance, treasurer or controller of the Borrower (which delivery may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes), and including a reconciliation of the Borrower’s calculation of Consolidated EBITDA versus the calculation of net income in accordance with GAAP as set forth in the financial statements referred to in Sections 6.01(a)  and (b) ;
 
(b)                                  promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
 
(c)                                   promptly to the Administrative Agent upon written request, such additional information regarding the business, financial or corporate affairs of the Borrower or any Restricted Subsidiary, or compliance with the terms of the Loan Documents, in each case which are reasonably requested by the Administrative Agent or any Lender and not subject to confidentiality restrictions or attorney-client privilege; and
 
(d)                                  promptly after obtaining knowledge thereof, notice of any public announcement by Moody’s or S&P of any downgrade in a Debt Rating.
 
Documents required to be delivered pursuant to Section 6.01(a)  or (b)  or Section 6.02(b)  (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02 ; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent and including the Securities and Exchange Commission’s website on the internet at www.sec.gov); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents.  The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
 
The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another
 
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similar electronic system (the “ Platform ”) and (b) certain of the Lenders (each, a “ Public Lender ”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.  The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “ PUBLIC ” which, at a minimum, shall mean that the word “ PUBLIC ” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “ PUBLIC ,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws ( provided , however , that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07 ); (y) all Borrower Materials marked “ PUBLIC ” are permitted to be made available through a portion of the Platform designated “ Public Side Information ;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “ PUBLIC ” as being suitable only for posting on a portion of the Platform that is not designated “ Public Side Information .”
 
6.03.                      Notices.   Promptly notify the Administrative Agent and each Lender:
 
(a)                                  of the occurrence of any Default;
 
(b)                                  of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect;
 
(c)                                   of any Disposition by the Borrower or any of its Restricted Subsidiaries of Equity Interests in EnLink MLP or EnLink Holdings or any other Equity Interests constituting Collateral ;
 
(d)                                  of any Disposition by the Borrower or any of its Restricted Subsidiaries of any assets to EnLink MLP or EnLink Holdings having an aggregate fair market value in excess of $25,000,000;
 
(e)                                   of any change in any Loan Party’s legal name or jurisdiction of organization; and
 
(f)                                    of any public announcement by Moody’s or S&P of any change in a Debt Rating.
 
Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.
 
6.04.                      Payment of Taxes, Etc.   (a) Timely file all tax returns (including any extensions) required to be filed by it, (b) pay all taxes, governmental assessments and other governmental charges or levies imposed upon it or upon its property and payable by it before the same shall become delinquent or in default, and (c) maintain appropriate accruals and reserves for all of the foregoing as required by GAAP, except to the extent that (i) it is in good faith contesting the validity thereof by appropriate proceedings, if necessary, diligently conducted and has set aside on its books adequate reserves therefor which are required by GAAP or (ii) such non-filing, non-
 
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payment or non-maintenance would not reasonably be expected to result in a Material Adverse Effect.
 
6.05.                      Preservation of Existence, Etc.   (a) Preserve and maintain its legal existence and good standing under the Laws of the jurisdiction of its organization; and (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary in the normal conduct of its business, except in each case (i) where the failure to do so would not reasonably be expected to have a Material Adverse Effect or (ii) as permitted in Section 7.03 .
 
6.06.                      Maintenance of Properties.   Maintain all of its material properties and equipment that are necessary in the operation of its business in good working order and condition, ordinary wear and tear and obsoleteness excepted, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
 
6.07.                      Maintenance of Insurance.   Maintain, with financially sound and reputable insurance companies, insurance or, at its option, self-insure in such amounts (after giving effect to any self-insurance compatible with the following standards) and against such risks as are customarily insured by other Persons engaged in the same or similar business and owning similar properties; provided , however , that notwithstanding the foregoing provisions of this  Section 6.07 , the Loan Parties or any of their Subsidiaries may effect workers’ compensation or similar insurance in respect of operations in any state or other jurisdiction through any insurance fund operated by such state or other jurisdiction or by causing to be maintained a system or systems of self-insurance in accord with applicable laws.  The insurance coverages and amounts will be reasonably determined by the Borrower, based on coverages carried by prudent owners of similar property, and with respect to each Restricted Subsidiary, may be maintained by the Borrower.
 
6.08.                      Compliance with Laws.   Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings, if necessary, diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
 
6.09.                      Books and Records.   Maintain full and accurate books of record and account in conformity with GAAP consistently applied.
 
6.10.                      Inspection Rights.   Permit representatives and independent contractors of the Administrative Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and to make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its officers and independent public accountants, all at such reasonable times during normal business hours, upon reasonable advance notice to the Borrower. Each of the foregoing inspections and examinations shall be made subject to compliance with applicable safety standards and the same conditions applicable to the Loan Parties or any Subsidiary in respect of property of that Person on the premises of Persons other than the Loan Parties, Subsidiary or Affiliate thereof, and all information, books and records furnished or requested to be made, all information to be investigated or verified, all copies and abstracts of all
 
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information, books and records and all discussion conducted with any officer, employee or representative of any Loan Party or any Subsidiary, in each case, shall be subject to any applicable attorney-client privilege exceptions which such Loan Party or such Subsidiary determines is reasonably necessary and compliance with conditions to disclosures under non-disclosure agreements between any Loan Party or any Subsidiary and Persons other than the Loan Parties, Subsidiary, or Affiliate thereof and the express undertaking of each Person acting at the direction of or on behalf of any Lender Party to be bound by the confidentiality provisions of Section 10.07 of this Agreement.
 
6.11.                      Use of Proceeds.   Use the proceeds of the Credit Extensions for (i) refinancing outstanding indebtedness under the Existing Credit Agreement, (ii) working capital, capital expenditures, repayment of intercompany debt, and acquisitions, (iii) financing fees, costs and expenses incurred by the Borrower in connection with the Combination, and (iv) other general corporate purposes not in violation of any Law applicable to it.
 
6.12.                      Additional Guarantors .  Prior to the occurrence of an Investment Grade Event:
 
(a)                                  Upon the formation or acquisition of any new direct or indirect Specified Subsidiary by any Loan Party, then the Borrower shall, at the Borrower’s expense:
 
(i)                                      subject to subsection (d) below, within 30 Business Days (or such longer period as permitted by the Administrative Agent in its sole discretion) after such formation or acquisition or such Subsidiary becoming a Specified Subsidiary, cause such Specified Subsidiary to duly execute and deliver to the Administrative Agent a supplement to the Guaranty substantially in the form attached thereto; and
 
(ii)                                   subject to subsection (d) below, within 30 Business Days (or such longer period as permitted by the Administrative Agent in its sole discretion) after such formation or acquisition or such Subsidiary becoming a Specified Subsidiary, cause such Specified Subsidiary to duly execute and deliver to the Administrative Agent Security Documents consistent in scope with the Security Documents delivered on the Closing Date (but modified as necessary to include any type of Equity Collateral not existing on the Closing Date), as specified by and in form and substance reasonably satisfactory to the Administrative Agent securing payment of the Obligations.
 
(b)                                  Upon the acquisition by the Borrower or any Specified Subsidiary of (A) any limited partner interests or common units in EnLink MLP or EnLink Holdings, (B) any Equity Interests in any Guarantor, (C) any Equity Interests in EnLink GP, or (D) any Equity Interests in any Material Restricted Subsidiary (collectively, the “ Equity Collateral ”), then the Borrower shall, at the Borrower’s expense within 30 Business Days (or such longer period as permitted by the Administrative Agent in its sole discretion) after such acquisition, cause, subject to subsection (d) below, the Equity Collateral owned directly by the Borrower or such Specified Subsidiary to be subject to a first priority (subject to Permitted Collateral Liens), perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Security Documents.
 
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(c)                                   Subject to subsection (d) below, at any time upon the request of the Administrative Agent, the Borrower shall promptly execute and deliver or cause its Specified Subsidiaries and other Subsidiaries that are Loan Parties to execute and deliver any and all further instruments and documents and take all such other action as the Administrative Agent may reasonably deem necessary or desirable in order to perfect, protect, and preserve the Liens of such Security Documents or to grant a Lien in additional Equity Collateral.
 
(d)                                  Notwithstanding anything to the contrary in this Agreement or any other Loan Document, (i) the Equity Interests in any Excluded CFC subject to any Liens under the Loan Documents shall be limited (in the aggregate), and the Collateral shall be limited (in the case of Equity Interests in an Excluded CFC), to 65% of the voting Equity Interests owned directly by the Borrower and/or its Domestic Subsidiaries in such Excluded CFC (based on the combined voting power of all classes of stock in the Excluded CFC entitled to vote, within the meaning of Treasury Regulation Section 1.956-2(c)(2)) and 100% of the non-voting Equity Interests owned directly by the Borrower and/or its Domestic Subsidiaries in such Excluded CFC, (ii) no Excluded CFC shall be required to execute a supplement to the Guaranty, and (iii) no Excluded CFC shall be required to execute any Security Documents, grant a Lien in any of its assets and/or otherwise pledge any of its assets, and no assets of any Excluded CFC shall constitute Collateral. For purposes of this Section 6.12(d) , any “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as an Equity Interest that is a voting Equity Interest (and, for the avoidance of doubt, shall not be treated as a non-voting Equity Interest).
 
6.13.                      Further Assurances.  Promptly after any reasonable request by the Administrative Agent, or any Lender through the Administrative Agent made prior to the occurrence of an Investment Grade Event, (a) correct any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Party’s properties, assets, rights or interests that are purported to be Collateral to the Liens now or hereafter intended by the parties hereto to be covered by any of the Security Documents, (iii) perfect and maintain the validity, effectiveness and priority of any of the Security Documents and any of the Liens intended by the parties hereto to be created thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Administrative Agent the rights granted or now or hereafter intended by the parties hereto to be granted to the Administrative Agent under any Loan Document or under any other instrument executed in connection with any Loan Document to which any Loan Party is or is to be a party, and cause each of its Restricted Subsidiaries to do so.
 
6.14.                      Designation of Subsidiaries .
 
(a)                                  After the Closing Date, the Borrower may designate any Subsidiary as an Unrestricted Subsidiary by delivery of a certificate of a Responsible Officer of the Borrower to the Administrative Agent, which certificate shall name each of the Subsidiaries being designated as Unrestricted Subsidiaries, state the effective date of such designation, which shall be the date
 
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of delivery of such certificate, and certify that all of the conditions set forth in this Section 6.14 have been satisfied. A Subsidiary may be designated as an Unrestricted Subsidiary, only if after giving effect to such designation no Default shall have occurred and be continuing or would occur as a consequence thereof and provided further that each of the following conditions is satisfied with respect to such Subsidiary and all of its Subsidiaries:
 
(i)                                      such Subsidiary is not a Guarantor, nor is such Subsidiary required to be a Guarantor pursuant to Section 6.12 ;
 
(ii)                                   (A) neither the Borrower nor any of its Restricted Subsidiaries provides any Guarantee of, or any credit support for, any Indebtedness (contingent or otherwise) of such Subsidiary (or any of its Subsidiaries), or otherwise is directly or indirectly liable for any Indebtedness (contingent or otherwise) of such Subsidiary (or any of its Subsidiaries), (B) no Indebtedness (contingent or otherwise) of such Subsidiary (or any of its Subsidiaries) is with recourse to the Borrower or any Restricted Subsidiary, (C) neither the Borrower nor any of its Restricted Subsidiaries has any direct or indirect obligation to maintain or preserve the financial condition of such Subsidiary (or any of its Subsidiaries) or to cause any such Subsidiary (or any of its Subsidiaries) to achieve any specified level of operating results, and (D) there are no Liens on any property of the Borrower or any Restricted Subsidiary securing, nor is any of their property otherwise subject (directly or indirectly) to the satisfaction of, any Indebtedness (contingent or otherwise), of any such Subsidiary (or any of its Subsidiaries); and
 
(iii)                                such Subsidiary does not, nor does any of its Subsidiaries (i) own any capital stock of or other equity interests in the Borrower or any Restricted Subsidiary, (ii) hold any Indebtedness of the Borrower or any Restricted Subsidiary, except in the ordinary course of business but in no event Indebtedness for borrowed money, or (iii) hold any Lien on property of the Borrower or any Restricted Subsidiary, except in connection with the ordinary course of business but in no event to secure debt for borrowed money.
 
(b)                                  If at any time any Unrestricted Subsidiary designated as such pursuant to Section 6.14(a)  fails to meet any of the requirements set forth in Section 6.14(a)(i) , (ii)  or (iii) , then (i) it and each of its Subsidiaries shall thereafter cease to be Unrestricted Subsidiaries and it and each of its Subsidiaries shall be Restricted Subsidiaries, and (ii) the Borrower shall so notify the Administrative Agent.
 
(c)                                   The Borrower may at any time designate any Unrestricted Subsidiary designated as such pursuant to Section 6.14(a)  to be a Restricted Subsidiary, provided that all of the Subsidiaries of such Unrestricted Subsidiary shall also be designated as Restricted Subsidiaries, and provided further that immediately after giving effect to such designation no Default shall have occurred and be continuing or would occur as a consequence thereof. Such designation shall be made by delivery of a certificate of a Responsible Officer of the Borrower to the Administrative Agent, which certificate shall (i) name each of the Subsidiaries being designated as a Restricted Subsidiary, (ii) state the effective date of such designation, which shall be the date of delivery of such certificate, and (iii) certify that all of the conditions to such designation set forth in this Section 6.14 have been satisfied.
 
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(d)                                  As of the Closing Date, there are no Unrestricted Subsidiaries other than EnLink MLP, EnLink Holdings, E2, E2 Appalachian, and each of their respective Subsidiaries.
 
6.15.                      Maintenance of Control of EnLink MLP and EnLink Holdings.
 
(a)                                  Maintain Control of each of EnLink MLP and EnLink Holdings;
 
(b)                                  own, directly or indirectly, at least 50% of the equity interests entitled to vote for the board of directors or equivalent governing body of EnLink GP and EnLink Holdings GP; and
 
(c)                                   cause EnLink GP to be the general partner of EnLink MLP and cause EnLink Holdings GP to be the general partner of EnLink Holdings;
 
provided that, notwithstanding anything to the contrary contained in this Agreement, EnLink Holdings and/or EnLink Holdings GP may merge with and into EnLink MLP and/or one or more of its Subsidiaries.
 
ARTICLE VII.
NEGATIVE COVENANTS
 
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder (other than contingent obligations not yet due and payable and Obligations in respect of Secured Cash Management Agreements and Secured Hedge Agreements) shall remain unpaid or unsatisfied, or (unless a collateral arrangement satisfactory to the L/C Issuer has been entered into) any Letter of Credit shall remain outstanding, no Loan Party shall, nor shall it permit any Restricted Subsidiary to, directly or indirectly:
 
7.01.                      Liens.   Create, incur, assume or permit to exist any Lien upon any of its property to secure Indebtedness, whether now owned or hereafter acquired, other than the following:
 
(a)                                  Liens pursuant to any Loan Document or securing any of the Obligations;
 
(b)                                  Liens for Taxes, assessments, charges and levies not yet delinquent or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
 
(c)                                   carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens (including Liens on property of the Borrower or any Subsidiary in the possession of storage facilities, pipelines or barges) arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith and by appropriate proceedings, if necessary, diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
 
(d)                                  Liens on cash and cash equivalents securing obligations under Swap Contracts;
 
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(e)                                   pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation (other than any Lien imposed by ERISA) or to secure letters of credit issued with respect thereto;
 
(f)                                    deposits to secure the performance of bids, trade contracts, leases (other than for borrowed money), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business (or to secure letters of credit issued in connection therewith);
 
(g)                                   easements, rights-of-way, restrictions and other similar encumbrances affecting real property or minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;
 
(h)                                  inchoate Liens in respect of pending litigation or Liens securing judgments for the payment of money (or securing letters of credit, appeal or other surety bonds related to such judgments) not constituting an Event of Default under Section 8.01(h) ;
 
(i)                                      Liens arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution and arising in the ordinary course of business;
 
(j)                                     Liens in respect of Operating Leases;
 
(k)                                  Liens securing Acquired Indebtedness, provided that (i) each such Lien (A) existed at the time the obligor thereon was merged with the Borrower or any Subsidiary or otherwise became a Subsidiary, and was not created in anticipation thereof, or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost of the acquisition of such obligor and (ii) no such Lien shall extend to or cover any other property or asset of the Borrower or any Subsidiary other than the property or assets of such obligor and any additions thereto, proceeds thereof and property in replacement or substitution thereof;
 
(l)                                      Liens on any asset acquired by the Borrower or any Subsidiary; provided that (i) each such Lien existed at the time of such acquisition and was not created in anticipation thereof and (ii) no such Lien shall extend to or cover any property or asset of the Borrower or any Subsidiary other than the property or asset so acquired and any additions thereto, proceeds thereof and property in replacement or substitution thereof;
 
(m)                              rights reserved to or vested in any Governmental Authority by the terms of any right, power, franchise, grant, license or permit, or by any provision of Law, to revoke or terminate any such right, power, franchise, grant, license or permit or to condemn or acquire by eminent domain or similar process;
 
(n)                                  rights reserved to or vested by Law in any Governmental Authority to, control or regulate any of the properties of the Borrower or any Subsidiary or the use thereof or the rights and interests of the Borrower or any Subsidiary therein, in any manner under any and all Laws;
 
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(o)                                  rights reserved to the grantors of any properties of the Borrower or any Subsidiary, and the restrictions, conditions, restrictive covenants and limitations, in respect thereto, pursuant to the terms, conditions and provisions of any rights-of-way agreements, contracts or other agreements therewith;
 
(p)                                  Liens securing obligations of a Subsidiary (but not the Borrower) owed to the Borrower or to another Subsidiary of the Borrower;
 
(q)                                  Liens securing Indebtedness, including Capital Leases, incurred or assumed for the purpose of financing all or any part of the cost of acquiring, repairing, constructing or improving fixed or capital assets; provided that (i) any such Lien shall be created substantially simultaneously with or within 12 months after the acquisition thereof or the completion of the repair, construction or improvement thereof, (ii) such Lien shall not apply to any other property or assets of the Borrower or any of its Subsidiaries (other than repairs, renewals, replacements, additions, accession, improvements and betterments thereto) and (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing, improving, altering or repairing such fixed or capital assets, as the case may be;
 
(r)                                     Liens arising out of the refinancing, extension, renewal or refunding of any debt secured by any Lien permitted by clause (k) , (l) , or (q)  of this Section 7.01 ; provided that no such Lien shall encumber any additional assets (other than additions thereto and property in replacement or substitution thereof) or secure debt with a larger principal amount (other than in respect of accrued interest, fees and transaction costs) than the debt being refinanced, extended, renewed or refunded; and
 
(s)                                    Liens on Property that is not Collateral and which Liens are not otherwise permitted herein, which secure obligations in an aggregate principal amount not to exceed at any time outstanding $35,000,000.
 
7.02.                      Investments.   Make or permit to exist any Investments, except:
 
(a)                                  Investments existing on the date of this Agreement and listed on Schedule 7.02 ;
 
(b)                                  Investments held by the Borrower or such Subsidiary in the form of cash equivalents;
 
(c)                                   loans and advances to officers, directors and employees of the Borrower and its Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and analogous ordinary business purposes;
 
(d)                                  the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of unit options, unit incentives or similar rights to the extent that such Equity Interests represent a portion of the exercise or exchange price of these unit options, unit incentives or similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in satisfaction of obligations for withholding taxes resulting from the exercise or exchange of unit options, unit incentives or similar rights;
 
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(e)                                   (i) Investments of the Borrower in any Guarantor and Investments of any Guarantor in the Borrower or in another Guarantor and (ii) Investments of any Restricted Subsidiary that is not a Guarantor in any Restricted Subsidiary that is not a Guarantor;
 
(f)                                    Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
 
(g)                                   Guarantees permitted by Section 7.03 and other Guarantees entered into in the ordinary course of business in respect of obligations of Restricted Subsidiaries not constituting Indebtedness;
 
(h)                                  Investments in Swap Contracts entered into in the ordinary course of business for non-speculative purposes as a part of its normal business operations as a risk management strategy and/or hedge against changes resulting from market conditions related to the Borrower’s or its Restricted Subsidiaries’ operations;
 
(i)                                      direct or indirect Investments in EnLink MLP and EnLink Holdings; provided that, after giving effect to such Investment on a pro forma basis, the Borrower would be in compliance with the covenants set forth in Section 7.13 and no Default or Event of Default shall have occurred and be continuing or would result therefrom; and
 
(j)                                     other Investments (other than in EnLink MLP and EnLink Holdings); provided that, at the time of, and after giving effect to, such Investments on a pro forma basis, (x) the Borrower would be in compliance with the covenant set forth in Section 7.13(a)  as if such financial covenant were 0.25:1.00 more restrictive than as set forth in Section 7.13(a) , (y) the Borrower would be in compliance with the covenant set forth in Section 7.13(b)  as if such financial covenant were 0.50:1.00 more restrictive than as set forth in Section 7.13(b) , and (z) no Default or Event of Default shall have occurred and be continuing or would result therefrom.
 
7.03.                      Indebtedness.   Create, incur, assume or suffer to exist any Indebtedness, except:
 
(a)                                  Indebtedness under the Loan Documents;
 
(b)                                  Indebtedness of (i) any Guarantor owing to the Borrower, (ii) any Guarantor owing to another Guarantor, or (iii) any Restricted Subsidiary that is not a Guarantor to another Restricted Subsidiary that is not a Guarantor;
 
(c)                                   Acquired Indebtedness;
 
(d)                                  Indebtedness in respect of Swap Contracts or credit support in respect thereof entered into in the ordinary course of business and not for speculative purposes;
 
(e)                                   Indebtedness in connection with the endorsement of negotiable instruments, Cash Management Agreements and other similar obligations in respect of netting services, overdraft protection and similar arrangements, in each case in the ordinary course of business;
 
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(f)                                    Indebtedness secured by Liens permitted by Section 7.01(q); provided that the aggregate principal amount of such Indebtedness at any time outstanding shall not exceed $50,000,000;
 
(g)                                   any refinancings, refundings, renewals or extensions of Indebtedness incurred pursuant to clause (c) or (f) of this Section 7.03 ; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
 
(h)                                  unsecured Indebtedness of the Borrower (other than Guarantees of, or other obligations in respect of, Indebtedness of Unrestricted Subsidiaries); provided that (i) the Borrower is in compliance with Section 7.13 immediately after giving effect to the incurrence of any such Indebtedness, (ii) such Indebtedness does not impose any maintenance financial covenants on the Borrower or any of the Restricted Subsidiaries, (iii) such Indebtedness shall not require any scheduled payment on account of principal (whether by redemption, purchase, retirement, defeasance, set-off or otherwise) prior to the date that is one year after the Maturity Date, and (iv) such Indebtedness shall contain terms and conditions that are customary for such transactions and not materially more restrictive, taken as a whole, than those in this Agreement;
 
(i)                                      Guarantees of Indebtedness permitted pursuant to this Section 7.03 , other than Indebtedness permitted by Section 7.03(h) ; and
 
(j)                                     other Indebtedness not otherwise permitted pursuant to the foregoing clauses (a) through (i) in an aggregate principal amount at any time outstanding not to exceed $50,000,000.
 
7.04.                      Fundamental Changes.
 
(a)                                  Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or, upon giving pro forma effect thereto, would immediately result therefrom:
 
(i)                                      the Borrower may merge or consolidate with another Person; provided that the Borrower shall be the acquiring, surviving or continuing entity;
 
(ii)                                   any Restricted Subsidiary may merge with (A) the Borrower, provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries, provided that when any Guarantor is merging with another Restricted Subsidiary, the Guarantor shall be the continuing or surviving Person; and
 
(iii)                                (i) any Restricted Subsidiary may dissolve or Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or a Guarantor; and (ii) any
 
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Restricted Subsidiary may Dispose of all or substantially all of its assets to, or merge into or consolidate with, any other Person in a transaction not prohibited by Section 7.05 ; or
 
(b)                                  Dispose of or permit any Subsidiary to Dispose of any Equity Interests in EnLink GP or EnLink Holdings GP unless (i) EnLink GP and EnLink Holdings GP remain Subsidiaries of the Borrower after giving effect to such Disposition (unless EnLink Holdings GP has merged with EnLink MLP or one of its Subsidiaries), (ii) no Event of Default exists at the time of such Disposition or would result therefrom and (iii) after giving effect to such Disposition on a pro forma basis, the Borrower would be in compliance with Section 7.13 .
 
7.05.                      Dispositions.   Make any Disposition, except:
 
(a)                                  Dispositions of obsolete or worn out property and Dispositions in the ordinary course of business of property that is no longer used or useful in the conduct of the business of the Borrower or any Restricted Subsidiary;
 
(b)                                  Dispositions of inventory in the ordinary course of business;
 
(c)                                   Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
 
(d)                                  Dispositions of property by the Borrower or any Restricted Subsidiary to the Borrower or to a Restricted Subsidiary; provided that if the transferor of such property is the Borrower or a Guarantor, the transferee thereof must either be the Borrower or a Guarantor;
 
(e)                                   Liens permitted by Section 7.01 , Investments permitted by Section 7.02 , Dispositions permitted by Section 7.04 , and Restricted Payments permitted by Section 7.06 ;
 
(f)                                    leases, subleases, licenses, sublicenses, easements, rights of way or similar rights or encumbrances in each case in the ordinary course of business and that do not materially interfere with the business of the Borrower or its Restricted Subsidiaries;
 
(g)                                   liquidations or other dispositions of cash and cash equivalents;
 
(h)                                  Dispositions of Property (i) resulting from the condemnation thereof or (ii) that has suffered a casualty (constituting a total loss or constructive total loss of such Property) upon or after receipt of the insurance proceeds of such casualty;
 
(i)                                      sales or discounts of overdue accounts receivable in the ordinary course of business, in connection with the compromise or collection thereof;
 
(j)                                     Dispositions to EnLink MLP or its Subsidiaries ; provided that (i) after giving effect to such Disposition on a pro forma basis, the Borrower would be in compliance with the covenants set forth in Section 7.13 , (ii) no Default or Event of Default shall have occurred and be continuing at the time of such Disposition or would result therefrom, and (iii) such Disposition shall be approved by EnLink Manager’s conflicts committee;
 
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(k)                                  Dispositions of the Equity Interests in, or property of, E2 and/or E2 Appalachian; provided that (i) after giving effect to such Disposition on a pro forma basis, the Borrower would be in compliance with the covenants set forth in Section 7.13 , (ii) no Default or Event of Default shall have occurred and be continuing at the time of such Disposition or would result therefrom, and (iii) such Disposition shall be for fair market value; and
 
(l)                                      Dispositions by the Borrower and its Restricted Subsidiaries not otherwise permitted under this Section 7.05 ; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition, (ii) after giving effect to such Disposition on a pro forma basis, the Borrower would be in compliance with the covenants set forth in Section 7.13 , (iii) the aggregate book value of all property Disposed of in reliance on this clause (l) in any fiscal year shall not exceed $175,000,000, and (iv) such Disposition shall be for fair market value and for at least 75% cash consideration.
 
7.06.                      Restricted Payments.   Declare or make, directly or indirectly, any Restricted Payment, except that:
 
(a)                                  each Restricted Subsidiary may make Restricted Payments to the Borrower, the Guarantors and any other Person that owns an Equity Interest in such Restricted Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
 
(b)                                  the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests of such Person;
 
(c)                                   (i) the Borrower and each Restricted Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its Equity Interests and (ii) the Borrower may repurchase, redeem or otherwise acquire or retire Equity Interests in a transaction deemed to occur upon the exercise or exchange of unit options, unit incentives or similar rights to the extent that such Equity Interests represent a portion of the exercise or exchange price of these unit options, unit incentives or similar rights, and the Borrower may repurchase, redeem or otherwise acquire or retire Equity Interests in satisfaction of obligations for withholding taxes resulting from the exercise or exchange of unit options, unit incentives or similar rights; and
 
(d)                                  the Borrower may declare or pay cash dividends to the holders of its Equity Interests; provided that at the time of the declaration of such dividend (i) no Default or Event of Default shall have occurred and be continuing or would result from the payment of such dividend, and (ii) after giving effect to the payment of such dividend, the Borrower would be in pro forma compliance with Section 7.13 .
 
7.07.                      Change in Nature of Business.   Engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on the date hereof, any business substantially related or incidental thereto, or any other business that generates gross income that constitutes “qualifying income” under Section 7704(d) of the Code.
 
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7.08.                      Transactions with Affiliates.   Enter into any material transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary course of business, other than on terms that are no less favorable to the Borrower or the applicable Restricted Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, provided that the foregoing restriction shall not apply to any of the following transactions: (a) any employment, equity award, equity option or equity appreciation agreement or plan entered into by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business of the Borrower or such Restricted Subsidiary; (b) transactions effected in accordance with the terms of agreements as in effect on the Closing Date or any amendments thereto or replacements thereof or any transactions contemplated thereby so long as any such amendment or replacement is not more disadvantageous in any material respect, taken as a whole, than the agreement so amended or replaced; (c) customary compensation, indemnification and other benefits made available to officers, directors or employees of the Borrower, any of its Restricted Subsidiaries or EnLink Manager, including reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance; (d) transactions among the Borrower and its Restricted Subsidiaries and not involving any other Affiliate; (e) Restricted Payments permitted by Section 7.06 ; and (f) other transactions approved by EnLink Manager’s conflicts committee.
 
7.09.                      Burdensome Agreements.   Enter into any material Contractual Obligation (other than this Agreement or any other Loan Document) that (x) limits the ability (i) of any Restricted Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to the Borrower or any Guarantor, (ii) of any Restricted Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or any Restricted Subsidiary to create, incur, assume or suffer to exist Liens on Collateral of such Person to secure the Obligations; or (y) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted on the Collateral to secure the Obligations, other than any such limitation existing under or by reason of:
 
(a)                                  applicable Law;
 
(b)                                  amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of Contractual Obligations described in clause (x)(i) in the lead-in to this Section 7.09 and existing on the Closing Date after giving effect to the Combination; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings of any security, agreement, instrument or other undertaking evidencing any such Contractual Obligation are no more restrictive, taken as a whole, with respect to such limitations than those contained in such security, agreement, instrument or other undertaking as it existed on the Closing Date;
 
(c)                                   amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of Contractual Obligations (other than those described in clause (x)(i) in the lead-in to this Section 7.09 ) existing on the Closing Date after giving effect to the Combination and listed on Schedule 7.09 ; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings of any security, agreement, instrument or other undertaking evidencing any such Contractual Obligation
 
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are no more restrictive, taken as a whole, with respect to such limitations than those contained in such security, agreement, instrument or other undertaking as it existed on the Closing Date;
 
(d)                                  without limiting the requirements of Section 6.12 , any Contractual Obligation (i) governing property existing at the time of the acquisition thereof, so long as the limitation relates only to the property so acquired or (ii) of any Restricted Subsidiary existing at the time such Restricted Subsidiary was merged or consolidated with or into, or acquired by, the Borrower or a Restricted Subsidiary of the Borrower, or otherwise became a Restricted Subsidiary of the Borrower in each case not created in contemplation of such acquisition, merger or consolidation, and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of such Contractual Obligations; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such limitations than those contained in such Contractual Obligations at the time of such acquisition, merger or consolidation;
 
(e)                                   customary non-assignment provisions in Contractual Obligations entered into in the ordinary course of business;
 
(f)                                    restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
 
(g)                                   without limiting the requirements of Section 6.12 , any Contractual Obligation related to any Indebtedness not prohibited by this Agreement;
 
(h)                                  any Contractual Obligation related to the sale, transfer or other disposition of a Restricted Subsidiary or property that is not prohibited by this Agreement; provided that such limitation applies only to that Restricted Subsidiary or property, as applicable, pending such sale, transfer or other disposition;
 
(i)                                      Permitted Liens;
 
(j)                                     any Contractual Obligation with respect to the disposition or distribution of property or cash in joint ventures not otherwise prohibited by this Agreement and entered into in the ordinary course of business; or
 
(k)                                  any Contractual Obligation related to preferred Equity Interests issued by a Restricted Subsidiary of the Borrower or the payment of dividends thereon in accordance with the terms thereof, provided that issuance of such preferred Equity Interests is not prohibited by Section 7.02 and the terms of such preferred Equity Interest do not expressly restrict the ability of such Restricted Subsidiary to make Restricted Payments (other than requirements to pay dividends or liquidation preferences on such preferred Equity Interests prior to paying any dividends or making any other distributions on other Equity Interests).
 
7.10.                      Use of Proceeds.   Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, (a) to purchase or carry margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose (within the meaning of Regulation U of
 
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the FRB) or (b) for any purpose that entails a violation of any of the Regulations of the FRB, including Regulations U and X.
 
7.11.                      Amendment of Organizational Documents .  Directly or indirectly amend, restate, supplement or otherwise modify (or permit any other Subsidiary to directly or indirectly amend, restate, supplement or otherwise modify) any of the terms of any Organizational Document of EnLink MLP or EnLink Holdings in any manner that would reasonably be expected to be materially adverse to the rights of the Lenders under this Agreement or any other Loan Document or that would reasonably be expected to have a Material Adverse Effect.
 
7.12.                      Limitation on EnLink GP’s Activities .  From and after the Closing Date, permit EnLink GP to, directly or indirectly, engage in any business or activity or incur any debts or liabilities except in connection with or incidental to (i) its performance as general partner or managing member, as the case may be, of EnLink MLP and any other partnership or limited liability company of which EnLink MLP is, directly or indirectly, a partner or member or (ii) the acquiring, owning or disposing of debt or equity securities of EnLink MLP or any Subsidiary of EnLink MLP.
 
7.13.                      Financial Covenants .
 
(a)                                  Consolidated Interest Coverage Ratio .  Prior to the occurrence of an Investment Grade Event, permit the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than 2.50 to 1.00.
 
(b)                                  Consolidated Leverage Ratio .  Permit the Consolidated Leverage Ratio as of the end of any fiscal quarter of the Borrower (i) occurring other than during an Acquisition Period, to be greater than 4.00 to 1.00, and (ii) occurring during an Acquisition Period, to be greater than 4.50 to 1.00.
 
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
 
8.01.                      Events of Default.   Any of the following shall constitute an Event of Default:
 
(a)                                  Non-Payment .  The Borrower or any other Loan Party fails to pay (i) when due and payable, any amount of principal of any Loan or any L/C Obligation, or (ii) within five Business Days after the same becomes due and payable, any interest on any Loan or on any L/C Obligation, any fee due hereunder pursuant to Section 2.09 , or any other amount payable hereunder or under any other Loan Document; or
 
(b)                                  Specific Covenants .  The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.03 , Section 6.05 or Article VII ; or
 
(c)                                   Other Defaults .  Any Loan Party fails to perform or comply with any of its obligations under any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document to which it is a party on its part to be performed or complied with and such failure continues for 30 days after notice of such failure is given by the Administrative Agent to the Borrower or such Loan Party; or
 
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(d)                                  Representations and Warranties .  Any representation or warranty made or deemed made by or on behalf of the Borrower or any Restricted Subsidiary herein, in any other Loan Document, shall be incorrect when made or deemed made, in any material respect; or
 
(e)                                   Cross-Default .  (i) The Borrower, EnLink Holdings or any Restricted Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts) in an aggregate principal amount which exceeds the Threshold Amount and such failure continues after the passing of the applicable notice and grace periods (other than such Indebtedness the validity of which is being contested in good faith, by appropriate proceedings (if necessary) and for which adequate reserves with respect thereto are maintained on the books of the Borrower, EnLink Holdings or such Restricted Subsidiary as required by GAAP), or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower, EnLink Holdings or any Restricted Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower, EnLink Holdings or any Restricted Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower, EnLink Holdings or such Restricted Subsidiary as a result thereof is greater than the Threshold Amount (other than amounts under such Swap Contract, the validity of which are being contested in good faith, by appropriate proceedings (if necessary) and for which adequate reserves with respect thereto are maintained on the books of the Borrower, EnLink Holdings or such Restricted Subsidiary as required by GAAP); or
 
(f)                                    EnLink MLP Cross-Default .  (i)  EnLink MLP or any of its Subsidiaries (A) fails to make any payment when due and payable (whether by scheduled maturity, required prepayment, tender, put, acceleration, demand, or otherwise) of any principal of or interest on any Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts) in an aggregate principal amount which exceeds $75,000,000 and such failure continues after the passing of the applicable notice and grace periods (other than such Indebtedness the validity of which is being contested in good faith, by appropriate proceedings (if necessary) and for which adequate reserves with respect thereto are maintained on the books of EnLink MLP or any of its Subsidiaries as required by GAAP), or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, in each case, beyond the applicable grace, cure, extension, forbearance or similar period, if the effect of which failure or other event is to cause such Indebtedness to be declared to be due and payable or required to be prepaid or repurchased (other than by regularly scheduled payment) prior to its stated maturity (provided that, with respect to clause (B) only, the foregoing shall not apply to any mandatory
 
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tender, mandatory prepayment or put in connection with the consummation of any transaction not prohibited by this Agreement); or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which EnLink MLP or any of its Subsidiaries is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which EnLink MLP or any of its Subsidiaries is an Affected Party (as so defined) and, in either event, (1) the Swap Termination Value owed by EnLink MLP or such Subsidiary as a result thereof is greater than $75,000,000 (other than amounts under such Swap Contract, the validity of which are being contested in good faith, by appropriate proceedings (if necessary) and for which adequate reserves with respect thereto are maintained on the books of EnLink MLP or such Subsidiary as required by GAAP) (2) after giving effect to any applicable grace, cure, extension, forbearance or similar period, the effect of such Early Termination Date is to cause such Swap Termination Value to become due and (3) such Swap Termination Value has not been paid when due; or
 
(g)                                   Insolvency Proceedings, Etc.   Any Loan Party, EnLink MLP, EnLink GP, EnLink Holdings, EnLink Holdings GP or any other Material Subsidiary (or two or more Subsidiaries that, if combined, would constitute a Material Subsidiary) institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or
 
(h)                                  Inability to Pay Debts; Attachment .  (i) Any Loan Party, EnLink MLP, EnLink GP, EnLink Holdings, EnLink Holdings GP or any other Material Subsidiary (or two or more Subsidiaries that, if combined, would constitute a Material Subsidiary) becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not stayed, released, vacated or fully bonded within 60 days (or such longer period for which a stay of enforcement is allowed by applicable Law) after its issue or levy; or
 
(i)                                      Judgments .  There is entered against any Loan Party, EnLink MLP, EnLink GP, EnLink Holdings, EnLink Holdings GP or any other Material Subsidiary (or two or more Subsidiaries that, if combined, would constitute a Material Subsidiary) (i) a judgment for the payment of money in an aggregate amount (as to all such judgments or orders) which exceeds the Threshold Amount (to the extent not covered by independent third-party insurance as to which such insurer has not disputed coverage, or self-insurance reasonably acceptable to the Administrative Agent) at any one time outstanding and prior to the discharge thereof, or (ii) any one or more non-monetary final judgments that have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are lawfully commenced by any creditor upon such judgment or order, or (B) there is a period of 30 consecutive days after the
 
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entry of such judgment during which a discharge, stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
 
(j)                                     ERISA .  (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
 
(k)                                  Invalidity of Loan Documents .  Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the payment Obligations (other than contingent obligations not yet due and payable), ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document;
 
(l)                                      Change of Control .  There occurs any Change of Control; or
 
(m)                              Security Documents .  Any Security Document after delivery thereof pursuant to Section 4.01 or 6.12 shall for any reason (other than pursuant to the terms hereof or thereof) cease to create a valid and perfected first priority Lien (subject to Permitted Collateral Liens) on the Equity Interests constituting Collateral purported to be covered thereby, except to the extent that any such loss of perfection or priority results from any act or failure to act by the Administrative Agent.
 
8.02.                      Remedies Upon Event of Default.   If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
 
(a)                                  declare the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated or suspended (as the case may be), whereupon such commitments and obligation shall be terminated or suspended (as the case may be);
 
(b)                                  declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;
 
(c)                                   require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to 105% of the aggregate L/C Obligations then outstanding); and
 
(d)                                  exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under the Loan Documents;
 
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provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts that have accrued and are owing as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
 
8.03.                      Application of Funds.   After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02 ), any amounts received on account of the Obligations shall, subject to the provisions of Sections 2.15 and 2.16 be applied by the Administrative Agent in the following order:
 
First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III ) payable to the Administrative Agent in its capacity as such;
 
Second , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest, Letter of Credit Fees, Obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or the L/C Issuer) and amounts payable under Article III ) arising under the Loan Documents, ratably among them in proportion to the respective amounts described in this clause Second payable to them;
 
Third , to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Third payable to them;
 
Fourth , to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings and Obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements and to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.15 , ratably among the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks and the Administrative Agent for the account of the L/C Issuer in proportion to the respective amounts described in this clause Fourth held by them; and
 
Last , the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
 
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Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Obligations otherwise set forth above in this Section.
 
Subject to Sections 2.03(c)  and 2.15 , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other payment Obligations, if any, in the order set forth above.
 
Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.  Each Cash Management Bank or Hedge Bank not a party to the Credit Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a “Lender” party hereto.
 
ARTICLE IX.
ADMINISTRATIVE AGENT
 
9.01.                      Appointment and Authority .
 
(a)                                  Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such provisions.  It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law; provided that the meaning of such term in Section 10.06(c) is intended to be consistent with the meaning of such term as used in Section 5f.103-1(c) of the United States Treasury Regulations and any other analogous sections of the Code or United States Treasury Regulations. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
 
(b)                                  The Administrative Agent shall also act as the “ collateral agent ” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan
 
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Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto.  In this connection, the Administrative Agent, as “ collateral agent ” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX and Article X (including Section 10.04(c) , as though such co-agents, sub-agents and attorneys-in-fact were the “ collateral agent ” under the Loan Documents) as if set forth in full herein with respect thereto.
 
9.02.                      Rights as a Lender.   The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Restricted Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.
 
9.03.                      Exculpatory Provisions.   The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature.  Without limiting the generality of the foregoing, the Administrative Agent:
 
(a)                                  shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
 
(b)                                  shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
 
(c)                                   shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
 
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the
 
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Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02 ) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.
 
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Security Documents, (v) the value or sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
 
9.04.                      Reliance by Administrative Agent .  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
 
9.05.                      Delegation of Duties.   The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.  The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non
 
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appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
 
9.06.                      Resignation of Administrative Agent .
 
(a)                                  The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “ Resignation Effective Date ”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above.  Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
 
(b)                                  If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d)  of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
 
(c)                                   With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Secured Parties under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring or removed Administrative
 
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Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.
 
(d)                                  Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender.  If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) .  If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) .  Upon the appointment by the Borrower of a successor L/C Issuer or Swing Line Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as applicable, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America  with respect to such Letters of Credit.
 
9.07.                      Non-Reliance on Administrative Agent and Other Lenders.   Each Lender and the L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
 
9.08.                      No Other Duties, Etc.   Anything herein to the contrary notwithstanding, none of the Joint Lead Arrangers, Co-Syndication Agents, or Co-Documentation Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.
 
9.09.                      Administrative Agent May File Proofs of Claim .  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C
 
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Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise
 
(a)                                  to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i)  and (j) , 2.09 and 10.04 ) allowed in such judicial proceeding; and
 
(b)                                  to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
 
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04 .
 
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.
 
The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law.  In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase).
 
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In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in clauses (a) through (h) of Section 10.01 of this Agreement, (iii) the Administrative Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any Equity Interests and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action, and (iv) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
 
9.10.                      Collateral and Guaranty Matters .  Without limiting the provisions of Section 9.09 , each Lender (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank, and on behalf of their Affiliates in such capacities) and the L/C Issuer irrevocably authorize the Administrative Agent, at its option and in its discretion,
 
(a)                                  to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full in cash of all Obligations (other than (A) contingent indemnification obligations and (B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedge Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the L/C Issuer shall have been made), (ii) that is Disposed of  or to be Disposed of  as part of or in connection with any Disposition permitted hereunder or under any other Loan Document, (iii) subject to Section 10.01 , if approved, authorized or ratified in writing by the Required Lenders, or (iv) upon the occurrence of an Investment Grade Event;
 
(b)                                  to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Permitted Collateral Lien on such property  of the type described in subclause (ii) of the definition thereof, and to enter into any intercreditor agreement, subordination agreement or similar agreement with respect to any such property; and
 
(c)                                   to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted under the Loan Documents or upon the occurrence of an Investment Grade Event.
 
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Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10 . In each case as specified in this Section 9.10 , the Administrative Agent will, at the Borrower’s expense, promptly execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the Liens granted under the Security Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10 .
 
The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
 
9.11.                      Secured Cash Management Agreements and Secured Hedge Agreements .  Except as otherwise expressly set forth herein or in any Guaranty or any Security Document, no Cash Management Bank or Hedge Bank that obtains the benefits of Section 8.03 , any Guaranty or any Collateral by virtue of the provisions hereof or of any Guaranty or any Security Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents.  Notwithstanding any other provision of this Agreement to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.
 
ARTICLE X. 
 MISCELLANEOUS
 
10.01.               Amendments, Etc.   No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (or the Administrative Agent with the written consent of the Required Lenders) and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no such amendment, waiver or consent shall:
 
(a)                                  waive any condition set forth in Section 4.01(a) without the written consent of each Lender;
 
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(b)                                  extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02 ) without the written consent of such Lender;
 
(c)                                   postpone any date fixed by this Agreement or any other Loan Document for any payment or mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby;
 
(d)                                  reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01 ) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided , however , that only the consent of the Required Lenders shall be necessary (i) to amend the definition of “ Default Rate ” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;
 
(e)                                   change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender;
 
(f)                                    change any provision of this Section or the definition of “ Required Lenders ” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender;
 
(g)                                   release all or substantially all of the value of the Guaranty (other than upon the occurrence of an Investment Grade Event) without the written consent of each Lender, except to the extent the release of any Guarantor is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone); or
 
(h)                                  release all or substantially all of the Collateral (other than upon the occurrence of an Investment Grade Event) without the written consent of each Lender, except to the extent the release of the Collateral is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent acting alone);
 
and, provided further , that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any
 
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amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended, nor the principal owed to any such Lender reduced, or the final maturity thereof extended, without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
 
10.02.               Notices; Effectiveness; Electronic Communication .
 
(a)                                  Notices Generally .  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
 
(i)                                      if to the Borrower or any other Loan Party, the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02 ; and
 
(ii)                                   if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).
 
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient).  Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
 
(b)                                  Electronic Communications .  Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent, the Swing Line Lender, the L/C Issuer or any Loan Party may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.
 
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Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) , if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
 
(c)                                   The Platform .  THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “ Agent Parties ”) have any liability to any Loan Party, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission of Borrower Materials through the Internet except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided however, that in no event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
 
(d)                                  Change of Address, Etc .  Each Loan Party, the Administrative Agent, the L/C Issuer and the Swing Line Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender.  In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.  Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the
 
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Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
 
(e)                                   Reliance by Administrative Agent, L/C Issuer and Lenders .  The Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic Committed Loan Notices, Letter of Credit Applications and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  Each Loan Party shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower.  All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
 
10.03.               No Waiver; Cumulative Remedies; Enforcement.   No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
 
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided , however , that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13 ), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided , further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
 
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10.04.               Expenses; Indemnity; Damage Waiver .
 
(a)                                  Costs and Expenses .  The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the reasonable fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit; provided that such fees, charges and disbursements of counsel shall be limited to a single firm of counsel for the Administrative Agent, Lenders and the L/C Issuer and, if reasonably necessary, a single firm of local or regulatory counsel in each appropriate jurisdiction and a single firm of special counsel for each relevant specialty, in each case for such Person, and, solely in the case of an actual or perceived conflict of interest, where the Administrative Agent, any Lender or the L/C Issuer affected by such conflict informs the Borrower of such conflict, one additional firm of counsel in each relevant jurisdiction for such Person similarly situated.
 
(b)                                  Indemnification by the Borrower .  The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of any counsel for the Indemnitees), incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Loan Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party thereto , IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF
 
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THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE ; provided that (A) such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or a breach in bad faith by an Indemnitee of its obligations under the Loan Documents, and (B) such fees, charges and disbursements of counsel shall be limited to a single firm of counsel for all the Indemnitees and, if reasonably necessary, a single firm of local or regulatory counsel in each appropriate jurisdiction and a single firm of special counsel for each relevant specialty, in each case for all such Indemnitees, and, solely in the case of an actual or perceived conflict of interest, where the Indemnitee affected by such conflict informs the Borrower of such conflict, one additional firm of counsel in each relevant jurisdiction for the affected Indemnitee similarly situated.  Without limiting the provisions of Section 3.01(c) , this Section 10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
 
(c)                                   Reimbursement by Lenders .  To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or  (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer, the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer, the Swing Line Lender or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), provided, further that, the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swing Line Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swing Line Lender in connection with such capacity.  The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d) .
 
(d)                                  Waiver of Consequential Damages, Etc.   To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby waives, and acknowledges that no Subsidiary shall have, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee or the breach in bad faith of such Indemnitee of its obligations hereunder or thereunder as determined by a final and nonappealable judgment of a court of competent jurisdiction.
 
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(e)                                   Payments .  All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
 
(f)                                    Survival .  The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation of the Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
 
10.05.               Payments Set Aside.   To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
 
10.06.               Successors and Assigns .
 
(a)                                  Successors and Assigns Generally .  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
 
(b)                                  Assignments by Lenders .  Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b) ,
 
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participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
 
(i)                                      Minimum Amounts .
 
(A)                                in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
 
(B)                                in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if the “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).
 
(ii)                                   Proportionate Amounts .  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;
 
(iii)                                Required Consents .  No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
 
(A)                                the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received written notice thereof;
 
(B)                                the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and
 
(C)                                the consent of the L/C Issuer and the Swing Line Lender shall be required for any assignment.
 
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(iv)                               Assignment and Assumption .  The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided , however , that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
 
(v)                                  No Assignment to Certain Persons .  No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person.
 
(vi)                               Certain Additional Payments .  In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
 
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01 , 3.04 , 3.05 , and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided , that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.  Any
 
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assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
 
(c)                                   Register .  The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”).  The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
 
(d)                                  Participations .  Any Lender may at any time, without the consent of, or notice to, the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender, sell participations to any Person (other than a natural Person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.04(c) without regard to the existence of any participation.
 
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any  provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 , 3.04 and 3.05 (subject to the requirements and limitations therein, including the requirements under Section 3.01(e) (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 as if it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04 , with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant
 
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acquired the applicable participation .  Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 and Section 10.13 with respect to any Participant.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
 
(e)                                   Certain Pledges .  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
 
(f)                                    Resignation as L/C Issuer or Swing Line Lender after Assignment .  Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower, resign as Swing Line Lender.  In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided , however , that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be.  If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) ).  If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) .  Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall
 
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succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
 
10.07.               Treatment of Certain Information; Confidentiality .  Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.14(d) or Section 2.14(c) or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i)  any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower.  For purposes of this Section, “Information” means all information received from the Borrower or any Subsidiary in connection with this Agreement and the other Loan Documents relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
 
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
 
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10.08.     Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party against any and all of the obligations of the Borrower or any other Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer or their respective Affiliates, irrespective of whether such Lender, L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or any other Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or the L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuer and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
 
10.09.     Interest Rate Limitation.   Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.  In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
 
10.10.     Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or the L/C Issuer, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in
 
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Section 4.01 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Agreement.
 
10.11.     Survival of Representations and Warranties.  All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
 
10.12.     Severability.   If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  Without limiting the foregoing provisions of this Section 10.12 , if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
 
10.13.     Replacement of Lenders.  If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06 , or if any Lender is a Defaulting Lender or a Non-Consenting Lender or if any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06 ), all of its interests, rights (other than its existing rights to payments pursuant to Sections 3.01 and 3.04 ) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
 
(a)           the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 10.06(b) ;
 
(b)           such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other
 
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amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05 ) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
 
(c)           in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01 , such assignment will result in a reduction in such compensation or payments thereafter;
 
(d)           such assignment does not conflict with applicable Laws; and
 
(e)           in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.
 
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
 
10.14.     Governing Law; Jurisdiction; Etc .
 
(a)           GOVERNING LAW .  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
 
(b)           SUBMISSION TO JURISDICTION .  EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION, LITIGATION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY OTHER PARTY
 
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HERETO OR THERETO, THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
 
(c)           WAIVER OF VENUE .  EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
 
(d)           SERVICE OF PROCESS .  EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 .  NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
 
10.15.     Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
 
10.16.     No Advisory or Fiduciary Responsibility.  In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Arrangers and the Lenders are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, the Arrangers and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any
 
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other Person and (B) neither the Administrative Agent, the Arrangers nor any Lender has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and neither the Administrative Agent, the Arrangers nor any Lender has any obligation to disclose any of such interests to the Borrower or its Affiliates.  To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent, the Arrangers, or any Lender with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
 
10.17.     Electronic Execution of Assignments and Certain Other Documents.  The words “execute,” “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
 
10.18.     USA PATRIOT Act.  Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the Act.  The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “ know your customer ” and anti-money laundering rules and regulations, including the Act.
 
10.19.     Time of the Essence .  Time is of the essence of the Loan Documents.
 
10.20.     Keepwell.  The Borrower at the time the Guaranty or the grant of the security interest under the Loan Documents, in each case, by any Specified Loan Party, becomes effective with respect to any Swap Obligation, hereby absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under its Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering the Borrower’s obligations and undertakings under this Section 10.20 voidable under applicable law relating to fraudulent conveyance or fraudulent
 
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transfer, and not for any greater amount). The obligations and undertakings of the Borrower under this Section shall remain in full force and effect until the Obligations have been paid and performed in full. The Borrower intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
 
10.21.     ENTIRE AGREEMENT .  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 	ENLINK MIDSTREAM, LLC	
 	 	
 	By: EnLink Midstream Manager, LLC, its managing member	

 	 	By:	/s/ Michael J. Garberding	
 	 	Name:	Michael J. Garberding	
 	 	Title:	Executive Vice President and	
 	 	 	Chief Financial Officer	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	BANK OF AMERICA, N.A., as Administrative Agent	

 	By:	/s/ Henry C. Pennell	
 	Name:	Henry C. Pennell	
 	Title:	Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender	

 	By:	/s/ Adam H. Fey	
 	Name:	Adam H. Fey	
 	Title:	Director	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	CITIBANK, N.A., as a Lender and L/C Issuer	

 	By:	/s/ Andrew Sidford	
 	Name:	Andrew Sidford	
 	Title:	Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	WELLS FARGO BANK, N.A., as a Lender and L/C Issuer	

 	By:	/s/ Andrew Ostrov	
 	Name:	Andrew Ostrov	
 	Title:	Director	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	BANK OF MONTREAL, as a Lender	

 	By:	/s/ Gumaro Tijerina	
 	Name:	Gumaro Tijerina	
 	Title:	Managing Director	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	ROYAL BANK OF CANADA, as a Lender	

 	By:	/s/ Jason S. York	
 	Name:	Jason S. York	
 	Title:	Authorized Signatory	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as a Lender	

 	By:	/s/ Mark Oberreuter	
 	Name:	Mark Oberreuter	
 	Title:	Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	BARCLAYS BANK PLC, as a Lender	

 	By:	/s/ Vanessa Kurbatskiy	
 	Name:	Vanessa Kurbatskiy	
 	Title:	Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	COMPASS BANK, as a Lender	

 	By:	/s/ Umar Hassan	
 	Name:	Umar Hassan	
 	Title:	Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	COMERICA BANK, as a Lender	

 	By:	/s/ Brandon M. White	
 	Name:	Brandon M. White	
 	Title:	Assistant Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender	

 	By:	/s/ Michael Spaight	
 	Name:	Michael Spaight	
 	Title:	Authorized Signatory	

 	By:	/s/ Whitney Gaston	
 	Name:	Whitney Gaston	
 	Title:	Authorized Signatory	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender	

 	By:	/s/ Ming K. Chu	
 	Name:	Ming K. Chu	
 	Title:	Vice President	

 	By:	/s/ Virginia Cosenza	
 	Name:	Virginia Cosenza	
 	Title:	Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	GOLDMAN SACHS BANK USA, as a Lender	

 	By:	/s/ Mark Walton	
 	Name:	Mark Walton	
 	Title:	Authorized Signatory	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

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

 	By:	/s/ Debra Hrelja	
 	Name:	Debra Hrelja	
 	Title:	Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	MORGAN STANLEY BANK, N.A., as a Lender	

 	By:	/s/ Kelly Chin	
 	Name:	Kelly Chin	
 	Title:	Authorized Signatory	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	PNC BANK, NATIONAL ASSOCIATION, as a Lender	

 	By:	/s/ John Berry	
 	Name:	John Berry	
 	Title:	Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	THE ROYAL BANK OF SCOTLAND PLC, as a Lender	

 	By:	/s/ David Slye	
 	Name:	David Slye	
 	Title:	Authorised Signatory	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	UBS AG, STAMFORD BRANCH, as a Lender	

 	By:	/s/ Lana Gifas	
 	Name:	Lana Gifas	
 	Title:	Director	

 	By:	/s/ Jennifer Anderson	
 	Name:	Jennifer Anderson	
 	Title:	Associate Director	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	U.S. BANK NATIONAL ASSOCIATION, as a Lender	

 	By:	/s/ Kevin S. McFadden	
 	Name:	Kevin S. McFadden	
 	Title:	Senior Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	AMEGY BANK NATIONAL ASSOCIATION, as a Lender	

 	By:	/s/ Jill McSorley	
 	Name:	Jill McSorley	
 	Title:	Senior Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	THE BANK OF NOVA SCOTIA, as a Lender	

 	By:	/s/ Mark Sparrow	
 	Name:	Mark Sparrow	
 	Title:	Director	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as a Lender	

 	By:	/s/ Sharada Manne	
 	Name:	Sharada Manne	
 	Title:	Managing Director	

 	By:	/s/ Michael Willis	
 	Name:	Michael Willis	
 	Title:	Managing Director	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	FIFTH THIRD BANK, as a Lender	

 	By:	/s/ Justin B. Crawford	
 	Name:	Justin B. Crawford	
 	Title:	Director	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	THE HUNTINGTON NATIONAL BANK, as a Lender	

 	By:	/s/ Margaret Niekrash	
 	Name:	Margaret Niekrash	
 	Title:	Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	RAYMOND JAMES BANK N.A., as a Lender	

 	By:	/s/ Kathy A. Bennett	
 	Name:	Kathy A. Bennett	
 	Title:	Senior Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	REGIONS BANK, as a Lender	

 	By:	/s/ Richard Kaufman	
 	Name:	Richard Kaufman	
 	Title:	Senior Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	SUMITOMO MITSUI BANKING CORPORATION, as a Lender	

 	By:	/s/ James D. Weinstein	
 	Name:	James D. Weinstein	
 	Title:	Managing Director	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 

 	SUNTRUST BANK, as a Lender	

 	By:	/s/ Shannon Juhan	
 	Name:	Shannon Juhan	
 	Title:	Vice President	
 
[SIGNATURE PAGE TO CREDIT AGREEMENT — ENLINK MIDSTREAM, LLC]

 
SCHEDULE 2.01
 
COMMITMENTS
AND APPLICABLE PERCENTAGES

Lender	 	Commitment	 	Applicable
Percentage	 	
Bank of America, N.A.	 	$	15,000,000.00	 	6.000000000	%	
Citibank, N.A.	 	$	15,000,000.00	 	6.000000000	%	
Wells Fargo Bank, N.A.	 	$	15,000,000.00	 	6.000000000	%	
Bank of Montreal	 	$	15,000,000.00	 	6.000000000	%	
Royal Bank of Canada	 	$	15,000,000.00	 	6.000000000	%	
The Bank of Tokyo-Mitsubishi UFJ, Ltd.	 	$	10,000,000.00	 	4.000000000	%	
Barclays Bank PLC	 	$	10,000,000.00	 	4.000000000	%	
Compass Bank	 	$	10,000,000.00	 	4.000000000	%	
Comerica Bank	 	$	10,000,000.00	 	4.000000000	%	
Credit Suisse AG, Cayman Islands Branch	 	$	10,000,000.00	 	4.000000000	%	
Deutsche Bank AG New York Branch	 	$	10,000,000.00	 	4.000000000	%	
Goldman Sachs Bank USA	 	$	10,000,000.00	 	4.000000000	%	
JPMorgan Chase Bank, N.A.	 	$	10,000,000.00	 	4.000000000	%	
Morgan Stanley Bank, N.A.	 	$	10,000,000.00	 	4.000000000	%	
PNC Bank, National Association	 	$	10,000,000.00	 	4.000000000	%	
The Royal Bank of Scotland Plc	 	$	10,000,000.00	 	4.000000000	%	
UBS AG, Stamford Branch	 	$	10,000,000.00	 	4.000000000	%	
U.S. Bank National Association	 	$	10,000,000.00	 	4.000000000	%	
Amegy Bank National Association	 	$	5,000,000.00	 	2.000000000	%	
The Bank of Nova Scotia	 	$	5,000,000.00	 	2.000000000	%	
Credit Agricole Corporate and Investment Bank	 	$	5,000,000.00	 	2.000000000	%	
Fifth Third Bank	 	$	5,000,000.00	 	2.000000000	%	
The Huntington National Bank	 	$	5,000,000.00	 	2.000000000	%	
Raymond James Bank N.A.	 	$	5,000,000.00	 	2.000000000	%	
Regions Bank	 	$	5,000,000.00	 	2.000000000	%	
Sumitomo Mitsui Banking Corporation	 	$	5,000,000.00	 	2.000000000	%	
SunTrust Bank	 	$	5,000,000.00	 	2.000000000	%	
 	 	 	 	 	 	
Total	 	$	250,000,000.00	 	100.000000000	%	
 
Schedule 2.01 Credit Agreement
 
1 

 
SCHEDULE 5.06
 
LITIGATION
 
None
 
Schedule 5.06 Credit Agreement
 
1 

 
SCHEDULE 5.08
 
EQUITY INTERESTS
 
Part (a).                  Ownership of pledged Equity Interests.

Issuer	 	Record Owner	 	Ownership
Percentage	 	Number/Class of
Equity Interests	 	Certificate No. (if
applicable)	
EnLink Midstream GP, LLC	 	Crosstex Energy, Inc.	 	100%	 	limited liability company interests	 	1	
EnLink Midstream Holdings, LP	 	Acacia Natural Gas Corp I, Inc.	 	50%	 	limited partnership interests	 	1	
EnLink Midstream Partners, LP	 	Crosstex Energy, Inc.	 	approximately 7%	 	16,414,830 common units	 	N/A(1)	
Acacia Natural Gas Corp I, Inc.	 	EnLink Midstream, LLC	 	100%	 	1 common share	 	1	
Crosstex Energy, Inc.	 	EnLink Midstream, LLC	 	100%	 	1 common share	 	367	
 
Part (b).                  Information regarding Loan Parties.

Loan Party	 	Jurisdiction of Incorporation
or Formation	 	Principal Place of
Business	 	U.S. Federal Taxpayer 
Identification Number	
EnLink Midstream, LLC	 	Delaware	 	2501 Cedar Springs
Suite 100
Dallas, Texas 75201	 	46-4108528	
Acacia Natural Gas Corp I, Inc.	 	Delaware	 	2501 Cedar Springs
Suite 100
Dallas, Texas 75201	 	46-4835197	
Crosstex Energy, Inc. (2)	 	Delaware	 	2501 Cedar Springs
Suite 100
Dallas, Texas 75201	 	52-2235832	

(1)  Common units held in EnLink Midstream Partners, LP to be certificated and delivered within 10 Business Days after the Closing Date (or such longer period as permitted by the Administrative Agent in its sole discretion).
 
(2)  Name to be changed to EnLink Midstream, Inc. after the Closing Date.
 
Schedule 5.08 Credit Agreement
 
1 

 
SCHEDULE 5.12
 
ERISA
 
None
 
Schedule 5.12 Credit Agreement
 
1 

 
SCHEDULE 5.15
 
COMPLIANCE WITH LAWS
 
None
 
Schedule 5.15 Credit Agreement
 
1 

 
SCHEDULE 7.02
 
INVESTMENTS
 
Investments in the Borrower and its Subsidiaries and joint ventures existing on the Closing Date.
 
Schedule 7.02 Credit Agreement
 
1 

 
SCHEDULE 7.09
 
BURDENSOME AGREEMENTS
 
Organization Documents of EnLink GP and EnLink MLP.
 
Schedule 7.09 Credit Agreement
 
1 

 
SCHEDULE 10.02
 
ADMINISTRATIVE AGENT’S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
 
BORROWER:
 
ENLINK MIDSTREAM, LLC
2501 Cedar Springs
Suite 100
Dallas, Texas 75201
Attention: Chief Financial Officer
Telephone: 214-721-9422
Facsimile:  214-953-9501
Electronic Mail: michael.garberding@enlink.com
Website Address:  www.enlink.com
Taxpayer Identification Number: 16-1616605
 
with a copy to:
 
ENLINK MIDSTREAM, LLC
2501 Cedar Springs
Suite 100
Dallas, Texas 75201
Attention: General Counsel
Telephone: 214-721-9246
Facsimile: 214-953-9501
Electronic Mail: joe.davis@enlink.com
 
with a copy to:
 
BAKER BOTTS L.L.P
2001 Ross Avenue
Suite 600
Dallas, Texas 75201
Attention: Luke A. Weedon
Telephone: 214-953-6970
Facsimile: 214-661-4970
Electronic Mail: luke.weedon@bakerbotts.com
 
Schedule 10.02 Credit Agreement
 
1 

 
ADMINISTRATIVE AGENT:
 
Administrative Agent’s Office 
(for payments and Requests for Credit Extensions):
 
Bank of America, N.A.
Street Address: 901 Main Street, 14 th  Floor
Mail Code: TX1-492-14-14
City, State ZIP Code: Dallas, TX 75202
Attention: Mariah Anderson
Telephone: (972) 338-3769
Facsimile:  (214) 290-9409
Electronic Mail: mariah.m.anderson@baml.com
Account No.:  1292000883
Ref:  EnLink Midstream LLC
ABA# 026009593
 
Other Notices as Administrative Agent :
 
Bank of America, N.A.
Agency Management
Street Address:  901 Main Street, 14 th  Floor
Mail Code:  TX1-492-14-11
City, State ZIP Code:  Dallas, TX 75202
Attention:  Henry Pennell
Telephone:  (214) 209-1226
Facsimile:   (214) 290-9448
Electronic Mail: henry.pennell@baml.com
 
L/C ISSUER:
 
Bank of America, N.A.
Trade Operations
Street Address:  100, Temple Street
Mail Code:  CA9-705-07-05
City, State ZIP Code: Los Angeles CA 900012-1514
Attention:  Sandra Leon
Telephone: 213-580-8369
Telecopier:  213-457-8841
Electronic Mail:  sandra.leon@baml.com
 
2 

 
SWING LINE LENDER:
 
Bank of America, N.A.
Street Address: 901 Main Street, 14 th  Floor
Mail Code: TX1-492-14-14
City, State ZIP Code: Dallas, TX 75202
Attention: Mariah Anderson
Telephone: (972) 338-3769
Facsimile:  (214) 290-9409
Electronic Mail: mariah.m.anderson@baml.com
Account No.:  1292000883
Ref:  EnLink Midstream LLC
ABA# 026009593
 
3 

 
EXHIBIT A
 
FORM OF COMMITTED LOAN NOTICE
 
Date:                        , 20     
 
To:                              Bank of America, N.A., as Administrative Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Credit Agreement, dated as of March 7, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among EnLink Midstream, LLC, a Delaware limited liability company (the “ Borrower ”), the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The undersigned hereby requests (select one):

 	o A Borrowing of Committed Loans	
 	 	
 	o A [conversion] or [continuation] of Committed Loans	
 	 	
1.	On                                                               (a Business Day).	
 	 	
2.	In the amount of $                                         .	
 	 	
3.	Comprised of:	o Base Rate Loans	
 	 	 	
 	 	o Eurodollar Rate Loans	
 	 	
4.	For Eurodollar Rate Loans: with an Interest Period of         months.	
 
The Committed Borrowing, if any, requested herein complies with the provisos to the first sentence of Section 2.01 of the Agreement.

 	ENLINK MIDSTREAM, LLC	
 	 	
 	By: EnLink Midstream Manager, LLC, its managing member	

 	By:	 	
 	Name:	 	
 	Title:	 	
 
Exhibit A to Credit Agreement
 
1 

 
EXHIBIT B
 
FORM OF SWING LINE LOAN NOTICE
 
Date:                            , 20    
 
To:                              Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Credit Agreement, dated as of March 7, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among EnLink Midstream, LLC, a Delaware limited liability company (the “ Borrower ”), the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The undersigned hereby requests a Swing Line Loan:

1.	On                                                                          (a Business Day).	
 	 	
2.	In the amount of $                                                      .	
 
The Swing Line Borrowing requested herein complies with the requirements of the provisos to the first sentence of Section 2.04(a)  of the Agreement.

 	ENLINK MIDSTREAM, LLC	
 	 	
 	By: EnLink Midstream Manager, LLC, its managing member	

 	By:	 	
 	Name:	 	
 	Title:	 	
 
Exhibit B to Credit Agreement
 
1 

 
EXHIBIT C
 
FORM OF NOTE
 
FOR VALUE RECEIVED, the undersigned hereby promises to pay to                                            or its registered assigns (the “ Lender ”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of March 7, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among EnLink Midstream, LLC, a Delaware limited liability company (the “ Borrower ”), the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement.  Except as otherwise provided in Section 2.04(f)  of the Agreement with respect to Swing Line Loans, all payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office.  If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.
 
This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein.  This Note is also entitled to the benefits of the Guaranty and is secured by the Collateral.  Upon the occurrence and during the continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable as provided in the Agreement.  Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, Type, amount and maturity of its Loans and payments with respect thereto.
 
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
 
Exhibit C to Credit Agreement
 
1 

 
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 	ENLINK MIDSTREAM, LLC	
 	 	
 	By: EnLink Midstream Manager, LLC, its managing member	

 	By:	 	
 	Name:	 	
 	Title:	 	
 
2 

 
LOANS AND PAYMENTS WITH RESPECT THERETO

Date	 	Type of
Loan Made	 	Amount of
Loan Made	 	End of
Interest
Period	 	Amount of
Principal or
Interest
Paid This
Date	 	Outstanding
Principal
Balance
This Date	 	Notation
Made By	 	

 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 
3 

 
EXHIBIT D
 
FORM OF COMPLIANCE CERTIFICATE
 
Financial Statement Date:                        
 
To:                              Bank of America, N.A., as Administrative Agent
 
Ladies and Gentlemen:
 
Reference is made to that certain Credit Agreement, dated as of March 7, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among EnLink Midstream, LLC, a Delaware limited liability company (the “ Borrower ”), the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
The undersigned Responsible Officer(1) hereby certifies as of the date hereof that he/she is the                                                                                    of EnLink Midstream Manager, LLC, a Delaware limited liability company, the managing member of the Borrower, and that, as such, he/she is authorized to execute and deliver this Compliance Certificate to the Administrative Agent on the behalf of the Borrower, and that:
 
[ Use following paragraph 1 for fiscal year-end financial statements ]
 
1.                                       The Borrower has delivered the year-end audited financial statements required by Section 6.01(a)  of the Agreement for the fiscal year of the Borrower ended as of the above Financial Statement Date, together with the report and opinion of an independent certified public accountant required by such section.
 
[ Use following paragraph 1 for fiscal quarter-end financial statements ]
 
1.                                       The Borrower has delivered the unaudited financial statements required by Section 6.01(b)  of the Agreement for the fiscal quarter of the Borrower ended as of the above Financial Statement Date.  Such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.
 
2.                                       The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Borrower during the accounting period covered by such financial statements.

(1)  To be the chief executive officer, chief financial officer, vice president — finance, treasurer or controller of the Borrower.
 
Exhibit D to Credit Agreement
 
1 

 
3.                                       A review of the activities of the Borrower during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Borrower performed and observed all its Obligations under the Loan Documents, and
 
[select one:]
 
[ to the best knowledge of the undersigned, during such fiscal period, no Default has occurred and is continuing. ]
 
— or—
 
[ to the best knowledge of the undersigned, during such fiscal period, the following is a list of each Default and its nature and status: ]
 
4.                                       The representations and warranties of the Borrower contained in Article V of the Agreement, and any representations and warranties of the Borrower that are contained in any other Loan Documents, are true and correct in all material respects (except to the extent such representations and warranties are already qualified as to materiality, in which case such representations and warranties are true and correct in all respects) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except to the extent such representations and warranties are already qualified as to materiality, in which case such representations and warranties are true and correct in all respects) as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered.
 
5.                                       The financial covenant analyses and information, including a reconciliation of the Borrower’s calculation of Consolidated EBITDA versus the calculation of net income in accordance with GAAP as set forth in the financial statements referred to in paragraph 1 of this Compliance Certificate , set forth on Schedules 1 and 2 attached hereto are true and accurate on and as of the date of this Compliance Certificate.
 
2 

 
IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of                                          ,                         .

 	ENLINK MIDSTREAM, LLC	
 	 	
 	By: EnLink Midstream Manager, LLC, its managing member	

 	By:	 	
 	Name:	 	
 	Title:	 	
 
3 

 
For the Quarter/Year ended                                            (“ Statement Date ”)
 
SCHEDULE 1
 
to the Compliance Certificate
($ in 000’s)
 
Section 7.13(a) — Consolidated Interest Coverage Ratio.(2)

A.             Consolidated EBITDA for four prior consecutive fiscal quarters ending on the above date (“ Subject Period ”):	 	$                              	
 	 	 	
B.             Consolidated Interest Charges for Subject Period:	 	$                             	
 	 	 	
C.             Consolidated Interest Coverage Ratio
(Line A ¸ B):	 	                    to 1.00	
 	 	 	
Minimum Consolidated Interest Coverage Ratio	 	2.50 to 1.00	

(2)  For purposes of any determination of the Consolidated Interest Coverage Ratio with respect to the fiscal quarter ending on
 
(i)                 March 31, 2014, the Consolidated Interest Coverage Ratio shall be the ratio of (A) an amount equal to the sum of (x) $52.5 million and (y) actual cash distributions received by the Borrower, CEI or any other Restricted Subsidiary from EnLink MLP during such fiscal quarter, to (B) Consolidated Interest Charges for such fiscal quarter,
 
(ii)              June 30, 2014, the Consolidated Interest Coverage Ratio shall be the ratio of (A) Consolidated EBITDA for such fiscal quarter to (B) Consolidated Interest Charges for such fiscal quarter,
 
(iii)           September 30, 2014, the Consolidated Interest Coverage shall be the ratio of (A) Consolidated EBITDA for the two fiscal quarter period then ended to (B) Consolidated Interest Charges the two fiscal quarter period then ended, and
 
(iv)          December 31, 2014, the Consolidated Interest Coverage Ratio shall be the ratio of (A) Consolidated EBITDA for the three fiscal quarter period then ended to (B) Consolidated Interest Charges for the three fiscal quarter period then ended.
 
4 

 
Section 7.13(b) — Consolidated Leverage Ratio.

A.                                     Consolidated Funded Indebtedness at Statement Date:	 	$                                       	
 	 	 	
B.                                     Consolidated EBITDA for Subject Period(3):	 	$                                         	
 	 	 	
C.                                     Consolidated Leverage Ratio
(Line A ¸ B):	 	                                 to 1.00	

Four Fiscal Quarters Ending	 	Maximum
Consolidated
Leverage Ratio	
Outside of Acquisition Period	 	4:00 to 1.00	
During Acquisition Period	 	4.50 to 1.00	

(3)   For purposes of calculating the Consolidated Leverage Ratio, Consolidated EBITDA shall be calculated as follows:
 
(i)                              Consolidated EBITDA for the four-fiscal quarter period ending March 31, 2014 shall be equal to the sum of (x) $52.5 million and (y) actual cash distributions received by the Borrower, CEI or any other Restricted Subsidiary from EnLink MLP during such fiscal quarter, multiplied by four;
 
(ii)                           Consolidated EBITDA for the four-fiscal quarter period ending June 30, 2014 shall be equal to Consolidated EBITDA for such fiscal quarter, multiplied by four;
 
(iii)                        Consolidated EBITDA for the four-fiscal quarter period ending September 30, 2014 shall be equal to Consolidated EBITDA for the two fiscal quarter period then ended, multiplied by two;
 
(iv)                       Consolidated EBITDA for the four-fiscal quarter period ending December  31, 2014 shall be equal to Consolidated EBITDA for the three fiscal quarter period then ended, multiplied by 4/3; and
 
(v)                          Consolidated EBITDA for each four-fiscal quarter period ending thereafter shall be equal to Consolidated EBITDA for the four-fiscal quarter period then ended.
 
5 

 
For the Quarter/Year ended                                       (“ Statement Date ”)
 
SCHEDULE 2
 
to the Compliance Certificate
($ in 000’s)
 
Consolidated EBITDA
 (in accordance with the definition of Consolidated EBITDA
as set forth in the Agreement)

Consolidated
EBITDA	 	Quarter
Ended	 	Quarter
Ended	 	Quarter
Ended	 	Quarter
Ended	 	Twelve
Months
Ended	
Consolidated Net Income	 	 	 	 	 	 	 	 	 	 	
+ Consolidated Interest Charges	 	 	 	 	 	 	 	 	 	 	
+ income taxes	 	 	 	 	 	 	 	 	 	 	
+ depreciation expense	 	 	 	 	 	 	 	 	 	 	
+ amortization expense	 	 	 	 	 	 	 	 	 	 	
+ non-cash expenses	 	 	 	 	 	 	 	 	 	 	
+ non-recurring expenses	 	 	 	 	 	 	 	 	 	 	
+ Transaction Costs	 	 	 	 	 	 	 	 	 	 	
- income tax credits	 	 	 	 	 	 	 	 	 	 	
- non-cash income	 	 	 	 	 	 	 	 	 	 	
= Consolidated EBITDA	 	 	 	 	 	 	 	 	 	 	
 
6 

 
EXHIBIT E-1
 
FORM OF ASSIGNMENT AND ASSUMPTION
 
This Assignment and Assumption (this “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each](1) Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each](2) Assignee identified in item 2 below ([the][each, an] “ Assignee ”).  [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees](3) hereunder are several and not joint.](4)  Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee.  The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
 
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto in the amount[s] and equal to the percentage interest[s] identified below of all the outstanding rights and obligations under the credit facility evidenced by the Credit Agreement (including, without limitation, the Letters of Credit and the Swing Line Loans included in such facility (5) ) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”).  Each such sale and

(1)  For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language.  If the assignment is from multiple Assignors, choose the second bracketed language.
 
(2)  For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language.  If the assignment is to multiple Assignees, choose the second bracketed language.
 
(3)  Select as appropriate.
 
(4)  Include bracketed language if there are either multiple Assignors or multiple Assignees.
 
(5)  Include all applicable subfacilities.
 
Exhibit E-1 to Credit Agreement
 
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assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.

1.	Assignor[s] :	 	

 
[Assignor [is] [is not] a Defaulting Lender]

2.	Assignee[s] :	 	

 
[for each Assignee, indicate [Lender]/[Affiliate][Approved Fund] of [identify Lender]]
 
3.                                       Borrower :                                           EnLink Midstream, LLC, a Delaware limited liability company (the “Borrower”)
 
4.                                       Administrative Agent : Bank of America, N.A., as the administrative agent under the Credit Agreement
 
5.                                       Credit Agreement :  Credit Agreement, dated as of March 7, 2014, among the Borrower, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
6.                                       Assigned Interest[s]:

Assignor[s](6)	 	Assignee[s](7)	 	Aggregate
Amount of
Commitment
for all Lenders(8)	 	Amount of
Commitment
Assigned	 	Percentage
Assigned of
Commitment(9)	 	CUSIP
Number	 	
 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	$	 	 	$	 	 	 	%	 	 	
 	 	 	 	$	 	 	$	 	 	 	%	 	 	
 	 	 	 	$	 	 	$	 	 	 	%	 	 	
 
[7.                                   Trade Date :                                                                ](10)

(6)  List each Assignor, as appropriate.
 
(7)  List each Assignee and, if available, its market entity identifier, as appropriate.
 
(8)  Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
 
(9)  Set forth, to at least 9 decimals, as a percentage of the Commitment of all Lenders thereunder.
 
(10)  To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
 
2 

 
Effective Date:                                    , 20      [ TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR. ]
 
The terms set forth in this Assignment and Assumption are hereby agreed to:

 	ASSIGNOR[S](11)	
 	[ NAME OF ASSIGNOR ]	

 	By:	 	
 	Name:	 	
 	Title:	 	

 	[ NAME OF ASSIGNOR ]	

 	By:	 	
 	Name:	 	
 	Title:	 	

 	ASSIGNEE[S](12)	
 	 	
 	[ NAME OF ASSIGNEE ]	

 	By:	 	
 	Name:	 	
 	Title:	 	

 	[ NAME OF ASSIGNEE ]	

 	By:	 	
 	Name:	 	
 	Title:	 	

(11)  Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).
 
(12)  Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).
 
3 

 
[Consented to and](13) Accepted:

BANK OF AMERICA, N.A., as	 	
Administrative Agent	 	

By:	 	 	
Name:	 	 	
Title:	 	 	

[Consented to:](14)	 	
 	 	
ENLINK MIDSTREAM, LLC, as	 	
Borrower	 	
 	 	
By: EnLink Midstream Manager, LLC,	 	
its managing member	 	

By:	 	 	
Name:	 	 	
Title:	 	 	
 	 	 	
BANK OF AMERICA, N.A., as	 	
L/C Issuer and Swing Line Lender	 	

By:	 	 	
Name:	 	 	
Title:	 	 	
 	 	 	
[               ], as L/C Issuer	 	

By:	 	 	
Name:	 	 	
Title:	 	 	

(13)  To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
 
(14)  To be added only if the consent of the Borrower is required by the terms of the Credit Agreement.
 
4 

 
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
 
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
 
1.                                       Representations and Warranties .
 
1.1                                Assignor .  [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
 
1.2                                Assignee .  [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 10.06(b)(iii) , and (v)  of the Credit Agreement (subject to such consents, if any, as may be required under Section 10.06(b)(iii)  of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
 
Annex 1 to Exhibit E-1 to Credit Agreement

 
2.                                       Payments .  From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.  Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
 
3.                                       General Provisions .  This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

 

EXHIBIT E-2
 
FORM OF ADMINISTRATIVE QUESTIONNAIRE
 
[ SEE ATTACHED. ]

 

ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY)
 
CONFIDENTIAL

1.	Borrower or Deal Name ENLINK MIDSTREAM, LLC (GP)	
E-mail this document with your commitment letter to: Henry Pennell	
E-mail address of recipient: henry.pennell@baml.com	
 	
2.	Legal Name of Lender of Record for Signature Page :	 	
 	Markit Entity Identifier (MEI) #	 	 	
 	Fund Manager Name (if applicable)	 	 	
 	Legal Address from Tax Document of Lender of Record:	 	 	
 	Country	 	 	
 	Address	 	 	
 	City 	 	 	State/Province	 	 	Country	 	

3.	Domestic Funding Address:	 	4.	Eurodollar Funding Address:	
Street Address	 	 	Street Address	 	
Suite/ Mail Code	 	 	Suite/ Mail Code	 	
City	 	 	State	 	 	City	 	 	State	 	
Postal Code	 	 	Country	 	 	Postal Code	 	 	Country	 	

5.	Credit Contact Information:	
 
Syndicate level information (which may contain material non-public information about the Borrower and its related parties or their respective securities will be made available to the Credit Contact(s).  The Credit Contacts identified must be able to receive such information in accordance with his/her institution’s compliance procedures and applicable laws, including Federal and State securities laws.

Primary Credit Contact:	
First Name	 	 	
Middle Name	 	 	
Last Name	 	 	
Title	 	 	
Street Address	 	 	
Suite/Mail Code	 	 	
City	 	 	
State	 	 	
Postal Code	 	 	
Country	 	 	
Office Telephone #	 	 	
Office Facsimile #	 	 	
Work E-Mail Address	 	 	
IntraLinks/SyndTrak	 	 	
E-Mail Address	 	 	
 	 	 	
Secondary Credit Contact:	
First Name	 	 	
Middle Name	 	 	
Last Name	 	 	
Title	 	 	
Street Address	 	 	
Suite/Mail Code	 	 	
City	 	 	
State	 	 	
Postal Code	 	 	
Country	 	 	
Office Telephone #	 	 	
Office Facsimile #	 	 	
Work E-Mail Address	 	 	
 
1 

 

ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY)
 
CONFIDENTIAL

IntraLinks/SyndTrak	 	 	
E-Mail Address	 	 	

Primary Operations Contact:	 	Secondary Operations Contact:	
First	 	 	MI	 	 	Last	 	 	First	 	 	MI	 	 	Last	 	
Title	 	 	 	 	 	 	 	 	Title	 	 	 	 	 	 	 	
Street Address	 	 	Street Address	 	
Suite/ Mail Code	 	 	Suite/ Mail Code	 	
City	 	 	 	State	 	 	City	 	 	State	 	
Postal Code	 	 	 	 	Country	 	 	Postal Code	 	 	 	Country	 	
Telephone	 	 	Facsimile	 	 	 	Telephone	 	Facsimile	 	
E-Mail Address	 	 	E-Mail Address	 	
IntraLinks/SyndTrak E-Mail	 	IntraLinks/SyndTrak E-Mail	
Address	 	 	Address	 	

Does Secondary Operations Contact need copy of notices?  o YES   o NO

Letter of Credit Contact:	 	Draft Documentation Contact or Legal Counsel:	
First	 	 	MI	 	 	Last	 	 	First	 	 	MI	 	 	Last	 	
Title	 	 	 	 	 	 	 	 	Title	 	 	 	 	 	 	 	
Street Address	 	 	Street Address	 	
Suite/ Mail Code	 	 	Suite/ Mail Code	 	
City	 	 	 	State	 	 	City	 	 	State	 	
Postal Code	 	 	 	 	Country	 	 	Postal Code	 	 	 	Country	 	
Telephone	 	 	Facsimile	 	 	 	Telephone	 	Facsimile	 	
E-Mail Address	 	 	E-Mail Address	 	

6.               Lender’s Fed Wire Payment Instructions:
 
Pay to:

Bank Name	 	 	 	 	
ABA #	 	 	 	 	
City	 	 	State	 	 	
Account #	 	 	 	 	
Account Name	 	 	 	 	
Attention	 	 	 	 	

7.  Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance Fed Wire Payment Instructions (if applicable):
 
Pay to:

Bank Name	 	 	 	 	
ABA #	 	 	 	 	
City	 	 	State	 	 	
Account #	 	 	 	 	
Account Name	 	 	 	 	
Attention	 	 	 	 	

Can the Lender’s Fed Wire Payment Instructions in Section 6 be used? o YES  o NO
 
2 

 

ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY)
 
CONFIDENTIAL
 
8.               Lender’s Organizational Structure and Tax Status
 
Please refer to the enclosed withholding tax instructions below and then complete this section accordingly:
 
Lender Taxpayer Identification Number (TIN):               -
 
Tax Withholding Form Delivered to Bank of America (check applicable one):

o W-9	o W-8BEN	o W-8ECI	o W-8EXP	o W-8IMY	

Tax Contact:	 	 	
First	 	 	MI	 	 	Last	 	 	 	
Title	 	 	 	 	 	 	 	 	 	
Street Address	 	 	 	
Suite/ Mail Code	 	 	 	
City	 	 	 	State	 	 	 	
Postal Code	 	 	 	 	Country	 	 	 	
Telephone	 	 	Facsimile	 	 	 	 	
E-Mail Address	 	 	 	

NON—U.S. LENDER INSTITUTIONS
 
1. Corporations:
 
If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental Agency).
 
A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI.  It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with the U.S.  Please refer to the instructions when completing the form applicable to your institution.  In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms.  An original tax form must be submitted.
 
2. Flow-Through Entities
 
If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement.  Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.
 
Please refer to the instructions when completing this form.  In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms.  Original tax form(s) must be submitted .
 
U.S. LENDER INSTITUTIONS:
 
If your institution is incorporated or organized within the United States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and Certification).  Please be advised that we require an original form W-9 .
 
Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned on or prior to the date on which your institution becomes a lender under this Credit Agreement.  Failure to provide the proper tax form when requested will subject your institution to U.S. tax withholding.
 
3 

 

ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY)
 
CONFIDENTIAL

*Additional guidance and instructions as to where to submit this documentation can be found at this link:

 
9. Bank of America’s Payment Instructions:
 
Pay to:                                              Bank of America, N.A.
ABA # 026009593
New York, NY
Account # 1292000883
Attn: Corporate Credit Services
Ref: EnLink Midstream, LLC
 
4 

 
EXHIBIT F
 
FORM OF GUARANTY AGREEMENT
 
This Guaranty Agreement dated as of March 7, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “ Guaranty ”) is executed by EnLink Midstream, LLC, a Delaware limited liability company (the “ Borrower ”), Crosstex Energy, Inc., a Delaware corporation, Acacia Natural Gas Corp I, Inc., a Delaware corporation (together with the Borrower and each other Person who may from time to time become a party to this Guaranty pursuant to Section 16 hereof, collectively, the “ Guarantors ”, and each, individually, a “ Guarantor ”) in favor of Bank of America, N.A., as Administrative Agent (as hereinafter defined) for the ratable benefit of the Beneficiaries (as hereinafter defined).
 
INTRODUCTION
 
A.                                     This Guaranty is entered into in connection with that certain Credit Agreement dated as of March 7, 2014 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the lenders party thereto from time to time (individually, a “ Lender ” and collectively, the “ Lenders ”), Bank of America, N.A., as Administrative Agent (in such capacity, the “ Administrative Agent ”) and as Swing Line Lender (in such capacity, the “ Swing Line Lender ”), and each of Bank of America, N.A., Citibank, N.A. and Wells Fargo Bank, National Association as an L/C Issuer (in such capacity, an “ L/C Issuer ”).
 
B.                                     Each Guarantor is either the Borrower or a Specified Subsidiary of the Borrower and will derive substantial direct and indirect benefits from (i) the transactions contemplated by the Credit Agreement and the other Loan Documents (as defined in the Credit Agreement), (ii) the Secured Cash Management Agreements (as defined in the Credit Agreement), and (iii) the Secured Hedge Agreements (as defined in the Credit Agreement), in each case provided to the Loan Parties by any Secured Party (as defined in the Credit Agreement, collectively, the “ Beneficiaries ”).
 
C.                                     Each Guarantor is executing and delivering this Guaranty (i) to induce the Lenders to provide Loans under the Credit Agreement, (ii) to induce the L/C Issuers to provide Letters of Credit under the Credit Agreement, (iii) to induce the Swing Line Lender to make Swing Line Loans under the Credit Agreement, (iv) to induce the Hedge Banks to enter into transactions with the Loan Parties under their respective Secured Hedge Agreements, (v) to induce the Cash Management Banks to enter into Cash Management Agreements with the Loan Parties, and (vi) intending it to be a legal, valid, binding, enforceable and continuing obligation of such Guarantor.
 
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Guarantor hereby agrees as follows:
 
Section 1.                                            Definitions.   All capitalized terms not otherwise defined in this Guaranty that are defined in the Credit Agreement shall have the meanings assigned to such terms by the Credit Agreement.
 
Section 2.                                            Guaranty .
 
(a)                                  Each Guarantor hereby absolutely, unconditionally and irrevocably guarantees the punctual payment and performance, when due, whether at stated maturity, by acceleration or otherwise, of all Obligations (collectively, the “ Guaranteed Obligations ”).  Without limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts that constitute part of the
 
Exhibit F to Credit Agreement
 
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Guaranteed Obligations and would be owed by: (i) the Borrower or any other Guarantor to the Administrative Agent, any L/C Issuer, the Swing Line Lender, or any Lender under the Loan Documents, (ii) the Borrower or any other Guarantor to any Hedge Bank under Secured Hedge Agreements, (iii) the Borrower or any other Guarantor to any Cash Management Bank in connection with Secured Cash Management Agreements, and (iv) the Borrower or any other Guarantor to the extent constituting Obligations, in any event, but for the fact that they are unenforceable or not allowable due to insolvency or the existence of a bankruptcy, reorganization or similar proceeding involving the Borrower or such other Guarantor; provided that the “Guaranteed Obligations” shall not include any Excluded Swap Obligation. Anything contained in this Guaranty to the contrary notwithstanding, the Borrower is a Guarantor solely with respect to Guaranteed Obligations owing by any Loan Party (other than the Borrower) under any Secured Hedge Agreement or any Secured Cash Management Agreement.
 
(b)                                  Anything contained in this Guaranty to the contrary notwithstanding, the obligations of any Guarantor under this Guaranty on any date shall be limited to a maximum aggregate amount equal to the largest amount that would not, on such date, render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code of the United States or any applicable provisions of comparable laws relating to bankruptcy, insolvency, or reorganization, or relief of debtors (collectively, the “ Fraudulent Transfer Laws ”), but only to the extent that any Fraudulent Transfer Law has been found in a final non-appealable judgment of a court of competent jurisdiction to be applicable to such obligations as of such date, in each case:
 
(1)                                  after giving effect to all liabilities of each Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws, but specifically excluding:
 
(i)                                      any liabilities of such Guarantor in respect of intercompany indebtedness owing to the Borrower or other Affiliate of the Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder; and
 
(ii)                                   any liabilities of such Guarantor under this Guaranty; and
 
(2)                                  after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, reimbursement, indemnification or contribution of such Guarantor pursuant to applicable law or pursuant to the terms of any agreement.
 
(c)                                   This is a guaranty of payment and not of collection and the Guarantor shall make all payments hereunder without offset or counterclaim.
 
Section 3.                                            Guaranty Absolute .  Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents and the applicable Secured Hedge Agreements and Secured Cash Management Agreements, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Beneficiary with respect thereto.  The obligations of each Guarantor under this Guaranty are joint and several and independent of the obligations of any other Person under the Loan Documents or in connection with any Secured Hedge Agreements or Secured Cash Management Agreements, and a separate action or actions may be brought and prosecuted against any Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or any other Person or whether the Borrower or any other Person is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now or hereafter have in any way relating to, any or all of the following:
 
2 

 
(a)                                  any lack of validity or enforceability of any Loan Document, any Secured Hedge Agreements or Secured Cash Management Agreements, or any agreement or instrument relating thereto or any part of the Guaranteed Obligations being irrecoverable;
 
(b)                                  any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of any Person under the Loan Documents, any agreement or instrument relating to any Secured Hedge Agreements, any Secured Cash Management Agreements, or any other amendment or waiver of or any consent to departure from any Loan Document, any agreement or instrument relating to any Secured Hedge Agreements, or any Secured Cash Management Agreements, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Borrower or otherwise; provided that this clause (b) shall not limit the terms of Section 10.01 of the Credit Agreement with respect to the Borrower;
 
(c)                                   any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Guaranteed Obligations;
 
(d)                                  any manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations;
 
(e)                                   any change, restructuring or termination of the corporate structure or existence of the Borrower or any of its Restricted Subsidiaries;
 
(f)                                    any failure of any Beneficiary to disclose to the Borrower or any other Guarantor any information relating to the business, condition (financial or otherwise), operations, properties or prospects of any Person now or in the future known to any Beneficiary (and each Guarantor hereby irrevocably waives any duty on the part of any Beneficiary to disclose such information);
 
(g)                                   any signature of any officer of the Borrower or any other Person being mechanically reproduced in facsimile or otherwise; or
 
(h)                                  any other circumstance or any existence of or reliance on any representation by any Beneficiary that might otherwise constitute a defense available to, or a discharge of, the Borrower, any other Guarantor or any other guarantor, surety or other Person (other than the occurrence of Security Termination).
 
Section 4.                                            Continuation and Reinstatement, Etc.   Each Guarantor agrees that, to the extent that payments of any of the Guaranteed Obligations are made, or any Beneficiary receives any proceeds of Collateral, and such payments or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, or otherwise required to be repaid, then to the extent of such repayment the Guaranteed Obligations shall be reinstated and continued in full force and effect as of the date such initial payment or collection of proceeds occurred.
 
Section 5.                                            Waivers and Acknowledgments .
 
(a)                                  Each Guarantor hereby waives promptness, diligence, presentment, notice of acceptance and any other notice (other than any notices required by the Loan Documents) with respect to any of the Guaranteed Obligations and this Guaranty and any requirement that any Beneficiary protect, secure, perfect or insure any Lien or any property or exhaust any right or take any action against the Borrower or any other Person or any Collateral.
 
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(b)                                  Each Guarantor hereby irrevocably waives any right to revoke this Guaranty, and acknowledges that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.
 
(c)                                   Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements involving the Borrower and the other Loan Parties contemplated by the Loan Documents, any Secured Hedge Agreements, any Secured Cash Management Agreements, and that the waivers set forth in this Guaranty are knowingly made in contemplation of such benefits.
 
Section 6.                                            Subrogation and Subordination .
 
(a)                                  Each Guarantor will not exercise any rights that it may now have or hereafter acquire against the Borrower or any other Guarantor to the extent that such rights arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Guaranty, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Beneficiary against the Borrower or any other Guarantor, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Borrower or any other Guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until the occurrence of Security Termination.  If any amount shall be paid to any Guarantor in violation of the preceding sentence at any time prior to the occurrence of Security Termination, such amount shall be held in trust for the benefit of the Beneficiaries and shall forthwith be paid to the Administrative Agent to be credited and applied to the Guaranteed Obligations and any and all other amounts payable by any Guarantor under this Guaranty, whether matured or unmatured, in accordance with the terms of the Loan Documents.
 
(b)                                  Each Guarantor hereby agrees that the payment of any and all Indebtedness now or hereafter owing to such Guarantor by the Borrower or any other Guarantor (herein collectively called the “ Subordinated Debt ”) is and will be subordinate and junior in right of payment and enforcement to the prior payment and enforcement in full of the Guaranteed Obligations, unless and until the occurrence of Security Termination.  Whenever any Event of Default has occurred and is continuing, the Administrative Agent may, in its sole discretion, give notice to the Borrower and the other Guarantors that no payment shall be made or accepted on any Subordinated Debt, and upon receipt of such notice no Guarantor will make or receive any payment on Subordinated Debt unless and until the occurrence of Security Termination, all Events of Default are waived or cured, or the Administrative Agent consents to such payment.  In addition, whenever any Event of Default has occurred and is continuing, no Guarantor will exercise or enforce any creditors’ rights or remedies that it may have against the Borrower or any Subsidiary, or foreclose, repossess, sequester, or otherwise institute any action or proceeding (whether judicial or otherwise, including the commencement of any insolvency proceeding) to enforce any Subordinated Debt until the occurrence of Security Termination, all Events of Default are waived or cured, or the Administrative Agent otherwise consents.
 
Section 7.                                            Representations and Warranties.   Each Guarantor hereby represents and warrants as follows:
 
(a)                                  Such Guarantor benefits directly or indirectly from executing this Guaranty.
 
(b)                                  Such Guarantor has, independently and without reliance upon any Beneficiary and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Guaranty, and such Guarantor has established adequate means of obtaining from the Borrower and each other relevant Person on a continuing basis information pertaining to, and is
 
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now and on a continuing basis will be completely familiar with, the business, condition (financial and otherwise), operations, properties and prospects of the Borrower and each other relevant Person.
 
(c)                                   The obligations of such Guarantor under this Guaranty are the valid, binding and legally enforceable obligations of such Guarantor (except (i) as limited by applicable Debtor Relief Laws and general principles of equity which may limit the right to obtain equitable remedies (whether applied by a court of law or equity) and (ii) as to the enforceability of provisions for indemnification and the limitations thereon arising as a matter of law or public policy) and the execution and delivery of this Guaranty by such Guarantor has been duly and validly authorized in all respects by such Guarantor, and the Person who is executing and delivering this Guaranty on behalf of such Guarantor has full power, authority and legal right to so do, and to observe and perform all of the terms and conditions of this Guaranty on such Guarantor’s part to be observed or performed.
 
Section 8.                                            Right of Set-Off.  Upon the occurrence and during the continuance of any Event of Default, any Lender or the Administrative Agent, any L/C Issuer, the Swing Line Lender and any other Beneficiary is hereby authorized at any time, to the fullest extent permitted by law, to set off and apply any deposits (general or special (except trust and escrow accounts), time or demand, provisional or final) and other indebtedness owing by such Beneficiary to the account of any Guarantor against any and all of the obligations of any Guarantor under this Guaranty, irrespective of whether or not such Beneficiary shall have made any demand under this Guaranty and although such obligations may be contingent and unmatured.  Such Beneficiary shall promptly notify any Guarantor after any such set-off and application is made, provided that the failure to give such notice shall not affect the validity of such set-off and application.  The rights of the Beneficiaries under this Section 8 are in addition to other rights and remedies (including, without limitation, other rights of set-off) which any Beneficiary may have.
 
Section 9.                                            Amendments, Etc.   No amendment or waiver of any provision of this Guaranty and no consent to any departure by any Guarantor therefrom shall in any event be effective, except in accordance with Section 10.01 of the Credit Agreement, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
 
Section 10.                                     Notices, Etc.  All notices and other communications provided for hereunder shall be given and become effective as provided in Section 10.02 of the Credit Agreement and shall be sent (a) if to any Guarantor, to such Guarantor at the address of the Borrower specified in or pursuant to the Credit Agreement, (b) if to the Administrative Agent, any L/C Issuer, the Swing Line Lender, or any Lender, at its address specified in or pursuant to the Credit Agreement, (c) if to a Hedge Bank, at its address specified in the applicable Secured Hedge Agreement, and (d) if to any Cash Management Bank, at its address specified in the applicable Secured Cash Management Agreement.
 
Section 11.                                     No Waiver: Remedies .  No failure on the part of the Administrative Agent or any other Beneficiary to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
 
Section 12.                                     Continuing Guaranty: Assignments under the Credit Agreement.   There are no conditions precedent to the effectiveness of this Guaranty. This Guaranty is a continuing guaranty and shall:
 
(a)                                  remain in full force and effect until Security Termination, except with respect to any Guarantor released from its obligations hereunder pursuant to Section 9.10 of the Credit Agreement;
 
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(b)                                  be binding upon each Guarantor and its successors and assigns;
 
(c)                                   inure to the benefit of and be enforceable by the Administrative Agent, each Lender, each L/C Issuer, the Swing Line Lender, and their respective successors, transferees and assigns; and
 
(d)                                  inure to the benefit of the Hedge Banks and the Cash Management Banks, and each of their respective successors, transferees, and assigns (but only to the extent such successor, transferee or assign of a Hedge Bank or a Cash Management Bank also then qualifies as a Secured Party), provided that, notwithstanding anything contained in this Guaranty to the contrary, no beneficiary of this Guaranty other than the Administrative Agent shall have any right individually to enforce this Guaranty, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by the Administrative Agent on behalf of the beneficiaries hereof in accordance with the terms hereof.  By accepting the benefit of this Guaranty, each such beneficiary agrees to the terms of this subsection (d).
 
Without limiting the generality of the foregoing clause (c), subject to Section 10.06 of the Credit Agreement, any Lender may assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement (including, without limitation, all or any portion of its Commitment, the Loans owing to it and the Note or Notes held by it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender herein or otherwise, subject, however, in all respects to the provisions of the Credit Agreement.  Each Guarantor acknowledges that upon any Person becoming a Lender, the Administrative Agent, an L/C Issuer, or the Swing Line Lender in accordance with the Credit Agreement, such Person shall be entitled to the benefits hereof.
 
Section 13.                                     Incorporation by Reference .  This Guaranty hereby incorporates by reference the provisions of Section 3.01(a)  of the Credit Agreement.
 
Section 14.                                     GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS; WAIVER OF JURY TRIAL .
 
(a)                                  GOVERNING LAW .  THIS GUARANTY AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS GUARANTY AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
 
(b)                                  SUBMISSION TO JURISDICTION .  EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF IN ANY ACTION, LITIGATION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
 
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BY LAW.  NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY HERETO MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY OTHER PARTY HERETO OR THERETO, ANY GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
 
(c)                                   WAIVER OF VENUE .  EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION 14.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
 
(d)                                  SERVICE OF PROCESS . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.  NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
 
(e)                                   WAIVER OF JURY TRIAL .  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
 
Section 15.                                     INDEMNIFICATION .  TO THE EXTENT THAT THE BORROWER WOULD BE REQUIRED TO DO SO PURSUANT TO SECTION 10.04 OF THE CREDIT AGREEMENT, EACH GUARANTOR SHALL INDEMNIFY THE INDEMNITEES AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES (INCLUDING THE REASONABLE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR THE INDEMNITEES), INCURRED BY ANY INDEMNITEE OR ASSERTED AGAINST ANY INDEMNITEE BY ANY PERSON (INCLUDING THE BORROWER OR ANY OTHER GUARANTOR) OTHER THAN SUCH INDEMNITEE AND ITS RELATED PARTIES ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF (A) THE EXECUTION OR DELIVERY OF THIS GUARANTY, ANY OTHER LOAN DOCUMENT, OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED  HEREBY OR THEREBY, THE PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER OR THEREUNDER, THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR, IN THE CASE OF THE ADMINISTRATIVE AGENT (AND ANY SUB-AGENT THEREOF)
 
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AND ITS RELATED PARTIES ONLY, THE ADMINISTRATION OF THIS GUARANTY AND THE OTHER LOAN DOCUMENTS, (B) ANY LOAN OR LETTER OF CREDIT OR THE USE OR PROPOSED USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY ANY L/C ISSUER TO HONOR A DEMAND FOR PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT), (C) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY OWNED OR OPERATED BY ANY GUARANTOR, THE BORROWER, OR ANY OF ITS SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO ANY GUARANTOR, THE BORROWER, OR ANY OF ITS SUBSIDIARIES, OR (D) ANY ACTUAL OR PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR BY THE BORROWER OR ANY OTHER GUARANTOR, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; PROVIDED THAT (A) SUCH INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR A BREACH IN BAD FAITH BY AN INDEMNITEE OF ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS, AND (B) SUCH FEES, CHARGES AND DISBURSEMENTS OF COUNSEL SHALL BE LIMITED TO A SINGLE FIRM OF COUNSEL FOR ALL THE INDEMNITEES AND, IF REASONABLY NECESSARY, A SINGLE FIRM OF LOCAL OR REGULATORY COUNSEL IN EACH APPROPRIATE JURISDICTION AND A SINGLE FIRM OF SPECIAL COUNSEL FOR EACH RELEVANT SPECIALTY, IN EACH CASE FOR ALL SUCH INDEMNITEES, AND, SOLELY IN THE CASE OF AN ACTUAL OR PERCEIVED CONFLICT OF INTEREST, WHERE THE INDEMNITEE AFFECTED BY SUCH CONFLICT INFORMS THE BORROWER OF SUCH CONFLICT, ONE ADDITIONAL FIRM OF COUNSEL IN EACH RELEVANT JURISDICTION FOR THE AFFECTED INDEMNITEE SIMILARLY SITUATED.  THIS SECTION 15 SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM.
 
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO GUARANTOR SHALL ASSERT, AND EACH GUARANTOR HEREBY WAIVES, ANY CLAIM AGAINST ANY INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS GUARANTY, ANY OTHER LOAN DOCUMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR LETTER OF CREDIT OR THE USE OF THE PROCEEDS THEREOF.  NO INDEMNITEE SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED RECIPIENTS OF ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED TO SUCH UNINTENDED RECIPIENTS BY SUCH INDEMNITEE THROUGH TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS GUARANTY OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OTHER THAN FOR DIRECT OR ACTUAL DAMAGES RESULTING FROM
 
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THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR THE BREACH IN BAD FAITH OF SUCH INDEMNITEE OF ITS OBLIGATIONS HEREUNDER OR THEREUNDER AS DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION.
 
ALL AMOUNTS DUE UNDER THIS SECTION 15 SHALL BE PAYABLE NOT LATER THAN TEN BUSINESS DAYS AFTER DEMAND THEREFOR.  THE AGREEMENTS IN THIS SECTION 15 SHALL SURVIVE THE RESIGNATION OF THE ADMINISTRATIVE AGENT, ANY L/C ISSUER AND THE SWING LINE LENDER, THE REPLACEMENT OF ANY LENDER, THE TERMINATION OF THE AGGREGATE COMMITMENTS AND THE REPAYMENT, SATISFACTION OR DISCHARGE OF ALL THE OTHER GUARANTEED OBLIGATIONS.
 
Section 16.                                     Additional Guarantors .  Upon the execution and delivery by any other Person of a Guaranty Supplement in substantially the form of Exhibit A attached hereto (each, a “ Guaranty Supplement ”), such Person shall become a Guarantor hereunder with the same force and effect as if originally named as a Guarantor herein.  The execution and delivery of any Guaranty Supplement shall not require the consent of any other Guarantor hereunder.  The rights and obligations of each Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new Guarantor as a party to this Guaranty.
 
Section 17.                                     Severability .  If any provision of this Guaranty is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Guaranty shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
 
Section 18.                                     Counterparts . This Guaranty may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Guaranty by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Guaranty.
 
Section 19.                                     Keepwell . Each Qualified ECP Guarantor, at the time this Guaranty or the grant of the security interest under the Loan Documents, in each case, by any Specified Loan Party, becomes effective with respect to any Swap Obligation, hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under this Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 19 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Guaranteed Obligations have been paid and performed in full. Each Qualified ECP Guarantor intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
 
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Section 20.                                     NOTICE OF FINAL AGREEMENTS .  THIS GUARANTY AND THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
 
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
 
[Remainder of this page intentionally left blank.]
 
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Each Guarantor has caused this Guaranty to be duly executed as of the date first above written.

 	GUARANTORS:	

 	 	ENLINK MIDSTREAM, LLC	
 	 	 	
 	 	By: EnLink Midstream Manager, LLC, its managing member	

 	 	 	By:	 	
 	 	 	Name:	Michael J. Garberding	
 	 	 	Title:	Executive Vice President and	
 	 	 	 	Chief Financial Officer	
 	 	 	 	 	
 	 	CROSSTEX ENERGY, INC.	

 	 	 	By:	 	
 	 	 	Name:	Michael J. Garberding	
 	 	 	Title:	Executive Vice President and	
 	 	 	 	Chief Financial Officer	
 	 	 	 	 	
 	 	ACACIA NATURAL GAS CORP I, INC.	

 	 	 	By:	 	
 	 	 	Name:	Michael J. Garberding	
 	 	 	Title:	Executive Vice President and	
 	 	 	 	Chief Financial Officer	
 
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 	ADMINISTRATIVE AGENT :	
 	 	
 	BANK OF AMERICA, N.A. , as Administrative Agent	

 	By:	 	
 	Name:	 	
 	Title:	 	
 
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Exhibit A to
Guaranty Agreement
 
Guaranty Supplement No.    
 
THIS GUARANTY SUPPLEMENT NO.     (this “ Guaranty Supplement ”) is made as of                    , to the Guaranty Agreement dated as of March 7, 2014 (such agreement, together with all amendments, restatements, other modifications and Guaranty Supplements (as such term is defined therein), the “ Guaranty ”), executed by EnLink Midstream, LLC, a Delaware limited liability company, Crosstex Energy, Inc., a Delaware corporation, and Acacia Natural Gas Corp I, Inc., a Delaware corporation, as the initial signatories thereto and each other Person who from time to time thereafter became a party thereto pursuant to Section 16 thereof (each, individually, a “ Guarantor ” and, collectively, the “ Guarantors ”), in favor of Administrative Agent (as defined in the Guaranty) for the benefit of the Beneficiaries (as defined in the Guaranty).
 
BACKGROUND .
 
Capitalized terms not otherwise defined herein have the meaning specified in the Guaranty.  The Guaranty provides that additional parties may become Guarantors under the Guaranty by execution and delivery of this Guaranty Supplement to the Administrative Agent.  Pursuant to the provisions of Section 16 of the Guaranty, the undersigned is becoming a Guarantor under the Guaranty.  The undersigned desires to become a Guarantor under the Guaranty in order to induce the Beneficiaries to continue to make credit extensions and financial accommodations under the Credit Agreement, the Secured Cash Management Agreements and the Secured Hedge Agreements (as applicable).
 
AGREEMENT .
 
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby agrees as follows:
 
SECTION 1.                             In accordance with the Guaranty, the undersigned hereby becomes a Guarantor under the Guaranty with the same force and effect as if it were an original signatory thereto as a Guarantor and the undersigned hereby (a) agrees to all the terms and provisions of the Guaranty applicable to it as a Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Guarantor thereunder are true and correct on and as of the date hereof.  Each reference to a “Guarantor” in the Guaranty shall be deemed to include the undersigned.
 
SECTION 2.                             Except as expressly supplemented hereby, the Guaranty shall remain in full force and effect in accordance with its terms.
 
SECTION 3.                             THIS GUARANTY SUPPLEMENT, THE GUARANTY AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS GUARANTY SUPPLEMENT AND/OR THE GUARANTY AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
 
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SECTION 4.                             This Guaranty Supplement hereby incorporates by reference the provisions of the Guaranty, which provisions are deemed to be a part hereof, and this Guaranty Supplement shall be deemed to be a part of the Guaranty.
 
SECTION 5.                             This Guaranty Supplement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement.  Executed counterpart signature pages delivered by facsimile or as an attachment to electronic mail shall be deemed to be an original.
 
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EXECUTED as of the date above first written.

 	[GUARANTOR]	

 	By:	 	
 	Print Name:	 	
 	Print Title:	 	

ACCEPTED BY:

BANK OF AMERICA, N.A., as Administrative Agent	 	

By:	 	 	
Print Name:	 	 	
Print Title:	 	 	
 
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EXHIBIT G-1
 
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
 
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
 
Reference is made to that certain Credit Agreement, dated as of March 7, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”), among EnLink Midstream, LLC, a Delaware limited liability company, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
Pursuant to the provisions of Section 3.01(e)  of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
 
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
 
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
 
[NAME OF LENDER]

By:	 	 	
Name:	 	 	
Title:	 	 	
Date:	                    , 20[ ]	 	

Exhibit G-1 to Credit Agreement

 
EXHIBIT G-2
 
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
 
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
 
Reference is made to that certain Credit Agreement, dated as of March 7, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”), among EnLink Midstream, LLC, a Delaware limited liability company, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
Pursuant to the provisions of Section 3.01(e)  of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
 
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
 
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
 
[NAME OF PARTICIPANT]

By:	 	 	
 	Name:	 	 	
 	Title:	 	 	
 	Date:	               , 20[ ]	 	
 
Exhibit G-2 to Credit Agreement

 
EXHIBIT G-3
 
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
 
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
 
Reference is made to that certain Credit Agreement, dated as of March 7, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”), among EnLink Midstream, LLC, a Delaware limited liability company, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
Pursuant to the provisions of Section 3.01(e)  of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
 
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its direct or indirect partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
 
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
 
[NAME OF PARTICIPANT]

By:	 	 	
 	Name:	 	 	
 	Title:	 	 	
 	Date:	                      , 20[ ]	 	
 
Exhibit G-3 to Credit Agreement

 
EXHIBIT G-4
 
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
 
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
 
Reference is made to that certain Credit Agreement, dated as of March 7, 2014 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Credit Agreement ”), among EnLink Midstream, LLC, a Delaware limited liability company, the Lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and Swing Line Lender.
 
Pursuant to the provisions of Section 3.01(e)  of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
 
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its direct or indirect partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.  By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
 
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
 
[NAME OF LENDER]

By:	 	 	
 	Name:	 	 	
 	Title:	 	 	
 	Date:	                   , 20[ ]	 	
 
Exhibit G-4 to Credit Agreement

Exhibit 10.8
 
INDEMNITY AGREEMENT
 
This Indemnity Agreement (this “Agreement”), effective on March 7, 2014, is between EnLink Midstream, LLC, a Delaware limited liability company (the “Company”), and                       (“Indemnitee”), a director or an officer of the Manager (as defined below).
 
RECITALS :
 
1.               Indemnitee is a director, manager or officer of EnLink Midstream Manager, LLC, the managing member of the Company (the “Manager”).
 
2.               The Manager manages the business and affairs of the Company.
 
3.               As a condition to Indemnitee becoming a director, manager or officer of the Manager (or continuing in that role), the Company has agreed to provide the indemnities and insurance and to advance expenses to Indemnitee as provided in this Agreement.
 
NOW, THEREFORE , in consideration of the promises contained herein, the parties agree as follows:
 
1.             Indemnity of Indemnitee .
 
(a)           To the fullest extent permitted by law, but subject to the limitations provided in this Agreement, the Company will indemnify and hold Indemnitee harmless, from and against any and all losses, claims, damages, liabilities, expenses (including legal fees and expenses), judgments, fines, ERISA excise taxes, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals (hereinafter, a “proceeding”), in which Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, because Indemnitee is or was a director, manager or officer of the Manager or the Company, or is or was serving at the request of the Manager or the Company as a manager, managing member, general partner, director, officer, fiduciary, or trustee of any other entity, organization or person of any nature, including service with respect to employee benefit plans, and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Company or the Manager.  Notwithstanding the above, the Company will not indemnify Indemnitee under this Agreement or otherwise if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which Indemnitee is seeking indemnification, Indemnitee acted in bad faith or engaged in fraud, willful misconduct, or in the case of a criminal matter, acted with knowledge that Indemnitee’s conduct was unlawful.
 
(b)           To the fullest extent permitted by law, the Company shall timely pay the expenses (including legal fees and expenses) incurred by Indemnitee in defending any proceeding for which indemnity is provided under section 1(a).  The Company shall pay the expenses or reimburse Indemnitee for expenses paid by Indemnitee promptly following presentment in writing with reasonable detail.  The Company’s obligation to pay Indemnitee’s

 
expenses will cease upon entry of a final and non-appealable judgment by a court of competent jurisdiction determining that Indemnitee is not entitled to be indemnified under the terms of this Agreement for the matter for which Indemnitee is seeking indemnification.
 
(c)           If a claim under paragraph (a) or (b) of this section is not paid in full by the Company within 45 days after a written claim has been received by the Company, Indemnitee may, at any time thereafter, bring suit against the Company to recover the unpaid amount of the claim.  The Company will bear the burden to show that indemnification or advances are not required under this Agreement.  Indemnitee is also entitled to recover the expenses incurred to prosecute such claim to the extent he or she is successful in establishing his or her right to indemnification or to the advancement of expenses.
 
(d)           The termination of any proceeding to which Indemnitee is a party by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, does not create a presumption that Indemnitee failed to meet any standard of conduct required for reimbursement, but specific determinations, findings or admissions will be given effect under this Agreement.
 
2.             Maintenance of Insurance .
 
(a)           Subject only to the provisions of Section 2(b) hereof, so long as Indemnitee serves as a director or officer of the Company or the Manager (or shall continue at the request of the Company to serve as a manager, managing member, general partner, director, officer, fiduciary, or trustee of another entity, person, or organization, including service with respect to employee benefit plans) and thereafter so long as Indemnitee may be subject to any possible claim or threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative, because Indemnitee was a director or officer of the Company or the Manager (or served in any of said other capacities), the Company will maintain in effect for the benefit of Indemnitee one or more valid, binding and enforceable policies of directors’ and officers’ liability insurance (the “D & O Insurance”) providing coverage comparable to that provided by similarly situated companies.  The Company will review its D & O Insurance each year and update the plans as required to meet this section.
 
(b)           The Company is not required to maintain said policy or policies of D & O Insurance in effect if the Board of Directors of the Manager determines that (i) the premium cost for such insurance is substantially disproportionate to the amount of coverage, (ii) the coverage provided by such insurance is so limited by exclusions that there is insufficient benefit from such insurance or (iii) said insurance is not otherwise reasonably available; provided, however, that in the event the then Board of Directors makes such a judgment, the Company shall purchase and maintain in force a policy or policies of D & O Insurance in the amount and with such coverage as the Board of Directors determines to be reasonably available.
 
3.             Continuation of Indemnity .
 
The obligations of the Company under this Agreement apply to any and all claims made after the date of this Agreement regardless of when the facts upon which such claims are based
 
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occurred, including times before the date hereof. All agreements and obligations of the Company contained in this Agreement shall continue during the period Indemnitee is a director or officer of the Company or the Manager (or is serving at the request of the Company as a manager, managing member, general partner, director, officer, fiduciary, or trustee of another entity, person, or organization (including service with respect to employee benefit plans) and shall continue as to an Indemnitee who has ceased to serve in such capacity and inure to the benefit of the heirs, successors, assigns and administrators of Indemnitee.
 
4.             Contribution .
 
If the full indemnification provided in Section 1 is not paid to an Indemnitee because such indemnification is prohibited by law, then in respect of any actual or threatened proceeding in which the Company or the Manager is jointly liable with Indemnitee (or would be if joined in such proceeding) the Company shall contribute to the amount of expenses incurred by Indemnitee for which indemnification is not available in such proportion as is appropriate to reflect (i) the relative benefits received by the Company and the Manager on the one hand and Indemnitee on the other hand from the transaction from which such proceeding arose and (ii) the relative fault of the Company or the Manager on the one hand and of Indemnitee on the other in connection with the events that resulted in such expenses, as well as any other relevant equitable considerations.  The relative fault of the Company (which shall be deemed to include the Company’s and the Manager’s other directors, officers and employees) on the one hand and of Indemnitee on the other hand shall be determined by reference to, among other things, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses.  The Company agrees that it would not be just and equitable if contribution pursuant to this section were determined by any method of allocation which does not take account of the foregoing equitable considerations.
 
5.             Notification and Defense of Claim .
 
Indemnitee shall notify the Company as soon as practicable after receipt by Indemnitee of actual knowledge of any proceeding that may result in Indemnitee making an indemnification claim under this Agreement.  However, the failure of Indemnitee to give timely notice will not relieve the Company’s obligations hereunder except to the extent the Company is actually prejudiced by the delay or failure to provide notice.  With respect to any proceeding as to which Indemnitee has provided notice:
 
(a)           The Company will be entitled to participate at its own expense; and
 
(b)           Except as otherwise provided below, the Company may assume the defense of any proceeding with counsel reasonably satisfactory to Indemnitee. If the Company elects to assume the defense, then after notice to Indemnitee, the Company will not be liable to Indemnitee under this Agreement for any legal or other expenses subsequently incurred by Indemnitee in connection with the defense, other than reasonable costs of investigation, including an investigation in connection with determining whether there exists a conflict of interest of the type described in clause (ii) of this paragraph, or as otherwise provided in this paragraph. Indemnitee has the right to employ his or her counsel in any proceeding, but the fees
 
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and expenses of such counsel incurred after the Company notifies Indemnitee of its assumption of the defense will be at Indemnitee’s sole expense.  However, the Company will bear Indemnitee’s expenses incurred after the Company notifies Indemnitee of its assumption of the defense if: (i)  the Company authorizes Indemnitee’s employment of counsel or incurrence of other expenses; (ii) Indemnitee, with the advice of counsel, reasonably determines that there is a conflict of interest between the Company and Indemnitee that  is reasonably likely to materially and adversely impact the conduct of Indemnitee’s defense or (iii)  the Company does not employ counsel to assume the defense of such action within a reasonable time after the Company’s election to assume the defense.  The Company may not assume the defense of any action, suit or proceeding brought by or on behalf of the Company or as to which Indemnitee makes the determination described in clause (ii) of this paragraph.
 
(c)           The Company is not obligated to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any action or claim without the Company’s written consent. The Company may not settle any action or claim in any manner that would impose any penalty or limitation on Indemnitee without Indemnitee’s written consent. Neither the Company nor Indemnitee may unreasonably withhold their consent to any proposed settlement.
 
6.             Undertaking to Repay Expenses .
 
If a court determines that Indemnitee is not entitled to, or the Company is not obligated to pay, any amounts paid by the Company to Indemnitee under this Agreement, Indemnitee must repay the Company those amounts so paid or advanced within 30 days following such determination.  In addition, to the extent that the Company assumes or reimburses any expenses, Indemnitee hereby assigns to the Company any rights to indemnification for those expenses that may arise from any other party (including any insurance proceeds) and agrees to pay to the Company any amounts that Indemnitee receives as reimbursement of those same expenses.
 
7.             Notice .
 
Any notice to the Company shall be in writing and directed to EnLink Midstream Partners, LP, 2501 Cedar Springs, Dallas, Texas 75201, Attention: Corporate Secretary (or such other address as the Company shall designate in writing to Indemnitee).  Any notice to Indemnitee shall be in writing and directed to the address included on the signature page to this Agreement.  Notices are effective upon receipt.
 
8.             Severability .
 
If any provision of this Agreement is found to be invalid, illegal or unenforceable for any reason whatsoever:
 
(a)           the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will not be affected or impaired in any way; and
 
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(b)           to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) must be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
 
9.             Indemnification Under this Agreement Not Exclusive .
 
(a)           The rights to indemnification and to the advancement of expenses provided by this Agreement are in addition to and not exclusive of any other rights to which Indemnitee may be entitled under any statute, any provision of the Company’s or the Manager’s organizational or governing documents, or any other agreement, any vote of members or directors, or otherwise, both as to action in Indemnitee’s official capacity and as to action in another capacity while holding such office.  To the extent that a change in law (whether by statute or judicial decision) permits greater indemnification under any statute, agreement, organizational document or governing document than would be afforded currently under this Agreement, it is the intention of the parties that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change.
 
(b)           It is the intention of the parties in entering into this Agreement that the insurers under any D & O Insurance policy will be obligated to pay any claims by Indemnitee that are covered by such policy. However, the obligations of the insurers to the Company or Indemnitee shall not be deemed reduced or impaired in any respect by virtue of the provisions of this Agreement.
 
10.           Miscellaneous .
 
(a)           This Agreement shall be interpreted and enforced in accordance with the laws of the State of Delaware.
 
(b)           This Agreement is binding upon Indemnitee and upon the Company, their respective successors and assigns, and inures to the benefit of Indemnitee and his or her heirs, executors, personal representatives and assigns, and to the benefit of the Company, its successors and assigns.  If the Company merges or consolidates with another entity, organization or person, or sells, leases, transfers or otherwise disposes of all or substantially all of its assets to another entity, organization or person (in one transaction or series of transactions), (i) the Company shall cause the successor in the merger or consolidation or the transferee of the assets that is receiving the greatest portion of the assets or earning power transferred pursuant to the transfer of the assets, to assume all of the Company’s obligations under and agree to perform this Agreement either by operation of law or by agreement in form and substance satisfactory to Indemnitee, and (ii) the term “Company” whenever used in this Agreement shall thereafter mean and include any such successor or transferee.
 
(c)           As used in this Agreement, no matter adjudicated by a court order will be “determined” or “ultimately determined,” and no matter will be a “final disposition” unless and until (i) the time to appeal, petition for writ of certiorari, or otherwise seek further review or to
 
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move for reargument, rehearing or reconsideration of the order has expired and no appeal, petition for writ of certiorari or other review, or proceedings for reargument, rehearing, or reconsideration are pending, or (ii) if an appeal, petition for writ of certiorari, or other request for review or reargument, rehearing or reconsideration thereof is allowed and has been sought, such order has been affirmed by the highest court to which such order was appealed or review thereof has been denied by the highest court from which a writ of certiorari, or other request for review or reargument, rehearing, or reconsideration was sought, and the time to take any further appeal, to petition for writ of certiorari or to otherwise seek review, or to move for reargument, rehearing, or reconsideration has expired.
 
(d)           Except as provided below, no amendment, modification, termination or cancellation of this Agreement is  effective unless in writing and signed by both of the parties. However, the Company may amend this Agreement from time to time without Indemnitee’s consent to the extent the Company determines that it is necessary or appropriate, in its sole discretion, to effect compliance with Section 409A of the Code, including regulations and interpretations thereunder.  Amendments under this paragraph (d) may result in a reduction of benefits provided hereunder and/or other unfavorable changes to Indemnitee. Any reduction in benefits or other changes that are unfavorable to Indemnitee will only be those required to comply with Section 409A of the Code and the regulations promulgated thereunder.
 
(e)           This Agreement provides for the indemnification of, and/or purchase of insurance policies providing for payments of, expenses and damages incurred with respect to bona fide claims against Indemnitee, as a service provider, and the Company, as the service recipient, in accordance with Treas. Reg. Section 1.409A-1(b)(10).  The Agreement does not provide for the deferral of compensation.  The Agreement must be construed consistently, and limited in accordance with, the provisions of such regulation.
 
(f)           This Agreement supersedes any prior written Indemnification Agreement entered into between Indemnitee and the Company or the Manager.
 
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IN WITNESS WHEREOF , the parties have executed this Agreement on and as of the day and year first above written.

 	ENLINK MIDSTREAM, LLC	
 	By:	EnLink Midstream Manager, LLC	
 	 	its managing member	
 	 	 	 	
 	 	By:	 	
 	 	Name:	 	
 	 	Title:	 	

 	INDEMNITEE	

 	Name:	 	
 	Address:	 	

 
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Exhibit 10.9
 
ENLINK MIDSTREAM, LLC
2009 LONG-TERM INCENTIVE PLAN
( As Amended and Restated on March 7, 2014 )
 
ARTICLE I.  ESTABLISHMENT AND PURPOSE
 
1.1                                Establishment .  The EnLink Midstream, LLC 2009 Long-Term Incentive Plan (previously known as the Crosstex Energy, Inc. 2009 Long-Term Incentive Plan) (the “Plan”), established as of March 17, 2009 and previously amended and restated as of May 9, 2013, is hereby amended and restated by the Board (as defined below).
 
1.2                                Purpose .  The purposes of the Plan are to attract able persons to enter the employ of the Company, to encourage Employees and Consultants to remain in the employ or service of the Company and to provide motivation to Employees and Consultants to put forth maximum efforts toward the continued growth, profitability and success of the Company, by providing incentives to such persons through the ownership and/or performance of the Units of EnLink Midstream.  A further purpose of the Plan is to provide a means through which the Company may attract able persons to become directors of the EnLink Manager and to provide such individuals with incentive and reward opportunities.  Toward these objectives, Awards may be granted under the Plan to Employees, Consultants and Outside Directors on the terms and subject to the conditions set forth in the Plan.
 
1.3                                Effectiveness .  This amended and restated Plan shall become effective as of March 7, 2014, following its adoption by the Board.
 
ARTICLE II.  DEFINITIONS
 
2.1                                Affiliate .  “Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question.  As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.  With respect to an Incentive Unit Option, “Affiliate” means a “parent corporation” or a “subsidiary corporation” of EnLink Midstream, as those terms are defined in Sections 424(e) and (f) of the Code.
 
2.2                                Award .  “Award” means an award granted to a Participant in the form of an Option, Cash Award or Unit Award.  All Awards shall be granted by, confirmed by, and subject to the terms of, an Award Agreement.
 
2.3                                Award Agreement .  “Award Agreement” means a written agreement between EnLink Midstream and a Participant that sets forth the terms, conditions, restrictions and/or limitations applicable to an Award.
 
2.4                                Board .  “Board” means (i) prior to the Effective Time, the Board of Directors of Devon Gas Operating, Inc., the general partner of Devon Gas Services, L.P., the sole member of the EnLink Manager, the sole member of EnLink Midstream, and (ii) following the Effective Time, the Board of Directors of the EnLink Manager, the managing member of EnLink Midstream.
 
2.5                                Cash Award .  “Cash Award” means an award denominated and payable in cash.
 
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2.6                                Cause .  “Cause” means, except as otherwise provided in an Award Agreement, (i) Participant has failed to perform the duties assigned to him and such failure has continued for thirty (30) days following delivery by the Company of written notice to Participant of such failure, (ii) Participant has been convicted of a felony or misdemeanor involving moral turpitude, (iii) Participant has engaged in acts or omissions against the Company constituting dishonesty, breach of fiduciary obligation, or intentional wrongdoing or misfeasance, (iv) Participant has acted intentionally or in bad faith in a manner that results in a material detriment to the assets, business or prospects of the Company, or (v) Participant has breached any obligation under the Plan or Award Agreement.
 
2.7                                Change of Control .  “Change of Control” shall have the meaning set forth in Section 13.1.
 
2.8                                Code .  “Code” means the Internal Revenue Code of 1986, as amended from time to time, including regulations thereunder and successor provisions and regulations thereto.
 
2.9                                Committee .  “Committee” means (i) with respect to the application of this Plan to Employees, the Compensation Committee of the Board or such other committee of the Board as may be designated by the Board to administer the Plan, which committee shall consist of two or more non-employee directors, each of whom is both a “non-employee director” under Rule 16b-3 of the Exchange Act and an “outside director” under Section 162(m) of the Code, and (ii) with respect to the application of this Plan to an Outside Director, the Board.  To the extent that no Committee exists that has the authority to administer the Plan, the functions of the Committee shall be exercised by the Board.  If for any reason the appointed Committee does not meet the requirements of Rule 16b-3 or Section 162(m) of the Code, such noncompliance with such requirements shall not affect the validity of Awards, grants, interpretations or other actions of the Committee.
 
2.10                         Company .  “Company” means EnLink Midstream and its Affiliates.
 
2.11                         Consultant .  “Consultant” means an individual performing services for EnLink Midstream or an Affiliate who is treated for tax purposes as an independent contractor at the time of performance of the services.
 
2.12                         Effective Date .  “Effective Date” means the date this amended and restated Plan becomes effective as provided in Section 1.3.
 
2.13                         Employee .  “Employee” means an employee of the Company; provided, however, that the term Employee does not include an Outside Director or a Consultant.
 
2.14                         EnLink Manager .   “EnLink Manager” means EnLink Midstream Manager, LLC, a Delaware limited liability company, and any successor thereto.
 
2.15                         EnLink Midstream .   “EnLink Midstream” means EnLink Midstream, LLC, a Delaware limited liability company, and any successor thereto.
 
2.16                         Exchange Act .  “Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
2.17                         Executive Officer .  “Executive Officer” means a “covered employee” within the meaning of Section 162(m)(3) of the Code or any other executive officer designated by the Committee for purposes of exempting compensation payable under this Plan from the deduction limitations of Section 162(m) of the Code.
 
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2.18                         Fair Market Value .  “Fair Market Value” means the closing sales price of a Unit on the applicable date (or if there is no trading in the Units on such date, on the next preceding date on which there was trading) as reported in The Wall Street Journal (or other reporting service approved by the Committee).  In the event the Units are not publicly traded at the time a determination of fair market value is required to be made hereunder, the determination of fair market value shall be made in good faith by the Committee.
 
2.19                         Grant Date .  “Grant Date” means the date an Award is granted by the Committee.
 
2.20                         Incentive Unit Option .  “Incentive Unit Option” means an Option that is intended to meet the requirements of Section 422(b) of the Code.
 
2.21                         Nonqualified Unit Option .  “Nonqualified Unit Option” means an Option that is not an Incentive Unit Option.
 
2.22                         Option .  “Option” means an option to purchase Units granted to a Participant pursuant to Article VII.  An Option may be either an Incentive Unit Option or a Nonqualified Unit Option, as determined by the Committee.
 
2.23                         Outside Director .  “Outside Director” means a “non-employee director” of the EnLink Manager, as defined in Rule 16b-3.
 
2.24                         Participant .  “Participant” means an Employee, Consultant or Outside Director to whom an Award has been granted under the Plan.
 
2.25                         Performance Award .  “Performance Award” means an award made pursuant to this Plan to a Participant, which Award is subject to the attainment of one or more Performance Goals.
 
2.26                         Performance Goal .  “Performance Goal” means a standard established by the Committee, to determine in whole or in part whether a Performance Award shall be earned.
 
2.27                         Person .  “Person” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.
 
2.28                         Plan .  “Plan” means this EnLink Midstream, LLC 2009 Long-Term Incentive Plan, as amended from time to time.
 
2.29                         Restricted Incentive Unit .  “Restricted Incentive Unit” means an Award granted to a Participant pursuant to Article IX that is valued by reference to a Unit, which value may be paid to the Participant by delivery, as the Committee shall determine, of cash, Units, or any combination thereof, and that has such restrictions as may be determined by the Committee.
 
2.30                         Restricted Units .  “Restricted Units” means Units granted to a Participant pursuant to Article VIII, which are subject to such restrictions as may be determined by the Committee.  Restricted Units shall constitute issued and outstanding Units for all corporate purposes.
 
2.31                         Restriction Period .  “Restriction Period” means the period of time established by the Committee at the time of a grant of Restricted Units during which an Award of Restricted Units or Restricted Incentive Units shall be fully or partially forfeitable.
 
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2.32                         Rule 16b-3 .  “Rule 16b-3” means Rule 16b-3 promulgated by the SEC under the Exchange Act, or any successor rule or regulation thereto as in effect from time to time.
 
2.33                         Units .   “Units” means the units, $.01 par value per Unit, of EnLink Midstream, or any units or other securities of EnLink Midstream hereafter issued or issuable in substitution or exchange for the Units.
 
2.34                         Unit Award .  “Unit Award” means an Award of Units or other units denominated in Units, including an Award of Restricted Units or Restricted Incentive Units.
 
ARTICLE III.  PLAN ADMINISTRATION
 
3.1                                Plan Administrator .  The Plan shall be administered by the Committee.  The Committee may, subject to applicable law, delegate some or all of its power to the Chief Executive Officer or other executive officer of the Company as the Committee deems appropriate; provided, that (i) in no event shall the Committee delegate its power with regard to the grant of an Award to any person who is a “covered employee” within the meaning of Section 162(m) of the Code or who, in the Committee’s judgment, is likely to be a covered employee at any time during the period an Award to such employee would be outstanding, and (ii) in no event shall the Committee delegate its power with regard to the selection for participation in the Plan of an officer or other person subject to Section 16 of the Exchange Act or decisions concerning the timing, pricing or amount of an Award to such an officer or other person.
 
3.2                                Authority of Administrator .  The Committee shall have total and exclusive responsibility to control, operate, manage and administer the Plan in accordance with its terms.  The Committee shall have all the authority that may be necessary or helpful to enable it to discharge its responsibilities with respect to the Plan.  Without limiting the generality of the preceding sentence, but subject to the limitation that none of the enumerated powers of the Committee shall be deemed to include any action that would cause a tax to be imposed on a Participant pursuant to Section 409A of the Code, the Committee shall have the exclusive right to: (i) interpret the Plan and the Award Agreements executed hereunder; (ii) determine eligibility for participation in the Plan; (iii) decide all questions concerning eligibility for, and the amount of, Awards granted under the Plan; (iv) construe any ambiguous provision of the Plan or any Award Agreement; (v) prescribe the form of the Award Agreements embodying Awards granted under the Plan; (vi) correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award Agreement; (vii) issue administrative guidelines as an aid to administering the Plan and make changes in such guidelines as the Committee from time to time deems proper; (viii) make regulations for carrying out the Plan and make changes in such regulations as the Committee from time to time deems proper; (ix) determine whether Awards should be granted singly or in combination; (x) to the extent permitted under the Plan, grant waivers of Plan terms, conditions, restrictions and limitations; (xi) accelerate the exercise, vesting or payment of an Award when such action or actions would be in the best interests of the Company; (xii) grant Awards in replacement of Awards previously granted under the Plan or any other employee benefit plan of the Company; and (xiii) take any and all other actions the Committee deems necessary or advisable for the proper operation or administration of the Plan.  Notwithstanding anything herein to the contrary, except in connection with a corporate transaction involving the Company as provided in Section 4.2 (including, without limitation, any distribution, Unit split, extraordinary cash distribution, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination, or exchange of Units), the terms of outstanding awards may not be amended to reduce the exercise price of outstanding Options or cancel, exchange, substitute, buyout or surrender outstanding Options in exchange for cash, other awards or Options with an exercise price that is less than the exercise price of the original Options without unitholder approval.
 
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3.3                                Discretionary Authority .  The Committee shall have full discretionary authority in all matters related to the discharge of its responsibilities and the exercise of its authority under the Plan, including, without limitation, its construction of the terms of the Plan and its determination of eligibility for participation and Awards under the Plan.  The decisions of the Committee and its actions with respect to the Plan shall be final, conclusive and binding on all persons having or claiming to have any right or interest in or under the Plan, including Participants and their respective estates, beneficiaries and legal representatives.
 
3.4                                Liability; Indemnification .   No member of the Committee nor any person to whom authority has been delegated, shall be personally liable for any action, interpretation or determination made in good faith with respect to the Plan or Awards granted hereunder, and each member of the Committee (or delegatee of the Committee) shall be fully indemnified and protected by EnLink Midstream with respect to any liability he or she may incur with respect to any such action, interpretation or determination, to the extent permitted by applicable law.
 
ARTICLE IV.  UNITS SUBJECT TO THE PLAN
 
4.1                                Available Units .  The maximum number of Units that shall be available for grant of Awards under the Plan shall not exceed a total of [ · ] Units, subject to adjustment as provided in Sections 4.2 and 4.3; provided, however, the maximum number of Units for which Options or Unit Awards may be granted under the Plan to any one Participant during a calendar year is [ · ] .  All Units that remain available for issuance hereunder may be issued as Incentive Unit Options.  No Participant may be granted Cash Awards resulting in the payment of more than $ [ · ] in any calendar year.  Units issued pursuant to the Plan may be Units of original issuance or treasury Units or a combination of the foregoing, as the Committee, in its absolute discretion, shall from time to time determine.
 
4.2                                Adjustments for Recapitalizations and Reorganizations .
 
(a)                                  The Units with respect to which Awards may be granted under the Plan are Units as presently constituted, but if, and whenever, prior to the expiration or satisfaction of an Award theretofore granted, EnLink Midstream shall effect a subdivision or consolidation of Units or the payment of a distribution on Units in the form of EnLink Midstream Units without receipt of consideration by EnLink Midstream, the number of Units with respect to which such Award may thereafter be exercised or satisfied, as applicable, (i) in the event of an increase in the number of outstanding Units, shall be proportionately increased, and the exercise price per Unit shall be proportionately reduced, and (ii) in the event of a reduction in the number of outstanding Units, shall be proportionately reduced, and the exercise price per Unit shall be proportionately increased.
 
(b)                                  If EnLink Midstream recapitalizes or otherwise changes its capital structure, thereafter upon any exercise or satisfaction, as applicable, of an Award theretofore granted the Participant shall be entitled to (or entitled to purchase, if applicable) under such Award, in lieu of the number of Units then covered by such Award, the number and class of units or other securities to which the Participant would have been entitled pursuant to the terms of the recapitalization if, immediately prior to such recapitalization, the Participant had been the holder of record of the number of Units then covered by such Award.
 
(c)                                   In the event of changes in the Units by reason of a reorganization, merger, consolidation, combination, separation (including a spin-off or other distribution of Units or property), exchange, or other relevant change in capitalization occurring after the date of grant of any Award and not otherwise provided for by this Section 4.2, any outstanding Awards and any
 
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Award Agreements evidencing such Awards shall be subject to adjustment by the Committee in its absolute discretion as to the number, price and kind of units or other consideration subject to, and other terms of, such Awards to reflect such changes in the outstanding Units.
 
(d)                                  In the event of any changes in the outstanding Units provided for in this Section 4.2, the aggregate number of Units available for grant of Awards under the Plan may be equitably adjusted by the Committee, whose determination shall be conclusive. Any adjustment provided for in this Section 4.2 shall be subject to any required unitholder action.
 
4.3                                Adjustments for Awards .  The Committee shall have full discretion to determine the manner in which Units available for grant of Awards under the Plan are counted.  Without limiting the discretion of the Committee under this Section 4.3, unless otherwise determined by the Committee, the following rules shall apply for the purpose of determining the number of Units available for grant of Awards under the Plan:
 
(a)                                  Unit-Based Awards.  The grant of Options and Unit Awards shall reduce the number of Units available for grant of Awards under the Plan by the number of Units subject to such Award.
 
(b)                                  Termination.  If any Award referred to in paragraph (a) above is canceled or forfeited, or terminates, expires or lapses for any reason, the Units then subject to such Award shall again be available for grant of Awards under the Plan.
 
(c)                                   Payment of Exercise Price and Withholding Taxes.   If previously acquired Units are used to pay the exercise price of an Award, the number of Units available for grant of Awards under the Plan shall not be increased by the number of Units delivered as payment of such exercise price.  If previously acquired Units are used to pay withholding taxes payable upon exercise, vesting or payment of an Award, or Units that would be acquired upon exercise, vesting or payment of an Award are withheld to pay withholding taxes payable upon exercise, vesting or payment of such Award, the number of Units available for grant of Awards under the Plan shall not be increased by the number of Units delivered or withheld as payment of such withholding taxes.
 
(d)                                  Fractional Units.  If any such adjustment would result in a fractional security being (i) available under the Plan, such fractional security shall be disregarded or (ii) subject to an Award, EnLink Midstream shall pay the holder of such Award, in connection with the first vesting, exercise or settlement of such Award in whole or in part occurring after such adjustment, an amount in cash determined by multiplying (x) the fraction of such security (rounded to the nearest hundredth) by (y) the excess, if any, of the Fair Market Value on the vesting, exercise or settlement date over the exercise price, if any, of such Award.
 
ARTICLE V.  ELIGIBILITY
 
All Employees, Consultants and Outside Directors are eligible to participate in the Plan.  The Committee shall recommend, from time to time, Participants from those Employees, Consultants and Outside Directors who, in the opinion of the Committee, can further the Plan purposes.  Once a Participant is recommended for an Award by the Committee, the Committee shall determine the type and size of Award to be granted to the Participant and shall establish in the related Award Agreement the terms, conditions, restrictions and/or limitations applicable to the Award, in addition to those set forth in the Plan and the administrative rules and regulations, if any, established by the Committee.
 
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ARTICLE VI.  FORM OF AWARDS
 
Awards may, at the Committee’s sole discretion, be granted under the Plan in the form of Options, Unit Awards, Restricted Units, Performance Awards or a combination thereof.  All Awards shall be subject to the terms, conditions, restrictions and limitations of the Plan.  The Committee may, in its absolute discretion, subject any Award to such other terms, conditions, restrictions and/or limitations (including, but not limited to, the time and conditions of exercise, vesting or payment of an Award and restrictions on transferability of any Units issued or delivered pursuant to an Award), provided they are not inconsistent with the terms of the Plan.  Awards under a particular Article of the Plan need not be uniform, and Awards under more than one Article of the Plan may be combined into a single Award Agreement.  Any combination of Awards may be granted at one time and on more than one occasion to the same Participant.
 
ARTICLE VII.  OPTIONS
 
7.1                                General .  Awards may be granted to Employees, Consultants and Outside Directors in the form of Options.  Options granted under the Plan may be Incentive Unit Options or Nonqualified Unit Options, or a combination of both; provided, however, that Incentive Unit Options may be granted only to Employees.
 
7.2                                Terms and Conditions of Options .  An Option shall be exercisable in whole or in such installments and at such times as may be determined by the Committee.  The price at which a Unit may be purchased upon exercise of a Nonqualified Unit Option shall be determined by the Committee, but such exercise price shall not be less than 100% of the Fair Market Value per Unit on the Grant Date.  Except as otherwise provided in Section 7.3, the term of each Option shall be as specified by the Committee; provided, however, that, no Options shall be exercisable later than ten years from the Grant Date.  Options may be granted with respect to Restricted Units or Units that are not Restricted Units, as determined by the Committee in its absolute discretion.  In no event shall an Award of Options include any right to receive distribution or distribution equivalent payments in connection with the Units that are subject to such Options or with respect to periods occurring prior to the exercise of such Options.
 
7.3                                Restrictions Relating to Incentive Unit Options .  Options granted in the form of Incentive Unit Options shall, in addition to being subject to the terms and conditions of Section 7.2, comply with Section 422(b) of the Code.  Accordingly, no Incentive Unit Options shall be granted later than ten years from the earlier of the date of adoption of the Plan by the Board or the date of the Plan’s last approval by the applicable equity holders of the Plan sponsor.  To the extent that the aggregate Fair Market Value (determined at the time the respective Incentive Unit Option is granted) of the Units with respect to which Incentive Unit Options are exercisable for the first time by an individual during any calendar year under all incentive unit option plans of EnLink Midstream and its Affiliates exceeds $100,000, such excess Incentive Unit Options shall be treated as Nonqualified Unit Options.  The Committee shall determine, in accordance with the applicable provisions of the Code, which of a Participant’s Incentive Unit Options will not constitute Incentive Unit Options because of such limitation and shall notify the Participant of such determination as soon as practicable after such determination.  The price at which a Unit may be purchased upon exercise of an Incentive Unit Option shall be determined by the Committee, but such exercise price shall not be less than 100% of the Fair Market Value of a Unit on the Grant Date.  No Incentive Unit Option shall be granted to an Employee under the Plan if, at the time such Option is granted, such Employee owns Units possessing more than 10% of the total combined voting power of all classes of units of EnLink Midstream or an Affiliate, within the meaning of Section 422(b)(6) of the Code, unless (i) on the Grant Date of such Option, the exercise price of such Option is at least 110% of the Fair Market Value of the Units subject to the Option and (ii) such Option by its terms is not exercisable after the expiration of five years from the Grant Date of the Option.
 
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7.4                                Additional Terms and Conditions .  The Committee may subject any Award of an Option to such other terms, conditions, restrictions and/or limitations as it determines are necessary or appropriate, provided they are not inconsistent with the Plan.
 
7.5                                Exercise of Options .  Subject to the terms and conditions of the Plan, Options shall be exercised by the delivery of a written notice of exercise to EnLink Midstream, setting forth the number of Units with respect to which the Option is to be exercised, accompanied by full payment for such Units.
 
Upon exercise of an Option, the exercise price of the Option shall be payable to EnLink Midstream in full either: (i) in cash or an equivalent acceptable to the Committee, or (ii) in the absolute discretion of the Committee and in accordance with any applicable administrative guidelines established by the Committee, by tendering one or more previously acquired nonforfeitable Units that have been owned by the Participant or by reducing the number of Units issuable upon exercise of the Option, in either case having an aggregate Fair Market Value at the time of exercise equal to the total exercise price (including an actual or deemed multiple series of exchanges of such Units), or (iii) in a combination of the forms of payment specified in clauses (i) and (ii) above.
 
From and after such time as EnLink Midstream registers the Units under Section 12 of the Exchange Act, payment of the exercise price of an Option may also be made, in the absolute discretion of the Committee, by delivery to EnLink Midstream or its designated agent of an executed irrevocable option exercise form together with irrevocable instructions to a broker-dealer to sell or margin a sufficient portion of the Units with respect to which the Option is exercised and deliver the sale or margin loan proceeds directly to EnLink Midstream to pay the exercise price and any required withholding taxes.
 
As soon as reasonably practicable after receipt of written notification of exercise of an Option and full payment of the exercise price and any required withholding taxes, EnLink Midstream shall deliver to the Participant, in the Participant’s name, a unit certificate or certificates in an appropriate amount based upon the number of Units purchased under the Option.
 
7.6                                Termination of Employment or Service .  Each Award Agreement embodying the Award of an Option shall set forth the extent to which the Participant shall have the right to exercise the Option following termination of the Participant’s employment or service with the Company.  Such provisions shall be determined by the Committee in its absolute discretion, need not be uniform among all Options granted under the Plan and may reflect distinctions based on the reasons for termination of employment or service.  In the event a Participant’s Award Agreement embodying the award of an Option does not set forth such termination provisions, the following termination provisions shall apply with respect to such Award:
 
(a)                                  Death, Disability or Retirement.  If the employment or service of a Participant shall terminate by reason of death, permanent and total disability (within the meaning of Section 22(e)(3) of the Code) or retirement with the approval of the Committee on or after the Participant’s attainment of age 60, each outstanding Option held by the Participant shall become vested and may be exercised until the earlier of (i) the expiration of one year (three months in the case of an Incentive Unit Option held by a retired Participant) from the date of such termination of employment or service, or (ii) the expiration of the term of such Option.
 
(b)                                  Other Termination.  If the employment or service of a Participant shall terminate for any reason other than a reason set forth in paragraph (a) above or paragraph (c) below, whether on a voluntary or involuntary basis, each outstanding Option held by the Participant may be exercised, to the extent then vested, until the earlier of (i) the expiration of
 
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three months from the date of such termination of employment or service, or (ii) the expiration of the term of such Option.
 
(c)                                   Termination for Cause.  Notwithstanding paragraphs (a) and (b) above, if the employment or service of a Participant is terminated for Cause, all outstanding Options held by the Participant shall immediately be forfeited to the Company and no additional exercise period shall be allowed, regardless of the vested status of the Option.
 
ARTICLE VIII.  RESTRICTED UNITS
 
8.1                                General .  Awards may be granted to Employees, Consultants and Outside Directors in the form of Restricted Units.  Restricted Units shall be awarded in such numbers and at such times as the Committee shall determine.
 
8.2                                Restriction Period .  At the time an Award of Restricted Units is granted, the Committee shall establish the Restriction Period applicable to such Restricted Units.  Each Award of Restricted Units may have a different Restriction Period, in the discretion of the Committee.  The Restriction Period applicable to a particular Award of Restricted Units shall not be changed except as permitted by Article IV or Section 8.3 of this Article.
 
8.3                                Other Terms and Conditions .  Restricted Units awarded to a Participant under the Plan shall be represented by a unit certificate registered in the name of the Participant or, at the option of EnLink Midstream, in the name of a nominee of EnLink Midstream.  Subject to the terms and conditions of the Award Agreement, a Participant to whom an Award of Restricted Units has been awarded shall have the right to receive distributions thereon during the Restriction Period, to vote the Restricted Units and to enjoy all other unitholder rights with respect thereto, except that (i) the Participant shall not be entitled to possession of the unit certificate representing the Restricted Units until the Restriction Period shall have expired, (ii) EnLink Midstream shall retain custody of the Restricted Units during the Restriction Period, (iii) the Participant may not sell, transfer, pledge, exchange, hypothecate or otherwise dispose of the Restricted Units during the Restriction Period, and (iv) a breach of the terms and conditions established by the Committee pursuant to the Award of the Restricted Units shall cause a forfeiture of the Restricted Units.  At the time of an Award of Restricted Units, the Committee may, in its absolute discretion, prescribe additional terms, conditions, restrictions and/or limitations applicable to the Restricted Units, including, but not limited to, rules pertaining to the termination of employment or service by reason of death, permanent and total disability, retirement or otherwise, of a Participant prior to expiration of the Restriction Period.
 
8.4                                Payment for Restricted Units .  A Participant shall not be required to make any payment for Restricted Units awarded to the Participant, except to the extent otherwise required by the Committee or by applicable law.
 
8.5                                Miscellaneous .  Nothing in this Article shall prohibit the exchange of Restricted Units issued under the Plan pursuant to a plan of reorganization for Units or securities of EnLink Midstream or another corporation that is a party to the reorganization, but the units or securities so received for Restricted Units shall, except as provided in Article IV or XII, become subject to the restrictions applicable to the Award of such Restricted Units.  Any Units received as a result of a unit split or distribution with respect to Restricted Units shall also become subject to the restrictions applicable to the Award of such Restricted Units.
 
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ARTICLE IX.  RESTRICTED INCENTIVE UNITS
 
9.1                                General .  Awards may be granted to Employees, Consultants and Outside Directors in the form of Restricted Incentive Units.  Restricted Incentive Units shall be awarded in such numbers and at such times as the Committee shall determine.
 
9.2                                Restriction Period .  At the time an Award of Restricted Incentive Units is granted, the Committee shall establish the Restriction Period applicable to such Restricted Incentive Units.  Each Award of Restricted Incentive Units may have a different Restriction Period, in the discretion of the Committee.  The Restriction Period applicable to a particular Award of Restricted Incentive Units shall not be changed except as permitted by Article IV or Section 9.3 of this Article.
 
9.3                                Other Terms and Conditions .  At the time of an Award of Restricted Incentive Units, the Committee may, in its absolute discretion, prescribe additional terms, conditions, restrictions and/or limitations applicable to the Restricted Incentive Units, including, but not limited to, rules pertaining to (a) the right to receive distribution equivalents with respect to such Restricted Incentive Units during the Restriction Period, and (b) the termination of employment or service by reason of death, permanent and total disability, retirement or otherwise, of a Participant prior to expiration of the Restriction Period.  A Participant receiving an Award of Restricted Incentive Units shall not possess voting rights with respect to such Award.
 
ARTICLE X.  UNIT AWARDS
 
10.1                         General; Terms and Conditions .  An Award may be in the form of a Unit Award.  The terms, conditions and limitations applicable to any Unit Awards granted pursuant to this Plan shall be determined by the Committee.  Any Unit Award that is not an Award of Restricted Incentive Units shall be subject to the specific provisions for Restricted Units set forth in Article VIII.
 
ARTICLE XI.  CASH AWARDS
 
11.1                         General; Terms and Conditions .  An Award may be in the form of a Cash Award.  The terms, conditions and limitations applicable to any Cash Awards granted pursuant to this Plan shall be determined by the Committee.
 
ARTICLE XII.  PERFORMANCE AWARDS
 
12.1                         General .  Without limiting the type or number of Awards that may be made under the other provisions of this Plan, an Award may be in the form of a Performance Award.  The terms, conditions and limitations applicable to any Performance Awards granted to Participants pursuant to this Plan shall be determined by the Committee, subject to the limitations specified below.  In no event shall a Performance Award include any right to receive distribution or distribution equivalent payments during periods occurring prior to the vesting of such Performance Award.  Any Unit Award which is a Performance Award shall have a minimum Restriction Period of one year from the date of grant, provided that the Committee may provide for earlier vesting following a Change of Control or other specified events involving the Company, or upon a termination of employment or service by reason of disability, retirement, (in the case of a Unit Award that is not intended to be qualified performance-based compensation under Section 162(m) of the Code), death or termination of service subject to the limitations specified below.  The Committee shall set Performance Goals in its sole discretion which, depending on the extent to which they are met, will determine the value and/or amount of Performance Awards that will be paid out to the Participant and/or the portion of an Award that may be exercised.
 
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12.2                         Nonqualified Performance Awards .  Performance Awards granted to Employees, Consultants or Outside Directors that are not intended to qualify as qualified performance-based compensation under Section 162(m) of the Code shall be based on achievement of such Performance Goals and be subject to such terms, conditions and restrictions as the Committee or its delegate shall determine.
 
12.3                         Qualified Performance Awards .  Performance Awards granted to Executive Officers under this Plan that are intended to qualify as qualified performance-based compensation under Section 162(m) of the Code shall be paid, vested or otherwise deliverable solely on account of the attainment of one or more pre-established, objective Performance Goals established and administered by the Committee in accordance with Section 162(m) of the Code prior to the earlier to occur of (x) 90 days after the commencement of the period of service to which the Performance Goal relates and (y) the lapse of 25% of the period of service (as scheduled in good faith at the time the goal is established), and in any event while the outcome is substantially uncertain.  A Performance Goal is objective if a third party having knowledge of the relevant facts could determine whether the goal is met.
 
(a)                                  Such a Performance Goal may be based on one or more business criteria that apply to an Executive Officer, one or more business units, divisions or sectors of the Company, or the Company as a whole, and if so desired by the Committee, by comparison with a peer group of companies.  A Performance Goal may include one or more of the following and need not be the same for each Executive Officer:
 
·                   revenue and income measures (which include revenue, gross margin, income from operations, net income, net sales and earnings per Unit);
 
·                   expense measures (which include costs of goods sold, selling, general and administrative expenses and overhead costs);
 
·                   operating measures (which include volumes, margin, operating results, other operating measures and productivity);
 
·                   cash flow measures (which include net cash flow from operating activities and working capital);
 
·                   liquidity measures (which include earnings before or after the effect of certain items such as interest, taxes, depreciation and amortization, and free cash flow);
 
·                   leverage measures (which include debt-to-equity ratio and net debt);
 
·                   market measures (which include market share, unit price, total unitholder return and market capitalization measures);
 
·                   return measures (which include return on equity, return on assets and return on invested capital);
 
·                   corporate value measures (which include compliance, safety, environmental and personnel matters); and
 
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·                   other measures such as those relating to acquisitions, dispositions or customer satisfaction.
 
(b)                                  Unless otherwise stated, such a Performance Goal need not be based upon an increase or positive result under a particular business criterion and could include, for example, maintaining the status quo, performance relative to a peer group determined by the Committee or limiting economic losses (measured, in each case, by reference to specific business criteria).  In interpreting Plan provisions applicable to Performance Goals and qualified Performance Awards, it is the intent of this Plan to conform with Section 162(m) of the Code, including, without limitation, Treasury Regulation §1.162-27(e)(2)(i), as to grants to Executive Officers and the Committee in establishing such goals and interpreting the Plan shall be guided by such provisions.  Prior to the payment of any compensation based on the achievement of Performance Goals applicable to qualified Performance Awards, the Committee must certify in writing that applicable Performance Goals and any of the material terms thereof were, in fact, satisfied.  Subject to the foregoing provisions, the terms, conditions and limitations applicable to any qualified Performance Awards made pursuant to this Plan shall be determined by the Committee to the extent permitted by Section 162(m) of the Code.
 
(c)                                   The Committee shall adjust the Performance Goals (either up or down) and the level of the Performance Award that a Participant may earn under this Plan, to the extent permitted pursuant to Section 162(m) of the Code, if it determines that the occurrence of external changes or other unanticipated business conditions have materially affected the fairness of the goals and have unduly influenced the Company’s ability to meet them, including without limitation, events such as material acquisitions, changes in the capital structure of the Company, and extraordinary accounting changes.  In addition, Performance Goals and Performance Awards shall be calculated without regard to any changes in accounting standards that may be required by the Financial Accounting Standards Board after such Performance Goals are established.  Further, in the event a period of service to which a Performance Goal relates is less than 12 months, the Committee shall have the right, in its sole discretion, to adjust the Performance Goals and the level of Performance Award opportunity.
 
ARTICLE XIII.  CHANGE OF CONTROL
 
13.1                         Definition of Change of Control .  A “Change of Control” means: (a) the consummation of a merger or consolidation of EnLink Midstream, EnLink Midstream GP, LLC or EnLink Midstream Partners, LP with or into another entity or any other transaction,  the result of which is that any Person (other than EnLink Midstream, EnLink Midstream GP, LLC or EnLink Midstream Partners, LP (or their subsidiaries)) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% or more of the voting power of the outstanding securities of each of (i) the continuing or surviving entity and (ii) any direct or indirect parent entity of such continuing or surviving entity; (b) the sale, transfer or other disposition of all or substantially all of the Company’s assets; or (c) a change in the composition of the Board as a result of which fewer than 50% of the incumbent directors are directors who either (i) had been directors of EnLink Midstream on the date 12 months prior to the date of the event that may constitute a Change of Control (the “original directors”) or (ii) were elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the aggregate of the original directors who were still in office at the time of the election or nomination and the directors whose election or nomination was previously so approved.
 
13.2                         Effect on Outstanding Awards .  Immediately prior to a Change of Control, all Awards shall automatically vest and become payable or exercisable, as the case may be, in full.  In this regard, all Restriction Periods shall terminate.  The phrase “Immediately prior to a Change of Control” shall be
 
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understood to mean sufficiently in advance of a Change of Control to permit Participants to take all steps reasonably necessary to exercise an Award, if applicable, and to deal with the Units underlying all Awards so that all Awards and Units issuable with respect thereto may be treated in the same manner as the Units of other unitholders in connection with the Change of Control.  Notwithstanding the foregoing, payment of any Award subject to Section 409A of the Code shall not be accelerated upon a Change of Control unless such Change of Control qualifies as a “change in control event” within the meaning of Treas. Reg. Section 1.409A-3(i)(5).
 
ARTICLE XIV.  AMENDMENT AND TERMINATION
 
14.1                         Plan Amendment and Termination .  The Board may at any time suspend, terminate, amend or modify the Plan, in whole or in part; provided, however, that no amendment or modification of the Plan shall become effective without the approval of such amendment or modification by the unitholders of EnLink Midstream (i) if such amendment or modification increases the maximum number of Units subject to the Plan (except as provided in Article IV) or changes the designation or class of persons eligible to receive Awards under the Plan, or (ii) if counsel for EnLink Midstream determines that such approval is otherwise required by or necessary to comply with applicable law.  The Plan, as amended and restated, shall terminate upon the earlier of (i) the termination of the Plan by the Board, or (ii) the expiration of the Plan, which shall be 10 years following the date (May 9, 2013) of the Plan’s last approval by the applicable equity holders of the Plan sponsor.  Upon termination of the Plan, the terms and provisions of the Plan shall, notwithstanding such termination, continue to apply to Awards granted prior to such termination.  No suspension, termination, amendment or modification of the Plan shall adversely affect in any material way any Award previously granted under the Plan, without the consent of the Participant (or the permitted transferee) holding such Award.
 
14.2                         Award Amendment .  The Board may amend the terms of any outstanding Award granted pursuant to this Plan, but no such amendment shall adversely affect in any material way the Participant’s (or a permitted transferee’s) rights under an outstanding Award without the consent of the Participant (or the permitted transferee) holding such Award; provided, however, that no amendment shall be made that would cause the exercise price of an Option to be less than the  Fair Market Value of the Units subject to the Option on the Grant Date.
 
ARTICLE XV.  MISCELLANEOUS
 
15.1                         Award Agreements .  After the Committee grants an Award under the Plan to a Participant, EnLink Midstream and the Participant shall enter into an Award Agreement setting forth the terms, conditions, restrictions and/or limitations applicable to the Award and such other matters as the Committee may determine to be appropriate.  The terms and provisions of the respective Award Agreements need not be identical.  All Award Agreements shall be subject to the provisions of the Plan, and in the event of any conflict between an Award Agreement and the Plan, the terms of the Plan shall govern.
 
15.2                         Listing Conditions .
 
(a)                                  As long as the Units are listed on a national securities exchange or system sponsored by a national securities association, the issuance of any Units pursuant to an Award shall be conditioned upon such Units being listed on such exchange or system.  EnLink Midstream shall have no obligation to issue such Units unless and until such Units are so listed, and the right to exercise any Option or other Award with respect to such Units shall be suspended until such listing has been effected.
 
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(b)                                  If at any time counsel to EnLink Midstream or its Affiliates shall be of the opinion that any sale or delivery of Units pursuant to an Award is or may in the circumstances be unlawful or result in the imposition of excise taxes on EnLink Midstream or its Affiliates under the statutes, rules or regulations of any applicable jurisdiction, EnLink Midstream or its Affiliates shall have no obligation to make such sale or delivery, or to make any application or to effect or to maintain any qualification or registration under the Securities Act of 1933, as amended, or otherwise, with respect to Units or Awards, and the right to exercise any Option or other Award shall be suspended until, in the opinion of said counsel, such sale or delivery shall be lawful or will not result in the imposition of excise taxes on EnLink Midstream or its Affiliates.
 
(c)                                   Upon termination of any period of suspension under this Section 15.2, any Award affected by such suspension which shall not then have expired or terminated shall be reinstated as to all Units available before such suspension and as to Units which would otherwise have become available during the period of such suspension, but no such suspension shall extend the term of any Award.
 
15.3                         Additional Conditions .  Notwithstanding anything in the Plan to the contrary: (i) EnLink Midstream may, if it shall determine it necessary or desirable for any reason, at the time of grant of any Award or the issuance of any Units pursuant to any Award, require the recipient of the Award or such Units, as a condition to the receipt thereof, to deliver to EnLink Midstream a written representation of present intention to acquire the Award or such Units for his or her own account for investment and not for distribution; (ii) the certificate for the Units issued to a Participant may include any legend which the Committee deems appropriate to reflect any restrictions on transfer, and (iii) all certificates for the Units delivered under the Plan shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations and other requirements of the SEC, any stock exchange upon which the Units are then quoted, any applicable federal or state securities law, and any applicable corporate law, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
 
15.4                         Nonassignability .  No Award granted under the Plan may be sold, transferred, pledged, exchanged, hypothecated or otherwise disposed of, other than by will or pursuant to the applicable laws of descent and distribution.  Further, no such Award shall be subject to execution, attachment or similar process.  Any attempted sale, transfer, pledge, exchange, hypothecation or other disposition of an Award not specifically permitted by the Plan or the Award Agreement shall be null and void and without effect.  All Awards granted to a Participant under the Plan shall be exercisable during his or her lifetime only by such Participant or, in the event of the Participant’s legal incapacity, by his or her guardian or legal representative.  Notwithstanding the foregoing, to the extent specifically provided by the Committee, an Award, including an Option, may be transferred by a Participant without consideration to immediate family members or related family trusts, limited partnerships or similar entities or on such terms and conditions as the Committee may from time to time establish.
 
15.5                         Withholding Taxes .  The Company shall be entitled to deduct from any payment made under the Plan, regardless of the form of such payment, the amount of all applicable income and employment taxes required by law to be withheld with respect to such payment, may require the Participant to pay to the Company such withholding taxes prior to and as a condition of the making of any payment or the issuance or delivery of any Units under the Plan, and shall be entitled to deduct from any other compensation payable to the Participant any withholding obligations with respect to Awards under the Plan.  In accordance with any applicable administrative guidelines it establishes, the Committee may allow a Participant to pay the amount of taxes required by law to be withheld from or with respect to an Award by (i) withholding Units from any payment of Units due as a result of such Award, or (ii) permitting the Participant to deliver to the Company previously acquired Units, in each case having a Fair
 
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Market Value equal to the amount of such required withholding taxes.  No payment shall be made and no Units shall be issued pursuant to any Award unless and until the applicable tax withholding obligations have been satisfied.
 
15.6                         No Fractional Units .  No fractional Units shall be issued or delivered pursuant to the Plan or any Award granted hereunder, and except as otherwise provided herein, no payment or other adjustment shall be made in respect of any such fractional Unit.
 
15.7                         Notices .  All notices required or permitted to be given or made under the Plan or any Award Agreement shall be in writing and shall be deemed to have been duly given or made if (i) delivered personally, (ii) transmitted by first class registered or certified United States mail, postage prepaid, return receipt requested, (iii) sent by prepaid overnight courier service, or (iv) sent by telecopy or facsimile transmission, answer back requested, to the person who is to receive it at the address that such person has theretofore specified by written notice delivered in accordance herewith.  Such notices shall be effective (i) if delivered personally or sent by courier service, upon actual receipt by the intended recipient, (ii) if mailed, upon the earlier of five days after deposit in the mail or the date of delivery as shown by the return receipt therefor, or (iii) if sent by telecopy or facsimile transmission, when the answer back is received.  EnLink Midstream or a Participant may change, at any time and from time to time, by written notice to the other, the address that it or such Participant had theretofore specified for receiving notices.  Until such address is changed in accordance herewith, notices hereunder or under an Award Agreement shall be delivered or sent (i) to a Participant at his or her address as set forth in the records of the Company or (ii) to EnLink Midstream at the principal executive offices of EnLink Midstream clearly marked “Attention: LTIP Administrator.”
 
15.8                         Binding Effect .  The obligations of EnLink Midstream under the Plan shall be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of EnLink Midstream, or upon any successor corporation or organization succeeding to all or substantially all of the assets and business of EnLink Midstream.  The terms and conditions of the Plan shall be binding upon each Participant and his or her heirs, legatees, distributees and legal representatives.
 
15.9                         Severability .  If any provision of the Plan or any Award Agreement is held to be illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining provisions of the Plan or such agreement, as the case may be, but such provision shall be fully severable and the Plan or such agreement, as the case may be, shall be construed and enforced as if the illegal or invalid provision had never been included herein or therein.
 
15.10                  No Restriction of Corporate Action .  Nothing contained in the Plan shall be construed to prevent EnLink Midstream or any Affiliate from taking any corporate action (including any corporate action to suspend, terminate, amend or modify the Plan) that is deemed by EnLink Midstream or such Affiliate to be appropriate or in its best interest, whether or not such action would have an adverse effect on the Plan or any Awards made or to be made under the Plan.  No Participant or other person shall have any claim against EnLink Midstream or any Affiliate as a result of such action.
 
15.11                  Governing Law .  The Plan shall be governed by and construed in accordance with the internal laws (and not the principles relating to conflicts of laws) of the State of Delaware except as superseded by applicable federal law.
 
15.12                  No Right, Title or Interest in Company Assets .  No Participant shall have any rights as a unitholder of EnLink Midstream as a result of participation in the Plan until the date of issuance of a unit certificate in his or her name and, in the case of Restricted Units, unless and until such rights are granted to the Participant pursuant to the Plan.  To the extent any person acquires a right to receive
 
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payments from the Company under the Plan, such rights shall be no greater than the rights of an unsecured general creditor of the Company, and such person shall not have any rights in or against any specific assets of the Company.  All of the Awards granted under the Plan shall be unfunded.
 
15.13                  Risk of Participation .  Nothing contained in the Plan shall be construed either as a guarantee by EnLink Midstream or its Affiliates, or their respective unitholders, directors, officers or employees, of the value of any assets of the Plan or as an agreement by EnLink Midstream or its Affiliates, or their respective unitholders, directors, officers or employees, to indemnify anyone for any losses, damages, costs or expenses resulting from participation in the Plan.
 
15.14                  Section 409A of the Code .  All Awards under this Plan are intended either to be exempt from, or to comply with the requirements of Section 409A of the Code, and this Plan and all Awards shall be interpreted and operated in a manner consistent with that intention.  Notwithstanding anything in this Plan to the contrary, if any Plan provision or Award under this Plan would result in the imposition of an applicable tax under Section 409A of the Code, that Plan provision or Award shall be reformed to avoid imposition of the applicable tax and no such action shall be deemed to adversely affect the Participant’s rights to an Award.
 
15.15                  No Guarantee of Tax Consequences .  No person connected with the Plan in any capacity, including, but not limited to, EnLink Midstream and its Affiliates and their respective directors, officers, agents and employees, makes any representation, commitment or guarantee that any tax treatment, including, but not limited to, federal, state and local income, estate and gift tax treatment, will be applicable with respect to any Awards or payments thereunder made to or for the benefit of a Participant under the Plan or that such tax treatment will apply to or be available to a Participant on account of participation in the Plan.
 
15.16                  Continued Employment or Service .  Nothing contained in the Plan or in any Award Agreement shall confer upon any Participant the right to continue in the employ or service of the Company, or interfere in any way with the rights of the Company to terminate a Participant’s employment or service at any time, with or without cause.
 
15.17                  Miscellaneous .  Headings are given to the articles and sections of the Plan solely as a convenience to facilitate reference.  Such headings shall not be deemed in any way material or relevant to the construction of the Plan or any provisions hereof.  The use of the masculine gender shall also include within its meaning the feminine.  Wherever the context of the Plan dictates, the use of the singular shall also include within its meaning the plural, and vice versa.
 
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