Exhibit 10.1
COMMITMENT INCREASE AGREEMENT
This Commitment Increase Agreement (this Agreement) dated as of September 19, 2007
(the Increase Effective Date) is by and among Crosstex Energy, L.P., a Delaware limited
partnership (Borrower), Cooperative Centrale Raiffeisen-Boerenleenbank BA Rabobank
Nederland New York Branch and The Bank of Nova Scotia (collectively, the New Banks),
Bank of America, N.A., Union Bank of California, N.A., Suntrust Bank, BMO Capital Markets, Wachovia
Bank, National Association, Scotiabanc Inc., JPMorgan Chase Bank N.A., BNP Paribas, Wells Fargo
Bank, N.A., Sterling Bank and Compass Bank (collectively, the Increasing Banks) and Bank
of America, N.A., as Administrative Agent for the Banks under the Credit Agreement described below
(the Agent) and as Issuing Bank.
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Reference is made to the Fourth Amended and Restated Credit Agreement dated as of November 1,
2005 (as amended on or before the date hereof, Credit Agreement) among the Borrower,
the Banks and the Agent. All capitalized terms used herein and not otherwise defined shall
have the meanings given such terms in the Credit Agreement. |
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Pursuant to Section 2.15 of the Credit Agreement, the Borrower has the right, subject to the
terms and conditions thereof, to increase the aggregate Commitments by adding to the Credit
Agreement one or more commercial banks or other financial institutions or by allowing one or
more Banks to increase their Commitments thereunder so that such added and increased
Commitments shall equal the increase in aggregate Commitments requested by the Borrower. |
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The Borrower has given notice to the Agent of its intention, pursuant to such Section 2.15
and with the consent of the New Banks and the Increasing Banks, to increase the aggregate
Commitments from $1,000,000,000 to $1,185,000,000. |
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The Agent and each Issuing Bank hereby consents to the addition of each New Bank as a Bank
under the Credit Agreement. |
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Accordingly, the parties hereto agree as follows: |
Section 1. Increase of Commitment. Pursuant to Section 2.15 of the Credit Agreement,
the aggregate Commitments are hereby increased from $1,000,000,000 to $1,185,000,000. The
Commitments of the New Banks and the Increasing Banks are set forth on Schedule 1 attached
hereto.
Section 2. New Notes. If any New Bank or any Increasing Bank requests that its
Advances be evidenced by a Note, the Borrower agrees to promptly execute and deliver to such New
Bank or Increasing Bank a Note in the amount of its Commitment set forth in Section 1 above (each a
New Note). If any Increasing Bank which requests a New Note is in possession of an
existing Note in the amount of its Commitment before giving effect to the increase pursuant to this
Agreement (each an Existing Note), such Increasing Bank shall, promptly after receipt of
its New Note, mark such Existing Note cancelled and return such Existing Note to the Borrower.
Section 3. Addition of New Banks. Each New Bank (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial statements requested by such
New Bank and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement, (ii) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers under the Credit Documents
as are delegated to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, (iii) agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be performed by it as a
Bank, (iv) agrees that its payment instructions and notice instructions are as set forth in an
Administrative Questionnaire previously delivered to the Agent, and (v) if applicable, attaches the
forms prescribed by the Internal Revenue Service of the United States certifying that such New Bank
is entitled to receive payments under the Credit Documents without deduction or withholding of any
United States federal income taxes.
Section 4. Additional Undertakings. Each New Bank (i) agrees that it has made its own
credit analysis and decision to enter into this Agreement and to agree to the various matters set
forth herein, (ii) agrees that it will, independently and without reliance upon the Agent or any
other Bank and based on such documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Credit Agreement
and the other Credit Documents and (iii) confirms that the execution and delivery of this Agreement
by such New Bank is duly authorized.
Section 5. Representations and Warranties of the Borrower. The Borrower represents
and warrants as follows:
(a) a true and correct copy of the resolutions adopted by the Borrower approving or
consenting to such increase are attached hereto as Exhibit A, and such resolutions have not
been amended, altered or repealed and are in effect on the date hereof;
(b) the execution, delivery and performance by the Borrower of this Agreement are
within the Borrowers legal powers, have been duly authorized by all necessary partnership
action and do not (i) contravene the Borrower Partnership Agreement, (ii) violate any
applicable Governmental Rule, the violation of which could reasonably be expected to have a
Material Adverse Effect, (iii) conflict with or result in the breach of, or constitute a
default under, any loan agreement, indenture, mortgage, deed of trust or lease, or any other
contract or instrument binding on or affecting the Borrower or any Subsidiary or any of
their respective properties, the conflict, breach or default of which could reasonably be
expected to have a Material Adverse Effect, or (iv) result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of the Borrower, other
than Liens permitted by the Credit Agreement.
(c) no Governmental Action is required for the due execution, delivery or performance
by the Borrower of this Agreement;
(d) this Agreement constitutes legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with its terms, except as the
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enforceability
thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors rights generally or by
general principles of equity (regardless of whether such enforceability is considered in any
proceeding in law or in equity);
(e) the execution, delivery and performance of this Agreement does not adversely affect
the enforceability of any Lien of the Security Documents;
(f) there is no pending or, to the knowledge of the Borrower, threatened action or
proceeding affecting the Borrower or any Subsidiary before any Governmental Person, referee
or arbitrator that could reasonably be expected to have a Material Adverse Effect;
(g) the representations and warranties contained in Article IV of the Credit Agreement
and the other Credit Documents are true and correct 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 as of such earlier date, except that
the representations and warranties contained in Section 4.05 of the Credit Agreement shall
be deemed to refer to the most recent statements furnished pursuant to clauses (c) and (d),
respectively, of Section 5.01 of the Credit Agreement, and
(h) no event has occurred and is continuing, or would result from the effectiveness of
this Agreement, which constitutes a Default.
Section 6. Reference to and Effect on the Credit Agreement.
(a) On and after the effective date of this Agreement each reference in the Credit Agreement
to this Agreement, hereunder, hereof, herein or words of like import shall mean and be a
reference to the Credit Agreement, and each reference in the other Credit Documents to the Credit
Agreement, thereunder, thereof, therein or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as modified by this Agreement.
(b) Except as specifically modified above, the Credit Agreement and the other Credit Documents
shall remain in full force and effect and are hereby ratified and confirmed. Without limiting the
generality of the foregoing, the Security Documents and all of the Collateral described therein do
and shall continue to secure the payment of all obligations stated to be secured thereby under the
Credit Documents.
Section 7. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each which when so executed and
delivered shall be deemed to be an original and all of which when taken together shall constitute
but one and the same instrument. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an originally executed counterpart of
this Agreement.
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Section 8. Governing Law; Binding Effect. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Texas, and shall be
binding upon the Borrower, the Administrative Agent, each Bank and their respective successors
and assigns.
Section 9. Costs and Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Administrative Agent in connection with the preparation, execution and delivery of
this Agreement and the other instruments and documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and with respect to advising the Administrative Agent as to its rights and responsibilities
hereunder and thereunder.
THIS WRITTEN AGREEMENT AND THE CREDIT 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 BETWEEN THE PARTIES.
[Remainder of this page blank; signature pages follow]
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Executed as of the date first set forth above.
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CROSSTEX ENERGY, L.P. |
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By: |
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Crosstex Energy GP, L.P., |
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General Partner |
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By:
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Crosstex Energy GP, LLC, |
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General Partner |
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By: |
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/s/ Gysle R. Shellum |
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Gysle R. Shellum |
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Vice President Finance |
Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
Each of the undersigned, as guarantors under the Second Amended and Restated Subsidiary Guaranty
dated as of November 1, 2005 (the Guaranty), hereby (a) consents to this Agreement, and
(b) confirms and agrees that the Guaranty is and shall continue to be in full force and effect and
is ratified and confirmed in all respects, except that, on and after the effective date of the
Agreement each reference in the Guaranty to the Credit Agreement, thereunder, thereof,
therein or any other expression of like import referring to the Credit Agreement shall mean and
be a reference to the Credit Agreement as modified by this Agreement.
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CROSSTEX ENERGY SERVICES, L.P.
By: Crosstex Operating GP, LLC, its general partner
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By: |
/s/ Gysle R. Shellum
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Gysle R. Shellum |
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Vice President - Finance |
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CROSSTEX OPERATING GP, LLC
CROSSTEX ENERGY SERVICES GP, LLC
CROSSTEX LIG, LLC
CROSSTEX TUSCALOOSA, LLC
CROSSTEX LIG LIQUIDS, LLC
CROSSTEX PIPELINE, LLC
CROSSTEX PROCESSING SERVICES, LLC
CROSSTEX PELICAN, LLC
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By: |
/s/ Gysle R. Shellum
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Gysle R. Shellum |
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Vice President - Finance |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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CROSSTEX ACQUISITION MANAGEMENT, L.P.
CROSSTEX MISSISSIPPI PIPELINE, L.P.
CROSSTEX SEMINOLE GAS, L.P.
CROSSTEX ALABAMA GATHERING SYSTEM, L.P.
CROSSTEX MISSISSIPPI INDUSTRIAL GAS SALES, L.P.
CROSSTEX GULF COAST TRANSMISSION LTD.
CROSSTEX GULF COAST MARKETING LTD.
CROSSTEX CCNG GATHERING LTD.
CROSSTEX CCNG PROCESSING LTD.
CROSSTEX CCNG TRANSMISSION LTD.
CROSSTEX TREATING SERVICES, L.P.
CROSSTEX NORTH TEXAS PIPELINE, L.P.
CROSSTEX NORTH TEXAS GATHERING, L.P.
CROSSTEX NGL MARKETING, L.P.
CROSSTEX NGL PIPELINE, L.P.
By: Crosstex Energy Services GP, LLC, general partner
of each above limited partnership
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By: |
/s/ Gysle R. Shellum
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Gysle R. Shellum |
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Vice President - Finance |
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CROSSTEX PIPELINE PARTNERS, LTD.
By: Crosstex Pipeline, LLC, its general partner
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By: |
/s/ Gysle R. Shellum
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Gysle R. Shellum |
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Vice President - Finance |
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SABINE PASS PLANT FACILITY JOINT VENTURE
By: Crosstex Processing Services, LLC, as general
partner, and
By: Crosstex Pelican, LLC, as general partner
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By: |
/s/ Gysle R. Shellum
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Gysle R. Shellum |
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Vice President Finance |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.,
as Administrative Agent and Collateral Agent
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By: |
/s/ Matthew C. Correia
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Matthew C. Correia |
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Vice President |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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INCREASING BANKS
BANK OF AMERICA, N.A.,
as a Bank and an Issuing Bank
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By: |
/s/ Scott A. Mackey
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Scott A. Mackey |
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Vice President |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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UNION BANK OF CALIFORNIA, N.A.
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By: |
/s/ Timothy Brendel
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Name: |
Timothy Brendel |
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Title: |
Investment Banking Officer |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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SUNTRUST BANK
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By: |
/s/ Carmen J. Mauizia
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Name: |
Carmen J. Mauizia |
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Title: |
Vice President |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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BMO CAPITAL MARKETS FINANCING, INC.
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By: |
/s/ Cahal Carmody
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Name: |
Cahal Carmody |
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Title: |
Vice President |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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WACHOVIA BANK, NATIONAL ASSOCIATION
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By: |
/s/ Allison Newman
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Name: |
Allison Newman |
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Title: |
Vice President |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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SCOTIABANC INC.
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By: |
/s/ J.F. Todd
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Name: |
J.F. Todd |
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Title: |
Managing Director |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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JPMORGAN CHASE BANK N.A.
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By: |
/s/ Tara Narasiman
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Name: |
Tara Narasiman |
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Title: |
Associate |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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BNP PARIBAS
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By: |
/s/ Gregory E. George
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Name: |
Gregory E. George |
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Title: |
Managing Director |
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By: |
/s/ Larry Robinson
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Name: |
Larry Robinson |
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Title: |
Director |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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WELLS FARGO BANK, N.A.
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By: |
/s/ Charles D. Kirkham
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Name: |
Charles D. Kirkham |
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Title: |
Senior Vice President |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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STERLING BANK
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By: |
/s/ Ryan K. Michael
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Name: |
Ryan K. Michael |
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Title: |
Assistant Vice President |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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COMPASS BANK
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By: |
/s/ Adrianne D. Griffin
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Name: |
Adrianne D. Griffin |
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Title: |
Vice President |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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NEW BANK
COOPERATIVE CENTRALE RAIFFEISEN-
BOERENLEENBANK BA RABOBANK
NEDERLAND NEW YORK BRANCH
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By: |
/s/ Thomas K. Martin
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Name: |
Thomas K. Martin |
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Title: |
Vice President |
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By: |
/s/ Rebecca Morrow
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Name: |
Rebecca Morrow |
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Title: |
Executive Director |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
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THE BANK OF NOVA SCOTIA
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By: |
/s/ David Mills
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Name: |
David Mills |
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Title: |
Director |
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Signature Page to Commitment Increase Agreement
Crosstex Energy, L.P.
SCHEDULE 1
INCREASED OR NEW COMMITMENTS
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BANK |
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COMMITMENT |
Bank of America, N.A. |
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$ |
74,400,000 |
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Union Bank of California, N.A. |
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$ |
74,400,000 |
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Suntrust Bank |
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$ |
69,100,000 |
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BMO Capital Markets Financing, Inc. |
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$ |
74,400,000 |
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Wachovia Bank, National Association |
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$ |
74,400,000 |
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The Bank of Nova Scotia |
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$ |
14,300,000 |
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Scotiabanc Inc. |
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$ |
60,000,000 |
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JPMorgan Chase Bank N.A. |
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$ |
48,000,000 |
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BNP Paribas |
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$ |
55,000,000 |
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Wells Fargo Bank, N.A. |
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$ |
50,000,000 |
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Sterling Bank |
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$ |
30,000,000 |
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Compass Bank |
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$ |
30,000,000 |
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Cooperative Centrale Raiffeisen-Boerenleenbank BA
Rabobank Nederland New York Branch |
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$ |
30,000,000 |
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