EXHIBIT 10(a)
CREDIT AGREEMENT
among
XXXXXXXX XXX, X.X.
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent
XXXXXX COMMERCIAL PAPER, INC.,
as Syndication Agent
SUNTRUST BANK,
as Documentation Agent
and
The Lenders Party Hereto
$150,000,000
SENIOR CREDIT FACILITIES
BANC OF AMERICA SECURITIES LLC
AND
XXXXXX BROTHERS INC.
Joint Lead Arrangers and Joint Book Managers
DATED AS OF FEBRUARY 6, 2001
TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.01 Defined Terms...............................................................................1
1.02 Other Interpretive Provisions..............................................................18
1.03 Accounting Terms...........................................................................19
1.04 Rounding...................................................................................19
1.05 References to Agreements and Laws..........................................................19
ARTICLE II. THE COMMITMENTS AND BORROWINGS.......................................................................19
2.01 Revolver Facility..........................................................................19
2.02 Term Loan Facility.........................................................................20
2.03 Borrowings, Conversions and Continuations of Loans.........................................20
2.04 Prepayments................................................................................21
2.05 Reduction or Termination of Commitments....................................................23
2.06 Repayment of Loans.........................................................................23
2.07 Interest...................................................................................23
2.08 Fees.......................................................................................24
2.09 Computation of Interest and Fees...........................................................24
2.10 Evidence of Debt...........................................................................25
2.11 Payments Generally.........................................................................25
2.12 Sharing of Payments........................................................................26
2.13 Order of Application.......................................................................27
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY..............................................................28
3.01 Taxes......................................................................................28
3.02 Illegality.................................................................................28
3.03 Inability to Determine Rates...............................................................29
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate
Loans......................................................................................29
3.05 Funding Losses.............................................................................30
3.06 Matters Applicable to all Requests for Compensation........................................30
3.07 Survival...................................................................................30
ARTICLE IV. CONDITIONS PRECEDENT TO BORROWINGS...................................................................30
4.01 Conditions of Initial Borrowing............................................................30
4.01A Dealine for Initial Funding Date...........................................................32
4.02 Conditions to all Loans....................................................................32
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................................................................33
5.01 Existence; Qualification and Power; Compliance with Laws...................................33
5.02 Authorization; No Contravention............................................................33
5.03 Governmental Authorization.................................................................33
5.04 Binding Effect.............................................................................33
5.05 Financial Statements; No Material Adverse Effect...........................................33
5.06 Litigation.................................................................................34
5.07 No Default.................................................................................34
5.08 Ownership of Property; Liens...............................................................34
5.09 Environmental Compliance...................................................................34
5.10 Insurance..................................................................................34
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5.11 Taxes......................................................................................34
5.12 ERISA Compliance...........................................................................35
5.13 Subsidiaries...............................................................................35
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act; Use
of Proceeds................................................................................35
5.15 Disclosure.................................................................................36
5.16 Labor Matters..............................................................................36
5.17 Compliance with Laws.......................................................................36
ARTICLE VI. AFFIRMATIVE COVENANTS................................................................................36
6.01 Financial Statements.......................................................................36
6.02 Certificates; Other Information............................................................37
6.03 Notices....................................................................................38
6.04 Payment of Obligations.....................................................................38
6.05 Preservation of Existence, Etc.............................................................38
6.06 Maintenance of Assets and Business.........................................................38
6.07 Maintenance of Insurance...................................................................39
6.08 Compliance with Laws.......................................................................39
6.09 Books and Records..........................................................................39
6.10 Inspection Rights..........................................................................39
6.11 Compliance with ERISA......................................................................39
6.12 Use of Proceeds............................................................................39
6.13 Clean Down Period..........................................................................40
6.14 Guaranties.................................................................................40
6.15 Material Agreements........................................................................40
ARTICLE VII. NEGATIVE COVENANTS..................................................................................40
7.01 Liens......................................................................................40
7.02 Investments................................................................................41
7.03 Indebtedness, Synthetic Leases and Swap Obligations........................................41
7.04 Fundamental Changes........................................................................42
7.05 Dispositions...............................................................................42
7.06 Lease Obligations..........................................................................43
7.07 Restricted Payments; Payments of Permitted Affiliate Subordinated Debt.....................43
7.08 ERISA......................................................................................43
7.09 Nature of Business; Capital Expenditures...................................................43
7.10 Transactions with Affiliates...............................................................43
7.11 Burdensome Agreements......................................................................43
7.12 Use of Proceeds............................................................................43
7.13 Operating Agreements.......................................................................44
7.14 Financial Covenants........................................................................44
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES.....................................................................44
8.01 Events of Default..........................................................................44
8.02 Remedies Upon Event of Default.............................................................46
ARTICLE IX. ADMINISTRATIVE AGENT.................................................................................47
9.01 Appointment and Authorization of Administrative Agent......................................47
9.02 Delegation of Duties.......................................................................47
9.03 Liability of Administrative Agent..........................................................47
9.04 Reliance by Administrative Agent...........................................................47
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9.05 Notice of Default..........................................................................48
9.06 Credit Decision; Disclosure of Information by Administrative Agent.........................48
9.07 Indemnification of Administrative Agent....................................................49
9.08 Administrative Agent in its Individual Capacity............................................49
9.09 Successor Administrative Agent.............................................................49
9.10 Other Agents; Lead Managers................................................................50
ARTICLE X. MISCELLANEOUS.........................................................................................50
10.01 Amendments, Etc............................................................................50
10.02 Notices and Other Communications; Facsimile Copies.........................................51
10.03 No Waiver; Cumulative Remedies.............................................................52
10.04 Attorney Costs; Expenses and Taxes.........................................................52
10.05 Indemnification............................................................................52
10.06 Payments Set Aside.........................................................................53
10.07 Successors and Assigns.....................................................................53
10.08 Confidentiality............................................................................55
10.09 Set-off....................................................................................56
10.10 Interest Rate Limitation...................................................................56
10.11 Counterparts...............................................................................57
10.12 Integration................................................................................57
10.13 Survival of Representations and Warranties.................................................57
10.14 Severability...............................................................................57
10.15 Foreign Lenders............................................................................57
10.16 Governing Law..............................................................................58
10.17 Waiver of Right to Trial by Jury...........................................................58
10.18 No General Partner's Liability.............................................................59
10.19 ENTIRE AGREEMENT...........................................................................59
SIGNATURES.............................................................................................S-1
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SCHEDULES
2.01 Commitments and Pro Rata Shares
5.13 Subsidiaries
10.02 Addresses for Notices to Borrower, Guarantors and Administrative Agent
EXHIBITS
Form of
A-1 Borrowing Notice
A-2 Conversion/Continuation Notice
B-1 Revolver Note
B-2 Term Note
C-1 Compliance Certificate pursuant to SECTION 6.02(a)
C-2 Compliance Certificate pursuant to SECTION 7.02 and SECTION 7.03
D Assignment and Acceptance
E Guaranty
F-1 and F-2 Opinions of Counsel
G Intercompany Note evidencing Permitted Affiliate Subordinated Debt
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CREDIT AGREEMENT
This
CREDIT AGREEMENT ("AGREEMENT") is entered into as of February 6,
2001, among XXXXXXXX OLP, L.P., a Delaware limited partnership (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,
XXXXXX COMMERCIAL PAPER, INC., as Syndication Agent, and SUNTRUST BANK, as
Documentation Agent.
The Borrower has requested that the Lenders provide a term loan
facility and 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:
ACCEPTABLE INDEMNITY means, with respect to a judgment, an agreement
between a Referenced Person as indemnitee (the "INDEMNITEE") and a third party
as indemnitor (the "INDEMNITOR") pursuant to which such Referenced Person is
entitled to be indemnified against and reimbursed for any and all losses,
liabilities, and expenses arising in connection with such judgment, provided
that (i) the Indemnitor shall be reasonably acceptable to the Required Lenders,
(ii) the Indemnitor shall have accepted liability pursuant to a written
undertaking that is satisfactory to the Required Lenders, and (iii) unless
otherwise agreed by the Required Lenders, the Indemnitor's obligations shall be
secured, pursuant to arrangements that are reasonably satisfactory to the
Required Lenders, by cash collateral pledged to the Indemnitee or by a letter of
credit, guaranty, bond or other credit support issued for the benefit of the
Indemnitee.
ACQUISITION means any transaction or series of related transactions for
the purpose of, or resulting in, directly or indirectly, (a) the acquisition by
a Company of all or substantially all of the assets of a Person or of any
business or division of a Person; (b) the acquisition by a Company of more than
50% of any class of Voting Stock (or similar ownership interests) of any Person;
or (c) a merger, consolidation, amalgamation, or other combination by a Company
with another Person if a Company is the surviving entity, provided that, (i) in
any merger involving the Borrower, the Borrower must be the surviving entity;
and (ii) in any merger involving a wholly-owned Subsidiary and another
Subsidiary, the wholly-owned Subsidiary shall be the survivor.
ACQUISITION SUBFACILITY has the meaning specified in SECTION 2.01(a).
ACQUISITION SUBFACILITY COMMITMENT means an amount (subject to
reduction or cancellation as herein provided) equal to $40,000,000.00.
ACQUISITION SUBFACILITY PRINCIPAL DEBT means, on any date of
determination, the aggregate unpaid principal amount of all Borrowings under the
Acquisition Subfacility.
ADMINISTRATIVE AGENT means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
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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 DETAILS FORM means the Administrative Details Reply Form
furnished by a Lender to the Administrative Agent in connection with this
Agreement.
AFFILIATE means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be controlled by any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 50% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners; or (b)
to direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
AGENT/ARRANGER FEE LETTER has the meaning specified in SECTION 2.08(b).
AGENT-RELATED PERSONS means the Administrative Agent (including any
successor administrative agent), together with its Affiliates (including, in the
case of Bank of America in its capacity as the Administrative Agent, Banc of
America Securities LLC), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
AGGREGATE COMMITMENTS has the meaning set forth in the definition of
"Commitment."
AGGREGATE COMMITTED SUM means, on any date of determination, the sum of
all Committed Sums then in effect for all Lenders in respect of the Revolver
Facility and the Term Loan Facility (as the same may have been reduced or
canceled as provided in the Loan Documents).
AGREEMENT means this
Credit Agreement.
APPLICABLE RATE means the following percentages per annum set forth in
the table below, on any date of determination, with respect to the Type of
Borrowing or commitment fee that corresponds to the Leverage Ratio at such date
of determination, as calculated based on the quarterly Compliance Certificate
most recently delivered pursuant to SECTION 6.02(a):
Applicable Rate
----------------------------------------------------------------------------------------
Pricing Commitment Eurodollar Base Rate +
Level Leverage Ratio fee (bps) Rate + (bps) (bps)
------- -------------- ---------- ------------ -----------
1 Less than or equal to 17.5 100.0 0
2.00:1.00
2 Less than or equal to 25.0 120.0 20.0
3.00:1.00, but greater
than 2.00:1.00
3 Greater than 3.00:1.00 35.0 145.0 40.0
Pricing Level 2 above shall be in effect for a period of six (6) months
beginning on the Initial Funding Date unless, during such six (6) month period,
the Leverage Ratio falls within Pricing Level 3 above, in which case Pricing
Level 3 shall apply.
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ARRANGERS means Banc of America Securities LLC and Xxxxxx Brothers
Inc., in their capacities as joint lead arrangers and joint book managers, and
ARRANGER means either one of them.
ASSET ACQUISITION has the meaning set forth in SECTION 7.14(c)(i).
ASSIGNMENT AND ACCEPTANCE means an Assignment and Acceptance
substantially in the form of EXHIBIT D.
ASSUMED DEBT means that certain Indebtedness assumed by Terminal
Holdings LLC, originally incurred to partially finance the $259,000,000 purchase
of certain terminal, storage, pipeline and related assets (such assets being
herein called the FINANCED ASSETS).
ATTORNEY COSTS means and includes all reasonable fees and disbursements
of any law firm or other external counsel and the reasonable allocated cost of
internal legal services and all reasonable disbursements of internal counsel.
ATTRIBUTABLE INDEBTEDNESS means, on any date, 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.
ATTRIBUTABLE PRINCIPAL means, on any date, in respect of any Synthetic
Lease Obligation, the capitalized amount of the remaining lease payments under
the relevant lease that 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.
AUTHORIZATIONS means all filings, recordings, and registrations with,
and all validations or exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates, and permits from, any Governmental
Authority.
BANK GUARANTIES means guaranties or other agreements or instruments
serving a similar function issued by a bank or other financial institution.
BANK OF AMERICA means Bank of America, N.A.
BASE RATE means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (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." Such 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 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 LOAN means a Loan that bears interest based on the Base Rate.
BOARD means the Board of Governors of the Federal Reserve System of the
United States of America.
BORROWER has the meaning set forth in the introductory paragraph
hereto.
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BORROWER'S OPERATING AGREEMENTS means the following: (a) Borrower's and
its Subsidiaries' Organization Documents, (b) the Omnibus Agreement, and (c) the
Contribution Agreement.
BORROWING means a borrowing consisting of simultaneous Loans of the
same Type and having the same Interest Period made by each of the Lenders
pursuant to SECTIONS 2.01 and 2.02.
BORROWING NOTICE means a notice of (a) a Borrowing, (b) a conversion of
Loans from one Type to the other, or (c) a continuation of Loans as the same
Type, pursuant to SECTION 2.03(a), which, if in writing, shall be substantially
in the form of EXHIBIT A-1 or A-2, as applicable.
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 on
which dealings in Dollar deposits are conducted by and between banks in the
applicable offshore Dollar interbank market.
CAPITAL EXPENDITURE by a Person means an expenditure (determined in
accordance with GAAP) for any fixed asset owned by such Person for use in the
operations of such Person having a useful life of more than one year, or any
improvements or additions thereto.
CAPITAL LEASE means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
CHANGE OF CONTROL means (a) the failure of the TWC to own, directly or
indirectly, 100% of the general partnership interests in the MLP, (b) the
failure of TWC to own, directly or indirectly, 100% of the general partnership
interests in the Borrower, or (c) the failure of the MLP to be the sole limited
partner of the Borrower.
CLOSING DATE means the date upon which this Agreement has been executed
by the Borrower, the Lenders and the Administrative Agent.
CODE means the Internal Revenue Code of 1986.
COMMITMENT means, as to each Revolver Lender, its obligation to make
Loans to the Borrower pursuant to SECTION 2.01, in an amount at any one time
outstanding not to exceed its Committed Sum, and, as to each Term Loan Lender,
its obligation to lend to the Borrower on the Conditions Effective Date pursuant
to SECTION 2.02, in an amount not to exceed its Committed Sum, in each case as
such amount may be reduced or adjusted from time to time in accordance with this
Agreement (collectively, the "AGGREGATE COMMITMENTS").
COMMITTED SUM means (a) for any Revolver Lender, with respect to the
Acquisition Subfacility, at any date of determination occurring prior to the
Revolver Maturity Date, the amount stated beside such Lender's name under the
heading for the Acquisition Subfacility on the most-recently amended SCHEDULE
2.01 to this Agreement (which amount is subject to increase, reduction, or
cancellation in accordance with the Loan Documents), (b) for any Revolver
Lender, with respect to the Working Capital/Distribution Subfacility, at any
date of determination occurring prior to the Revolver Maturity Date, the amount
stated beside such Lender's name under the heading for the Working
Capital/Distribution Subfacility on the most recently amended SCHEDULE 2.01 to
this Agreement (which amount is subject to increase, reduction, or cancellation
in accordance with the Loan Documents), and (c) for any Term Loan Lender, with
respect to the Term Loan Facility, at any date of determination occurring prior
to the date of
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the initial Borrowing for the Term Loan Facility, the amount stated beside such
Lender's name under the heading for the Term Loan Facility on the most-recently
amended SCHEDULE 2.01 to this Agreement (which amount is subject to increase,
reduction, or cancellation in accordance with the Loan Documents).
COMPANY and COMPANIES means, on any date of determination thereof,
Borrower and each of its Subsidiaries.
COMPLIANCE CERTIFICATE means a certificate substantially in the form of
EXHIBIT C-1 or EXHIBIT C-2, as applicable.
CONDITIONS EFFECTIVE DATE means the first date all the conditions
precedent in SECTION 4.01 are satisfied or waived in accordance with SECTION
4.01 (or, in the case of SECTIONS 4.01(b) and (c), waived by the Person entitled
to receive the applicable payment).
CONSOLIDATED EBITDA means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount of
taxes, based on or measured by income, used or included in the determination of
such Consolidated Net Income, and (d) the amount of depreciation and
amortization expense deducted in determining such Consolidated Net Income.
CONSOLIDATED INTEREST CHARGES means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, the sum of (a) all interest,
premium payments, fees, charges and related expenses of the Borrower and its
Subsidiaries in connection with Indebtedness (including capitalized interest),
in each case to the extent treated as interest in accordance with GAAP, less
interest income from temporary investments, and (b) the portion of rent expense
of the Borrower and its Subsidiaries with respect to such period under Capital
Leases that is treated as interest in accordance with GAAP.
CONSOLIDATED LEASE AND RENTAL EXPENSE means the lease and rental
expense of the Borrower and its Subsidiaries on a consolidated basis.
CONSOLIDATED NET INCOME means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income or net loss of the Borrower
and its Subsidiaries from continuing operations, provided that there shall be
excluded from such net income (to the extent otherwise included therein): (a)
net extraordinary gains and losses (other than, in the case of losses, losses
resulting from charges against net income to establish or increase reserves for
potential environmental liabilities and reserves for exposure under rate cases),
(b) net gains or losses in respect of Dispositions of assets other than in the
ordinary course of business, (c) any gains or losses attributable to non-cash
write-ups or write-downs of assets, and (d) proceeds of any insurance on
property, plant or equipment.
CONSOLIDATED TOTAL DEBT means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations and liabilities, whether current
or long-term, for borrowed money (including Obligations hereunder), (b) that
portion of obligations with respect to Capital Leases of the Borrower and its
Subsidiaries, and (c) without duplication, all Guaranty Obligations with respect
to Indebtedness of the type specified in subsections (a) and (b) above of
Persons other than the Borrower or any Subsidiary.
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.
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CONTRIBUTION AGREEMENT means the Contribution, Conveyance and
Assumption Agreement dated as of the date of MLP Offering Closing, among the
MLP, the Borrower, TWC and certain of its Affiliates.
DEBT ISSUANCE means the issuance, incurrence or assumption of
Indebtedness or a Synthetic Lease by the Borrower or any of its Subsidiaries
after the Closing Date, other than Permitted Affiliate Subordinated Debt and
Indebtedness arising under the Loan Documents.
DEBTOR RELIEF LAWS means the Bankruptcy Code of the United States of
America, 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 of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
DEFAULT means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
DEFAULT RATE means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 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, in each
case to the fullest extent permitted by applicable Laws.
DISPOSITION or DISPOSE means the sale, transfer, license 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 $ means lawful money of the United States of America.
XXXXX means "Electronic Data Gathering, Analysis and Retrieval" system,
a database maintained by the Securities and Exchange Commission containing
electronic filings of issuers of certain securities.
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of a Lender; and
(c) any other Person (other than a natural Person) approved by the
Administrative Agent and, unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be unreasonably withheld or
delayed).
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
condition or protection of air, groundwater, surface water, soil, or other
environmental media, (b) the environment, including natural resources or any
activity which affects the environment, (c) the regulation of any pollutants,
contaminants, wastes, substances, and Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 et seq.) ("CERCLA"), the Clean Air Act (42
U.S.C. Section 7401 et seq.), the Federal Water Pollution Control Act, as
amended by the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.), the
Emergency Planning and Community Right to Know Act of 1986 (42 U.S.C. Section
11001 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section
1801 et seq.), the National Environmental Policy Act of 1969 (42 U.S.C. Section
4321 et seq.), the Oil Pollution Act (33 U.S.C. Section 2701 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), the
Rivers and Harbors Act (33 U.S.C. Section 401 et seq.), the Safe Drinking Water
Act (42 U.S.C. Section 201 and Section 300f et seq.), the Solid
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Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 and the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. Section
6901 et seq.), the Toxic Substances Control Act (15 U.S.C. Section 2601 et
seq.), and analogous state and local Laws, as any of the foregoing may have been
and may be amended or supplemented from time to time, and any analogous future
enacted or adopted Law, or (d) the Release or threatened Release of Hazardous
Substances.
ERISA means the Employee Retirement Income Security Act of 1974 and any
regulations issued pursuant thereto.
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 of this Agreement relating to obligations imposed under
Section 412 of the Code).
ERISA EVENT means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it 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 Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
EURODOLLAR RATE means for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page
(such page currently being page 3750) of the Telerate screen (or any
successor thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period,
or
(b) if the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall
cease to be available, the rate per annum equal to the rate determined
by the Administrative Agent to be the offered rate on such other page
or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period,
or
(c) if the rates referenced in the preceding subsections (a)
and (b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest (rounded upward to the
next 1/100th of 1%) 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
by Bank of America and with a term equivalent to such Interest Period
7
would be offered by Bank of America's London Branch to major banks in
the offshore Dollar market at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest
Period.
EURODOLLAR RATE LOAN means a Loan that bears interest at a rate based
on the Eurodollar Rate.
EVENT OF DEFAULT means any of the events or circumstances specified in
ARTICLE VIII.
FACILITIES means, collectively, the Revolver Facility and the Term Loan
Facility; FACILITY means either of the Revolver Facility or the Term Loan
Facility.
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded
upwards to the nearest 1/100 of 1%) 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 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 of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by the Administrative Agent.
FINANCED ASSETS has the meaning set forth herein in the definition of
Assumed Debt.
FOREIGN LENDER has the meaning specified in SECTION 10.15.
FOREIGN SUBSIDIARY of any Person means a Subsidiary of such Person that
is organized or incorporated under the Laws of a jurisdiction other than a
jurisdiction of the United States.
GAAP means generally accepted accounting principles 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, that are
applicable to the circumstances as of the date of determination, consistently
applied. If at any time any change in GAAP 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
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
GENERAL PARTNER means Xxxxxxxx XX LLC, a Delaware limited liability
company, a wholly-owned Subsidiary of TWC.
GOVERNMENTAL AUTHORITY means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or
8
functions of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by any of
the foregoing.
GUARANTORS means any Person, including, but not limited to, each
Subsidiary of Borrower which undertakes to be liable for all or any part of the
Obligations by execution of a Guaranty, or otherwise.
GUARANTY means a Guaranty now or hereafter made by any Guarantor in
favor of the Administrative Agent on behalf of the Lenders, substantially in the
form of EXHIBIT E, as may be amended from time to time.
GUARANTY OBLIGATION 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 payment obligation of 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 payment obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other payment obligation of the payment of such
Indebtedness or other payment obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
other payment obligation, or (iv) entered into for the purpose of assuring in
any other manner the obligees in respect of such Indebtedness or other payment
obligation of the payment thereof or to protect such obligees 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 payment obligation of any other
Person, whether or not such Indebtedness or other payment obligation is assumed
by such Person; provided, however, that the term "Guaranty Obligation" shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guaranty Obligation shall be deemed to be
the lesser of (a) an amount equal to the stated or determinable outstanding
amount of the related primary obligation and (b) the maximum amount for which
such guarantying Person may be liable pursuant to the terms of the instrument
embodying such Guaranty Obligation, unless the outstanding amount of such
primary obligation and the maximum amount for which such guarantying Person may
be liable are not stated or determinable, in which case the amount of such
Guaranty Obligation shall be the maximum reasonably anticipated liability in
respect thereof as determined by the guarantying Person in good faith.
HAZARDOUS SUBSTANCE means (a) any substance that is designated,
defined, or classified as a hazardous waste, hazardous material, pollutant,
contaminant, or toxic or hazardous substance, or that is otherwise regulated,
under any Environmental Law, including without limitation any hazardous
substance within the meaning of Section 101(14) of CERCLA, and (b) petroleum,
oil, gasoline, natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet
fuel, and other refined petroleum hydrocarbons.
INDEBTEDNESS means, as to any Person at a particular time, all of the
following:
(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) the face amount of all letters of credit (including
standby and commercial), banker's acceptances, Bank Guaranties, and
similar instruments issued for the account of such Person, and, without
duplication, all drafts drawn and unpaid thereunder;
(c) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, other than trade accounts
9
payable in the ordinary course of business not overdue by more than 60
days, and 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), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse;
(d) Capital Leases; and
(e) all Guaranty Obligations 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 in which such Person is a
general partner, unless such Indebtedness is expressly made non-recourse to such
Person except for customary exceptions acceptable to the Required Lenders. The
amount of any Capital Lease as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.
INDEMNIFIED LIABILITIES has the meaning set forth in SECTION 10.05.
INDEMNITEES has the meaning set forth in SECTION 10.05.
INITIAL FUNDING DATE means the date that the initial Loan is made under
this Agreement, which date shall be the Conditions Effective Date.
INITIAL FUNDING DATE FINANCIAL STATEMENTS means the financial
statements delivered pursuant to clauses (C) and (D) of SECTION 4.01(a)(vii).
INITIAL FUNDING DATE PRO FORMAS means the balance sheets delivered
pursuant to clauses (A) and (B) of SECTION 4.01(a)(vii).
INTEREST COVERAGE RATIO means the ratio of (a) the sum of (i)
Consolidated EBITDA for the period of the four prior fiscal quarters ending on
such date and (ii) Consolidated Lease and Rental Expense during such period to
(b) the sum of (i) Consolidated Interest Charges during such period and (ii)
Consolidated Lease and Rental Expense during such period.
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; 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, the last Business Day of each March, June, September and
December and the Revolver Maturity Date or the Term Loan Maturity Date, as
applicable.
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 in its Borrowing Notice;
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, in the case of a Eurodollar Rate Loan, such Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
10
(ii) any Interest Period pertaining to a Eurodollar Rate Loan
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 scheduled
Revolver Maturity Date or the Term Loan Maturity Date, as applicable.
INVESTMENT means, as to any Person, any acquisition or investment 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, guaranty 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, 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. For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.
IRS means the United States Internal Revenue Service.
LAWS means, collectively, all applicable 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, licenses,
authorizations and permits of, any Governmental Authority.
LENDER has the meaning specified in the introductory paragraph hereto.
LENDING OFFICE means, as to any Lender, the office or offices of such
Lender set forth on its Administrative Details Form, or such other office or
offices as a Lender may from time to time notify the Borrower and the
Administrative Agent.
LEVERAGE RATIO means, for the Borrower and its Subsidiaries on a
consolidated basis, the ratio of (a) Consolidated Total Debt (excluding
Permitted Affiliate Subordinated Debt) as of the determination date to (b)
Consolidated EBITDA for the period of the four fiscal quarters ending on such
date.
LIEN means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever to secure or provide for payment of any obligation of any
Person, (including any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable Laws of any jurisdiction), including the interest
of a purchaser of accounts receivable.
LOAN means an extension of credit by a Lender to the Borrower under
ARTICLE II.
LOAN DOCUMENTS means this Agreement, each Note, the Agent/Arranger Fee
Letter, each Borrowing Notice, each Compliance Certificate and the Guaranties.
LOAN PARTIES means, collectively, the Borrower and each Guarantor.
11
MATERIAL ADVERSE EFFECT means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties or condition
(financial or otherwise) of the Borrower or the Borrower and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of the Borrower or of
the Loan Parties, collectively, to perform their obligations under the Loan
Documents; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability against the Borrower or the Loan Parties, collectively,
of any Loan Documents.
MATERIAL AGREEMENT means (a) the Borrower's Operating Agreements, and
(b) any other contract material to the business of the Borrower and its
Subsidiaries, taken as a whole.
MATURITY DATE means the later of (a) the Revolver Maturity Date, and
(b) the Term Loan Maturity Date.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender, the
maximum non-usurious amount and the maximum non-usurious rate of interest which,
under applicable Law, such Lender is permitted to contract for, charge, take,
reserve, or receive on the Obligations.
MLP means Xxxxxxxx Energy Partners L.P., a Delaware limited
partnership.
MLP OFFERING means the initial sale to the public of common units in
the MLP pursuant to the MLP Registration Statement.
MLP OFFERING CLOSING means the consummation of the sale of common units
to the public pursuant to the MLP Registration Statement.
MLP REGISTRATION STATEMENT means the Registration Statement filed on
October 30, 2000 with the Securities and Exchange Commission in connection with
the sale of common units in the MLP, as amended by Amendment No. 2 filed on
January 25, 2001, as may be further amended.
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
three calendar years, has made or been obligated to make contributions.
NET CASH PROCEEDS means (a) with respect to any Significant Sale, cash
(including any cash received by way of deferred payment pursuant to a promissory
note or otherwise, as and when received) received by the Borrower or any of its
Subsidiaries in connection with and as consideration therefor, on or after the
date of consummation of such transaction, after (i) deduction of Taxes payable
in connection with or as a result of such transaction, (ii) payment of all usual
and customary brokerage commissions and all other reasonable fees and expenses
related to such transaction (including, without limitation, reasonable
attorneys' fees and closing costs incurred in connection with such transaction),
(iii) deduction of appropriate amounts required to be reserved (in accordance
with GAAP) for post-closing adjustments by the Borrower or any of its
Subsidiaries in connection with such transaction, against any liabilities
retained by the Borrower or any of its Subsidiaries after such transaction,
which liabilities are associated with the asset or assets being sold, including,
without limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with such transaction, and (iv) deduction for the amount
of any Indebtedness (other than the Obligations or Indebtedness owed to the
Borrower or any of its Subsidiaries) secured by the respective asset or assets
being sold, which Indebtedness is repaid as a result of such transaction; (b)
with respect to any Debt Issuance, cash received, on or after the date of
incurrence of such Indebtedness, by the Borrower
12
or any of its Subsidiaries from the incurrence of such Indebtedness after (i)
payment of all reasonable attorneys' fees and usual and customary underwriting
commissions, closing costs, and other reasonable expenses associated with such
Debt Issuance, and (ii) deductions for the amount of any other Indebtedness
(other than the Obligations or Indebtedness owed to the Borrower or any of its
Subsidiaries) which is required to be repaid concurrently with or otherwise as a
result of the incurrence of such Indebtedness; provided, however, in the case of
Taxes that are deductible under clause (a)(i) preceding or post-closing
adjustments under clause (a)(iii) preceding, but which Taxes or post-closing
adjustments have not actually been paid or are not yet payable, the Borrower or
any of its Subsidiaries selling such assets may deduct from the cash proceeds an
amount (the "RESERVED AMOUNT") equal to the amount reserved in accordance with
GAAP as a reasonable estimate for such Taxes or post-closing adjustments, so
long as, at the time such Taxes or post-closing adjustments are actually paid,
the amount, if any, by which the Reserved Amount exceeds the Taxes or
post-closing adjustments actually paid shall constitute additional "NET CASH
PROCEEDS" of such Significant Sale.
NOTES means promissory notes of the Borrower, substantially in the form
of EXHIBIT B-1 and B-2 hereto, evidencing the obligation of Borrower to repay
the Loans, and "NOTE" means any one of such promissory notes issued hereunder.
OBLIGATIONS means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document, 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 that accrues after the commencement by or against any Loan
Party or any Referenced Person thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding; provided that, all
references to the "Obligations" in each Guaranty and in SECTIONS 2.11(c) and
10.09 of this Agreement shall, in addition to the foregoing, also include all
present and future indebtedness, liabilities, and obligations (and all renewals
and extensions thereof or any part thereof) now or hereafter owed to any Lender
or any Affiliate of a Lender arising from or pursuant to any Swap Contract
entered into by the Borrower.
OMNIBUS AGREEMENT means the Omnibus Agreement dated as of the date of
the MLP Offering Closing, among the MLP, the Borrower, TWC and certain of its
Affiliates.
ORGANIZATION DOCUMENTS means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws; (b) with respect to any
limited liability company, the articles of formation 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 and any agreement, instrument, filing or notice with respect thereto
filed in connection with its formation with the secretary of state or other
department in the state of its formation, in each case as amended from time to
time.
OTHER TAXES has the meaning specified in SECTION 3.01(b).
OUTSTANDING AMOUNT means on any date, the sum of the Revolver Principal
Debt and the Term Loan Principal Debt.
PARTICIPANT has the meaning specified in SECTION 10.07(d).
PARTNERSHIP AGREEMENT means (a) prior to the MLP Offering Closing, the
Partnership Agreement dated October 26, 2000, and (b) after the MLP Offering
Closing, the Amended and Restated Agreement of
13
Limited Partnership of Xxxxxxxx Energy Partners, L.P., in the form attached as
an Appendix to the MLP Registration Statement (in Amendment No. 2 thereto), with
such changes, if any, as are satisfactory to the Required Lenders.
PBGC means the Pension Benefit Guaranty Corporation.
PENSION PLAN means any "employee pension benefit plan" (as such term is
defined in Section 3(2)(A) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five plan years.
PERMITTED ACQUISITION means an Acquisition, so long as the following
requirements have been satisfied:
(i) Such Acquisition shall not result in the Borrower's
ownership of a Foreign Subsidiary;
(ii) At the time of the closing of the Acquisition, the
Borrower shall deliver to the Administrative Agent (A) a certificate of
a Responsible Officer of Borrower certifying that as of the closing of
the Acquisition, no Default or Event of Default (including a Default
pursuant to SECTION 7.09) shall exist or occur as a result thereof and
after giving effect thereto, and (B) a copy of the purchase agreement
governing such Acquisition;
(iii) At the time of closing of the Acquisition, the Borrower
shall deliver to the Administrative Agent a Compliance Certificate in
the form of EXHIBIT C-2, demonstrating pro forma compliance with
SECTIONS 7.03 and 7.14, as of the closing of the Acquisition after
giving effect thereto and after giving effect to any Indebtedness
(including Obligations) incurred in connection therewith; and
(iv) If such Acquisition results in the Borrower's ownership
of a Subsidiary who is not yet a Guarantor, the Borrower shall have
complied with the requirements of SECTION 6.14 as of the date of such
Acquisition.
PERMITTED AFFILIATE SUBORDINATED DEBT means unsecured Indebtedness of
the Borrower owed to TWC or a Subsidiary of TWC, subordinated to the Obligations
pursuant to subordination terms substantially in the form set forth in EXHIBIT G
or such other subordination terms as shall be satisfactory to (and prior to the
incurrence of such Indebtedness, approved by) the Required Lenders, provided
that such Indebtedness (i) shall not bear a rate of interest which is greater
than a market rate of interest, (ii) shall not require any Principal Payment
earlier than six (6) months after the Maturity Date, and (iii) shall be subject
to such other terms as set forth on the form of Intercompany Note attached
hereto as EXHIBIT G or as shall be reasonably satisfactory to (and prior to the
incurrence of such Indebtedness, approved by) the Required Lenders.
PERMITTED LIENS means Liens permitted under SECTION 7.01 as described
in such Section.
PERSON means any individual, trustee, corporation, general partnership,
limited partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture or
Governmental Authority.
14
PLAN means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or any ERISA Affiliate.
PRESENT AND RELATED BUSINESSES means the storage, transportation and
distribution of hydrocarbons and ammonia, and businesses related thereto.
PRINCIPAL PAYMENT means a payment of principal (or, in the case of a
Synthetic Lease, Attributable Principal), whether pursuant to an amortization
schedule, at maturity, or otherwise.
PRO RATA SHARE means, at any date of determination, for any Lender with
respect to a particular Facility or Subfacility, the percentage (carried out to
the ninth decimal place) that its Committed Sum for such Facility or Subfacility
bears to the aggregate Committed Sums of all Lenders for such Facility or
Subfacility.
QUARTERLY DISTRIBUTIONS means the distributions by the Borrower of
Available Cash (as defined in the Partnership Agreement).
REFERENCE PERIOD has the meaning set forth in SECTION 7.14(c)(i).
REFERENCED PERSON means the Borrower, any Guarantor, the General
Partner, or any of their respective Subsidiaries, and the MLP.
REGISTER has the meaning set forth in SECTION 10.07(c).
RELEASE means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposal,
deposit, dispersal, migrating, or other movement into the air, ground, or
surface water, or soil in violation of any Environmental Law.
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.
REQUIRED LENDERS means (a) on any date of determination on and after
the Closing Date and prior to the date of the initial Borrowing, those Lenders
holding 50.1% or more of the Aggregate Committed Sum, (b) on any date of
determination on and after the date of the initial Borrowing and prior to the
Revolver Maturity Date, those Lenders holding 50.1% or more of the sum of (i)
the Revolver Commitment plus (ii) the Term Loan Principal Debt; and (c) on any
date of determination on or after the Revolver Maturity Date, those Lenders
holding 50.1% or more of the Outstanding Amount.
REQUIRED REVOLVER LENDERS means (a) on any date of determination on and
after the Closing Date and prior to the Revolver Maturity Date, those Lenders
holding more than 50% of the Revolver Commitment, and (b) on any date of
determination on or after the Revolver Maturity Date, those Lenders holding more
than 50% of the Revolver Principal Debt.
REQUIRED TERM LENDERS means (a) on any date of determination on and
after the Closing Date and prior to the date of the initial Borrowing, those
Lenders holding more than 50% of the Term Loan Commitment, and (b) on any date
of determination on and after the date of the initial Borrowing, Term Loan
Lenders holding more than 50% of the Term Loan Principal Debt.
RESPONSIBLE OFFICER means the president, chief executive officer, chief
financial officer, treasurer or assistant treasurer of a Loan Party or other
Person, as applicable. Any document delivered hereunder
15
that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.
RESTRICTED PAYMENT means any dividend or other distribution (whether in
cash, securities or other property) with respect to any equity interest in the
Borrower or any Subsidiary, 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 equity interest or of any option, warrant or other right to acquire any
such equity interest.
REVOLVER COMMITMENT means an amount (subject to reduction or
cancellation as herein provided) equal to the sum of (i) the Acquisition
Subfacility Commitment, plus (ii) the Working Capital/Distribution Subfacility
Commitment.
REVOLVER FACILITY means the credit facility as described in and subject
to the limitations set forth in SECTION 2.01.
REVOLVER LENDER means, on any date of determination, any Lender that
has a Committed Sum under the Revolver Facility or that is owed any Revolver
Principal Debt.
REVOLVER MATURITY DATE means (a) February 5, 2004, or (b) such earlier
effective date of any other termination, cancellation, or acceleration of all
commitments to lend under the Revolver Facility.
REVOLVER NOTE means a promissory note in substantially the form of
EXHIBIT B-1, and all renewals and extensions of all or any part thereof.
REVOLVER PRINCIPAL DEBT means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under the Revolver
Facility.
RIGHTS means rights, remedies, powers, privileges, and benefits.
SIGNIFICANT SALE means any Disposition (other than a Disposition
permitted by SECTION 7.05(a)) by a Company to any other Person (other than to
the Borrower or to a Wholly-owned Subsidiary of the Borrower) with respect to
which the Net Cash Proceeds realized by any Company for such Disposition exceed
$25,000 and when aggregated with the Net Cash Proceeds from all such other
Dispositions occurring since the Closing Date, equals or exceeds an amount which
is equal to 4% of the Borrower's assets (measured as of the close of the most
recent fiscal quarter end).
SUBFACILITIES means, collectively, the Acquisition Subfacility and the
Working Capital/Distribution Subfacility.
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.
16
SWAP CONTRACT means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
SWAP TERMINATION VALUE means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
xxxx-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 any Lender).
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). The amount of any Synthetic
Lease Obligation as of any date shall be deemed to be the amount of Attributable
Principal in respect thereof as of such date.
TAXES has the meaning set forth in SECTION 3.01.
TERM LOAN COMMITMENT means an amount (subject to reduction or
cancellation as herein provided) equal to $90,000,000.
TERM LOAN FACILITY means the credit facility as described in and
subject to the limitations set forth in SECTION 2.02.
TERM LOAN LENDER means, on any date of determination, any Lender that
has a Committed Sum under the Term Loan Facility or that is owed any Term Loan
Principal Debt.
TERM NOTE means a promissory note substantially in the form of EXHIBIT
B-2, and all renewals and extensions of all or any part thereof.
TERM LOAN MATURITY DATE means the earlier of (a) February 5, 2004, and
(b) the effective date of any other termination, cancellation, or acceleration
of the commitment to lend under the Term Loan Facility.
TERM LOAN PRINCIPAL DEBT means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under the Term Loan
Facility.
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TERMINALS HOLDING LLC means Xxxxxxxx Terminals Holding LLC, a Delaware
limited liability company to be merged into Terminals L.P. on or prior to the
MLP Offering Closing.
TERMINALS L.P. means Xxxxxxxx Terminals Holding L.P., a Delaware
limited partnership, a wholly-owned Subsidiary of TWC, which will become a
Subsidiary of Borrower on or prior to the MLP Offering Closing.
TWC means The Xxxxxxxx Companies, Inc.
TYPE means, with respect to a Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan.
UNFUNDED PENSION LIABILITY means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
VOTING STOCK means the capital stock (or equivalent thereof) of any
class or kind, of a Person, the holders of which are entitled to vote for the
election of directors, managers, or other voting members of the governing body
of such Person.
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by Parent or one
or more of its Wholly-owned Subsidiaries.
WORKING CAPITAL/DISTRIBUTION SUBFACILITY has the meaning specified in
SECTION 2.01(c).
WORKING CAPITAL/DISTRIBUTION SUBFACILITY COMMITMENT means an amount
(subject to reduction or cancellation as herein provided) equal to
$20,000,000.00.
WORKING CAPITAL/DISTRIBUTION SUBFACILITY PRINCIPAL DEBT means, on any
date of determination, the aggregate unpaid principal amount of all Borrowings
under the Working Capital/Distribution Subfacility.
1.02 OTHER INTERPRETIVE PROVISIONS.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "HEREIN" and "HEREUNDER" and words of similar
import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.
(ii) Unless otherwise specified herein, Article, Section,
Exhibit and Schedule references are to this Agreement.
(iii) The term "INCLUDING" is by way of example and not
limitation.
(iv) The term "DOCUMENTS" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced.
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(c) 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."
(d) Section headings herein and 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. All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data 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.
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 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document; and
(b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.
ARTICLE II.
THE COMMITMENTS AND BORROWINGS
2.01 REVOLVER FACILITY. (a) Each Revolver Lender severally, but not
jointly, agrees to lend to Borrower such Revolver Lender's Pro Rata Share of one
or more Borrowings under (i) the Acquisition Subfacility (further described in
SECTION 2.01(b) below) not to exceed such Lender's Committed Sum under the
Acquisition Subfacility, and (ii) the Working Capital/Distribution Subfacility
(further described in SECTION 2.01(c) below) not to exceed such Lender's
Committed Sum under the Working Capital/Distribution Subfacility. Such
Borrowings may be repaid and reborrowed from time to time in accordance with the
terms and provisions of the Loan Documents; provided that, each such Borrowing
must occur on a Business Day and no later than the Business Day immediately
preceding the Revolver Maturity Date.
(b) Loans under the Acquisition Subfacility shall be available to
Borrower for the purposes set forth in SECTION 6.12(b). After giving effect to
any Borrowing under the Acquisition Subfacility, the Acquisition Subfacility
Principal Debt shall not exceed the Acquisition Subfacility Commitment then in
effect.
(c) Loans under the Working Capital/Distribution Subfacility shall be
available to Borrower for the purposes set forth in SECTION 6.12(c); provided,
however, Borrowings under the Working Capital/Distribution Subfacility will be
available to fund Quarterly Distributions only if, at the time of such Borrowing
and after giving effect thereto, there is at least $9,000,000.00 of the Working
Capital/Distribution Subfacility Commitment undrawn and available for working
capital purposes. After
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giving effect to any Borrowing under the Working Capital/Distribution
Subfacility, the Working Capital/Distribution Subfacility Principal Debt shall
not exceed the Working Capital/Distribution Subfacility Commitment then in
effect.
2.02 TERM LOAN FACILITY. Subject to and in reliance upon the terms,
conditions, representations, and warranties in the Loan Documents, each Term
Loan Lender severally, but not jointly, agrees to lend to Borrower in a single
disbursement on the Conditions Effective Date such Lender's Pro Rata Share of
the Term Loan Commitment. If all or a portion of the Term Loan Principal Debt is
paid or prepaid, then the amount so paid or prepaid may not be reborrowed. Any
portion of the Term Loan Commitment that remains undisbursed after the initial
disbursement under the Term Loan Facility shall be reduced to zero and cancelled
on the date of such initial disbursement.
2.03 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the
other, and each continuation of Loans as the same Type 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 11:00 a.m.,
New York time, (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurodollar
Rate Loans, (ii) one Business Day prior to the conversion of Eurodollar Rate
Loans to Base Rate Loans, and (iii) on the requested date of any Borrowing of
Base Rate Loans. Each such telephonic notice must be confirmed promptly by
delivery to the Administrative Agent of a written Borrowing Notice,
appropriately completed and signed by an authorized officer of the Borrower.
Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall
be in a principal amount of $500,000 or a whole multiple of $500,000 in excess
thereof. Each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Each Borrowing Notice (whether telephonic or written) shall specify (i) whether
the Borrowing, conversion or continuation (as applicable) is under the Term Loan
Facility or the Revolver Facility, and if it is under the Revolver Facility,
whether it is under the Acquisition Subfacility or the Working
Capital/Distribution Subfacility, (ii) whether the Borrower is requesting a
Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Loans as the same Type, (iii) the requested date of the Borrowing, conversion
or continuation, as the case may be (which shall be a Business Day), (iv) the
principal amount of Loans to be borrowed, converted or continued, (v) the Type
of Loans to be borrowed or to which existing Loans are to be converted, and (vi)
if applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Loan in a Borrowing Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Loans shall be made or continued 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 Borrowing
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 Borrowing Notice, the Administrative Agent
shall promptly notify each Lender of its Pro Rata Share of the applicable 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 Borrowing, each Lender shall make the amount of its
Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 1:00 p.m.,
New York time, on the
Business Day specified in the applicable Borrowing Notice. Upon satisfaction of
the applicable conditions set forth in SECTION 4.02 (and, if such Borrowing is
the initial Borrowing, SECTION 4.01), the
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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 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 the Interest Period for such
Eurodollar Rate Loan. During the existence of a Default or Event of Default, no
Loans may be requested as, converted to or continued as Eurodollar Rate Loans
without the consent of the Required Lenders, and the Required Lenders may demand
that any or all of the then outstanding Eurodollar Rate Loans be converted
immediately to Base Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Eurodollar Rate Loan upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.
(e) After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than ten (10) Interest Periods in effect at any given
time with respect to Loans.
2.04 PREPAYMENTS.
(a) Optional Prepayments. The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay in
whole or in part the Acquisition Subfacility Principal Debt, the Working
Capital/Distribution Subfacility Principal Debt and/or the Term Loan Principal
Debt without premium or penalty; provided that (i) such notice must be received
by the Administrative Agent not later than 11:00 a.m.,
New York time, (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans, and (B)
on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar
Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$500,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof. Each such notice shall specify the date and amount of such prepayment,
the Facility (or, as the case may be, Subfacility) being prepaid and the Type(s)
of Loans to be prepaid. The Administrative Agent will promptly notify each
Lender of its receipt of each such notice, and of such Lender's Pro Rata Share
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 thereon, together with
any additional amounts required pursuant to SECTION 3.05. Each such prepayment
shall be applied to the Loans of the Lenders in accordance with their respective
Pro Rata Shares.
Unless a Default or Event of Default has occurred and is continuing or
would arise as a result thereof any payment or prepayment of the Revolver
Principal Debt may be reborrowed by Borrower, subject to the terms and
conditions hereof.
(b) Mandatory Prepayments from Net Cash Proceeds. Until such time as
the Outstanding Amount has been repaid in full and the Revolver Commitment
terminated in full, the Outstanding Amount (and, as applicable, the Revolver
Commitment) shall be permanently prepaid (or reduced, as the case may be), in
the amounts and upon the occurrence of any of the following events:
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(i) Debt Issuance. In the event of any Debt Issuance by a
Company, if Outstanding Indebtedness exceeds $30,000,000 after giving
effect to such Debt Issuance, then concurrently with such Debt
Issuance, the Loans shall be prepaid using Net Cash Proceeds of such
Debt Issuance (and the Revolver Commitment reduced to the extent
required by this SECTION 2.04(b)) by the Required Amount as defined in
this SECTION 2.04(b)(i). As used in this Section: (A) "Outstanding
Indebtedness" as of any date means the aggregate principal amount of
outstanding Indebtedness plus the Attributable Principal of all
Synthetic Leases of the Borrower and its Subsidiaries (including the
Indebtedness and Synthetic Leases being issued, incurred or assumed on
such date but excluding Permitted Affiliate Subordinated Debt and
excluding Indebtedness under the Loan Documents), and (B) "Required
Amount" means the lesser of (i) 100% of the Net Cash Proceeds of such
Debt Issuance and (ii) amount by which the Outstanding Indebtedness
exceeds $30,000,000.
(ii) Significant Sales. If any portion of the Net Cash
Proceeds realized by a Company from any Significant Sale (including any
deferred purchase price therefor and any Net Cash Proceeds of any asset
disposition which constitutes a Significant Sale) has not been
reinvested in assets used in the Present and Related Businesses of a
Company within ninety (90) days from the receipt by such Company of
such Net Cash Proceeds (including receipt of any deferred payments for
any such Significant Sale or portion thereof, if and when received),
then on the day following the ninetieth day after receipt of such Net
Cash Proceeds, the Outstanding Amount shall be prepaid (and the
Revolver Commitment reduced to the extent required in this SECTION
2.04(b)), in the order and manner specified in the following paragraph,
by an amount equal to 100% of all such Net Cash Proceeds not so
reinvested.
The commitment reductions or prepayments provided for under SECTIONS
2.04(b)(i) and (ii) are in addition to the payments provided for in SECTION
6.13. The prepayments and commitment reductions under SECTIONS 2.04(b)(i) and
(ii) shall be applied as follows, unless a Default or Event of Default has
occurred and is continuing or would arise as a result thereof (whereupon the
provisions of SECTION 2.13(b) shall apply): (A) first, as a prepayment of the
Term Loan Principal Debt until paid in full, and (B) second, as a mandatory
permanent reduction of the Revolver Commitment and a mandatory prepayment of the
Revolver Principal Debt, provided, however, the allocation of commitment
reductions or prepayments between the Subfacilities shall be determined (i) if
no Default or Event of Default has occurred and is continuing, in the order and
manner that the Borrower specifies, or (ii) if the Borrower fails to so specify
or if a Default or Event of Default has occurred and is continuing, in the order
and manner that the Revolver Required Lenders deem appropriate. All mandatory
prepayments of the Term Loan Principal Debt shall be allocated Pro Rata to each
Term Loan Lender. All mandatory prepayments of the Revolver Facility shall be
allocated Pro Rata to each Revolver Lender. All mandatory prepayments of the
Revolver Facility made pursuant to this SECTION 2.04(b) shall permanently reduce
the Revolver Commitment.
(c) Clean-Down Period. The Borrower shall make such repayments of the
Working Capital/Distribution Subfacility Principal Debt as are required by
SECTION 6.13.
(d) Revolver Facility Mandatory Payments/Reductions. On any date of
determination (i) if the Acquisition Subfacility Principal Debt exceeds the
Acquisition Subfacility Commitment then in effect (including as a result of any
Revolver Commitment reduction pursuant to SECTION 2.04(b)), then the Borrower
shall make a mandatory prepayment of the Acquisition Subfacility Principal Debt
in at least the amount of such excess, and (ii) if the Working
Capital/Distribution Subfacility Principal Debt exceeds the Working
Capital/Distribution Subfacility Commitment then in effect (including as a
result of any Revolver Commitment reduction pursuant to SECTION 2.04(b)), then
the Borrower shall make a mandatory
22
prepayment of the Working Capital/Distribution Subfacility Principal Debt in at
least the amount of such excess. All mandatory prepayments under the Revolver
Facility or Revolver Commitment reductions hereunder shall be allocated among
the Revolver Lenders in accordance with their respective Pro Rata Share under
the Revolver Facility.
(e) Mandatory Prepayments: Interest/Consequential Loss. All prepayments
under this SECTION 2.04 shall be made together with accrued interest to the date
of such prepayment on the principal amount prepaid and any amounts due under
SECTION 3.05.
2.05 REDUCTION OR TERMINATION OF COMMITMENTS. The Borrower may, upon
notice to the Administrative Agent, terminate the Aggregate Commitments, or
(prior to the Initial Funding Date) permanently reduce the Term Loan Commitment,
or permanently reduce the Revolver Commitment to an amount not less than the
then existing Revolver Principal Debt; provided that (i) any such notice shall
be received by the Administrative Agent not later than 11:00 a.m., five Business
Days prior to the date of termination or reduction, and (ii) any such partial
reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of
$1,000,000 in excess thereof. The Administrative Agent shall promptly notify the
Lenders of any such notice of reduction or termination. Once reduced in
accordance with this Section, the Commitments may not be increased. Any
reduction of the Revolver Commitment shall be applied to the Commitment of each
Revolver Lender according to its Pro Rata Share, and any reduction of the Term
Loan Commitment shall be applied to the Commitment of each Term Loan Lender
according to its Pro Rata Share. All commitment fees on the portion of the
Commitment so terminated which have accrued to the effective date of any
termination of Commitments shall be paid on the effective date of such
termination.
2.06 REPAYMENT OF LOANS. The Borrower shall repay to the Revolver
Lenders on the Revolver Maturity Date the Revolver Principal Debt and the
Borrower shall repay to the Term Loan Lenders on the Term Loan Maturity Date the
Term Loan Principal Debt.
2.07 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 and (ii) each Base Rate
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) While any Event of Default exists or after acceleration, (i) the
Borrower shall pay interest on the principal amount of all outstanding
Obligations at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Law, and (ii) 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.
(d) If the designated rate applicable to any Borrowing exceeds the
Maximum Rate, the rate of interest on such Borrowing shall be limited to the
Maximum Rate, but any subsequent reductions in such designated rate shall not
reduce the rate of interest thereon below the Maximum Rate until the total
amount
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of interest accrued thereon equals the amount of interest which would have
accrued thereon if such designated rate had at all times been in effect. In the
event that at maturity (stated or by acceleration), or at final payment of the
Outstanding Amount, the total amount of interest paid or accrued is less than
the amount of interest which would have accrued if such designated rates had at
all times been in effect, then, at such time and to the extent permitted by Law,
the Borrower shall pay an amount equal to the difference between (a) the lesser
of the amount of interest which would have accrued if such designated rates had
at all times been in effect and the amount of interest which would have accrued
if the Maximum Rate had at all times been in effect, and (b) the amount of
interest actually paid or accrued on the Outstanding Amount.
2.08 FEES.
(a) Commitment Fee. For the period commencing on the Closing Date and
ending on the earlier of (i) the date of the initial Borrowing under the Term
Loan Facility or (ii) termination of the Term Loan Commitment, the Borrower
shall pay to the Administrative Agent for the account of each Term Loan Lender
in accordance with its Pro Rata Share, a commitment fee equal to the Applicable
Rate times the Term Loan Commitment. For the period commencing on the Closing
Date and ending on the Revolver Maturity Date, the Borrower shall pay to the
Administrative Agent for the account of each Revolver Lender in accordance with
its Pro Rata Share, a commitment fee equal to the Applicable Rate times the
actual daily amount by which the aggregate Revolver Commitment exceeds the
Revolver Principal Debt. The commitment fee shall accrue at all times from the
Closing 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 Maturity Date. 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. The commitment fee
shall accrue at all times, including at any time during which one or more of the
conditions in ARTICLE IV is not met.
(b) Arrangement and Agency Fees. The Borrower shall pay an arrangement
fee to the Arrangers for the Arrangers' own account, and shall pay an agency fee
to the Administrative Agent for the Administrative Agent's own account, in the
amounts and at the times specified in the letter agreement, dated January 5,
2001 (the "AGENT/ARRANGER FEE LETTER"), between the Borrower, the Arrangers and
the Administrative Agent. Such fees shall be fully earned when paid and shall be
nonrefundable for any reason whatsoever.
(c) Lenders' Upfront Fee. On the Initial Funding Date, the Borrower
shall pay to the Administrative Agent, for the account of the Lenders in
accordance with their respective Pro Rata Shares, an upfront fee in the agreed
amount in accordance with the Agent/Arranger Fee Letter. Such upfront fees are
for the credit facilities by the Lenders under this Agreement and are fully
earned on the date paid. The upfront fee paid to each Lender is solely for its
own account and is nonrefundable for any reason whatsoever.
2.09 COMPUTATION OF INTEREST AND FEES. Computation of interest on Base
Rate Loans shall be calculated on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed. Computation of all other
types of interest and all fees shall be calculated on the basis of a year of 360
days and the actual number of days elapsed, which results in a higher yield to
the payee thereof than a method based on a year of 365 or 366 days. 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 bear interest for one day.
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2.10 EVIDENCE OF DEBT. The Loans 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 Loans made by the Lenders to the
Borrower and the interest and payments thereon. Any failure so to 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 Loans. 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 such Lender shall control. Upon the
request of any Lender made through the Administrative Agent, such Lender's Loans
may be evidenced by one or more of the following Notes (as the case may be): (i)
a Revolver Note (with respect to the Revolver Principal Debt), and (ii) a Term
Note (with respect to the Term Loan Principal Debt). Each Lender may attach
schedules to its Note(s) and endorse thereon the date, Type (if applicable),
amount and maturity of the applicable Loans and payments with respect thereto.
2.11 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made 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 12:00 noon,
New York time, on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (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 12:00 noon,
New York time, shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) Subject to the definition of "Interest Period," 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.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully the Obligations, such funds shall be
applied (i) first, toward costs and expenses (including Attorney Costs and
amounts payable under ARTICLE III) incurred by the Administrative Agent and each
Lender, (ii) second, toward repayment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, (iii) third, toward repayment of
principal then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties, and (iv)
fourth, toward the repayment of all other Obligations.
(d) Unless the Borrower or any Lender has notified the Administrative
Agent prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
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(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds, at
the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "COMPENSATION PERIOD") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Loan, included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent may make a demand therefor upon the Borrower, and the Borrower
shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any
amount owing under this subsection (d) shall be conclusive, absent manifest
error.
(e) 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 the conditions to the applicable Borrowing 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.
(f) The obligations of the Lenders hereunder to make Loans are several
and not joint. The failure of any Lender to make any Loan 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 Loan or purchase its participation.
(g) 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.
2.12 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it,
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Loans made by them, as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Loan or such
participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender, such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with
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an amount equal to such paying Lender's ratable share (according to the
proportion of (i) the amount of such paying Lender's required repayment to (ii)
the total amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to SECTION 10.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
2.13 ORDER OF APPLICATION.
(a) No Default. If no Default or Event of Default exists and if no
order of application is otherwise specified in the Loan Documents, payments and
prepayments of the Obligations shall be applied first to fees, second to accrued
interest then due and payable on the Outstanding Amount, and then to the
remaining Obligations in the order and manner as Borrower may direct.
(b) Default. If a Default or Event of Default exists (or if Borrower
fails to give directions as permitted under SECTION 2.13(a)), any payment or
prepayment (including proceeds from the exercise of any Rights) shall be applied
to the Obligations in the following order: (i) to the payment of enforcement
expenses incurred by the Administrative Agent, including Attorney Costs; (ii) to
the ratable payment of all other fees, expenses, and indemnities for which the
Administrative Agent or Lenders have not been paid or reimbursed in accordance
with the Loan Documents (as used in this SECTION 2.13(b)(ii), a "RATABLE
PAYMENT" for any Lender or the Administrative Agent shall be, on any date of
determination, that proportion which the portion of the total fees, expenses,
and indemnities owed to such Lender or the Administrative Agent bears to the
total aggregate fees and indemnities owed to all Lenders and the Administrative
Agent on such date of determination); (iii) to the ratable payment of accrued
and unpaid interest on the Outstanding Amount (as used in this SECTION
2.13(b)(iii), "RATABLE PAYMENT" means, for any Lender, on any date of
determination, that proportion which the accrued and unpaid interest on the
Outstanding Amount owed to such Lender bears to the total accrued and unpaid
interest on the Outstanding Amount owed to all Lenders); (iv) to the ratable
payment of the Outstanding Amount (as used in this SECTION 2.13(b)(iv), "RATABLE
PAYMENT" means for any Lender, on any date of determination, that proportion
which the Outstanding Amount owed to such Lender bears to the Outstanding Amount
owed to all Lenders); and (v) to the payment of the remaining Obligations, if
any, in the order and manner Required Lenders deem appropriate.
Subject to the provisions of ARTICLE IX and provided that
Administrative Agent shall not in any event be bound to inquire into or to
determine the validity, scope, or priority of any interest or entitlement of any
Lender and may suspend all payments or seek appropriate relief (including,
without limitation, instructions from Required Lenders or an action in the
nature of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby, Administrative Agent shall
promptly distribute such amounts to each Lender in accordance with the Agreement
and the related Loan Documents.
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ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its net
income, and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or
maintains its Lending Office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "TAXES"). If the Borrower shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to the Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), each of the Administrative Agent and such Lender receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within 30 days after the date of such
payment, the Borrower shall furnish to the Administrative Agent (which shall
forward the same to such Lender) the original or a certified copy of a receipt
evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "OTHER TAXES").
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent (for the account of such Lender) or to such Lender, at the
time interest is paid, such additional amount that such Lender specifies as
necessary to preserve the after-tax yield (after factoring in all taxes,
including taxes imposed on or measured by net income) such Lender would have
received if such Taxes or Other Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under SECTION 3.01(c) and (iii) any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto. Payment under
this subsection (d) shall be made within 30 days after the date the Lender or
the Administrative Agent makes a demand therefor.
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 applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable offshore
Dollar market, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the
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Borrower through the Administrative Agent, any obligation of such Lender to make
or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar
Rate Loans shall be suspended 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, 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,
either on the last day of the Interest Period thereof, 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. Upon any such prepayment or conversion, the Borrower
shall also pay interest on the amount so prepaid or converted. Each Lender
agrees to designate a different Lending Office if such designation will avoid
the need for such notice and will not, in the reasonable judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent
determines in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the applicable offshore Dollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, or adequate and
reasonable means do not exist for determining the Eurodollar Rate for such
Eurodollar Rate Loan, or (b) if the Required Lenders determine and notify the
Administrative Agent that the Eurodollar Rate for such Eurodollar Rate Loan does
not adequately and fairly reflect the cost to the Lenders of funding such
Eurodollar Rate Loan, then the Administrative Agent will promptly notify the
Borrower and all Lenders. Thereafter, the obligation of the Lenders to make or
maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent
revokes such notice. Upon receipt of such notice, the Borrower may revoke any
pending request for a Borrowing, conversion or continuation of Eurodollar Rate
Loans or, failing that, will be deemed to have converted such request into a
request for a Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction of or
any change in or in the interpretation of any Law, or such Lender's compliance
therewith, there shall be any increase in the cost to such Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Loans, or a reduction in
the amount received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which SECTION 3.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements contemplated by SECTION 3.04(c) utilized, as to Eurodollar Rate
Loans, in the determination of the Eurodollar Rate), then from time to time upon
demand of such Lender (with a copy of such demand to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such increased cost or reduction. No Lender shall have the right
to recover such additional amounts for any period more than 90 days prior to the
date such Lender notified the Borrower thereof.
(b) If any Lender determines that the introduction of any Law regarding
capital adequacy or any change therein or in the interpretation thereof, or
compliance by such Lender (or its Lending Office) therewith, has the effect of
reducing the rate of return on the capital of such Lender or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower
29
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction. No Lender shall have the right to recover such additional
amounts for any period more than 90 days prior to the date such Lender notified
the Borrower thereof.
(c) The Borrower shall pay to each Lender, as long as such Lender shall
be required under regulations of the Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency funds or deposits
(currently known as "Eurocurrency liabilities"), additional costs 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 15 days' prior notice (with a copy to the
Administrative Agent) of such additional interest from such Lender. If a Lender
fails to give notice 15 days prior to the relevant Interest Payment Date, such
additional interest shall be due and payable 15 days from receipt of such
notice.
3.05 FUNDING 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); or
(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.
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 applicable offshore Dollar interbank market for a
comparable amount and for a comparable period, whether or not such Eurodollar
Rate Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION. A certificate
of the Administrative Agent or any Lender claiming compensation under this
ARTICLE III and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, the Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.
3.07 SURVIVAL. All of the Borrower's obligations under this ARTICLE III
shall survive termination of the Commitments and payment in full of all the
other Obligations.
ARTICLE IV.
CONDITIONS PRECEDENT TO BORROWINGS
4.01 CONDITIONS OF INITIAL BORROWING. The obligation of each Lender to
make its initial Loan hereunder is subject to satisfaction of the following
conditions precedent:
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(a) The Administrative Agent's receipt of the following, each of which
shall be originals or facsimiles (followed promptly by originals) and unless
otherwise specified, each properly executed by an authorized officer of the
signing Loan Party, each dated the Conditions Effective Date (or, in the case of
certificates of governmental officials, a recent date before the Conditions
Effective Date) and each in form and substance reasonably satisfactory to the
Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the Guaranty;
(ii) Term Notes and/or Revolver Notes (as applicable) executed
by the Borrower in favor of each Lender requesting such Notes, each in
a principal amount equal to such Lender's Committed Sum;
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of officers of each
Loan Party as the Administrative Agent may require to establish the
identities of and verify the authority and capacity of each officer
thereof authorized to act in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;
(iv) such evidence as the Administrative Agent may reasonably
require to verify that each Loan Party and the General Partner is duly
organized or formed, validly existing, in good standing and qualified
to engage in business in the jurisdiction of its organization and in
each other jurisdiction in which it is required to be qualified to
engage in business, except where such failure would not have a Material
Adverse Effect;
(v) a certificate signed by an officer of the Borrower
certifying (A) that the MLP Offering Closing has occurred and that the
gross proceeds of the sale of limited partnership units (other than
proceeds paid by TWC and its Affiliates) are not less than $55,000,000,
(B) that the representations and warranties contained in ARTICLE V are
true and correct in all respects on and as of such date, (C) no Default
or Event of Default has occurred and is continuing as of such date, (D)
since December 31, 1999 there has occurred no material adverse change
in the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the
Borrower, any Guarantor or any of the businesses, assets or liabilities
acquired or assumed or being acquired or assumed by the Borrower or any
of its Subsidiaries, (E) the Borrower and its Subsidiaries own the
assets and businesses reflected on the Initial Funding Date Pro Formas,
including without limitation the Financed Assets, free and clear of all
Liens other than Permitted Liens, and (F) no action, suit,
investigation or proceeding is pending or threatened in any court or
before any arbitrator or governmental authority by or against the
Borrower, any Guarantor or any of the Borrower's partners or any of
their respective properties, that (x) could reasonably be expected to
materially and adversely affect the Borrower or any Guarantor, or (y)
purports to affect or pertain to any transaction contemplated hereby or
the ability of the Borrower or any Guarantor to perform its obligations
under the Loan Documents;
(vi) opinions from (i) Xxxxxx & Xxxxxx, L.L.P., counsel to
each Loan Party and the General Partner, substantially in the form of
EXHIBIT F-1 hereto, and (ii) Xxxxxxx X. xxx Xxxxx, counsel to each Loan
Party and the General Partner, substantially in the form of EXHIBIT F-2
hereto;
(vii) receipt of the following: (A) unaudited pro forma
opening balance sheet for each of the MLP and the General Partner; (B)
an estimated pro forma opening balance sheet of the
31
Borrower; (C) combined audited balance sheets of Xxxxxxxx Energy
Partners L.P. (a subsidiary of The Xxxxxxxx Companies, Inc.) as of
December 31, 1998 and 1999 and audited income statements and statements
of cash flows for each of the three years in the period ended December
31, 1999; and (D) combined audited balance sheets of Marine Terminals
Predecessor (as that term is used in the MLP Registration Statement) as
of December 31, 1998 and July 31, 1999 and audited income statements
and statements of cash flows for Marine Terminals Predecessor for each
of the two years in the period ended December 31, 1998 and the seven
months ended July 31, 1999;
(viii) copies of the following, in each case in form and
substance reasonably satisfactory to the Required Lenders: (A) the
Products Terminalling Agreement between Terminals Holding, LLC and
Xxxxxxxx Energy Marketing & Trading Company; (B) the Omnibus Agreement;
and (C) the Contribution Agreement.
(ix) a letter from CT Corporation System, Inc., to accept
service of process in the State of
New York on behalf of the Borrower
and each Guarantor; and
(x) such other assurances, certificates, documents, consents
or opinions as the Administrative Agent or the Required Lenders
reasonably may require.
(b) Any fees required to be paid on or before the Conditions Effective
Date shall have been paid.
(c) The Borrower shall have paid Attorney Costs of the Administrative
Agent to the extent invoiced prior to or on the Conditions Effective Date.
4.01A DEADLINE FOR INITIAL FUNDING DATE. If for any reason the Initial
Funding Date has not occurred on or before the 60th day after the Closing Date,
then, unless otherwise agreed by all Lenders, the commitments of the Lenders to
make Loans shall terminate on and as of such date.
4.02 CONDITIONS TO ALL LOANS. The obligation of each Lender to honor
any Borrowing Notice (other than a Borrowing Notice requesting only a conversion
of Loans to the other Type, or a continuation of Loans as the same Type) is
subject to the following conditions precedent:
(a) The representations and warranties of the Borrower contained in
ARTICLE V, or which are contained in any document furnished at any time under or
in connection herewith, shall be true and correct on and as of the date of such
Borrowing, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date.
(b) No Default or Event of Default shall exist or would result from
such proposed Borrowing.
(c) The Administrative Agent shall have received a Borrowing Notice in
accordance with the requirements hereof.
(d) The Administrative Agent shall have received, in form and substance
reasonably satisfactory to it, such other assurances, certificates, documents or
consents related to the foregoing as the Administrative Agent or the Required
Lenders reasonably may require.
Each Borrowing Notice (other than a Borrowing Notice requesting only a
conversion of Loans to the other Type or a continuation of Loans as the same
Type) submitted by the Borrower shall be deemed to
32
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
Borrowing.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 EXISTENCE; QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. As of
the Initial Funding Date, the General Partner shall be the sole general partner
of the Borrower, and all of the limited partnership interests in the Borrower
shall be owned by the MLP. The General Partner and each Loan Party (a) is a
corporation, partnership or limited liability company duly organized or formed,
validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
governmental licenses, authorizations, consents and approvals to own its assets,
carry on its business and to execute, deliver, and perform its obligations under
the Loan Documents to which it is a party, (c) is duly qualified and is licensed
and 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 or license, and (d) is in compliance with all Laws, except in each
case referred to in clause (c) or this clause (d), 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) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, any Contractual
Obligation to which such Person is a party or any order, injunction, writ or
decree of any Governmental Authority to which such Person or its property is
subject; or (c) violate any Law.
5.03 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Loan Party of
this Agreement or any other Loan Document.
5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Initial Funding Date Financial Statements were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein. The Initial Funding Date Pro Formas
and the Initial Funding Date Financial Statements (i) fairly present the
financial condition of the entities therein named and their respective
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and
(ii) show all
33
material indebtedness and other liabilities, direct or contingent, of the
entities therein named and their Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness in accordance with
GAAP consistently applied throughout the period covered thereby.
(b) Since the dates of the Initial Funding Date Financial Statements,
there has been no event or circumstance that has or could reasonably be expected
to have a Material Adverse Effect.
5.06 LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower after due and diligent
investigation, overtly threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Borrower or
any of its Subsidiaries or against any of their properties or revenues which (a)
purport to affect or pertain to this Agreement or any other Loan Document, or
any of the transactions contemplated hereby, or (b) if determined adversely,
could reasonably be expected to have a Material Adverse Effect.
5.07 NO DEFAULT. There is no failure of any Material Agreement to be in
effect, and there is no default by the Borrower or any of its Subsidiaries under
any Material Agreement, if such failure to remain in effect, or such default,
could reasonably be expected to have a Material Adverse Effect.
5.08 OWNERSHIP OF PROPERTY; LIENS. The Borrower and each Subsidiary has
good and marketable title to, or valid leasehold interests in, all its real and
personal property necessary or used in the ordinary conduct of its business,
except for such defects in title as would not, individually or in the aggregate,
have a Material Adverse Effect. As of the Conditions Effective Date, the
property of the Borrower and its Subsidiaries is subject to no Liens, other than
Permitted Liens.
5.09 ENVIRONMENTAL COMPLIANCE. The Borrower has reasonably concluded
that (a) there are no claims alleging potential liability under or
responsibility for violation of any Environmental Law except any such claims
that would not, individually or in the aggregate, have a Material Adverse
Effect, (b) there is no environmental condition or circumstance, such as the
presence or Release of any Hazardous Substance, on any property owned, operated
or used by the Borrower or any of its Subsidiaries that could reasonably be
expected to have a Material Adverse Effect, and (c) there is no violation of or
by the Borrower or any of its Subsidiaries of any existing Environmental Law,
except for such violations as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.10 INSURANCE. As of the Initial Funding Date, the properties of the
Borrower and its Subsidiaries are insured with financially sound and reputable
insurance companies not Affiliates of the Borrower, 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 Borrower or its Subsidiaries operate.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.
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5.12 ERISA COMPLIANCE.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws except
to the extent that noncompliance could not reasonably be expected to have a
Material Adverse Effect. Each Plan that is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from the IRS or
an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Borrower, nothing has occurred
which would prevent, or cause the loss of, such qualification. The Borrower and
each ERISA Affiliate have made all required contributions to each Plan subject
to Section 412 of the Code, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any ERISA Affiliate has engaged in or
knowingly permitted to occur and, to the Borrower's knowledge, no other party
has engaged in or permitted to occur any prohibited transaction or violation of
the fiduciary responsibility rules with respect to any Plan that has resulted or
could be reasonably expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability that (when aggregated
with any other Unfunded Pension Liability) has resulted or could reasonably be
expected to result in a Material Adverse Effect; (iii) neither the Borrower nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA) which could reasonably be
expected to result in a Material Adverse Effect; (iv) neither the Borrower nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA
with respect to a Multiemployer Plan which could reasonably be expected to
result in a Material Adverse Effect; and (v) neither the Borrower nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.
5.13 SUBSIDIARIES. As of the Closing Date the Borrower has no
Subsidiaries. As of the Initial Funding Date the Borrower will have no
Subsidiaries other than those specifically disclosed in SCHEDULE 5.13.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT; USE OF PROCEEDS.
(a) The Borrower is not engaged and will not 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 Board), or
extending credit for the purpose of purchasing or carrying margin stock. Margin
Stock constitutes less than 25% of those assets of the Loan Parties which are
subject to any limitation on a sale, pledge, or other restrictions hereunder.
(b) None of the Borrower, any Person controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
35
(c) The Borrower will use all proceeds of Borrowings in the manner set
forth in SECTION 6.12.
5.15 DISCLOSURE. No statement, information, report, representation, or
warranty made by any Loan Party in any Loan Document or furnished to the
Administrative Agent or any Lender by or on behalf of any Loan Party in
connection with any Loan Document contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
5.16 LABOR MATTERS. To the Borrower's knowledge, there are no actual or
threatened strikes, labor disputes, slowdowns, walkouts, or other concerted
interruptions of operations by the employees of the Borrower or any of its
Subsidiaries that could reasonably be expected to have a Material Adverse
Effect. Hours worked by and payment made to employees of the Borrower or any of
its Subsidiaries have not been in violation of the Fair Labor Standards Act of
1938 or any other applicable Law dealing with such matters, other than any such
violations, individually or collectively, which could not reasonably be expected
to have a Material Adverse Effect. All payments due from the Borrower or any of
its Subsidiaries on account of employee health and welfare insurance have been
paid or accrued as a liability on its books, other than any such nonpayments
which could not, individually or collectively, reasonably be expected to have a
Material Adverse Effect.
5.17 COMPLIANCE WITH LAWS. Neither the Borrower nor any of its
Subsidiaries are in violation of any Laws, other than such violations which
could not, individually or collectively, reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries has
received notice alleging any noncompliance with any Laws, except for such
noncompliance which no longer exists, or which non-compliance could not
reasonably be expected to have a Material Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, the Borrower shall, and
shall (except in the case of the covenants set forth in SECTIONS 6.01, 6.02,
6.03 and 6.12) cause each Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and each
Lender, in form and detail reasonably satisfactory to the Administrative Agent
and the Required Lenders:
(a) within 45 days of the date of the MLP Offering Closing, a
consolidated unaudited balance sheet of the Borrower and its Subsidiaries as of
such date, in reasonable detail and certified by a Responsible Officer of the
Borrower as fairly presenting the financial condition of the Borrower and its
Subsidiaries; and
(b) as soon as available, but in any event within 105 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, and the related
statements of income 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 certified by a Responsible Officer of the Borrower as
fairly presenting the financial condition, results of operations and cash flows
of the Borrower and its Subsidiaries in accordance with GAAP; and
36
(c) as soon as available, but in any event within 60 days after the end
of each of the first three fiscal quarters of each fiscal year of the Borrower,
a consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter, and the related statements of income and cash flows for
such fiscal quarter and for the portion of the Borrower's fiscal year then
ended, setting forth in each case in comparative form 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 and certified by a
Responsible Officer of the Borrower as fairly presenting the financial
condition, results of operations and cash flows of the Borrower and its
Subsidiaries in accordance with GAAP; and
(d) as soon as available, but in any event within 105 days after the
end of each fiscal year of the MLP, consolidated balance sheets of the MLP and
its Subsidiaries as at the end of such fiscal year, and the related statements
of income 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, audited and accompanied by a report and opinion of Ernst & Young LLP or
other independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall be
prepared in accordance with GAAP and shall not be subject to any qualifications
or exceptions as to the scope of the audit nor to any qualifications and
exceptions not reasonably acceptable to the Required Lenders; provided, that, if
any financial statement referred to in this clause (d) is readily available
on-line through XXXXX, the Borrower shall not be obligated to furnish copies of
such financial statement; and
(e) as soon as available, but in any event within 60 days after the end
of each of the first three fiscal quarters of each fiscal year of the MLP, a
consolidated balance sheet of the MLP and its Subsidiaries as at the end of such
fiscal quarter, and the related statements of income and cash flows for such
fiscal quarter and for the portion of the MLP's fiscal year then ended, setting
forth in each case in comparative form 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 and certified by a Responsible
Officer of the MLP as fairly presenting the financial condition, results of
operations and cash flows of the MLP 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 and each Lender, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements referred
to in SECTIONS 6.01(b) and (c), a duly completed Compliance Certificate in form
of EXHIBIT C-1 signed by a Responsible Officer of the Borrower;
(b) promptly after requested by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors or equivalent governing body (or the audit
committee thereof) of the Borrower or any of its Subsidiaries by independent
accountants in connection with the accounts or books of the Borrower or any of
its Subsidiaries, or any audit of any of them;
(c) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the equity owners of the MLP, and copies of all annual, regular, periodic and
special reports and registration statements which the MLP may file or be
required to file with the Securities and Exchange Commission 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;
37
provided, that, if such report, proxy, financial statement or other report or
communication is readily available on-line through XXXXX, the Borrower shall not
be obligated to furnish copies thereof; and
(d) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or the MLP as the Administrative
Agent, at the request of any Lender, may from time to time reasonably request.
6.03 NOTICES. Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default or Event of Default, as soon as
possible but in any event within ten days after the occurrence thereof;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including any of the following events if
such has resulted or could reasonably be expected to result in a Material
Adverse Effect: (i) breach or non-performance of, or any default under, a
Contractual Obligation of the Borrower or any Subsidiary; (ii) any litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary
and any Governmental Authority;
(c) of any litigation, investigation or proceeding affecting any
Referenced Person in which (i) the amount involved exceeds (individually or
collectively) $15,000,000, or (ii) injunctive relief or similar relief is
sought, which could be reasonably expected to have a Material Adverse Effect;
and
(d) of any material change in accounting policies or financial
reporting practices by the Borrower or the MLP.
Each notice pursuant to this Section 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. Each notice pursuant to SECTION
6.03(a) shall describe with particularity any and all provisions of this
Agreement or other Loan Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Borrower or such Subsidiary; and (b) all lawful claims which,
if unpaid, would by law become a Lien upon its property.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain
in full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization, except in a transaction permitted by
SECTION 7.04 and 7.05, (b) take all reasonable action to maintain all rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except in a transaction permitted by SECTION
7.04 and 7.05, and (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
6.06 MAINTENANCE OF ASSETS AND BUSINESS (a) Maintain all material
licenses, permits, and franchises necessary for the normal business; (b) keep
all of its assets which are useful in and necessary to its business in good
working order and condition (ordinary wear and tear excepted) and make all
necessary repairs thereto and replacements thereof; and (c) do all things
necessary to obtain, renew, extend, and
38
continue in effect all Authorizations which may at any time and from time to
time be necessary for the Borrower and its Subsidiaries to operate their
businesses in compliance with applicable Law; except where the failure to so
maintain, renew, extend, or continue in effect could not reasonably be expected
to have a Material Adverse Effect.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws (including Environmental Laws) applicable to it or to
its business or property, except in such instances in which (i) such requirement
of Law is being contested in good faith or a bona fide dispute exists with
respect thereto; or (ii) the failure to comply therewith could not be reasonably
expected to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS.
(a) Maintain proper books of record and account, in which full, true
and correct entries in conformity with GAAP consistently applied shall be made
of all financial transactions and matters involving the assets and business of
the Borrower or such Subsidiary, as the case may be; and (b) maintain such books
of record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Borrower or
such Subsidiary, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, at such reasonable times during normal business hours and as often
as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided, however, that when an Event of Default exists the Administrative Agent
or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any
time during normal business hours and without advance notice.
6.11 COMPLIANCE WITH ERISA. Do, and cause each of its ERISA Affiliates
to do, each of the following: (a) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
Federal or state law; (b) cause each Plan which is qualified under Section
401(a) of the Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code.
6.12 USE OF PROCEEDS.
(a) Use the proceeds of the Term Loan Facility to repay the Assumed
Debt; and
(b) Use the proceeds of the Acquisition Subfacility as follows (i) to
finance Acquisitions by the Borrower and its Subsidiaries of Persons or assets
subject to compliance with this Agreement, including SECTIONS 7.02 and 7.09,
(ii) for Capital Expenditures, and (iii) on the Initial Funding Date, the
Borrower
39
may request a Borrowing in an amount not to exceed $100,000.00 to partially
repay the Assumed Debt; and
(c) Use the proceeds of the Working Capital/Distribution Subfacility to
(i) fund working capital requirements of the Borrower and its Subsidiaries, (ii)
fund Quarterly Distributions to the extent permitted by SECTION 7.07(a)(ii) and
(iii) pay fees owed pursuant to this Agreement, provided, however, Borrowings
under the Working Capital/Distribution Subfacility shall be made to fund the
Quarterly Distributions only if, at the time of such Borrowing and after giving
effect thereto, there is at least $9,000,000.00 of the Working
Capital/Distribution Subfacility Commitment undrawn and available for working
capital purposes.
6.13 CLEAN DOWN PERIOD. For a period of fifteen (15) consecutive days
during the twelve-month period beginning on the Initial Funding Date, and for a
period of fifteen (15) consecutive days during each twelve-month period
thereafter, there shall be no Loans outstanding under the Working
Capital/Distribution Subfacility.
6.14 GUARANTIES. As an inducement to the Administrative Agent and
Lenders to enter into this Agreement, cause each Subsidiary to execute and
deliver to Administrative Agent a Guaranty substantially in the form and upon
the terms of EXHIBIT E, providing for the guaranty of payment and performance of
the Obligations. In addition, promptly after the formation or acquisition of any
new entity that is (or becomes) a Subsidiary, cause such new entity to execute
and deliver to Administrative Agent a Guaranty substantially in the form and
upon the terms of EXHIBIT E, providing for the guaranty of payment and
performance of the Obligations, together with certified copies of such
Subsidiary's Organization Documents and opinions of counsel with respect to such
Subsidiary and such Guaranty, in substantially the forms of EXHIBIT F-1 and F-2
hereto.
6.15 MATERIAL AGREEMENTS. Maintain the Material Agreements in effect,
except where failure to remain in effect could not reasonably be expected to
have a Material Adverse Effect.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligations shall remain unpaid or unsatisfied, the Borrower shall not,
nor shall it permit any Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist, any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings, 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 arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which
40
are being contested in good faith and by appropriate proceedings, if adequate
reserves with respect thereto are maintained on the books of the applicable
Person;
(d) 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;
(e) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature, in each case
incurred in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which do not in any case materially detract
from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;
(g) judgment Liens not giving rise to an Event of Default; and
(h) Liens securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost or purchase price of any asset and
renewals, extensions, amendments and modifications of such Indebtedness,
provided that such Indebtedness is permitted under SECTION 7.03(c); provided
further that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness, (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition, and (iii) such Liens
attach to such asset concurrently with or within 180 days of the related asset
acquisition.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of
cash equivalents;
(b) Investments by the Borrower and Subsidiaries in the Borrower or any
Person that, prior to such Investment, is a Guarantor;
(c) Trade accounts receivable which are for goods furnished or services
rendered in the ordinary course of business; and
(d) Permitted Acquisitions.
7.03 INDEBTEDNESS, SYNTHETIC LEASES AND SWAP OBLIGATIONS. Create,
incur, assume or suffer to exist any Indebtedness, Synthetic Leases or
obligations under Swap Contracts, except:
(a) Indebtedness under the Loan Documents;
(b) Obligations (contingent or otherwise) of the Borrower existing or
arising under any Swap Contract, provided that (i) such obligations are (or
were) entered into by such Person in the ordinary course of business for the
purpose of directly mitigating risk and not for purposes of speculation or
taking a "market view;" and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party;
41
(c) Indebtedness in respect of purchase money obligations incurred or
assumed as described in SECTION 7.01(h); provided that the aggregate amount of
such Indebtedness at any one time outstanding shall not exceed $5,000,000;
(d) Unsecured Indebtedness of the Borrower and Synthetic Leases of the
Borrower in an aggregate principal amount not to exceed $75,000,000 at any time
outstanding, provided, such Indebtedness and Synthetic Leases bear not more than
a market rate of interest and shall not require any Principal Payment earlier
than six (6) months after the Maturity Date; provided further, that at the time
any such Indebtedness or Synthetic Lease is incurred, (i) no Default or Event of
Default exists; and (ii) not later than the date that such Indebtedness or
Synthetic Lease is incurred, the Borrower delivers to the Administrative Agent a
Compliance Certificate in the form of EXHIBIT C-2 evidencing pro forma
compliance, as of the date of the incurrence of such Indebtedness or Synthetic
Lease and after giving effect thereto, with this SECTION 7.03 and SECTION 7.14;
and
(e) Permitted Affiliate Subordinated Debt in an aggregate principal
amount not to exceed $50,000,000 outstanding at any time, provided that at the
time any such Indebtedness is incurred, (i) no Default or Event of Default
exists; and (ii) not later than the date that such Indebtedness is incurred, the
Borrower delivers to the Administrative Agent a Compliance Certificate in the
form of EXHIBIT C-2 evidencing pro forma compliance, as of the date of the
incurrence of such Indebtedness and after giving effect thereto, with this
SECTION 7.03 and SECTION 7.14.
7.04 FUNDAMENTAL CHANGES. Merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of 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 or Event of Default exists or would result therefrom:
(a) mergers and consolidations constituting Permitted Acquisitions are
permitted, provided that in any merger or consolidation involving the Borrower,
the Borrower is the surviving entity;
(b) any Subsidiary may merge with (i) the Borrower, provided that the
Borrower shall be the continuing or surviving Person, or (ii) any one or more
Subsidiaries, provided that when any wholly-owned Subsidiary is merging with
another Subsidiary, the wholly-owned Subsidiary shall be the continuing or
surviving Person; and
(c) any Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise), to the Borrower or to another
Subsidiary; provided that if the seller in such a transaction is a wholly-owned
Subsidiary, then the purchaser must also be a wholly-owned Subsidiary.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of inventory in the ordinary course of business;
(b) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business; and
(c) Dispositions of property by any Subsidiary to the Borrower or to a
wholly-owned Subsidiary; and
42
(d) If no Default or Event of Default then exists or arises as a result
thereof, Dispositions for fair market value for cash, provided that if a
prepayment is required by SECTION 2.04(b)(II), the Borrower shall make such
prepayment concurrently with such Disposition.
7.06 LEASE OBLIGATIONS. Create or suffer to exist any obligations for
the payment of rent for any property under lease or agreement to lease, except:
(a) operating leases (other than those constituting Synthetic Lease Obligations)
entered into or assumed by the Borrower or any Subsidiary in the ordinary course
of business, and (b) Synthetic Lease Obligations to the extent permitted by
SECTION 7.03(d).
7.07 RESTRICTED PAYMENTS; PAYMENTS OF PERMITTED AFFILIATE SUBORDINATED
DEBT. (a) Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that:
(i) each Subsidiary may make Restricted Payments to the
Borrower and to wholly-owned Subsidiaries;
(ii) the Borrower may make Quarterly Distributions; provided,
that at the time of such distribution no Default or Event of Default
exists or would result therefrom.
(b) While any Default or Event of Default exists, the Borrower will not
make any payments of principal or interest on Permitted Affiliate Subordinated
Debt.
7.08 ERISA. At any time engage in a transaction which could be subject
to Section 4069 or 4212(c) of ERISA, or permit any Plan to (a) engage in any
non-exempt "prohibited transaction" (as defined in Section 4975 of the Code);
(b) fail to comply with ERISA or any other applicable Laws; or (c) incur any
material "accumulated funding deficiency" (as defined in Section 302 of ERISA),
which, with respect to each event listed above, could be reasonably expected to
have a Material Adverse Effect.
7.09 NATURE OF BUSINESS; CAPITAL EXPENDITURES. Engage in any line of
business other than Present and Related Businesses, or make any Capital
Expenditures except in connection with Present and Related Businesses.
7.10 TRANSACTIONS WITH AFFILIATES. Make any sale to, make any purchase
from, extend credit to, make payment for services rendered by, or enter into any
other transaction with, any Affiliate of the Borrower unless as a whole such
sales, purchases, extensions of credit, rendition of services and other
transactions are (at the time such sale, purchase, extension of credit,
rendition of services or other transaction is entered into) on terms and
conditions reasonably fair in all material respects to the Borrower or the
applicable Subsidiary in the good faith judgment of the Borrower.
7.11 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation that
limits the ability (a) of any Subsidiary to make Restricted Payments to the
Borrower or to otherwise transfer property to the Borrower or (b) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person.
7.12 USE OF PROCEEDS. Use the proceeds of any Loan for purposes other
than those permitted by SECTION 6.12, or use the proceeds of any Loan, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the Board)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
43
7.13 OPERATING AGREEMENTS. Permit any amendment to any of Borrower's
Operating Agreements if such amendment could reasonably be expected to
materially adversely affect the Lenders.
7.14 FINANCIAL COVENANTS.
(a) INTEREST COVERAGE RATIO. Permit the Interest Coverage Ratio as of
the end of any fiscal quarter of the Borrower to be less than the ratio of 3.0
to 1.0.
(b) LEVERAGE RATIO. Permit the Leverage Ratio as of the end of any
fiscal quarter of the Borrower to be greater than the ratio of 4.0 to 1.0.
(c) PRO FORMA ADJUSTMENTS FOR ASSET ACQUISITIONS. For purposes of
determining compliance with this SECTION 7.14 (but not for the purpose of
calculating the Leverage Ratio used in the determination of the Applicable
Rate):
(i) Consolidated EBITDA shall be calculated after giving
effect, on a pro forma basis for the four consecutive fiscal quarters
most recently completed, to any asset acquisitions (an "ASSET
ACQUISITION") occurring during the period commencing on the first day
of such period to and including the date of determination (herein
called the "REFERENCE PERIOD"), as if such Asset Acquisition occurred
on the first day of the Reference Period (an Asset Acquisition includes
an asset acquisition that gives rise to the need to calculate
compliance hereunder as a result of a Company incurring or assuming
Indebtedness in connection with such asset acquisition); and
(ii) If, in connection with an Asset Acquisition during any
Reference Period, any Indebtedness (including Permitted Affiliate
Subordinated Debt and Loans hereunder) or any Synthetic Lease is
incurred or assumed by the Borrower or any Subsidiary, then
Consolidated Interest Charges shall be calculated, on a pro forma basis
for the four quarters most recently completed, as if such Indebtedness
or Synthetic Lease had been incurred on the first day of the Reference
Period.
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 fails to pay (i) when and as required to
be paid herein, any amount of principal of any Loan or (ii) within ten days
after the same becomes due, any interest on any Loan, any commitment or other
fee due hereunder, 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(a), 6.12 or 6.13;
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for ten Business Days after the earlier of the date notice
thereof shall have been given to the Borrower by the Administrative Agent or any
Lender or the date the Borrower has knowledge of such failure; or
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(d) Representations and Warranties. Any representation or warranty made
or deemed made by the Borrower or any other Loan Party herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith
proves to have been incorrect in any material respect when made or deemed made;
or
(e) Cross-Default. (i) The Borrower or any other Referenced Person (A)
fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness,
Guaranty Obligation or Synthetic Lease (other than Indebtedness hereunder)
having an aggregate principal amount (or, in the case of a Synthetic Lease,
Attributable Principal) (including undrawn or available amounts and including
amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than (individually or collectively) $15,000,000, or (B)
fails to observe or perform any other agreement or condition relating to any
such Indebtedness, Guaranty Obligation or Synthetic Lease 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, the lessor under such
Synthetic Lease or the beneficiary or beneficiaries of such Guaranty Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness or Synthetic Lease to be demanded or to become due or to be
repurchased or redeemed (automatically or otherwise) prior to its stated
maturity, or such Guaranty Obligation to become payable or cash collateral in
respect thereof to be demanded; or (ii) (A) there occurs under any Swap Contract
an Early Termination Date (as defined in such Swap Contract) resulting from any
event of default under such Swap Contract as to which the Borrower or any other
Referenced Person is the Defaulting Party (as defined in such Swap Contract) and
the Swap Termination Value owed by the Borrower or any other Referenced Person
as a result thereof is greater than (individually or collectively) $15,000,000,
or (B) there occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from any Termination Event (as so
defined) under such Swap Contract as to which the Borrower or any other
Referenced Person is an Affected Party (as so defined) and the Swap Termination
Value owed by the Borrower or any other Referenced Person as a result thereof is
greater than (individually or collectively) $15,000,000 and such amount is not
paid when due under such Swap Contract; or
(f) Insolvency Proceedings, Etc. The Borrower or any other Referenced
Person 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 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
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
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 property which is a
material part of the property of the Borrower and its Subsidiaries taken as a
whole, and is not released, vacated or fully bonded within 45 days after its
issue or levy; or
(h) Judgments. There is entered against the Borrower or any other
Referenced Person (i) a final judgment or order for the payment of money in an
aggregate amount exceeding (individually or collectively) $15,000,000 (to the
extent not covered by (x) independent third-party insurance as to which
45
the insurer does not dispute coverage or (y) an Acceptable Indemnity), or (ii)
any non-monetary final judgment that has, or would reasonably be expected to
have, a Material Adverse Effect and, in either case, (A) enforcement proceedings
are commenced by any creditor upon such judgment or order, or (B) there is a
period of 30 consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) 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 or any Subsidiary under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
$15,000,000, 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 $15,000,000; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time after
its execution and delivery and for any reason other than the agreement of all
the Lenders or satisfaction in full of all the Obligations, ceases to be in full
force and effect, or is declared by a court of competent jurisdiction to be null
and void, invalid or unenforceable in any material respect; 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; or
(k) Change of Control. There occurs any Change of Control; or
(l) Dissolution. Any Loan Party shall dissolve, liquidate, or otherwise
terminate its existence, except as permitted in SECTION 7.04.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs,
the Administrative Agent:
(a) shall, at the request of, or may, with the consent of the Required
Term Lenders, declare the commitment of each Term Loan Lender to make Loans
under the Term Loan Facility to be terminated, whereupon such commitments and
obligation shall be terminated; and shall, at the request of, or may, with the
consent of the Required Revolver Lenders, declare the commitment of each
Revolver Lender to make Loans under the Revolver Facility to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) shall, at the request of, or may, with the consent of, the Required
Lenders, 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, notice of intent to accelerate, notice of
acceleration or other notice of any kind, all of which are hereby expressly
waived by the Borrower; and
(c) shall, at the request of, or may, with the consent of, the Required
Lenders, exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) of SECTION 8.01, the obligation of each Lender to make Loans shall
automatically terminate, the unpaid principal amount of all
46
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, in each case without further act of the
Administrative Agent or any Lender.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT. Each Lender
hereby irrevocably (subject to SECTION 9.09) appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents 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. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall
(a) be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein), or (b) be
responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document, or for any failure
of any Loan Party or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender or participant to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party or any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper
47
Person or Persons, and upon advice and statements of legal counsel (including
counsel to any Loan Party), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent shall be fully justified
in failing or refusing to take any action under any Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Lenders or all the Lenders,
if required hereunder, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and participants. Where
this Agreement expressly permits or prohibits an action unless the Required
Lenders otherwise determine, the Administrative Agent shall, and in all other
instances, the Administrative Agent may, but shall not be required to, initiate
any solicitation for the consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions to the
initial Borrowing specified in SECTION 4.01, each Lender that has funded its Pro
Rata Share of the Borrowing(s) on the Initial Funding Date shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required hereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
ARTICLE VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent herein, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations,
48
property, financial and other condition or creditworthiness of any of the Loan
Parties or any of their respective Affiliates which may come into the possession
of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities resulting from such Person's gross
negligence or willful misconduct; provided, however, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrower. The
undertaking in this Section shall survive termination of the Commitments, the
payment of all Obligations hereunder and the resignation or replacement of the
Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of America
and its Affiliates may make loans to, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Bank of America were not the Administrative
Agent hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent, and the terms "Lender" and "Lenders"
include Bank of America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders and the
Borrower. If the Administrative Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor administrative agent
for the Lenders which successor administrative agent shall be consented to by
the Borrower at all times other than during the existence of an Event of Default
(which consent of the Borrower shall not be unreasonably withheld or delayed).
If no successor administrative agent is appointed prior to the effective date of
the resignation of the Administrative Agent, the Administrative Agent may
appoint, after consulting with the Lenders and the Borrower, a successor
administrative agent from among the Lenders. Upon the acceptance of its
appointment as successor administrative agent hereunder, such successor
administrative agent shall succeed to all the rights, powers and duties of the
retiring Administrative Agent and the term "ADMINISTRATIVE AGENT" shall mean
such successor administrative
49
agent and the retiring Administrative Agent's appointment, powers and duties as
Administrative Agent shall be terminated. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
ARTICLE IX and SECTIONS 10.03 and 10.13 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement. If no successor administrative agent has accepted
appointment as Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
9.10 OTHER AGENTS; LEAD MANAGERS. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a
"syndication agent," as a "documentation agent," any other type of agent (other
than the Administrative Agent), "joint lead arranger," "joint book manager" or
"lead manager" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC.
(a) 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 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, unless in writing and signed by each of the Lenders directly
affected thereby and by the Borrower, and acknowledged by the Administrative
Agent, do any of the following:
(i) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to SECTION 8.02);
(ii) 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;
(iii) reduce the principal of, or the rate of interest
specified herein on, any Loan or (subject to clause (B) of the proviso
below) any fees or other amounts payable hereunder or under any other
Loan Document, or change the manner of computation of any financial
covenant used in determining the Applicable Rate that would result in a
reduction of any interest rate on any Loan; provided, however, that
only the consent of the Required Lenders shall be necessary to amend
the definition of "Default Rate" or to waive any obligation of the
Borrower to pay interest at the Default Rate; or
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(iv) amend this Section, or SECTION 2.12, or any provision
herein providing for unanimous consent or other action by all the
Lenders;
and, provided further, that (A) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Required
Lenders or all the Lenders, as the case may be, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document; and
(B) the Agent/Arranger 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, any Lender that has failed to
fund any portion of the Loans required to be funded by it hereunder shall not
have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Pro Rata Share of such Lender may not be increased
without the consent of such Lender.
(b) Any amendment to any Loan Document which purports to (i) change the
allocation of payments between the Facilities, (ii) decrease the amount of any
mandatory prepayment or commitment reduction required by SECTION 2.04 or (iii)
change this SECTION 10.01(b), must be by an instrument in writing executed by
Borrower, the Administrative Agent and by (A) the Required Term Lenders and (B)
the Required Revolver Lenders.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder and under the other Loan
Documents shall be in writing (including by facsimile transmission) and mailed,
faxed or delivered, to the address, facsimile number or (subject to subsection
(c) below) electronic mail address specified for notices on SCHEDULE 10.02 (for
the Borrower, each Guarantor and the Administrative Agent) or the signature
pages hereto (for the other Lenders); or, in the case of the Borrower, the
Guarantors or the Administrative Agent, to such other address as shall be
designated by such party in a notice to the other parties, and in the case of
any other party, to such other address as shall be designated by such party in a
notice to the Borrower and the Administrative Agent. All such notices and other
communications shall be deemed to be given or made upon the earlier to occur of
(i) actual receipt by the intended recipient and (ii) (A) if delivered by hand
or by courier, when signed for by the intended recipient; (B) if delivered by
mail, four Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail (which form of delivery is subject to
the provisions of subsection (c) below), when delivered; provided, however, that
notices and other communications to the Administrative Agent pursuant to ARTICLE
II shall not be effective until actually received by such Person. Any notice or
other communication permitted to be given, made or confirmed by telephone
hereunder shall be given, made or confirmed by means of a telephone call to the
intended recipient at the number specified on SCHEDULE 10.02 or such Person's
signature page, as applicable, it being understood and agreed that a voicemail
message shall in no event be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
51
(c) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Borrowing 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. The Borrower shall indemnify
each Agent-Related Person and each Lender 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 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. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder 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 or therein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS; EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all reasonable costs and expenses
incurred in connection with the preparation, negotiation, syndication,
administration and execution of this Agreement and the other Loan Documents and
any amendment, waiver, consent or other modification of the provisions hereof
and thereof (whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to pay or
reimburse the Administrative Agent and each Lender for all costs and expenses
incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any workout or
restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing costs and expenses shall include all other out-of-pocket
expenses incurred by the Administrative Agent and the cost of independent public
accountants and other outside experts retained by the Administrative Agent or
any Lender. The agreements in this Section shall survive the termination of the
Commitments and repayment of all the other Obligations.
10.05 INDEMNIFICATION. Whether or not the transactions contemplated
hereby are consummated, the Borrower and each Guarantor (by execution of a
Guaranty) agrees to indemnify, save and hold harmless each Agent-Related Person,
each Arranger, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the
"INDEMNITEES") from and against: (a) any and all claims, demands, actions or
causes of action that are asserted against any Indemnitee by any Person (other
than the Administrative Agent or any Lender) relating directly or indirectly to
a claim, demand, action or cause of action that such Person asserts or may
assert against any Loan Party, any Affiliate of any Loan Party or any of their
respective officers or directors, arising out of or relating to, the Loan
Documents, the Commitments, the use or contemplated use of the proceeds of any
Loans, or the relationship of any Loan Party, the Administrative Agent and the
Lenders under this Agreement or any other Loan Document; (b) any and all claims,
demands, actions or causes of action that may at any time (including at any time
following repayment of the Obligations and the resignation of the
52
Administrative Agent or the replacement of any Lender) be asserted or imposed
against any Indemnitee, arising out of or relating to, the Loan Documents, the
Commitments, the use or contemplated use of the proceeds of any Loans, or the
relationship of any Loan Party, the Administrative Agent and the Lenders under
this Agreement or any other Loan Document; (c) without limiting the foregoing,
any and all claims, demands, actions or causes of action that are asserted or
imposed against any Indemnitee, (i) under the application of any Environmental
Law applicable to the Borrower or any of its Subsidiaries or any of their
properties or assets, including the treatment or disposal of Hazardous
Substances on any of their properties or assets, (ii) as a result of the breach
or non-compliance by the Borrower or any Subsidiary with any Environmental Law
applicable to the Borrower or any Subsidiary, (iii) due to past ownership by the
Borrower or any Subsidiary of any of their properties or assets or past activity
on any of their properties or assets which, though lawful and fully permissible
at the time, could result in present liability, (iv) due to the presence, use,
storage, treatment or disposal of Hazardous Substances on or under, or the
escape, seepage, leakage, spillage, discharge, emission or release from, any of
the properties owned or operated by the Borrower or any Subsidiary (including
any liability asserted or arising under any Environmental Law), regardless of
whether caused by, or within the control of, the Borrower or such Subsidiary, or
(v) due to any other environmental, health or safety condition in connection
with the Loan Documents; (d) any administrative or investigative proceeding by
any Governmental Authority arising out of or related to a claim, demand, action
or cause of action described in subsection (a), (b) or (c) above; and (e) any
and all liabilities (including liabilities under indemnities), losses, costs or
expenses (including Attorney Costs) that any Indemnitee suffers or incurs as a
result of the assertion of any foregoing claim, demand, action, cause of action
or proceeding, or as a result of the preparation of any defense in connection
with any foregoing claim, demand, action, cause of action or proceeding, in all
cases, WHETHER OR NOT ARISING OUT OF THE NEGLIGENCE OF AN INDEMNITEE, and
whether or not an Indemnitee is a party to such claim, demand, action, cause of
action or proceeding (all the foregoing, collectively, the "INDEMNIFIED
LIABILITIES"); provided that no Indemnitee shall be entitled to indemnification
for any claim caused by its own gross negligence or willful misconduct. The
agreements in this Section shall survive the termination of the Commitments and
repayment of all the other Obligations.
10.06 PAYMENTS SET ASIDE. To the extent that the Borrower makes a
payment to the Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off 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 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 set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share 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.
10.07 SUCCESSORS AND ASSIGNS.
(a) 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
each Lender (and any attempted assignment or transfer by the Borrower without
such consent 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 and, to the
53
extent expressly contemplated hereby, the Indemnitees) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may 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 at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) of the assigning Lender subject to each such assignment, determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent, shall not be less than $1,000,000 in the
case of any assignment of a Revolver Commitment and Revolver Principal Debt, or
$5,000,000 in the case of any assignment of any Term Loan Principal Debt, 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) 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 prohibit the
assignment of a proportionate part of all the assigning Lender's rights and
obligations in respect of one Facility, and (iii) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500 (such fee
to be paid by the assignor or the assignee, as may be agreed between them). An
assignment need not be ratable as between the Term Loan Facility and the
Revolver Facility. 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 Acceptance, the Eligible
Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, 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 Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance 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 3.07, 10.04 and 10.05). Upon request,
the Borrower (at its expense) shall execute and deliver new or replacement Notes
to the assigning Lender and the assignee Lender. Any 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) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "REGISTER"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may 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, notwithstanding notice
to the contrary. 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) Any Lender may, without the consent of, or notice to, the Borrower
or the Administrative Agent, sell participations to one or more banks or other
entities (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 owing to it); provided that (i) such Lender's obligations under
this Agreement shall
54
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 and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. 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
that would (i) postpone any date upon which any payment of money is scheduled to
be paid to such Participant, (ii) reduce the principal, interest, fees or other
amounts payable to such Participant, or (iii) release any Guarantor from the
Guaranty. Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of SECTIONS 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of SECTION 10.09
as though it were a Lender, provided such Participant agrees to be subject to
SECTION 2.12 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under SECTION 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of SECTION 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with SECTION 10.15 as though
it were a Lender.
(f) 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
Notes, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) If the consent of the Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in clause (i) of the proviso
to the first sentence of SECTION 10.07(b)), the Borrower shall be deemed to have
given its consent five Business Days after the date notice thereof has been
delivered by the assigning Lender (through the Administrative Agent) unless such
consent is expressly refused by the Borrower prior to such fifth Business Day.
10.08 CONFIDENTIALITY. Each Lender agrees that it will not disclose
without the prior consent of the Borrower (other than to directors, officers,
employees, auditors, accountants, counsel or other professional advisors of the
Administrative Agent or any Lender) any information with respect to the Borrower
or its Subsidiaries, which is furnished pursuant to this Agreement and which (i)
the Borrower in good faith considers to be confidential and (ii) is either
clearly marked confidential or is designated by the Borrower to the
Administrative Agent or the Lenders in writing as confidential, provided that
any Lender may disclose any such information (a) as has become generally
available to the public, (b) as may be required or appropriate in any report,
statement or testimony submitted to or required by any municipal, state or
federal regulatory body having or claiming to have jurisdiction over such Lender
or submitted to or required by the Board or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States of America or
elsewhere) or their successors, (c) as may be required or appropriate in
response to any summons or subpoena in connection with any litigation, (d) in
order to comply with any
55
law, order, regulation or ruling applicable to such Lender, (e) to any Eligible
Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement, provided
that such Eligible Assignee or Participant or prospective Eligible Assignee or
Participant executes an agreement containing provisions substantially similar to
those contained in this SECTION 10.08, (f) in connection with the exercise of
any remedy by such Lender following an Event of Default pertaining to the Loan
Documents, (g) in connection with any litigation involving such Lender
pertaining to the Loan Documents, (h) to any Lender or the Administrative Agent,
or (i) to any Affiliate of any Lender (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).
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower or any other Loan Party, any such notice being
waived by the Borrower (on its own behalf and on behalf of each Loan Party) to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing
to the Administrative Agent and the Lenders, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
10.10 INTEREST RATE LIMITATION. Regardless of any provision contained
in any Loan Document, neither the Administrative Agent nor any Lender shall ever
be entitled to contract for, charge, take, reserve, receive, or apply, as
interest on all or any part of the Obligations, any amount in excess of the
Maximum Rate, and, if any Lender ever does so, then such excess shall be deemed
a partial prepayment of principal and treated hereunder as such and any
remaining excess shall be refunded to the Borrower. In determining if the
interest paid or payable exceeds the Maximum Rate, the Borrower and the Lenders
shall, to the maximum extent permitted under applicable Law, (a) treat all
Borrowings as but a single extension of credit (and the Lenders and the Borrower
agree that such is the case and that provision herein for multiple Borrowings is
for convenience only), (b) characterize any nonprincipal payment as an expense,
fee, or premium rather than as interest, (c) exclude voluntary prepayments and
the effects thereof, and (d) amortize, prorate, allocate, and spread the total
amount of interest throughout the entire contemplated term of the Obligations.
However, if the Obligations are paid and performed in full prior to the end of
the full contemplated term thereof, and if the interest received for the actual
period of existence thereof exceeds the Maximum Amount, the Lenders shall refund
such excess, and, in such event, the Lenders shall not, to the extent permitted
by Law, be subject to any penalties provided by any Laws for contracting for,
charging, taking, reserving, or receiving interest in excess of the Maximum
Amount. If, contrary to the parties' intent expressed in SECTION 10.16(a), the
Laws of the State of Texas are applicable for purposes of determining the
"Maximum Rate" or the "Maximum Amount," then those terms mean the "weekly
ceiling" from time to time in effect under Texas Finance Code Section 303.305,
as amended. The Borrower agrees that Chapter 346 of the Texas Finance Code, as
amended (which regulates certain revolving credit loan accounts and revolving
tri-party accounts), does not apply to the Obligations.
56
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
10.13 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 or Event of Default at the time of any Borrowing, and shall continue
in full force and effect as long as any Loan or any other Obligation shall
remain unpaid or unsatisfied.
10.14 SEVERABILITY. Any provision of this Agreement and the other Loan
Documents to which the Borrower is a party that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions thereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.15 FOREIGN LENDERS. Each Lender that is a "foreign corporation,
partnership or trust" within the meaning of the Code (a "FOREIGN LENDER") shall
deliver to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or after accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Person and entitling it to an exemption
from, or reduction of, withholding tax on all payments to be made to such Person
by the Borrower pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Person by the Borrower
pursuant to this Agreement) or such other evidence satisfactory to the Borrower
and the Administrative Agent that such Person is entitled to an exemption from,
or reduction of, U.S. withholding tax. Thereafter and from time to time, each
such Person shall (a) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Borrower and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Person by the Borrower pursuant to this Agreement, (b) promptly
notify the Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (c) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of such Lender,
and as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that the Borrower make any
deduction or withholding for taxes from amounts payable to such Person. If such
Person fails to deliver the above forms or other documentation, then the
Administrative Agent may withhold from any interest payment to such Person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of
57
the Code, without reduction. If any Governmental Authority asserts that the
Administrative Agent did not properly withhold any tax or other amount from
payments made in respect of such Person, such Person shall indemnify the
Administrative Agent therefor, including all penalties and interest, any taxes
imposed by any jurisdiction on the amounts payable to the Agent under this
Section, and costs and expenses (including Attorney Costs) of the Administrative
Agent. The obligation of the Lenders under this Section shall survive the
payment of all Obligations and the resignation or replacement of the
Administrative Agent.
10.16 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) EACH COMPANY AND OTHER PARTY HERETO, AND EACH GUARANTOR, BY
EXECUTION OF A GUARANTY, AGREES AS TO THIS SECTION 10.16(b). ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE
BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX SITTING IN THE BOROUGH OF
MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE ADMINISTRATIVE
Agent AND EACH LENDER CONSENTS, AND BY EXECUTION OF A GUARANTY, EACH GUARANTOR
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. THE BORROWER, EACH GUARANTOR, THE ADMINISTRATIVE
Agent AND EACH LENDER (1) IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO, AND (2) IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, AT ITS ADDRESS FOR NOTICES DESIGNATED HEREIN. THE BORROWER, EACH
GUARANTOR, THE ADMINISTRATIVE Agent AND EACH LENDER WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE. THE BORROWER AND EACH GUARANTOR, BY ITS
EXECUTION OF A GUARANTY, AGREES TO DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE
OF PROCESS IN
NEW YORK IN CONNECTION WITH ACTIONS AND PROCEEDINGS UNDER THE LOAN
DOCUMENTS AND TO DELIVER TO THE ADMINISTRATIVE AGENT EVIDENCE THEREOF.
10.17 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
AND EACH GUARANTOR, BY EXECUTION OF A GUARANTY, HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF THE PARTIES TO THE LOAN DOCUMENTS OR ANY OF THEM WITH RESPECT TO
ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE;
58
AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE COMPANIES TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.18 NO GENERAL PARTNER'S LIABILITY. The Lenders agree for themselves
and their respective successors and assigns, including any subsequent holder of
any Note, that any claim against the Borrower which may arise under any Loan
Document shall be made only against and shall be limited to the assets of the
Borrower and the Guarantors, and that no judgment, order or execution entered in
any suit, action or proceeding, whether legal or equitable, on this Agreement,
such Note or any of the other Loan Documents shall be obtained or enforced
against the General Partner or its assets for the purpose of obtaining
satisfaction and payment of such Note, the Indebtedness evidenced thereby or any
claims arising thereunder or under this Agreement or any other Loan Document,
any right to proceed against the General Partner individually or its respective
assets being hereby expressly waived, renounced and remitted by the Lenders for
themselves and their respective successors and assigns. Nothing in this SECTION
10.18, however, shall be construed so as to prevent the Administrative Agent,
any Lender or any other holder of any Note from commencing any action, suit or
proceeding with respect to or causing legal papers to be served upon the General
Partner for the purpose of obtaining jurisdiction over Borrower.
10.19 ENTIRE AGREEMENT. This Agreement and the other Loan Documents
represent the final agreement between 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.
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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.
XXXXXXXX XXX, X.X.
By: XXXXXXXX XX LLC, its
General Partner
By: /s/ Xxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxx X. Xxxxxxxxxx
Title: Chief Financial Officer and
Treasurer
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX XXX, X.X.
CREDIT AGREEMENT]
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxxxx Xxx
-------------------------------------------
Name: Xxxxxx X. Xxx
Title: Managing Director
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx Xxx
-------------------------------------------
Name: Xxxxxx X. Xxx
Title: Managing Director
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX OLP, L.P.
CREDIT AGREEMENT]
XXXXXX COMMERCIAL PAPER, INC., as
Syndication Agent and as a Lender
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX OLP, L.P.
CREDIT AGREEMENT]
XXXXXX COMMERCIAL PAPER INC.
Address for Notices
Xxxxxx Commercial Paper Inc.
3 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx Xxxxxxx
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX OLP, L.P.
CREDIT AGREEMENT]
SUNTRUST BANK, as Documentation Agent and as a
Lender
By: /s/ Xxxxx X. Edge
---------------------------------------
Name: Xxxxx X. Edge
Title: Director
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX XXX, X.X.
CREDIT AGREEMENT]
SUNTRUST BANK
Address for Notices:
SunTrust Bank
Mail Code 1929
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxx
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX XXX, X.X.
CREDIT AGREEMENT]
ABN AMRO BANK, N.V.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Group Vice President
By: /s/ Xxxxx X. Xxxxx, Xx
---------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX OLP, L.P. CREDIT AGREEMENT]
ABN AMRO BANK, N.V.
Address for Notices:
ABN AMRO Bank N.V.
0 Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx Xxxxx
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX OLP, L.P. CREDIT AGREEMENT]
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Sr. Vice President
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX XXX, X.X. CREDIT AGREEMENT]
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
Address for Notices:
National Westminster Bank Plc
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxx Xxxxxx
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX OLP, L.P. CREDIT AGREEMENT]
BANK ONE, NA (Chicago Office), as Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: First Vice President
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX XXX, X.X. CREDIT AGREEMENT]
BANK ONE, NA
Address for Notices:
Bank One, NA
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxxx
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX OLP, L.P. CREDIT AGREEMENT]
BARCLAYS BANK PLC
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Director, Loan Transaction
Management
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX XXX, X.X. CREDIT AGREEMENT]
BARCLAYS BANK PLC
Address for Notices:
Barclays Bank Plc
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxxx Xxxx
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX XXX, X.X. CREDIT AGREEMENT]
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: First Vice President
By: /s/ Xxxxx Xxx
---------------------------------------
Name: Xxxxx Xxx
Title: Vice President
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX OLP, L.P. CREDIT AGREEMENT]
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
Address for Notices:
Bayerische Landesbank Girozentrale
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxxxxx
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX OLP, L.P. CREDIT AGREEMENT]
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxx X. Xxxxxxx, III
---------------------------------------
Name: Xxxxx X. Xxxxxxx, III
Title: Vice President/Group Manager
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX XXX, X.X. CREDIT AGREEMENT]
NATEXIS BANQUES POPULAIRES
Address for Notices:
Natexis Banques Populaires
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx Xxxxx
[THIS IS A SIGNATURE PAGE TO THE
XXXXXXXX XXX, X.X. CREDIT AGREEMENT]
SCHEDULE 2.01
COMMITMENTS
LENDER REVOLVING FACILITY TERM LOAN FACILITY
------ ------------------ ------------------
Working Capital/
Acquisition Subfacility Distribution Subfacility
----------------------- ------------------------
Bank of America $5,333,333.33 $2,666,666.67 $12,000,000.00
Xxxxxx Commercial Paper, Inc. $5,333,333.33 $2,666,666.67 $12,000,000.00
SunTrust Bank $5,333,333.33 $2,666,666.67 $12,000,000.00
ABN AMRO Bank, N.V. $4,666,666.67 $2,333,333.33 $10,500,000.00
National Westminster Bank Plc $4,666,666.67 $2,333,333.33 $10,500,000.00
Bank One, NA $4,000,000.00 $2,000,000.00 $9,000,000.00
Barclays Bank Plc $4,000,000.00 $2,000,000.00 $9,000,000.00
Bayerische Landesbank $4,000,000.00 $2,000,000.00 $9,000,000.00
Girozentrale
Natexis Banques Populaires $2,666,666.67 $1,333,333.33 $6,000,000.00
Total: $40,000,000 $20,000,000 $90,000,000
1
SCHEDULE 5.13
SUBSIDIARIES
AND OTHER EQUITY INVESTMENTS
Part (a). Subsidiaries as of the Closing Date.
None
Part (b). Subsidiaries as of the Initial Funding Date:
Name Jurisdiction of Incorporation Ownership
---- ----------------------------- ---------
Xxxxxxxx Natural Gas Liquids LLC Delaware Borrower (100%)
("WNG LLC")
Xxxxxxxx Terminals Holding L.P. Delaware Limited Partner: Borrower (99%)
General Partner: WNG LLC (1%)
Xxxxxxxx Pipelines Holdings L.P. Delaware Limited Partner: Borrower (99%)
General Partner: WNG LLC (1%)
Xxxxxxxx Ammonia Pipeline L.P. Delaware Limited Partner: Borrower (99%)
General Partner: WNG LLC (1%)
1
SCHEDULE 10.02
ADDRESSES FOR NOTICES TO BORROWER,
GUARANTORS AND ADMINISTRATIVE AGENT
ADDRESS FOR NOTICES TO BORROWER
XXXXXXXX XXX, X.X.
c/o Xxxxxxxx XX, LLC
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xx. Xxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxx.xxxxxxxxxx@xxxxxxxx.xxx
ADDRESS FOR NOTICES TO GUARANTORS
c/o Xxxxxxxx XX, LLC
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xx. Xxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxx.xxxxxxxxxx@xxxxxxxx.xxx
ADDRESSES FOR BANK OF AMERICA
Administrative Agent's Office and Bank of America's Lending Office
(for payments and Borrowing Notices):
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Account No.: 1292000883
Ref: Xxxxxxxx XXX, X.X.
ABA# 000000000
1
Other Notices as Administrative Agent:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Other Notices as a Lender:
Bank of America, N.A.
000 Xxxx Xxxxxx, Xxxxx #0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxx, Managing Director
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxxxxx.xxx@xxxxxxxxxxxxx.xxx
2
EXHIBIT A-1
FORM OF BORROWING NOTICE
Date:
------------,-----
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
February 6, 2001 (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 Xxxxxxxx XXX, X.X., a
Delaware limited partnership (the "BORROWER"), the Lenders from time to time
party thereto, Bank of America, N.A., as Administrative Agent, Xxxxxx Commercial
Paper, Inc., as Syndication Agent, and SunTrust Bank, as Documentation Agent.
The undersigned hereby requests (select one):
I. REVOLVER FACILITY
A. Acquisition Subfacility
1. Status Information for the Acquisition Subfacility
(a) Amount of the Acquisition Subfacility:
$40,000,000
(b) Acquisition Subfacility Principal Debt prior
to the Borrowing requested herein:
$
------------------
(c) Principal amount of Loans under the
Acquisition Subfacility available to be
borrowed: $
------------------
2. Amount of Borrowing: $
-----------
3. Requested date of Borrowing: , 200
----------------- --
4. Requested Type of Loan and applicable Dollar amount:
(a) Base Rate Loan for $
------------------
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
Exhibit A-1
Page 1
Form of Borrowing Notice
(iv) six months for $
---------------
B. Working Capital/Distribution Subfacility
1. Status Information for the Working Capital/
Distribution Subfacility
(a) Amount of the Acquisition Facility:
$20,000,000
(b) Working Capital/Distribution Subfacility
Principal Debt prior to the Borrowing
requested herein: $
-----------------
(c) Principal amount of Loans under the Working
Capital/Distribution Subfacility available
to be borrowed (prior to the following
requested herein) (1(a) minus 1(b)):
$
------------------
2. Amount of Borrowing: $
-------------
3. Requested date of Borrowing: , 200 .
--------------- --
4. Requested Type of Loan and applicable Dollar amount:
(a) Base Rate Loan for $ .
-------------------
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
5. Purpose of Loan:
Working Capital
---
To fund Quarterly Distribution (SECTION 6.11(c)
--- (ii) of the Agreement)
6. If the Loan is for the purpose of funding Quarterly
Distribution: Amount remaining undrawn under the
Working Capital/Distribution Subfacility after giving
effect to the Borrowing herein requested is:
$
------------
(must be not less than $9,000,000)
II. Term Loan Facility
1. Amount of Borrowing: $
------------
2. Requested date of Borrowing: , 200 .
--------------- --
3. Requested Type of Loan and applicable Dollar amount:
Exhibit A-1
Page 2
Form of Borrowing Notice
(a) Base Rate Loan for $ .
----------------------
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
The undersigned hereby certifies that the following statements will be
true on the date of the proposed Borrowing(s) after giving effect thereto and to
the application of the proceeds therefrom:
(a) the representations and warranties of the Borrower
contained in ARTICLE V of the Agreement are true and correct as though made on
and as of such date (except such representations and warranties which expressly
refer to an earlier date, which are true and correct as of such earlier date);
and
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Borrowing(s).
The Borrowing requested herein complies with SECTIONS 2.01, 2.02 and
2.03 of the Agreement, as applicable.
XXXXXXXX XXX, X.X.
By Xxxxxxxx XX LLC, its
General Partner
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Exhibit A-1
Page 3
Form of Borrowing Notice
EXHIBIT A-2
FORM OF CONVERSION/CONTINUATION NOTICE
Date: ,
------------- ----
TO: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
February 6, 2001 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "AGREEMENT"; the terms defined
therein being used herein as herein defined), among Xxxxxxxx XXX, X.X., a
Delaware limited partnership (the "BORROWER"), the Lenders from time to time
party thereto, Bank of America, N.A., as Administrative Agent, Xxxxxx Commercial
Paper, Inc., as Syndication Agent, and SunTrust Bank, as Documentation Agent.
The undersigned hereby requests (select one):
I. REVOLVER FACILITY
A. Acquisition Subfacility
1. Amount of [conversion] [continuation]: $
-----------
2. Existing rate: Check applicable blank
----------------------
(a) Base Rate
----------------------
(b) Eurodollar Rate Loan with
Interest Period of:
(i) one month
----------------------
(ii) two months
----------------------
(iii) three months
----------------------
(iv) six months
----------------------
3. If a Eurodollar Rate Loan, date of the last day of
the Interest Period for such Loan:
, 200 .
-------------- --
The Loan described above is to be [converted] [continued] as
follows:
4. Requested date of [conversion] [continuation]:
, 200 .
----------------- --
5. Requested Type of Loan and applicable Dollar amount:
(a) Base Rate Loan for $ .
----------------------
Exhibit A-2
Page 1
Form of Conversion Continuation Notice
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
B. Working Capital/Distribution Subfacility
1. Amount of [conversion] [continuation]: $
-----------
2. Existing rate: Check applicable blank
----------------------
(a) Base Rate
----------------------
(b) Eurodollar Rate Loan with
Interest Period of:
(i) one month
----------------------
(ii) two months
----------------------
(iii) three months
----------------------
(iv) six months
----------------------
3. If a Eurodollar Rate Loan, date of the last day of
the Interest Period for such Loan:
, 200 .
-------------- --
The Loan described above is to be [converted] [continued] as
follows:
4. Requested date of [conversion] [continuation]:
, 200 .
----------------- --
5. Requested Type of Loan and applicable Dollar amount:
(a) Base Rate Loan for $ .
----------------------
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
II. TERM LOAN FACILITY
1. Amount of [conversion] [continuation]: $
-----------
2. Existing rate: Check applicable blank
----------------------
(a) Base Rate
---------------------
(b) Eurodollar Rate Loan with
Interest Period of:
(i) one month
---------------------
(ii) two months
---------------------
(iii) three months
---------------------
(iv) six months
---------------------
Exhibit A-2
Page 2
Form of Conversion Continuation Notice
4. If a Eurodollar Rate Loan, date of the last day of
the Interest Period for such Loan:
, 200 .
-------------- --
The Loan described above is to be [converted] [continued] as
follows:
4. Requested date of [conversion] [continuation]:
, 200 .
----------------- --
3. Requested Type of Loan and applicable Dollar amount:
(a) Base Rate Loan for $ .
-----------------------
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
The [conversion] [continuation] requested herein complies with SECTIONS
2.01, 2.02 and 2.03 of the Agreement, as applicable.
XXXXXXXX XXX, X.X.
By Xxxxxxxx XX LLC, its
General Partner
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Exhibit A-2
Page 3
Form of Conversion Continuation Notice
EXHIBIT B-1
FORM OF REVOLVER NOTE
$ February 6, 2001
-----------------------------------
FOR VALUE RECEIVED, the undersigned (the "BORROWER"), hereby promises
to pay to the order of _____________________________ (the "LENDER"), on the
Revolver Maturity Date (as defined in the Credit Agreement referred to below)
the principal amount of __________________Dollars ($____________), or such
lesser principal amount of Loans (as defined in such Credit Agreement) due and
payable by the Borrower to the Lender on the Revolver Maturity Date under that
certain Credit Agreement, dated as of even date herewith (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 the Borrower, the Lenders from time to time party thereto, Bank of
America, N.A., as Administrative Agent, Xxxxxx Commercial Paper, Inc., as
Syndication Agent, and SunTrust Bank, as Documentation Agent.
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 are specified in the
Agreement. 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 is subject to optional and mandatory prepayment in
whole or in part as provided therein. This Note is also entitled to the benefits
of each Guaranty. Upon the occurrence 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 all 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,
amount and maturity of its Loans and payments with respect thereto.
This Note is a Loan Document and is subject to SECTION 10.10 of the
Credit Agreement, which is incorporated herein by reference the same as if set
forth herein verbatim.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, notice of
intent to accelerate, notice of acceleration, demand, dishonor and non-payment
of this Note.
Exhibit B-1
Page 1
Form of Revolver Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
XXXXXXXX OLP, L.P.
By: Xxxxxxxx XX LLC, its
General Partner
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Exhibit B-1
Page 2
Form of Revolver Note
LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of
Principal or Revolver
Type of Loan Amount of End of Interest Paid Principal Debt Notation
Date Made Loan Made Interest Period This Date This Date Made By
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
Exhibit B-1
Page 3
Form of Revolver Note
EXHIBIT B-2
FORM OF TERM NOTE
$ February 6, 2001
-----------------------------------
FOR VALUE RECEIVED, the undersigned (the "BORROWER"), hereby promises
to pay to the order of _____________________________ (the "LENDER"), on the Term
Loan Maturity Date (as defined in the Credit Agreement referred to below) the
principal amount of __________________Dollars ($____________), or such lesser
principal amount of Loans (as defined in such Credit Agreement) due and payable
by the Borrower to the Lender on the Term Loan Maturity Date under that certain
Credit Agreement, dated as of even date herewith (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 the Borrower, the Lenders from time to time party thereto, Bank of
America, N.A., as Administrative Agent, Xxxxxx Commercial Paper, Inc., as
Syndication Agent, and SunTrust Bank, as Documentation Agent.
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 are specified in the
Agreement. 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 is subject to optional and mandatory prepayment in
whole or in part as provided therein. This Note is also entitled to the benefits
of each Guaranty. Upon the occurrence 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 all 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,
amount and maturity of its Loans and payments with respect thereto.
This Note is a Loan Document and is subject to SECTION 10.10 of the
Credit Agreement, which is incorporated herein by reference the same as if set
forth herein verbatim.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, notice of
intent to accelerate, notice of acceleration, demand, dishonor and non-payment
of this Note.
Exhibit B-2
Page 1
Form of Term Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
XXXXXXXX XXX, X.X.
By: Xxxxxxxx XX LLC, its
General Partner
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Exhibit B-2
Page 2
Form of Term Note
LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of
Principal or Revolver
Type of Loan Amount of End of Interest Paid Principal Debt Notation
Date Made Loan Made Interest Period This Date This Date Made By
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
-------------------- ----------------- ----------------- ----------------- ----------------- ----------------- -----------------
Exhibit B-2
Page 3
Form of Term Note
EXHIBIT C-1
FORM OF COMPLIANCE CERTIFICATE
(Pursuant to SECTION 6.02 of the Agreement)
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
February 6, 2001 (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 Xxxxxxxx XXX, X.X., a
Delaware limited partnership (the "BORROWER"), the Lenders from time to time
party thereto, Bank of America, N.A., as Administrative Agent, Xxxxxx Commercial
Paper, Inc., as Syndication Agent, and SunTrust Bank, as Documentation Agent.
Capitalized terms used herein but not defined herein shall have the meaning set
forth in the Agreement.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the __________________________________________________
of the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:
[Use following for fiscal year-end financial statements]
1. Attached hereto as SCHEDULE 1 are the year-end unaudited financial
statements required by SECTION 6.01(b) of the Agreement for the fiscal year of
the Borrower ended as of the above date. Such financial statements fairly
present 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. Attached hereto as SCHEDULE 2 are the year-end audited financial
statements required by SECTION 6.01(d) of the Agreement for the fiscal year of
the MLP ended as of the above date, together with the report and opinion of an
independent certified public accountant required by such section.
[Use following for fiscal quarter-end financial statements]
1. Attached hereto as SCHEDULE 1 are the unaudited financial statements
required by SECTION 6.01(c) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present
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. Attached hereto as SCHEDULE 3 are the unaudited financial statements
required by SECTION 6.01(d) of the Agreement for the fiscal quarter of the MLP
ended as of the above date, together with a certificate of a Responsible Officer
of the MLP stating that such financial statements fairly present the financial
condition, results of operations and cash flows of the MLP 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.
Exhibit C-1
Page 1
Form of Compliance Certificate
[Use the following for both fiscal year-end and quarter-end financial
statements]
3. 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 the attached financial
statements.
4. 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 no Default or Event
of Default has occurred and is continuing except as follows (list of each such
Default or Event of Default and include the information required by SECTION 6.03
of the Credit Agreement):
[ ]
5. The covenant analyses and information set forth on SCHEDULE 2
attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of ______________, ________.
XXXXXXXX XXX, X.X.
By: Xxxxxxxx XX LLC, its
General Partner
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Exhibit C-1
Page 2
Form of Compliance Certificate
For the Quarter/Year ended ___________________("STATEMENT DATE")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 2.01(a) - Acquisition Subfacility ($40,000,000)
A. Acquisition Subfacility Principal Debt on the first day of
the most recently ended fiscal quarter (the "SUBJECT
Quarter"): $
-------------
B. Borrowings under the Acquisition Subfacility during the
Subject Quarter (list each by the date and $ amount of the
Borrowing): Date $Amount
---- ------
C. Borrowings repaid under the Acquisition Subfacility during
the Subject Quarter (list each by the date and $ amount of
the repayment): Date $Amount
---- ------
D. Acquisition Subfacility Principal Debt on the last day of
the Subject Quarter: $
-------------
E. On any day during the Subject Quarter, did the Acquisition
Subfacility Principal Debt exceed $40,000,000?
YES/NO
II. SECTION 2.01(b) - Working Capital/Distribution Subfacility
($20,000,000)
A. Working Capital/Distribution Subfacility Principal Debt on
the first day of the Subject Quarter: $
-------------
B. Borrowings under the Working Capital/Distribution Subfacility
to fund working capital requirements of the Borrower and its
Subsidiaries (list each by the date and $ amount of the
Borrowing): Date $Amount
---- ------
C. Borrowings under the Working Capital/Distribution Subfacility
to fund Quarterly Distributions (list each by the date and
$ amount of the Borrowing): Date $Amount
---- ------
D. Borrowings repaid under the Working Capital/Distribution
Subfacility (list each by the date and $ amount of the
repayment): Date $Amount
---- ------
Exhibit C-1
Page 3
Form of Compliance Certificate
E. Working Capital/Distribution Subfacility Principal Debt on
the last day of the Subject Quarter: $
-------------
F. On any day during the Subject Quarter, did the Working
Capital/Distribution Subfacility Principal Debt exceed
$20,000,000? YES/NO
G. On the date of each Borrowing under the Working
Capital/Distribution Subfacility (after giving effect to
such Borrowing), was the undrawn amount of Working
Capital/Distribution Subfacility Commitment $9,000,000 or
more? (SECTION 2.01(b)) YES/NO
III. SECTION 6.13 - Clean Down Period for Working Capital/Distribution
Subfacility
A. One clean down period of fifteen (15) consecutive days
during the twelve (12) month period beginning on the Initial
Funding Date, and for a period of fifteen (15) consecutive
days each twelve (12) month period thereafter is required.
For the current twelve (12) month period, describe the clean
down period (period of consecutive days (and dates) during
the current twelve (12) month period that the Working
Capital/Distribution Subfacility Principal Debt = $0.00):
# of Days Dates
IV. SECTION 7.03 - Indebtedness
A. Principal amount of purchase money indebtedness outstanding
(SECTION 7.03(c)): $
-------------
Maximum permitted $5,000,000
B. Principal amount of unsecured Indebtedness and Synthetic
Leases permitted pursuant to SECTION 7.03(d):
1. Amount of unsecured Indebtedness: $
-------------
2. Amount of Synthetic Leases: $
-------------
3. Aggregate amount of unsecured Indebtedness and
Synthetic Leases under SECTION 7.03(d) (IV.B.1 +
IV.B.2): $
-------------
Maximum permitted: $75,000,000.
Exhibit C-1
Page 4
Form of Compliance Certificate
C. Principal amount of Permitted Affiliated Subordinated Debt
outstanding (SECTION 7.03(e)): $
-------------
Maximum permitted: $50,000,000
V. SECTION 7.14(a) - Interest Coverage Ratio.
A. Consolidated EBITDA for four consecutive fiscal quarters
ending on above date ("SUBJECT PERIOD"):
1. Consolidated Net Income for Subject Period: $
-------------
2. Consolidated Interest Charges for Subject Period:
$
-------------
3. Provision for income taxes for Subject Period:
$
-------------
4. Depreciation expenses for Subject Period: $
-------------
5. Amortization expenses for intangibles for Subject
Period: $
-------------
6. Consolidated EBITDA (prior to pro forma adjustments
for Asset Acquisitions pursuant to SECTION
7.14(c)(i)) (Lines V.A.1 + 2 + 3 + 4 + 5):
$
-------------
7. Pro forma adjustments to EBITDA for Asset
Acquisitions during the Subject Period (SECTION
7.14(c)(i)), giving effect to such Asset Acquisitions
on a pro forma basis for the Subject Period as if
such Asset Acquisitions occurred on the first day of
the Subject Period:
$
-------------
8. Consolidated EBITDA, including pro forma
adjustments for Asset Acquisitions (Lines V.A.6 +
V.A.7): $
-------------
B. Consolidated Interest Charges for Subject Period:
1. Consolidated Interest Charges for the four
consecutive fiscal quarters ending on the above
date: $
-------------
2. Pro forma adjustment for Interest Charges during
the four consecutive fiscal quarters beginning on
the above date: $
-------------
Exhibit C-1
Page 5
Form of Compliance Certificate
3. Consolidated Interest Charges, including pro forma
adjustments (Lines V.B.1 + V.B.2): $
-------------
C. Consolidated Lease and Rental Expense for Subject Period:
1. Consolidated Lease and Rental Expense for the four
consecutive fiscal quarters ending on the above
date: $
-------------
2. Pro forma adjustment for Consolidated Lease and
Rental Expense during the four consecutive fiscal
quarters beginning on the above date:
$
-------------
3. Consolidated Lease and Rental Expense, including
pro forma adjustments (Lines V.C.1 + V.C.2): $
-------------
D. Interest Coverage Ratio:
1. Consolidated EBITDA adjusted for Asset Acquisitions
(Line V.A.8): $
-------------
2. Consolidated Interest Charges adjusted for Asset
Acquisitions (Line V.B.3): $
-------------
3. Consolidated Lease and Rental Expense, including pro
forma adjustments (Line V.C.3): $
-------------
4. Interest Coverage Ratio (Line V.D.1 + Line V.D.3))
(Line V.D.2 + Line V.D.3): to 1.0
-----
Minimum required: 3.0:1.0
VI. SECTION 7.14(b) - Leverage Ratio
A. Consolidated Total Debt: $
-------------
B. Permitted Affiliate Subordinated Debt: $
-------------
C. Consolidated Total Debt excluding Permitted Affiliate
Subordinated Debt (Line VI.A minus Line VI.B): $
-------------
Exhibit C-1
Page 6
Form of Compliance Certificate
D. Consolidated EBITDA (including pro forma adjustments for
Asset Acquisitions) (Line V.A.8 above):
$
-------------
E. Leverage Ratio (Line VI.C / Line VI.D):
to 1.0
-----
Maximum permitted: 4.0:1.0
Exhibit C-1
Page 7
Form of Compliance Certificate
EXHIBIT C-2
FORM OF COMPLIANCE CERTIFICATE
(Pursuant to SECTION 7.02(d) and SECTION 7.03 of the Agreement)
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
February 6, 2001 (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 Xxxxxxxx XXX, X.X., a
Delaware limited partnership (the "BORROWER"), the Lenders from time to time
party thereto, Bank of America, N.A., as Administrative Agent, Xxxxxx Commercial
Paper, Inc., as Syndication Agent, and SunTrust Bank, as Documentation Agent.
Capitalized terms used herein but not defined herein shall have the meaning set
forth in the Agreement.
This Compliance Certificate is being delivered pursuant to [SECTION
7.02(d)] [SECTION 7.03(d)] [SECTION 7.03(e)] of the Credit Agreement in
connection with the incurrence of additional Indebtedness by the Borrower (the
"ADDITIONAL INDEBTEDNESS").
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the of the Borrower, and that, as such, he/she is
authorized to execute and deliver this Certificate to the
Administrative Agent on the behalf of the Borrower, and that:
1. No Default or Event of Default has occurred and is continuing or
exists or will exist after the incurrence of the Additional Indebtedness.
2. Attached hereto are true and correct copies of the agreements and
instruments governing the Additional Indebtedness, as follows: (describe).
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________, ________.
XXXXXXXX XXX, X.X.
By: Xxxxxxxx XX LLC, its
General Partner
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
Date of Statement: ___________________ ("STATEMENT DATE")
Exhibit C-2
Page 1
Form of Compliance Certificate
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 7.03 - Indebtedness
A. Principal amount of purchase money indebtedness outstanding
(SECTION 7.03(c)): $
------------
Maximum permitted: $5,000,000
B. Principal amount of Unsecured Indebtedness and Synthetic
Leases permitted pursuant to SECTION 7.03(d):
1. Amount of unsecured Indebtedness: $
------------
2. Amount of Synthetic Leases: $
------------
3. Aggregate amount of unsecured Indebtedness and
Synthetic Leases under SECTION 7.03(d) (I.B.1 +
I.B.2): $
------------
Maximum permitted: $75,000,000.
C. Principal amount of Permitted Affiliate Subordinated Debt
outstanding (SECTION 7.03(e)): $
------------
Maximum permitted: $50,000,000
Exhibit C-2
Page 2
Form of Compliance Certificate
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to that certain Credit Agreement, dated as of
February 6, 2001 (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 Xxxxxxxx XXX, X.X., a
Delaware limited partnership (the "BORROWER"), the Lenders from time to time
party thereto, Bank of America, N.A., as Administrative Agent, Xxxxxx Commercial
Paper, Inc., as Syndication Agent, and SunTrust Bank, as Documentation Agent.
The assignor identified on the signature page hereto (the "ASSIGNOR")
and the assignee identified on the signature page hereto (the "ASSIGNEE") agree
as follows:
1. (a) Subject to paragraph 11, effective as of the date specified on
SCHEDULE 1 hereto (the "EFFECTIVE DATE"), the Assignor hereby irrevocably sells
and assigns to the Assignee without recourse to the Assignor, and the Assignee
hereby irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, the interest with respect to [that Facility] [those Facilities]
under the Credit Agreement described on SCHEDULE 1 hereto (the "ASSIGNED
INTEREST") in and to the Assignor's rights and obligations under the Agreement.
(b) From and after the Effective Date, (i) the Assignee shall be a
party under the Agreement and will have all the rights and obligations of a
Lender for all purposes under the Loan Documents to the extent of the Assigned
Interest and be bound by the provisions thereof, and (ii) to the extent of the
Assigned Interest, the Assignor shall relinquish its rights and be released from
its obligations under the Agreement. The Assignor and/or the Assignee, as agreed
by the Assignor and the Assignee, shall deliver, in immediately available funds,
any applicable assignment fee required under SECTION 10.07(b) of the Agreement.
2. On the Effective Date, the Assignee shall pay to the Assignor, in
immediately available funds, an amount equal to the purchase price of the
Assigned Interest as agreed upon by the Assignor and the Assignee.
3. From and after the Effective Date, the Administrative Agent shall
make all payments under the Agreement and the Notes, if any, in respect of the
Assigned Interest (including all payments of principal, interest and fees with
respect thereto) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments under the Agreement and such Notes, if any,
for periods prior to the Effective Date directly between themselves.
4. The Assignor represents and warrants to the Assignee that:
(a) The Assignor is the legal and beneficial owner of the
Assigned Interest, and the Assigned Interest is free and clear of any
adverse claim;
(b) the Assigned Interest listed on SCHEDULE 1 accurately and
completely sets forth the Outstanding Amount of all Loans relating to
the Assigned Interest as of the Effective Date;
(c) it has the power and authority and the legal right to
make, deliver and perform, and has taken all necessary action, to
authorize the execution, delivery and performance of this
Exhibit D
Page 1
Form of Assignment and Acceptance
Assignment and Acceptance, and any and all other documents delivered by
it in connection herewith and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment and
Acceptance and the Loan Documents, and no consent or authorization of,
filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or
therewith; and
(d) this Assignment and Acceptance constitutes the legal,
valid and binding obligation of the Assignor.
The Assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any of
its Affiliates or the performance by the Borrower or any of its Affiliates of
their respective obligations under the Loan Documents, and assumes no
responsibility with respect to any statements, warranties or representations
made under or in connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Document
other than as expressly set forth above.
5. The Assignee represents and warrants to the Assignor and the
Administrative Agent that:
(a) it is an Eligible Assignee;
(b) it has the full power and authority and the legal right to
make, deliver and perform, and has taken all necessary action, to
authorize the execution, delivery and performance of this Assignment
and Acceptance, and any and all other documents delivered by it in
connection herewith and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment and
Acceptance and the Loan Documents, and no consent or authorization of,
filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or
therewith;
(c) this Assignment and Acceptance constitutes the legal,
valid and binding obligation of the Assignee;
(d) under applicable Laws no tax will be required to be
withheld by the Administrative Agent or the Borrower with respect to
any payments to be made to the Assignee hereunder or under any Loan
Document, and unless otherwise indicated in the space opposite the
Assignee's signature below, no tax forms described in SECTION 10.15 of
the Agreement are required to be delivered by the Assignee; and
(e) the Assignee has received a copy of the Agreement,
together with copies of the most recent financial statements of the
Borrower delivered pursuant thereto, and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance. The
Assignee has independently and without reliance upon the Assignor or
the Administrative Agent and based on such information as the Assignee
has deemed appropriate, made its own credit analysis and decision to
enter into this Assignment and Acceptance. The Assignee will,
independently and without reliance upon the Administrative Agent or any
Lender, and based upon 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 Agreement.
Exhibit D
Page 2
Form of Assignment and Acceptance
6. The Assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Agreement, the other Loan Documents or any other instrument
or document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto.
7. If either the Assignee or the Assignor desires one or more Notes to
evidence its Loans, it shall request the Administrative Agent to procure such
Notes from the Borrower.
8. The Assignor and the Assignee agree to execute and deliver such
other instruments, and take such other action, as either party may reasonably
request in connection with the transactions contemplated by this Assignment and
Acceptance.
9. This Assignment and Acceptance shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns;
provided, however, that the Assignee shall not assign its rights or obligations
hereunder without the prior written consent of the Assignor and any purported
assignment, absent such consent, shall be void.
10. This Assignment and Acceptance may be executed by facsimile
signatures with the same force and effect as if manually signed and may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Assignment and Acceptance shall be governed by and construed in accordance with
the laws of the state specified in SECTION 10.16 of the Agreement entitled
"Governing Law."
11. The effectiveness of the assignment described herein is subject to:
(a) if such consent is required by the Agreement, receipt by the
Assignor and the Assignee of the consent of the Administrative Agent and/or the
Borrower to the assignment described herein. By delivering a duly executed and
delivered copy of this Assignment and Acceptance to the Administrative Agent,
the Assignor and the Assignee hereby request any such required consent and
request that the Administrative Agent register the Assignee as a Lender under
the Agreement effective as of the Effective Date; and
(b) receipt by the Administrative Agent of (or other arrangements
acceptable to the Administrative Agent with respect to) any applicable
assignment fee referred to in SECTION 10.07(b) of the Agreement and any tax
forms required by SECTION 10.15 of the Agreement.
By signing below, the Administrative Agent agrees to register the
Assignee as a Lender under the Agreement, effective as of the Effective Date
with respect to the Assigned Interest, and will adjust the registered Pro Rata
Share of the Assignor under the Agreement to reflect the assignment of the
Assigned Interest.
12. Attached hereto as SCHEDULE 2 is all contact, address, account and
other administrative information relating to the Assignee.
Exhibit D
Page 3
Form of Assignment and Acceptance
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers.
Assignor:
[Name of Assignor]
By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
Assignee:
[Name of Assignee]
[ ] Tax forms required by
SECTION 10.15 of the Agreement included By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
(Signatures continue)
Exhibit D
Page 4
Form of Assignment and Acceptance
In accordance with and subject to SECTION 10.07 of the Credit
Agreement, the undersigned consent to the foregoing assignment as of the
Effective Date:
Xxxxxxxx XXX, X.X.
By: Xxxxxxxx XX LLC, its
General Partner
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
------------------------------------------------
Title:
Exhibit D
Page 5
Form of Assignment and Acceptance
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
THE ASSIGNED INTEREST
Effective Date:
----------------------
Commitment Percentage
(i.e. the proportion that Assignee's Committed Sum to be
acquired bears to the Aggregate Committed Sum or Percentage
Committed Sum or of Outstanding Amount assigned (i.e. the proportion that the
Outstanding Outstanding Amount to be acquired by Assignee bears to the
Amount Assigned aggregate Outstanding Amount under the respective Facility)
Assigned Facility (as applicable) (set forth to at least 8 decimal points)
----------------- ---------------- ------------------------------------------------------------
REVOLVER FACILITY %
----------- ----------
TERM LOAN FACILITY %
----------- ----------
Schedule 1
Page 1
Form of Assignment and Acceptance
SCHEDULE 2 TO ASSIGNMENT AND ACCEPTANCE
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and
facsimile numbers, electronic mail addresses and account
and payment information)
Schedule 2
Page 1
Form of Assignment and Acceptance
EXHIBIT E
FORM OF GUARANTY
THIS GUARANTY is executed as of February 6, 2001, jointly and severally
by the undersigned (each a "GUARANTOR" and collectively the "GUARANTORS"), for
the benefit of BANK OF AMERICA, N.A., a national banking association (in its
capacity as Administrative Agent for the benefit of Lenders).
RECITALS
X. Xxxxxxxx XXX, X.X., a Delaware limited partnership ("BORROWER"),
Bank of America, N.A., as Administrative Agent (including its permitted
successors and assigns in such capacity, "ADMINISTRATIVE AGENT"), Xxxxxx
Commercial Paper, Inc., as Syndication Agent, SunTrust Bank, as Documentation
Agent, and the Lenders now or hereafter party to the Credit Agreement (including
their respective permitted successors and assigns, "Lenders") have entered into
a Credit Agreement, dated as of February 6, 2001 (as amended, modified,
supplemented, or restated from time to time, the "CREDIT AGREEMENT");
B. Provisions of the Credit Agreement permit Guarantors to directly or
indirectly receive proceeds of Borrowings made pursuant thereto; and
C. This Guaranty is integral to the transactions contemplated by the
Loan Documents and the execution and delivery hereof, is a condition precedent
to Lenders' obligations to extend credit under the Loan Documents.
ACCORDINGLY, for adequate and sufficient consideration, the receipt and
adequacy of which are hereby acknowledged, each Guarantor, jointly and
severally, guarantees to Administrative Agent and Lenders the prompt payment of
the Guaranteed Debt (defined below) as follows:
1. DEFINITIONS. Terms defined in the Credit Agreement have the same
meanings when used, unless otherwise defined, in this Guaranty. As used in this
Guaranty:
BORROWER means Borrower, Borrower as a debtor-in-possession, and any
receiver, trustee, liquidator, conservator, custodian, or similar party
appointed for Borrower or for all or substantially all of Borrower's assets
under any Debtor Relief Law.
CREDIT AGREEMENT is defined in the recitals to this Guaranty.
GUARANTEED DEBT means, collectively, (a) the Obligations and (b) all
present and future costs, attorneys' fees, and expenses reasonably incurred by
Administrative Agent or any Lender to enforce Borrower's, any Guarantor's, or
any other obligor's payment of any of the Guaranteed Debt, including, without
limitation (to the extent lawful), all present and future amounts that would
become due but for the operation of Sections 502 or 506 or any other provision
of Title 11 of the United States Code and all present and future accrued and
unpaid interest (including, without limitation, all post-maturity interest and
any post-petition interest in any proceeding under Debtor Relief Laws to which
Borrower or any Guarantor becomes subject).
GUARANTOR and GUARANTORS is defined in the preamble to this Guaranty.
Exhibit E
Page 1
Form of Guaranty
LENDER means, individually, or LENDERS means, collectively, on any date
of determination, the Lenders and their permitted successors and assigns.
SUBORDINATED DEBT means, for each Guarantor, all present and future
obligations of any Company to such Guarantor, whether those obligations are (a)
direct, indirect, fixed, contingent, liquidated, unliquidated, joint, several,
or joint and several, (b) due or to become due to such Guarantor, (c) held by or
are to be held by such Guarantor, (d) created directly or acquired by assignment
or otherwise, or (e) evidenced in writing.
2. GUARANTY. This is an absolute, irrevocable, and continuing guaranty
of payment, not collection, and the circumstance that at any time or from time
to time the Guaranteed Debt may be paid in full does not affect the obligation
of any Guarantor with respect to the Guaranteed Debt incurred after that. This
Guaranty remains in effect until the Guaranteed Debt is fully paid and
performed, and all commitments to extend any credit under the Loan Documents
have terminated. No Guarantor may rescind or revoke its obligations with respect
to the Guaranteed Debt. Notwithstanding any contrary provision, it is the
intention of Guarantors, Lenders, and Administrative Agent that the amount of
the Guaranteed Debt guaranteed by each Guarantor by this Guaranty shall be in,
but not in excess of, the maximum amount permitted by fraudulent conveyance,
fraudulent transfer, or similar Laws applicable to each such Guarantor.
Accordingly, notwithstanding anything to the contrary contained in this Guaranty
or any other agreement or instrument executed in connection with the payment of
any of the Guaranteed Debt, the amount of the Guaranteed Debt guaranteed by any
Guarantor under this Guaranty shall be limited to an aggregate amount equal to
the largest amount that would not render such Guarantor's obligations hereunder
subject to avoidance under Section 548 of the United States Bankruptcy Code or
any comparable provision of any applicable state Law.
3. CONSIDERATION. Each Guarantor represents and warrants that its
liability under this Guaranty may reasonably be expected to directly or
indirectly benefit it.
4. CUMULATIVE RIGHTS. If any Guarantor becomes liable for any
indebtedness owing by Borrower to Administrative Agent or any Lender, other than
under this Guaranty, that liability may not be in any manner impaired or
affected by this Guaranty. The Rights of Administrative Agent or Lenders under
this Guaranty are cumulative of any and all other Rights that Administrative
Agent or Lenders may ever have against any Guarantor. The exercise by
Administrative Agent or Lenders of any Right under this Guaranty or otherwise
does not preclude the concurrent or subsequent exercise of any other Right.
5. PAYMENT UPON DEMAND. If an Event of Default exists, each Guarantor
shall, on demand and without further notice of dishonor and without any notice
having been given to any Guarantor previous to that demand of either the
acceptance by Administrative Agent or Lenders of this Guaranty or the creation
or incurrence of any Guaranteed Debt, pay the amount of the Guaranteed Debt then
due and payable to Administrative Agent and Lenders; provided that, if an Event
of Default exists and Administrative Agent or Lenders cannot, for any reason,
accelerate the Obligations, then the Guaranteed Debt shall be, as among
Guarantors, Administrative Agent, and Lenders, a fully matured, due, and payable
obligation of Guarantors to Administrative Agent and Lenders. It is not
necessary for Administrative Agent or Lenders, in order to enforce that payment
by any Guarantor, first or contemporaneously to institute suit or exhaust
remedies against Borrower or others liable on any Guaranteed Debt.
Exhibit E
Page 2
Form of Guaranty
6. SUBORDINATION. The Subordinated Debt is expressly subordinated to
the full and final payment of the Guaranteed Debt. Upon the occurrence and
during the continuation of an Event of Default, each Guarantor agrees not to
accept any payment of any Subordinated Debt from any Company. If any Guarantor
receives any payment of any Subordinated Debt in violation of the foregoing,
such Guarantor shall hold that payment in trust for Administrative Agent and
Lenders and promptly turn it over to Administrative Agent, in the form received
(with any necessary endorsements), to be applied to the Guaranteed Debt.
7. SUBROGATION AND CONTRIBUTION. Until payment in full of the
Guaranteed Debt and the termination of the Obligations of Lenders to extend
credit under the Loan Documents, (a) no Guarantor may assert, enforce, or
otherwise exercise any Right of subrogation to any of the Rights or Liens of
Administrative Agent or Lenders or any other beneficiary against Borrower or any
other obligor on the Guaranteed Debt or any Collateral or other security or any
Right of recourse, reimbursement, subrogation, contribution, indemnification, or
similar Right against Borrower or any other obligor on any Guaranteed Debt or
any Guarantor of it, and (b) each Guarantor defers all of the foregoing Rights
(whether they arise in equity, under contract, by statute, under common Law, or
otherwise). Upon payment in full of the Guaranteed Debt and the termination of
the obligations of Lenders to extend credit under the Loan Documents, each
Guarantor shall be subrogated to the rights of the Administrative Agent and
Lenders against Borrower and the other obligors.
8. NO RELEASE. Each Guarantor agrees that its obligations under this
Guaranty may not be released, diminished, or affected by the occurrence of any
one or more of the following events: (a) any taking or accepting of any
additional guaranty or any other security or assurance for any Guaranteed Debt;
(b) any release, surrender, exchange, subordination, impairment, or loss of any
Collateral securing any Guaranteed Debt; (c) any full or partial release of the
liability of any other obligor on the Obligations, except for any final release
resulting from payment in full of such Obligations; (d) the modification of, or
waiver of compliance with, any terms of any other Loan Document; (e) the
insolvency, bankruptcy, or lack of corporate or partnership power of any other
obligor at any time liable for any Guaranteed Debt, whether now existing or
occurring in the future; (f) any renewal, extension, or rearrangement of any
Guaranteed Debt or any adjustment, indulgence, forbearance, or compromise that
may be granted or given by Administrative Agent or any Lender to any other
obligor on the Obligations; (g) any neglect, delay, omission, failure, or
refusal of Administrative Agent or any Lender to take or prosecute any action in
connection with the Guaranteed Debt or to foreclose, take, or prosecute any
action in connection with any Loan Document; (h) any failure of Administrative
Agent or any Lender to notify any Guarantor of any renewal, extension, or
assignment of any Guaranteed Debt, or the release of any security or of any
other action taken or refrained from being taken by Administrative Agent or any
Lender against Borrower or any new agreement between Administrative Agent, any
Lender, and Borrower; it being understood that neither Administrative Agent nor
any Lender is required to give any Guarantor any notice of any kind under any
circumstances whatsoever with respect to or in connection with any Guaranteed
Debt, other than any notice required to be given in this Guaranty; (i) the
unenforceability of any Guaranteed Debt against any other obligor or any
security securing same because it exceeds the amount permitted by Law, the act
of creating it is ultra xxxxx, the officers creating it exceeded their authority
or violated their fiduciary duties in connection with it, or otherwise; (j) any
payment of the Obligations to Administrative Agent or any Lender is held to
constitute a preference under any Debtor Relief Law or for any other reason
Administrative Agent or any Lender is required to refund that payment or make
payment to someone else (and in each such instance this Guaranty will be
reinstated in an amount equal to that payment); or (k) any other circumstance
which might otherwise constitute a defense available to, or a legal or equitable
discharge of, Borrower or any Guarantor.
Exhibit E
Page 3
Form of Guaranty
9. WAIVERS. By execution hereof, each Guarantor waives presentment and
demand for payment, protest, notice of intention to accelerate, notice of
acceleration, and notice of protest and nonpayment, and agrees that its
liability with respect to the Guaranteed Debt (or any part thereof) shall not be
affected by any renewal or extension in the time of payment of the Obligations
(or any part thereof). To the maximum extent lawful, each Guarantor waives all
Rights by which it might be entitled to require suit on an accrued Right of
action in respect of any Guaranteed Debt or require suit against Borrower or
others.
10. LOAN DOCUMENTS. By execution hereof, each Guarantor covenants and
agrees that certain representations, warranties, terms, covenants, and
conditions set forth in the Loan Documents are applicable to Guarantors by their
terms and shall be imposed upon Guarantors, and each Guarantor reaffirms that
each such representation and warranty is true and correct and covenants and
agrees to promptly and properly perform, observe, and comply with each such
term, covenant, or condition. Moreover, each Guarantor acknowledges and agrees
that this Guaranty is subject to the offset provisions of the Loan Documents in
favor of Administrative Agent and Lenders. In the event the Credit Agreement or
any other Loan Document shall cease to remain in effect for any reason
whatsoever during any period when any part of the Guaranteed Debt remains
unpaid, the terms, covenants, and agreements of the Credit Agreement or such
other Loan Document incorporated herein by reference shall nevertheless continue
in full force and effect as obligations of Guarantors under this Guaranty.
11. RELIANCE AND DUTY TO REMAIN INFORMED. Each Guarantor confirms that
it has executed and delivered this Guaranty after reviewing the terms and
conditions of the Loan Documents and such other information as it has deemed
appropriate in order to make its own credit analysis and decision to execute and
deliver this Guaranty. Each Guarantor confirms that it has made its own
independent investigation with respect to Borrower's creditworthiness and is not
executing and delivering this Guaranty in reliance on any representation or
warranty by Administrative Agent or any Lender as to that creditworthiness. Each
Guarantor expressly assumes all responsibilities to remain informed of the
financial condition of Borrower and any circumstances affecting Borrower's
ability to perform under the Loan Documents to which it is a party.
12. LOAN DOCUMENT. This Guaranty is a Loan Document and is subject to
the applicable provisions of ARTICLES 1 and 10 of the Credit Agreement,
including, without limitation, the provisions relating to GOVERNING LAW, AND
WAIVER OF RIGHT TO JURY TRIAL, both of which are incorporated into this Guaranty
by reference the same as if set forth in this Guaranty verbatim.
13. NOTICES. All notices required or permitted under this Guaranty, if
any, shall be given in the manner set forth in Section 10.02 of the Credit
Agreement.
14. AMENDMENTS, ETC. No amendment, waiver, or discharge to or under
this Guaranty is valid unless it is in writing and is signed by the party
against whom it is sought to be enforced and is otherwise in conformity with the
requirements of SECTION 10.01 of the Credit Agreement.
15. ADMINISTRATIVE AGENT AND LENDERS. Administrative Agent is
Administrative Agent for each Lender under the Credit Agreement. All Rights
granted to Administrative Agent under or in connection with this Guaranty are
for each Lender's ratable benefit. Administrative Agent may, without the joinder
of any Lender, exercise any Rights in Administrative Agent's or Lenders' favor
under or in connection with this Guaranty. Administrative Agent's and each
Lender's Rights and obligations vis-a-vis each other may be subject to one or
more separate agreements between those parties.
Exhibit E
Page 4
Form of Guaranty
However, no Guarantor is required to inquire about any such agreement or is
subject to any of its terms unless such Guarantor specifically joins such
agreement Therefore, neither Guarantor nor its successors or assigns is entitled
to any benefits or provisions of any such separate agreement or is entitled to
rely upon or raise as a defense any party's failure or refusal to comply with
the provisions of such agreement.
16. ADDITIONAL GUARANTORS. From time to time subsequent to the time
hereof, additional Persons may execute and deliver guaranties to the
Administrative Agent. Each Guarantor hereunder expressly agrees that its
obligations arising hereunder shall not be affected or diminished by any such
additional guaranties.
17. PARTIES. This Guaranty benefits Administrative Agent, Lenders, and
their respective successors and assigns and binds Guarantors and their
respective successors and assigns. Upon appointment of any successor
Administrative Agent under the Credit Agreement, all of the Rights of
Administrative Agent under this Guaranty automatically vest in that new
Administrative Agent as successor Administrative Agent on behalf of Lenders
without any further act, deed, conveyance, or other formality other than that
appointment. The Rights of Administrative Agent and Lenders under this Guaranty
may be transferred with any assignment of the Guaranteed Debt pursuant to and in
accordance with the terms of the Credit Agreement. The Credit Agreement contains
provisions governing assignments of the Guaranteed Debt and of Rights and
obligations under this Guaranty.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE(s) TO FOLLOW.
Exhibit E
Page 5
Form of Guaranty
EXECUTED as of the date first stated in this Guaranty.
GUARANTORS:
XXXXXXXX NATURAL GAS LIQUIDS LLC
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
XXXXXXXX TERMINALS HOLDING L.P.
By: XXXXXXXX NATURAL GAS LIQUIDS LLC, its
General Partner
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
XXXXXXXX PIPELINES HOLDINGS L.P.
By: XXXXXXXX NATURAL GAS LIQUIDS LLC, its
General Partner
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
XXXXXXXX AMMONIA PIPELINE L.P.
By: XXXXXXXX NATURAL GAS LIQUIDS LLC, its
General Partner
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
Exhibit E
Page 6
Form of Guaranty
EXHIBIT F-1
FORM OF OPINION OF COUNSEL
February __, 2001
To each of the Lenders parties to the Credit
Agreement referred to below, and
Bank of America, N.A., as
Administrative Agent for the Lenders
Ladies and Gentlemen:
We have acted as special counsel to (i) Xxxxxxxx XXX, X.X. (the
"Borrower"), (ii) Xxxxxxxx Natural Gas Liquids LLC ("WNGL"), Xxxxxxxx Terminals
Holding L.P. ("WTH"), Xxxxxxxx Pipelines Holdings L.P. ("WPH") and Xxxxxxxx
Ammonia Pipeline L.P. ("WAP", together with WNGL, WTH and WPH, the
"Guarantors"), and (iii) Xxxxxxxx XX, LLC (the "General Partner") in connection
with the Credit Agreement dated as of February 6, 2001, by and among the
Borrower, the Lenders party thereto, Bank of America, N.A., as Administrative
Agent for the Lenders, Xxxxxx Commercial Paper, Inc., as Syndication Agent, and
SunTrust Bank, as Documentation Agent (the "Credit Agreement").
This opinion is furnished to you at the request of the Borrower
pursuant to Section 4.01(a)(vi) of the Credit Agreement. Unless otherwise
defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
A. BASIS OF OPINION
In rendering the opinion set forth herein, we have examined and relied
on originals or copies, certified or otherwise identified to our satisfaction of
the following ("Loan Documents"):
(a) the Credit Agreement;
(b) the Notes;
(c) the Guaranty executed by the Guarantors;
(d) a copy of the opinion letter of Xxxxxxx X. xxx Xxxxx, General
Counsel of The Xxxxxxxx Companies, Inc., addressed to you and
dated the date hereof or the date of the Credit Agreement, as
the case may be;
(e) copies of such corporate documents and records of the Loan
Parties, certificates of officers and representatives of
certain of the Loan Parties, and such other agreements,
documents, instruments and certificates of public officials
and other Persons as we have deemed necessary or appropriate
for the purposes of rendering the opinion expressed herein;
and
(f) such matters of law as we have deemed necessary or appropriate
as a basis for the opinion expressed herein.
Exhibit F-1
Page 1
Form of Opinion of Counsel
B. ASSUMPTIONS
In rendering the opinion expressed below, we have assumed, with your
permission, without independent investigation or inquiry, (a) the due
authorization, execution and delivery of the Loan Documents by all parties to
such documents (other than the Loan Parties) and that the Loan Documents are
valid, binding and enforceable (subject to the limitations on enforceability of
the types referred to in the qualifications below) against the parties thereto
(other than the Loan Parties), (b) the legal capacity of natural persons, (c)
the genuineness of all signatures on all documents that we examined, (d) the
authenticity of all documents submitted to us as originals, and (e) the
conformity to authentic originals of all documents submitted to us as certified,
conformed or photostatic copies.
As to questions of fact material to the opinion hereinafter expressed,
we have relied without investigation upon the representations and warranties of
the Borrower and the Guarantors made in the Loan Documents. We have made no
examination or investigation to verify the accuracy or completeness of any
financial, accounting, or statistical information set forth in the Loan
Documents or otherwise furnished to you and, accordingly, express no opinion
with respect thereto.
Insofar as our opinion expressed below relates to the matters set forth
in the above-mentioned opinion letter, we have assumed without independent
investigation the correctness of the matters set forth in such opinion, and our
opinion is subject to the assumptions, qualifications and limitations set forth
in such opinion letter.
C. OPINION
Based upon our examination and review as set forth in Section A hereof,
and subject to the assumptions, exceptions, qualifications, and limitations set
forth in Sections B and D hereof, we are of the opinion that the Credit
Agreement and each of the Notes constitute valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms, and that the Guaranty constitutes valid and binding obligations of each
of the Guarantors enforceable against each of the Guarantors in accordance with
its terms.
D. QUALIFICATIONS AND EXCEPTIONS
The opinion rendered above is subject in all respects to the following
qualifications and comments:
1. Our opinion above, as to enforceability, is subject to the
effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally.
2. Our opinion is subject to the effect of general principles of
equity (whether considered in a proceeding in equity or at
law). In rendering our opinion, we have assumed that the
parties to the Loan Documents will perform their obligations
and exercise their rights under such documents within the
standards of reasonableness, good faith and fair dealing
imposed by applicable law.
3. We express no opinion with respect to the legality, validity,
binding nature, or enforceability of any of the following
provisions found in the Loan Documents, if any: (i) provisions
relating to waivers, precluding a party from asserting certain
claims or defenses or from obtaining or exercising certain
rights, releases, and remedies, or excusing
Exhibit F-1
Page 2
Form of Opinion of Counsel
a party from damages, liability, or obligations to the extent
such provisions may violate public policy or otherwise violate
applicable law; (ii) provisions relating to subrogation
rights, delay or omission of enforcement of rights or
remedies, severability, or set offs that violate applicable
law; (iii) provisions obligating a party to submit to the
jurisdiction or venue of any court; (iv) provisions purporting
to establish evidentiary standards for suits or proceedings to
enforce the Loan Documents; (v) provisions that decisions by a
party are conclusive; and (vi) provisions purporting to effect
the automatic service of process on any person.
4. We are members of the bar of the States of New York and Texas
and we express no opinion as to the laws of any jurisdiction
other than the laws of the States of New York and Texas, the
General Corporate Law of the State of Delaware and the Federal
laws of the United States of America.
5. This opinion letter is limited to the matters stated herein
and no opinions may be implied or inferred beyond the matters
expressly stated herein.
6. The opinion expressed herein is as of the date hereof, and we
assume no obligation to update or supplement such opinion to
reflect any facts or circumstances that may hereafter come to
our attention or any changes in law that may hereafter occur.
7. This opinion is being furnished only to the addresses named
above, and has been rendered solely for your benefit in
connection with the Credit Agreement and the transactions
contemplated thereby and may not be used, circulated, quoted,
relied upon or otherwise referred to for any other purpose
without our prior written consent; provided, however, that any
Person that becomes a Lender or successor Administrative Agent
pursuant to the terms of the Credit Agreement may rely on this
opinion as if it were addressed to such Person and delivered
on the date hereof.
Very truly yours,
XXXXXX & XXXXXX L.L.P.
Exhibit F-1
Page 3
Form of Opinion of Counsel
EXHIBIT F-2
FORM OF OPINION OF COUNSEL
February __, 2001
To each of the Lenders parties to the Credit
Agreement referred to below, and
Bank of America, N.A., as
Administrative Agent for the Lenders
Ladies and Gentlemen:
I am General Counsel of The Xxxxxxxx Companies, Inc. and have acted as
counsel to (i) Xxxxxxxx XXX, X.X. (the "Borrower"), (ii) Xxxxxxxx Natural Gas
Liquids LLC ("WNGL"), Xxxxxxxx Terminals Holding L.P. ("WTH"), Xxxxxxxx
Pipelines Holdings L.P. ("WPH") and Xxxxxxxx Ammonia Pipeline L.P. ("WAP",
together with WNGL, WTH and WPH, the "Guarantors"), and (iii) Xxxxxxxx XX, LLC
(the "General Partner," and together with the Borrower and the Guarantors, the
"Transaction Parties") in connection with the Credit Agreement dated as of
February 6, 2001, by and among the Borrower, the Lenders party thereto, Bank of
America, N.A., as Administrative Agent for the Lenders, Xxxxxx Commercial Paper,
Inc., as Syndication Agent, and SunTrust Bank, as Documentation Agent (the
"Agreement"). This opinion is furnished to you at the request of the Borrower
pursuant to Section 4.01(a)(vi) of the Agreement. Terms defined in the Agreement
not otherwise defined herein are used herein as therein defined.
In connection with the opinions expressed herein, I, or attorneys
reporting to me, have examined and relied upon copies of the following
documents:
(a) the Agreement, including all exhibits, schedules, and
attachments thereto, and any Notes issued pursuant thereto
(the "Notes");
(b) the Guaranty dated as of even date with the Agreement executed
by each of the Guarantors (the "Guaranty");
(c) Certificates of the Secretary of State of the State of
Delaware dated February ___, 2001, attesting to the continued
existence and good standing of the Transaction Parties in
Delaware; and
(d) the Organization Documents of the Transaction Parties and all
amendments thereto.
Those documents identified in items (a) and (b) above are collectively
referred to herein as the "Credit Documents." In connection with this opinion, I
or other attorneys acting under my supervision have (i) investigated such
questions of law, (ii) examined such partnership and company documents and
records of the Transaction Parties and certificates of public officials, and
(iii) received such information from officers and representatives of the
Transaction Parties and made such investigations as I or other attorneys under
my supervision have deemed necessary or appropriate for the purposes of this
opinion. I have not, nor have other attorneys under my supervision, conducted
independent investigations or inquiries to determine the existence of matters,
actions, proceedings, items, documents, facts, judgments, decrees,
Exhibit F-2
Page 1
Form of Opinion of Counsel
franchises, certificates, permits, or the like and have made no independent
search of the records of any court, arbitrator, or governmental authority
affecting any Person, and no inference as to my knowledge thereof shall be drawn
from the fact of my representation of any party or otherwise.
In rendering the opinions herein, I have assumed without independent
verification (i) the genuineness of all signatures of the Lenders and the
Administrative Agent, (ii) the capacity of the signing officers of each of the
Lenders and the Administrative Agent, (iii) the authenticity of all documents
submitted to me as original and the conformity with the authentic originals of
all documents submitted to me as copies, and (iv) the due execution and
delivery, pursuant to due authorization, of the Agreement by the Lenders and the
Administrative Agent and the enforceability of the Agreement against the Lenders
and the Administrative Agent.
Based upon and subject to the foregoing and the other qualifications,
limitations, and assumptions set forth below and upon such other matters as I
have deemed appropriate, I am of the opinion that:
1. The Borrower is a limited partnership duly organized, validly
existing, and in good standing under the laws of the State of
Delaware; WNGL is a limited liability company duly organized,
validly existing, and in good standing under the laws of the
State of Delaware; and each of WTH, WPH and WAP is a limited
partnership duly organized, validly existing, and in good
standing under the laws of the State of Delaware.
2. Each Transaction Party has the partnership or company power
and authority to own and lease its property and to conduct the
business in which it is currently engaged. The execution,
delivery, and performance by each of the Transaction Parties
of the Credit Documents and the consummation of the
transactions contemplated by the Credit Documents are (a)
within its partnership or company powers, (b) will not
contravene (i) the Organization Documents of any Transaction
Party, (ii) any law, rule, or regulation applicable to any
Transaction Party (including, without limitation, Regulation X
of the Board of Governors of the Federal Reserve System), or
(iii) any contractual or legal restriction, and (c) will not
result in or require the creation or imposition of any Lien
prohibited by the Credit Documents.
3. The Agreement has been duly authorized, executed, and
delivered to the Administrative Agent by the Borrower, and the
Guaranty has been duly authorized, executed, and delivered to
the Administrative Agent by each of the Guarantors.
4. No authorization, approval, or other action by, and no notice
to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery, and
performance by any Transaction Party of the Credit Documents
to which it is a party or the consummation of the transactions
contemplated by the Credit Documents, except, in the case of
such performance, for such authorizations, approvals, actions,
notices, and filings which have been made or obtained.
5. To my knowledge there are no pending or overtly threatened
actions or proceedings against any Transaction Party before
any court, governmental agency, or arbitrator that purport to
affect the legality, validity, binding effect, or
enforceability of the Credit Documents, or that would
reasonably be expected to have a materially adverse effect
upon the financial condition or operations of any Transaction
Party, taken as a whole.
Exhibit F-2
Page 2
Form of Opinion of Counsel
6. No Transaction Party is an "investment company" or a company
"controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended. No Transaction
Party is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or
of a "subsidiary company" of a "holding company," or a "public
utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
7. In any action or proceeding arising out of or relating to the
Credit Documents in any court of the State of Oklahoma or in
any Federal court sitting in the State of Oklahoma, assuming
(i) proper venue, jurisdiction, and a full and proper
presentation of the issues and the law to the court, (ii) such
action or proceeding is not dismissed on the basis of an
inconvenient forum, and (iii) that the court properly applies
Oklahoma law, such court would (a) recognize and give effect
to the provisions of the Credit Documents that set forth the
governing law, and (b) construe the Credit Documents in
accordance with the internal laws of the State of New York.
Subject to the foregoing and without limiting the generality
thereof, a court of the State of Oklahoma or a Federal court
sitting in the State of Oklahoma would apply the usury law of
the State of New York, and would not apply the usury law of
the State of Oklahoma, to the Credit Documents. However, if a
court were to hold that the Credit Documents are governed by
or are to be construed in accordance with the laws of the
State of Oklahoma, the Agreement, when executed and delivered
by the parties thereto, would be, under the laws of the State
of Oklahoma, legal, valid, and binding obligations of the
Borrower, enforceable against the Borrower in accordance with
its terms, and the Guaranty would be, under the laws of the
State of Oklahoma, legal, valid and binding obligations of
each Guarantor, enforceable against each Guarantor in
accordance with its terms.
The opinions expressed in this letter are subject to the following
additional qualifications and limitations:
A. My opinion in paragraph 1 with respect to the organization and
good standing of the Borrower, WNGL, WTH, WPH and WAP is based
solely on Certificates, dated as of February ___, 2001, from
the Secretary of State of the State of Delaware, certifying as
to such matters.
B. My opinion in the last sentence of paragraph 7 above is
subject, insofar as enforceability is concerned, to the effect
of any applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium, or similar law affecting
creditors' rights and remedies generally.
C. My opinion in the last sentence of paragraph 7 above is
subject, insofar as enforceability is concerned, to the effect
of general principles of equity including principles of
commercial reasonableness, good faith, and fair dealing
(regardless of whether considered in a proceeding in equity or
at law).
D. I express no opinion with respect to the enforceability of any
of the following: (i) indemnification provisions to the extent
the same are violative of federal or state securities laws,
rules, or regulations, or of public policy, (ii) clauses
waiving right to trial by jury,
Exhibit F-2
Page 3
Form of Opinion of Counsel
exculpation clauses, or clauses granting offset rights to the
Banks or against any deposits or in respect of matured claims,
(iii) clauses relating to recovery of attorneys' fees in
connection with the enforcement of obligations, (iv) clauses
relating to release of unmatured claims and integration
clauses to the effect that no representation was made other
than as appears in the Agreement, (v) clauses purporting to
waive unmatured rights, representations, warranties, or
affirmative or negative covenants to the extent such
representations, warranties, or covenants can be construed to
be independent clauses which purport to be legal, valid,
binding, and enforceable by themselves, as distinguished from
being clauses that trigger an event of default, and
severability and similar clauses, and (vi) clauses that
incorporate by reference a document or instrument or agreement
not in existence on the date hereof to the extent that any
such document, instrument, or agreement is the basis of an
effort to enforce the Agreement, insofar as any of the
foregoing are contained in the Agreement.
E. I express no opinion as to the effect on the opinions herein
stated of compliance or non-compliance by any Lender with any
applicable state, federal, or other laws or regulations
applying only to banks, or the legal or regulatory status of
any Lender.
F. My opinion in paragraph 7 above assumes (i) application of New
York law would not be found to be contrary to a fundamental
policy of a state with a materially greater interest in
determining the question presented and the laws of which would
govern in absence of an effective choice of law, and (ii) the
Syndication Agent, one of the Joint Lead Arrangers and Joint
Book Managers, and one or more Lenders, each have their
principal place of business located in the State of New York,
and one or more Lenders has a place of business located in the
State of New York.
G. Qualification of any statement or opinion herein by the use of
the words "to my knowledge" means that during the course of
representation in connection with the transactions
contemplated by the Agreement, no information has come to the
attention of me or attorneys reporting to me that would give
me or such attorneys current actual knowledge of the existence
of facts or matters so qualified. I have not undertaken any
investigation to determine the existence of facts, and no
inference as to my knowledge thereof shall be drawn from the
fact of the representation by me or attorneys reporting to me
of any party or otherwise.
I am admitted to practice law in the States of Oklahoma and New York,
and, accordingly, the opinions expressed herein are based upon and limited
exclusively to the laws of the States of Oklahoma and New York, the General
Corporation Law of the State of Delaware and the laws of the United States of
America insofar as any of such laws are applicable. I render no opinion with
respect to any other laws.
This opinion letter is solely for the benefit of the Lenders and the
Administrative Agent, their respective successors, assigns, participants, and
other transferees and counsel for the Persons referred to in this sentence, in
consummating the transaction contemplated by the Credit Documents, and may not
be used or relied upon by, quoted, transmitted to, or filed with any other
Person or for any other purpose whatsoever without in each instance my prior
written consent. This opinion speaks as of its date, and I undertake no, and
hereby expressly disclaim any, duty to advise you as to any changes of fact or
law coming to my attention after the date hereof.
Very truly yours,
Xxxxxxx X. xxx Xxxxx
Exhibit F-2
Page 4
Form of Opinion of Counsel
EXHIBIT G
PROMISSORY NOTE
_______________, 2000
XXXXXXXX OLP, L.P. (the "BORROWER") promises to pay to the order of
________________ ("HOLDER"), upon the earlier of demand (provided, however, that
no demand may be made prior to Permitted Demand Date) or the Stated Termination
Date, the aggregate unpaid principal amount of Advances made by Holder to the
Borrower hereunder, in immediately available funds at the main office of Holder,
together with interest on the unpaid principal amount hereof at the rate set
forth herein. Capitalized terms used herein and not otherwise defined shall have
the meaning set forth in Exhibit A attached hereto and made a part of this
Promissory Note.
Holder shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record, the date and amount of each Advance and
the date and amount of each principal payment hereunder and such recording shall
be conclusive and binding for all purposes, absent manifest error; provided
however, that the failure to so record shall not affect the Borrower's
obligations under this Promissory Note.
Interest shall be computed on the basis of a year of 360 days for the
actual number of days elapsed at the Eurodollar Rate per annum plus the
Applicable Margin in effect from time to time. The interest rate will be a fixed
rate for the entire calendar month commencing on the first calendar day of the
month and ending on the last calendar day of the month. The Borrower shall pay
interest on the unpaid principal amount monthly on the 25th date of each month,
and on the date of payment in full.
Any amount of principal not paid when due shall bear interest, from the
date on which such amount is due until such amount is paid in full, at a rate
per annum equal to the sum of the rate per annum required to be paid on the
Advance plus 2% per annum.
No failure to exercise, and no delay in exercising any rights hereunder
on the part of the holders hereof shall operate as a waiver of such rights.
The undersigned agrees to pay all costs, including reasonable
attorney's fees, incurred by the holder in enforcing payment hereof.
The Borrower agrees, and Holder as holder of this Promissory Note and
by acceptance of this Promissory Note agrees, that the payment of any principal,
interest or penalty under this Promissory Note is expressly subordinated to the
Senior Debt for the benefit of the Administrative Agent and the Lenders, as
follows:
1. Subordination of Payment. After such time as a Default or Event of
Default (as defined in the OLP Credit Agreement) has occurred and is continuing,
Holder will not ask for, demand, xxx for, take, receive or accept from the
Borrower, by setoff or in any other manner, any payment or distribution on
account of the obligations evidenced by this Promissory Note, nor present this
Promissory Note for payment.
2. No Payments in Violation of Senior Debt Documents. Holder will not
ask for, demand, xxx for, take, receive or accept from the Borrower, by setoff
or in any other manner, any payment or distribution on account of the debt
evidenced by this Promissory Note, if the making of such payment
Exhibit G
Page 1
Form of Promissory Note
would constitute, or would result in the occurrence of, a violation of the OLP
Credit Agreement, or would result in the occurrence of any Default or Event of
Default thereunder.
3. Bankruptcy, Receivership and Similar Proceedings.
(a) Upon any payment or distribution of all or any of the
assets or securities of the Borrower of any kind or character, whether in cash,
property or securities, upon dissolution, winding up, liquidation,
reorganization, arrangement, adjustment, protection or relief of the Borrower or
its debts whether voluntary or involuntary or in bankruptcy, insolvency,
receivership, arrangement, reorganization, relief or other proceedings (an
"INSOLVENCY PROCEEDING") or upon an arrangement for the benefit of creditors or
any other marshalling of the assets and liabilities of the Borrower or
otherwise, all Senior Debt shall first be paid in full in cash before the Holder
shall be entitled to receive any payment of the obligations evidenced by this
Promissory Note. Upon any of the circumstances referred to in the preceding
sentence, any payment or distribution of assets or securities of the Borrower of
any kind or character, whether in cash, property or securities, to which Holder
would be entitled except for the provisions of Sections 1 through 6 of this
Promissory Note, shall be made by the Borrower or any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, directly to the Administrative Agent for the benefit of the
Lenders for application to the payment or prepayment of all Senior Debt in full.
(b) In the event of any Insolvency Proceeding, whether or not
pursuant to bankruptcy laws, Holder will at the Administrative Agent's request
file any claim, proof of claim, proof of interest or other instrument of similar
character necessary to enforce the obligations of the Borrower in respect to the
debt evidenced by this Promissory Note and will hold all payments on and
proceeds from such debt evidenced by this Promissory Note in trust for the
Administrative Agent and the Lenders and pay the same over to the Administrative
Agent in the form received (together with any necessary endorsement), to be
applied on the Senior Debt remaining unpaid until all Senior Debt shall be paid
in full. In the event that Holder shall fail to take any such action requested
by the Administrative Agent, the Administrative Agent may, as attorney-in-fact
for Holder, take such action on behalf of Holder and Holder hereby appoints the
Administrative Agent as attorney-in-fact for Holder to demand, xxx for, collect
and receive any and all such monies, dividends or other assets and give
acquittance therefor and to file any claim, proof of claim, proof of interest or
other instrument of similar character and take such other proceeding in the
Administrative Agent's own name or in the name of Holder as the Administrative
Agent may deem necessary or advisable for the enforcement of these subordination
provisions; this appointment is irrevocable and is coupled with an interest in
such monies, dividends and assets. Holder will execute and deliver to the
Administrative Agent such other and further powers of attorney or other
instruments as the Administrative Agent may request in order to accomplish the
foregoing.
4. Payments Held in Trust. In the event Holder shall receive any
payment or distribution on account of the debt evidenced by this Promissory Note
which Holder is prohibited from receiving under the provisions of the foregoing
paragraphs 1, 2 or 3, Holder will hold any amount so received in trust for the
Administrative Agent and the Lenders and will forthwith turn over such payment
to the Administrative Agent in the form received by Holder (together with any
necessary endorsement) to be applied on the Senior Debt remaining unpaid until
all Senior Debt has been paid in full, after giving effect to any concurrent
payment or distribution to the Administrative Agent.
5. Restrictions on Action Against Borrower. Holder will not commence
any action or proceeding against the Borrower to recover all or any part of the
debt evidenced by this Promissory Note, nor join with any other creditor, unless
the Administrative Agent shall also join, in bringing any proceedings against
the Borrower under any bankruptcy, reorganization, readjustment of debt,
arrangement
Exhibit G
Page 2
Form of Promissory Note
of debt, receivership, liquidation or insolvency law, or statute of the federal
or any state government, unless and until all Senior Debt shall have been paid
in full and all commitments to lend under the OLP Credit Agreement have
terminated.
6. Miscellaneous.
(a) All rights and interests of Lenders and the Administrative
Agent under Sections 1 through 6 of this Promissory Note, and all agreements and
obligations of the Holder and the Borrower under such Sections, shall remain in
full force and effect irrespective of: (i) any lack of validity or
enforceability of the OLP Credit Agreement or the other OLP Loan Documents; (ii)
any change in the time, manner or place of payment of, or in any other term of,
all or any of the Senior Debt, or any other amendment or waiver of or any
consent to departure from the OLP Credit Agreement or the other OLP Loan
Documents; (iii) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any guaranty,
for all or any of the Senior Debt; or (iv) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower or
a subordinated creditor.
(b) The provisions of these Sections 1 through 6 shall
continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the Senior Debt is rescinded or must otherwise be returned
by the Administrative Agent or any Lender upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment had not
been made.
(c) No failure on the part of the Administrative Agent or any
Lender 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.
(d) The provisions of these Sections 1 through 6 shall (i)
remain in full force and effect until the Senior Debt shall have been paid in
full and all commitments to lend under the OLP Credit Agreement have terminated,
(ii) be binding upon the Holder, the Borrower and their successors and assigns,
and (iii) inure to the benefit of and be enforceable by the Administrative Agent
and the Lenders and their successors, transferees and assigns.
This Promissory Note shall be governed by and construed in accordance
with the laws of the State of Oklahoma and reflects an uncommitted credit
arrangement between the Borrower and Holder.
XXXXXXXX XXX, X.X.
By:
----------------------------------------
Name:
Title:
Exhibit G
Page 3
Form of Promissory Note
EXHIBIT A
"ADVANCE" means any advance by Holder to the Borrower of funds
evidenced by the Promissory Note.
"APPLICABLE MARGIN" means the rate per annum set forth in Schedule XI
of the Credit Agreement under the heading "Applicable Margin" for the relevant
Rating Category applicable to Holder as of 10:00 A.m. on the first day of each
month. If the first day of the month is not a business day, the previous
business day's Rating Category applicable to Holder will prevail. The Applicable
Margin shall change when and as the relevant Rating Category applicable to
Holder changes.
"CITIBANK" means Citibank, N.A.
"COMMITMENT DRAWN": means the total amount drawn by the Credit
Agreement Borrowers under the Credit Agreement.
"CREDIT AGREEMENT" means that certain Credit Agreement as may be
amended from time to time, among Holder, Northwest Pipeline Corporation,
Transcontinental Gas Pipe Line Corporation, and Texas Gas Transmission
Corporation, (collectively, the "CREDIT AGREEMENT BORROWERS"), Citibank, N.A.,
as Agent, and the banks parties thereto.
"EURODOLLAR RATE" means an interest per annum (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such rate is not such a
multiple) equal to the rate per annum at which deposits in U.S. dollars are
offered by the principal office in London, England, to prime banks in the London
interbank market at 11:00 A.M. (London time) as reported by Citibank's telephone
recorded rate announcement ("TRRA") on the first day of each month, obtained by
calling (000) 000-0000. If the first day of the month is not a business day, the
previous day's rate will prevail. The Eurodollar Rate may also be referred to as
LIBOR or the LIBOR rate ("LONDON INTERBANK OFFERED RATE") by the TRRA.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"OLP CREDIT AGREEMENT" means that certain Credit Agreement dated as of
February 6, 2001, as may be amended and restated from time to time, among the
Borrower, Bank of America, N.A., as Administrative Agent (the "ADMINISTRATIVE
AGENT") the other agents therein named, and the lenders from time to time party
thereto (the "LENDERS").
"OLP LOAN DOCUMENTS" means the Loan Documents as defined in the OLP
Credit Agreement, as such Loan Documents may from time to time be amended and
restated.
"PERMITTED DEMAND DATE" means the date that is six months after the
Maturity Date as defined in the OLP Credit Agreement, or if earlier, the date
that all amounts owed under the OLP Credit Agreement have been paid in full and
all Commitments to lend thereunder have been terminated.
"RATING CATEGORY" means, as to Holder, the relevant category applicable
to Holder from time to time as set forth in Schedule XI of the Credit Agreement,
which is based on the ratings (or lack thereof) of Holder's senior unsecured
long-term debt by S&P or Moody's.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw
Hill Companies, Inc.
Exhibit G
Page 4
Form of Promissory Note
"SENIOR DEBT" means (a) all Obligations of Borrower as defined in the
OLP Credit Agreement, and all obligations of Borrower to any Lender or any
Affiliate (as defined in the OLP Credit Agreement) of a Lender arising from or
pursuant to any Swap Contract, in each case due or to become due, now existing
or hereafter arising, and (b) all indebtedness of the Borrower the proceeds of
which are used to refinance the foregoing Senior Debt, in each case including
without limitation interest that occurs after the commencement by or against the
Borrower of any proceeding under any bankruptcy, reorganization, readjustment of
debt, arrangement of debt, receivership, liquidation or insolvency law, or
statute of the federal or any state government naming Borrower as the debtor in
such proceeding.
"STATED TERMINATION DATE" has the meaning set forth in the Credit
Agreement.
"SWAP CONTRACT" has the meaning set forth in the OLP Credit Agreement.
Exhibit G
Page 5
Form of Promissory Note
Daily Intercompany Promissory Note Balance and Interest Calculation
Lender: THE XXXXXXXX COMPANIES, INC.
Borrower: XXXXXXXX OLP, L.P.
Account:
Month, Year:
----------
TERMS
Rate:
----------
Beginning Ending
Date Balance Debits Credits Balance Interest
---- --------- ------ ------- ------- --------
Exhibit G
Page 6
Form of Promissory Note
FIRST AMENDMENT TO CREDIT AGREEMENT
AND LIMITED WAIVER
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND LIMITED WAIVER (this
"AMENDMENT") is entered into as of July 31, 2001, among XXXXXXXX XXX, X.X., a
Delaware limited partnership ("BORROWER"), the undersigned Guarantors
("GUARANTORS"), BANK OF AMERICA, N.A., as Administrative Agent (the
"ADMINISTRATIVE AGENT") for the Lenders under the Credit Agreement hereinafter
referenced, and the Lenders (as defined in the Credit Agreement) party hereto.
Reference is made to the Credit Agreement dated as of February 6, 2001
(the "CREDIT AGREEMENT") among Borrower, Administrative Agent, Xxxxxx Commercial
Paper, Inc., as Syndication Agent, SunTrust Bank as Documentation Agent, and the
Lenders party thereto. Unless otherwise defined in this Amendment, capitalized
terms used herein shall have the meaning set forth in the Credit Agreement; all
Section and Schedule references herein are to Sections and Schedules in the
Credit Agreement; and all Paragraph references herein are to Paragraphs in this
Amendment.
RECITALS
A. Borrower has advised the Administrative Agent and the Lenders that
as of March 31, 2001, the Interest Coverage Ratio was 2.3 to 1.0, which is lower
than the 3.0 Interest Coverage Ratio required by SECTION 7.14(a) of the Credit
Agreement. Borrower has advised that this is the result of including, in such
calculation, interest expense with respect to approximately $225,000,000 of
intercompany debt that was repaid with proceeds of the MLP Offering. Therefore,
Borrower has requested that the Administrative Agent and the Lenders agree to
waive such Interest Coverage Ratio default, and to amend the definition of
Interest Coverage Ratio. Borrower also has requested amendments to the Credit
Agreement to allocate a portion of the Revolver Commitment from the Working
Capital/Distribution Subfacility to the Acquisition Subfacility so that the
Acquisition Subfacility Commitment equals $48,000,000 and the Working
Capital/Distribution Subfacility Commitment equals $12,000,000. In addition to
this First Amendment, Borrower also has requested that the Administrative Agent
and the Lenders enter into a Second Amendment to Credit Agreement to increase
the Revolver Commitment from $60,000,000 to an amount up to $85,000,000 by
increasing the Acquisition Subfacility from $48,000,000 to an amount up to
$73,000,000.
B. Subject to the terms and conditions of this Amendment, the
Administrative Agent and the undersigned Lenders are willing to agree to such
amendments.
Accordingly, for adequate and sufficient consideration, the parties
hereto agree, as follows:
PARAGRAPH 1. LIMITED WAIVER. The undersigned Administrative Agent and
Lenders hereby waive the Event of Default under SECTION 7.14(a) of the Credit
Agreement resulting from the Interest Coverage Ratio being less than 3.0 to 1.0
as of the fiscal quarter ending March 31, 2001. Nothing herein shall, or shall
be deemed to, waive the provisions of SECTION 7.14(a) or any other provisions of
the Credit Agreement, except as expressly set forth above with respect to the
Interest Coverage Ratio as of March 31, 2001.
1 FIRST AMENDMENT TO CREDIT AGREEMENT
PARAGRAPH 2. AMENDMENTS.
2.1 DEFINITIONS.
(a) The definition of "ACQUISITION SUBFACILITY COMMITMENT" is amended
in its entirety to read as follows:
"ACQUISITION SUBFACILITY COMMITMENT means an amount (subject
to reduction or cancellation as herein provided) equal to
$48,000,000.00."
(b) The definition of "INTEREST COVERAGE RATIO" is amended in its
entirety to read as follows:
"INTEREST COVERAGE RATIO" means (1) as of June 30, 2001 and as
of September 30, 2001 (each, a "DETERMINATION DATE") the ratio
of (a) the sum of (i) Consolidated EBITDA for the period from
January 1, 2001 through such Determination Date and (ii)
Consolidated Lease and Rental Expense during such period to
(b) the sum of (i) Consolidated Interest Charges during such
period and (ii) Consolidated Lease and Rental Expense during
such period, and (2) as of the last day of the fiscal quarter
ending on December 31, 2001 and as of the last day of each
fiscal quarter thereafter the ratio of (a) the sum of (i)
Consolidated EBITDA for the period of the four prior fiscal
quarters ending on such date and (ii) Consolidated Lease and
Rental Expense during such period to (b) the sum of (i)
Consolidated Interest Charges during such period and (ii)
Consolidated Lease and Rental Expense during such period. For
purposes of calculating the Interest Coverage Ratio,
Consolidated Interest Charges for the fiscal quarter ending
March 31, 2001 shall be calculated on a pro forma basis based
on Consolidated Interest Charges for the period from February
6, 2001 through March 31, 2001."
(c) The definition of "WORKING CAPITAL/DISTRIBUTION SUBFACILITY
COMMITMENT" is amended in its entirety to read as follows:
"WORKING CAPITAL/DISTRIBUTION SUBFACILITY COMMITMENT means an
amount (subject to reduction or cancellation as herein
provided) equal to $12,000,000.00."
2.2 SCHEDULE 2.01. SCHEDULE 2.01 is hereby deleted in its entirety and
SCHEDULE 2.01 attached hereto is substituted in lieu thereof.
2.3 EXHIBITS.
(a) EXHIBIT A-1 is hereby deleted in its entirety and EXHIBIT A-1
attached hereto is substituted in lieu thereof.
(b) EXHIBIT C-1 is hereby deleted in its entirety and EXHIBIT C-1
attached hereto is substituted in lieu thereof.
2 FIRST AMENDMENT TO CREDIT AGREEMENT
PARAGRAPH 3. EFFECTIVE DATE. Notwithstanding any contrary provision,
this Amendment is not effective until the date (the "EFFECTIVE DATE") the
Administrative Agent shall have received counterparts of this Amendment,
executed by Borrower, Guarantors and the Required Lenders.
PARAGRAPH 4. ACKNOWLEDGMENT AND RATIFICATION. As a material inducement
to the Administrative Agent and the Lenders to execute and deliver this
Amendment, Borrower and each Guarantor (a) consent to the agreements in this
Amendment and (b) agree and acknowledge that the execution, delivery, and
performance of this Amendment shall in no way release, diminish, impair, reduce,
or otherwise affect the respective obligations of Borrower or any Guarantor
under the Loan Documents to which it is a party, which Loan Documents shall
remain in full force and effect, and all guaranties and Rights thereunder are
hereby ratified and confirmed.
PARAGRAPH 5. REPRESENTATIONS. As a material inducement to the
Administrative Agent and the Lenders to execute and deliver this Amendment,
Borrower and each Guarantor represent and warrant to the Administrative Agent
and the Lenders that as of the Effective Date of this Amendment and as of the
date of execution of this Amendment, (a) all representations and warranties in
the Loan Documents are true and correct in all material respects as though made
on the date hereof, except to the extent that any of them speak to a different
specific date, and (b) after taking into account the waiver in Paragraph 1 of
this Amendment, no Default or Event of Default exists.
PARAGRAPH 6. EXPENSES. Borrower shall pay all reasonable costs, fees,
and expenses paid or incurred by the Administrative Agent incident to this
Amendment, including, without limitation, the fees and expenses of the
Administrative Agent's counsel in connection with the negotiation, preparation,
delivery, and execution of this Amendment and any related documents.
PARAGRAPH 7. MISCELLANEOUS. This Amendment is a "Loan Document"
referred to in the Credit Agreement. The provisions relating to Loan Documents
in ARTICLE 10 of the Credit Agreement are incorporated in this Amendment by
reference. Unless stated otherwise (a) the singular number includes the plural
and vice versa and words of any gender include each other gender, in each case,
as appropriate, (b) headings and captions may not be construed in interpreting
provisions, (c) this Amendment must be construed, and its performance enforced,
under New York law, (d) if any part of this Amendment is for any reason found to
be unenforceable, all other portions of it nevertheless remain enforceable, and
(e) this Amendment may be executed in any number of counterparts with the same
effect as if all signatories had signed the same document, and all of those
counterparts must be construed together to constitute the same document.
PARAGRAPH 8. ENTIRE AGREEMENT. THIS AMENDMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AMENDMENT 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.
PARAGRAPH 9. PARTIES. This Amendment binds and inures to the benefit of
Borrower, Guarantors, Administrative Agent, Lenders, and their respective
successors and assigns.
PARAGRAPH 10. FURTHER ASSURANCES. The parties hereto each agree to
execute from time to time such further documents as may be necessary to
implement the terms of this Agreement.
3 FIRST AMENDMENT TO CREDIT AGREEMENT
The parties hereto have executed this Amendment in multiple
counterparts to be effective as of the Effective Date.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES TO FOLLOW.
4 FIRST AMENDMENT TO CREDIT AGREEMENT
BORROWER:
XXXXXXXX XXX, X.X.
By: XXXXXXXX XX LLC, its
General Partner
By: /s/ Xxx X. Xxxxxxxxxx
---------------------
Name: Xxx X. Xxxxxxxxxx
--------------------------------------
Title: Vice President, Strategic Development
--------------------------------------
& Planning
--------------------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
GUARANTORS:
XXXXXXXX NGL, LLC
By: /s/ Xxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxxxxxx
-----------------------------------------
Title: Vice President, Strategic Development
----------------------------------------
& Planning
----------------------------------------
XXXXXXXX TERMINALS HOLDING L.P.
By: XXXXXXXX NGL, LLC, its
General Partner
By: /s/ Xxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxxxxxx
-----------------------------------------
Title: Vice President, Strategic Development
----------------------------------------
& Planning
----------------------------------------
XXXXXXXX PIPELINES HOLDINGS L.P.
By: XXXXXXXX NGL, LLC, its
General Partner
By: /s/ Xxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxxxxxx
-----------------------------------------
Title: Vice President, Strategic Development
----------------------------------------
& Planning
----------------------------------------
XXXXXXXX AMMONIA PIPELINE L.P.
By: XXXXXXXX NGL, LLC, its
General Partner
By: /s/ Xxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxx X. Xxxxxxxxxx
-----------------------------------------
Title: Vice President, Strategic Development
----------------------------------------
& Planning
----------------------------------------
BANK OF AMERICA, N.A., as Administrative Agent
and as a Lender
By: /s/ Xxxxxx X. Xxx
-----------------------------------------
Xxxxxx X. Xxx
Managing Director
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
XXXXXX COMMERCIAL PAPER, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------
Title: Authorized Signatory
-----------------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
SUNTRUST BANK
By: /s/ Xxxxx X. Edge
--------------------------------------
Name: Xxxxx X. Edge
------------------------------------
Title: Director
-----------------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
ABN AMRO BANK, N.V.
By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
------------------------------------
Title: Group Vice President
-----------------------------------
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: Vice President
-----------------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------
Title: Sr. Vice President
-----------------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
BANK ONE, NA
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
BARCLAYS BANK PLC
By: /s/ Xxxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxx
------------------------------------
Title: Director
-----------------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------
By: /s/ Xxxxx Xxx
--------------------------------------
Name: Xxxxx Xxx
------------------------------------
Title: Vice President
-----------------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
------------------------------------
Title: Vice President
-----------------------------------
By: /s/ Xxxxx X. Xxxxxxx, III
--------------------------------------
Name: Xxxxx X. Xxxxxxx, III
------------------------------------
Title: Group Manager
-----------------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxxx X. Saint
--------------------------------------
Name: Xxxxxxx X. Saint
------------------------------------
Title: Associate Director, Banking
-----------------------------------
Products Services, US
-----------------------------------
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx
-----------------------------------
Associate Director, Banking
-----------------------------------
Products Services, US
-----------------------------------
[SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
SCHEDULE 2.01
COMMITMENTS
LENDER REVOLVING FACILITY TERM LOAN FACILITY
------ --------------------------------------------------------- ------------------
Working Capital/
Acquisition Subfacility Distribution Subfacility
----------------------- ------------------------
Bank of America $4,800,000.00 $1,200,000.00 $9,000,000.00
Xxxxxx Commercial Paper, Inc. $4,800,000.00 $1,200,000.00 $9,000,000.00
SunTrust Bank $5,600,000.00 $1,400,000.00 $10,500,000.00
ABN AMRO Bank, N.V. $5,600,000.00 $1,400,000.00 $10,500,000.00
National Westminster Bank Plc $5,600,000.00 $1,400,000.00 $10,500,000.00
Bank One, NA $4,800,000.00 $1,200,000.00 $9,000,000.00
Barclays Bank Plc $4,800,000.00 $1,200,000.00 $9,000,000.00
Bayerische Landesbank $4,800,000.00 $1,200,000.00 $9,000,000.00
Girozentrale
UBS AG, Stamford Branch $4,000,000.00 $1,000,000.00 $7,500,000.00
Natexis Banques Populaires $3,200,000.00 $ 800,000.00 $6,000,000.00
Total: $48,000,000 $12,000,000 $90,000,000
SCHEDULE 2.01
EXHIBIT A-1
FORM OF BORROWING NOTICE
Date: ,
----------- -----
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of February 6, 2001
(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 Xxxxxxxx OLP, L.P., a Delaware limited partnership
(the "BORROWER"), the Lenders from time to time party thereto, Bank of America,
N.A., as Administrative Agent, Xxxxxx Commercial Paper, Inc., as Syndication
Agent, and SunTrust Bank, as Documentation Agent.
The undersigned hereby requests (select one):
I. REVOLVER FACILITY
A. Acquisition Subfacility
1. Status Information for the Acquisition Subfacility
(a) Amount of the Acquisition Subfacility:
$48,000,000
(b) Acquisition Subfacility Principal Debt prior
to the Borrowing requested herein:
$
-------------
(c) Principal amount of Loans under the
Acquisition Subfacility available to be
borrowed: $
--------------
2. Amount of Borrowing: $
-----------
3. Requested date of Borrowing: , 200 .
---------------- --
4. Requested Type of Loan and applicable Dollar amount:
(a) Base Rate Loan for $ .
-----------------------
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
Exhibit A-1
Page 1
Form of Borrowing Notice
B. Working Capital/Distribution Subfacility
1. Status Information for the Working
Capital/Distribution Subfacility
(a) Amount of the Working Capital/Distribution
Subfacility: $12,000,000
(b) Working Capital/Distribution Subfacility
Principal Debt prior to the Borrowing
requested herein: $
------------
(c) Principal amount of Loans under the Working
Capital/Distribution Subfacility available
to be borrowed (prior to the following
requested herein) (1(a) minus 1(b)):
$
-----------------
2. Amount of Borrowing: $
---------------
3. Requested date of Borrowing: , 200 .
------------- --
4. Requested Type of Loan and applicable Dollar amount:
(a) Base Rate Loan for $ .
----------------------
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
5. Purpose of Loan:
Working Capital
---
To fund Quarterly Distribution (SECTION 6.11(c)
--- (ii) of the Agreement)
6. If the Loan is for the purpose of funding Quarterly
Distribution: Amount remaining undrawn under the
Working Capital/Distribution Subfacility after giving
effect to the Borrowing herein requested is:
$ (must be not less than $9,000,000)
-----------------
II. Term Loan Facility
1. Amount of Borrowing: $
------------
2. Requested date of Borrowing: , 200 .
---------------- --
3. Requested Type of Loan and applicable Dollar amount:
Exhibit A-1
Page 2
Form of Borrowing Notice
(a) Base Rate Loan for $ .
-----------------------
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
The undersigned hereby certifies that the following statements will be true on
the date of the proposed Borrowing(s) after giving effect thereto and to the
application of the proceeds therefrom:
(a) the representations and warranties of the Borrower
contained in ARTICLE V of the Agreement are true and correct as though made on
and as of such date (except such representations and warranties which expressly
refer to an earlier date, which are true and correct as of such earlier date);
and
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Borrowing(s).
The Borrowing requested herein complies with SECTIONS 2.01, 2.02 and 2.03 of the
Agreement, as applicable.
XXXXXXXX XXX, X.X.
By Xxxxxxxx XX LLC, its
General Partner
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Exhibit A-1
Page 3
Form of Borrowing Notice
EXHIBIT C-1
FORM OF COMPLIANCE CERTIFICATE
(Pursuant to SECTION 6.02 of the Agreement)
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 February 6, 2001
(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 Xxxxxxxx XXX, X.X., a Delaware limited partnership
(the "BORROWER"), the Lenders from time to time party thereto, Bank of America,
N.A., as Administrative Agent, Xxxxxx Commercial Paper, Inc., as Syndication
Agent, and SunTrust Bank, as Documentation Agent. Capitalized terms used herein
but not defined herein shall have the meaning set forth in the Agreement.
The undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the _____________________________________________________________ of
the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:
[Use following for fiscal year-end financial statements]
1. Attached hereto as SCHEDULE 1 are the year-end unaudited financial statements
required by SECTION 6.01(b) of the Agreement for the fiscal year of the Borrower
ended as of the above date. Such financial statements fairly present 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. Attached hereto as SCHEDULE 2 are the year-end audited financial statements
required by SECTION 6.01(d) of the Agreement for the fiscal year of the MLP
ended as of the above date, together with the report and opinion of an
independent certified public accountant required by such section.
[Use following for fiscal quarter-end financial statements]
1. Attached hereto as SCHEDULE 1 are the unaudited financial statements required
by SECTION 6.01(c) of the Agreement for the fiscal quarter of the Borrower ended
as of the above date. Such financial statements fairly present 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. Attached hereto as SCHEDULE 3 are the unaudited financial statements required
by SECTION 6.01(d) of the Agreement for the fiscal quarter of the MLP ended as
of the above date, together with a certificate of a Responsible Officer of the
MLP stating that such financial statements fairly present the financial
condition, results of operations and cash flows of the MLP and its Subsidiaries
in accordance with GAAP
Exhibit C-1
Page 1
Form of Compliance Certificate
as at such date and for such period, subject only to normal year-end audit
adjustments and the absence of footnotes.
[Use the following for both fiscal year-end and quarter-end financial
statements]
3. 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 the attached financial
statements.
4. 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 no Default or Event of Default has
occurred and is continuing except as follows (list of each such Default or Event
of Default and include the information required by SECTION 6.03 of the Credit
Agreement):
[ ]
5. The covenant analyses and information set forth on SCHEDULE 2 attached hereto
are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________, ________.
XXXXXXXX XXX, X.X.
By: Xxxxxxxx XX LLC, its
General Partner
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
For the Quarter/Year ended ___________________ ("STATEMENT DATE")
Exhibit C-1
Page 2
Form of Compliance Certificate
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 2.01(a) - Acquisition Subfacility ($48,000,000)
A. Acquisition Subfacility Principal Debt on the first day of
the most recently ended fiscal quarter (the "SUBJECT
Quarter"): $
-----------
B. Borrowings under the Acquisition Subfacility during the
Subject Quarter (list each by the date and $ amount of the
Borrowing): Date $Amount
---- ------
C. Borrowings repaid under the Acquisition Subfacility during the
Subject Quarter (list each by the date and $ amount of the
repayment): Date $Amount
---- ------
D. Acquisition Subfacility Principal Debt on the last day of
the Subject Quarter: $
-----------
E. On any day during the Subject Quarter, did the Acquisition
Subfacility Principal Debt exceed $48,000,000?
YES/NO
II. SECTION 2.01(b) - Working Capital/Distribution Subfacility
($12,000,000)
A. Working Capital/Distribution Subfacility Principal Debt on
the first day of the Subject Quarter: $
-----------
B. Borrowings under the Working Capital/Distribution Subfacility
to fund working capital requirements of the Borrower and its
Subsidiaries (list each by the date and $ amount of the
Borrowing): Date $Amount
---- ------
C. Borrowings under the Working Capital/Distribution Subfacility
to fund Quarterly Distributions (list each by the date and
$ amount of the Borrowing): Date $Amount
---- ------
D. Borrowings repaid under the Working Capital/Distribution
Subfacility (list each by the date and $ amount of the
repayment): Date $Amount
---- ------
Exhibit C-1
Page 3
Form of Compliance Certificate
E. Working Capital/Distribution Subfacility Principal Debt on
the last day of the Subject Quarter: $
-----------
F. On any day during the Subject Quarter, did the Working
Capital/Distribution Subfacility Principal Debt exceed
$12,000,000? YES/NO
G. On the date of each Borrowing under the Working
Capital/Distribution Subfacility (after giving effect to
such Borrowing), was the undrawn amount of Working
Capital/Distribution Subfacility Commitment $9,000,000 or
more? (SECTION 2.01(b)) YES/NO
III. SECTION 6.13 - Clean Down Period for Working Capital/Distribution
Subfacility
A. One clean down period of fifteen (15) consecutive days
during the twelve (12) month period beginning on the Initial
Funding Date, and for a period of fifteen (15) consecutive
days each twelve (12) month period thereafter is required.
For the current twelve (12) month period, describe the clean
down period (period of consecutive days (and dates) during
the current twelve (12) month period that the Working
Capital/Distribution Subfacility Principal Debt = $0.00):
# of Days Dates
IV. SECTION 7.03 - Indebtedness
A. Principal amount of purchase money indebtedness outstanding
(SECTION 7.03(c)): $
-----------
Maximum permitted $5,000,000
B. Principal amount of unsecured Indebtedness and Synthetic
Leases permitted pursuant to SECTION 7.03(d):
1. Amount of unsecured Indebtedness: $
-----------
2. Amount of Synthetic Leases: $
-----------
3. Aggregate amount of unsecured Indebtedness and
Synthetic Leases under SECTION 7.03(d) (IV.B.1 +
IV.B.2): $
-----------
Maximum permitted: $75,000,000.
Exhibit C-1
Page 4
Form of Compliance Certificate
C. Principal amount of Permitted Affiliated Subordinated Debt
outstanding (SECTION 7.03(e)): $
-----------
Maximum permitted: $50,000,000
V. SECTION 7.14(a) - Interest Coverage Ratio.
A. Consolidated EBITDA for the relevant period (as specified in
the definition of "Interest Coverage Ratio") ending on above
date ("SUBJECT PERIOD"):
1. Consolidated Net Income for Subject Period: $
-----------
2. Consolidated Interest Charges for Subject Period: $
-----------
3. Provision for income taxes for Subject Period: $
-----------
4. Depreciation expenses for Subject Period: $
-----------
5. Amortization expenses for intangibles for Subject
Period: $
-----------
6. Consolidated EBITDA (prior to pro forma adjustments
for Asset Acquisitions pursuant to SECTION
7.14(c)(i)) (Lines V.A.1 + 2 + 3 + 4 + 5): $
-----------
7. Pro forma adjustments to EBITDA for Asset
Acquisitions during the Subject Period (SECTION
7.14(c)(i)), giving effect to such Asset Acquisitions
on a pro forma basis for the Subject Period as if
such Asset Acquisitions occurred on the first day of
the Subject Period: $
-----------
8. Consolidated EBITDA, including pro forma
adjustments for Asset Acquisitions (Lines V.A.6 +
V.A.7): $
-----------
B. Consolidated Interest Charges for Subject Period:
1. Consolidated Interest Charges for the Subject
Period: $
----------
Exhibit C-1
Page 5
Form of Compliance Certificate
2. Pro forma adjustment for the Subject Period: $
----------
3. Consolidated Interest Charges, including pro forma
adjustments (Lines V.B.1 + V.B.2): $
----------
C. Consolidated Lease and Rental Expense for Subject Period:
1. Consolidated Lease and Rental Expense for the
Subject Period: $
----------
2. Pro forma adjustment for Consolidated Lease and
Rental Expense during the Subject Period: $
----------
3. Consolidated Lease and Rental Expense, including
pro forma adjustments (Lines V.C.1 + V.C.2): $
----------
D. Interest Coverage Ratio:
1. Consolidated EBITDA adjusted for Asset Acquisitions
(Line V.A.8): $
----------
2. Consolidated Interest Charges adjusted for Asset
Acquisitions (Line V.B.3): $
----------
3. Consolidated Lease and Rental Expense, including pro
forma adjustments (Line V.C.3): $
----------
4. Interest Coverage Ratio (Line V.D.1 + Line V.D.3))
(Line V.D.2 + Line V.D.3): to 1.0
-----
Minimum required: 3.0:1.0
VI. SECTION 7.14(b) - Leverage Ratio
A. Consolidated Total Debt: $
----------
B. Permitted Affiliate Subordinated Debt: $
----------
C. Consolidated Total Debt excluding Permitted Affiliate
Subordinated Debt (Line VI.A minus Line VI.B): $
----------
Exhibit C-1
Page 6
Form of Compliance Certificate
D. Consolidated EBITDA (including pro forma adjustments for
Asset Acquisitions) (Line V.A.8 above): $
----------
E. Leverage Ratio (Line VI.C / Line VI.D):
Maximum permitted: 4.0:1.0 to 1.0
-----
Exhibit C-1
Page 7
Form of Compliance Certificate
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is entered
into as of July 31, 2001, among XXXXXXXX XXX, X.X., a Delaware limited
partnership ("BORROWER"), the undersigned Guarantors ("GUARANTORS"), BANK OF
AMERICA, N.A., as Administrative Agent (the "ADMINISTRATIVE AGENT") for the
Lenders under the Credit Agreement hereinafter referenced, and the Lenders (as
defined in the Credit Agreement) party hereto.
Reference is made to the Credit Agreement dated as of February 6, 2001
(the "CREDIT AGREEMENT") among Borrower, Administrative Agent, Xxxxxx Commercial
Paper, Inc., as Syndication Agent, SunTrust Bank as Documentation Agent, and the
Lenders party thereto, as amended by that certain First Amendment to Credit
Agreement dated as of July 31, 2001. Unless otherwise defined in this Amendment,
capitalized terms used herein shall have the meaning set forth in the Credit
Agreement; all Section and Schedule references herein are to Sections and
Schedules in the Credit Agreement; and all Paragraph references herein are to
Paragraphs in this Amendment.
RECITALS
A. Borrower has requested that the Lenders agree to amend certain
provisions of the Credit Agreement, as herein set forth, in order to increase
the Revolver Commitment by increasing the Acquisition Subfacility Commitment by
$25,000,000.
B. Additionally, Borrower has requested a modification of the
definition of Consolidated Net Income which would cap general and administrative
expenses at $1,500,000 for each quarter prior to the second quarter of 2001 for
purposes of calculating the Interest Coverage Ratio, the Leverage Ratio and the
Applicable Rate.
C. Subject to the terms and conditions of this Amendment, the Lenders
are willing to agree to such amendments.
Accordingly, for adequate and sufficient consideration, the parties
hereto agree, as follows:
PARAGRAPH 1. AMENDMENTS.
1.1 DEFINITIONS.
(a) The definition of "ACQUISITION SUBFACILITY COMMITMENT" is amended
in its entirety to read as follows:
"ACQUISITION SUBFACILITY COMMITMENT means an amount (subject
to reduction or cancellation as herein provided) equal to
$73,000,000.00."
(b) The definition of "CONSOLIDATED NET INCOME" is amended to add the
following language to the end of such definition:
"For purposes of determining compliance with SECTIONS 7.14(a)
and 7.14(b) and for purposes of determining the Applicable
Rate, Consolidated Net Income for each of the fiscal quarters
ending on or prior to March 31, 2001 shall not include G&A
Expenses in excess of
1 SECOND AMENDMENT TO CREDIT AGREEMENT
$1,500,000 for such quarter. "G&A EXPENSES" shall mean general
and administrative expenses required to be reimbursed by
Borrower to TWC pursuant to the Omnibus Agreement."
1.2 SCHEDULE 2.01. SCHEDULE 2.01 is hereby deleted in its entirety and
SCHEDULE 2.01 attached hereto is substituted in lieu thereof.
1.3 EXHIBITS.
(a) EXHIBIT A-1 is hereby deleted in its entirety and EXHIBIT
A-1 attached hereto is substituted in lieu thereof.
(b) EXHIBIT C-1 is hereby deleted in its entirety and EXHIBIT
C-1 attached hereto is substituted in lieu thereof.
PARAGRAPH 2. EFFECTIVE DATE. Notwithstanding any contrary provision,
this Amendment is not effective until the date (the "EFFECTIVE DATE") (a) the
Administrative Agent shall have received counterparts of this Amendment,
executed by Borrower, Guarantors and each of the Lenders, and (b) Borrower shall
have paid to the Administrative Agent for the account of each Lender an
amendment fee equal to 25 basis points times the amount of the increase in such
Lender's Commitment reflected in SCHEDULE 2.01 attached hereto.
PARAGRAPH 3. ACKNOWLEDGMENT AND RATIFICATION. As a material inducement
to the Administrative Agent and the Lenders to execute and deliver this
Amendment, Borrower and each Guarantor (a) consent to the agreements in this
Amendment and (b) agree and acknowledge that the execution, delivery, and
performance of this Amendment shall in no way release, diminish, impair, reduce,
or otherwise affect the respective obligations of Borrower or any Guarantor
under the Loan Documents to which it is a party, which Loan Documents shall
remain in full force and effect, and all guaranties and Rights thereunder are
hereby ratified and confirmed.
PARAGRAPH 4. REPRESENTATIONS. As a material inducement to the
Administrative Agent and the Lenders to execute and deliver this Amendment,
Borrower and each Guarantor represent and warrant to the Administrative Agent
and the Lenders that as of the Effective Date of this Amendment and as of the
date of execution of this Amendment, (a) all representations and warranties in
the Loan Documents are true and correct in all material respects as though made
on the date hereof, except to the extent that any of them speak to a different
specific date, and (b) no Default or Event of Default exists.
PARAGRAPH 5. EXPENSES. Borrower shall pay all reasonable costs, fees,
and expenses paid or incurred by Administrative Agent incident to this
Amendment, including, without limitation, the fees and expenses of
Administrative Agent's counsel in connection with the negotiation, preparation,
delivery, and execution of this Amendment and any related documents.
PARAGRAPH 6. MISCELLANEOUS. This Amendment is a "Loan Document"
referred to in the Credit Agreement. The provisions relating to Loan Documents
in ARTICLE 10 of the Credit Agreement are incorporated in this Amendment by
reference. Unless stated otherwise (a) the singular number includes the plural
and vice versa and words of any gender include each other gender, in each case,
as appropriate, (b) headings and captions may not be construed in interpreting
provisions, (c) this Amendment must be construed, and its performance enforced,
under New York law, (d) if any part of this Amendment is for any reason found to
be unenforceable, all other portions of it nevertheless remain enforceable, and
(e) this
2 SECOND AMENDMENT TO CREDIT AGREEMENT
Amendment may be executed in any number of counterparts with the same effect as
if all signatories had signed the same document, and all of those counterparts
must be construed together to constitute the same document.
PARAGRAPH 7. ENTIRE AGREEMENT. THIS AMENDMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AMENDMENT 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.
PARAGRAPH 8. PARTIES. This Amendment binds and inures to the benefit of
Borrower, Guarantors, Administrative Agent, the Lenders, and their respective
successors and assigns.
PARAGRAPH 9. FURTHER ASSURANCES. The parties hereto each agree to
execute from time to time such further documents as may be necessary to
implement the terms of this Agreement.
The parties hereto have executed this Amendment in multiple
counterparts to be effective as of the Effective Date.
REMAINDER OF PAGE INTENTIONALLY BLANK. SIGNATURE PAGES TO FOLLOW.
3 SECOND AMENDMENT TO CREDIT AGREEMENT
BORROWER:
XXXXXXXX XXX, X.X.
By: XXXXXXXX XX LLC, its
General Partner
By: /s/ Xxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxx X. Xxxxxxxxxx
----------------------------------------
Title: Vice President
---------------------------------------
Strategic Development & Planning
---------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
GUARANTORS:
XXXXXXXX NGL, LLC
By: /s/ Xxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
Strategic Development & Planning
-----------------------------------------
XXXXXXXX TERMINALS HOLDING L.P.
By: XXXXXXXX NGL, LLC, its
General Partner
By: /s/ Xxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
Strategic Development & Planning
-----------------------------------------
XXXXXXXX PIPELINES HOLDINGS L.P.
By: XXXXXXXX NGL, LLC, its
General Partner
By: /s/ Xxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
Strategic Development & Planning
-----------------------------------------
XXXXXXXX AMMONIA PIPELINE L.P.
By: XXXXXXXX NGL, LLC, its
General Partner
By: /s/ Xxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxx X. Xxxxxxxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
Strategic Development & Planning
-----------------------------------------
BANK OF AMERICA, N.A., as Administrative Agent
and as a Lender
By: /s/ Xxxxxx X. Xxx
--------------------------------------------
Xxxxxx X. Xxx
Managing Director
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
XXXXXX COMMERCIAL PAPER, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------------------
Title: Authorized Signatory
------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
SUNTRUST BANK
By: /s/ Xxxxx X. Edge
---------------------------------------
Name: Xxxxx X. Edge
-------------------------------------
Title: Director
------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
ABN AMRO BANK, N.V.
By: /s/ Xxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
-------------------------------------
Title: Group Vice President
------------------------------------
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------------
Title: Vice President
------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: Sr. Vice President
------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
BANK ONE, NA
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
BARCLAYS BANK PLC
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxx
-------------------------------------
Title: Director
------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxx
-------------------------------------
Title: Senior Vice President
------------------------------------
By: /s/ Xxxxx Xxx
---------------------------------------
Name: Xxxxx Xxx
-------------------------------------
Title: Vice President
------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
-------------------------------------
Title: Vice President
------------------------------------
By: /s/ Xxxxx X. Xxxxxxx, III
---------------------------------------
Name: Xxxxx X. Xxxxxxx, III
-------------------------------------
Title: Group Manager
------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxxx X. Saint
---------------------------------------
Name: Xxxxxxx X. Saint
-------------------------------------
Title: Associate Director, Banking
------------------------------------
Products Services, US
------------------------------------
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx
------------------------------------
Associate Director, Banking
------------------------------------
Products Services, US
------------------------------------
[SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT]
SCHEDULE 2.01
COMMITMENTS
LENDER REVOLVING FACILITY TERM LOAN FACILITY
------ ------------------------------------------------------- ------------------
Working Capital/
Acquisition Subfacility Distribution Subfacility
----------------------- ------------------------
Bank of America $9,800,000.00 $1,200,000.00 $9,000,000.00
Xxxxxx Commercial Paper, Inc. $7,300,000.00 $1,200,000.00 $9,000,000.00
SunTrust Bank $8,100,000.00 $1,400,000.00 $10,500,000.00
ABN AMRO Bank, N.V. $8,100,000.00 $1,400,000.00 $10,500,000.00
National Westminster Bank Plc $8,100,000.00 $1,400,000.00 $10,500,000.00
Bank One, NA $7,300,000.00 $1,200,000.00 $9,000,000.00
Barclays Bank Plc $4,800,000.00 $1,200,000.00 $9,000,000.00
Bayerische Landesbank Girozentrale $7,300,000.00 $1,200,000.00 $9,000,000.00
UBS AG, Stamford Branch $6,500,000.00 $1,000,000.00 $7,500,000.00
Natexis Banques Populaires $5,700,000.00 $ 800,000.00 $6,000,000.00
Total: $73,000,000 $12,000,000 $90,000,000
SCHEDULE 2.01
EXHIBIT A-1
FORM OF BORROWING NOTICE
Date: ,
----------- -----
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of February 6, 2001
(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 Xxxxxxxx OLP, L.P., a Delaware limited partnership
(the "BORROWER"), the Lenders from time to time party thereto, Bank of America,
N.A., as Administrative Agent, Xxxxxx Commercial Paper, Inc., as Syndication
Agent, and SunTrust Bank, as Documentation Agent.
The undersigned hereby requests (select one):
I. REVOLVER FACILITY
A. Acquisition Subfacility
1. Status Information for the Acquisition Subfacility
(a) Amount of the Acquisition Subfacility:
$73,000,000
(b) Acquisition Subfacility Principal Debt prior
to the Borrowing requested herein:
$
-----------------
(c) Principal amount of Loans under the
Acquisition Subfacility available to be
borrowed: $
----------------
2. Amount of Borrowing: $
---------------
3. Requested date of Borrowing: , 200 .
---------------- --
4. Requested Type of Loan and applicable Dollar amount:
(a) Base Rate Loan for $ .
----------------------
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
Exhibit A-1
Page 1
Form of Borrowing Notice
B. Working Capital/Distribution Subfacility
1. Status Information for the Working
Capital/Distribution Subfacility
(a) Amount of the Working Capital/Distribution
Subfacility: $12,000,000
(b) Working Capital/Distribution Subfacility
Principal Debt prior to the Borrowing
requested herein: $
-------------
(c) Principal amount of Loans under the Working
Capital/Distribution Subfacility available
to be borrowed (prior to the following
requested herein) (1(a) minus 1(b)):
$
--------------
2. Amount of Borrowing: $
----------------
3. Requested date of Borrowing: , 200 .
-------------- --
4. Requested Type of Loan and applicable Dollar amount:
(a) Base Rate Loan for $ .
---------------------
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
5. Purpose of Loan:
Working Capital
---
To fund Quarterly Distribution (SECTION 6.11(c)
--- (ii) of the Agreement)
6. If the Loan is for the purpose of funding Quarterly
Distribution: Amount remaining undrawn under the
Working Capital/Distribution Subfacility after giving
effect to the Borrowing herein requested is:
$
-----------------
(must be not less than $9,000,000)
II. Term Loan Facility
1. Amount of Borrowing: $
-------------
2. Requested date of Borrowing: , 200 .
--------------- --
3. Requested Type of Loan and applicable Dollar amount:
(a) Base Rate Loan for $ .
----------------------
Exhibit A-1
Page 2
Form of Borrowing Notice
(b) Eurodollar Rate Loan with Interest Period
of:
(i) one month for $
---------------
(ii) two months for $
---------------
(iii) three months for $
---------------
(iv) six months for $
---------------
The undersigned hereby certifies that the following statements will be true on
the date of the proposed Borrowing(s) after giving effect thereto and to the
application of the proceeds therefrom:
(a) the representations and warranties of the Borrower
contained in ARTICLE V of the Agreement are true and correct as though made on
and as of such date (except such representations and warranties which expressly
refer to an earlier date, which are true and correct as of such earlier date);
and
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Borrowing(s).
The Borrowing requested herein complies with SECTIONS 2.01, 2.02 and 2.03 of the
Agreement, as applicable.
XXXXXXXX OLP, L.P.
By Xxxxxxxx XX LLC, its
General Partner
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Exhibit A-1
Page 3
Form of Borrowing Notice
EXHIBIT C-1
FORM OF COMPLIANCE CERTIFICATE
(Pursuant to SECTION 6.02 of the Agreement)
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 February 6, 2001
(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 Xxxxxxxx OLP, L.P., a Delaware limited partnership
(the "BORROWER"), the Lenders from time to time party thereto, Bank of America,
N.A., as Administrative Agent, Xxxxxx Commercial Paper, Inc., as Syndication
Agent, and SunTrust Bank, as Documentation Agent. Capitalized terms used herein
but not defined herein shall have the meaning set forth in the Agreement.
The undersigned Responsible Officer hereby certifies as of the date hereof that
he/she is the _________________________________________________________________
of the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:
[Use following for fiscal year-end financial statements]
1. Attached hereto as SCHEDULE 1 are the year-end unaudited financial statements
required by SECTION 6.01(b) of the Agreement for the fiscal year of the Borrower
ended as of the above date. Such financial statements fairly present 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. Attached hereto as SCHEDULE 2 are the year-end audited financial statements
required by SECTION 6.01(d) of the Agreement for the fiscal year of the MLP
ended as of the above date, together with the report and opinion of an
independent certified public accountant required by such section.
[Use following for fiscal quarter-end financial statements]
1. Attached hereto as SCHEDULE 1 are the unaudited financial statements required
by SECTION 6.01(c) of the Agreement for the fiscal quarter of the Borrower ended
as of the above date. Such financial statements fairly present 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. Attached hereto as SCHEDULE 3 are the unaudited financial statements required
by SECTION 6.01(d) of the Agreement for the fiscal quarter of the MLP ended as
of the above date, together with a certificate of a Responsible Officer of the
MLP stating that such financial statements fairly present the financial
condition, results of operations and cash flows of the MLP 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.
Exhibit C-1
Page 1
Form of Compliance Certificate
[Use the following for both fiscal year-end and quarter-end financial
statements]
3. 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 the attached financial
statements.
4. 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 no Default or Event of Default has
occurred and is continuing except as follows (list of each such Default or Event
of Default and include the information required by SECTION 6.03 of the Credit
Agreement):
[ ]
5. The covenant analyses and information set forth on SCHEDULE 2 attached hereto
are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of ______________, ________.
XXXXXXXX OLP, L.P.
By: Xxxxxxxx XX LLC, its
General Partner
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
For the Quarter/Year ended ___________________("STATEMENT DATE")
Exhibit C-1
Page 2
Form of Compliance Certificate
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 2.01(a) - Acquisition Subfacility ($73,000,000)
A. Acquisition Subfacility Principal Debt on the first day of
the most recently ended fiscal quarter (the "SUBJECT
QUARTER"): $
----------
B. Borrowings under the Acquisition Subfacility during the
Subject Quarter (list each by the date and $ amount of the
Borrowing): Date $Amount
---- ------
C. Borrowings repaid under the Acquisition Subfacility during
the Subject Quarter (list each by the date and $ amount of
the repayment): Date $Amount
---- ------
D. Acquisition Subfacility Principal Debt on the last day of
the Subject Quarter: $
----------
E. On any day during the Subject Quarter, did the Acquisition
Subfacility Principal Debt exceed $73,000,000?
YES/NO
II. SECTION 2.01(b) - Working Capital/Distribution Subfacility
($12,000,000)
A. Working Capital/Distribution Subfacility Principal Debt on
the first day of the Subject Quarter: $
----------
B. Borrowings under the Working Capital/Distribution Subfacility
to fund working capital requirements of the Borrower and its
Subsidiaries (list each by the date and $ amount of the
Borrowing): Date $Amount
---- ------
C. Borrowings under the Working Capital/Distribution Subfacility
to fund Quarterly Distributions (list each by the date and
$ amount of the Borrowing): Date $Amount
---- ------
D. Borrowings repaid under the Working Capital/Distribution
Subfacility (list each by the date and $ amount of the
repayment): Date $Amount
---- ------
Exhibit C-1
Page 3
Form of Compliance Certificate
E. Working Capital/Distribution Subfacility Principal Debt on
the last day of the Subject Quarter: $
----------
F. On any day during the Subject Quarter, did the Working
Capital/Distribution Subfacility Principal Debt exceed
$12,000,000? YES/NO
G. On the date of each Borrowing under the Working
Capital/Distribution Subfacility (after giving effect to
such Borrowing), was the undrawn amount of Working
Capital/Distribution Subfacility Commitment $9,000,000 or
more? (SECTION 2.01(b)) YES/NO
III. SECTION 6.13 - Clean Down Period for Working Capital/Distribution
Subfacility
A. One clean down period of fifteen (15) consecutive days
during the twelve (12) month period beginning on the Initial
Funding Date, and for a period of fifteen (15) consecutive
days each twelve (12) month period thereafter is required.
For the current twelve (12) month period, describe the clean
down period (period of consecutive days (and dates) during
the current twelve (12) month period that the Working
Capital/Distribution Subfacility Principal Debt = $0.00):
# of Days Dates
IV. SECTION 7.03 - Indebtedness
A. Principal amount of purchase money indebtedness outstanding
(SECTION 7.03(c)): $
----------
Maximum permitted $5,000,000
B. Principal amount of unsecured Indebtedness and Synthetic
Leases permitted pursuant to SECTION 7.03(d):
1. Amount of unsecured Indebtedness: $
----------
2. Amount of Synthetic Leases: $
----------
3. Aggregate amount of unsecured Indebtedness and
Synthetic Leases under SECTION 7.03(d) (IV.B.1 +
IV.B.2): $
----------
Maximum permitted: $75,000,000.
Exhibit C-1
Page 4
Form of Compliance Certificate
C. Principal amount of Permitted Affiliated Subordinated Debt
outstanding (SECTION 7.03(e)): $
----------
Maximum permitted: $50,000,000
V. SECTION 7.14(a) - Interest Coverage Ratio.
A. Consolidated EBITDA for the relevant period (as specified in
the definition of "Interest Coverage Ratio") ending on above
date ("SUBJECT PERIOD"):
1. Consolidated Net Income for Subject Period: $
----------
2. Consolidated Interest Charges for Subject Period: $
----------
3. Provision for income taxes for Subject Period: $
----------
4. Depreciation expenses for Subject Period: $
----------
5. Amortization expenses for intangibles for Subject
Period: $
----------
6. Consolidated EBITDA (prior to pro forma adjustments
for Asset Acquisitions pursuant to SECTION
7.14(c)(i)) (Lines V.A.1 + 2 + 3 + 4 + 5): $
----------
7. Pro forma adjustments to EBITDA for Asset
Acquisitions during the Subject Period (SECTION
7.14(c)(i)), giving effect to such Asset Acquisitions
on a pro forma basis for the Subject Period as if
such Asset Acquisitions occurred on the first day of
the Subject Period: $
----------
8. Consolidated EBITDA, including pro forma
adjustments for Asset Acquisitions (Lines V.A.6 +
V.A.7): $
----------
B. Consolidated Interest Charges for Subject Period:
1. Consolidated Interest Charges for the Subject
Period: $
----------
2. Pro forma adjustment for Interest Charges during
the Subject Period: $
----------
Exhibit C-1
Page 5
Form of Compliance Certificate
3. Consolidated Interest Charges, including pro forma
adjustments (Lines V.B.1 + V.B.2): $
----------
C. Consolidated Lease and Rental Expense for Subject Period:
1. Consolidated Lease and Rental Expense for the
Subject Period: $
----------
2. Pro forma adjustment for Consolidated Lease and
Rental Expense during the Subject Period: $
----------
3. Consolidated Lease and Rental Expense, including
pro forma adjustments (Lines V.C.1 + V.C.2): $
----------
D. Interest Coverage Ratio:
1. Consolidated EBITDA adjusted for Asset Acquisitions
(Line V.A.8): $
----------
2. Consolidated Interest Charges adjusted for Asset
Acquisitions (Line V.B.3): $
----------
3. Consolidated Lease and Rental Expense, including pro
forma adjustments (Line V.C.3): $
----------
4. Interest Coverage Ratio (Line V.D.1 + Line V.D.3))
(Line V.D.2 + Line V.D.3): to 1.0
-----
Minimum required: 3.0:1.0
VI. SECTION 7.14(b) - Leverage Ratio
A. Consolidated Total Debt: $
----------
B. Permitted Affiliate Subordinated Debt: $
----------
C. Consolidated Total Debt excluding Permitted Affiliate
Subordinated Debt (Line VI.A minus Line VI.B): $
----------
D. Consolidated EBITDA (including pro forma adjustments for
Asset Acquisitions) (Line V.A.8 above): $
----------
E. Leverage Ratio (Line VI.C / Line VI.D): to 1.0
-----
Maximum permitted: 4.0:1.0
Exhibit C-1
Page 6
Form of Compliance Certificate
