EXECUTION COPY
================================================================================
$1,250,000,000
CREDIT AGREEMENT
dated as of
AUGUST 18, 2004
AMONG
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company,
XXXXXX XXXXXX OPERATING L.P. "B",
as the Subsidiary Borrower,
THE LENDERS PARTY HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Administrative Agent,
the Issuing Bank and the Swingline Lender,
CITIBANK, N.A.,
and
JPMORGAN CHASE BANK,
as the Co-Syndication Agents,
and
XXXXXX XXXXXXX FINANCING, INC.,
and
BARCLAYS BANK PLC,
as the Co-Documentation Agents
______________________________________
WACHOVIA CAPITAL MARKETS LLC
and
CITIGROUP GLOBAL MARKETS, INC.,
as Joint Lead Arrangers and Joint Book Managers
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS.........................................................2
SECTION 1.01 Defined Terms...................................................2
SECTION 1.02 Classification of Loans and Borrowings.........................22
SECTION 1.03 Accounting Terms; Changes in GAAP..............................22
SECTION 1.04 Interpretation.................................................22
ARTICLE II. THE CREDITS.......................................................24
SECTION 2.01 Commitments....................................................24
SECTION 2.02 Loans and Borrowings...........................................24
SECTION 2.03 Requests for Committed Borrowings..............................25
SECTION 2.04 Competitive Bid Procedure......................................25
SECTION 2.05 Swingline Loans................................................28
SECTION 2.06 Letters of Credit..............................................29
SECTION 2.07 Funding of Borrowings..........................................34
SECTION 2.08 Interest Elections.............................................34
SECTION 2.09 Termination and Reduction of Commitments.......................36
SECTION 2.10 Repayment of Loans; Evidence of Debt...........................36
SECTION 2.11 Prepayment of Loans............................................38
SECTION 2.12 Fees...........................................................38
SECTION 2.13 Interest.......................................................40
SECTION 2.14 Alternate Rate of Interest.....................................41
SECTION 2.15 Increased Costs................................................41
SECTION 2.16 Break Funding Payments.........................................42
SECTION 2.17 Taxes..........................................................43
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.......................................................44
SECTION 2.19 Mitigation Obligations; Replacement of Lenders.................46
SECTION 2.20 Telephonic Notices.............................................46
ARTICLE III. CONDITIONS PRECEDENT.............................................47
SECTION 3.01 Conditions Precedent to the Initial Credit Event...............47
SECTION 3.02 Conditions Precedent to All Credit Events......................48
SECTION 3.03 Conditions Precedent to Conversions............................49
SECTION 3.04 Delivery of Documents..........................................49
ARTICLE IV. REPRESENTATIONS AND WARRANTIES....................................49
SECTION 4.01 Organization and Qualification.................................49
SECTION 4.02 Authorization, Validity, Etc...................................49
SECTION 4.03 Governmental Consents, Etc.....................................50
SECTION 4.04 No Breach or Violation of Agreements or Restrictions, Etc......50
-i-
SECTION 4.05 Properties.....................................................50
SECTION 4.06 Litigation and Environmental Matters...........................50
SECTION 4.07 Financial Statements...........................................51
SECTION 4.08 Disclosure.....................................................51
SECTION 4.09 Investment Company Act.........................................51
SECTION 4.10 Public Utility Holding Company Act.............................51
SECTION 4.11 ERISA..........................................................52
SECTION 4.12 Tax Returns and Payments.......................................52
SECTION 4.13 Compliance with Laws and Agreements............................52
SECTION 4.14 Purpose of Loans...............................................52
SECTION 4.15 Foreign Assets Control Regulations, etc........................53
ARTICLE V. AFFIRMATIVE COVENANTS..............................................53
SECTION 5.01 Financial Statements and Other Information.....................53
SECTION 5.02 Existence, Conduct of Business.................................56
SECTION 5.03 Payment of Obligations.........................................56
SECTION 5.04 Maintenance of Properties; Insurance...........................56
SECTION 5.05 Books and Records; Inspection Rights...........................57
SECTION 5.06 Compliance with Laws...........................................57
SECTION 5.07 Use of Proceeds................................................57
ARTICLE VI. NEGATIVE COVENANTS................................................57
SECTION 6.01 Liens..........................................................57
SECTION 6.02 Fundamental Changes............................................58
SECTION 6.03 Restricted Payments............................................58
SECTION 6.04 Transactions with Affiliates...................................58
SECTION 6.05 Restrictive Agreements.........................................58
SECTION 6.06 Financial Covenants............................................59
ARTICLE VII. EVENTS OF DEFAULT................................................59
SECTION 7.01 Events of Default and Remedies.................................59
ARTICLE VIII. THE ADMINISTRATIVE AGENT........................................62
SECTION 8.01 Appointment, Powers and Immunities.............................62
SECTION 8.02 Reliance by Administrative Agent...............................63
SECTION 8.03 Defaults; Events of Default....................................63
SECTION 8.04 Rights as a Lender.............................................63
SECTION 8.05 INDEMNIFICATION................................................63
SECTION 8.06 Non-Reliance on Agents and other Lenders.......................64
SECTION 8.07 Action by Administrative Agent.................................65
SECTION 8.08 Resignation or Removal of Administrative Agent.................65
SECTION 8.09 Duties of Co-Syndication Agents and
Co-Documentation Agents.....................................................65
ARTICLE IX. GUARANTY..........................................................66
-ii-
SECTION 9.01 Guaranty.......................................................66
SECTION 9.02 Continuing Guaranty............................................66
SECTION 9.03 Effect of Debtor Relief Laws...................................69
SECTION 9.04 Waiver.........................................................69
SECTION 9.05 Full Force and Effect..........................................69
ARTICLE X. MISCELLANEOUS......................................................70
SECTION 10.01 Notices, Etc..................................................70
SECTION 10.02 Waivers; Amendments...........................................71
SECTION 10.03 Payment of Expenses, Indemnities, etc.........................72
SECTION 10.04 Successors and Assigns........................................75
SECTION 10.05 Assignments and Participations................................75
SECTION 10.06 Survival; Reinstatement.......................................77
SECTION 10.07 Counterparts; Integration; Effectiveness......................77
SECTION 10.08 Severability..................................................78
SECTION 10.09 Right of Setoff...............................................78
SECTION 10.10 Governing Law; Jurisdiction; Consent to Service of Process....78
SECTION 10.11 WAIVER OF JURY TRIAL..........................................79
SECTION 10.12 Confidentiality...............................................80
SECTION 10.13 Interest Rate Limitation......................................80
SECTION 10.14 EXCULPATION PROVISIONS........................................81
-iii-
SCHEDULES:
Schedule 1.01 Commitments
Schedule 4.01 Existing Subsidiaries
Schedule 6.05 Existing Restrictions
EXHIBITS:
Exhibit 1.01A Form of Assignment and Acceptance
Exhibit 1.01B-1 Subsidiary Borrower Letter of Credit
Exhibit 1.01B-2 Other Existing Letters of Credit
Exhibit 1.01-C Form of Committed Note
Exhibit 1.01-D Form of Competitive Note
Exhibit 1.01-E Form of Swingline Note
Exhibit 2.03 Form of Borrowing Request
Exhibit 2.04-A Form of Competitive Bid Request
Exhibit 2.04-B Form of Notice to Lenders of Competitive Bid
Request
Exhibit 2.04-C Form of Competitive Bid
Exhibit 2.06 Form of Letter of Credit Request
Exhibit 2.07 Form of Notice of Account Designation
Exhibit 2.08 Form of Interest Election Request
Exhibit 2.11 Form of Notice of Prepayment
Exhibit 5.01 Form of Compliance Certificate
-iv-
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 18, 2004 (this "Agreement")
is among:
(a) Xxxxxx Xxxxxx Energy Partners, L.P., a Delaware limited
partnership (the "Company");
(b) Xxxxxx Xxxxxx Operating L.P. "B", a Delaware limited
partnership (the "Subsidiary Borrower");
(c) the banks and other financial institutions listed on the
signature pages hereof under the caption "Lenders" (the "Lenders" and together
with each other Person that becomes a Lender pursuant to Section 2.01(b) or
Section 10.05, collectively, the "Lenders");
(d) Wachovia Bank, National Association, a national banking
association, individually as a Lender and as the administrative agent for the
Lenders (in such latter capacity together with any other Person that becomes
Administrative Agent pursuant to Section 8.08, the "Administrative Agent");
(e) Citibank, N.A., and JPMorgan Chase Bank, as Co-Syndication Agents
(the "Co-Syndication Agents"); and
(f) Xxxxxx Xxxxxxx Financing, Inc., and Barclays Bank PLC, as
Co-Documentation Agents (the "Co-Documentation Agents").
PRELIMINARY STATEMENTS
The Company and the Subsidiary Borrower have requested that a credit
facility be extended to them pursuant to which: (a) the Company may borrow from
the Lenders (i) to repay in full the principal and accrued interest on all loans
and other amounts outstanding (if any) under (A) that certain Credit Agreement
dated as of October 15, 2002 among the Company, the Subsidiary Borrower, the
subsidiary guarantors parties thereto, the lenders party thereto, Wachovia Bank,
National Association, as the administrative agent, the issuing bank and the
swingline bank, and the other agents named therein, (as amended to date, the
"Existing Multi-Year Credit Agreement") and (B) that certain Credit Agreement
dated as of October 14, 2003 among the Company, the lenders party thereto,
Wachovia Bank, National Association, as the administrative agent and the other
agents named therein (together with the Existing Multi-Year Credit Agreement
collectively, the "Existing Credit Agreements"), (ii) to back commercial paper
issuance, and (iii) for general working capital and other general partnership
purposes; and (b) the Company may obtain the issuance of letters of credit and
the letters of credit (including the Subsidiary Borrower Letter of Credit)
issued or otherwise outstanding under the Existing Multi-Year Credit Agreement
will be deemed to be letters of credit issued hereunder.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bear interest at a
rate determined by reference to the Alternate Base Rate.
"Administrative Agent" has the meaning specified in the introduction
to this Agreement.
"Administrative Questionnaire" means an Administrative Questionnaire
in the form supplied by the Administrative Agent.
"Affiliate" of any Person shall mean (i) any Person directly or
indirectly controlled by, controlling or under common control with such first
Person, (ii) any director or officer of such first Person or of any Person
referred to in clause (i) above and (iii) if any Person in clause (i) above is
an individual, any member of the immediate family (including parents, siblings,
spouse and children) of such individual and any trust whose principal
beneficiary is such individual or one or more members of such immediate family
and any Person who is controlled by any such member or trust. For purposes of
this definition, any Person that owns directly or indirectly 25% or more of the
securities having ordinary voting power for the election of directors or other
governing body of a corporation or 25% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of such
other Person) will be deemed to "control" (including, with its correlative
meanings, "controlled by" and "under common control with") such corporation or
other Person.
"Agreement" has the meaning specified in the introduction to this
Agreement (subject, however, to Section 1.04(v) hereof).
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1% and (b) the Prime Rate in effect for such day. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" means at any time and from time to time, a
percentage per annum equal to the applicable percentage set forth below for the
corresponding Performance Level set forth below:
-2-
-----------------------------------
LIBOR Borrowings
Performance Margin
Level Percentage
----- ----------
-----------------------------------
I .29%
-----------------------------------
II .35%
-----------------------------------
III .45%
-----------------------------------
IV .60%
-----------------------------------
V .80%
-----------------------------------
The Applicable Margin shall be determined by reference to the
Performance Level in effect from time to time, and any change in the Applicable
Margin shall be effective from the effective date of the change in the
applicable Performance Level giving rise thereto.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the Total Commitment represented by such Lender's Commitment. If
the Total Commitment has terminated or expired, the Applicable Percentages shall
be determined based upon the Total Commitment most recently in effect, giving
effect to any assignments.
"Application" has the meaning specified in Section 2.06(c).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.05), and accepted by the Administrative Agent,
in the form of Exhibit 1.01A or any other form approved by the Administrative
Agent.
"Available Cash" means, with respect to any fiscal quarter of the
Company (a "Test Quarter"), an amount equal to the algebraic sum of (a) the
aggregate of all cash distributions actually made to and received by the Company
from the Subsidiaries in respect of their Capital Stock during such fiscal
quarter minus (b) the aggregate amount of all cash disbursements, including
disbursements for operating expenses, payments of principal of and interest on
Indebtedness and taxes (net of amounts received or to be received by the Company
from the Subsidiaries as reimbursement for such amounts), and capital
expenditures (net of any borrowings to fund such capital expenditures permitted
pursuant to this Agreement), actually paid by the Company during such Test
Quarter, plus, in the case of a decrease, or minus, in the case of an increase
(c) the amount by which, as at the end of such Test Quarter, cash reserves
necessary in the reasonable discretion of the Company's management for the
proper conduct of the business of the Company and the Subsidiaries subsequent to
such Test Quarter, decreased or increased from the amount of such reserves as at
the end of the immediately preceding fiscal quarter.
"Availability Period" means the period from the Effective Date, to
the earlier of the Maturity Date and the date of termination of the Commitments.
"Bankruptcy Code" has the meaning specified in Section 9.01(a).
-3-
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized to act on behalf of the Board of Directors of such
Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Administrative Agent.
"Bonds" means the Port Facility Refunding Revenue Bonds (Enron
Transportation Services, L.P. Project) Series 1994 in the aggregate principal
amount of $23,700,000, as issued by the Xxxxxxx-Union Regional Port District.
"Borrowers" means, collectively, the Company and the Subsidiary
Borrower and "Borrower" means either one of them.
"Borrowing" means (a) a Committed Borrowing or (b) a Competitive
Borrowing.
"Borrowing Date" means the Business Day upon which any Letter of
Credit is to be issued or any Loan is to be made available to the Company.
"Borrowing Request" has the meaning specified in Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in Houston, Texas, New York, New York, or
Charlotte, North Carolina, are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents (however designated) of such Person's equity, including all
common stock and preferred stock, any limited or general partnership interest
and any limited liability company member interest.
-4-
"Change in Control" means either (a) the acquisition through
beneficial ownership or otherwise after the date hereof by any person (as such
term is used in section 13(d) and section 14(d)(2) of the Exchange Act as in
effect on the date hereof) or related persons constituting a group (as such term
is used in Rule 13d-5 under the Exchange Act as in effect on the date hereof) of
30% of the Voting Stock of the General Partner; or (b) individuals who, at the
beginning of any period of 12 consecutive months, constitute the General
Partner's Board of Directors cease for any reason (other than death or
disability) to constitute a majority of the General Partner's Board of Directors
then in office.
"Change in Control Event" means the execution of any definitive
agreement which, when fully performed by the parties thereto, would result in a
Change in Control.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement. If any
Lender (or its applicable lending office or its holding company, as the case may
be) shall be, or shall determine itself to be, required by any law, rule,
regulation, request, guideline or directive (whether or not having the force of
law) relating to capital requirements adopted after the date of this Agreement
or any change in the interpretation or application of any thereof by any
Governmental Authority after the date of this Agreement (each a "Capital
Requirement") to maintain (and in either such case such Lender, lending office
or holding company, as the case may be, does in fact maintain) capital against
such Lender's unused Commitment (or any portion thereof), in whole or in part as
a result of such unused Commitment (or portion), either alone or in combination
with any proposed or agreed extension thereof (whether or not such extension
shall be by its terms at the time be effective), extending or being deemed to
extend for a period of more than one year from its inception or to have an
original maturity of more than one year or otherwise to last for a period of
time sufficient to require maintenance of capital against it, a "Change in Law"
shall be deemed to have occurred for purposes of Section 2.15(b) with respect to
such Capital Requirement.
"Charges" has the meaning specified in Section 10.13.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Committed Loans,
Swingline Loans or Competitive Loans.
"Co-Documentation Agents" has the meaning specified in the
introduction to this Agreement.
"Co-Syndication Agents" has the meaning specified in the introduction
to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
-5-
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Committed Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Committed Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.09
and (b) increased pursuant to Section 2.01 or reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 10.05. The
initial amount of each Lender's Commitment is set forth on Schedule 1.01 hereto,
or in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable.
"Committed Borrowing" means (a) a borrowing comprised of Committed
Loans of the same Type, made, converted or continued on the same date and, in
the case of Eurodollar Loans, as to which a single Interest Period is in effect
or (b) a Swingline Loan.
"Committed Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Committed
Loans and its LC Exposure and Swingline Exposure at such time.
"Committed Loan" means a Loan made pursuant to Section 2.03.
"Committed Note" means a promissory note of the Company payable to
the order of each Lender, in substantially the form of Exhibit 1.01-C, together
with all modifications, extensions, renewals and rearrangements thereof.
"Communications" has the meaning specified in Section 10.01.
"Company" has the meaning specified in the introduction to this
Agreement.
"Company Debt Rating" means, with respect to the Company as of any
date of determination, the rating that has been most recently announced by each
of S&P or Xxxxx'x for any non-credit enhanced, unsecured long-term senior debt
issued or to be issued by the Company. For purposes of the foregoing:
(a) if, at any time, neither S&P nor Xxxxx'x shall have in effect a
Company Debt Rating, the Applicable Margin or the Facility Fee Rate, as the case
may be, shall be set in accordance with Performance Level V under the definition
of "Applicable Margin" or "Facility Fee Rate", as the case may be;
(b) if the ratings established by S&P and Xxxxx'x shall fall within
different Performance Levels, the Applicable Margin or the Facility Fee Rate, as
the case may be, shall be based upon the higher rating; provided, however, that,
if the lower of such ratings is two or more Performance Levels below the higher
of such ratings, the Applicable Margin or the Facility Fee Rate, as the case may
be, shall be based upon the rating that is one Performance Level above the lower
rating;
(c) if any rating established by S&P or Xxxxx'x shall be changed,
such change shall be effective as of the date on which such change is announced
publicly by the rating agency making such change; and
-6-
(d) if S&P or Xxxxx'x shall change the basis on which ratings are
established by it, each reference to the Company Debt Rating announced by S&P or
Xxxxx'x shall refer to the then equivalent rating by S&P or Xxxxx'x, as the case
may be.
"Competitive Bid" means an offer by a Lender to make a Competitive
Loan substantially in the form of Exhibit 2.04-C.
"Competitive Bid Rate" means, with respect to any Competitive Bid,
the Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Company for
Competitive Bids in accordance with Section 2.04 substantially in the form of
Exhibit 2.04-A.
"Competitive Borrowing" means a borrowing consisting of a Competitive
Loan or concurrent Competitive Loans of the same Type, as to which a single
Interest Period is in effect and made on the same date by the Lender or Lenders
whose Competitive Bid(s) as all or as a part of such borrowing, as the case may
be, has (or have) been accepted by the Company under the bidding procedure
described in Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Competitive Note" means a promissory note of the Company payable to
the order of a Lender, in substantially the form of Exhibit 1.01-D, together
with all modifications, extensions, renewals and rearrangements thereof.
"Consolidated Assets" means, at the date of any determination
thereof, the total assets of the Company and the Subsidiaries as set forth on a
consolidated balance sheet of the Company and the Subsidiaries for their most
recently completed fiscal quarter, prepared in accordance with GAAP.
"Consolidated EBITDA" means, for any period, the EBITDA of the
Company and the Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP.
"Consolidated Indebtedness" means, at the date of any determination
thereof, Indebtedness of the Company and the Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the Interest
Expense of the Company and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets" means, at the date of any
determination thereof, Consolidated Assets after deducting therefrom: (a) all
current liabilities, excluding (i) any current liabilities that by their terms
are extendable or renewable at the option of the obligor thereon to a time more
than 12 months after the time as of which the amount thereof is being computed;
and (ii) current maturities of long-term debt; and (b) the value, net of any
applicable reserves, of all goodwill, trade names, trademarks, patents and other
like intangible
-7-
assets, all as set forth, or on a pro forma basis would be set forth, on a
consolidated balance sheet of the Company and the Subsidiaries for their most
recently completed fiscal quarter, prepared in accordance with GAAP.
"Credit Event" means the making of any Loan or the issuance or the
extension of any Letter of Credit.
"Default" means any event or condition which upon notice, lapse of
time or both would, unless cured or waived, become an Event of Default.
"Delegate" means Xxxxxx Xxxxxx Management, LLC, a Delaware limited
liability company.
"dollars" or "$" refers to lawful money of the United States of
America.
"EBITDA" means (without duplication), with respect to any period for
any Person, the Net Income of such Person, increased (to the extent deducted in
determining Net Income for such period) by the sum of (a) all income taxes
(including state franchise taxes based upon income) of such Person paid or
accrued according to GAAP for such period; (b) Consolidated Interest Expense of
such Person for such period; and (c) depreciation and amortization of such
Person for such period determined in accordance with GAAP.
"Effective Date" means the date occurring on or before August 31,
2004 on which the conditions specified in Section 3.01 are satisfied (or waived
in accordance with Section 10.02).
"Eligible Assignee" means (a) any Lender; (b) any Affiliate of any
Lender; (c) a commercial bank organized or licensed under the laws of the United
States, or a state thereof, and having total assets in excess of $1,000,000,000;
(d) a commercial bank organized under the laws of any other country which is a
member of the OECD, or a political subdivision of any such country, and having
total assets in excess of $1,000,000,000, provided that such bank is acting
through a branch or agency located in the country in which it is organized or
another country which is also a member of the OECD; and (e) a finance company,
insurance company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and having a combined capital and surplus or total assets of at least
$100,000,000.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release of
-8-
any Hazardous Materials into the environment, or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, bear interest at a
rate determined by reference to the LIBOR Rate.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any Obligation, (a) income or franchise taxes imposed on (or
measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which either Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Company
under Section 2.19(b)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement or is attributable to such Foreign Lender's failure or inability to
comply with Section 2.17(e), except to the extent that such Foreign Lender's
assignor (if any) was entitled, at the time of assignment, to receive additional
amounts from a Borrower with respect to such withholding tax pursuant to Section
2.17(a).
"Execution Date" means the earliest date upon which all of the
following shall have occurred: counterparts of this Agreement shall have been
executed by the Borrowers and each Lender listed on the signature pages hereof
and the Administrative Agent shall have received counterparts hereof which taken
together, bear the signatures of the Borrowers and each Lender and the
Administrative Agent.
"Existing Credit Agreements" has the meaning specified in the
Preliminary Statements.
"Existing Letters of Credit" means, collectively, the Subsidiary
Borrower Letter of Credit and the letters of credit issued under the Existing
Multi-Year Credit Agreement listed on Exhibit 1.01B-2 .
-9-
"Existing Multi-Year Credit Agreement" has the meaning specified in
the Preliminary Statements.
"Facility Fee" has the meaning specified in Section 2.12(a).
"Facility Fee Rate" means at any time and from time to time, a
percentage per annum equal to the applicable percentage set forth below for the
corresponding Performance Level set forth below:
-----------------------------------
Performance Facility Fee
Level Rate
----- ----
-----------------------------------
I .085%
-----------------------------------
II .100%
-----------------------------------
III .125%
-----------------------------------
IV .150%
-----------------------------------
V .200%
-----------------------------------
The Facility Fee Rate shall be determined by reference to the Performance Level
in effect from time to time and any change in the Facility Fee Rate shall be
effective from the effective date of the change in the applicable Performance
Level giving rise thereto.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" has the meaning specified in Section 2.12.
"Fixed Rate" means, with respect to any Competitive Loan (or
Competitive Borrowing) (other than a Eurodollar Competitive Loan or Competitive
Borrowing), the fixed rate of interest per annum specified by the Lender(s)
making such Competitive Loan (or the Competitive Loans comprising such
Competitive Borrowing) in its (or their) related Competitive Bid(s).
"Fixed Rate Loan" means a Competitive Loan bearing
interest at a Fixed Rate.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which either Borrower is located. For purposes
of this definition, the United States of America, each state thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
-10-
"GAAP" means generally accepted accounting principles in the United
States of America from time to time, including as set forth in the opinions,
statements and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and the Financing Accounting Standards
Board.
"General Partner" means Kinder Xxxxxx X.X., Inc., a Delaware
corporation.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
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 obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guaranteed Obligations" has the meaning specified in Section 9.01.
"Guaranty" means the guaranty of the Company contained in Article IX.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services or any other similar obligation
upon which interest charges
-11-
are customarily paid (excluding trade accounts payable incurred in the ordinary
course of business), (e) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (f) all Guarantees by
such Person of Indebtedness of others (provided that in the event that any
Indebtedness of the Company or any Subsidiary shall be the subject of a
Guarantee by one or more Subsidiaries or by the Company, as the case may be, the
aggregate amount of the outstanding Indebtedness of the Company and the
Subsidiaries in respect thereof shall be determined by reference to the primary
Indebtedness so guaranteed, and without duplication by reason of the existence
of any such Guarantee), (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other Person
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Parties" has the meaning specified in Section 10.03.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity Matters" means, with respect to any Indemnified Party, all
losses, liabilities, claims and damages (including reasonable legal fees and
expenses).
"Information Memorandum" means the Confidential Information
Memorandum dated July 2004.
"Interest Election Request" has the meaning specified in Section
2.08.
"Interest Expense" means (without duplication), with respect to any
period for any Person (a) the aggregate amount of interest, whether expensed or
capitalized, paid, accrued or scheduled to be paid during such period in respect
of the Indebtedness of such Person including (i) the interest portion of any
deferred payment obligation; (ii) the portion of any rental obligation in
respect of Capital Lease Obligations allocable to interest expenses; and (iii)
any non-cash interest payments or accruals, all determined in accordance with
GAAP, less (b) Interest Income of such Person for such period.
"Interest Income" means, with respect to any period for any Person,
interest actually received by such Person during such period.
"Interest Payment Date" means (a) with respect to any ABR Loan
(including a Swingline Loan), the last Business Day of each March, June,
September and December, (b) with respect to any Eurodollar Loan, the last
Business Day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each day prior to the last day of
such Interest Period that occurs at intervals of three months' duration after
the first day of such Interest Period and (c) with respect to any Fixed Rate
Loan, the last day of the Interest Period
-12-
applicable to the Borrowing of which such Loan is a part and, in the case of a
Fixed Rate Borrowing with an Interest Period of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid Request), each day
prior to the last day of such Interest Period that occurs at intervals of 90
days' duration after the first day of such Interest Period, and any other dates
that are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the Company may elect and (b) with respect to any
Fixed Rate Borrowing, the period (which shall not be less than 7 days or more
than 180 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of any Eurodollar Borrowing, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (ii) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period and
(iii) no Interest Period shall end after the Maturity Date. For purposes hereof,
the date of a Borrowing initially shall be the date on which such Borrowing is
made and, in the case of a Committed Borrowing, thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
"Issuing Bank" means Wachovia Bank, National Association, in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.06(j).
"Joint Lead Arrangers" means Wachovia Capital Markets LLC and
Citigroup Global Markets, Inc.
"LC Disbursement" means a payment made by the Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the applicable Borrower at such time. The LC Exposure of any Lender
at any time shall be its Applicable Percentage of the total LC Exposure at such
time.
"Lender" has the meaning specified in the introduction to this
Agreement.
"Lenders" has the meaning specified in the introduction to this
Agreement. Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lender.
"Letter of Credit" means any Existing Letter of Credit or any letter
of credit issued pursuant to this Agreement.
-13-
"Letter of Credit Request" has the meaning specified in Section 2.06.
"LIBOR" means for any Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page 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 clause (a) does not
appear on such page or service or such page or service shall not 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 clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as the
rate of interest 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 Loan as to which such determination is being made (or, if Wachovia is
making or converting a simultaneous Eurodollar Loan in the approximate amount of
such Eurodollar Loan being made, continued or converted by Wachovia) and with a
term equivalent to such Interest Period would be offered by Wachovia's London
branch to major banks in the London interbank eurodollar market at their request
at approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period.
"LIBOR Rate" shall mean, with respect to any Eurodollar Loan for any
Interest Period for such Loan, a rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) determined by the Administrative Agent to be equal
to the quotient of (i) LIBOR for such Loan for such Interest Period divided by
(ii) 1 minus the Reserve Requirement for such Loan for such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.
"Loan Documents" mean, collectively, this Agreement (including the
Guaranty), the Notes, if any, the Applications, the Fee Letter and all other
instruments and documents from time to time executed and delivered by either
Borrower in connection herewith and therewith.
"Loans" means advances made by the Lenders to the Company pursuant to
this Agreement.
-14-
"Margin" means, with respect to any Competitive Loan bearing interest
at a rate based on the LIBOR Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBOR Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Material Adverse Effect" means, relative to any occurrence of
whatever nature, a material adverse effect on (a) the business assets,
liabilities or financial condition of the Company and the Subsidiaries taken as
a whole, (b) the ability of the Borrowers to collectively perform the
Obligations or (c) the rights of the Administrative Agent, the Issuing Bank or
any Lender against the Borrower under any material provision of this Agreement
or any other Loan Document.
"Material Subsidiary" means any Subsidiary the value of the assets of
which exceeds 5% of Consolidated Assets.
"Maturity Date" means the earlier of (a) August 17, 2009, and (b) the
acceleration of the Obligations pursuant to Section 7.01.
"Maximum Rate" has the meaning specified in Section 10.13.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Income" means with respect to any Person for any period that net
income of such Person for such period determinant in accordance with GAAP;
provided that there shall be excluded, without duplication, 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 of such Person 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 write-ups or
write-downs of assets; and
(d) proceeds of any key man insurance, or any
insurance on property, plant or equipment.
"Net Worth" means, as to the Company at any date, the amount of
partners' capital of the Company determined as of such date in accordance with
GAAP.
"Note" means a Committed Note or a Competitive Note.
"Notice of Account Designation" has the meaning specified in Section
2.07.
-15-
"Notice of Default" has the meaning specified in Section 7.01.
"Notice of Prepayment" has the meaning specified in Section 2.11.
"Obligations" means collectively:
(a) the payment of all indebtedness and liabilities by, and
performance of all other obligations of, the Company in respect of the Loans;
(b) all obligations of the Company and the Subsidiary Borrower under,
with respect to, and relating to the Letters of Credit whether contingent or
matured;
(c) the payment of all other indebtedness and liabilities by and
performance of all other obligations of, the Company and the Subsidiary Borrower
to the Administrative Agent, the Issuing Bank and the Lenders under, with
respect to, and arising in connection with, the Loan Documents, and the payment
of all indebtedness and liabilities of the Company and the Subsidiary Borrower
to the Administrative Agent, the Issuing Bank and the Lenders for fees, costs,
indemnification and expenses (including reasonable attorneys' fees and expenses)
under the Loan Documents;
(d) the reimbursement of all sums advanced and costs and expenses
incurred by the Administrative Agent under any Loan Document (whether directly
or indirectly) in connection with the Obligations or any part thereof or any
renewal, extension or change of or substitution for the Obligations or, any part
thereof, whether such advances, costs and expenses were made or incurred at the
request of either Borrower or the Administrative Agent; and
(e) all renewals, extensions, amendments and changes of, or
substitutions or replacements for, all or any part of the items described under
clauses (a) through (d) above.
"OECD" means the Organization for Economic Cooperation and
Development (or any successor).
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Participant" has the meaning specified in Section 10.05(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Performance Level" means a reference to one of Performance Level I,
Performance Level II, Performance Level III, Performance Level IV or Performance
Level V.
"Performance Level I" means, at any date of determination, that the
Company shall have a Company Debt Rating in effect on such date of at least A-
by S&P or at least A3 by Moody's.
-16-
"Performance Level II" means, at any date of determination, (a) that
the Performance Level does not meet the requirements of Performance Level I and
(b) that the Company shall have a Company Debt Rating in effect on such date of
at least BBB+ by S&P or at least Baa1 by Moody's.
"Performance Level III" means, at any date of determination, (a) that
the Performance Level does not meet the requirements of Performance Level I or
Performance Level II and (b) that the Company shall have a Company Debt Rating
in effect on such date of at least BBB by S&P or at least Baa2 by Moody's.
"Performance Level IV" means, at any date of determination, (a) that
the Performance Level does not meet the requirements of Performance Level I,
Performance Level II or Performance Level III and (b) that the Company shall
have a Company Debt Rating in effect on such date of at least BBB- by S&P or at
least Baa3 by Moody's.
"Performance Level V" means, at any date of determination, that the
Performance Level does not meet the requirements of Performance Level I,
Performance Level II, Performance Level III or Performance Level IV.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.03;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.03;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Company or any Subsidiary;
(f) judgment and attachment Liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal proceeding
that are being contested in compliance with Section 5.03;
(g) any interest or title of a lessor in property subject to any
Capital Lease Obligation or operating lease which, in each case, is permitted
under this Agreement; and
-17-
(h) Liens in favor of collecting or payor banks having a right of
setoff, revocation, refund or chargeback with respect to money or instruments of
the Company or any Subsidiary on deposit with or in possession of such bank;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness, except as provided in clause (g) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any member of its ERISA Group is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Plantation Pipe Line" means Plantation Pipe Line Company, a Delaware
and Virginia corporation.
"Pledged Bonds" has the meaning specified in Section 2.06.
"Prime Rate" shall mean the rate of interest from time to time
announced publicly by the Administrative Agent at the Principal Office as its
prime commercial lending rate. Such rate is set by the Administrative Agent as a
general reference rate of interest, taking into account such factors as the
Administrative Agent may deem appropriate, it being understood that many of the
Administrative Agent's commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate actually charged to any
customer and that the Administrative Agent may make various commercial or other
loans at rates of interest having no relationship to such rate.
"Principal Office" shall mean the principal office of the
Administrative Agent, presently located at 000 Xxxxx Xxxxxxx Xxxxxx, XX-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 or such other location as designated by the
Administrative Agent from time to time.
"Register" has the meaning specified in Section 10.05.
"Regulation A" means Regulation A of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Regulation D" means Regulation D of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Regulation T" means Regulation T of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Regulation U" means Regulation U of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
-18-
"Regulation X" means Regulation X of the Board, as the same is from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Committed
Credit Exposures and unused Commitments representing more than 50% of the sum of
the total Committed Credit Exposures and unused Commitments at such time.
"Requirement of Law" shall mean any law, statute, code, ordinance,
order, determination, rule, regulation, judgment, decree, injunction, franchise,
permit, certificate, license, authorization or other directive or requirement
(whether or not having the force of law), including Environmental Laws, energy
regulations and occupational, safety and health standards or controls, of any
Governmental Authority.
"Reserve Requirement" means, for any day as applied to a Eurodollar
Loan, the aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including basic,
supplemental, marginal and emergency reserves under any regulations of the Board
or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D) maintained by a
member bank of the Federal Reserve System. Eurodollar Loans shall be deemed to
constitute Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to any Lender under Regulation D.
"Responsible Officer" means, as used with respect to the Company or
the Subsidiary Borrower, the Chairman, Vice Chairman, President, any Vice
President, Chief Executive Officer, Chief Financial Officer Controller or
Treasurer of the Delegate.
"Restricted Payment" means any distribution (whether in cash,
securities or other property) with respect to any partnership interest in the
Company, or any payment (whether in cash, securities or other property),
including any deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such partnership interest or any
option or other right to acquire any such partnership interest; provided,
however, that (a) distributions with respect to the partnership interests in the
Company that do not exceed, with respect to any fiscal quarter of the Company,
the amount of Available Cash for such quarter shall not constitute Restricted
Payments so long as both before and after the making of such distribution, no
Event of Default or Default shall have occurred and be continuing, (b) any
partnership interest split, partnership interest reverse split, dividend of
Company partnership interests or similar transaction will not constitute a
Restricted Payment, (c) the application by the Company after the date of this
Agreement to the purchase, redemption, retirement, cancellation, or termination
of partnership interests in the Company of an aggregate amount not greater than
the excess of (i) $100,000,000, over (ii) the aggregate amount of all amounts
applied to such purchases, redemptions, retirements, cancellations or
terminations during the period beginning
-19-
one day after the Effective Date and extending through and including the date of
this Agreement shall not constitute Restricted Payments, and (d) acquisitions by
officers, directors and employees of the Company of partnership interests in the
Company through cashless exercise of options pursuant to the Company's Common
Unit Option Plan shall not constitute Restricted Payments.
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to its function.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent. Unless the context
otherwise clearly requires, references in this Agreement to a "Subsidiary" or
the "Subsidiaries" refer to a Subsidiary or the Subsidiaries of the Company.
Notwithstanding the foregoing, Plantation Pipe Line shall not be a Subsidiary of
the Company until such time as its assets and liabilities, profit or loss and
cash flow are required under GAAP to be consolidated with those of the Company.
"Subsidiary Borrower" has the meaning specified in the introduction
to this Agreement.
"Subsidiary Borrower Letter of Credit" means irrevocable letter of
credit No. 5113181 issued by First Union National Bank (now Wachovia) in the
original face amount of $24,128,548 for the account of the Subsidiary Borrower
and for the benefit of Trustee in the form of Exhibit 1.01B-1 hereto.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means Wachovia Bank, National Association, in its
capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Swingline Note" means a promissory note of the Company payable to
the order of the Swingline Lender in substantially the form of Exhibit 1.01-E,
together with all modifications, extensions, renewals and rearrangements
thereof.
-20-
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Capitalization" means, as to the Company at any date, the sum
of Consolidated Indebtedness (determined at such date) and the Net Worth
(determined as at the end of the most recent fiscal quarter of the Company for
which financial statements pursuant to Section 5.01(a) or Section 5.01(b), as
applicable, have been delivered).
"Total Commitment" means the sum of the Commitments of the Lenders.
"Transactions" means the execution, delivery and performance by the
Borrowers of this Agreement and the other Loan Documents, the borrowing of
Loans, the use of the proceeds thereof and the Existing Letters of Credit and
the issuance of the other Letters of Credit hereunder.
"Trustee" means Bank One, Texas, NA, as the beneficiary of the
Subsidiary Borrower Letter of Credit and any successor beneficiary.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBOR Rate or the Alternate Base
Rate.
"United States" and "U.S." each means United States of America.
"Utilization Fee" has the meaning specified in Section 2.12(d).
"Utilization Fee Rate" means at any time and from time to time, a
percentage per annum equal to the applicable percentage set forth below for the
corresponding Performance Level set forth below:
---------------------------------------
Utilization Fee
Performance Level Rate
---------------------------------------
I .075%
---------------------------------------
II .125%
---------------------------------------
III .125%
---------------------------------------
IV .125%
---------------------------------------
V .250%
---------------------------------------
The Utilization Fee Rate shall be determined by reference to the Performance
Level in effect from time to time, and any change in the Utilization Fee Rate
shall be effective from the effective date of the change in the applicable
Performance Level giving rise thereto.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the
-21-
election of members of the Board of Directors or other governing body of such
Person or its managing member or its general partner (or its managing general
partner if there is more than one general partner).
"Wachovia" means Wachovia Bank, National Association, in its
individual capacity.
"Wholly-owned Subsidiary" means a Subsidiary of which all issued and
outstanding Capital Stock (excluding (a) in the case of a corporation,
directors' qualifying shares, (b) in the case of a limited partnership, a 2%
general partner interest and (c) in the case of a limited liability company, a
2% managing member interest) is directly or indirectly owned by the Company.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Committed Loan" or a "Competitive Loan") or by Type (e.g., a "Eurodollar Loan")
or by Class and Type (e.g., a "Eurodollar Committed Loan" or a "Fixed Rate
Loan"). Borrowings also may be classified and referred to by Class (e.g., a
"Committed Borrowing" or a "Competitive Borrowing") or by Type (e.g., a
"Eurodollar Borrowing" or a "Fixed Rate Borrowing") or by Class and Type (e.g.,
a "Eurodollar Committed Borrowing" or a "Fixed Rate Competitive Borrowing").
SECTION 1.03 Accounting Terms; Changes in GAAP. All accounting and
financial terms used herein and not otherwise defined herein and the compliance
with each covenant contained herein which relates to financial matters shall be
determined in accordance with GAAP applied by the Company on a consistent basis,
except to the extent that a deviation therefrom is expressly stated. Should
there be a change in GAAP from that in effect on the Execution Date, such that
any of the defined terms set forth in Section 1.01 and/or compliance with the
covenants set forth in Article VI would then be calculated in a different manner
or with different components or any of such covenants and/or defined terms used
therein would no longer constitute meaningful criteria for evaluating the
matters addressed thereby prior to such change in GAAP (a) the Company and the
Required Lenders agree, within the 60-day period following any such change, to
negotiate in good faith and enter into an amendment to this Agreement in order
to modify the defined terms set forth in Section 1.01 or the covenants set forth
in Article VI, or both, in such respects as shall reasonably be deemed necessary
by the Required Lenders that the criteria for evaluating the matters addressed
by such covenants are substantially the same criteria as were effective prior to
any such change in GAAP, and (b) the Company shall be deemed to be in compliance
with such covenants during the 60-day period following any such change, or until
the earlier date of execution of such amendment, if and to the extent that the
Company would have been in compliance therewith under GAAP as in effect
immediately prior to such change.
SECTION 1.04 Interpretation. In this Agreement, unless a clear
contrary intention appears:
-22-
(i) the singular number includes the plural number and vice versa;
(ii) reference to any gender includes each other gender;
(iii) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(iv) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity or individually;
provided that nothing in this clause (iv) is intended to authorize any
assignment not otherwise permitted by this Agreement;
(v) except as expressly provided to the contrary herein, reference to
any agreement, document or instrument (including this Agreement) means such
agreement, document or instrument as amended, supplemented or modified, or
extended, renewed, refunded, substituted or replaced, and in effect from
time to time in accordance with the terms thereof and, if applicable, the
terms hereof, and reference to any Note or other note or Indebtedness or
other indebtedness includes any note or indebtedness issued pursuant hereto
in extension or renewal or refunding thereof or in substitution or
replacement therefor;
(vi) unless the context indicates otherwise, reference to any Article,
Section, Schedule or Exhibit means such Article or Section hereof or such
Schedule or Exhibit hereto;
(vii) the word "including" (and with correlative meaning "include")
means including, without limiting the generality of any description
preceding such term;
(viii)with respect to the determination of any period of time, except
as expressly provided to the contrary, the word "from" means "from and
including" and the word "to" means "to but excluding";
(ix) reference to any law, rule or regulation means such as amended,
modified, codified or reenacted, in whole or in part, and in effect from
time to time; and
(x) the words "asset" and "property" shall be construed to have the
same meaning and effect and refer to any and all tangible and intangible
assets and properties.
-23-
ARTICLE II.
THE CREDITS
SECTION 2.01 Commitments. (a) Subject to the terms and conditions set
forth herein, each Lender agrees to make Committed Loans to the Company from
time to time during the Availability Period in an aggregate principal amount
that will not result in (i) such Lender's Committed Credit Exposure exceeding
such Lender's Commitment or (ii) the sum of the total Committed Credit
Exposures, plus the aggregate principal amount of outstanding Competitive Loans,
exceeding the Total Commitment. In furtherance of the foregoing, the aggregate
amount of the Total Commitment shall be deemed used from time to time to the
extent of the aggregate amount of the Competitive Loans then outstanding, and
such deemed use of the Total Commitment shall be applied to the Lenders ratably
according to their respective Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Company may borrow,
prepay and reborrow Committed Loans.
(b) The Company shall have the right, without the consent of the
Lenders but with the prior approval of the Administrative Agent, not to be
unreasonably withheld, to cause from time to time an increase in the total
Commitments of the Lenders by adding to this Agreement one or more additional
Lenders or by allowing one or more Lenders to increase their respective
Commitments; provided however (i) no Default or Event of Default shall have
occurred hereunder which is continuing, (ii) no such increase shall cause the
aggregate Commitments hereunder to exceed $1,500,000,000 and (iii) no Lender's
Commitment shall be increased without such Lender's consent.
SECTION 2.02 Loans and Borrowings. (a) Each Committed Loan shall be
made as part of a Borrowing consisting of Committed Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Committed Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Company may request
in accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as the Company may request in
accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of the Company to repay such Loan
in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Committed Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $3,000,000. At the time that
each ABR Committed Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $1,000,000;
provided that an ABR Committed Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the Total Commitment or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
-24-
2.06(f). Each Swingline Loan shall be in an amount that is an integral multiple
of $100,000 and not less than $5,000,000. Each Competitive Bid Request shall be
in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $25,000,000. Borrowings of more than one Type and Class may be outstanding
at the same time; provided that there shall not at any time be more than a total
of twelve Eurodollar Committed Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Company shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03 Requests for Committed Borrowings. To request a
Committed Borrowing, the Company shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
10:00 a.m., Charlotte, North Carolina, time, three Business Days before the date
of the proposed Borrowing and (b) in the case of an ABR Borrowing, not later
than 10:00 a.m., Charlotte, North Carolina, time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form of Exhibit 2.03 (a "Borrowing Request")
and signed by the Company. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(v) the location and number of the Company's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.07.
If no election as to the Type of Committed Borrowing is specified,
then the requested Committed Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Eurodollar Committed
Borrowing, then the Company shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section 2.03, the Administrative Agent shall advise each
Lender of the details thereof and of the amount of such Lender's Loan to be made
as part of the requested Borrowing.
SECTION 2.04 Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Company may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Committed Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans, at any time shall not
-25-
exceed the Total Commitment. To request Competitive Bids, the Company shall
notify the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 10:00 a.m., Charlotte, North Carolina,
time, four Business Days before the date of the proposed Borrowing and, in the
case of a Fixed Rate Borrowing, not later than 10:00 a.m., Charlotte, North
Carolina, time, one Business Day before the date of the proposed Borrowing;
provided that the Company may submit up to (but not more than) three Competitive
Bid Requests on the same day, but a Competitive Bid Request shall not be made on
any of the five Business Days next succeeding the date of any previous
Competitive Bid Request, unless any and all such previous Competitive Bid
Requests shall have been withdrawn or all Competitive Bids received in response
thereto rejected. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Competitive Bid Request signed by the Company. Each such telephonic and
written Competitive Bid Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Company's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy (in substantially the form set forth in Exhibit 2.04-B),
inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to the Company in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be substantially the form of
Exhibit 2.04-C and must be received by the Administrative Agent by telecopy, in
the case of a Eurodollar Competitive Borrowing, not later than 10:00 a.m.,
Charlotte, North Carolina, time, three Business Days before the proposed date of
such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later
than 10:00 a.m., Charlotte, North Carolina, time, on the proposed date of such
Competitive Borrowing. Competitive Bids that do not conform substantially to the
form of Exhibit 2.04-C may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested by the Company) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per annum in
the form of a decimal to no more than four decimal places) and (iii) the
-26-
Interest Period applicable to each such Loan and the last day thereof (which
shall conform to that specified in the Company's related Competitive Bid
Request).
(c) The Administrative Agent shall promptly notify the Company by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Company may
accept or reject any Competitive Bid in whole or (to the extent herein below
provided) in part. The Company shall notify the Administrative Agent by
telephone, confirmed by telecopy in a form approved by the Administrative Agent,
whether and to what extent it has decided to accept or reject each Competitive
Bid, in the case of a Eurodollar Competitive Borrowing, not later than 11:30
a.m., Charlotte, North Carolina, time, three Business Days before the date of
the proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing,
not later than 11:30 a.m., Charlotte, North Carolina, time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of the Company to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Company shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Company rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Company shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Company may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Company. A notice given by the Company pursuant to this Section 2.04(d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
After completing the notifications referred to in the immediately preceding
sentence, the Administrative Agent shall notify each Lender of the aggregate
principal amount of all Competitive Bids accepted.
(f) Upon determination by the Administrative Agent of the LIBOR Rate
applicable to any Eurodollar Competitive Loan to be made by any Lender pursuant
to a Competitive Bid that has been accepted by a Company pursuant to Section
2.04(d), the Administrative Agent shall notify such Lender of (i) the applicable
LIBOR Rate and (ii) the sum of the applicable LIBOR Rate plus the Margin bid by
such Lender.
-27-
(g) If the Administrative Agent or any of its Affiliates shall at any
time have a Commitment hereunder and shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
Company at least one quarter of an hour earlier than the time by which the other
Lenders are required to submit their Competitive Bids to the Administrative
Agent pursuant to paragraph (b) of this Section.
SECTION 2.05 Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Company from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $25,000,000
or (ii) the sum of the total Committed Credit Exposures, plus the aggregate
principal amount of outstanding Competitive Loans, exceeding the Total
Commitment; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Company may
borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Company shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, Charlotte, North Carolina, time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested
Swingline Loan. The Administrative Agent (if not the Swingline Lender) will
promptly advise the Swingline Lender of any such notice received from the
Company. So long as the Swingline Lender and the Administrative Agent are
Wachovia or (if not Wachovia), the same institution is acting both as the
Administrative Agent and as the Swingline Lender, the Swingline Lender shall
make each Swingline Loan available to the Company by means of a credit to the
deposit account of the Company with the Swingline Lender identified in the most
recent Notice of Account Designation by 3:00 p.m., Charlotte, North Carolina,
time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, Charlotte, North Carolina, time,
on any Business Day require the Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or Event of Default or reduction or termination of
the Total Commitment, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Each Lender shall comply
with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.07 with respect to
Loans made by such Lender (and Section 2.07 shall apply, mutatis mutandis, to
the payment
-28-
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Company of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and not
to the Swingline Lender. Any amounts received by the Swingline Lender from the
Company (or other party on behalf of the Company) in respect of a Swingline Loan
after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the Swingline Lender, as their interests may
appear. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Company or the Subsidiary Borrower of any
default in the payment thereof.
SECTION 2.06 Letters of Credit.
(a) Existing Letters of Credit. The parties hereto acknowledge that
on and after the Effective Date the Existing Letters of Credit shall be Letters
of Credit issued by the Issuing Bank for the account of the Subsidiary Borrower
in the case of the Subsidiary Borrower Letter of Credit, and the Company with
respect to all other Existing Letters of Credit pursuant to this Agreement. The
Subsidiary Borrower hereby pledges, assigns, transfers and delivers to the
Issuing Bank all its right, title and interest to all Bonds purchased with funds
drawn under the Subsidiary Borrower Letter of Credit (the "Pledged Bonds"), and
hereby grants to the Issuing Bank a first lien on, and security interest in, its
rights, title and interest in and to the Pledged Bonds, the interest thereon and
all proceeds thereof or substitutions therefor, as collateral security for the
prompt and complete payment when due of the amounts payable in respect of the
Subsidiary Borrower Letter of Credit. During such time as any Bonds are Pledged
Bonds, the Issuing Bank shall be entitled to exercise all of the rights of a
holder of Bonds with respect to voting, consenting and directing the Trustee as
if the Issuing Bank were the owner of such Bonds, and the Subsidiary Borrower
hereby grants and assigns to the Issuing Bank all such rights.
(b) General. Subject to the terms and conditions set forth herein,
the Company may request the issuance of Letters of Credit for its own account
individually or for its own account and that of any Subsidiary as co-applicants,
in a form reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time during the Availability Period. In the
event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any Application (as defined in Section 2.06(c))
or other agreement submitted by the Company to, or entered into by the Company
with, the Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.
(c) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Company shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (not less than five Business Days in advance of the
requested date of issuance, amendment, renewal or extension) a notice (a "Letter
of Credit Request") requesting the issuance of a Letter of
-29-
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
the date of issuance, amendment, renewal or extension, the date on which such
Letter of Credit is to expire (which shall comply with Section 2.06(d)), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Company also
shall submit a letter of credit application on the Issuing Bank's standard form
(an "Application") in connection with any request for a Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Company
shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed
$300,000,000 and (ii) the sum of the total Committed Credit Exposures, plus the
aggregate principal amounts of outstanding Competitive Loans, at any time shall
not exceed the Total Commitment. Upon the issuance, amendment, renewal or
extension of each Letter of Credit, the Issuing Bank will notify the
Administrative Agent, who, in turn, will notify the Lenders, of the amount and
type of such Letter of Credit that is issued, amended, renewed or extended
pursuant to this Agreement.
(d) Expiration Date. Each Letter of Credit (other than the Subsidiary
Borrower Letter of Credit) shall expire at or prior to the close of business on
the earlier of (i) the date one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension thereof, one year
after such renewal or extension) and (ii) the date that is five Business Days
prior to the Maturity Date.
(e) Participations. On the Effective Date with respect to the
Existing Letters of Credit and by the issuance of each other Letter of Credit
(or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
the Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the Issuing Bank, such Lender's
Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Company on the date due as provided in Section 2.06(f), or of
any reimbursement payment required to be refunded to the Company for any reason.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or an Event of Default or
reduction or termination of the Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever.
(f) Reimbursement. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower for whose account such Letter of
Credit was issued shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, Charlotte, North Carolina, time, on the date that such LC
Disbursement is made, if such Borrower shall have received notice of such LC
Disbursement prior to 10:00 a.m., Charlotte, North Carolina, time, on such date,
or, if such notice has not been received by such Borrower prior to such time on
such date, then not later
-30-
than 12:00 noon, Charlotte, North Carolina, time, on (i) the Business Day that
such Borrower receives such notice, if such notice is received prior to 10:00
a.m., Charlotte, North Carolina, time, on the day of receipt, or (ii) the
Business Day immediately following the day that such Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt;
provided that if such Borrower fails to make such payment when due, then, upon
demand by the Issuing Bank sent to the Administrative Agent and each Lender
before 10:00 a.m., Charlotte, North Carolina, time, each Lender shall pursuant
to Section 2.07 on the same day make available to the Administrative Agent for
delivery to the Issuing Bank, immediately available funds in an amount equal to
such Lender's Applicable Percentage of the amount of such payment by the Issuing
Bank, and the funding of such amount shall be treated as the funding of an ABR
Loan by such Lender to such Borrower. Notwithstanding anything herein or in any
other Loan Document to the contrary, the funding obligations of the Lenders set
forth in this Section 2.06(f) shall be binding regardless of whether or not a
Default or an Event of Default shall exist or the other conditions precedent in
Article III are satisfied at such time. If and to the extent any Lender fails to
effect any payment due from it under this Section 2.06(f) to the Administrative
Agent, then interest shall accrue on the obligation of such Lender to make such
payment from the date such payment became due to the date such obligation is
paid in full at a rate per annum equal to the Federal Funds Effective Rate. The
failure of any Lender to pay its Applicable Percentage of any payment under any
Letter of Credit shall not relieve any other Lender of its obligation hereunder
to pay to the Administrative Agent its Applicable Percentage of any payment
under any Letter of Credit on the date required, as specified above, but no
Lender shall be responsible for the failure of any other Lender to pay to the
Administrative Agent such other Lender's Applicable Percentage of any such
payment.
(g) Obligations Absolute. The Company's obligation to reimburse (or
in the case of the Subsidiary Borrower Letter of Credit, the Subsidiary
Borrower's obligation to reimburse) LC Disbursements as provided in Section
2.06(f) shall, to the extent permitted by law, be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit,
this Agreement or any other Loan Document, or any term or provision herein
or therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit, this Agreement or any
other Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
either Borrower, or any Affiliate thereof or any other Person may at any
time have against the beneficiary under any Letter of Credit, the Issuing
Bank, the Administrative Agent or any Lender or any other Person, whether
in connection with this Agreement or any other related or unrelated
agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect;
(v)
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other Person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section 2.06,
constitute a legal or equitable discharge of either Borrower's obligations
hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder, including any of the
circumstances specified in clauses (i) through (vi) above, as well as any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower for whose
account such Letter of Credit was issued to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by each Borrower to the extent permitted by applicable law) suffered by such
Borrower that are caused by the Issuing Bank's failure to exercise the agreed
standard of care (as set forth below) in determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that the Issuing Bank shall have exercised the
agreed standard of care in the absence of gross negligence, willful misconduct
or unlawful conduct on the part of the Issuing Bank. Without limiting the
generality of the foregoing, it is understood that the Issuing Bank may accept
documents that appear on their face to be in substantial compliance with the
terms of a Letter of Credit, without responsibility for further investigation,
regardless of any notice or information to the contrary, and may make payment
upon presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit; provided that the Issuing
Bank shall have the right, in its sole discretion, to decline to accept such
documents and to make such payment if such documents are not in strict
compliance with the terms of such Letter of Credit.
(h) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower for whose account such Letter
of Credit was issued by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice
shall not relieve either Borrower of its obligation to reimburse the Issuing
Bank and the Lenders with respect to any such LC Disbursement.
(i) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Company (or, in the case of the Subsidiary
Borrower Letter of Credit, the Subsidiary Borrower) shall reimburse such LC
Disbursement in full on the date specified in
-32-
Section 2.06(f), the unpaid amount thereof shall bear interest, for each day
from the date such LC Disbursement is made to the date that the Company (or, in
the case of the Subsidiary Borrower Letter of Credit, the Subsidiary Borrower)
reimburses such LC Disbursement (or all Lenders make the payments to the
Administrative Agent contemplated by Section 2.06(f) and treated pursuant to
said Section as constituting the funding of ABR Loans), at the rate per annum
then applicable to ABR Committed Loans.
(j) Replacement of the Issuing Bank. The Issuing Bank may be replaced
at any time by written agreement among the Borrowers, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Borrowers shall pay
all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(k) Cash Collateralization. If (i) any Event of Default shall occur
and be continuing, on the Business Day that the Company receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 51% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph or (ii) a Change in Control shall occur, the Company shall deposit in
an account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or notice of any kind, upon the occurrence of any Event of Default with
respect to either Borrower described in clause (g) or (h) of Section 7.01. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrowers under this Agreement and the
other Loan Documents. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits (which investments
shall be made at the option and sole discretion of the Administrative Agent, but
only in investments rated at least AA (or equivalent) by at least one nationally
recognized rating agency, if such deposit has been made by reason of a Change in
Control having occurred, and in any event at the Company's risk and expense)
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account and may, subject to the immediately
preceding sentence be reinvested from time to time. Moneys in such account shall
be applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrowers for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but
-33-
subject to the consent of Lenders with LC Exposure representing greater than 51%
of the total LC Exposure), be applied to satisfy other obligations of the
Borrowers under this Agreement and the other Loan Documents. If the Company is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Company within three Business Days after all
Events of Default have been cured or waived.
SECTION 2.07 Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 2:00 p.m., Charlotte, North Carolina, time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.05. Not later than 2:00 p.m. (Charlotte, North Carolina,
time) on the proposed Borrowing Date, each Lender will make available to the
Administrative Agent, for the account of the Company, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent,
such Lender's Loans to be made on such Borrowing Date. The Company hereby
irrevocably authorizes the Administrative Agent to disburse the proceeds of each
Borrowing requested pursuant to this Section 2.07 in immediately available funds
by crediting or wiring such proceeds to the deposit account of the Company
identified in the most recent Notice of Account Designation substantially in the
form of Exhibit 2.07 hereto (a "Notice of Account Designation") delivered by the
Company to the Administrative Agent or otherwise agreed upon by the Company and
the Administrative Agent from time to time; provided that ABR Committed Loans
made to finance the reimbursement of an LC Disbursement as provided in Sections
2.06(e) and (f) shall be remitted by the Administrative Agent to the Issuing
Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing (or prior to 12:00 noon,
Charlotte, North Carolina, time, on such date in the case of an ABR Borrowing)
that such Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with Section
2.07(a) and may, in reliance upon such assumption, make available to the Company
a corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Company severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from the date such amount is made available to the Company
to the date of payment to the Administrative Agent, at (i) in the case of such
Lender, the Federal Funds Effective Rate or (ii) in the case of the Company, the
interest rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.08 Interest Elections. (a) Subject to Section 2.14, each
Committed Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Committed Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, subject to Section 2.14, the Company may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Committed Borrowing, may elect Interest Periods therefor, all as
provided in this Section 2.08. The Company may elect different options with
-34-
respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section 2.08 shall not apply to
Competitive Borrowings or Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section 2.08, the Company
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Company
were requesting a Committed Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in the form of Exhibit 2.08 (an "Interest Election Request").
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing
but does not specify an Interest Period, then the Company shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Company fails to deliver a timely Interest Election
Request with respect to a Eurodollar Committed Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
and so long as an Event of Default is continuing (i) no outstanding Committed
Borrowing may be converted to or continued as a Eurodollar Borrowing and
-35-
(ii) unless repaid, each Eurodollar Committed Borrowing shall be converted to an
ABR Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.09 Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Company may at any time terminate, or from time to time
reduce, the Total Commitment, in whole or in part; provided that (i) each
partial reduction of the Total Commitment shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Company shall not terminate or reduce the Commitments if, after giving effect to
any concurrent prepayment of the Loans in accordance with Section 2.11, the sum
of the total Committed Credit Exposures, plus the aggregate principal amount of
outstanding Competitive Loans, would exceed the Total Commitment.
(c) The Company shall notify the Administrative Agent of any election
to terminate or reduce the Total Commitment under Section 2.09(b) at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Company pursuant to this Section
2.09 shall be irrevocable; provided that a notice of termination of the Total
Commitment delivered by the Company may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may
be revoked by the Company (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Total Commitment shall be permanent. Each
reduction of the Total Commitment shall be made ratably among the Lenders in
accordance with their respective Commitments.
(d) The Total Commitment shall automatically terminate on the date a
Change in Control occurs.
SECTION 2.10 Repayment of Loans; Evidence of Debt. (a) The Company
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Committed Loan
on the Maturity Date, (ii) to the Administrative Agent for the account of each
Lender having a Competitive Loan outstanding the then unpaid principal amount of
each Competitive Loan on the last day of the Interest Period applicable to such
Loan, and (iii) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on demand therefor by the Swingline Lender. In addition, if the
sum of the total Committed Credit Exposures, plus the aggregate principal amount
of the outstanding Competitive Loans, exceeds the Total Commitment, the Company
shall pay to the Administrative Agent for the account of each Lender an
aggregate principal amount of Committed Loans sufficient to cause the sum of the
total Committed Credit Exposures, plus the aggregate principal amount of the
outstanding Competitive Loans, not to exceed the Total Commitment; provided,
however, if the repayment of the outstanding Committed Loans does not cause the
total Committed Credit Exposures, plus the aggregate principal amount of the
outstanding Competitive Loans, to be equal to or less than the Total Commitment,
the Company shall deposit in an account with the Administrative Agent in the
name of the Administrative Agent and for the benefit of the Lenders, an amount
in cash equal to the amount by which the
-36-
sum of the total Committed Credit Exposures, plus the aggregate principal amount
of the outstanding Competitive Loans, exceeds the Total Commitment, which cash
deposit shall be held by the Administrative Agent for the payment of the
Obligations of the Borrowers under this Agreement and the other Loan Documents.
The Administrative Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account other than any interest
earned on the investment of such deposit (which investments shall be made at the
option and sole discretion of the Administrative Agent, but only in investments
rated at least AA (or equivalent) by at least one nationally recognized rating
agency, unless an Event of Default shall have occurred and be continuing, and in
any event at the Company's risk and expense). Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrowers for the LC Exposure at such time, or if the maturity of the Loans
has been accelerated (but subject to the consent of the Lenders with LC Exposure
representing greater than 51% of the total LC Exposure), be applied to satisfy
other obligations of the Borrowers under this Agreement and the other Loan
Documents. At any time when the sum of the total Committed Credit Exposures,
plus the aggregate principal amount of outstanding Competitive Loans, does not
exceed the Total Commitment and so long as no Default or Event of Default shall
then exist, upon the request of the Company the amount of such deposit (to the
extent not applied as aforesaid) shall be returned to the Company within three
Business Days after receipt of such request.
(b) On the date that a Change in Control occurs, the Company shall
repay the outstanding principal amount of the Loans and all other amounts
outstanding hereunder and under the other Loan Documents and shall comply with
the provisions of Section 2.06(k).
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(d) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(e) The entries made in the accounts maintained pursuant to Section
2.10(c) or (d) shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error or conflict therein
shall not in any manner affect the obligation of the Company to repay the Loans
in accordance with the terms of this Agreement.
(f) Any Lender may request that Loans made by it be evidenced by a
Committed Note or a Competitive Note, as the case may be. In such event, the
Company shall prepare, execute and deliver to such Lender a Committed Note or a
Competitive Note, as the
-37-
case may be. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 10.05) be represented by one or more promissory notes in such forms
payable to the order of the payee named therein.
SECTION 2.11 Prepayment of Loans. (a) The Company shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with Section 2.11(b); provided that
the Company shall not have the right to prepay any Competitive Loan without the
prior consent of the Lender thereof.
(b) The Company shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy in the form of Exhibit 2.11 (a "Notice of Prepayment"))
of any prepayment hereunder (i) in the case of prepayment of a Eurodollar
Committed Borrowing, not later than 11:00 a.m., Charlotte, North Carolina, time,
three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Committed Borrowing, not later than 11:00 a.m., Charlotte,
North Carolina, time, on the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 11:00 a.m., Charlotte, North
Carolina, time, on the date of prepayment. Each such notice shall be irrevocable
and shall specify the prepayment date, Type and the principal amount of each
Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.09, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.09. Each partial prepayment shall be in an aggregate amount not less
than, and shall be an integral multiple of, the amounts shown below with respect
to the applicable Type of Loan or Borrowing:
----------------------------------------------------
Type of Integral Minimum
Loan/Borrowing Multiple of Aggregate Amount
-------------- ----------- ----------------
----------------------------------------------------
Eurodollar Committed $1,000,000 $3,000,000
Borrowing
----------------------------------------------------
ABR Committed 1,000,000 1,000,000
Borrowing
----------------------------------------------------
Swingline Loan 100,000 5,000,000
----------------------------------------------------
Promptly following receipt of any such notice relating to a Committed Borrowing,
the Administrative Agent shall advise the Lenders of the contents thereof. If
the Company fails to designate the Type of Borrowings to be prepaid, partial
prepayments shall be applied first to the outstanding ABR Borrowings until all
such outstanding principal of ABR Borrowings are repaid in full, and then to the
outstanding principal amount of Eurodollar Borrowings. Each partial prepayment
of any Committed Borrowing shall be in an amount that would be permitted in the
case of an advance of a Committed Borrowing of the same Type as provided in
Section 2.02. Each prepayment of a Committed Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.13.
SECTION 2.12 Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee (the
"Facility Fee"), which shall accrue at the applicable Facility Fee Rate on the
daily amount of the Commitment of such Lender, whether used or unused and when
the Commitment has terminated, on the outstanding Loans of such Lender, during
the period from the date of this Agreement to the later of (i) the date on which
-38-
such Commitment terminates and (ii) the date on which the Loans are paid in
full. Accrued Facility Fees shall be payable in arrears on the last Business Day
of March, June, September and December of each year and on the date on which the
Commitments terminate and the date the Loans are paid in full, commencing on the
first such date to occur after the date hereof. All Facility Fees shall be
computed on the basis of a year of 365 or 366 days, as the case may be and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(b) The Company agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at a rate per annum equal to the
Applicable Margin on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Commitment terminates and the date on
which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a
fronting fee, which shall accrue at a rate per annum equal to .125% times the
daily maximum amount available to be drawn under each Letter of Credit issued,
renewed or extended during the Availability Period, but not to exceed in any
event .125% of the original face amount of each Letter of Credit so issued,
renewed or extended. The Company also agrees to pay the Issuing Bank's standard
fees with respect to the issuance, amendment, renewal or extension of any Letter
of Credit or the processing of drawings thereunder. Accrued participation fees
and fronting fees shall be payable in arrears on the last Business Day of March,
June, September and December of each year, commencing on the first such date to
occur after the Effective Date; provided that all such fees shall be payable on
the date on which the Commitments terminate and any such fees accruing after the
date on which the Commitments terminate shall be payable on demand. Any other
fees payable to the Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All participation fees shall be computed on the
basis of a year of 365 or 366 days, as applicable, and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(c) The Company agrees to pay to each of the Administrative Agent and
Wachovia Capital Markets LLC, for their own accounts, fees payable in the
amounts and at the times specified in that letter agreement dated July 15, 2004
among the Company, the Joint Lead Arrangers, Wachovia and Citibank (as from time
to time amended, the "Fee Letter").
(d) The Company agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee (the "Utilization Fee"), which shall
accrue at the applicable Utilization Fee Rate on:
(i) each Lender's Commitment (whether used or unused) for each day
during the period from the Effective Date to the Maturity Date, on which
the sum of the total Committed Credit Exposures, plus the aggregate
principal amount of outstanding Competitive Loans, exceeds 50% of the Total
Commitment, and
(ii) each Lender's Committed Credit Exposure for each day during the
period from the Maturity Date to the date on which the Committed Credit
Exposures of all Lenders, are paid in full or reduced to zero, on the sum
of the total Committed Credit
-39-
Exposures, plus the aggregate principal amount of outstanding Competitive
Loans, exceeds 50% of the Total Commitment, determined as of the day
immediately preceding the Maturity Date.
All Utilization Fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date the Committed Credit
Exposures of all Lenders and all Competitive Loans are paid in full or reduced
to zero commencing on the first of such dates to occur after the Effective Date.
All Utilization Fees shall be computed on the basis of a year of 365 or 366
days, as the case may be, and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) (for distribution, in the case of
Facility Fees and Utilization Fees, to the Lenders). Except as required by law,
fees paid shall not be refundable under any circumstances..
SECTION 2.13 Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at a rate per annum equal to
the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest (i) in the case of a Eurodollar Committed Loan, at the LIBOR Rate for
the Interest Period in effect for such Borrowing plus the Applicable Margin or
(ii) in the case of a Eurodollar Competitive Loan, at the LIBOR Rate for the
Interest Period in effect for such Borrowing plus (or minus, as applicable) the
Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Company hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the Alternate Base Rate.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to Section 2.13(d) shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than a prepayment of an ABR Committed
Loan prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any Eurodollar
Committed Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion
and (iv) all accrued interest shall be payable upon termination of the Total
Commitment.
-40-
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
LIBOR Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14 Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the LIBOR Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, by the Lender that is required to
make such Loan) that the LIBOR Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Committed Borrowing to, or
continuation of any Committed Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Committed
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Company for a Eurodollar Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Company for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15 Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the LIBOR Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to increase the cost to
such Lender or the Issuing Bank of participating in,
-41
issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder (whether of
principal, interest or otherwise), then the Company will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's or the Issuing Bank's policies and the
policies of such Lender's or the Issuing Bank's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section 2.15 shall be delivered to the Company and shall be conclusive
absent manifest error. The Company shall pay such Lender or the Issuing Bank, as
the case may be, the amount shown as due on any such certificate within 10
Business Days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section 2.15 shall not constitute a waiver
of such Lender's or the Issuing Bank's right to demand such compensation;
provided that the Company shall not be required to compensate a Lender or the
Issuing Bank pursuant to this Section 2.15 for any increased costs or reductions
incurred more than six months prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies the Company of the Change in Law giving rise
to such increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the six-month period referred to above shall be extended to include the period
of retroactive effect thereof.
SECTION 2.16 Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan or Fixed Rate Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to borrow
(unless such failure was caused by the failure of a Lender to make such Loan),
convert, continue or prepay any Eurodollar Loan, or the failure to convert an
ABR Loan to a Eurodollar Loan, on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
under Section 2.09 and is revoked in accordance herewith), (d) the failure to
borrow any Competitive Loan after accepting the Competitive Bid to make such
Loan (unless such failure was caused by the failure of a Lender to
-42-
make such Loan), or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Company pursuant to Section 2.19, then, in any such event,
the Company shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period for
such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit were
equal to the LIBOR Rate for such Interest Period, over (ii) the amount of
interest that such Lender would earn on such principal amount for such period if
such Lender were to invest such principal amount for such period at the interest
rate that would be bid by such Lender (or an affiliate of such Lender) for
dollar deposits from other banks in the Eurodollar market at the commencement of
such period. A certificate of any Lender setting forth any amount or amounts
that such Lender is entitled to receive pursuant to this Section 2.16 shall be
delivered to the Company and shall be conclusive absent manifest error. The
Company shall pay such Lender the amount shown as due on any such certificate
within 10 Business Days after receipt thereof.
SECTION 2.17 Taxes. (a) Any and all payments by or on account of any
obligation of either Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if
either Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (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 2.17) the Administrative Agent,
Lender or Issuing Bank (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (ii) such Borrower
shall make such deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, such Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Company shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 Business Days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section 2.17(c)) paid by the Administrative Agent, such Lender or the
Issuing Bank, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Company by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Company to a Governmental Authority, the Company shall
deliver to the
-43-
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrowers are located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Company, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by either Borrower or with respect to which either
Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to such Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by such Borrower under this Section 2.17 with
respect to the Taxes and Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrowers, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to
either Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential) to
the Borrowers or any other Person.
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Company shall make or, in the case of the Subsidiary Borrower
Letter of Credit, the Subsidiary Borrower shall make, each payment required to
be made by such Borrower hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 12:00 noon, Charlotte, North Carolina, time, on the date
when due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its Principal Office, except
payments to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 10.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
-44-
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, to pay 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, and (ii) second, to pay principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Committed Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Committed Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Committed Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Committed Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by either Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
a Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of
this paragraph shall apply). Each Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against such Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Company
or the Subsidiary Borrower, as the case may be, in the amount of such
participation.
(d) Unless the Administrative Agent shall have received notice from
the Company prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Company will not make (or in the case of the Subsidiary Borrower Letter of
Credit, the Subsidiary Borrower will not make) such payment, the Administrative
Agent may assume that the applicable Borrower has made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount due. In such
event, if the applicable Borrower has not in fact made such payment, then each
of the Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender or Issuing Bank with interest thereon, for each day from the date
such amount is distributed to it to the date of payment to the Administrative
Agent, at the Federal Funds Effective Rate.
-45-
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(c), 2.06(e), 2.07(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19 Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15, or if either Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender.
(b) If any Lender requests compensation under Section 2.15, or if
either Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.05), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent (and,
if a Commitment is being assigned, the Issuing Bank and Swingline Lender), which
consent shall not be unreasonably withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Company (in the case of all other amounts) and (iii) in the case of
any such assignment resulting from a claim for compensation under Section 2.15
or payments required to be made pursuant to Section 2.17, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.
SECTION 2.20 Telephonic Notices. Without in any way limiting the
obligation of the Company or the Subsidiary Borrower to confirm in writing any
telephonic notice it is entitled to give under this Agreement or any other Loan
Document, the Administrative Agent may act without liability upon the basis of a
telephonic notice believed in good faith by the Administrative Agent to be from
the Company or the Subsidiary Borrower prior to receipt of written confirmation.
In each such case, each of the Company and the Subsidiary Borrower hereby waives
the right to dispute the Administrative Agent's record of the terms of such
telephonic notice.
-46-
ARTICLE III.
CONDITIONS PRECEDENT
SECTION 3.01 Conditions Precedent to the Initial Credit Event. The
obligations of the Lenders to make Loans hereunder or the obligation of the
Issuing Bank to issue Letters of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied or waived
in accordance with Section 10.02:
(a) The Administrative Agent shall have received the following, each
dated the Execution Date:
(i) this Agreement executed by each party hereto;
(ii) if requested by any Lender, a Committed Note and a Competitive
Note executed by the Company and payable to the order of such Lender;
(iii) a certificate of an officer and of the secretary or an
assistant secretary of the Delegate, certifying, inter alia (A) true
and complete copies of each of the limited liability company agreement
of the Delegate, the certificate of incorporation, as amended and in
effect, of the General Partner, the partnership agreements, each as amended
and in effect, of the Borrowers, the bylaws, as amended and in effect, of
the General Partner and the resolutions adopted by the Board of Directors
of the Delegate (1) authorizing the execution, delivery and performance by
each Borrower of this Agreement and the other Loan Documents to which it is
or will be a party and, in the case of the Company, the Borrowings to be
made and the Letters of Credit to be issued hereunder, (2) approving the
forms of the Loan Documents to which it is a party and which will be
delivered at or prior to the initial Borrowing Date and (3) authorizing
officers of the Delegate to execute and deliver the Loan Documents to which
such Borrower is or will be a party and any related documents, including
any agreement contemplated by this Agreement, (B) the incumbency and
specimen signatures of the officers of the Delegate executing any documents
on its behalf and (C) (1) that the representations and warranties made by
such Borrower in each Loan Document to which such Borrower is a party and
which will be delivered at or prior to the initial Borrowing Date are true
and correct in all material respects, (2) the absence of any proceedings
for the dissolution or liquidation of such Borrower and (3) the absence of
the occurrence and continuance of any Default or Event of Default;
(iv) letters from CT Corporation System, Inc. in form and substance
satisfactory to the Administrative Agent evidencing the obligation of CT
Corporation System, Inc. to accept service of process in the State of New
York on behalf of each Borrower that is not authorized to do business as a
foreign corporation in the State of New York;
(v) a favorable, signed opinion addressed to the Administrative Agent
and the Lenders from Xxxxxxxxx & Xxxxxxxxx, L.L.P., counsel to the
Borrowers, given upon the express instruction of the Borrowers; and
-47-
(vi) certificates of appropriate public officials as to the existence,
good standing and qualification to do business as a foreign entity of each
Borrower, the General Partner and the Delegate in the States of Texas and
Delaware.
(b) The Administrative Agent shall be reasonably satisfied that all
required consents and approvals of any Governmental Authority and any other
Person in connection with the transactions contemplated by this Section 3.01
shall have been obtained and remain in effect (except where the failure to
obtain such approvals would not have a Material Adverse Effect).
(c) The Company shall have paid to Wachovia Capital Markets LLC,
Citigroup Global Markets, Inc., and the Administrative Agent all fees and
expenses pursuant to the Fee Letter agreed upon by such parties to be paid on or
prior to the Execution Date.
(d) The Existing Credit Agreements shall have been terminated and all
amounts outstanding thereunder paid in full.
(e) The Company shall have paid to Xxxxxxx Xxxxx LLP pursuant to
Section 10.03 all reasonable fees and disbursements invoiced to the Company on
or prior to the Execution Date.
SECTION 3.02 Conditions Precedent to All Credit Events. Except with
respect to Committed Credit Loans made by the Lenders pursuant to Section
2.06(f), the obligation of the Lenders to make any Loans or to issue or extend
any Letter of Credit under this Agreement (including any Loan made or Letter of
Credit issued (including for the purpose of the Existing Letters of Credit) on
the initial Borrowing Date) is subject to the further conditions precedent that
on the date of such Credit Event:
(a) The conditions precedent set forth in Section 3.01 shall have
theretofore been satisfied;
(b) The representations and warranties set forth in Article IV (other
than the representation set forth in Section 4.07(c))and in the other Loan
Documents shall be true and correct in all material respects as of, and as if
such representations and warranties were made on, the Borrowing Date of the
proposed Loan or Letter of Credit, as the case may be (unless such
representation and warranty expressly relates to an earlier date), and by the
Company's delivery of a Borrowing Request, the Borrowers shall be deemed to have
certified to the Administrative Agent and the Lenders that such representations
and warranties are true and correct in all material respects;
(c) The Company shall have complied with the provisions of Section
2.03, Section 2.04 or Section 2.05, as the case may be; and
(d) No Default or Event of Default shall have occurred and be
continuing or would result from such Credit Event.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrowers to each of the Lenders that all of
the conditions specified in this Section 3.02 above exist as of that time.
-48-
SECTION 3.03 Conditions Precedent to Conversions. The obligation of
the Lenders to convert or continue any existing Borrowing into or as a
Eurodollar Borrowing is subject to the condition precedent that on the date of
such conversion or continuation no Default or Event of Default shall have
occurred and be continuing or would result from the making of such conversion.
The acceptance of the benefits of each such conversion or continuation shall
constitute a representation and warranty by the Borrowers to each of the Lenders
that no Default or Event of Default shall have occurred and be continuing or
would result from the making of such conversion or continuation.
SECTION 3.04 Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for any
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
satisfactory in form and substance to the Lenders.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Each Borrower makes for itself, and the Company makes for itself and
the Subsidiary Borrower, the following representations and warranties to the
Administrative Agent and the Lenders:
SECTION 4.01 Organization and Qualification. The Company and each of
the Subsidiaries (a) is a corporation, partnership or limited liability company
duly organized or formed, validly existing and in good standing under the laws
of the state of its incorporation, organization or formation, (b) has all
requisite corporate, partnership, limited liability company or other power and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and (c) is duly qualified to
do business and is in good standing in every jurisdiction in which the failure
to be so qualified would, individually or together with all such other failures
of the Company and the Subsidiaries, have a Material Adverse Effect. As of the
date of this Agreement, the Persons and other entities shown on Schedule 4.01
are all of the Subsidiaries of the Company, and such Schedule 4.01 (x)
accurately reflects the direct owner of the Capital Stock of each such
Subsidiary owned by such direct owner, (y) accurately identifies such
Subsidiaries and (z) accurately sets forth the jurisdictions of their respective
incorporation, organization or formation, as the case may be.
SECTION 4.02 Authorization, Validity, Etc. Each Borrower has all
requisite partnership and other power and authority to execute and deliver, and
to incur and perform its obligations under this Agreement and under the other
Loan Documents to which it is a party and to make the Borrowings hereunder, and
all such actions have been duly authorized by all necessary proceedings on its
behalf. This Agreement and the other Loan Documents have been duly and validly
executed and delivered by or on behalf of each Borrower party thereto and
constitute valid and legally binding agreements of such Borrower enforceable
against such Borrower in accordance with the respective terms thereof, except
(a) as may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, fraudulent conveyance or other similar laws relating to or
affecting the enforcement of creditors' rights generally, and by general
principles of equity (including principles of good faith, reasonableness,
materiality
-49-
and fair dealing) which may, among other things, limit the right to obtain
equitable remedies (regardless of whether considered in a proceeding in equity
or at law) and (b) as to the enforceability of provisions for indemnification
for violation of applicable securities laws, limitations thereon arising as a
matter of law or public policy.
SECTION 4.03 Governmental Consents, Etc. No authorization, consent,
approval, license or exemption of or registration, declaration or filing with
any Governmental Authority, is necessary for the valid execution and delivery
of, or the incurrence and performance by the Company of its obligations under,
any Loan Document to which it is a party, except those that have been obtained
and such matters relating to performance as would ordinarily be done in the
ordinary course of business after the Execution Date.
SECTION 4.04 No Breach or Violation of Agreements or Restrictions,
Etc. Neither the execution and delivery of, nor the incurrence and performance
by the Company of its obligations under, the Loan Documents to which it is a
party, nor the extensions of credit contemplated by the Loan Documents, will (a)
breach or violate any applicable Requirement of Law, (b) result in any breach or
violation of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of its property or assets
(other than Liens created or contemplated by this Agreement) pursuant to the
terms of, any indenture, mortgage, deed of trust, agreement or other instrument
to which it or any of the Subsidiaries is party or by which any of its
properties or assets, or those of any of the Subsidiaries is bound or to which
it is subject, except for breaches, violations and defaults under clauses (a)
and (b) that neither individually nor in the aggregate could reasonably be
expected to result in a Material Adverse Effect, or (c) violate any provision of
the organic documents of the Company.
SECTION 4.05 Properties. Each of the Company and the Subsidiaries has
good title to, or valid leasehold or other interests in, all its real and
personal property material to its business, except for Liens permitted under
Section 6.01.
SECTION 4.06 Litigation and Environmental Matters. (a) Except as
disclosed in the most recent Annual Report on Form 10-K delivered by the Company
to the Lenders, there is no action, suit or proceeding by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Company, threatened against or affecting the Company or any of the Subsidiaries
(i) as to which there is a reasonable possibility of an adverse determination
and that, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect or (ii) that involves this Agreement or the
Transactions.
(b) In the ordinary course of its business, the Company conducts an
ongoing review of the effect of Environmental Laws on the business, operations
and properties of the Company and the Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and costs (including any capital
or operating expenditures required for clean-up or closure of properties
currently or previously owned, any capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards imposed
by law or as a condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or permanent
shutdown of any facility or reduction in the level of or change in the nature of
operations conducted thereat, any costs or liabilities in connection
-50-
with off-site disposal of wastes or Hazardous Materials, and any actual or
potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of this review, the Company has reasonably
concluded that such associated liabilities and costs, including the costs of
compliance with Environmental Laws, are unlikely to result in a Material Adverse
Effect.
SECTION 4.07 Financial Statements. (a) The consolidated balance sheet
of the Company and the Subsidiaries as at December 31, 2003 and the related
consolidated statements of income, comprehensive income, partners' capital and
cash flows of the Company and the Subsidiaries for the fiscal year ended on said
date, with the opinion thereon of PricewaterhouseCoopers LLP and set forth in
the Company's 2003 Annual Report on Form 10-K, as filed with the SEC, fairly
present, in conformity with GAAP, the consolidated financial position of the
Company and the Subsidiaries as of such date and their consolidated results of
operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheets of the Company and the
Subsidiaries as at June 30, 2004 and the related consolidated statements of
income and cash flows of the Company and the Subsidiaries for the six-month
period ended on such date and set forth in the Company's Quarterly Report on
Form 10-Q for its fiscal quarter then ended, as filed with the SEC, fairly
present, in conformity with GAAP applied on a basis consistent with the
financial statements referred to in Section 4.07(a), the consolidated financial
position of the Company and the Subsidiaries as at said date and their
consolidated results of their operations cash flows for the six-month period
ended on said date (subject to the absence of footnotes and to normal year-end
and audit adjustments).
(c) Since December 31, 2003, there has been no material adverse
change in the business, assets, liabilities or financial condition of the
Company and the Subsidiaries, taken as a whole.
SECTION 4.08 Disclosure. All information heretofore furnished by the
Company to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Company to the Administrative
Agent or any Lender will be, true and accurate in all material respects on the
date as of which such information is stated or certified. None of the reports,
financial statements, certificates or other information furnished by or on
behalf of the Company to the Administrative Agent or any Lender in connection
with the syndication or negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
SECTION 4.09 Investment Company Act. Neither the Company nor any of
the Subsidiaries is, or is regulated as, an "investment company," as such term
is defined in the Investment Company Act of 1940, as amended.
SECTION 4.10 Public Utility Holding Company Act. Neither the Company
nor any of the Subsidiaries is a non-exempt "holding company", or subject to
-51-
regulation as such, or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
SECTION 4.11 ERISA. Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan.
No member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA, which waiver, failure or
liability could reasonably be expected to result in a Material Adverse Effect.
SECTION 4.12 Tax Returns and Payments. The Company and the
Subsidiaries have caused to be filed all federal income tax returns and other
material tax returns, statements and reports (or obtained extensions with
respect thereto) which are required to be filed and have paid or deposited or
made adequate provision in accordance with GAAP for the payment of all taxes
(including estimated taxes shown on such returns, statements and reports) which
are shown to be due pursuant to such returns, except for taxes being contested
in good faith by appropriate proceedings for which adequate reserves in
accordance with GAAP have been created on the books of the Company and the
Subsidiaries and where the failure to pay such taxes (individually or in the
aggregate for the Company and the Subsidiaries) would not have a Material
Adverse Effect.
SECTION 4.13 Compliance with Laws and Agreements. Each of the Company
and the Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate for the Company and the
Subsidiaries, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.14 Purpose of Loans. (a) All proceeds of the Loans will be
used for the purposes set forth in Section 5.07.
(b) None of the proceeds of the loans under the Existing Credit
Agreements were, and none of the proceeds of the Loans under this Agreement will
be, used directly or indirectly for the purpose of buying or carrying any
"margin stock" within the meaning of Regulation U (herein called "margin stock")
or for the purpose of reducing or retiring any indebtedness which was originally
incurred to buy or carry any margin stock, or for any other purpose which might
constitute this transaction a "purpose" credit within the meaning of Regulation
T, U or X. Neither the Company nor any agent acting on its behalf has taken or
will take any action which might cause this Agreement or any other Loan Document
to violate Regulation T, Regulation U, Regulation X, or any other regulation of
the Board or to violate the Exchange Act. Margin stock does not constitute more
than 25% of the assets of the Company or
-52-
the Subsidiary Borrower, or of the Company and the Subsidiaries on a
consolidated basis, and the Company does not intend or foresee that it will ever
do so.
SECTION 4.15 Foreign Assets Control Regulations, etc.
(a) Neither any Letter of Credit nor any part of the proceeds of the
Loans will violate the Trading with the Enemy Act, as amended, or any of the
foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.
(b) Neither the Company nor any Subsidiary (i) is, or will become, a
Person described or designated in the Specially Designated Nationals and Blocked
Persons List of the Office of Foreign Assets Control or in Section 1 of the
Anti-Terrorism Order or (ii) engages or will engage in any dealings or
transactions, or is or will be otherwise associated, with any such Person. The
Company and the Subsidiaries are in compliance, in all material respects, with
the USA Patriot Act.
(c) Neither any Letter of Credit nor any part of the proceeds of the
Loans will be used, directly or indirectly, for any payments to any governmental
official or employee, political party, official of a political party, candidate
for political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended, assuming
in all cases that such Act applies to the Company or one of the Subsidiaries.
ARTICLE V.
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Company covenants and
agrees with the Lenders that:
SECTION 5.01 Financial Statements and Other Information. The Company
will furnish to the Administrative Agent, in each case with sufficient copies
for each Lender:
(a) within three days after the date in each fiscal year on which the
Company is required to file its Annual Report on Form 10-K with the SEC (i) such
Annual Report, and (ii) its audited consolidated balance sheet and the related
consolidated statements of income, comprehensive income, operations, partners'
capital and cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures as of the end of and for the previous
fiscal year, all reported on by, and accompanied by an opinion (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of their audit) of, PricewaterhouseCoopers LLP, or
other independent public accountants of recognized national standing to the
effect that such consolidated financial statements present fairly in all
material respects the financial position, results of operations and cash flows
of the Company and the Subsidiaries on a consolidated basis in accordance with
GAAP; provided, however, that (x) the Company shall be deemed to have furnished
said Annual Report on
-53-
Form 10-K for purposes of clause (i) if it shall have timely made the same
available on "XXXXX" and/or on its home page on the worldwide web (at the date
of this Agreement located at xxxx://xxx.xxxxxxxxxxxx.xxx) and complied with the
last grammatical paragraph of this Section 5.01 in respect thereof, and (y) if
said Annual Report contains such consolidated balance sheet and such
consolidated statements of results of income, comprehensive income, partners'
capital and cash flows, and the report thereon of such independent public
accountants (without qualification or exception, and to the effect, as specified
above), the Company shall not be required to comply with clause (ii);
(b) within three days after each date in each fiscal year on which
the Company is required to file a Quarterly Report on Form 10-Q with the SEC (i)
such Quarterly Report, and (ii) its consolidated balance sheet and the related
consolidated statements of income and cash flows as of the end of and for the
fiscal quarter to which said Quarterly Report relates and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form the
figures as of the end and for the corresponding period or periods of the
previous fiscal year, all certified by a Responsible Officer as presenting
fairly in all material respects the financial condition and results of
operations of the Company and the Subsidiaries on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments and the
absence of footnotes; provided, however, that (x) the Company shall be deemed to
have furnished said Quarterly Report for purposes of clause (i) if it shall have
timely made the same available on "XXXXX" and/or on its home page on the
worldwide web (at the date of this Agreement located at
xxxx://xxx.xxxxxxxxxxxx.xxx) and complied with the last grammatical paragraph of
this Section 5.01 in respect thereof, and (y) if said Quarterly Report contains
such consolidated balance sheet and consolidated statements of income and cash
flows, and such certifications, the Company shall not be required to comply with
clause (ii);
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate in
substantially the form of Exhibit 5.01 signed by an authorized financial or
accounting officer of the Company (i) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance with
the requirements of Section 6.06(a), (b) and (c) on the date of such financial
statements, and (ii) stating whether any Default or Event of Default exists on
the date of such certificate and, if any Default or Event of Default then
exists, setting forth the details thereof and the action which the Company is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i) as to
whether anything has come to their attention to cause them to believe that any
Default or Event of Default existed on the date of such statements and (ii)
confirming the calculations set forth in the officer's certificate delivered
simultaneously therewith pursuant to clause (c) above; provided, however, that
such accountants shall not be liable to anyone by reason of their failure to
obtain knowledge of any Default or Event of Default which would not be disclosed
in the course of an audit conducted in accordance with generally accepted
auditing standards;
(e) prompt written notice of the following:
-54-
(i) the occurrence of any Default or Event of Default or Change in
Control Event and
(ii) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect;
(each notice delivered under this Section 5.01(e) to be accompanied by a
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto);
(f) promptly upon receipt thereof, a copy of each other report or
letter submitted to the Company by independent accountants in connection with
any annual, interim or special audit made by them of the books of the Company,
and a copy of any response by the Company, or the Board of Directors of the
general partner of the Company, to such letter or report;
(g) without duplication of any other requirement of this Section
5.01, promptly upon the mailing thereof to the public unitholders of the Company
generally, copies of all financial statements, reports and proxy statements so
mailed;
(h) promptly upon the filing thereof with the SEC, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Form 8-K which the
Company shall have filed with the SEC;
(i) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) (other than such event as to which the 30-day notice
requirement is waived) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the chief financial
officer or the chief accounting officer of the Company setting forth details as
to such occurrence and action, if any, which the Company or applicable member of
the ERISA Group is required or proposes to take; and
-55-
(j) from time to time such other information regarding the business,
affairs or financial condition of the Company or any Subsidiary as the Required
Lenders or the Administrative Agent may reasonably request.
Information required to be delivered pursuant to Section 5.01(a),
5.01(b), 5.01(g) or 5.01(h) above shall be deemed to have been delivered on the
date on which the Company provides notice to the Administrative Agent and the
Lenders that such information has been posted on "XXXXX" or the Company's
website or another website identified in such notice and accessible by the
Administrative Agent and the Lenders without charge (and the Company hereby
agrees to provide such notice); provided that such notice may be included in a
certificate delivered pursuant to Section 5.01(c).
SECTION 5.02 Existence, Conduct of Business. The Company will, and
will cause each of the Material Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.02.
SECTION 5.03 Payment of Obligations. The Company will, and will cause
each of the Subsidiaries to, pay, before the same shall become delinquent or in
default, its obligations, including tax liabilities, that, if not paid, could
result in a Material Adverse Effect, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Company or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.04 Maintenance of Properties; Insurance. (a) The Company
will keep, and will cause each Material Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary wear
and tear excepted.
(b) The Company will maintain or cause to be maintained with, in the
good faith judgment of the Company, financially sound and reputable insurers, or
through self-insurance, insurance with respect to its properties and business
and the properties and businesses of the Subsidiaries against loss or damage of
the kinds customarily insured against by business enterprises of established
reputation engaged in the same or similar business and similarly situated, of
such types and in such amounts as are customarily carried under similar
circumstances by such other corporations. Such insurance may include
self-insurance or be subject to co-insurance, deductibility or similar clauses
which, in effect, result in self-insurance of certain losses, provided that such
self-insurance is in accord with the approved practices of business enterprises
of established reputation similarly situated and adequate insurance reserves are
maintained in connection with such self-insurance, and, notwithstanding the
foregoing provisions of this Section 5.04 the Company or any Subsidiary may
effect workers' compensation or similar insurance in respect of operations in
any state or other jurisdiction either through an insurance fund operated by
such state or other jurisdiction or by causing to be maintained a system or
systems of self-insurance in accord with applicable laws.
-56-
SECTION 5.05 Books and Records; Inspection Rights. The Company will,
and will cause each of the Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Company will, and
will cause each of the Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice during
normal business hours, to visit and inspect its properties, to examine and make
extracts from its books and records (subject to compliance with confidentiality
agreements and applicable copyright law), and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such times,
and as often, as reasonably requested.
SECTION 5.06 Compliance with Laws. The Company will, and will cause
each of the Subsidiaries to, comply with all Requirements of Law applicable to
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.07 Use of Proceeds. The proceeds of the Loans will be used
only for (a) refinancing (i) amounts outstanding under the Existing Credit
Agreements, (ii) other Indebtedness of the Company and the Subsidiaries, and
(iii) commercial paper, and (b) working capital and other general partnership
purposes.
ARTICLE VI.
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Company covenants and agrees with the Lenders
that:
SECTION 6.01 Liens. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) Liens existing on any property or asset prior to the acquisition
thereof by the Company or any Subsidiary or existing on any property or asset of
any Person that becomes a Subsidiary after the date hereof prior to the time
such Person becomes a Subsidiary and securing Indebtedness whose incurrence, for
purposes of this Agreement, by virtue of acquisition of such property or asset,
or by virtue of such Person so becoming a Subsidiary, would not result in a
violation of Section 6.06(a), (b) or (c); provided that (i) such Lien is not
created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply
to any other property or assets of the Company or any Subsidiary, (iii) such
Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be,
and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof.
-57-
For purposes of this Section 6.01(c), the Indebtedness so secured shall be
deemed to have been incurred on the last day of the fiscal quarter then most
recently ended.
(c) Liens, not otherwise permitted by the foregoing clauses (a) and
(b), securing Indebtedness and payment obligations in respect of Hedging
Agreements in an aggregate amount not exceeding 10% of Consolidated Net Tangible
Assets.
SECTION 6.02 Fundamental Changes. The Company will not, and will not
permit any Subsidiary to, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of
transactions) all (or substantially all) of its assets, or all or substantially
all of the stock of or other equity interest in any of the Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve,
unless: (a) at the time thereof and immediately after giving effect thereto no
Event of Default or Default shall have occurred and be continuing; and (b) the
Company is the surviving entity or the recipient of any such sale, transfer,
lease or other disposition of assets, provided, that no such merger,
consolidation, sale, transfer, lease or other disposition shall have the effect
of releasing the Company from any of the Obligations.
SECTION 6.03 Restricted Payments. The Company will not, and will not
permit any of the Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment.
SECTION 6.04 Transactions with Affiliates. The Company will not, and
will not permit any of the Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Company or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Company and the Wholly-owned Subsidiaries not
involving any other Affiliate, (c) any payment which would constitute a
Restricted Payment but for the proviso to the definition of said term in Section
1.01 and (d) loans and advances by the Company to the General Partner to enable
the General Partner to pay general and administrative costs and expenses
pursuant to the partnership agreement of the Company and in accordance with past
practices.
SECTION 6.05 Restrictive Agreements. The Company will not, and will
not permit any of the Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its Capital Stock or to make
or repay loans or advances to the Company or any other such Subsidiary, provided
that the foregoing shall not apply to (a) restrictions and conditions imposed by
law or by this Agreement, (b) customary restrictions and conditions contained in
agreements relating to the sale of all or substantially all of the Capital Stock
or assets of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder and (c) restrictions and conditions existing on the date
hereof identified on Schedule 6.05 (but shall apply to any extension or renewal
of, or any amendment or modification expanding the scope of, any such
restriction or condition)
-58-
SECTION 6.06 Financial Covenants. The Company will observe and cause
the Subsidiaries to observe each of the following requirements:
(a) Ratio of Consolidated Indebtedness to Consolidated EBITDA. The
Company will not at any time permit the ratio of Consolidated Indebtedness to
Consolidated EBITDA for the four full fiscal quarters most recently ended in
respect of which financial statements shall have been delivered pursuant to
Section 5.01(a) or (b), as the case may be, to exceed 5.00 to 1.0. For purposes
of this Section 6.06(a), if during any period the Company acquires any Person
(or any interest in any Person) or all or substantially all of the assets of any
Person, the EBITDA attributable to such assets or an amount equal to the
percentage of ownership of the Company in such Person times the EBITDA of such
Person, for such period determined on a pro forma basis (which determination, in
each case, shall be subject to approval of the Required Lenders, not to be
unreasonably withheld) may be included as Consolidated EBITDA for such period,
if on the date of such acquisition no Indebtedness (other than Indebtedness
permitted pursuant to Section 6.06(b)) is incurred by reason of and giving
effect to such acquisition and such Person, or the entity acquiring such assets,
as the case may be, is a Subsidiary. For purposes of ascertaining whether the
Required Lenders have approved a determination of the EBITDA attributable to
acquired assets, or the assets of an acquired Person, for inclusion in
Consolidated EBITDA for any period pursuant to the foregoing sentence, a Lender
which has not, within 10 days after its receipt of the certificate of a
Responsible Officer required by the last sentence of Section 5.01, objected to
the inclusion in Consolidated EBITDA as set forth therein of an amount of EBITDA
attributable to such acquired assets or the assets of such acquired Person, as
the case may be, shall be deemed to have approved both the determination of such
amount of EBITDA so included, and the inclusion thereof in Consolidated EBITDA
pursuant to the foregoing sentence.
(b) Total Indebtedness (excluding Indebtedness of a consolidated
Subsidiary of the Company owed to the Company or to any Wholly-owned Subsidiary)
of all consolidated Subsidiaries shall at no time exceed 15% of Consolidated
Indebtedness.
(c) Consolidated Indebtedness shall at no time exceed 65% of Total
Capitalization.
ARTICLE VII.
EVENTS OF DEFAULT
SECTION 7.01 Events of Default and Remedies. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) the principal of any Loan or any reimbursement obligation in
respect of any LC Disbursement shall not be paid when and as the same shall
become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other
than an amount referred to in clause (a) of this Article) payable under this
Agreement or any other Loan Document shall not be paid, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of three Business Days;
-59-
(c) any representation or warranty made or, for purposes of Article
III, deemed made by or on behalf of either Borrower herein, at the direction of
either Borrower or by either Borrower in any other Loan Document or in any
document, certificate or financial statement delivered in connection with this
Agreement or any other Loan Document shall prove to have been incorrect in any
material respect when made or deemed made or reaffirmed, as the case may be;
(d) either Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.01(e)(i), 5.02 (with respect to
such Borrower's existence) or 5.07 or in Article VI;
(e) either Borrower shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement (other than those specified in
Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document
to which it is a party and, in any event, such failure shall remain unremedied
for 30 calendar days after the earlier of (i) written notice of such failure
shall have been given to the Company by the Administrative Agent or any Lender
or, (ii) a Responsible Officer of either Borrower becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the
Company or any Subsidiary fails to make (whether as primary obligor or as
guarantor or other surety) any payment of principal of, or interest or premium,
if any, on any item or items of Indebtedness (other than as specified in Section
7.01(a), Section 7.01(b) or Article IX) or any payment in respect of any Hedging
Agreement beyond any period of grace provided with respect thereto (not to
exceed 30 days); provided that the aggregate outstanding principal amount of all
Indebtedness or payment obligations in respect of all Hedging Agreements as to
which such a payment default shall occur and be continuing is equal to or
exceeds $75,000,000, or (ii) the Company or any Subsidiary fails to duly
observe, perform or comply with any agreement with any Person or any term or
condition of any instrument, if such failure, either individually or in the
aggregate, shall have resulted in the acceleration of the payment of
Indebtedness with an aggregate face amount which is equal to or exceeds
$75,000,000; provided that this Section 7.01(f) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness, so long as such Indebtedness
is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Company or any Material Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Material Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(h) the Company, or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, winding-up,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in Section 7.01(g), (iii) apply for or
consent to the
-60-
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Material Subsidiary or for a substantial
part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(i) the Company or any Material Subsidiary shall become unable, admit
in writing or fail generally to pay its debts as they become due;
(j) (i) the General Partner fails to make (whether as primary obligor
or as guarantor or other surety) any payment of principal of, or interest or
premium, if any, on any item or items of Indebtedness beyond any period of grace
provided with respect thereto (not to exceed 30 days); provided that the
aggregate outstanding principal amount of all such Indebtedness as to which such
a payment default shall occur and be continuing is equal to or exceeds
$75,000,000, or (ii) the General Partner fails to duly observe, perform or
comply with any agreement with any Person or any term or condition of any
instrument, if such failure, individually or in the aggregate, shall have
resulted in the acceleration of the payment of Indebtedness with an aggregate
face amount which is equal to or exceeds $75,000,000; provided that this Section
7.01(j) shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness so long as such Indebtedness is paid in full when due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $75,000,000 shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Company or any Subsidiary to enforce any such
judgment;
(l) any member of the ERISA Group shall fail to pay when due an
amount which it shall have become liable to pay under Title IV of ERISA; or
notice of intent to terminate a Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to administer any
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation; and in each of the foregoing instances such condition could
reasonably be expected to result in a Material Adverse Effect;
(m) either Borrower or any Affiliate of Borrower shall petition or
apply for or obtain any order restricting payment by the Issuing Bank under any
Letter of Credit or extending the Issuing Bank's liability under such Letter of
Credit beyond the expiration date stated therein or otherwise agreed to by the
Issuing Bank;
-61-
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, may, and upon the written
request of the Required Lenders shall, by written notice (including notice sent
by telecopy) to the Company (a "Notice of Default") take any or all of the
following actions, without prejudice to the rights of the Administrative Agent,
any Lender or other holder of any of the Obligations to enforce its claims
against either Borrower (provided that, if an Event of Default specified in
Section 7.01(g) or Section 7.01(h) shall occur with respect to the Company or
any Subsidiary, the result of which would occur upon the giving of a Notice of
Default as specified in clauses (i), (ii) and (v) below, shall occur
automatically without the giving of any Notice of Default): (i) declare the
Total Commitment terminated, whereupon the Commitments of the Lenders shall
forthwith terminate immediately and any accrued facility fees shall forthwith
become due and payable without any other notice of any kind; (ii) declare the
principal of and any accrued interest in respect of all Loans, and all the other
Obligations owing hereunder and under the other Loan Documents, to be, whereupon
the same shall become, forthwith due and payable without presentment, demand,
notice of demand or of dishonor and nonpayment, protest, notice of protest,
notice of intent to accelerate, declaration or notice of acceleration or any
other notice of any kind, all of which are hereby waived by each Borrower; (iii)
exercise any rights or remedies under the Loan Documents; (iv) terminate any
Letter of Credit which may be terminated in accordance with its terms (whether
by the giving of written notice to the beneficiary or otherwise); and (v) direct
the Company to comply, and the Company agrees that upon receipt of such notice
(or upon the occurrence of an Event of Default specified in Section 7.01(g) or
Section 7.01(h)) it will comply, with the provisions of Section 2.06(k).
ARTICLE VIII.
THE ADMINISTRATIVE AGENT
SECTION 8.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Administrative Agent by the terms of this
Agreement and such other Loan Documents, together with such other powers as are
reasonably incidental thereto. The Administrative Agent (which term as used in
this sentence and in Section 8.05 and the first sentence of Section 8.06 shall
include reference to its Affiliates and its Affiliates' officers, directors,
employees, attorneys, accountants, experts and agents): (a) shall have no duties
or responsibilities except those expressly set forth in the Loan Documents, and
shall not by reason of the Loan Documents be a trustee or fiduciary for any
Lender; (b) makes no representation or warranty to any Lender and shall not be
responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement, or for the value, validity, effectiveness, genuineness, execution,
legality, enforceability or sufficiency of this Agreement, any other Loan
Document or any other document referred to or provided for herein or therein or
for any failure by either Borrower or any other Person (other than the
Administrative Agent) to perform any of its obligations hereunder or thereunder
or for the existence or value of, or the perfection or priority of any Lien
upon, any collateral security or the financial or other condition of the
Company, the Subsidiaries or any other obligor or guarantor; (c) except pursuant
to Section 8.07 shall not be required to initiate or conduct any litigation or
collection proceedings hereunder; and (d) shall not be responsible for any
action taken or omitted to be taken by it
-62-
hereunder or under any other document or instrument referred to or provided for
herein or in connection herewith including its own ordinary negligence, except
for its own gross negligence, willful misconduct or unlawful conduct. The
Administrative Agent may employ agents, accountants, attorneys and experts and
shall not be responsible for the negligence or misconduct of any such agents,
accountants, attorneys or experts selected by it in good faith or any action
taken or omitted to be taken in good faith by it in accordance with the advice
of such agents, accountants, attorneys or experts. The Administrative Agent may
deem and treat the payee named in any Note as the holder thereof for all
purposes hereof unless and until a written notice of the assignment or transfer
thereof permitted hereunder shall have been filed with the Administrative Agent.
The Administrative Agent is authorized to release any cash collateral that is
permitted to be released pursuant to the terms of this Agreement.
SECTION 8.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telex, telecopier, telegram
or cable) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the Administrative Agent in good faith.
SECTION 8.03 Defaults; Events of Default. The Administrative Agent
shall not be deemed to have knowledge of the occurrence of a Default or an Event
of Default (other than the non-payment of principal of or interest on Loans or
of fees or failure to reimburse LC Disbursements) unless the Administrative
Agent has received notice from a Lender or a Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Administrative Agent receives such a notice of the occurrence of
a Default or Event of Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. In the event of a payment Default or Event of Default,
the Administrative Agent shall give each Lender prompt notice of each such
payment Default or Event of Default.
SECTION 8.04 Rights as a Lender. With respect to its Commitments and
the Loans made by it and its issuance, or its participation in the issuance, of
each Letter of Credit, Wachovia (and any successor acting as Administrative
Agent) in its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not acting as the Administrative Agent, and the term "Lender" or "Lenders"
shall, unless the context otherwise indicates, include the Administrative Agent
in its individual capacity. Wachovia (and any successor acting as Administrative
Agent) and its Affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to and generally engage in any kind of banking,
trust or other business with either Borrower (and any of its Affiliates) as if
it were not acting as the Administrative Agent. Wachovia and its Affiliates may
accept fees and other consideration from the Company or the Subsidiary Borrower
for services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
SECTION 8.05 INDEMNIFICATION. THE LENDERS AGREE TO INDEMNIFY THE
ADMINISTRATIVE AGENT, THE CO-SYNDICATION AGENTS AND THE CO-DOCUMENTATION AGENTS
RATABLY IN ACCORDANCE WITH THEIR APPLICABLE PERCENTAGES FOR THE INDEMNITY
MATTERS AS
-63-
DESCRIBED IN SECTION 10.03 TO THE EXTENT NOT INDEMNIFIED OR REIMBURSED BY THE
COMPANY UNDER SECTION 10.03, BUT WITHOUT LIMITING THE OBLIGATIONS OF THE COMPANY
UNDER SAID SECTION 10.03 AND FOR ANY AND ALL OTHER LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR
DISBURSEMENTS OF ANY KIND AND NATURE WHATSOEVER WHICH MAY BE IMPOSED ON,
INCURRED BY OR ASSERTED AGAINST THE ADMINISTRATIVE AGENT, EITHER CO-SYNDICATION
AGENT OR THE CO-DOCUMENTATION AGENT IN ANY WAY RELATING TO OR ARISING OUT OF:
(A) THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED BY OR REFERRED TO
HEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY, BUT EXCLUDING, UNLESS A DEFAULT
OR AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, NORMAL ADMINISTRATIVE
COSTS AND EXPENSES INCIDENT TO THE PERFORMANCE OF ITS AGENCY DUTIES, IF ANY,
HEREUNDER OR (B) THE ENFORCEMENT OF ANY OF THE TERMS OF THIS AGREEMENT OR OF ANY
OTHER LOAN DOCUMENT; WHETHER OR NOT ANY OF THE FOREGOING SPECIFIED IN THIS
SECTION 8.05 ARISES FROM THE SOLE OR CONCURRENT NEGLIGENCE OF THE ADMINISTRATIVE
AGENT, EITHER CO-SYNDICATION AGENT OR THE CO-DOCUMENTATION AGENT, AS THE CASE
MAY BE; PROVIDED THAT NO LENDER SHALL BE LIABLE FOR ANY OF THE FOREGOING TO THE
EXTENT THEY ARISE FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL
CONDUCT OF THE ADMINISTRATIVE AGENT, EITHER CO-SYNDICATION AGENT OR EITHER
CO-DOCUMENTATION AGENT.
SECTION 8.06 Non-Reliance on Agents and other Lenders. Each Lender
acknowledges and agrees that it has, independently and without reliance on the
Administrative Agent, either Co-Syndication Agent, either Co-Documentation Agent
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Company and the
Subsidiaries and its decision to enter into this Agreement, and that it will,
independently and without reliance upon the Administrative Agent, either
Co-Syndication Agent, either Co-Documentation Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under this Agreement. Neither the Administrative Agent, either
Co-Syndication Agent nor either Co-Documentation Agent shall be required to keep
itself informed as to the performance or observance by either Borrower of this
Agreement, the other Loan Documents or any other document referred to or
provided for herein or to inspect the properties or books of either Borrower.
Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Administrative Agent hereunder,
neither the Administrative Agent, either Co-Syndication Agent nor either
Co-Documentation Agent shall have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition or business of either Borrower (or any of its Affiliates) which may
come into the possession of the Administrative Agent, either Co-Syndication
Agent, either Co-Documentation Agent or any of its respective Affiliates. In
this regard, each Lender acknowledges that Xxxxxxx Xxxxx L.L.P. is acting in
this transaction as special counsel to the Administrative Agent only. Each
Lender will
-64-
consult with its own legal counsel to the extent that it deems necessary in
connection with this Agreement and other Loan Documents and the matters
contemplated herein and therein.
SECTION 8.07 Action by Administrative Agent. Except for action or
other matters expressly required of the Administrative Agent hereunder, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall (a) receive written instructions from
the Required Lenders (or all of the Lenders as expressly required by Section
10.02) specifying the action to be taken, and (b) be indemnified to its
satisfaction by the Lenders against any and all liability and expenses which may
be incurred by it by reason of taking or continuing to take any such action. The
instructions of the Required Lenders (or all of the Lenders as expressly
required by Section 10.02) and any action taken or failure to act pursuant
thereto by the Administrative Agent shall be binding on all of the Lenders. If a
Default or Event of Default has occurred and is continuing, the Administrative
Agent shall take such action with respect to such Default or Event of Default as
shall be directed by the Required Lenders (or all of the Lenders as required by
Section 10.02) in the written instructions (with indemnities) described in this
Section 8.07; provided that, unless and until the Administrative Agent shall
have received such directions, 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 in the best
interests of the Lenders. In no event, however, shall the Administrative Agent
be required to take any action which exposes the Administrative Agent to
personal liability or which is contrary to this Agreement or applicable law.
SECTION 8.08 Resignation or Removal of Administrative Agent. Subject
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Company, and the Administrative Agent may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent (so long as no Default or Event of Default
exists) with the prior written consent of the Company (which consent will not
unreasonably be withheld). If no successor Administrative Agent shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent (so long as no Default or
Event of Default exists) with the prior written consent of the Company (which
consent will not unreasonably be withheld). Upon the acceptance of such
appointment hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Article VIII
and Section 10.03 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent.
SECTION 8.09 Duties of Co-Syndication Agents and Co-Documentation
Agents. Notwithstanding the indemnity of the Co-Syndication Agents and the
Co-Documentation Agents contained in Section 8.05 and in Section 9.03, nothing
contained in
-65-
this Agreement shall be construed to impose any obligation or duty whatsoever on
any Person named on the cover of this Agreement or elsewhere in this Agreement
as Co-Syndication Agents, Co-Documentation Agents, Joint Lead Arranger or Joint
Book Manager, other than those applicable to all Lenders as such.
ARTICLE IX.
GUARANTY
SECTION 9.01 Guaranty. (a) In consideration of, and in order to
induce the Administrative Agent and the Lenders to enter into this Agreement and
to induce the Lenders to make the Loans and the Issuing Bank to maintain the
Subsidiary Borrower Letter of Credit and to issue new Letters of Credit
hereunder, the Company hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment and performance when due, whether at stated
maturity, by acceleration or otherwise, of the Obligations of the Subsidiary
Borrower, and all covenants of the Subsidiary Borrower, now or hereafter
existing under this Agreement and the other Loan Documents to which the
Subsidiary Borrower is a party, whether for principal, interest (including
interest accruing or becoming owing both prior to and subsequent to the
commencement of any proceeding against or with respect to the Subsidiary
Borrower under any chapter of Title 11 of the United States Code, as now or
hereafter in effect, or any successor thereto (the "Bankruptcy Code")), fees,
commissions, expenses (including reasonable attorneys' fees and expenses) or
otherwise (all such obligations being the "Guaranteed Obligations"). The Company
agrees to pay any and all expenses incurred by each Lender and the
Administrative Agent in enforcing this Guaranty against the Company.
(b) This Guaranty is an absolute, unconditional, present and
continuing guaranty of payment and not of collectibility and is in no way
conditioned upon any attempt to collect from the Subsidiary Borrower or any
other action, occurrence or circumstance whatsoever.
SECTION 9.02 Continuing Guaranty. (a) The Company guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the other Loan Documents. The Company agrees that, to the
maximum extent permitted by applicable law, the Guaranteed Obligations and Loan
Documents to which the Subsidiary Borrower is a party may be extended or
renewed, and indebtedness thereunder repaid and reborrowed in whole or in part,
without notice to or assent by the Company, and that it will remain bound upon
this Guaranty notwithstanding any extension, renewal or other alteration of any
Guaranteed Obligations or such Loan Documents, or any repayment and reborrowing
of Loans. To the maximum extent permitted by applicable law, except as otherwise
expressly provided in this Agreement or any other Loan Document to which the
Company is a party, the obligations of the Company under this Guaranty shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for
any period, increase, decrease, alteration or rearrangement of all or any
part of the Guaranteed Obligations, or of this Agreement or any other Loan
Document executed in connection herewith, or any contract or understanding
among the Company, the Subsidiary
-66-
Borrower, the Administrative Agent and/or the Lenders, or any other
Person, pertaining to the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that
might be granted or given by the Lenders to the Company or any other
Person liable on the Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment,
composition, liquidation, disability, dissolution or lack of power of the
Company, the Subsidiary Borrower or any other Person at any time liable
for the payment of all or part of the Guaranteed Obligations; or any
dissolution of the Company, the Subsidiary Borrower or any sale, lease or
transfer of any or all of the assets of the Company or the Subsidiary
Borrower, or any changes in the shareholders of the Company, the
Subsidiary Borrower, or any reorganization of the Company or the
Subsidiary Borrower;
(iv) the invalidity, illegality or unenforceability of all or any
part of the Guaranteed Obligations, or any document or agreement executed
in connection with the Guaranteed Obligations, for any reason whatsoever,
including the fact that (A) the Guaranteed Obligations, or any part
thereof, exceeds the amount permitted by law, (B) the act of creating the
Guaranteed Obligations or any part thereof is ultra xxxxx, (C) the
officers or representatives executing the documents or otherwise creating
the Guaranteed Obligations acted in excess of their authority, (D) the
Guaranteed Obligations or any part thereof violate applicable usury laws,
(E) the Company or the Subsidiary Borrower has valid defenses, claims and
offsets (whether at law or in equity, by agreement or by statute) which
render the Guaranteed Obligations wholly or partially uncollectible from
the Company or the Subsidiary Borrower, (F) the creation, performance or
repayment of the Guaranteed Obligations (or execution, delivery and
performance of any document or instrument representing part of the
Guaranteed Obligations or executed in connection with the Guaranteed
Obligations, or given to secure the repayment of the Guaranteed
Obligations) is illegal, uncollectible, legally impossible or
unenforceable, or (G) this Agreement, any other Loan Document, or any
other document or instrument pertaining to the Guaranteed Obligations has
been forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of the Company or
the Subsidiary Borrower on the Guaranteed Obligations or any part thereof,
or any other Person now or hereafter liable, whether directly or
indirectly, jointly, severally, or jointly and severally, to pay, perform,
guarantee or assure the payment of the Guaranteed Obligations or any part
thereof; it being recognized, acknowledged and agreed by the Company that
the Company may be required to pay the Guaranteed Obligations in full
without assistance or support of any other Person, and the Company has not
been induced to enter into this Guaranty on the basis of a contemplation,
belief, understanding or agreement that any other Person will be liable to
perform the Guaranteed Obligations, or that the Administrative Agent or
any Lender will look to any other Person to perform the Guaranteed
Obligations;
-67-
(vi) the taking or accepting of any other security, collateral or
guaranty, or other assurance of payment, for all or any part of the
Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment of any collateral, property or
security, at any time existing in connection with, or assuring or securing
payment of, all or any part of the Guaranteed Obligations;
(viii)the failure of the Administrative Agent, the Lenders or any
other Person to exercise diligence or reasonable care in the preservation,
protection, enforcement, sale or other handling or treatment of all or any
part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or
intended to be given, created or granted as security for the repayment of
the Guaranteed Obligations shall not be properly perfected or created, or
shall prove to be unenforceable or subordinate to any other Lien; it being
recognized and agreed by the Company that the Company is not entering into
this Guaranty in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the collateral
for the Guaranteed Obligations;
(x) any payment by the Subsidiary Borrower or the Company to the
Administrative Agent or any Lender is held to constitute a preference
under bankruptcy laws, or for any other reason either the Administrative
Agent or any Lender is required to refund such payment or pay such amount
to the Subsidiary Borrower or any other Person; or
(xi) any other action taken or omitted to be taken with respect to
this Agreement, any other Loan Document, the Guaranteed Obligations, or
any security and collateral therefor, whether or not such action or
omission prejudices the Company or increases the likelihood that the
Company will be required to pay the Guaranteed Obligations pursuant to the
terms hereof;
it being the unambiguous and unequivocal intention of the Company that the
Company shall be obligated to pay the Guaranteed Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not otherwise
or particularly described herein, except for the full and final payment and
satisfaction of the Guaranteed Obligations after the termination of the
Commitments of all Lenders and the expiration or termination of the Subsidiary
Borrower Letter of Credit.
(b) The Company further agrees that, to the fullest extent permitted
by law, as between the Company, on the one hand, and the Lenders and the
Administrative Agent, on the other hand, (i) the maturity of the Guaranteed
Obligations may be accelerated as provided in Article VII for the purposes of
this Guaranty, notwithstanding any stay, injunction or other prohibition
preventing such acceleration of the Guaranteed Obligations, and (ii) in the
event of any acceleration of the Guaranteed Obligations as provided in Article
VII, the Guaranteed Obligations (whether or not due and payable) shall forthwith
become due and payable by the Company for the purpose of this Guaranty.
-68-
SECTION 9.03 Effect of Debtor Relief Laws. If after receipt of any
payment of all or any part of the Guaranteed Obligations, the Administrative
Agent, the Issuing Bank or any Lender is for any reason compelled to surrender
or voluntarily surrenders, such payment to any Person (a) because such payment
is or may be avoided, invalidated, declared fraudulent, set aside, determined to
be void or voidable as a preference, fraudulent conveyance, fraudulent transfer,
impermissible set-off or a diversion of trust funds or (b) for any other reason,
including (i) any judgment, decree or order of any court or administrative body
having jurisdiction over the Administrative Agent, the Issuing Bank, any Lender
or any of their respective properties or (ii) any settlement or compromise of
any such claim effected by the Administrative Agent, the Issuing Bank or any
Lender with any such claimant (including the Subsidiary Borrower), then the
Guaranteed Obligations or part thereof intended to be satisfied shall be
reinstated and continue, and this Guaranty shall continue in full force as if
such payment had not been received, notwithstanding any revocation thereof or
the cancellation of any instrument evidencing any of the Guaranteed Obligations
or otherwise; and the Company shall be liable to pay the Administrative Agent,
the Issuing Bank and the Lenders, and hereby does indemnify the Administrative
Agent, the Issuing Bank and the Lenders and holds them harmless for the amount
of such payment so surrendered and all reasonable expenses (including reasonable
attorneys' fees, court costs and expenses attributable thereto) incurred by the
Administrative Agent, the Issuing Bank or any Lender in the defense of any claim
made against it that any payment received by the Administrative Agent, the
Issuing Bank or any Lender in respect of all or part of the Guaranteed
Obligations must be surrendered. The provisions of this paragraph shall survive
the termination of this Guaranty, and any satisfaction and discharge of the
Subsidiary Borrower by virtue of any payment, court order or any Federal or
state law.
SECTION 9.04 Waiver. The Company hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and waives presentment, demand for payment, notice
of intent to accelerate, notice of dishonor or nonpayment and any requirement
that the Administrative Agent or any Lender institute suit, collection
proceedings or take any other action to collect the Guaranteed Obligations,
including any requirement that the Administrative Agent or any Lender exhaust
any right or take any action against the Subsidiary Borrower or any other Person
or any collateral (it being the intention of the Administrative Agent, the
Lenders and the Company that this Guaranty is to be a guaranty of payment and
not of collection). It shall not be necessary for the Administrative Agent or
any Lender, in order to enforce any payment by the Company hereunder, to
institute suit or exhaust its rights and remedies against the Subsidiary
Borrower or any other Person, including others liable to pay any Guaranteed
Obligations, or to enforce its rights against any security ever given to secure
payment thereof. The Company hereby expressly waives to the maximum extent
permitted by applicable law each and every right to which it may be entitled by
virtue of the suretyship laws of the State of New York or any other state in
which it may be located, including any and all rights it may have pursuant to
Rule 31, Texas Rules of Civil Procedure, Section 17.001 of the Texas Civil
Practice and Remedies Code and Chapter 34 of the Texas Business and Commerce
Code.
SECTION 9.05 Full Force and Effect. This Guaranty is a continuing
guaranty and shall remain in full force and effect until all of the Guaranteed
Obligations under this Agreement and the other Loan Documents to which the
Subsidiary Borrower is a party and all other amounts payable under this Guaranty
have been paid in full (after the termination of the
-69-
Commitments of the Lenders and the termination or expiration of the Subsidiary
Borrower Letter of Credit). All rights, remedies and powers provided in this
Guaranty may be exercised, and all waivers contained in this Guaranty may be
enforced, only to the extent that the exercise or enforcement thereof does not
violate any provisions of applicable law which may not be waived.
ARTICLE X.
MISCELLANEOUS
SECTION 10.01 Notices, Etc. (a) The Administrative Agent, the Issuing
Bank, any Lender or the holder of any of the Obligations, giving consent or
notice or making any request of either Borrower provided for hereunder, shall
notify each Lender (in the case of the Administrative Agent and/or the Issuing
Bank) and the Administrative Agent (in the case of a Lender) thereof. In the
event that the holder of any Note or any of the Obligations (including any
Lender) shall transfer such Note or Obligations, it shall promptly so advise the
Administrative Agent which shall be entitled to assume conclusively that no
transfer of any Note or any of the Obligations has been made by any holder
(including any Lender) unless and until the Administrative Agent receives
written notice to the contrary.
(b) Except with respect to notices and other communications expressly
permitted to be given by telephone, all notices, consents, requests, approvals,
demands and other communications (collectively "Communications") provided for
herein shall be in writing (including facsimile Communications) and mailed,
telecopied or delivered:
(i) if to the Company, to it at:
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention:C. Park Shaper
Telecopy No: (000) 000-0000;
(ii) if to the Subsidiary Borrower, to it in care of the Company;
(iii) if to the Administrative Agent, to it at:
c/o Wachovia Capital Markets LLC
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy No.: (000)-000-0000;
(iv) if to the Issuing Bank, to it at:
c/o Wachovia Capital Markets LLC
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000;
-70-
(v) if to the Swingline Lender, to it at:
c/o Wachovia Capital Markets LLC
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000; and
(vi) if to any other Lender, to it at its address (or telecopy
number) set forth in the Administrative Questionnaire delivered by such
Person to the Administrative Agent or in the Assignment and Acceptance
executed by such Person;
or, in the case of any party hereto, such other address or telecopy number as
such party may hereafter specify for such purpose by notice to the other
parties.
(c) Communications to the Lenders hereunder may be delivered or
furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Article II unless otherwise agreed by the Administrative Agent and
the applicable Lender. The Administrative Agent or the Company may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
(d) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 10.02 Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising, and no
course of dealing with respect to, any right or power hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. No notice to or demand on either Borrower in any case
shall entitle such Borrower to any other or further notice or demand in similar
or other circumstances. No waiver of any provision of this Agreement or consent
to any departure therefrom shall in any event be effective unless the same shall
be permitted by Section 10.02(b), and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any Default
or Event of Default, regardless of whether the Administrative Agent, any Lender
or the Issuing Bank may have had notice or knowledge of such Default at the
time.
(b) No provision of this Agreement or any other Loan Document
provision may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Borrowers and the Required Lenders or
by the Borrowers and the Administrative Agent with the consent of the Required
Lenders; provided that no such
-71-
agreement shall (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder or under the Fee Letter, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement (including any payment required by Section
2.10(b)), or any interest thereon, or any fees payable hereunder or under the
Fee Letter, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.18(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, or (v) release the Company from its
guaranty contained in Article IX, change any of the provisions of this Section
10.02(b), Section 10.05 or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender; provided
further that no such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent or the Issuing Bank hereunder
without the prior written consent of the Administrative Agent or the Issuing
Bank, as the case may be.
SECTION 10.03 Payment of Expenses, Indemnities, etc. The Company
agrees:
(a) to pay all reasonable expenses of the Administrative Agent in the
administration (including advice of counsel as to the rights and duties of the
Administrative Agent and the Lenders with respect thereto) of, and in connection
with the negotiation, syndication, investigation, preparation, execution and
delivery of, recording or filing of, preservation of rights under, enforcement
of, and refinancing, renegotiation or restructuring of, the Loan Documents and
any amendment, waiver or consent relating thereto (including, without
limitation, travel, photocopy, mailing, courier, telephone and other similar
expenses of the Administrative Agent, the reasonable fees and disbursements of
counsel and other outside consultants for the Administrative Agent and, in the
case of enforcement of this Agreement and the other Loan Documents, the
reasonable fees and disbursements of counsel, including the allocated costs of
inside counsel, for each of the Administrative Agent and the Issuing Bank, and
each Lender); and promptly reimburse the Administrative Agent for all amounts
expended, advanced or incurred by the Administrative Agent or the Lenders to
satisfy any obligation of either Borrower under this Agreement.
(b) TO INDEMNIFY THE ADMINISTRATIVE AGENT, THE CO-SYNDICATION AGENTS,
THE CO-DOCUMENTATION AGENTS, THE ISSUING BANK AND EACH LENDER AND EACH OF THEIR
AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES,
AGENTS, ATTORNEYS, ACCOUNTANTS AND EXPERTS ("INDEMNIFIED PARTIES") FROM, HOLD
EACH OF THEM HARMLESS AGAINST AND PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF
THEM FOR, THE INDEMNITY MATTERS WHICH MAY BE REASONABLY INCURRED BY OR ASSERTED
AGAINST OR INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A PARTY
THERETO) AS A RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY ACTUAL
OR PROPOSED USE BY EITHER BORROWER OF THE
-72-
PROCEEDS OF ANY OF THE LOANS OR ANY LETTER OF CREDIT, (II) THE EXECUTION,
DELIVERY AND PERFORMANCE OF THE LOAN DOCUMENTS, (III) THE OPERATIONS OF THE
BUSINESS OF THE COMPANY AND THE SUBSIDIARIES, (IV) THE FAILURE OF THE COMPANY OR
ANY SUBSIDIARY TO COMPLY WITH THE TERMS OF THIS AGREEMENT, OR WITH ANY
REQUIREMENT OF LAW, (V) ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF
ANY WARRANTY OF EITHER BORROWER SET FORTH IN ANY OF THE LOAN DOCUMENTS, (VI) THE
ISSUANCE, EXECUTION AND DELIVERY OR TRANSFER OF OR PAYMENT OR FAILURE TO PAY
UNDER ANY LETTER OF CREDIT, (VII) THE PAYMENT OF A DRAWING UNDER ANY LETTER OF
CREDIT NOTWITHSTANDING THE NON-COMPLIANCE, NON-DELIVERY OR OTHER IMPROPER
PRESENTATION OF THE MANUALLY EXECUTED DRAFT(S) AND CERTIFICATION(S) OR (VIII)
ANY OTHER ASPECT OF THE LOAN DOCUMENTS, INCLUDING THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL AND ALL OTHER EXPENSES INCURRED IN CONNECTION WITH
INVESTIGATING, DEFENDING OR PREPARING TO DEFEND ANY SUCH ACTION, SUIT,
PROCEEDING (INCLUDING ANY INVESTIGATIONS, LITIGATION OR INQUIRIES) OR CLAIM AND
INCLUDING ALL INDEMNITY MATTERS ARISING BY REASON OF THE ORDINARY NEGLIGENCE OF
ANY INDEMNIFIED PARTY, BUT EXCLUDING ALL INDEMNITY MATTERS ARISING SOLELY BY
REASON OF CLAIMS BETWEEN THE LENDERS OR ANY LENDER AND THE ADMINISTRATIVE AGENT,
EITHER CO-SYNDICATION AGENT, OR EITHER CO-DOCUMENTATION AGENT OR A LENDER'S
SHAREHOLDERS AGAINST THE ADMINISTRATIVE AGENT OR LENDER OR BY REASON OF THE
GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT ON THE PART OF THE
INDEMNIFIED PARTY SEEKING INDEMNIFICATION.
(c) TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE INDEMNIFIED
PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COST RECOVERY ACTIONS,
ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND LIABILITIES TO WHICH ANY SUCH
PERSON MAY BECOME SUBJECT (I) UNDER ANY ENVIRONMENTAL LAW APPLICABLE TO THE
COMPANY OR ANY SUBSIDIARY OR ANY OF THEIR PROPERTIES OR ASSETS, INCLUDING THE
TREATMENT OR DISPOSAL OF HAZARDOUS MATERIALS ON ANY OF THEIR PROPERTIES OR
ASSETS, (II) AS A RESULT OF THE BREACH OR NON-COMPLIANCE BY THE COMPANY OR ANY
SUBSIDIARY WITH ANY ENVIRONMENTAL LAW APPLICABLE TO THE COMPANY OR ANY
SUBSIDIARY, (III) DUE TO PAST OWNERSHIP BY THE COMPANY 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) THE PRESENCE, USE, RELEASE, STORAGE, TREATMENT OR
DISPOSAL OF HAZARDOUS MATERIALS ON OR AT ANY OF THE PROPERTIES OWNED OR OPERATED
BY THE BORROWERS OR ANY SUBSIDIARY, OR (V) ANY OTHER ENVIRONMENTAL, HEALTH OR
SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS.
-73-
(d) No Indemnified Party may settle any claim to be indemnified
without the consent of the indemnitor, such consent not to be unreasonably
withheld; provided, that the indemnitor may not reasonably withhold consent to
any settlement that an Indemnified Party proposes, if the indemnitor does not
have the financial ability to pay all its obligations outstanding and asserted
against the indemnitor at that time, including the maximum potential claims
against the Indemnified Party to be indemnified pursuant to this Section 10.03.
(e) In the case of any indemnification hereunder, the Administrative
Agent or Lender, as appropriate shall give notice to the Company of any such
claim or demand being made against the Indemnified Party and the Company shall
have the non-exclusive right to join in the defense against any such claim or
demand; provided that if the Company provides a defense, the Indemnified Party
shall bear its own cost of defense unless there is a conflict between the
Company and such Indemnified Party.
(f) THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED PARTIES
NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER
WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN
OMISSION, INCLUDING, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE
RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNIFIED PARTIES OR BY
REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE
INDEMNIFIED PARTIES. TO THE EXTENT THAT AN INDEMNIFIED PARTY IS FOUND TO HAVE
COMMITTED AN ACT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR ENGAGED IN
UNLAWFUL CONDUCT, THIS CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL CONTINUE
BUT SHALL ONLY EXTEND TO THE PORTION OF THE CLAIM THAT IS DEEMED TO HAVE
OCCURRED BY REASON OF EVENTS OTHER THAN THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT
OR UNLAWFUL CONDUCT OF THE INDEMNIFIED PARTY.
(g) The Company's obligations under this Section 10.03 shall survive
any termination of this Agreement, the payment of the Loans and the expiration
of the Letters of Credit and shall continue thereafter in full force and effect,
for a period of six years.
(h) To the extent that the Company fails to pay any amount required
to be paid by it to the Administrative Agent or the Issuing Bank under this
Section 10.03, each Lender severally agrees to pay to the Administrative Agent
or the Issuing Bank, as the case may be, such Lender's Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent or the
Issuing Bank in its capacity as such.
(i) The Company shall pay any amounts due under this Section 10.03
within thirty (30) days of the receipt by the Company of notice of the amount
due.
-74-
SECTION 10.04 Successors and Assigns. 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. 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 extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
SECTION 10.05 Assignments and Participations.
(a) Neither Borrower may assign its rights or obligations hereunder
or under the Notes or any Letter of Credit without the prior consent of all of
the Lenders and the Administrative Agent.
(b) Any Lender may assign to one or more 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 to a Lender or an Affiliate of a Lender,
each of the Company and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's obligations in
respect of its LC Exposure or Swingline Exposure, the Issuing Bank and the
Swingline Lender) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld), (ii) except in the case of
an assignment to a Lender or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the amount of the
Commitment 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 $5,000,000 unless
each of the Company and the Administrative Agent otherwise consent, (iii) 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, (iv) 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 for each such assignment, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the Company otherwise
required under this Section 10.05(b) shall not be required if an Event of
Default has occurred and is continuing. Upon acceptance and recording pursuant
to Section 10.05(d), from and after the effective date specified in each
Assignment and Acceptance, the 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
2.15, 2.16, 2.17 and 10.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph 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 Section
10.05(e).
-75-
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in Charlotte, North Carolina
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 Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and each Borrower, the Administrative Agent,
the Issuing Bank 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 either Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in Section 10.05(b)
and any written consent to such assignment required by Section 10.05(b), the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the consent of either Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Company, the Administrative Agent, the Issuing
Bank 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, modification or waiver described in the first proviso to
Section 10.02(b) that affects such Participant. Subject to Section 10.05(f),
each Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Section 10.05(b), and be
indemnified under Section 10.03 as if it were a Lender. In addition, each
agreement creating any participation must include an agreement by the
Participant to be bound by the provisions of Section 10.12.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 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
Company'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 2.17 unless
the Company is
-76-
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Company, to comply with Section 2.17(e) as though
it were a Lender.
(g) The Lenders may furnish any information concerning the Borrowers
in the possession of the Lenders from time to time to assignees and Participants
(including prospective assignees and participants); provided that, such Persons
agree to be bound by the provisions of Section 10.12 hereof.
(h) Notwithstanding anything in this Section 10.05 to the contrary,
any Lender may assign and pledge its Notes to any Federal Reserve Bank or the
United States Treasury as collateral security pursuant to Regulation A and any
operating circular issued by such Federal Reserve System and/or such Federal
Reserve Bank. No such assignment and/or pledge shall release the assigning
and/or pledging Lender from its obligations hereunder.
(i) Notwithstanding any other provisions of this Section 10.05, no
transfer or assignment of the interests or obligations of any Lender or any
grant of participations therein shall be permitted if such transfer, assignment
or grant would require either Borrower to file a registration statement with the
SEC or to qualify the Loans under the "Blue Sky" laws of any state.
SECTION 10.06 Survival; Reinstatement. (a) All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or Event of Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 10.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
(b) To the extent that any payments on the Obligations are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, debtor in possession, receiver or other
Person under any bankruptcy law, common law or equitable cause, then to such
extent, the Obligations so satisfied shall be revived and continue as if such
payment or proceeds had not been received.
SECTION 10.07 Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and the Fee Letter constitute the
-77-
entire contract among the parties hereto relating to the subject matter hereof
and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof (including the Information
Memorandum). Except as provided in Section 3.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.08 Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.09 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, 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 and other indebtedness at any time owing by such Lender to or
for the credit or the account of either Borrower against any of and all the
Obligations now or hereafter existing under this Agreement and the other Loan
Documents held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such Obligations may be
unmatured. The rights of each Lender under this Section 10.09 are in addition to
other rights and remedies (including other rights of setoff) which such Lender
may have.
SECTION 10.10 Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and governed by the laws of the State of New York.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS 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 NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY AND ASSETS, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH BORROWER
HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM,
INC., WITH OFFICES ON THE DATE HEREOF AT 000 0XX XXXXXX, XXX XXXX, XXX XXXX
00000, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE AND ACCEPT FOR AND ON ITS
BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS,
SUMMONS, NOTICES
-78-
AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY
REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS
SUCH, EACH SUCH BORROWER AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT
IN NEW YORK, NEW YORK ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION
SATISFACTORY TO THE ADMINISTRATIVE AGENT. EACH BORROWER FURTHER 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 REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS PROVIDED IN SECTION 10.01,
SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST EITHER BORROWER IN ANY OTHER JURISDICTION.
(c) EACH OF THE BORROWERS HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (b) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
THE RIGHT TO PLEAD OR CLAIM, AND AGREES NOT TO PLEAD OR CLAIM, THAT ANY SUCH
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(d) EACH PARTY HERETO HEREBY (i) IRREVOCABLY WAIVES, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (ii) CERTIFIES THAT NO PARTY
HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (iii)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 10.10.
SECTION 10.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
-79-
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10.11.
SECTION 10.12 Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its Affiliates, directors, officers and employees and to its agents, including
accountants, legal counsel and other advisors who have been informed of the
confidential nature of the information provided, (b) to the extent requested by
any regulatory authority, including the National Association of Insurance
Commissioners or any similar organization, or any nationally recognized rating
agency that requires access to information about a Lender's investment
portfolio, (c) to the extent a Lender reasonably believes it is required by
applicable laws or regulations or by any subpoena or similar legal process (and
such Lender will provide prompt notice thereof to the Company), (d) to any other
party to this Agreement, (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an understanding with such Person that such Person will comply with
this Section 10.12, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Company or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section 10.12 or (ii) becomes available to the Administrative Agent, the
Issuing Bank or any Lender from a source other than a Borrower (unless such
source is actually known by the individual providing the information to be bound
by a confidentiality agreement or other legal or contractual obligation of
confidentiality with respect to such information). For the purposes of this
Section 10.12, "Information" means all information received from either Borrower
relating to either Borrower or its business, other than any such information
that is known to a Lender, publicly known or otherwise available to the
Administrative Agent, the Issuing Bank or any Lender other than through
disclosure (a) by a Borrower, or (b) from a source actually known to a Lender to
be bound by a confidentiality agreement or other legal or contractual obligation
of confidentiality with respect to such information. Any Person required to
maintain the confidentiality of Information as provided in this Section 10.12
shall be considered to have complied with its obligation to do so if such Person
maintains the confidentiality of such Information in accordance with procedures
adopted in good faith to protect confidential Information of third parties
delivered to a lender.
SECTION 10.13 Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect
-80-
of such Loan but were not payable as a result of the operation of this Section
10.13 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the Maximum
Rate therefor) until such cumulated amount, together with interest thereon at
the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.
SECTION 10.14 EXCULPATION PROVISIONS. EACH OF THE PARTIES HERETO
SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT, THE NOTES AND (IN
THE CASE OF THE COMPANY AND THE ADMINISTRATIVE AGENT) THE FEE LETTER AND AGREES
THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS; THAT IT HAS IN FACT READ THIS AGREEMENT AND IS FULLY
INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS
OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS BEEN REPRESENTED BY
INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING
ITS EXECUTION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND HAS RECEIVED
THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT
IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS
RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES AND COVENANTS THAT
IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION
OF THIS AGREEMENT ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH
PROVISION OR THAT THE PROVISION IS NOT "CONSPICUOUS."
-81-
The parties hereto have caused this Agreement to be duly executed as
of the date and year first above written.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management, LLC,
its Delegate
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
XXXXXX XXXXXX OPERATING L.P. "B",
as the Subsidiary Borrower and as a
Subsidiary Guarantor
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management, LLC,
its Delegate
By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Administrative Agent, the Issuing
Bank, the Swingline Lender and as a
Lender
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
CITIBANK, N.A.,
as Co-Syndication Agent and as a Lender
By: /s/ Joronne Xxxxx
-------------------------------------
Name: Joronne Xxxxx
Title: Attorney-in-Fact
JPMORGAN CHASE BANK,
as Co-Syndication Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXX XXXXXXX FINANCING, INC.,
as Co-Documentation Agent and as a Lender
By: /s/ Cahal X. Xxxxxxx
-------------------------------------
Name: Cahal X. Xxxxxxx
Title: Vice President
BARCLAYS BANK PLC,
as Co-Documentation Agent and as a Lender
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Director Loan Transaction Management
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President and Manager
SUNTRUST BANK
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
THE ROYAL BANK OF SCOTLAND plc
By: /s/ Xxxxxxx X. Main
-------------------------------------
Name: Xxxxxxx X. Main
Title: Senior Vice President
XXXXXXX STREET COMMITMENT CORPORATION
(Recourse only to assets or Xxxxxxx
Street Commitment Corporation)
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: CFO
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: General Manager
COMMERZBANK AG,
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
XXXXXX BROTHERS BANK, FSB
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
CALYON, NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
By: /s/ Philippe Soustra
-------------------------------------
Name: Philippe Soustra
Title: Executive Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
UBS LOAN FINANCE LLC
By: /s/ Xxxxxxx Xxxxx-XxXxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx-XxXxxxxxx
Title: Associate Director Banking
Products Services US
By: /s/ Winslowe Ogbourne
-------------------------------------
Name: Winslowe Ogbourne
Title: Associate Director Banking Products
Services US
UFJ BANK LIMITED, NEW YORK BRANCH
By: /s/ X. X. Xxxxxxx
-------------------------------------
Name: X. X. Xxxxxxx
Title: Vice President
XXXXXXX XXXXX BANK USA
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President and CEO
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Associate
XXXXX FARGO BANK TEXAS, N.A.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SCHEDULE 1.01
COMMITMENTS
-----------
Wachovia Bank, National Association $ 114,329,268.29
Citibank, N.A. $ 114,329,268.29
JPMorgan Chase Bank $ 103,658,536.59
Xxxxxx Xxxxxxx Financing, Inc. $ 91,463,414.63
Barclays Bank PLC $ 91,463,414.63
The Bank of Tokyo-Mitsubishi, Ltd, -- $ 91,463,414.63
Houston Agency
SunTrust Bank $ 91,463,414.63
The Royal Bank of Scotland plc $ 91,463,414.63
Xxxxxxx Xxxxx
Xxxxxxx Street Commitment Corporation$ 45,731,707.32
Sumitomo Mitsui Banking Corporation $ 45,731,707.31
Commerzbank AG, New York and Grand
Cayman Branches $ 51,829,268.29
Xxxxxx Brothers Bank, FSB $ 51,829,268.29
Calyon, New York Branch $ 51,829,268.29
Deutsche Bank AG New York Branch $ 51,829,268.29
UBS Loan Finance LLC $ 51,829,268.29
UFJ Bank Limited, New York Branch $ 27,439,024.39
Xxxxxxx Xxxxx Bank USA $ 27,439,024.39
Credit Suisse First Boston $ 27,439,024.39
Xxxxx Fargo Bank Texas, N.A. $ 27,439,024.39
--------------
TOTAL $1,250,000,000.00
=================
EXHIBIT 1.01A
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated: ________________
Reference is made to the Credit Agreement dated as of August 18, 2004
(as restated, amended, modified, supplemented and in effect from time to time,
the "Credit Agreement"), among Xxxxxx Xxxxxx Energy Partners, L.P., a Delaware
limited partnership (the "Company"), Xxxxxx Xxxxxx Operating L.P. "B", a
Delaware limited partnership (the "Subsidiary Borrower"), the Lenders named
therein, Wachovia Bank, National Association, as the Administrative Agent (the
"Administrative Agent") and the other agents named therein. Capitalized terms
used herein and not otherwise defined shall have the meanings assigned to such
terms in the Credit Agreement.
This Assignment and Acceptance, between the Assignor (as defined and
set forth in Schedule I hereto and made a part hereof) and the Assignee (as
defined and set forth on Schedule I hereto and made a part hereof) is dated as
of the Effective Date of Assignment (as set forth on Schedule I hereto and made
a part hereof).
1. 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, as of the
Effective Date of Assignment, an undivided interest (the "Assigned Interest") in
and to all the Assignor's rights, obligations and claims under the Credit
Agreement respecting those, and only those, credit facilities contained in the
Credit Agreement as set forth on Schedule I (collectively, the "Assigned
Facilities", individually, an "Assigned Facility"), in a principal amount for
each Assigned Facility as set forth on Schedule I.
2. The Assignor (i) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto, other than that it is the legal and
beneficial owner of the Assigned Interest and that the Assigned Interest is free
and clear of any adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or their respective Subsidiaries or the performance or observance by
the Borrowers or their respective Subsidiaries of any of its respective
obligations under the Credit Agreement, any other Loan Document or any other
instrument or document furnished pursuant thereto; and (iii) attaches the Note
if any, held by it evidencing the Assigned Facility or Facilities, as the case
may be, and requests that the Administrative Agent exchange such Note(s) for a
new Note payable to the Assignor (if the Assignor has retained any interest in
the Assigned Facility or Facilities) and a new Note payable to the Assignee in
the amount which reflects the assignment being made hereby (and after giving
effect to any other assignments which have become effective on the Effective
Date of Assignment).
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.07 thereof, or if later, the most recent financial statements
delivered pursuant to Section 5.01 thereof, and such other documents and
information as it has deemed appropriate to make its own credit analysis; (iii)
agrees that it will independently and without reliance upon the Administrative
Agent, the Assignor or any other Lender and based on such other 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 Credit Agreement; (iv)
appoints and authorizes the Administrative Agent to take such action as such
agent on its behalf and to exercise such powers as are reasonably incidental
thereto; (v) agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all the obligations
which by the terms of the Credit Agreement are required to be performed by it as
a Lender; (vi) confirms that it is an Eligible Assignee; (vii) if the Assignee
is organized under the laws of a jurisdiction outside the United States,
attaches the forms prescribed by the Internal Revenue Services of the United
States certifying as to the Assignee's exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement or such other documents as are necessary to indicate that all such
payments are subject to such tax at a rate by an applicable tax treaty, and
(viii) has supplied the information requested on the administrative
questionnaire provided by the Administrative Agent.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Administrative Agent for acceptance by it and the Borrowers
and recording by the Administrative Agent pursuant to Section 10.05 of the
Credit Agreement, effective as of the Effective Date of Assignment (which
Effective Date of Assignment shall, unless otherwise agreed to by the
Administrative Agent, be at least five Business Days after the execution of this
Assignment and Acceptance).
5. Upon such acceptance and recording, from and after the Effective
Date of Assignment, the Administrative Agent shall make all payments in respect
of the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignee, whether such amounts have accrued prior to the
Effective Date of Assignment or accrue subsequent to the Effective Date of
Assignment. The Assignor and Assignee shall make all appropriate adjustments in
payments for periods prior to the Effective Date of Assignment by the
Administrative Agent or with respect to the making of this assignment directly
between themselves.
6. From and after the Effective Date of Assignment, (i) the Assignee
shall be party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder, and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its claims and rights and be released from
its obligations under the Credit Agreement.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Acceptance to be executed by their respective duly authorized officers on
Schedule I hereto.
________________________________________
________________________________________
-3-
Schedule I to Assignment and Acceptance
Legal Name of Assignor:_________________________________________________________
Legal Name of Assignee:_________________________________________________________
Effective Date of Assignment:___________________________________________________
Percentage Assigned of Each
Facility (to at least 8
decimals) (Shown as a
Principal percentage of aggregate
Amount of held by all applicable
Assigned Facilities Assigned Interest Lenders)
------------------- ----------------- --------------
Commitment $_________ _______%
Committed Loans $_________ _______%
Competitive Loans $_________ _______%
Total $_________
-4-
EXHIBIT 1.01B-2
OTHER EXISTING LETTERS OF CREDIT
--------------------------------
Expiration Automatic
Beneficiary Purpose Amount Issuer Date Renewable
----------- ------- ------ ------ ---- ---------
Bank One Trust Company Backup OHPA Bonds $ 26,942,851.72 Wachovia Bank, NA 12/23/2004 No
Travelers Worker's Comp - Laser $ 200,000.00 Wachovia Bank, NA 06/04/2004 Yes
Xxxxxx Xxxxxxx Crude Xxxxxx $100,000,000.00 Wachovia Bank, N.A. 12/31/2004 No
---------------
Total Other Existing Letters of Credit $127,142,851.72
EXHIBIT 1.01-C
FORM OF COMMITTED NOTE
----------------------
[$________________] _____________, _____
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXX ENERGY PARTNERS,
L.P., a Delaware limited partnership, (the "Company"), HEREBY PROMISES TO PAY to
the order of _______________________________________________________ (the
"Lender"), the lesser of (i) such Lender's Commitment and (ii) the aggregate
amount of Committed Loans made by the Lender and outstanding on the Maturity
Date. The principal amount of the Committed Loans made by the Lender to the
Company shall be due and payable on the dates and in the amounts as are
specified in that certain Credit Agreement dated as of August 18, 2004 (as
restated, amended, modified, supplemented and in effect from time to time, the
"Credit Agreement") among the Company, the Subsidiary Borrower, the Lender,
certain other lenders that are party thereto, Wachovia Bank, National
Association, as Administrative Agent for the Lender and such other lenders, and
the other agents named therein. All capitalized terms used herein and not
otherwise defined shall have the meanings as defined in the Credit Agreement.
The Company promises to pay interest on the unpaid principal amount
of each Committed Loan outstanding from time to time from the date thereof until
such principal amount is paid in full, at such interest rates and payable on
such dates as are specified in the Credit Agreement. Both principal and interest
are payable in same day funds in lawful money of the United States of America to
the Administrative Agent at its Principal Office, or at such other place as the
Administrative Agent shall designate in writing to the Company.
This Note is one of the Committed Notes referred to in, and this Note
and all provisions herein are entitled to the benefits of, the Credit Agreement.
The Credit Agreement, among other things (a) provides for the making of
Committed Loans by the Lender and the other lenders to the Company from time to
time, and (b) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events, for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified, and for limitations on the amount of interest paid such that no
provision of the Credit Agreement or this Note shall require the payment or
permit the collection of interest in excess of the Maximum Rate.
This Note may be held by the Lender for the account of its applicable
lending office and may be transferred from one lending office to another lending
office from time to time as the Lender may determine.
The Company and any and all endorsers, guarantors and sureties
severally waive grace, demand, presentment for payment, notice of dishonor,
default or intent to accelerate, protest and notice of protest and diligence in
collecting and bringing of suit against any party hereto, and agree to all
renewals, extensions or partial payments hereon and to any release or
substitution of security herefor, in whole or in part, with or without notice,
before or after maturity.
This Note shall be governed by and construed under the laws of the
State of New York and the applicable laws of the United States of America.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management, LLC,
its Delegate
By: _______________________________
Name:
Title:
-2-
EXHIBIT 1.01-D
FORM OF COMPETITIVE NOTE
_____________, _____
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXX ENERGY PARTNERS,
L.P., a Delaware limited partnership, (the "Company"), HEREBY PROMISES TO PAY to
the order of ________________________________ (the "Lender"), the lesser of (i)
the aggregate amount of Commitments of all Lenders and (ii) the aggregate amount
of Competitive Loans made by the Lender and outstanding on the Maturity Date.
The principal amount of the Competitive Loans made by the Lender to the Company
shall be due and payable on the dates and in the amounts as are specified in
that certain Credit Agreement dated as of August 18, 2004 (as restated, amended,
modified, supplemented and in effect from time to time, the "Credit Agreement")
among the Company, the Subsidiary Borrower, the Lender, certain other lenders
that are party thereto, Wachovia Bank, National Association, as the
Administrative Agent for the Lender and such other lenders, and the other agents
named therein. All capitalized terms used herein and not otherwise defined shall
have the meanings as defined in the Credit Agreement.
The Company promises to pay interest on the unpaid principal amount
of each Competitive Loan outstanding from time to time from the date thereof
until such principal amount is paid in full, at such interest rates and payable
on such dates as are specified in the Credit Agreement. Both principal and
interest are payable in same day funds in lawful money of the United States of
America to the Administrative Agent at the Principal Office, or at such other
place as the Administrative Agent shall designate in writing to the Company.
This Note is one of the Competitive Notes referred to in, and this
Note and all provisions herein are entitled to the benefits of, the Credit
Agreement. The Credit Agreement, among other things (a) provides for the making
of Competitive Loans by the Lender and the other lenders to the Company from
time to time, and (b) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events, for prepayments on account
of principal hereof prior to the maturity hereof upon the terms and conditions
therein specified, and for limitations on the amount of interest paid such that
no provision of the Credit Agreement or this Note shall require the payment or
permit the collection of interest in excess of the Maximum Rate.
This Note may be held by the Lender for the account of its applicable
lending office and may be transferred from one lending office to another lending
office from time to time as the Lender may determine.
The Company and any and all endorsers, guarantors and sureties
severally waive grace, demand, presentment for payment, notice of dishonor,
default or intent to accelerate, protest and notice of protest and diligence in
collecting and bringing of suit against any party hereto, and agree to all
renewals, extensions or partial payments hereon and to any release or
substitution of security herefor, in whole or in part, with or without notice,
before or after maturity.
This Note shall be governed by and construed under the laws of the
State of New York and the applicable laws of the United States of America.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management, LLC,
its Delegate
By: _____________________________
Name:
Title:
-2-
EXHIBIT 1.01-E
FORM OF SWINGLINE NOTE
----------------------
$25,000,000 ______________, _____
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXX ENERGY PARTNERS,
L.P., a Delaware limited partnership (the "Company"), HEREBY PROMISES TO PAY to
the order of __________________________________________________ (the "Swingline
Lender"), the lesser of (i) $25,000,000 and (ii) the aggregate amount of
Swingline Loans made by the Swingline Lender and outstanding on the Maturity
Date. The principal amount of the Swingline Loans made by the Swingline Lender
to the Company shall be due and payable on the dates and in the amounts as are
specified in that certain Credit Agreement dated as of August 18, 2004 (as
restated, amended, modified, supplemented and in effect from time to time, the
"Credit Agreement") among the Company, the Subsidiary Borrower, the Swingline
Lender, certain other lenders that are party thereto, Wachovia Bank, National
Association, as Administrative Agent for the Swingline Lender and such other
lenders, and the other agents named therein. All capitalized terms used herein
and not otherwise defined shall have the meanings as defined in the Credit
Agreement.
The Company promises to pay interest on the unpaid principal amount
of each Swingline Loan outstanding from time to time from the date thereof until
such principal amount is paid in full, at such interest rates and payable on
such dates as are specified in the Credit Agreement. Both principal and interest
are payable in same day funds in lawful money of the United States of America to
the Swingline Lender at 000 Xxxxx Xxxxxxx Xxxxxx, XX-00, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000 or such other place as the Swingline Lender shall designate
in writing to the Company.
This Note is the Swingline Note referred to in, and this Note and all
provisions herein are entitled to the benefits of, the Credit Agreement. The
Credit Agreement, among other things (a) provides for the making of Swingline
Loans by the Swingline Lender to the Company from time to time, and (b) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events, for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified, and for
limitations on the amount of interest paid such that no provision of the Credit
Agreement or this Note shall require the payment or permit the collection of
interest in excess of the Maximum Rate.
The Company and any and all endorsers, guarantors and sureties
severally waive grace, demand, presentment for payment, notice of dishonor,
default or intent to accelerate, protest and notice of protest and diligence in
collecting and bringing of suit against any party hereto, and agree to all
renewals, extensions or partial payments hereon and to any release or
substitution of security herefor, in whole or in part, with or without notice,
before or after maturity.
This Note shall be governed by and construed under the laws of the
State of New York and the applicable laws of the United States of America.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management, LLC,
its Delegate
By: _______________________________
Name:
Title:
-2-
EXHIBIT 2.03
FORM OF BORROWING REQUEST
-------------------------
Dated __________
Wachovia Bank, National Association,
as Administrative Agent
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
This Borrowing Request is delivered to you by Xxxxxx Xxxxxx Energy
Partners, L.P. (the "Company"), a Delaware limited partnership, under Section
2.03 of the Credit Agreement dated as of August 18, 2004, (as restated, amended,
modified, supplemented and in effect, the "Credit Agreement") by and among the
Company, the Subsidiary Borrower, the Lenders party thereto, Wachovia Bank,
National Association, as Administrative Agent, and the other agents named
therein.
1. The Company hereby requests that the Lenders make a Loan or Loans
in the aggregate principal amount of $______________ (the "Committed Loan" or
the "Committed Loans")./1
2. The Company hereby requests that the Committed Loan or Committed
Loans be made on the following Business Day:
________________./2
3. The Company hereby requests that the Committed Loan or Committed
Loans bear interest at the following interest rate, plus the Applicable Margin,
as set forth below:
Maturity
Date for
Principal Interest Interest
Component of Period Period
Type of Committed Interest (if (if
Committed Loan Loan Rate applicable) applicable)
-------------- ---- ---- ----------- -----------
4. The Company hereby requests that the funds from the Committed Loan
or Committed Loans be disbursed to the following bank account:
______________________________.
5. After giving effect to the requested Committed Loan, the sum of
the Committed Credit Exposures, plus the aggregate principal amount of
Competitive Loans
______________________
1 Complete with an amount in accordance with Section 2.03 of
the Credit Agreement.
2 Complete with a Business Day in accordance with Section 2.03
of the Credit Agreement.
outstanding as of the date hereof (including the requested Loans) does not
exceed the maximum amount permitted to be outstanding pursuant to the terms of
the Credit Agreement.
6. All of the conditions applicable to the Committed Loans requested
herein as set forth in the Credit Agreement have been satisfied as of the date
hereof and will remain satisfied to the date of such Loans.
7. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Borrowing Request this _____ day of _______________, ______.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management, LLC,
its Delegate
By: _________________________________
Name:
Title:
-2-
EXHIBIT 2.04-A
FORM OF COMPETITIVE BID REQUEST
Wachovia Bank, National Association,
as Administrative Agent
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of August 18, 2004
(as restated, amended, modified, supplemented and in effect from time to time,
the "Credit Agreement"), among the undersigned, the Subsidiary Borrower, the
Lenders party thereto, Wachovia Bank, National Association, as Administrative
Agent, and the other agents named therein. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby gives you notice pursuant to Section
2.04 of the Credit Agreement that it requests a Competitive Borrowing under the
Credit Agreement, and in that connection sets forth below the terms on which
such Competitive Borrowing is requested to be made:
(A) Borrowing Date of Competitive
Borrowing (which is a Business Day) ______________________________
(B) Aggregate Principal Amount of
Competitive Borrowing/1 ______________________________
(C) Interest rate basis/2 ______________________________
(D) Interest Period and the last
day thereof /3 ______________________________
(E) Location and number of Company's account
to which funds are to be deposited ______________________________
--------------------------
1 Not less than $25,000,000 or greater than the unused Total Commitment and
in integral multiples of $1,000,000.
2 Eurodollar Competitive Borrowing or Fixed Rate Borrowing.
3 Which shall have a duration (i) in the case of a Eurodollar Loan, of one,
two, three or six months and (ii) in the case of Fixed Rate Loan, of not
less than seven days nor more than 180 days, and which, in either case,
shall end not later than the Termination Date.
By the delivery of this Competitive Bid Request and the acceptance of
any or all of the Competitive Loans offered by the Lenders in response to this
Competitive Bid Request, the undersigned shall be deemed to have represented and
warranted that the applicable conditions to lending specified in Article III of
the Credit Agreement have been satisfied with respect to the Competitive
Borrowing requested hereby.
Very truly yours,
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management,
LLC,
its Delegate
By: _________________________________
Name:
Title:
-2-
EXHIBIT 2.04-B
FORM OF NOTICE TO LENDERS OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address of Lender]
[Date]
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of August 18, 2004
(as restated, amended, modified, supplemented and in effect from time to time,
the "Credit Agreement"), among Xxxxxx Xxxxxx Energy Partners, L.P. (the
"Company"), the Subsidiary Borrower, the Lenders party thereto, Wachovia Bank,
National Association, as Administrative Agent, and the other agents named
therein. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement. The Company
delivered a Competitive Bid Request requesting a Competitive Bid on __________,
, pursuant to Section 2.04(a) of the Credit Agreement, and in that connection
you are invited to submit a Competitive Bid by [Date] / [Time]./1 Your
Competitive Bid must comply with Section 2.04(b) of the Credit Agreement and the
terms set forth below on which the Competitive Bid Request was made:
(A) Date of Competitive Borrowing ________________________________________
(B) Principal amount of
Competitive Borrowing ________________________________________
(C) Interest rate basis
(i.e., Eurodollar or Fixed Rate) ________________________________________
(D) Interest Period and the last
day thereof/2 ________________________________________
________________________
1 The Competitive Bid must be received by the Administrative Agent (i) in the
case of Eurodollar Loans, not later than 10:00 a.m. Charlotte, North
Carolina, time, three Business Days before the Borrowing Date of a proposed
Competitive Borrowing, and (ii) in the case of Fixed Rate Loans, not later
than 10:00 a.m., Charlotte, North Carolina, time on the Borrowing Date of a
proposed Cometitive Borrowing.
2 Which may not be a date later than the Termination Date.
Very truly yours,
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent
By:__________________________________________
Name:________________________________________
Title:_______________________________________
-2-
EXHIBIT 2.04-C
FORM OF COMPETITIVE BID
Wachovia Bank, National Association,
as Administrative Agent
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 [Date]
Attention: Syndication Agency Services
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Credit Agreement
dated as of August 18, 2004 (as restated, amended, modified, supplemented and in
effect from time to time, the "Credit Agreement"), among Xxxxxx Xxxxxx Energy
Partners, L.P. (the "Company"), the Subsidiary Borrower, the Lenders party
thereto, Wachovia Bank, National Association, as Administrative Agent, and the
other agents named therein. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. The undersigned hereby makes a Competitive Bid pursuant to Section
2.04(b) of the Credit Agreement, in response to the Competitive Bid Request made
by the Company on _________________, ____, and in that connection sets forth
below the terms on which such Competitive Bid is made:
(A) Principal Amount/1 ________________________________________________
(B) Competitive Bid Rate/2 ________________________________________________
(C) Interest Period and
the last day thereof/3 ________________________________________________
The undersigned hereby confirms that it is prepared to extend credit
to the Company upon acceptance by the Company of this bid in accordance with
Section 2.04(d) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By:_____________________________________________
Name:
Title:
____________________________
1 Not less than $5,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of $1,000,000 above said $5,000,000.
Multiple bids will be accepted by the Administrative Agent.
2 i.e. LIBOR Rate + or - _______%, in the case of Eurodollar Loans, or
_____%, in the case of Fixed Rate Loan (in each case, expressed in the form
of a decimal to no more than four decimal places).
3 The Interest Period must be the Interest Period specified in the
Competitive Bid Request.
EXHIBIT 2.06
FORM OF LETTER OF CREDIT REQUEST
--------------------------------
Dated __________
Wachovia Bank, National Association,
as Administrative Agent and as Issuing Bank
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
This Letter of Credit Request is delivered to you by Xxxxxx Xxxxxx
Energy Partners L.P. (the "Company"), a Delaware limited partnership, under
Section 2.06 of the Credit Agreement dated as of August 18, 2004, (as restated,
amended, modified, supplemented, and in effect from time to time, the "Credit
Agreement") by and among the Company, the Subsidiary Borrower, the Lenders party
thereto, Wachovia Bank, National Association, as Administrative Agent, and the
other agents named therein.
The Company hereby requests the issuance of a Letter of Credit under
the Credit Agreement, and in that connection sets forth below the information
relating to such Letter of Credit (the "Proposed Letter of Credit") as required
by Section 2.06(c) of the Credit Agreement. The Proposed Letter of Credit must
be issued:
(a) on or before ____________________, _____/1
(b) for the benefit of _____________ whose address is
__________________
(c) in the amount of $_________________
(d) having an expiry date of ________________, ____/2
(e) attached hereto is any special language to be incorporated into
the Proposed Letter of Credit.
or
1. The Company hereby refers to Letter of Credit Number (the
"Expiring Letter of Credit") which has an existing expiry date of . The Company
hereby requests that [the expiry date of the Expiring Letter of Credit be
extended to _____________./2] [the Issuing Bank permit the expiry date of the
Expiring Letter of Credit be extended to ________________./2]1. After giving
effect to the Proposed Letter of Credit, neither the LC Exposure nor the sum of
the
________________________
1 Must be a date not earlier than five Busines Days after notice is given to
the Issuing Bank
2 Must comply with Section 2.06(d) of the Credit Agreement.
Committed Credit Exposures, plus the aggregate principal amount of Competitive
Loans exceeds the maximum amount permitted to be outstanding pursuant to the
terms of the Credit Agreement.
2. All of the conditions applicable to the Loans requested herein as
set forth in the Credit Agreement have been satisfied as of the date hereof and
will remain satisfied to the date of the Proposed Letter of Credit.
3. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Letter of Credit Request this _____ day of _______________, _____.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management, LLC,
its Delegate
By:____________________________________
Name:
Title:
-2-
EXHIBIT 2.07
FORM OF NOTICE OF ACCOUNT DESIGNATION
-------------------------------------
Dated ___________
Wachovia Bank, National Association,
as Administrative Agent
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you by Xxxxxx
Xxxxxx Energy Partners, L.P. (the "Company"), a Delaware limited partnership,
under Section 2.07 of the Credit Agreement dated as of August 18, 2004 (as
restated, amended, modified, supplemented and in effect from time to time, the
"Credit Agreement") by and among the Company, the Subsidiary Borrower, the
Lenders party thereto, Wachovia Bank, National Association, as Administrative
Agent, and the other agents named therein.
The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
[Insert name of bank/
ABA Routing Number/
and Account Number]
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Account Designation this _____ day of ___________________, ____.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management, LLC,
its Delegate
By: ___________________________________
Name:
Title:
EXHIBIT 2.08
FORM OF INTEREST ELECTION REQUEST
---------------------------------
Dated _____________
Wachovia Bank, National Association,
as Administrative Agent
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Interest Election Request (the "Request") is
delivered to you under Section 2.08 of the Credit Agreement dated as of August
18, 2004 (as restated, amended, modified, supplemented and in effect from time
to time, the "Credit Agreement"), by and among Xxxxxx Xxxxxx Energy Partners,
L.P., a Delaware limited partnership (the "Company"), the Subsidiary Borrower,
the Lenders party thereto (the "Lenders"), Wachovia Bank, National Association
as Administrative Agent, and the other agents named therein.
1. This Interest Election Request is submitted for the purpose of:
(a) [Converting] [Continuing] a ____________ Committed Loan [into]
[as] a ____________ Loan./1
(b) The aggregate outstanding principal balance of such Committed
Loan is $______________.
(c) The last day of the current Interest Period for such Committed
Loan is _____________./2
(d) The principal amount of such Committed Loan to be [converted]
[continued] is $_____________./3
(e) The requested effective date of the [conversion] [continuation]
of such Committed Loan is _______________./4
(f) The requested Interest Period applicable to the [converted]
[continued] Committed Loan is
____________________./5
____________________________________
1 Delete the bracketed language and insert "Alternate Base Rate" or "LIBOR
Rate", as applicable, in each blank.
2 Insert applicable date for any Eurodollar Loan being
converted or continued.
3 Complete with an amount in compliance with Section 2.08 of
the Credit Agreement.
4 Complete with a Business Day in compliance with Section 2.08
of the Credit Agreement.
2. No Default or Event of Default exists, and none will exist upon the
conversion or continuation of the Committed Loan requested herein.
3. All capitalized undefined terms used herein have the meanings assigned
thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Interest Election
Request this _____ day of ___________________, ____.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management, LLC,
its Delegate
By: ____________________________________
Name:
Title:
________________________________________________________________________________
5 Complete for each Eurodollar Loan in compliance with the definition of the
term "Interest Period" specified in Section 1.01.
-2-
EXHIBIT 2.11
FORM OF NOTICE OF PREPAYMENT
----------------------------
Wachovia Bank, National Association,
as Administrative Agent
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you by Xxxxxx
Xxxxxx Energy Partners, L.P. (the "Company"), a Delaware limited partnership,
under Section 2.11 of the Credit Agreement dated as of August 18, 2004 (as
restated, amended, modified, supplemented and in effect from time to time, the
"Credit Agreement"), by and among the Company, the Subsidiary Borrower, the
Lenders party thereto, Wachovia Bank, National Association, as the
Administrative Agent, and the other agents named therein.
1. The Company hereby provides notice to the Administrative Agent
that the Company shall repay the following ABR Loans and/or Eurodollar Loans in
the amount of $_____________./1
2. The Company shall repay the above-referenced Loans on the
following Business Day: ___________________./2
3. All capitalized undefined terms used herein have the meanings
assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Borrowing Request this _____ day of _______________, _____.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management,
LLC,
its Delegate
_______________________________
1 Complete with an amount in accordance with Section 2.11(b)
of the Credit Agreement.
2 Complete with a Business Day in accordance with Section
2.11(b) of the Credit Agreement.
By: ____________________________________
Name:
Title:
-2-
EXHIBIT 5.01
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that he is the
____________________________ of XXXXXX XXXXXX MANAGEMENT, LLC, a Delaware
limited liability company, the delegate of the KINDER XXXXXX X.X., INC., a
Delaware corporation, general partner of XXXXXX XXXXXX ENERGY PARTNERS, L.P., a
Delaware limited partnership (the "Company"), and that as such he is authorized
to execute this certificate on behalf of the Company. With reference to the
Credit Agreement dated as of August 18, 2004 (as restated, amended, modified,
supplemented and in effect from time to time, the "Agreement") among the
Company, the Subsidiary Borrower, Wachovia Bank, National Association, as
Administrative Agent, for the lenders (the "Lenders"), and the other agents
named therein, which are or become a party thereto, and such Lenders, the
undersigned represents and warrants as follows (each capitalized term used
herein having the same meaning given to it in the Agreement unless otherwise
specified);
(a) Attached hereto are the detailed computations necessary to
determine whether the Company is in compliance with Sections 6.06(a), (b)
and (c) of the Agreement as of the end of the [fiscal quarter][fiscal
year] ending
________________.
(b) There currently does not exist any Default or Event of Default
under the Agreement.
EXECUTED AND DELIVERED this _____ day of ________________, ______.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: Xxxxxx Xxxxxx Management,
LLC,
its Delegate
By: ____________________________________
Name:
Title:
