Exhibit 10.01
364-DAY CREDIT AGREEMENT
among
DUKE ENERGY FIELD SERVICES, LLC
and
DUKE ENERGY FIELD SERVICES CORPORATION
as Borrowers,
THE LENDERS IDENTIFIED HEREIN
AND
JPMORGAN CHASE BANK,
as Administrative Agent,
SUNTRUST BANK and
WACHOVIA BANK, N.A.,
as Co-Syndication Agents
AND
THE ROYAL BANK OF SCOTLAND PLC and
UBS AG, CAYMAN ISLANDS BRANCH,
as Co-Documentation Agents
DATED AS OF MARCH 28, 2003
Arranged by:
X.X. XXXXXX SECURITIES INC.,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS................................................................. 1
1.1 Definitions.................................................................................... 1
1.2 Computation of Time Periods.................................................................... 13
1.3 Accounting Terms............................................................................... 13
1.4 Time........................................................................................... 13
SECTION 2. LOANS............................................................................................ 14
2.1 Revolving Committed Amount..................................................................... 14
2.2 Letter of Credit Subfacility................................................................... 14
2.3 Method of Borrowing for Loans.................................................................. 19
2.4 Funding of Loans............................................................................... 19
2.5 Continuations and Conversions.................................................................. 20
2.6 Minimum Amounts................................................................................ 20
2.7 Reductions of Revolving Committed Amounts...................................................... 21
2.8 Notes.......................................................................................... 21
2.9 Joint and Several Liability of the Borrowers................................................... 21
2.10 Limitation of Liability of Borrowers........................................................... 22
2.11 Increases in Revolving Committed Amount........................................................ 23
SECTION 3. PAYMENTS......................................................................................... 24
3.1 Interest....................................................................................... 24
3.2 Prepayments.................................................................................... 25
3.3 Payment in full at Maturity.................................................................... 25
3.4 Fees........................................................................................... 26
3.5 Place and Manner of Payments................................................................... 26
3.6 Pro Rata Treatment............................................................................. 27
3.7 Computations of Interest and Fees.............................................................. 27
3.8 Sharing of Payments............................................................................ 28
3.9 Evidence of Debt............................................................................... 29
SECTION 4. ADDITIONAL PROVISIONS REGARDING LOANS............................................................ 30
4.1 Eurodollar Loan Provisions..................................................................... 30
4.2 Capital Adequacy............................................................................... 32
4.3 Compensation................................................................................... 32
4.4 Taxes.......................................................................................... 33
4.5 Replacement of Lenders......................................................................... 35
SECTION 5. CONDITIONS PRECEDENT............................................................................. 36
5.1 Closing Conditions............................................................................. 36
5.2 Conditions to Loans............................................................................ 38
SECTION 6. REPRESENTATIONS AND WARRANTIES................................................................... 39
6.1 Organization and Good Standing................................................................. 39
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6.2 Due Authorization.............................................................................. 39
6.3 No Conflicts................................................................................... 39
6.4 Consents....................................................................................... 40
6.5 Enforceable Obligations........................................................................ 40
6.6 Financial Condition............................................................................ 40
6.7 Taxes.......................................................................................... 40
6.8 Compliance with Law............................................................................ 41
6.9 Use of Proceeds; Margin Stock.................................................................. 41
6.10 Government Regulation.......................................................................... 41
6.11 Solvency....................................................................................... 41
6.12 Environmental Matters.......................................................................... 41
6.13 Subsidiaries................................................................................... 41
6.14 Litigation..................................................................................... 42
SECTION 7. AFFIRMATIVE COVENANTS............................................................................ 42
7.1 Information Covenants.......................................................................... 42
7.2 Preservation of Existence and Franchises....................................................... 44
7.3 Books and Records.............................................................................. 44
7.4 Compliance with Law............................................................................ 44
7.5 Payment of Taxes and Other Indebtedness........................................................ 45
7.6 Maintenance of Property; Insurance............................................................. 45
7.7 Use of Proceeds................................................................................ 45
7.8 Audits/Inspections............................................................................. 45
7.9 Maintenance of Ownership....................................................................... 46
7.10 Debt to Capitalization Ratio................................................................... 46
7.11 Interest Coverage Ratio........................................................................ 46
SECTION 8. NEGATIVE COVENANTS............................................................................... 46
8.1 Nature of Business............................................................................. 46
8.2. Liens.......................................................................................... 46
8.3 Consolidation and Merger....................................................................... 48
8.4 Sale or Lease of Assets........................................................................ 49
8.5 Transactions with Affiliates................................................................... 49
8.6 Indebtedness................................................................................... 49
8.7 Restricted Payments............................................................................ 49
SECTION 9. EVENTS OF DEFAULT................................................................................ 50
9.1 Events of Default.............................................................................. 50
9.2 Acceleration; Remedies......................................................................... 52
9.3 Allocation of Payments After Event of Default.................................................. 53
SECTION 10. AGENCY PROVISIONS............................................................................... 54
10.1 Appointment.................................................................................... 54
10.2 Delegation of Duties........................................................................... 55
10.3 Exculpatory Provisions......................................................................... 55
10.4 Reliance on Communications..................................................................... 55
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10.5 Notice of Default.............................................................................. 56
10.6 Non-Reliance on Agent and Other Lenders........................................................ 56
10.7 Indemnification................................................................................ 56
10.8 Agent in Its Individual Capacity............................................................... 57
10.9 Successor Agent................................................................................ 57
SECTION 11. MISCELLANEOUS................................................................................... 58
11.1 Notices........................................................................................ 58
11.2 Right of Set-Off............................................................................... 58
11.3 Benefit of Agreement........................................................................... 58
11.4 No Waiver; Remedies Cumulative................................................................. 61
11.5 Payment of Expenses, etc....................................................................... 61
11.6 Amendments, Waivers and Consents............................................................... 62
11.7 Counterparts/Telecopy.......................................................................... 62
11.8 Headings....................................................................................... 63
11.9 Defaulting Lender.............................................................................. 63
11.10 Survival of Indemnification and Representations and Warranties................................. 63
11.11 Governing Law; Venue........................................................................... 63
11.12 Waiver of Jury Trial; Waiver of Consequential Damages.......................................... 64
11.13 Severability................................................................................... 64
11.14 Further Assurances............................................................................. 64
11.15 Entirety....................................................................................... 64
11.16 Binding Effect; Continuing Agreement........................................................... 64
11.17 Confidentiality................................................................................ 65
SCHEDULES
Schedule 1.1 Commitment Percentages
Schedule 6.13 Material Subsidiaries
Schedule 8.2 Liens
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.3 Form of Notice of Borrowing
Exhibit 2.5 Form of Notice of Continuation/Conversion
Exhibit 2.8 Form of Note
Exhibit 2.11 Commitment Acceptance
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 11.3(b) Form of Assignment Agreement
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364-DAY CREDIT AGREEMENT
THIS 364-DAY CREDIT AGREEMENT (this "Credit Agreement"), dated as of
March 28, 2003, is entered into among DUKE ENERGY FIELD SERVICES, LLC, a
Delaware limited liability company and DUKE ENERGY FIELD SERVICES CORPORATION, a
Delaware corporation (individually, a "Borrower" and collectively, the
"Borrowers"), the Lenders (as defined herein) and JPMORGAN CHASE BANK, as
administrative agent for the Lenders (in such capacity, the "Agent").
RECITALS
WHEREAS, the Borrowers have requested that the Lenders make available
to them a revolving credit facility in the aggregate amount of $350 million for
the purposes set forth herein; and
WHEREAS, the Lenders have agreed to provide the requested revolving
credit facility to the Borrowers on the terms, and subject to the conditions,
set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus, as
applicable, (a) the Applicable Margin for Eurodollar Loans on and
before Maturity Date or (b) the Applicable Margin for Eurodollar Loans
subsequent to Maturity Date.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under
direct or indirect common control with such Person and, with respect to
the Borrowers, shall include ConocoPhillips and its Affiliates. A
Person shall be deemed to control a corporation if such Person
possesses, directly or indirectly, the power to direct or cause
direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise.
"Agency Services Address" means JPMorgan Chase Bank, 1111
Xxxxxx - 10th Fl., Xxxxxxx, Xxxxx 00000, or such other address as may
be identified by written notice from the Agent to the Borrowers and the
Lenders.
"Agent" means JPMorgan Chase Bank and any successors and
assigns in such capacity.
"Applicable Margin" means, at any time, the rate per annum set
forth in the table below opposite the Debt Rating of the Borrowers:
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Applicable Margin Applicable Margin
for Base Rate Loans for Eurodollar
Borrowers' Applicable Margin for on and before Loans on and before
Pricing Level Debt Rating Commitment Fees Maturity Date Maturity Date
----------------------------------------------------------------------------------------------------------
I > or = A-/A3 .100% 0% .875%
----------------------------------------------------------------------------------------------------------
II BBB+/Baa1 .125% 0% 1.000%
----------------------------------------------------------------------------------------------------------
III BBB/Baa2 .150% .25% 1.25%
----------------------------------------------------------------------------------------------------------
IV BBB-/Baa3 .200% .500% 1.500%
----------------------------------------------------------------------------------------------------------
V < or = BB+/Ba1 .300% .750% 1.750%
----------------------------------------------------------------------------------------------------------
The Applicable Margin for Base Rate Loans or Eurodollar Loans
subsequent to the Maturity Date is the otherwise applicable rate per
annum in the table above plus 1.25% per annum.
Notwithstanding the above, if at any time there is a split in
Debt Ratings between S&P and Xxxxx'x, the lower Debt Rating (i.e. the
higher pricing) will apply.
The Applicable Margin for Eurodollar Loans and the Commitment
Fees shall, in each case, be determined and adjusted on the date (each
a "Calculation Date") on which there is a change in the Borrowers' Debt
Rating. Each determination of the Applicable Margin shall be effective
from one Calculation Date until the next Calculation Date. Any
adjustment in the Applicable Margin shall be applicable to all existing
Eurodollar Loans and Letters of Credit as well as any new Eurodollar
Loans made or Letters of Credit issued.
The Borrowers shall promptly deliver to the Agent, at the
address set forth on Schedule 11.1 and at the Agency Services Address,
information regarding any change in the Borrowers' Debt Rating that
would change the existing Pricing Level pursuant to the preceding
paragraph.
"Approved Officer" means the president, a vice president, the
treasurer or the assistant treasurer of the Borrowers or such other
representative of the Borrowers as may be designated by any one of the
foregoing with consent of the Agent.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Base Rate" means, for any day, the rate per annum equal to
the greater of (a) the Federal Funds Rate in effect on such day plus
1/2 of 1% or (b) the Prime Rate in effect on such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal
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Funds Rate shall be effective on the effective date of such change in
the Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means a Loan which bears interest based on
the Base Rate.
"Borrowers" means, subject to Section 2.10, Duke Energy Field
Services, LLC, a Delaware limited liability company, and Duke Energy
Field Services Corporation, a Delaware corporation, and "Borrower"
means either of them.
"Borrowers Obligations" means, without duplication, all of the
obligations of the Borrowers to the Lenders and the Agent, whenever
arising, under this Credit Agreement, the Notes, the LOC Documents or
any of the other Credit Documents.
"Business Day" means any day other than a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are authorized
or required by law or other governmental action to close in New York,
New York; provided that in the case of Eurodollar Loans, such day is
also a day on which dealings between banks are carried on in U.S.
dollar deposits in the London interbank market.
"Businesses" has the meaning set forth in Section 6.12.
"Capital Stock" means (a) in the case of a corporation, all
classes of capital stock of such corporation, (b) in the case of a
partnership, partnership interests (whether general or limited), (c) in
the case of a limited liability company, membership interests and (d)
any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Change of Control" means that, as of any date, any "person"
or "group" (within the meaning of section 13(d) or 14(d) of the
Exchange Act) other than Duke Energy Corporation or ConocoPhillips, or
their respective Subsidiaries, has become, directly or indirectly, the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 of the Exchange
Act), by way of merger, consolidation or otherwise, of 30% or more of
the Voting Stock of a Borrower on a fully-diluted basis, after giving
effect to the conversion and exercise of all outstanding warrants,
options and other securities of a Borrower convertible into or
exercisable for Voting Stock of a Borrower (whether or not such
securities are then currently convertible or exercisable).
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means the commitment of each Lender with respect
to the Revolving Committed Amount and "Commitments" means,
collectively, all such commitments of the Lenders.
"Commitment Fees" has the meaning specified in Section 3.4(a).
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"Commitment Percentage" means, for each Lender, the percentage
identified as its Commitment Percentage opposite such Lender's name on
Schedule 1.1, as such percentage may be modified by assignment or
increase in commitments in accordance with the terms of this Credit
Agreement.
"Consolidated Capitalization" means, without duplication, the
sum of (a) all of the shareholders' equity or net worth of the
Borrowers and their Subsidiaries on a consolidated basis in accordance
with GAAP (including preferred stock and preferred member interests,
but excluding, if applicable, equity or net worth of TEPPCO Partners,
L.P.) plus (b) the aggregate outstanding amount of all Equity Preferred
Securities plus (c) Consolidated Indebtedness.
"Consolidated EBITDA" means, for any period, an amount equal
to Consolidated Net Income for such period plus, to the extent deducted
in determining Consolidated Net Income for such period, the aggregate
amount of (i) taxes based on or measured by income, (ii) Interest
Expense, (iii) depreciation and amortization expense, (iv) non-cash
losses resulting from asset or goodwill impairment, (v) non-cash losses
resulting from asset sales and (vi) the Adjustment Amount. The
"Adjustment Amount" shall be an amount equal to (a) for the period of
four consecutive fiscal quarters ending March 31, 2003, $60,000,000,
(b) for the period of four consecutive fiscal quarters ending June 30,
2003, $23,000,000, (c) for the period of four consecutive fiscal
quarters ending September 20, 2003, $10,000,000 and (d) for any period
of four consecutive fiscal quarters ending on any date on or after
December 31, 2003, $0.
"Consolidated Indebtedness" means, without duplication, all
Indebtedness of the Borrowers and their Subsidiaries on a consolidated
basis, other than (a) the aggregate amount of uncollected accounts
receivable of such Person subject at such time to a sale of receivables
(or similar transaction) which is not set forth on the balance sheet of
the Borrowers or their Subsidiaries, to the extent less than 25% of the
total Indebtedness of the Borrowers and their Subsidiaries, (b)
Indebtedness, if applicable, of TEPPCO Partners, L.P. and (c) the
aggregate outstanding amount of all Equity Preferred Securities.
"Consolidated Interest Coverage Ratio" means the ratio of (i)
Consolidated EBITDA for each period of four consecutive fiscal
quarters, commencing with the four quarters ending March 31, 2003, to
(ii) Interest Expense for such period.
"Consolidated Net Income" means, for any period, the net
income of the Borrowers and their Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided
that Consolidated Net Income shall not include (i) extraordinary gains
or extraordinary losses and (ii) the cumulative effect of a change in
accounting principles, all as reported in the Borrowers' consolidated
statement(s) of income for the relevant period(s) prepared in
accordance with GAAP.
"Corporate Conversion" means (a) the conversion of Duke Energy
Field Services, LLC from a limited liability company to a "C"
corporation or (b) the merger of Duke Energy Field Services LLC with
and into Duke Energy Field Services Corporation.
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"Credit Documents" means this Credit Agreement, the Notes, the
LOC Documents, any Notice of Borrowing, any Notice of
Continuation/Conversion and all other related agreements and documents
issued or delivered hereunder or thereunder or pursuant hereto or
thereto.
"Credit Exposure" means, as applied to each Lender (a) at any
time prior to the termination of the Commitments, the Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount
and (b) at any time after the termination of the Commitments, the sum
of (i) the principal balance of the outstanding Loans of such Lender
plus (ii) such Lender's Participation Interest in the face amount of
outstanding Letters of Credit.
"Debt Rating" means the long-term senior unsecured, non-credit
enhanced debt rating of the Borrowers by S&P and Xxxxx'x.
"Debt to Capitalization Ratio" means, the ratio of (a)
Consolidated Indebtedness to (b) Consolidated Capitalization.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at
such time (a) has failed to make a Loan required pursuant to the term
of this Credit Agreement, (b) has failed to pay to the Agent or any
Lender an amount owed by such Lender pursuant to the terms of this
Credit Agreement or (c) has been deemed insolvent by a court of
competent jurisdiction or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar official.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Effective Date" means the date on which the conditions set
forth in Section 5.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders).
"Eligible Assignee" means (a) a Lender and (b) any other
Person approved by the Borrowers and the Agent (such approvals not to
be unreasonably withheld or delayed); provided that (A) the Borrowers'
consent is not required during the existence and continuation of an
Event of Default and (B) neither a Borrower nor an Affiliate of a
Borrower shall qualify as an Eligible Assignee.
"Equity Preferred Securities" means any securities, however
denominated, (i) issued by the Borrowers or their Subsidiaries, (ii)
that are not subject to mandatory redemption or the underlying
securities, if any, of which are not subject to mandatory redemption,
(iii) that are perpetual or that mature no earlier than 20 years from
the date of issuance and no earlier than one year from the Maturity
Date, (iv) the indebtedness issued in connection with which, including
any guaranty, is subordinated in right of payment to the unsecured and
unsubordinated indebtedness of the issuer of such indebtedness or
guaranty and (v) the
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terms of which permit the deferral of interest or distributions thereon
to a date occurring after the first anniversary of the Maturity Date.
"Environmental Laws" means any legal requirement of any
Governmental Authority pertaining to (a) the protection of health,
safety, and the indoor or outdoor environment, (b) the conservation,
management, or use of natural resources and wildlife, (c) the
protection or use of surface water and groundwater or (d) the
management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure
to, any hazardous or toxic substance or material or (e) pollution
(including any release to land surface water and groundwater) and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984,
42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act, as
amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15
USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App.
1801 et seq., Occupational Safety and Health Act of 1970, as amended,
29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq.,
Emergency Planning and Community Right-to-Know Act of 1986, 42 USC
11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321
et seq., Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et
seq., any analogous implementing or successor law, and any amendment,
rule, regulation, order, or directive issued thereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with a Borrower or any of
its Subsidiaries within the meaning of Section 4001(a)(14) of ERISA, or
is a member of a group which includes a Borrower or any of its
Subsidiaries and which is treated as a single employer under Sections
414(b), (c), (m), or (o) of the Code.
"Eurodollar Loan" means a Loan bearing interest at the
Adjusted Eurodollar Rate.
"Eurodollar Rate" means with respect to any Eurodollar Loan,
for the Interest Period applicable thereto, a rate per annum equal to
the London Interbank Offered Rate.
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D as the maximum reserve requirement (including,
without limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurocurrency liabilities,
as that term is defined
6
in Regulation D (or against any other category of liabilities that
includes deposits by reference to which the interest rate of Eurodollar
Loans is determined).
"Event of Default" has the meaning specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as
amended, modified, succeeded or replaced from time to time.
"Existing Credit Facility" means the credit facility evidenced
by that certain 364-Day Credit Agreement, dated as of March 29, 2002,
among the Borrowers, the lenders party thereto and Bank of America,
N.A., as administrative agent and all documents and instruments entered
into in connection therewith.
"Existing Preferred Members' Interest" as reported under GAAP
in Duke Energy Field Services, LLC's 10-K for the year ended December
31, 2002.
"Extension of Credit" means, as to any Lender, the making of a
Loan by such Lender (or a participation therein by a Lender) or the
issuance of, or participation in, a Letter of Credit by such Lender.
"Fee Letter" means that certain letter agreement, dated as of
March 3, 2003, between the Agent and the Borrowers, as amended,
modified, supplemented or replaced from time to time.
"Federal Funds Rate" means for any day the rate per annum
(rounded upward to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers
on such day, as published by the Federal Reserve Bank of New York on
the Business Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Agent on such day on such transactions as determined by
the Agent.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section 1.3.
"Government Acts" has the meaning specified in Section 2.2(k).
"Governmental Authority" means any Federal, state, local or
foreign court, monetary authority or governmental agency, authority,
instrumentality or regulatory body.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations
of such Person for the deferred purchase price of property or services
purchased, (c) all obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
the property
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acquired, (d) all obligations of such Person under lease obligations
which shall have been, or should be, in accordance with GAAP, recorded
as capital leases in respect of which such Person is liable as lessee,
(e) the face amount of all letter of credit indebtedness available to
be drawn (other than letter of credit obligations relating to
indebtedness included in Indebtedness pursuant to another clause of
this definition) and, without duplication, the unreimbursed amount of
all drafts drawn thereunder, (f) obligations secured by a Lien on
property or assets of such Person, whether or not assumed (but in any
event not exceeding the fair market value of the property or asset),
(g) all guarantees of Indebtedness referred to in clauses (a) through
(f) above, (h) all amounts payable by such Person in connection with
mandatory redemptions or repurchases of preferred stock, (i) any
obligations of such Person (in the nature of principal or interest) in
respect of acceptances or similar obligations issued or created for the
account of such Person and (j) all Off Balance Sheet Indebtedness of
such Person.
"Interest Expense" means interest expense as would appear on a
consolidated statement of income of the Borrowers and their
Subsidiaries prepared in accordance with GAAP.
"Interest Payment Date" means (a) as to Base Rate Loans, the
first day of each fiscal quarter of the Borrowers, the Maturity Date
and the Term Out Maturity Date, if applicable, and (b) as to Eurodollar
Loans, the last day of each applicable Interest Period, the Maturity
Date and the Term Out Maturity Date, if applicable, and, in addition,
where the applicable Interest Period for a Eurodollar Loan is greater
than three months, then also on the last day of each three-month period
during such Interest Period. If an Interest Payment Date falls on a
date which is not a Business Day, such Interest Payment Date shall be
deemed to be the next succeeding Business Day, except that in the case
of Eurodollar Loans where the next succeeding Business Day falls in the
next succeeding calendar month, then on the next preceding Business
Day.
"Interest Period" means, with respect to Eurodollar Loans, a
period of one, two, three or six months' duration, as the Borrowers may
elect, commencing, in each case, on the date of the borrowing
(including continuations and conversions of Eurodollar Loans);
provided, however, (a) if any Interest Period would end on a day which
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day (except that where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day), (b) no Interest Period shall extend
beyond the Maturity Date (or, if the Borrowers choose to term out the
then existing Loans pursuant to Section 3.3(b), the Term Out Maturity
Date) and (c) where an Interest Period begins on a day for which there
is no numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"Issuing Lender" means JPMorgan Chase Bank.
"Issuing Lender Fees" has the meaning set forth in Section
3.4(c)(ii).
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"Letter of Credit" means a Letter of Credit issued for the
account of the Borrowers or one of their Subsidiaries by the Issuing
Lender pursuant to Section 2.2, as such Letter of Credit may be
amended, modified, extended, renewed or replaced.
"Letter of Credit Fees" shall have the meaning assigned to
such term in Section 3.4(c)(i).
"Lender" means any Person identified as a Lender on the
signature pages hereto and any Eligible Assignee which may become a
Lender by way of assignment in accordance with the terms hereof, and
any financial institution which becomes a Lender pursuant to Section
2.11, together with their successors or permitted assigns.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to Section 2.1 (or extended pursuant to Section 3.3(b)).
"LOC Committed Amount" means ONE HUNDRED MILLION DOLLARS
($100,000,000).
"LOC Documents" means, with respect to any Letter of Credit,
such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in
application or applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties concerned
or at risk or (b) any collateral security for such obligations.
"LOC Obligations" means, at any time, the sum of (a) the
maximum amount which is then available to be drawn under Letters of
Credit then outstanding, assuming compliance with all requirements for
drawings referred to in such Letters of Credit plus (b) the aggregate
amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.
"London Interbank Offered Rate" means, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate of
interest per annum appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified
on Telerate Page 3750, the applicable rate shall be the arithmetic mean
of all such rates. If, for any reason, such rate is not available, the
term "London Interbank Offered Rate" shall mean, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate of
interest per annum appearing on such other
9
service as may be nominated by the British Bankers' Association as the
London interbank offered rate for deposits in Dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified, the applicable
rate shall be the arithmetic mean of all such rates.
"Mandatory Borrowing" has the meaning specified in Section
2.2(e).
"Material Adverse Effect" means a material adverse effect on
the business, financial positions or results of operations of the
Borrowers and their Subsidiaries taken as a whole.
"Material Subsidiary" means any Subsidiary of the Borrowers
that, together with its Subsidiaries, owns in excess of 10% of the
consolidated assets of the Borrowers and their Subsidiaries.
"Maturity Date" means March 26, 2004.
"Merger" means the following transaction: (a) the merger of
Xxxxxxxx Gas Company Shareholder, Inc., a Subsidiary of ConocoPhillips
and the parent of Xxxxxxxx Gas Company, with and into Duke Energy Field
Services Corporation and (b) the subsequent merger of Xxxxxxxx Gas
Company with and into Duke Energy Field Services Corporation.
"Multiemployer Plan" means a Plan covered by Title IV of ERISA
which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3)
of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of
ERISA, other than a Multiemployer Plan, which a Borrower or any ERISA
Affiliate and at least one employer other than a Borrower or any ERISA
Affiliate are contributing sponsors.
"Non-Excluded Taxes" has the meaning specified in Section
4.4(a).
"Notes" means the promissory notes of the Borrowers in favor
of each of the Lenders evidencing the Loans provided pursuant to
Section 2.1, individually or collectively, as appropriate, as such
notes may be amended or modified from time to time and substantially in
the form of Exhibit 2.8.
"Notice of Borrowing" means a request by the Borrowers for a
Loan in the form of Exhibit 2.3.
"Notice of Continuation/Conversion" means a request by the
Borrowers for the continuation or conversion of a Loan in the form of
Exhibit 2.5.
"Off Balance Sheet Indebtedness" means any obligation of a
Person that would be considered indebtedness for tax purposes but is
not set forth on the balance sheet of such Person, including, but not
limited to, (a) any synthetic lease, tax retention operating lease, off
balance sheet loan or similar off-balance sheet financing product of
such Person, (b) the aggregate amount of uncollected accounts
receivables of such Person subject at such time to
10
a sale of receivables (or similar transaction) and (c) obligations of
any partnership or joint venture that is recourse to such Person.
"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in Letters of Credit or
LOC Obligations as provided in Section 2.2 or in any Loans as provided
in Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Permitted Refinancings" means the refinancing of the Existing
Preferred Members' Interests with (i) Equity Preferred Securities of
Duke Energy Field Services, LLC having a coupon not greater than the
coupon applicable to the Existing Preferred Members' Interest or (ii)
common stock of Duke Energy Field Services, LLC.
"Person" means any individual, partnership, joint venture,
firm, corporation, association, trust, limited liability company or
other enterprise (whether or not incorporated), or any government or
political subdivision or any agency, department or instrumentality
thereof.
"Plan" means any employee pension benefit plan (as defined in
Section 3(2) of ERISA) which is covered by ERISA and with respect to
which a Borrower or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" within the meaning of Section 3(5) of ERISA.
"Prime Rate" means the per annum rate of interest established
from time to time by the Agent at its principal office in New York
City, New York as its Prime Rate. Any change in the interest rate
resulting from a change in the Prime Rate shall become effective as of
12:01 a.m. of the Business Day on which each change in the Prime Rate
is announced by the Agent. The Prime Rate is a reference rate used by
the Agent in determining interest rates on certain loans and is not
intended to be the lowest rate of interest charged on any extension of
credit to any debtor.
"Properties" has the meaning set forth in Section 6.12.
"Register" has the meaning set forth in Section 11.3(c).
"Regulation A, D, T, U, or X" means Regulation A, D, T, U or
X, respectively, of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a
portion thereof.
"Reportable Event" means a "reportable event" as defined in
Section 4043 of ERISA with respect to which the notice requirements to
the PBGC have not been waived.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50% of the
aggregate Credit Exposure of all Lenders at such time; provided,
however, that if any Lender shall be a Defaulting Lender at
11
such time then there shall be excluded from the determination of
Required Lenders the aggregate principal amount of Credit Exposure of
such Lender at such time.
"Responsible Officer" means the president, chief financial
officer or treasurer of either Borrower.
"Restricted Payment" means, with respect to either Borrower,
any dividend or distribution of cash, property or assets in respect of
its Capital Stock, or any purchase, redemption, retirement or other
acquisition for value of any shares of its Capital Stock.
"Revolving Committed Amount" means three HUNDRED AND FIFTY
MILLION Dollars ($350,000,000) as such amount may be reduced in
accordance with Section 2.7 or increased in accordance with Section
2.11.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (b) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature in their ordinary course, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's assets would
constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged
or is to engage, (d) the fair value of the assets of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present
fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed as the amount which, in light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries and (b) any
partnership, association, joint venture, limited liability company or
other entity in which such person directly or indirectly through
Subsidiaries has more than 50% equity interest at any time.
"Termination Event" means (a) with respect to any Single
Employer Plan, the occurrence of a Reportable Event or the substantial
cessation of operations (within the meaning of Section 4062(e) of
ERISA), (b) the withdrawal of a Borrower or any ERISA
12
Affiliate from a Multiple Employer Plan during a plan year in which it
was a substantial employer (as such term is defined in Section
4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan,
(c) the distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA,
(d) the institution of proceedings to terminate or the actual
termination of a Plan by the PBGC under Section 4042 of ERISA, (e) any
event or condition which might reasonably constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or (f) the complete or partial
withdrawal of a Borrower or any ERISA Affiliate from a Multiemployer
Plan.
"Term Out Maturity Date" has the meaning set forth in Section
3.3(b).
"Unused Commitment" means, for any period from the Closing
Date to the Maturity Date, the amount by which (a) the Revolving
Committed Amount exceeds (b) the daily average sum for such period of
the outstanding principal amount of all Loans plus the aggregate amount
of outstanding LOC Obligations.
"Voting Stock" means all classes of the Capital Stock (or
other voting interests) of such Person then outstanding and normally
entitled to vote in the election of directors or other governing body
of such Person.
1.2 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis.
1.4 TIME.
All references to time herein shall be references to Eastern Standard
Time or Eastern Daylight time, as the case may be, unless specified otherwise.
13
SECTION 2.
LOANS
2.1 REVOLVING COMMITTED AMOUNT.
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make revolving loans to the Borrowers in Dollars, at any
time and from time to time, during the period from the Effective Date to the
Maturity Date (each a "Loan" and collectively the "Loans"); provided, however,
that (a) the sum of the aggregate amount of Loans outstanding plus the aggregate
amount of LOC Obligations outstanding shall not exceed the Revolving Committed
Amount and (b) with respect to each individual Lender, such Lender's pro rata
share of outstanding Loans plus such Lender's pro rata share of outstanding LOC
Obligations shall not exceed such Lender's Commitment Percentage of the
Revolving Committed Amount. Subject to the terms of this Credit Agreement, the
Borrowers may borrow, repay and reborrow Loans.
2.2 LETTER OF CREDIT SUBFACILITY.
(a) Issuance. Subject to the terms and conditions hereof
and of the LOC Documents, if any, and any other terms and conditions
which the Issuing Lender may reasonably require (so long as such terms
and conditions do not impose any financial obligation on or require any
Lien (not otherwise contemplated by this Credit Agreement) to be given
by a Borrower or conflict with any obligation of, or detract from any
action which may be taken by the Borrowers or their Subsidiaries under
this Credit Agreement), the Issuing Lender shall from time to time upon
request issue, in Dollars, and the Lenders shall participate in,
letters of credit (the "Letters of Credit") for the account of a
Borrower or any of its Subsidiaries, from the Effective Date until the
Maturity Date, in a form reasonably acceptable to the Issuing Lender;
provided, however, that (i) the aggregate amount of LOC Obligations
shall not at any time exceed the LOC Committed Amount, (ii) the sum of
the aggregate amount of LOC Obligations outstanding plus Loans
outstanding shall not exceed the Revolving Committed Amount and (iii)
with respect to each individual Lender, the Lender's pro rata share of
outstanding Loans plus its pro rata share of outstanding LOC
Obligations shall not exceed such Lender's Commitment Percentage of the
Revolving Committed Amount. The issuance and expiry date of each Letter
of Credit shall be a Business Day. Except as otherwise expressly agreed
upon by all the Lenders, no Letter of Credit shall have an expiry date
extending beyond the Maturity Date. Each Letter of Credit shall be
either (x) a standby letter of credit issued to support the obligations
(including pension or insurance obligations), contingent or otherwise,
of a Borrower, or (y) a commercial letter of credit in respect of the
purchase of goods or services by a Borrower in the ordinary course of
business. Each Letter of Credit shall comply with the related LOC
Documents.
(b) Notice and Reports. The request for the issuance of a
Letter of Credit shall be submitted to the Issuing Lender at least two
Business Days prior to the requested date of issuance. The Issuing
Lender will, at least quarterly and more frequently upon request,
14
provide to the Lenders a detailed report specifying the Letters of
Credit which are then issued and outstanding and any activity with
respect thereto which may have occurred since the date of the prior
report, and including therein, among other things, the account party,
the beneficiary, the face amount, and the expiry date as well as any
payments or expirations which may have occurred. The Issuing Lender
will further provide to the Agent, promptly upon request, copies of the
Letters of Credit.
(c) Participations.
(i) Each Lender, upon issuance of a Letter of
Credit, shall be deemed to have purchased without recourse a
risk participation from the Issuing Lender in such Letter of
Credit and the obligations arising thereunder and any
collateral relating thereto, in each case in an amount equal
to its Commitment Percentage of the obligations under such
Letter of Credit, and shall absolutely, unconditionally and
irrevocably assume, as primary obligor and not as surety, and
be obligated to pay to the Issuing Lender therefor and
discharge when due, its Commitment Percentage of the
obligations arising under such Letter of Credit. Without
limiting the scope and nature of each Lender's participation
in any Letter of Credit, to the extent that the Issuing Lender
has not been reimbursed as required hereunder or under any
such Letter of Credit, each such Lender shall pay to the
Issuing Lender its Commitment Percentage of such unreimbursed
drawing in same day funds on the day of notification by the
Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) hereof. The obligation of each
Lender to so reimburse the Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence
of a Default, an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrowers to reimburse the
Issuing Lender under any Letter of Credit, together with
interest as hereinafter provided.
(d) Reimbursement. In the event of any request for a
drawing or any drawing under any Letter of Credit, the Issuing Lender
will promptly notify the Borrowers. Unless a Borrower shall immediately
notify the Issuing Lender of its intent to otherwise reimburse the
Issuing Lender, the Borrowers shall be deemed to have requested a Loan
at the Base Rate in the amount of the drawing as provided in subsection
(e) hereof, the proceeds of which will be used to satisfy the
reimbursement obligations. The Borrowers shall reimburse the Issuing
Lender on the day of drawing under any Letter of Credit either with the
proceeds of a Loan obtained hereunder or otherwise in same day funds as
provided herein or in the LOC Documents. If the Borrowers shall fail to
reimburse the Issuing Lender as provided hereinabove, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal to
the Base Rate plus two percent (2%). The Borrowers' reimbursement
obligations hereunder shall be absolute and unconditional under all
circumstances irrespective of (but without waiver of) any rights of
set-off, counterclaim or defense to payment that the applicable account
party or the Borrowers may claim or have against the Issuing Lender,
the Agent, the Lenders, the beneficiary of the Letter of Credit drawn
upon or any other Person, including without limitation, any defense
based on any failure of the
15
applicable account party or the Borrowers to receive consideration or
the legality, validity, regularity or unenforceability of the Letter of
Credit. The Issuing Lender will promptly notify the Lenders of the
amount of any unreimbursed drawing and each Lender shall promptly pay
to the Agent for the account of the Issuing Lender, in Dollars and in
immediately available funds, the amount of such Lender's Commitment
Percentage of such unreimbursed drawing. Such payment shall be made on
the day such notice is received by such Lender from the Issuing Lender
if such notice is received at or before 2:00 p.m., otherwise such
payment shall be made at or before 12:00 Noon on the Business Day next
succeeding the day such notice is received. If such Lender does not pay
such amount to the Issuing Lender in full upon such request, such
Lender shall, on demand, pay to the Agent for the account of the
Issuing Lender interest on the unpaid amount during the period from the
date the Lender received the notice regarding the unreimbursed drawing
until such Lender pays such amount to the Issuing Lender in full at a
rate per annum equal to, if paid within two Business Days of the date
of drawing, the Federal Funds Rate and thereafter at a rate equal to
the Base Rate. Each Lender's obligation to make such payment to the
Issuing Lender, and the right of the Issuing Lender to receive the
same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this
Credit Agreement or the Commitments hereunder, the existence of a
Default or Event of Default or the acceleration of the obligations
hereunder and shall be made without any offset, abatement, withholding
or reduction whatsoever. Simultaneously with the making of each such
payment by a Lender to the Issuing Lender, such Lender shall,
automatically and without any further action on the part of the Issuing
Lender or such Lender, acquire a participation in an amount equal to
such payment (excluding the portion of such payment constituting
interest owing to the Issuing Lender) in the related unreimbursed
drawing portion of the LOC Obligation and in the interest thereon and
in the related LOC Documents, and shall have a claim against the
Borrowers with respect thereto.
(e) Repayment with Loans. On any day on which a Borrower
shall have requested, or been deemed to have requested, a Loan
borrowing to reimburse a drawing under a Letter of Credit, the Agent
shall give notice to the applicable Lenders that a Loan has been
requested or deemed requested in connection with a drawing under a
Letter of Credit, in which case a Loan borrowing comprised solely of
Base Rate Loans (each such borrowing, a "Mandatory Borrowing") shall be
immediately made from all applicable Lenders (without giving effect to
any termination of the Commitments pursuant to Section 9.2 or
otherwise) pro rata based on each Lender's respective Commitment
Percentage and the proceeds thereof shall be paid directly to the
Issuing Lender for application to the respective LOC Obligations. Each
such Lender hereby irrevocably agrees to make such Loans immediately
upon any such request or deemed request on account of each such
Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the same such date notwithstanding (i) the
amount of Mandatory Borrowing may not comply with the minimum amount
for borrowings of Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 5.2 are then satisfied, (iii) whether a
Default or Event of Default then exists, (iv) failure of any such
request or deemed request for Loans to be made by the time otherwise
required hereunder, (v) the date of such Mandatory Borrowing, or (vi)
any reduction in the Revolving Committed Amount or any termination of
the Commitments. In the event that any Mandatory Borrowing cannot for
any reason be
16
made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code with respect to a Borrower), then each such Lender
hereby agrees that it shall forthwith fund (as of the date the
Mandatory Borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrowers on or after such date and prior to
such purchase) its Participation Interest in the outstanding LOC
Obligations; provided that in the event any Lender shall fail to fund
its Participation Interest on the day the Mandatory Borrowing would
otherwise have occurred, then the amount of such Lender's unfunded
Participation Interest therein shall bear interest payable to the
Issuing Lender upon demand, at the rate equal to, if paid within two
Business Days of such date, the Federal Funds Rate, and thereafter at a
rate equal to the Base Rate.
(f) Designation of Subsidiaries as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit
Agreement, a Letter of Credit issued hereunder may contain a statement
to the effect that such Letter of Credit is issued for the account of a
Subsidiary of the Borrowers; provided that notwithstanding such
statement, the Borrowers shall be the actual account party for all
purposes of this Credit Agreement for such Letter of Credit and such
statement shall not affect the Borrowers' reimbursement obligations
hereunder with respect to such Letter of Credit.
(g) Modification and Extension. The issuance of any
supplement, modification, amendment, renewal, or extension to any
Letter of Credit shall, for purposes hereof, be treated in all respects
the same as the issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may
have the Letters of Credit be subject to The Uniform Customs and
Practice for Documentary Credits (the "UCP") or the International
Standby Practices 1998 (the "ISP98"), in either case as published as of
the date of issue by the International Chamber of Commerce, in which
case the UCP or ISP98, as applicable, may be incorporated therein and
deemed in all respects to be a part thereof.
(i) Responsibility of Issuing Lender. It is expressly
understood and agreed that the obligations of the Issuing Lender
hereunder to the Lenders are only those expressly set forth in this
Credit Agreement and that the Issuing Lender shall be entitled to
assume that the conditions precedent set forth in Section 5.2 have been
satisfied unless it shall have acquired actual knowledge that any such
condition precedent has not been satisfied; provided, however, that
nothing set forth in this Section 2.2 shall be deemed to prejudice the
right of any Lender to recover from the Issuing Lender any amounts made
available by such Lender to the Issuing Lender pursuant to this Section
2.2 in the event that it is determined by a court of competent
jurisdiction that the payment with respect to a Letter of Credit
constituted gross negligence or willful misconduct on the part of the
Issuing Lender.
(j) Conflict with LOC Documents. In the event of any
conflict between this Credit Agreement and any LOC Document, this
Credit Agreement shall govern.
(k) Indemnification of Issuing Lender.
17
(i) In addition to its other obligations under
this Credit Agreement, the Borrowers hereby agree to protect,
indemnify, pay and save the Issuing Lender harmless from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable
attorneys' fees) that the Issuing Lender may incur or be
subject to as a consequence, direct or indirect, of (A) the
issuance of any Letter of Credit or (B) the failure of the
Issuing Lender to honor a drawing under a Letter of Credit as
a result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or
Governmental Authority (all such acts or omissions, herein
called "Government Acts").
(ii) As between the Borrowers and the Issuing
Lender, the Borrowers shall assume all risks of the acts,
omissions or misuse of any Letter of Credit by the beneficiary
thereof. The Issuing Lender shall not be responsible for: (A)
the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter
of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or
forged; (B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) failure of the
beneficiary of a Letter of Credit to comply fully with
conditions required in order to draw upon a Letter of Credit;
(D) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex
or otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in
the transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of the
proceeds thereof; and (G) any consequences arising from causes
beyond the control of the Issuing Lender, including, without
limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing Lender's
rights or powers hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth,
any action taken or omitted by the Issuing Lender, under or in
connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put
the Issuing Lender under any resulting liability to the
Borrowers. It is the intention of the parties that this Credit
Agreement shall be construed and applied to protect and
indemnify the Issuing Lender against any and all risks
involved in the issuance of the Letters of Credit, all of
which risks are hereby assumed by the Borrowers, including,
without limitation, any and all risks of the acts or
omissions, whether rightful or wrongful, of any present or
future Government Acts. The Issuing Lender shall not, in any
way, be liable for any failure by the Issuing Lender or anyone
else to pay any drawing under any Letter of Credit as a result
of any Government Acts or any other cause beyond the control
of the Issuing Lender.
18
(iv) Nothing in this subsection (k) is intended
to limit the reimbursement obligation of the Borrowers
contained in this Section 2.2. The obligations of the
Borrowers under this subsection (k) shall survive the
termination of this Credit Agreement. No act or omission of
any current or prior beneficiary of a Letter of Credit shall
in any way affect or impair the rights of the Issuing Lender
to enforce any right, power or benefit under this Credit
Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (k) or any of the Credit
Documents, the Borrowers shall have no obligation to indemnify
the Issuing Lender in respect of any liability incurred by the
Issuing Lender arising solely out of the gross negligence or
willful misconduct of the Issuing Lender, as determined by a
court of competent jurisdiction. Nothing in this Credit
Agreement shall relieve the Issuing Lender of any liability to
the Borrowers in respect of any action taken by the Issuing
Lender which action constitutes gross negligence or willful
misconduct of the Issuing Lender or a violation of the UCP,
the ISP98 or Uniform Commercial Code (as applicable), as
determined by a court of competent jurisdiction.
2.3 METHOD OF BORROWING FOR LOANS.
By no later than 11:00 a.m. (a) on the date of the requested borrowing
of Loans that will be Base Rate Loans or (b) three Business Days prior to the
date of the requested borrowing of Loans that will be Eurodollar Loans, the
Borrowers shall submit a written Notice of Borrowing in the form of Exhibit 2.3
to the Agent setting forth (i) the amount requested, (ii) whether such Loans
shall accrue interest at the Base Rate or the Adjusted Eurodollar Rate, (iii)
with respect to Loans that will be Eurodollar Loans, the Interest Period
applicable thereto and (iv) certification that the Borrowers have complied in
all respects with Section 5.2.
2.4 FUNDING OF LOANS.
Upon receipt of a Notice of Borrowing, the Agent shall promptly inform
the Lenders as to the terms thereof. Each such Lender shall make its Commitment
Percentage of the requested Loans available to the Agent by 2:00 p.m. on the
date specified in the Notice of Borrowing by deposit, in Dollars, of immediately
available funds at the Agency Services Address. The amount of the requested
Loans will then be made available to the Borrowers by the Agent by crediting the
account of the Borrowers on the books of such office of the Agent, to the extent
the amount of such Loans are made available to the Agent.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make Loans hereunder; provided, however, that the
failure of any Lender to fulfill its obligations hereunder shall not relieve any
other Lender of its obligations hereunder. Unless the Agent shall have been
notified by any Lender prior to the date of any such Loan that such Lender does
not intend to make available to the Agent its portion of the Loans to be made on
such date, the Agent may assume that such Lender has made such amount available
to the Agent on the date of such Loans, and the Agent in reliance upon such
assumption, may (in its sole discretion but without any
19
obligation to do so) make available to the Borrowers a corresponding amount. If
such corresponding amount is not in fact made available to the Agent, the Agent
shall be able to recover such corresponding amount from such Lender. If such
Lender does not pay such corresponding amount forthwith upon the Agent's demand
therefor, the Agent will promptly notify the Borrowers and the Borrowers shall
immediately pay such corresponding amount within two Business Days to the Agent.
The Agent shall also be entitled to recover from the Lender or the Borrowers, as
the case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the Agent to the
Borrowers to the date such corresponding amount is recovered by the Agent at a
per annum rate equal to (a) from the Borrowers at the applicable rate for such
Loan pursuant to the Notice of Borrowing and (b) from a Lender at the Federal
Funds Rate.
2.5 CONTINUATIONS AND CONVERSIONS.
The Borrowers shall have the option (subject to the limitations set
forth below), on any Business Day, to continue existing Eurodollar Loans for a
subsequent Interest Period, to convert Base Rate Loans into Eurodollar Loans or
to convert Eurodollar Loans into Base Rate Loans; provided, however, that (a)
each such continuation or conversion must be requested by the Borrowers pursuant
to a written Notice of Continuation/Conversion, in the form of Exhibit 2.5, in
compliance with the terms set forth below, (b) if a Eurodollar Loan is continued
or converted into a Base Rate Loan on any day other than the last day of the
Interest Period applicable thereto, then the Borrowers shall be subject to the
provisions set forth in Section 4.3, (c) Eurodollar Loans may not be continued
nor may Base Rate Loans be converted into Eurodollar Loans during the existence
and continuation of a Default or Event of Default and (d) any request to extend
a Eurodollar Loan that fails to comply with the terms hereof or any failure to
request an extension of a Eurodollar Loan at the end of an Interest Period shall
constitute a conversion to a Base Rate Loan on the last day of the applicable
Interest Period. Each continuation or conversion must be requested by the
Borrowers no later than 11:00 a.m. (i) on the date for a requested conversion of
a Eurodollar Loan to a Base Rate Loan or (ii) three Business Days prior to the
date for a requested continuation of a Eurodollar Loan or conversion of a Base
Rate Loan to a Eurodollar Loan, in each case pursuant to a written Notice of
Continuation/Conversion submitted to the Agent which shall set forth (A) whether
the Borrowers wish to continue or convert such Loans and (B) if the request is
to continue a Eurodollar Loan or convert a Base Rate Loan to a Eurodollar Loan,
the Interest Period applicable thereto.
2.6 MINIMUM AMOUNTS.
Each request for a Loan or a conversion or continuation hereunder shall
be subject to the following requirements: (a) each Eurodollar Loan shall be in a
minimum amount of $10,000,000 (and in integral multiples of $1,000,000 in excess
thereof), (b) each Base Rate Loan shall be in a minimum amount of the lesser of
$10,000,000 (and in integral multiples of $1,000,000 in excess thereof) or the
remaining amount available to be borrowed and (c) no more than ten Eurodollar
Loans shall be outstanding hereunder at any one time. For the purposes of this
Section, all Eurodollar Loans with the same Interest Periods that begin and end
on the same date shall be considered as one Eurodollar Loan, but Eurodollar
Loans with different Interest Periods, even if they begin on the same date,
shall be considered separate Eurodollar Loans.
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2.7 REDUCTIONS OF REVOLVING COMMITTED AMOUNTS.
Upon at least five Business Days' notice, the Borrowers shall have the
right to permanently terminate or reduce the aggregate unused amount of the
Revolving Committed Amount at any time or from time to time; provided that (a)
each partial reduction shall be in an aggregate amount at least equal to
$10,000,000 and in integral multiples of $1,000,000 above such amount, (b) no
reduction shall be made which would reduce the Revolving Committed Amount to an
amount less than the aggregate amount of the then outstanding Loans plus the
aggregate amount of the then outstanding LOC Obligations. Any reduction in (or
termination of) the Revolving Committed Amount shall be permanent and may not be
reinstated.
2.8 NOTES.
The Loans made by the Lenders shall be evidenced by a duly executed
promissory note of the Borrowers payable to each Lender in substantially the
form of Exhibit 2.8 (the "Notes").
2.9 JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
Subject to Section 2.10:
(a) Each of the Borrowers is accepting joint and several
liability hereunder in consideration of the financial accommodation to
be provided by the Lenders under this Credit Agreement, for the mutual
benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of each of the Borrowers to accept
joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other
Borrower with respect to the payment and performance of all of the
obligations arising under this Credit Agreement and the other Credit
Documents, it being the intention of the parties hereto that all of the
Borrowers Obligations shall be the joint and several obligations of
each of the Borrowers without preferences or distinction between them.
(c) If and to the extent that either of the Borrowers
shall fail to make any payment with respect to any of the obligations
hereunder as and when due or to perform any of such obligations in
accordance with the terms thereof, then in each such event, the other
Borrower will make such payment with respect to, or perform, such
obligation.
(d) The provisions of this Section 2.9 are made for the
benefit of the Lenders and their successors and assigns, and may be
enforced by them from time to time against either of the Borrowers as
often as occasion therefor may arise and without requirement on the
part of the Lenders first to xxxxxxxx any of its claims or to exercise
any of its rights against the other Borrower or to exhaust any remedies
available to it against the other Borrower or to resort to any other
source or means of obtaining payment of any of the Borrowers
Obligations hereunder or to elect any other remedy. The provisions of
this Section 2.9 shall remain in effect until all the Borrowers
Obligations hereunder shall have
21
been paid in full or otherwise fully satisfied. If at any time, any
payment, or any part thereof, made in respect of any of the Borrowers
Obligations, is rescinded or must otherwise be restored or returned by
the Lenders upon the insolvency, bankruptcy or reorganization of any of
the Borrowers, or otherwise, the provisions of this Section 2.9 will
forthwith be reinstated and in effect as though such payment had not
been made.
(e) Notwithstanding any provision to the contrary
contained herein or in any of the other Credit Documents, to the extent
the obligations of either Borrower shall be adjudicated to be invalid
or unenforceable for any reason (including, without limitation, because
of any applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of such Borrower
hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code).
(f) Each Borrower hereby appoints the other Borrower to
act as its agent for all purposes under this Credit Agreement
(including, without limitation, with respect to all matters relating to
the borrowing and repayment of Loans) and agrees that (i) a Borrower
may execute such documents on behalf of the other Borrower as it deems
appropriate and the other Borrower shall be obligated by all of the
terms of any such document executed on its behalf, (ii) any notice or
communication delivered by the Agent or a Lender to a Borrower shall be
deemed delivered to both Borrowers and (iii) the Agent and the Lenders
may accept, and be permitted to rely on, any document, instrument or
agreement executed by one Borrower on behalf of the other Borrower.
2.10 LIMITATION OF LIABILITY OF BORROWERS. Notwithstanding anything
in this Credit Agreement or in the Notes to the contrary, including without
limitation, Section 2.9:
(a) Duke Energy Field Services Corporation shall have no
rights or obligations as a Borrower, and will not be subject to the
terms of the Credit Documents, until (i) consummation of the Merger or
a Corporate Conversion and (ii) notification from the Borrowers to the
Lenders that the Merger or a Corporate Conversion has occurred and
that, going forward, Duke Energy Field Services Corporation will
irrevocably have all of the rights and obligations of a Borrower,
jointly and severally with Duke Energy Field Services, LLC, under the
Credit Documents (including, without limitation, any Loans made prior
to such notification) and will be subject to the terms of the Credit
Documents.
(b) If the Merger occurs, the agreement by Duke Energy
Field Services Corporation to become jointly and severally liable with
Duke Energy Field Services, LLC for the indebtedness under the Credit
Documents pursuant to subsection (a) above shall be accomplished in two
phases: (i) initially, Duke Energy Field Services Corporation shall
become directly liable for 69.7% of such indebtedness and shall become
indirectly liable for 30.3% of such indebtedness through Xxxxxxxx Gas
Company ("PGC"), a Delaware corporation and, subsequent to the first
step of the Merger, a wholly-owned Subsidiary of Duke Energy Field
Services Corporation, in each case jointly and severally with Duke
Energy Field Services, LLC, which shall remain jointly and severally
liable for 100% of such indebtedness; and (ii) immediately thereafter,
upon the merger of PGC with and into
22
Duke Energy Field Services Corporation, Duke Energy Field Services
Corporation shall become directly liable for the 30.3% of such
indebtedness previously attributed to it through its ownership of PGC.
(c) On or after the date that, pursuant to subsection (a)
or subsections (a) and (b) above, Duke Energy Field Services
Corporation has become directly liable for 100% of the indebtedness,
rights and obligations of a Borrower under the Credit Documents, the
Borrowers may, upon written notice to the Lenders, release Duke Energy
Field Services, LLC from its joint and several obligations under the
Credit Documents; provided that if as a result of a Corporate
Conversion Duke Energy Field Services LLC is converted into a "C"
Corporation it shall not be released from its obligations hereunder.
Thereafter, Duke Energy Field Services, LLC will have no rights or
obligations under the Credit Documents, will no longer be subject to
the terms of the Credit Documents (except as the terms thereof may
relate to it if it constitutes a Material Subsidiary) and all
obligations owing pursuant to the Credit Documents shall be the sole
responsibility of Duke Energy Field Services Corporation.
(d) Notwithstanding the use of the term "Borrowers" as
set forth in the Credit Documents: (i) prior to Duke Energy Field
Services Corporation having any rights or obligations as a Borrower and
being subject to the terms of the Credit Agreement, as set forth in
clause (a) above, the terms "Borrowers" or "a Borrower" as used in the
Credit Documents shall only mean a reference to Duke Energy Field
Services, LLC and (ii) on and after the date that Duke Energy Field
Services, LLC is released from liability, in accordance with clause (c)
above, the terms "Borrowers" or "a Borrower" as used in the Credit
Documents shall only mean a reference to Duke Energy Field Services
Corporation.
2.11 INCREASES IN REVOLVING COMMITTED AMOUNT
(a) At any time and from time to time, the Borrowers may,
if they so elect, increase the Revolving Committed Amount (in an
aggregate amount of not less than $5,000,000), either by designating
one or more financial institutions not theretofore Lenders to become
Lenders or by agreeing with one or more of the existing Lenders that
such Lenders' Commitments shall be increased. Upon execution and
delivery by the Borrowers and such Lenders or other financial
institutions of an instrument (a "COMMITMENT ACCEPTANCE") substantially
in the form of Exhibit J hereto, such existing Lenders shall have
additional Commitments as therein set forth or such other financial
institutions shall become Lenders with Commitments as therein set forth
and with all rights and obligations of Lenders with Commitments as
therein set forth; provided that no such increase shall be effective
unless (i) the Agent shall have consented (such consent not to be
unreasonably withheld or delayed) to the designation of any financial
institution not theretofore a Lender (it being understood that no
consent or approval from any other Lender shall be required), (ii) the
aggregate amount of Commitment increases made pursuant to this Section
2.11 shall not exceed $25,000,000, (iii) immediately before and after
giving effect to such increase (x) no Default shall have occurred and
be continuing and (y) the representations and warranties of the
Borrowers set forth in Section 6 shall be true and correct in all
material respects at and as if made as of the effective date of such
increase in commitments (as set forth in the
23
Commitment Acceptance) (the "INCREASE DATE") as applicable (except to
the extent such representations and warranties expressly and
exclusively relate to an earlier date), and (iv) the Borrowers shall
have delivered to the Agent a copy of the Commitment Acceptance and
such other evidence (which may include opinions of counsel) as it may
request to confirm the Borrowers' due authorization of the transactions
contemplated by this Section and the validity and enforceability of the
Borrowers' obligation arising therefrom.
(b) If and to the extent any Loans are outstanding on the
Increase Date, the Borrowers shall (A) at the end of the current
Interest Period, in the case of outstanding Eurodollar Loans and (B)
within one Business Days of the Increase Date, in the case of any other
outstanding Loans, prepay or repay each such Loan then outstanding in
its entirety and, to the extent that the Borrowers elect to do so and
subject to the conditions specified in Section 5.2, the Borrowers shall
re-borrow Loans from the applicable Lenders in proportion to their
respective Commitments after giving effect to such increase, until such
time as all outstanding Loans are held by the Lenders in such
proportion.
(c) If and to the extent any LOC Obligations are
outstanding on the Increase Date, each Lender whose Commitment has not
been assumed or increased pursuant to Section 2.11(a) (the
"NON-INCREASING LENDER") shall be deemed, without further action by any
party hereto, to have sold to each Lender whose Commitment has been
assumed or increased pursuant to clause Section 2.11(a) of this Section
(an "INCREASED COMMITMENT LENDER") and each Increased Commitment Lender
shall be deemed, without further action by any party hereto, to have
purchased from each Non-Increasing Lender, a participation (on terms
specified in Section 2.2) in each Letter of Credit in an amount such
that after giving effect to all such purchases and sales all
outstanding LOC Obligations are held by the Lenders in proportion to
their respective Commitments after giving effect to such assumptions
and increases.
SECTION 3.
PAYMENTS
3.1 INTEREST.
(a) Interest Rate.
(i) All Base Rate Loans shall accrue interest at
the Base Rate.
(ii) All Eurodollar Loans shall accrue interest
at the Adjusted Eurodollar Rate applicable to such Eurodollar
Loan.
(b) Default Rate of Interest. Upon the occurrence, and
during the continuation, of an Event of Default, all past due principal
of and, to the extent permitted by law, past due interest on, the Loans
and any other past due amounts owing hereunder or under the other
Credit Documents shall bear interest, payable on demand, at a per annum
rate equal to one percent (1%) plus the rate which would otherwise be
applicable (or if no rate is applicable, then the rate for Loans that
are Base Rate Loans plus one percent (1%) per annum).
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(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date.
3.2 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrowers shall have the
right to prepay Loans in whole or in part from time to time without
premium or penalty; provided, however, that (i) Eurodollar Loans may
only be prepaid on three Business Days' prior written notice to the
Agent and any prepayment of Eurodollar Loans will be subject to Section
4.3; and (ii) each such partial prepayment of Loans shall be in the
minimum principal amount of $10,000,000. Any payments made under this
Section 3.2(a) shall be applied as the Borrowers may elect; provided
that if the Borrowers fail to specify how a voluntary prepayment should
be applied then such prepayment shall be applied first to Base Rate
Loans and then to Eurodollar Loans in direct order of Interest Period
maturities.
(b) Mandatory Prepayments. If at any time (A) the amount
of Loans outstanding plus the aggregate amount of LOC Obligations
outstanding exceeds the Revolving Committed Amount or (B) the aggregate
amount of LOC Obligations outstanding exceeds the LOC Committed Amount,
the Borrowers shall immediately make a principal payment to the Agent
in a manner and in an amount necessary to be in compliance with
Sections 2.1 and 2.2, as applicable, and as directed by the Agent. All
amounts required to be paid pursuant to this Section 3.2(b) shall be
(i) applied first to Loans and then to a cash collateral account in
respect of LOC Obligations, (ii) subject to Section 4.3 and (iii)
applied first to Base Rate Loans and then to Eurodollar Loans in the
direct order of Interest Period maturities.
3.3 PAYMENT IN FULL AT MATURITY.
(a) Subject to Section 3.3(b) below, on the Maturity
Date, the entire outstanding principal balance of all Loans and all LOC
Obligations, together with accrued but unpaid interest and all other
sums owing under this Credit Agreement, shall be due and payable in
full, unless accelerated sooner pursuant to Section 9.2.
(b) On or before three Business Days prior to the
Maturity Date, the Borrowers may, as long as no Default or Event of
Default exists and is continuing, notify the Agent in writing (and the
Agent shall promptly forward such notice to the Lenders) that, as of
the Maturity Date, they are converting the outstanding Loans to a term
loan which shall be due and payable in full on the date one year
subsequent to the Maturity Date (the "Term Out Maturity Date"). It is
understood and agreed that subsequent to the Maturity Date, (i) the
Borrowers may no longer request, and the Lenders are no longer
obligated to make or issue, new Loans or Letters of Credit, (ii) any
amounts repaid may not be reborrowed, (iii) interest shall accrue on
the outstanding Loans, at the option of the Borrowers, in accordance
with the terms of Section 2.5 and, as set forth in the definition of
Applicable Margin, the Applicable Margin for Eurodollar Loans
subsequent to the Maturity Date shall apply and (iv) the Borrowers
shall have the right to prepay all or a portion of the outstanding
Loans in accordance with Section 3.2(a).
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3.4 FEES.
(a) Commitment Fees. In consideration of the Revolving
Committed Amount being made available by the Lenders, the Borrowers
agree to pay to the Agent, for the pro rata benefit of each Lender, a
fee equal to the Applicable Margin for Commitment Fees on the Unused
Commitment (the "Commitment Fees"). The accrued Commitment Fees shall
be due and payable in arrears on the first Business Day after the end
of each fiscal quarter of the Borrowers (as well as on the Maturity
Date) for the immediately preceding fiscal quarter (or portion
thereof), beginning with the first of such dates to occur after the
Closing Date.
(b) Letter of Credit Fees.
(i) Letter of Credit Fees. In consideration of
the issuance of Letters of Credit hereunder, the Borrowers
agree to pay to the Issuing Lender, for the pro rata benefit
of each Lender, a per annum fee equal to the Applicable Margin
for Eurodollar Loans on or before the Maturity Date on the
aggregate stated amount for each Letter of Credit from the
date of issuance to the date of expiration (the "Letter of
Credit Fees"). The accrued Letter of Credit Fees shall be due
and payable in arrears on the first Business Day after the end
of each fiscal quarter of the Borrowers (as well as on the
Maturity Date) for the immediately preceding fiscal quarter
(or portion thereof), beginning with the first of such dates
to occur after the Closing Date.
(ii) Issuing Lender Fees. In addition to the
Letter of Credit Fees payable pursuant to subsection (i)
above, the Borrowers shall pay to the Issuing Lender for its
own account, without sharing by the other Lenders, (A) a fee
equal to one-eighth of one percent (.125%) per annum on the
total sum of all Letters of Credit issued by the Issuing
Lender, such fee to be paid on the date of issuance of any
Letter of Credit and (B) the customary charges from time to
time to the Issuing Lender for its services in connection with
the issuance, amendment, payment, transfer, administration,
cancellation and conversion of, and drawings under, such
Letters of Credit (collectively, the "Issuing Lender Fees").
3.5 PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts
to be made by a Borrower under this Credit Agreement shall be made without
setoff, deduction or counterclaim and received not later than 2:00 p.m. on the
date when due in Dollars and in immediately available funds by the Agent at the
Agency Services Address. A Borrower shall, at the time it makes any payment
under this Credit Agreement, specify to the Agent the Loans, Letters of Credit,
fees or other amounts payable by a Borrower hereunder to which such payment is
to be applied (and in the event that it fails to specify, or if such application
would be inconsistent with the terms hereof, the Agent shall distribute such
payment to the Lenders in such manner as it reasonably determines in its sole
discretion). The Agent will distribute such payments to the applicable Lenders
on the same Business Day if any such payment is received prior to 2:00 p.m.;
otherwise the Agent will distribute each payment to the applicable Lenders prior
to 12:00 noon on the next succeeding Business Day.
26
Whenever any payment hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day (subject to accrual of interest and fees for the period of such
extension), except that in the case of Eurodollar Loans, if the extension would
cause the payment to be made in the next following calendar month, then such
payment shall be made on the next preceding Business Day.
3.6 PRO RATA TREATMENT.
(a) Loans/Fees. Except to the extent otherwise provided
herein, all Loans, each payment or prepayment of principal of any Loan,
each payment of interest on the Loans, each payment of Commitment Fees,
each payment of Letter of Credit Fees, each reduction of the Revolving
Committed Amount and each conversion or continuation of any Loans,
shall be allocated pro rata among the applicable Lenders in accordance
with their respective Commitment Percentages; provided that, if any
Lender shall have failed to pay its applicable pro rata share of any
Loan, then any amount to which such Lender would otherwise be entitled
pursuant to this Section 3.6 shall instead be payable to the Agent
until the share of such Loan not funded by such Lender has been repaid
and any interest owed by such Lender as result of such failure to fund
has been paid; and provided further, that in the event any amount paid
to any Lender pursuant to this Section 3.6 is rescinded or must
otherwise be returned by the Agent, each Lender shall, upon the written
request of the Agent, repay to the Agent the amount so paid to such
Lender, with interest for the period commencing on the date such
payment is returned by the Agent until the date the Agent receives such
repayment at a rate per annum equal to, during the period to but
excluding the date two Business Days after such request, the Federal
Funds Rate, and thereafter, the Base Rate plus one percent (1%) per
annum.
(b) Letters of Credit. Each payment of unreimbursed
drawings in respect of LOC Obligations shall be allocated to each
Lender pro rata in accordance with its Commitment Percentage; provided
that, if any Lender shall have failed to pay its applicable pro rata
share of any drawing under any Letter of Credit, then any amount to
which such Lender would otherwise be entitled pursuant to this
subsection (b) shall instead be payable to the Issuing Lender; provided
further, that in the event any amount paid to any Lender pursuant to
this subsection (b) is rescinded or must otherwise be returned by the
Issuing Lender, each Lender shall, upon the written request of the
Issuing Lender, repay to the Agent for the account of the Issuing
Lender the amount so paid to such Lender, with interest for the period
commencing on the date such payment is returned by the Issuing Lender
until the date the Issuing Lender receives such repayment at a rate per
annum equal to, during the period to but excluding the date two
Business Days after such request, the Federal Funds Rate, and
thereafter, the Base Rate plus one percent (1%) per annum.
3.7 COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans that are based upon the
Prime Rate, on which interest shall be computed on the basis of a 365
or 366 day year as the case may be, all computations of interest and
fees hereunder shall be made on the basis of the actual number of days
elapsed over a year of 360 days.
27
(b) It is the intent of the Lenders and the Borrowers to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Borrowers are hereby limited by the provisions of this paragraph which
shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any
event or contingency (including but not limited to prepayment or
acceleration of the maturity of any obligation), shall the interest
taken, reserved, contracted for, charged, or received under this Credit
Agreement, under the Notes or otherwise, exceed the maximum nonusurious
amount permissible under applicable law. If, from any possible
construction of any of the Credit Documents or any other document,
interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to the
provisions of this paragraph and interest owing pursuant to such
documents shall be automatically reduced to the maximum nonusurious
amount permitted under applicable law, without the necessity of
execution of any amendment or new document. If any Lender shall ever
receive anything of value which is characterized as interest on the
Loans under applicable law and which would, apart from this provision,
be in excess of the maximum lawful amount, an amount equal to the
amount which would have been excessive interest shall, without penalty,
be applied to the reduction of the principal amount owing on the Loans
and not to the payment of interest, or refunded to the Borrowers or the
other payor thereof if and to the extent such amount which would have
been excessive exceeds such unpaid principal amount of the Loans. The
right to demand payment of the Loans or any other indebtedness
evidenced by any of the Credit Documents does not include the right to
receive any interest which has not otherwise accrued on the date of
such demand, and the Lenders do not intend to charge or receive any
unearned interest in the event of such demand. All interest paid or
agreed to be paid to the Lenders with respect to the Loans shall, to
the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term (including any
renewal or extension) of the Loans so that the amount of interest on
account of such indebtedness does not exceed the maximum nonusurious
amount permitted by applicable law.
3.8 SHARING OF PAYMENTS.
Each Lender agrees that, in the event that any Lender shall obtain
payment in respect of any Loan, any unreimbursed drawing with respect to any LOC
Obligations or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of set-off, banker's lien,
counterclaim or otherwise (including, but not limited to, pursuant to the
Bankruptcy Code) in excess of its pro rata share as provided for in this Credit
Agreement, such Lender shall promptly purchase from the other Lenders a
participation in such Loans, LOC Obligations and other obligations, in such
amounts and with such other adjustments from time to time, as shall be equitable
in order that all Lenders share such payment in accordance with their respective
ratable shares as provided for in this Credit Agreement. Each Lender further
agrees that if a payment to a Lender (which is obtained by such Lender through
the exercise of a right of set-off, banker's lien, counterclaim or otherwise)
shall be rescinded or must otherwise be restored, each Lender which shall have
shared the benefit of such payment shall, by repurchase of a participation
theretofore sold, return its share of that benefit to each Lender whose payment
shall have been rescinded or otherwise restored. The Borrowers agree that any
Lender so purchasing such a participation may, to
28
the fullest extent permitted by law, exercise all rights of payment, including
set-off, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Loan or other obligation in the
amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender shall fail to remit to the Agent or any other
Lender an amount payable by such Lender to the Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall accrue interest thereon, for each day from the date such amount
is due until the day such amount is paid to the Agent or such other Lender, at a
rate per annum equal to the Federal Funds Rate. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section 3.8 applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders under this Section 3.8 to share
in the benefits of any recovery on such secured claim.
3.9 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrowers from time to
time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Credit Agreement. Each
Lender will make reasonable efforts to maintain the accuracy of its
account or accounts and to promptly update its account or accounts from
time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to
Section 11.3(c), and a subaccount for each Lender, in which Register
and subaccounts (taken together) shall be recorded (i) the amount, type
and Interest Period of each such Loan hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable to
each Lender hereunder and (iii) the amount of any sum received by the
Agent hereunder from or for the account of the Borrowers and each
Lender's share thereof. The Agent will make reasonable efforts to
maintain the accuracy of the subaccounts referred to in the preceding
sentence and to promptly update such subaccounts from time to time, as
necessary.
(c) The entries made in the Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.9, and the
entries made in the accounts maintained pursuant to subsection (a) of
this Section 3.9, if consistent with the entries of the Agent, shall be
prima facie evidence of the existence and amounts of the obligations of
the Borrowers therein recorded; provided, however, that the failure of
any Lender or the Agent to maintain any such account, such Register or
such subaccount, as applicable, or any error therein, shall not in any
manner affect the obligation of the Borrowers to repay the Loans made
by such Lender in accordance with the terms hereof.
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SECTION 4.
ADDITIONAL PROVISIONS REGARDING LOANS
4.1 EURODOLLAR LOAN PROVISIONS.
(a) Unavailability. If, on or prior to the first day of
any Interest Period, (i) the Agent shall have determined in good faith
(which determination shall be conclusive and binding upon the
Borrowers) that (A) Dollar deposits are not generally available in the
London interbank Eurodollar market in the applicable principal amounts
and Interest Period of a requested Eurodollar Loan or (B) by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or (ii) the Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to the Lenders of making or maintaining Eurodollar
Loans for such Interest Period (as conclusively certified by such
Lenders), the Agent shall give notice thereof to the Borrowers and the
Lenders as soon as practicable thereafter. Upon delivery of such
notice, (A) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as Base Rate Loans, (B) any Loans
that were to have been converted to or continued as Eurodollar Loans
shall be prepaid by the Borrowers or converted to or continued as Base
Rate Loans and (C) any outstanding Eurodollar Loans shall be converted,
on the first day of such Interest Period, to Base Rate Loans. Until the
Agent has withdrawn such notice, no further Eurodollar Loans shall be
made or continued as such, nor shall the Borrowers have the right to
convert Base Rate Loans to Eurodollar Loans.
(b) Change in Legality. Notwithstanding any other
provision herein, if any change, after the date hereof, in any law,
governmental rule, regulation, guideline or order (including the
introduction of any new law or governmental rule, regulation, guideline
or order) or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof shall make it unlawful for any Lender to make or
maintain any Eurodollar Loan then, by written notice to the Borrowers
and to the Agent, such Lender may:
(i) declare that Eurodollar Loans and
conversions to or continuations of Eurodollar Loans, will not
thereafter be made by such Lender hereunder, whereupon any
request by the Borrowers for, or for conversion into or
continuation of, Eurodollar Loans shall, as to such Lender
only, be deemed a request for, or for conversion into or
continuation of, Base Rate Loans, unless such declaration
shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar
Loans made by it be converted to Base Rate Loans in which
event all such Eurodollar Loans shall be converted to Base
Rate Loans either (A) on the last day of the then current
Interest Period applicable to such Eurodollar Loan if such
Lender can lawfully continue to maintain and fund such
Eurodollar Loan or (B) immediately if such Lender shall
determine
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that it may not lawfully continue to maintain and fund such
Eurodollar Loan to such day.
(c) Requirements of Law. If at any time a Lender shall
incur increased costs or reductions in the amounts received or
receivable hereunder with respect to the making, the commitment to make
or the maintaining of any Eurodollar Loan because of (i) any change
after the date hereof in any law, governmental rule, regulation,
guideline or order (including the introduction of any new law or
governmental rule, regulation, guideline or order) or in the
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof, including,
without limitation, the imposition, modification or deemed
applicability of any reserves, deposits or similar requirements (such
as, for example, but not limited to, a change in official reserve
requirements) or (ii) other circumstances affecting the London
interbank Eurodollar market; then the Borrowers shall pay to such
Lender promptly upon written demand therefor, such additional amounts
(in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender may determine in its
sole discretion) as may be required to compensate such Lender for such
increased costs or reductions in amounts receivable hereunder. If any
Lender becomes entitled to claim any additional amounts pursuant to
this Section 4.1(c), it shall provide prompt notice thereof to the
Borrowers, through the Agent, certifying (A) that one of the events
described in this Section 4.1(c) has occurred and describing in
reasonable detail the nature of such event, (B) as to the increased
cost or reduced amount resulting from such event and (C) as to the
additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof provided that no such amount
shall be payable with respect to any period commencing more than 90
days prior to the date such Lender first notifies the Borrowers of its
intention to demand compensation therefor under this Section.
(d) Regulation D Compensation. In the event that a Lender
is required to maintain reserves of the type contemplated by the
definition of "Eurodollar Reserve Percentage", such Lender may require
the Borrowers to pay, contemporaneously with each payment of interest
on the Eurodollar Loans, additional interest on the related Eurodollar
Loan of such Lender at a rate per annum determined by such Lender up to
but not exceeding the excess of (i)(A) the applicable London Interbank
Offered Rate divided by (B) one minus the Eurodollar Reserve Percentage
over (ii) the applicable London Interbank Offered Rate. Any Lender
wishing to require payment of such additional interest (x) shall so
notify the Borrowers and the Agent, in which case such additional
interest on the Eurodollar Loans of such Lender shall be payable to
such Lender at the place indicated in such notice with respect to each
Interest Period commencing at least three Business Days after the
giving of such notice and (y) shall notify the Borrowers at least three
Business Days prior to each date on which interest is payable on the
Eurodollar Loans of the amount then due it under this Section. Each
such notification shall be accompanied by such information as the
Borrowers may reasonably request.
Each determination and calculation made by a Lender under this Section
4.1 shall, absent manifest error, be binding and conclusive on the parties
hereto. Any conversions of Eurodollar Loans made pursuant to this Section 4.1
shall subject the Borrowers to the payments required by
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Section 4.3 to the extent applicable. This Section shall survive termination of
this Credit Agreement and the other Credit Documents and payment of the Loans
and all other amounts payable hereunder.
4.2 CAPITAL ADEQUACY.
If any Lender has determined that the adoption or becoming effective,
after the date hereof, of any applicable law, rule or regulation regarding
capital adequacy, or any change therein (after the date hereof), or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its parent corporation)
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such Governmental Authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's (or parent corporation's) capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Lender (or
its parent corporation) could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's (or
parent corporation's) policies with respect to capital adequacy), then, upon
notice from such Lender (which shall include the basis and calculations in
reasonable detail supporting the compensation requested in such notice), and
receipt by the Borrowers of such written notice from such Lender (with a copy to
the Agent) the Borrowers shall be obligated to pay to such Lender such
additional amount or amounts as will compensate such Lender on an after tax
basis (after taking into account applicable deductions and credits in respect of
the amount so indemnified) for such reduction provided that no such amount shall
be payable with respect to any period commencing more than 90 days prior to the
date such Lender first notifies the Borrowers of its intention to demand
compensation therefor under this Section. Each determination by any Lender of
amounts owing under this Section 4.2 shall, absent manifest error, be conclusive
and binding on the parties hereto. The covenants of this Section 4.2 shall
survive termination of this Credit Agreement and the other Credit Documents and
the payment of the Loans and all other amounts payable hereunder.
4.3 COMPENSATION.
The Borrowers promise to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (a) default by the Borrowers in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrowers have given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrowers in making any prepayment of a Eurodollar Loan after
the Borrowers have given a notice thereof in accordance with the provisions of
this Credit Agreement, (c) the making of a prepayment of Eurodollar Loans on a
day which is not the last day of an Interest Period with respect thereto and (d)
the payment, continuation or conversion of a Eurodollar Loan on a day which is
not the last day of the Interest Period applicable thereto or the failure to
repay a Eurodollar Loan when required by the terms of this Credit Agreement.
Such indemnification may include an amount equal to (i) an amount of interest
calculated at the Eurodollar Rate which would have accrued on the amount in
question, for the period from the date of such prepayment or of such failure to
borrow, convert, continue or repay to the last day of the applicable Interest
Period (or, in the case of a failure to borrow, convert or continue, the
Interest Period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Eurodollar Loans
32
provided for herein minus (ii) the amount of interest (as reasonably determined
by such Lender) which would have accrued to such Lender on such amount by
placing such amount on deposit for a comparable period with leading banks in the
interbank Eurocurrency market. If any Lender becomes entitled to claim any
additional amounts pursuant to this Section 4.3, it shall provide prompt notice
thereof to the Borrower, through the Agent, as to the additional amount demanded
by such Lender and a reasonably detailed explanation of the calculation thereof.
The covenants in this Section 4.3 shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts payable hereunder.
4.4 TAXES.
(a) Except as provided below in this Section 4.4, all payments
made by the Borrowers under this Credit Agreement and any Notes shall
be made free and clear of, and without deduction or withholding for or
on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
court, or governmental body, agency or other official, excluding taxes
measured by or imposed upon the net income of any Lender or its
applicable lending office, or any branch or affiliate thereof, and all
franchise taxes, branch taxes, taxes on doing business or taxes on the
capital or net worth of any Lender or its applicable lending office, or
any branch or affiliate thereof, in each case imposed in lieu of net
income taxes: (i) by the jurisdiction under the laws of which such
Lender, applicable lending office, branch or affiliate is organized or
is located, or in which its principal executive office is located, or
any nation within which such jurisdiction is located or any political
subdivision thereof; or (ii) by reason of any connection between the
jurisdiction imposing such tax and such Lender, applicable lending
office, branch or affiliate other than a connection arising solely from
such Lender having executed, delivered or performed its obligations, or
received payment under or enforced, this Credit Agreement or any Notes.
If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to an Agent or any Lender hereunder
or under any Notes, (A) the amounts so payable to the Agent or such
Lender shall be increased to the extent necessary to yield to the Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Credit Agreement and any Notes, provided, however,
that the Borrowers shall be entitled to deduct and withhold any Non-
Excluded Taxes and shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the
United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this Section 4.4
whenever any Non-Excluded Taxes are payable by the Borrowers, and (B)
as promptly as possible after requested, the Borrowers shall send to
the Agent for its own account or for the account of such Lender, as the
case may be, a certified copy of an original official receipt received
by the Borrowers showing payment thereof. If the Borrowers fail to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Agent the required receipts or other required
documentary evidence, the Borrowers shall indemnify the Agent and any
Lender for any incremental Non-Excluded Taxes, interest or penalties
that may become payable by the Agent or any Lender as a result
33
of any such failure. The agreements in this Section 4.4 shall survive
the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof shall:
(i) (A) on or before the date of any
payment by the Borrowers under this Credit
Agreement or the Notes to such Lender,
deliver to the Borrowers and the Agent (x)
two duly completed copies of United States
Internal Revenue Service Form W-8BEN or
W-8ECI, or any successor applicable form, as
the case may be, certifying that it is
entitled to receive payments under this
Credit Agreement and any Notes without
deduction or withholding of any United
States federal income taxes and (y) an
Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may
be, certifying that it is entitled to an
exemption from United States backup
withholding tax;
(B) deliver to the Borrowers and the
Agent two further copies of any such form or
certification on or before the date that any
such form or certification expires or
becomes obsolete and after the occurrence of
any event requiring a change in the most
recent form previously delivered by it to
the Borrower; and
(C) obtain such extensions of time for
filing and complete such forms or
certifications as may reasonably be
requested by the Borrowers or the Agent; or
(ii) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (A) represent to the Borrowers (for the
benefit of the Borrowers and the Agent) that it is not a bank
within the meaning of Section 881 (c)(3)(A) of the Internal
Revenue Code, (B) agree to furnish to the Borrowers, on or
before the date of any payment by the Borrowers, with a copy
to the Agent, two accurate and complete original signed copies
of Internal Revenue Service Form W-8, or successor applicable
form, certifying to such Lender's legal entitlement at the
date of such certificate to an exemption from U.S. withholding
tax under the provisions of Section 881(c) of the Internal
Revenue Code with respect to payments to be made under this
Credit Agreement and any Notes (and to deliver to the
Borrowers and the Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrowers or
the Agent for filing and completing such forms), and (C)
agree, to the extent legally entitled to do so, upon
reasonable request by the Borrowers, to provide to the
Borrowers (for the benefit of the Borrowers and the Agent)
such other forms as may be reasonably required in order to
establish
34
the legal entitlement of such Lender to an exemption from
withholding with respect to payments under this Credit
Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or regulation
has occurred after the date such Person becomes a Lender hereunder which renders
all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and such Lender so
advises the Borrowers and the Agent, then such Lender shall be exempt from such
requirements. Each Person that shall become a Lender or a participant of a
Lender pursuant to Section 11.3 shall, upon the effectiveness of the related
transfer, be required to provide all of the forms, certifications and statements
required pursuant to this subsection (b); provided that in the case of a
participant of a Lender, the obligations of such participant of a Lender
pursuant to this subsection (b) shall be determined as if the participant of a
Lender were a Lender except that such participant of a Lender shall furnish all
such required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
4.5 REPLACEMENT OF LENDERS.
The Agent and each Lender shall use reasonable efforts to avoid or
mitigate any increased cost or suspension of the availability of an interest
rate under Sections 4.1 through 4.4 above to the greatest extent practicable
(including transferring the Loans to another lending office or Affiliate of a
Lender) unless, in the opinion of the Agent or such Lender, such efforts would
be likely to have an adverse effect upon it. In the event a Lender makes a
request to the Borrowers for additional payments in accordance with Section 4.1,
4.2 or 4.4, or suspends Eurodollar Loans under Section 4.1, then, provided that
no Default or Event of Default has occurred and is continuing at such time, the
Borrowers may, at their own expense (such expense to include any transfer fee
payable to the Agent under Section 11.3(b) and any expense pursuant to Section
4) and in its sole discretion, require such Lender to transfer and assign in
whole (but not in part), without recourse (in accordance with and subject to the
terms and conditions of Section 11.3(b)), all of its interests, rights and
obligations under this Credit Agreement to an Eligible Assignee which shall
assume such assigned obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (a) such assignment shall not
conflict with any law, rule or regulation or order of any court or other
Governmental Authority and (b) the Borrowers or such assignee shall have paid to
the assigning Lender in immediately available funds the principal of and
interest accrued to the date of such payment on the portion of the Loans
hereunder held by such assigning Lender and all other amounts owed to such
assigning Lender hereunder, including amounts owed pursuant to Sections 4.1
through 4.4.
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SECTION 5.
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement is
subject to satisfaction (or waiver) of the following conditions:
(a) Executed Credit Documents. Receipt by the Agent of
duly executed copies of (i) this Credit Agreement, (ii) the Notes and
(iii) all other Credit Documents, each in form and substance acceptable
to the Lenders.
(b) Organizational Documents.
(i) Receipt by the Agent of the following with
respect to Duke Energy Field Services, LLC:
(A) Certificate of Formation. A copy of
the certificate of formation of such Borrower
certified to be true and complete by the appropriate
Governmental Authority of the State of Delaware and
certified by an authorized officer of such Borrower
to be true and correct as of the Effective Date.
(B) LLC Agreement. A copy of the LLC
Agreement of such Borrower certified by an authorized
officer of such Borrower to be true and correct as of
the Effective Date.
(C) Resolutions. Copies of resolutions
of the members of such Borrower approving and
adopting the Credit Documents to which such Borrower
is a party, the transactions contemplated therein and
authorizing execution and delivery thereof and
certified by an authorized officer of such Borrower
to be in full force and effect as of the Effective
Date.
(D) Good Standing. Copies of
certificates of good standing, existence or their
equivalent with respect to such Borrower certified as
of a recent date by the appropriate Governmental
Authorities of the State of Delaware.
(E) Incumbency. An incumbency
certificate certified by an authorized officer to be
true and correct as of the Effective Date.
(ii) Receipt by the Agent of the following with
respect to Duke Energy Field Services Corporation:
(A) Charter Documents. Copies of the
articles or certificates of incorporation or other
charter documents of such Borrower certified to be
36
true and complete as of a recent date by the
appropriate Governmental Authority of the State of
Delaware and certified by a secretary or assistant
secretary of such Borrower to be true and correct as
of the Effective Date.
(B) Bylaws. A copy of the bylaws or
other governing documents of such Borrower certified
by a secretary or assistant secretary of such
Borrower to be true and correct as of the Effective
Date.
(C) Resolutions. Copies of resolutions
of the Board of Directors of such Borrower approving
and adopting the Credit Documents to which it is a
party, the transactions contemplated therein and
authorizing execution and delivery thereof, certified
by a secretary or assistant secretary of such
Borrower to be true and correct and in force and
effect as of the Effective Date.
(D) Good Standing. Copies of
certificates of good standing, existence or its
equivalent with respect to such Borrower certified as
of a recent date by the appropriate Governmental
Authorities of the State of Delaware.
(E) Incumbency. An incumbency
certificate of such Borrower certified by a secretary
or assistant secretary to be true and correct as of
the Effective Date.
(c) Opinion of Counsel. Receipt by the Agent of an
opinion from legal counsel to the Borrowers, addressed to the Agent on
behalf of the Lenders and dated as of the Effective Date, in form and
substance satisfactory to the Agent.
(d) Financial Statements. Receipt by the Lenders of such
financial information regarding the Borrowers as the Lenders may
reasonably request, including receipt, not later than five Business
Days prior to the Closing Date, of the audited consolidated balance
sheet of Duke Energy Field Services, LLC and its subsidiaries for the
fiscal year ended December 31, 2002 and the related statements of cash
flows, capitalization and retained earnings for such fiscal year.
(e) Fees and Expenses. Payment by the Borrowers of all
fees and expenses owed by it to the Lenders and the Agent, including,
without limitation, payment to the Agent of the fees set forth in the
Fee Letter.
(f) Litigation. As of the Closing Date, there shall be no
material actions, suits, investigations or legal, equitable,
arbitration or administrative proceedings pending or threatened against
a Borrower which are likely to be decided adversely to such Borrower
and if so decided would have a Material Adverse Effect.
(g) Material Adverse Effect. As of the Closing Date, no
event or condition shall have occurred since December 31, 2002 that
would have or would be reasonably expected to have a Material Adverse
Effect.
37
(h) Borrowers' Certificate. The Agent shall have received
a certificate or certificates executed by an Approved Officer of the
Borrowers, on behalf of the Borrowers, as of the Closing Date stating
that (i) the Borrowers are in compliance with all existing financial
obligations, unless such non-compliance would not have a Material
Adverse Effect, (ii) no action, suit, investigation or proceeding is
pending or, to such officer's knowledge, threatened in any court or
before any arbitrator or governmental instrumentality that purports to
affect a Borrower or any transaction contemplated by the Credit
Documents, if such action, suit, investigation or proceeding is likely
to be adversely determined and if adversely determined would have a
Material Adverse Effect, (iii) the financial statements and information
delivered to the Agent on or before the Closing Date were prepared in
good faith and in accordance with GAAP, (iv) the amount of Off Balance
Sheet Indebtedness of the Borrowers as of December 31, 2002, as set
forth on a schedule attached thereto, is true and correct and (v)
immediately after giving effect to this Credit Agreement, the other
Credit Documents and all the transactions contemplated herein and
therein to occur on such date, (A) no Default or Event of Default
exists and (B) all representations and warranties contained herein and
in the other Credit Documents are true and correct in all material
respects on and as of the date made.
(i) Existing Credit Facility. All loans and obligations
under the Existing Credit Facility shall have been paid in full and all
commitments thereunder shall have terminated.
(j) Other Facilities. Receipt by the Administrative Agent
of evidence satisfactory to it of receipt of commitments totaling at
least $100,000,000 from lenders under additional facilities having
terms no more favorable to such lenders than the terms of this
Agreement are to the Lenders, except as to (x) the all-in-costs of such
additional facilities, which shall be substantially comparable to those
under this Agreement and (y) maturity.
(k) Other. Receipt by the Lenders of such other
documents, instruments, agreements or information as reasonably
requested by any Lender.
(l) Minimum Commitments. The aggregate amount of
Commitments of all Lenders on the Closing Date shall be not less than
$325,000,000.
5.2 CONDITIONS TO LOANS.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make new Loans nor shall the Issuing Lender be
required to issue or extend a Letter of Credit (and the Lenders shall not be
obligated to participate in any Letter of Credit) unless:
(a) Request. The Borrowers shall have timely delivered
(i) in the case of any new Loan, to the Agent, an appropriate Notice of
Borrowing, duly executed and completed, by the time specified in
Section 2.1 and (ii) in the case of any Letter of Credit, to the
Issuing Lender, an appropriate request for issuance of a Letter of
Credit in accordance with the provisions of Section 2.2.
38
(b) Representations and Warranties. The representations
and warranties made by the Borrowers in this Credit Agreement are true
and correct in all material respects at and as if made as of the date
of the funding of the Loans or the issuance of the Letters of Credit,
as applicable (except to the extent such representations and warranties
expressly and exclusively relate to an earlier date).
(c) No Default. No Default or Event of Default shall
exist or be continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the
making of a Loan (and the application of the proceeds thereof) or to
the issuance of a Letter of Credit, as the case may be, (i) the sum of
the Loans outstanding plus LOC Obligations outstanding shall not exceed
the Revolving Committed Amount and (ii) the sum of LOC Obligations
outstanding shall not exceed the LOC Committed Amount.
The delivery of each Notice of Borrowing and each request for a Letter
of Credit shall constitute a representation and warranty by the Borrowers of the
correctness of the matters specified in subsections (b), (c) and (d) above.
SECTION 6.
REPRESENTATIONS AND WARRANTIES
The Borrowers hereby represents and warrants to each Lender that:
6.1 ORGANIZATION AND GOOD STANDING.
Each Borrower (a) is a limited liability company or a corporation duly
formed, validly existing and in good standing under the laws of the State of
Delaware, (b) is duly qualified and in good standing as a foreign limited
liability company or corporation authorized to do business in every jurisdiction
where the failure to so qualify would have a Material Adverse Effect and (c) has
the requisite power and authority to own its properties and to carry on its
business as now conducted and as proposed to be conducted.
6.2 DUE AUTHORIZATION.
Each Borrower (a) has the requisite power and authority to execute,
deliver and perform this Credit Agreement and the other Credit Documents and to
incur the obligations herein and therein provided for and (b) has been
authorized by all necessary corporate, partnership or limited liability company
action to execute, deliver and perform this Credit Agreement and the other
Credit Documents.
6.3 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated herein and therein, nor
performance of and compliance with the terms
39
and provisions hereof and thereof by each Borrower will (a) violate or conflict
with any provision of its organizational documents or bylaws, (b) materially
violate, contravene or conflict with any law (including without limitation, the
Public Utility Holding Company Act of 1935, as amended), regulation (including
without limitation, Regulation U or Regulation X), order, writ, judgment,
injunction, decree or permit applicable to it, (c) materially violate,
contravene or conflict with contractual provisions of, or cause an event of
default under, any indenture, loan agreement, mortgage, deed of trust, contract
or other agreement or instrument to which it is a party or by which it may be
bound or (d) result in or require the creation of any Lien upon or with respect
to its properties.
6.4 CONSENTS.
No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or third
party is required in connection with the execution, delivery or performance of
this Credit Agreement or any of the other Credit Documents that has not been
obtained.
6.5 ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
the Borrowers enforceable against the Borrowers in accordance with their
respective terms, except as may be limited by bankruptcy or insolvency laws or
similar laws affecting creditors' rights generally or by general equitable
principles.
6.6 FINANCIAL CONDITION.
The financial statements delivered to the Lenders pursuant to Section
5.1(d) and pursuant to Section 7.1(a) and (b): (i) have been prepared in
accordance with GAAP (subject to the provisions of Section 1.3) and (ii) present
fairly the financial condition, results of operations and cash flows of the
Borrowers as of such date and for such periods (subject, in the case of interim
statements, to normal year-end adjustments and the absence of footnotes).
6.7 TAXES.
Each Borrower and each of its Material Subsidiaries has filed, or
caused to be filed, all material tax returns (federal, state, local and foreign)
required to be filed and paid all amounts of taxes shown thereon to be due
(including interest and penalties) and has paid all other taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except (a) for such
taxes which are not yet delinquent or that are being contested in good faith and
by proper proceedings, and against which adequate reserves are being maintained
in accordance with GAAP or (b) where such nonfiling or nonpayment would not have
a Material Adverse Effect.
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6.8 COMPLIANCE WITH LAW.
Each Borrower and each of its Material Subsidiaries is in compliance
with all laws, rules, regulations, orders, decrees and requirements of
Governmental Authorities applicable to it or to its properties (including,
without limitation, ERISA, the Code and Environmental Laws), except (a) where
the necessity of compliance therewith is being contested in good faith by
appropriate proceedings or (b) such failure to comply would not have or would
not be reasonably expected to have a Material Adverse Effect.
6.9 USE OF PROCEEDS; MARGIN STOCK.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 7.7. None of such proceeds will be used for the
purpose of (a) purchasing or carrying any "margin stock" as defined in
Regulation U or Regulation X, (b) for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry "margin stock",
(c) for any other purpose which might constitute this transaction a "purpose
credit" within the meaning of Regulation U or Regulation X or (d) for the
acquisition of another Person unless the board of directors (or other comparable
governing body) or stockholders, as appropriate, of such Person has approved
such acquisition.
6.10 GOVERNMENT REGULATION.
Each Borrower is exempt from the provisions of the Public Utility
Holding Company Act of 1935, as amended. Neither Borrower is an "investment
company" registered or required to be registered under the Investment Company
Act of 1940, as amended, or controlled by such a company.
6.11 SOLVENCY.
Each Borrower is and, after the consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
6.12 ENVIRONMENTAL MATTERS.
Except as would not result or be reasonably expected to result in a
Material Adverse Effect: (a) each of the properties of the Borrowers (the
"Properties") and all operations at the Properties are in compliance with all
applicable Environmental Laws, (b) there is no violation of any Environmental
Law with respect to the Properties or the businesses operated by the Borrowers
(the "Businesses"), and (c) there are no conditions relating to the Businesses
or Properties that would reasonably be expected to give rise to a liability
under any applicable Environmental Laws.
6.13 SUBSIDIARIES.
Set forth on Schedule 6.13 is a list of all Material Subsidiaries of
the Borrowers.
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6.14 LITIGATION.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge either of the
Borrowers, threatened against a Borrower which (a) are likely to be decided
adversely against a Borrower and (b) if so decided would have or would
reasonably be expected to have a Material Adverse Effect.
SECTION 7.
AFFIRMATIVE COVENANTS
Each Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans and LOC Obligations, together with
interest, fees and other obligations hereunder, have been paid in full and the
Commitments and Letters of Credit shall have terminated:
7.1 INFORMATION COVENANTS.
The Borrowers will furnish, or cause to be furnished, to the Agent and
each of the Lenders:
(a) Annual Financial Statements. As soon as available,
and in any event within 95 days after the close of each fiscal year of
the Borrowers, a consolidated balance sheet of the Borrowers and their
Subsidiaries as of the end of such fiscal year, together with a related
consolidated income statement and related statements of cash flows,
capitalization and retained earnings for such fiscal year, setting
forth in comparative form figures for the preceding fiscal year, all
such financial information described above to be audited by independent
certified public accountants of recognized national standing and whose
opinion, which shall be furnished to the Agent, shall be to the effect
that such financial statements have been prepared in accordance with
GAAP (except for changes with which such accountants concur); provided
that the Borrowers' Form 10-K Annual Report as filed with the
Securities and Exchange Commission, without exhibits, will satisfy the
requirements of this Section 7.1(a).
(b) Quarterly Financial Statements. As soon as available,
and in any event within 50 days after the close of each fiscal quarter
of the Borrowers (other than the fourth fiscal quarter) a consolidated
balance sheet of the Borrowers and their Subsidiaries as of the end of
such fiscal quarter, together with a related consolidated income
statement and related statement of cash flows for such fiscal quarter
in each case setting forth in comparative form figures for the
corresponding period of the preceding fiscal year, and accompanied by a
certificate of an Approved Officer of the Borrowers to the effect that
such quarterly financial statements fairly present in all material
respects the financial condition of the Borrowers and have been
prepared in accordance with GAAP, subject to changes resulting from
audit and normal year-end audit adjustments to same; provided that the
Borrowers' Form 10-Q Quarterly Report as filed with the Securities and
Exchange Commission, without exhibits, will satisfy the requirements of
this Section 7.1(b).
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of an Approved Officer of the
42
Borrowers, substantially in the Form of Exhibit 7.1(c), (i)
demonstrating compliance with the financial covenants contained in
Sections 7.10 and 7.11 by calculation thereof as of the end of each
such fiscal period, (ii) stating that no Default or Event of Default
exists, or if any Default or Event of Default does exist, specifying
the nature and extent thereof and what action the Borrowers propose to
take with respect thereto, (iii) setting forth the amount of Off
Balance Sheet Indebtedness of the Borrowers as of the end of each such
fiscal period and (iv) updating Schedule 6.13 with respect to Material
Subsidiaries, if appropriate.
(d) Reports. Promptly upon transmission or receipt
thereof, copies of any filings and registrations with, and reports to
or from, the Securities and Exchange Commission, or any successor
agency, and copies of all financial statements, proxy statements,
notices and reports as a Borrower shall send to its equityholders.
(e) Notices. Within five days after any officer of a
Borrower with responsibility relating thereto obtaining knowledge
thereof, the Borrowers will give written notice to the Agent
immediately of (i) the occurrence of a Default or Event of Default,
specifying the nature and existence thereof and what action the
Borrowers propose to take with respect thereto, and (ii) the occurrence
of any of the following with respect to the Borrowers: (A) the pendency
or commencement of any litigation, arbitral or governmental proceeding
against a Borrower the claim of which is likely to be decided adversely
to such Borrower and, if adversely determined, would have or would be
reasonably expected to have a Material Adverse Effect or (B) the
institution of any proceedings against a Borrower with respect to, or
the receipt of notice by such Person of potential liability or
responsibility for violation or alleged violation of, any federal,
state or local law, rule or regulation (including, without limitation,
any Environmental Law) that is likely to be decided adversely to a
Borrower and, if adversely decided, would have a Material Adverse
Effect.
(f) ERISA. Upon a Borrower or any ERISA Affiliate
obtaining knowledge thereof, the Borrowers will give written notice to
the Agent promptly (and in any event within five Business Days) of: (i)
any event or condition, including, but not limited to, any Reportable
Event, that constitutes, or would be reasonably expected to lead to, a
Termination Event if such Termination Event would have a Material
Adverse Effect; (ii) with respect to any Multiemployer Plan, the
receipt of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against a Borrower or any ERISA Affiliate, or of a
determination that any Multiemployer Plan is in reorganization or
insolvent (both within the meaning of Title IV of ERISA); (iii) the
failure to make full payment on or before the due date (including
extensions) thereof of all amounts which a Borrower or any of its
Subsidiaries or ERISA Affiliates is required to contribute to each Plan
pursuant to its terms and as required to meet the minimum funding
standard set forth in ERISA and the Code with respect thereto; or (iv)
any change in the funding status of any Plan that would have or would
be reasonably expected to have a Material Adverse Effect; together,
with a description of any such event or condition or a copy of any such
notice and a statement by an officer of a Borrower briefly setting
forth the details regarding such event, condition, or notice, and the
action, if any, which has been or is being taken or is proposed to be
taken with respect thereto. Promptly upon request, each Borrower shall
furnish the Agent and each of the Lenders with such additional
information concerning any Plan as may be
43
reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39)
of ERISA).
(g) Debt Rating Changes. Upon any change in its Debt
Rating, the Borrowers shall promptly deliver such information to the
Agent.
(h) Other Information. With reasonable promptness upon
any such request, such other information regarding the business,
properties or financial condition of the Borrowers and their
Subsidiaries as the Agent or any Lender may reasonably request.
Information required to be delivered pursuant to this Sections 7.1(a),
7.1(b) and 7.1(d) shall be deemed to have been delivered on the date on which
the Borrowers provide notice to the Lenders that such information has been
posted on the Securities and Exchange Commission website on the Internet at
xxx.xxx.xxx/xxxxx/xxxxxxxxxxx/xxxxxxxx.xxx or at another website identified in
such notice and accessible by the Lenders without charge; provided that (i) such
notice may be included in a certificate delivered pursuant to Section 7.1(c) and
(ii) the Borrowers shall deliver paper copies of the information referred to in
Sections 7.1(a), 7.1(b) and 7.1(d), to any Lender that requests such delivery.
7.2 PRESERVATION OF EXISTENCE AND FRANCHISES.
Each Borrower will, and will cause each Material Subsidiary to, do all
things necessary to preserve and keep in full force and effect its existence and
rights, franchises and authority; provided, however, that, subject to Section
8.3, a Borrower shall not be required to preserve any such existence, right or
franchise if it in good faith determines that preservation thereof is no longer
necessary or desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to the Lenders.
7.3 BOOKS AND RECORDS.
Each Borrower will keep, and will cause its Material Subsidiaries to
keep, complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the establishment
and maintenance of appropriate reserves).
7.4 COMPLIANCE WITH LAW.
Each Borrower will comply, and will cause each Material Subsidiary to
comply, with all laws (including, without limitation, all Environmental Laws and
ERISA laws), rules, regulations and orders, and all applicable restrictions
imposed by all Governmental Authorities, applicable to it and its property, if
(a) the failure to comply would have or would be reasonably expected to have a
Material Adverse Effect or (b) the necessity of compliance therewith is being
contested in good faith by appropriate proceedings.
44
7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each Borrower will, and will cause each Material Subsidiary to, pay,
settle or discharge (a) all taxes, assessments and governmental charges or
levies imposed upon it, or upon its income or profits, or upon any of its
properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) all of its other
Indebtedness as it shall become due; provided, however, that no Borrower shall
be required to pay any such tax, assessment, charge, levy, claim or Indebtedness
which (i) is being contested in good faith by appropriate proceedings and as to
which adequate reserves therefor have been established in accordance with GAAP
or (ii) the nonpayment of which would not have a Material Adverse Effect.
7.6 MAINTENANCE OF PROPERTY; INSURANCE.
(a) Each Borrower 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) Each Borrower will, and will cause each of its
Material Subsidiaries to, maintain (either in the name of such Borrower
or in such Material Subsidiary's own name) with financially sound and
responsible insurance companies, insurance on all their respective
properties in at least such amounts and against at least such risks
(and with such risk retention) as are usually insured against in the
same general area by companies of established repute engaged in the
same or a similar business; provided that self-insurance by a Borrower
or any such Material Subsidiary shall not be deemed a violation of this
covenant to the extent that companies engaged in similar businesses and
owning similar properties in the same general areas in which the
Borrowers or such Material Subsidiary operates self-insure.
7.7 USE OF PROCEEDS.
The proceeds of the Loans may be used solely (a) to repay any amounts
owing under the Existing Credit Facility, (b) to provide credit support for each
Borrower's commercial paper and (c) for working capital and other general
corporate purposes of each Borrower. The Borrowers will use the Letters of
Credit solely for the purposes set forth in Section 2.2(a).
7.8 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Borrower
will, and will cause its Material Subsidiaries to, permit representatives
appointed by the Agent, including, without limitation, independent accountants,
agents, attorneys, and appraisers to visit and inspect each Borrower's and its
Material Subsidiaries' property, including its books and records, its accounts
receivable and inventory, each Borrower's and its Material Subsidiaries'
facilities and its other business assets, and to make photocopies or photographs
thereof and to write down and record any information such representatives obtain
and shall permit the Agent or its representatives to investigate and verify the
accuracy of information provided to the Lenders and to discuss all such
45
matters with the officers, employees and representatives of each Borrower and
its Material Subsidiaries.
7.9 MAINTENANCE OF OWNERSHIP.
Each Borrower will maintain ownership of all Capital Stock of each
Material Subsidiary, directly or indirectly, free and clear of all Liens except
as permitted by Section 8.3. The Borrowers will take such action as necessary to
ensure that, on and after the date of the Merger, Duke Energy Field Services,
LLC will be (and will remain) a wholly owned Subsidiary, direct or indirect, of
Duke Energy Field Services Corporation unless Duke Energy Field Services, LLC is
merged with and into Duke Energy Field Services Corporation.
7.10 DEBT TO CAPITALIZATION RATIO.
The Debt to Capitalization Ratio shall, at all times, be less than or
equal to the following:
(a) From the Effective Date until but not including the
earlier of (i) the date on which the Merger is consummated and (ii) the
date on which a Corporate Conversion occurs, .53 to 1.0; and
(b) From the earlier of (i) the date on which the Merger
is consummated and (ii) the date on which a Corporate Conversion occurs
and thereafter, .57 to 1.0.
7.11 INTEREST COVERAGE RATIO.
The Consolidated Interest Coverage Ratio shall, as at the end of each
fiscal quarter, be equal to or greater than 2.5:1.0.
SECTION 8.
NEGATIVE COVENANTS
Each Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans and LOC Obligations, together with
interest, fees and other obligations hereunder, have been paid in full and the
Commitments and Letters of Credit shall have terminated:
8.1 NATURE OF BUSINESS.
The Borrowers will not, and will not permit any of their Material
Subsidiaries to, materially alter the character of their business on a
consolidated basis from that conducted as of the Closing Date.
8.2. LIENS.
A Borrower will not create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it or any of its Material Subsidiaries,
except for the following:
46
(a) Liens granted by such Borrower or any Material
Subsidiary existing on the date of this Credit Agreement securing
Indebtedness outstanding on the date of this Credit Agreement as set
forth on Schedule 8.2.
(b) any Lien on any asset of any Person existing at the
time such Person is merged or consolidated with or into a Borrower or
any Material Subsidiary and not created in contemplation of such event.
(c) any Lien existing on any asset prior to the
acquisition thereof by a Borrower or any Material Subsidiary and not
created in contemplation of such acquisition.
(d) any Lien on any asset securing Indebtedness incurred
or assumed for the purpose of financing all or any part of the cost of
acquiring such asset; provided that such Lien attaches to such asset
concurrently with or within 180 days after the acquisition thereof.
(e) any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien permitted
by any of the foregoing clauses of this Section 8.2; provided that such
Indebtedness is not increased and is not secured by any additional
assets.
(f) Liens for taxes, assessments or other governmental
charges or levies not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate
reserves or other appropriate provisions are being maintained in
accordance with GAAP.
(g) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and interest owners of oil and gas
production and other Liens imposed by law, created in the ordinary
course of business and for amounts not past due for more than 60 days
or which are being contested in good faith by appropriate proceedings
which are sufficient to prevent imminent foreclosure of such Liens, are
promptly instituted and diligently conducted and with respect to which
adequate reserves or other appropriate provisions are being maintained
in accordance with GAAP.
(h) Liens incurred or deposits made in the ordinary
course of business (including, without limitation, surety bonds and
appeal bonds) in connection with workers' compensation, unemployment
insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under
government contracts.
(i) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and other
restrictions, charges or encumbrances (whether or not recorded)
affecting the use of real property.
(j) Liens with respect to judgments and attachments which
do not result in an Event of Default.
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(k) Liens, deposits or pledges to secure the performance
of bids, tenders, contracts (other than contracts for the payment of
money), leases (permitted under the terms of this Agreement), public or
statutory obligations, surety, stay, appeal, indemnity, performance or
other obligations arising in the ordinary course of business.
(l) rights of first refusal entered into in the ordinary
course of business.
(m) Liens consisting of any (i) rights reserved to or
vested in any municipality or governmental, statutory or public
authority to control or regulate any property of a Borrower or any
Material Subsidiary or to use such property in any manner which does
not materially impair the use of such property for the purpose for
which it is held by a Borrower or any such Material Subsidiary, (ii)
obligations or duties to any municipality or public authority with
respect to any franchise, grant, license, lease or permit and the
rights reserved or vested in any Governmental Authority or public
utility to terminate any such franchise, grant, license, lease or
permit or to condemn or expropriate any property, or (iii) zoning laws,
ordinances or municipal regulations.
(n) liens on deposits required by any Person with whom a
Borrower or any Material Subsidiary enters into forward contracts,
futures contracts, swap agreements or other commodities contracts in
the ordinary course of business.
(o) liens on assets in connection with asset
securitizations entered into by a Borrower or one of its Subsidiaries
as long as such liens do not secure indebtedness exceeding
$400,000,000, in the aggregate, at any one time.
(p) other Liens, including Liens imposed by Environmental
Laws, arising in the ordinary course of its business which (i) do not
secure Indebtedness, (ii) do not secure any obligation in an amount
exceeding $100,000,000 at any time and (iii) do not in the aggregate
materially detract from the value of its assets or materially impair
the use thereof in the operation of its business.
8.3 CONSOLIDATION AND MERGER.
A Borrower will not, and will not permit any of its Material
Subsidiaries to, (a) enter into any transaction of merger or (b) consolidate,
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that: (i) a Person (including a Subsidiary of a Borrower)
may be merged or consolidated with or into a Borrower so long as (A) such
Borrower shall be the continuing or surviving entity, (B) no Default or Event of
Default shall exist or be caused thereby and (C) such Borrower is not downgraded
by S&P or Xxxxx'x as a result of such transaction to a rating below BBB- or
Baa3, as applicable, (ii) a Material Subsidiary may merge with or into another
Subsidiary of a Borrower and (iii) a Corporate Conversion can occur as long as
the Agent receives, on behalf of the Lenders, such documents, instruments,
resolutions and opinions as the Agent may reasonably require to ensure that (A)
each Borrower remains liable for the Borrowers Obligations in accordance with
the terms hereof and (B) all of the rights and remedies of the Lenders under the
Credit Documents remain in full force and effect.
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8.4 SALE OR LEASE OF ASSETS.
During the term of this Credit Agreement, a Borrower will not, directly
or indirectly, convey, sell, lease, transfer or otherwise dispose of assets,
business or operations with an aggregate book value in excess of twenty-five
percent (25%) of its consolidated total assets, as determined in accordance with
GAAP, as calculated as of the end of the most recent fiscal quarter.
8.5 TRANSACTIONS WITH AFFILIATES.
A Borrower will not, and will not permit any Material Subsidiary to,
directly or indirectly, pay any funds to or for the account of, make any
investment in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect, any transaction with,
any officer, director, employee or Affiliate (other than a wholly-owned
Subsidiary) unless any and all such transactions between such Borrower and its
Material Subsidiaries on the one hand and any officer, director, employee or
Affiliate (other than a wholly-owned Subsidiary) on the other hand, shall be on
an arms-length basis and on terms no less favorable to such Borrower or such
Material Subsidiary than could have been obtained from a third party who was not
an officer, director, employee or Affiliate (other than a wholly-owned
Subsidiary); provided that the foregoing provisions of this Section shall not
(a) prohibit a Borrower and each Material Subsidiary from declaring or paying
any Restricted Payment or lawful dividend or distribution otherwise permitted
hereunder, (b) prohibit a Borrower or a Material Subsidiary from providing
credit support for its Subsidiaries as it deems appropriate in the ordinary
course of business, (c) prohibit a Borrower or a Material Subsidiary from
engaging in a transaction or transactions that are not on an arms-length basis
or are not on terms as favorable as could have been obtained from a third party,
provided that such transaction or transactions occurs within a related series of
transactions, which, in the aggregate, are on an arms-length basis and are on
terms as favorable as could have been obtained from a third party or (d)
prohibit a Borrower or a Material Subsidiary from engaging in non-material
transactions with any Subsidiary that are not on an arms-length basis or are not
on terms as favorable as could have been obtained from a third party but are in
the ordinary course of such Borrower's or Material Subsidiary's business, so
long as, in each case, after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing.
8.6 INDEBTEDNESS.
The Borrowers will not permit the amount of Indebtedness of the
Subsidiaries of the Borrowers (excluding Duke Energy Field Services LLC, if
applicable) to exceed ten percent (10%) of all Indebtedness of the Borrowers and
their Subsidiaries on a consolidated basis.
8.7 RESTRICTED PAYMENTS.
The Borrowers will not declare or make, or agree to pay or make,
directly or indirectly any Restricted Payment, except:
(a) Restricted Payments to the parents of the Borrowers
for federal, state and local income tax obligations payable by either
such parent (or other members of their affiliated groups) to the extent
that such obligations are the result of the income of the Borrowers and
their Subsidiaries being attributed to such Persons for tax purposes.
49
(b) accrued dividends in respect of the Existing
Preferred Members' Interest, provided that no such Restricted Payment
shall be declared or paid by the Borrowers if a Default or Event of
Default has occurred and is continuing or will occur as a result of
such declaration or payment.
(c) Restricted Payments the aggregate amount of which
does not exceed Consolidated Net Income, beginning on January 1, 2003,
calculated at the time of each such Restricted Payment, provided that
no such Restricted Payment shall be declared or paid by the Borrowers
if a Default or Event of Default has occurred and is continuing or will
occur as a result of such declaration or payment.
(d) Restricted Payments consisting of the acquisition of
existing Capital Stock to the extent necessary to consummate a
Permitted Refinancing.
SECTION 9.
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. A Borrower shall: (i) default in the payment
when due of any principal amount of any of the Loans or of any
reimbursement obligation arising from drawings under any Letters of
Credit; or (ii) default, and such default shall continue for five or
more Business Days, in the payment when due of any interest on the
Loans or of any fees or other amounts owing hereunder, under any of the
other Credit Documents or in connection herewith.
(b) Representations. Any representation, warranty or
statement made or deemed to be made by a Borrower herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove to have
been untrue in any material respect on the date as of which it was
deemed to have been made.
(c) Covenants. A Borrower shall:
(i) default in the due performance or observance
of any term, covenant or agreement contained in Section
7.1(e), 7.8, 7.10, 7.11, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6 and 8.7.
(ii) default in the due performance or observance
by it of any term, covenant or agreement (other than those
referred to in subsections (a), (b), or (c)(i) of this Section
9.1) contained in this Credit Agreement or any other Credit
Document and such default shall continue unremedied for a
period of at least 30 days after the earlier of (A) a
Responsible Officer of either Borrower becoming
50
aware of such default or (B) notice of such default is given
by the Agent or a Lender to either Borrower.
(d) Credit Documents. Any Credit Document shall fail to
be in full force and effect or a Borrower shall so assert or any Credit
Document shall fail to give the Agent and/or the Lenders the rights,
powers and privileges purported to be created thereby.
(e) Bankruptcy, etc. The occurrence of any of the
following with respect to a Borrower or a Material Subsidiary (i) a
court or governmental agency having jurisdiction in the premises shall
enter a decree or order for relief in respect of a Borrower or a
Material Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of a Borrower or a Material Subsidiary
or for any substantial part of its property or ordering the winding up
or liquidation of its affairs; or (ii) an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect is commenced against a Borrower or a Material Subsidiary and
such petition remains unstayed and in effect for a period of 90
consecutive days; or (iii) a Borrower or a Material Subsidiary shall
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such law,
or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person or any substantial part of its property or make
any general assignment for the benefit of creditors; or (iv) a Borrower
or a Material Subsidiary shall admit in writing its inability to pay
its debts generally as they become due or any action shall be taken by
such Person in furtherance of any of the aforesaid purposes.
(f) Defaults under Other Agreements. With respect to any
Indebtedness, including any Off Balance Sheet Indebtedness, in excess
of $100,000,000 (other than Indebtedness outstanding under this Credit
Agreement) of a Borrower or any Material Subsidiary, such Borrower or
such Material Subsidiary shall (A) default in any payment (beyond the
applicable grace period with respect thereto, if any) with respect to
any such Indebtedness or fail to timely pay such Indebtedness when due,
or (B) default (after giving effect to any applicable grace period) in
the observance or performance of any covenant or agreement relating to
such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event or
condition shall occur or condition exist, the effect of which default
or other event or condition in this clause (B) is to cause any such
Indebtedness to become due prior to its stated maturity.
(g) Judgments. One or more judgments, orders, or decrees
shall be entered against a Borrower or a Material Subsidiary involving
a liability of $50,000,000 or more, in the aggregate, (to the extent
not paid or covered by insurance provided by a carrier who has
acknowledged coverage) and such judgments, orders or decrees shall
continue unsatisfied, undischarged and unstayed for a period ending on
the first to occur of (i) the last day on which such judgment, order or
decree becomes final and unappealable and, where applicable, with the
status of a judicial lien or (ii) 45 days.
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(h) ERISA. The occurrence of:
(i) any of the following events or conditions
which could result in a liability of a Borrower or an ERISA
Affiliate of $25,000,000 or more in the aggregate: (A) any
"accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or
not waived, shall exist with respect to any Plan, or any lien
shall arise on the assets of a Borrower or any ERISA Affiliate
in favor of the PBGC or a Plan; or (B) any prohibited
transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which would be reasonably expected
to subject a Borrower or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section
4975 of the Code, or under any agreement or other instrument
pursuant to which a Borrower or any ERISA Affiliate has agreed
or is required to indemnify any person against any such
liability.
(ii) any of the following events or conditions
which could result in a liability of a Borrower or an ERISA
Affiliate of $50,000,000 or more in the aggregate: (A) a
Termination Event shall occur with respect to a Single
Employer Plan which is, in the reasonable opinion of the
Agent, likely to result in the termination of such Plan for
purposes of Title IV of ERISA; or (B) a Termination Event
shall occur with respect to a Multiemployer Plan or Multiple
Employer Plan which is, in the reasonable opinion of the
Agent, likely to result in (x) the termination of such Plan
for purposes of Title IV of ERISA, or (y) a Borrower or any
ERISA Affiliate incurring any liability in connection with a
withdrawal from, reorganization of (within the meaning of
Section 4241 of ERISA), or insolvency (within the meaning of
Section 4245 of ERISA) of such Plan.
(i) Change of Control. The occurrence of any Change of
Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Required Lenders
(or the Lenders as may be required hereunder), the Agent may, with the consent
of the Required Lenders, and shall, upon the request and direction of the
Required Lenders, by written notice to the Borrowers take any of the following
actions without prejudice to the rights of the Agent or any Lender to enforce
its claims against the Borrowers, except as otherwise specifically provided for
herein:
(i) Termination of Commitments. Declare the
Commitments terminated whereupon the Commitments shall be
immediately terminated.
(ii) Acceleration of Loans and Letters of Credit.
Declare the unpaid principal of and any accrued interest in
respect of all Loans, any reimbursement obligations arising
from drawings under Letters of Credit and any and all other
indebtedness or obligations of any and every kind owing by a
Borrower to any of the
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Lenders hereunder to be due whereupon the same shall be
immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby
waived by the Borrowers.
(iii) Cash Collateral. Direct the Borrowers to pay
(and the Borrowers agree that upon receipt of such notice, or
upon the occurrence of an Event of Default under Section
9.1(e), it will immediately pay) to the Issuing Lender
additional cash, to be held by the Issuing Lender, for the
benefit of the Lenders, in a cash collateral account as
security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an
amount equal to the maximum aggregate amount which may be
drawn under all Letters of Credits then outstanding.
(iv) Enforcement of Rights. Enforce any and all
rights and interests created and existing under the Credit
Documents, including, without limitation, all rights of
set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all reimbursement obligations under Letters of Credit, all accrued
interest in respect thereof, all accrued and unpaid fees and other indebtedness
or obligations owing to the Lenders and the Agent hereunder shall immediately
become due and payable without the giving of any notice or other action by the
Agent or the Lenders.
Notwithstanding the fact that enforcement powers reside primarily with the
Agent, each Lender has, to the extent permitted by law, a separate right of
payment and shall be considered a separate "creditor" holding a separate "claim"
within the meaning of Section 101(5) of the Bankruptcy Code or any other
insolvency statute.
9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provision of this Credit Agreement, after the
occurrence of an Event of Default, all amounts collected or received by the
Agent or any Lender on account of amounts outstanding under any of the Credit
Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agent and the Lenders in connection with enforcing the rights of
the Lenders under the Credit Documents, pro rata as set forth below;
SECOND, to payment of any fees owed to the Agent, or any
Lender, pro rata as set forth below;
THIRD, to the payment of all accrued interest payable to the
Lenders hereunder, pro rata as set forth below;
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FOURTH, to the payment of the outstanding principal amount of
the Loans and to the payment or cash collateralization of the
outstanding LOC Obligations, pro rata, as set forth below;
FIFTH, to all other obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whomever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans and
LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations), of amounts available to be applied; and (c) to the
extent that any amounts available for distribution pursuant to clause "FOURTH"
above are attributable to the issued but undrawn amount of outstanding Letters
of Credit, such amounts shall be held by the Agent in a cash collateral account
and applied (i) first, to reimburse the Issuing Lender from time to time for any
drawings under such Letters of Credit and (ii) then, following the expiration of
all Letters of Credit, to all other obligations of the types described in
clauses "FOURTH", "FIFTH" and "SIXTH" above in the manner provided in this
Section 9.3.
SECTION 10.
AGENCY PROVISIONS
10.1 APPOINTMENT.
Each Lender hereby designates and appoints JPMorgan Chase Bank, as
agent of such Lender to act as specified herein and the other Credit Documents,
and each such Lender hereby authorizes the Agent, as the agent for such Lender,
to take such action on its behalf under the provisions of this Credit Agreement
and the other Credit Documents and to exercise such powers and perform such
duties as are expressly delegated by the terms hereof and of the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere herein and in the other
Credit Documents, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein and therein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Agent. The provisions of this Section are solely for the benefit of
the Agent and the Lenders and the Borrowers shall not have any rights as a third
party beneficiary of the provisions hereof. In performing its functions and
duties under this Credit Agreement and the other Credit Documents, the Agent
shall act solely as agent of the Lenders and does not assume and shall not be
deemed to have assumed any obligation or relationship of agency or trust with or
for a Borrower. All institutions acting as a Co-Syndication Agent or
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Co-Documentation Agent hereunder shall have no obligations in such capacity
under the Credit Documents.
10.2 DELEGATION OF DUTIES.
The Agent may execute any of its duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible to the Lenders for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
10.3 EXCULPATORY PROVISIONS.
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents (except for its
or such Person's own gross negligence or willful misconduct), or responsible in
any manner to any of the Lenders for any recitals, statements, representations
or warranties made by a Borrower contained herein or in any of the other Credit
Documents or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection herewith or
in connection with the other Credit Documents, or enforceability or sufficiency
therefor of any of the other Credit Documents, or for any failure of a Borrower
to perform its obligations hereunder or thereunder. The Agent shall not be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit Agreement, or any
of the other Credit Documents or for any representations, warranties, recitals
or statements made herein or therein or made by a Borrower in any written or
oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by the Agent to the Lenders or by or on behalf of a Borrower
to the Agent or any Lender or be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or therein or as to the use of the proceeds of
the Loans or of the existence or possible existence of any Default or Event of
Default or to inspect the properties, books or records of a Borrower. The Agent
is not a trustee for the Lenders and owes no fiduciary duty to the Lenders.
10.4 RELIANCE ON COMMUNICATIONS.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrowers, independent accountants and other experts
selected by the Agent with reasonable care). The Agent may deem and treat the
Lenders as the owner of its interests hereunder for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Agent in accordance with Section 11.3(b). The Agent shall be
fully justified in failing or refusing to take any action under this Credit
Agreement or under any of the other Credit Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first
55
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder or under any of the other Credit
Documents in accordance with a request of the Required Lenders (or to the extent
specifically provided in Section 11.6, all the Lenders) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders (including their successors and assigns).
10.5 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Agent has
received notice from a Lender or the Borrowers referring to the Credit Document,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Agent receives such a notice, the
Agent shall give prompt notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders.
10.6 NON-RELIANCE ON AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Agent or any
Affiliate thereof hereinafter taken, including any review of the affairs of the
Borrowers, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Borrowers
and made its own decision to make its Extensions of Credit hereunder and enter
into this Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the 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 credit analysis, appraisals and decisions in taking or
not taking action under this Credit Agreement, and to make such investigation as
it deems necessary to inform itself as to the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the
Borrowers. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of the Borrowers which may come
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
10.7 INDEMNIFICATION.
Each Lender agrees to indemnify the Agent (including for purposes of
this Section 10.7 the Agent in its capacity as Issuing Lender) in its capacity
as such (to the extent not reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to do so), ratably according to its Commitment
Percentage, from and against any and all liabilities, obligations, losses,
damages,
56
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including without limitation at any time
following the payment in full of the Borrowers Obligations) be imposed on,
incurred by or asserted against the Agent in its capacity as such in any way
relating to or arising out of this Credit Agreement or the other Credit
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for any purpose
shall, in the opinion of the Agent, be insufficient or become impaired, the
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this Section 10.7 shall survive the payment of the Borrowers
Obligations and all other amounts payable hereunder and under the other Credit
Documents and the termination of the Commitments.
10.8 AGENT IN ITS INDIVIDUAL CAPACITY.
The Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrowers as though the
Agent were not Agent hereunder. With respect to the Loans made, Letters of
Credit issued and all Borrowers Obligations owing to it, the Agent shall have
the same rights and powers under this Credit Agreement as any Lender and may
exercise the same as though it were not the Agent, and the terms "Lender" and
"Lenders" shall include the Agent in its individual capacity.
10.9 SUCCESSOR AGENT.
The Agent may, at any time, resign upon 30 days written notice to the
Lenders and the Borrowers. Upon any such resignation, the Borrowers with the
consent of the Required Lenders (such consent of the Required Lenders not to be
unreasonably withheld or delayed) shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed and shall have
accepted such appointment within 30 days after the notice of resignation, then
the retiring Agent shall select a successor Agent provided such successor is a
Lender hereunder or qualifies as an Eligible Assignee (or if no Eligible
Assignee shall have been so appointed by the retiring Agent and shall have
accepted such appointment, then the Lenders shall perform all obligations of the
retiring Agent hereunder until such time, if any, as a successor Agent shall
have been appointed and shall have accepted such appointment as provided for
above). Upon the acceptance of any appointment as Agent hereunder by a
successor, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations as Agent,
as appropriate, under this Credit Agreement and the other Credit Documents and
the provisions of this Section 10.9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Credit
Agreement.
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SECTION 11.
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device), (c)
the Business Day following the day on which the same has been delivered prepaid
(or pursuant to an invoice arrangement) to a reputable national overnight air
courier service, or (d) the third Business Day following the day on which the
same is sent by certified or registered mail, postage prepaid, in each case to
the respective parties at the address or telecopy numbers set forth on Schedule
11.1, or at such other address as such party may specify by written notice to
the other parties hereto.
11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and the commencement of remedies described in
Section 9.2, each Lender is authorized at any time and from time to time,
without presentment, demand, protest or other notice of any kind (all of which
rights being hereby expressly waived), to set-off and to appropriate and apply
any and all deposits (general or special) and any other indebtedness at any time
held or owing by such Lender (including, without limitation branches, agencies
or Affiliates of such Lender wherever located) to or for the credit or the
account of a Borrower against obligations and liabilities of such Borrower to
the Lenders hereunder, under the Notes, the other Credit Documents or otherwise,
irrespective of whether the Agent or the Lenders shall have made any demand
hereunder and although such obligations, liabilities or claims, or any of them,
may be contingent or unmatured, and any such set-off shall be deemed to have
been made immediately upon the occurrence of an Event of Default even though
such charge is made or entered on the books of such Lender subsequent thereto.
11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided that, except as
set forth in Section 2.10, a Borrower may not assign and transfer any
of its interests without the prior written consent of the Lenders; and
provided further that the rights of each Lender to transfer, assign or
grant participations in its rights and/or obligations hereunder shall
be limited as set forth below in this Section 11.3.
(b) Assignments. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including, without limitation, all or a portion
of its Loans, its Notes, and its Commitment); provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
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(ii) except in the case of an assignment to
another Lender or an assignment of all of a Lender's rights
and obligations under this Credit Agreement, any such partial
assignment shall be in an amount at least equal to $10,000,000
(or, if less, the remaining amount of the Commitment being
assigned by such Lender) and an integral multiple of
$1,000,000 in excess thereof; and
(iii) the parties to such assignment shall execute
and deliver to the Agent for its acceptance an Assignment
Agreement in substantially the form of Exhibit 11.3(b),
together with a processing fee from the assignor of $3,500.
Upon execution, delivery, and acceptance of such Assignment Agreement,
the assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights (except those rights hereunder which by their terms expressly survive)
and be released from its obligations under this Credit Agreement. Upon the
consummation of any assignment pursuant to this Section 11.3(b), the assignor,
the Agent and the Borrowers shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the assignee
is not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrowers and the Agent certification as to
exemption from deduction or withholding of taxes in accordance with Section 4.4.
By executing and delivering an assignment agreement in accordance with
this Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and the other
parties hereto as follows: (A) such assigning Lender warrants that it is the
legal and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim created by such assigning Lender and the assignee warrants
that it is an Eligible Assignee; (B) except as set forth in clause (A) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished pursuant hereto or
thereto, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, any of the other Credit Documents
or any other instrument or document furnished pursuant hereto or thereto or the
financial condition of the Borrowers or the performance or observance by the
Borrowers of any of their obligations under this Credit Agreement, any of the
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto; (C) such assigning Lender and such assignee represents and
warrants that it is legally authorized to enter into such assignment agreement;
(D) such assignee confirms that it has received a copy of this Credit Agreement,
the other Credit Documents and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such assignment agreement; (E) such assignee will independently and without
reliance upon the Agent, such assigning Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Credit Agreement and the other Credit Documents; (F) such assignee appoints
and authorizes the Agent to take such action on its behalf and to exercise such
powers under this Credit Agreement or any other Credit Document as are delegated
to the Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto; and (G) such assignee
59
agrees that it will perform in accordance with their terms all the obligations
which by the terms of this Credit Agreement and the other Credit Documents are
required to be performed by it as a Lender.
(c) Register. The Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by 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 owing to, each Lender
from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and
the Borrowers, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes
of this Credit Agreement. The Register shall be available for
inspection by the Borrowers or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment
Agreement executed by the parties thereto, together with any Note
subject to such assignment and payment of the processing fee, the Agent
shall, if such Assignment Agreement has been completed and is in
substantially the form of Exhibit 11.3(b) hereto, (i) accept such
Assignment Agreement, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties
thereto.
(e) Participations. Each Lender may sell participations
to one or more Persons in all or a portion of its rights, obligations
or rights and obligations under this Credit Agreement (including all or
a portion of its Commitment, its Notes and its Loans); provided,
however, that (i) such Lender's obligations under this Credit Agreement
shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participant shall be entitled to the benefit of
the yield protection provisions contained in Sections 4.1 through 4.4,
inclusive, but shall not be entitled to receive any amount greater than
such Lender would have been able to receive, and (iv) the Borrowers
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Credit
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrowers relating to its Loans and its Notes and to
approve any amendment, modification, or waiver of any provision of this
Credit Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest on such Loans or
Notes, or extending its Commitment).
(f) Nonrestricted Assignments. Notwithstanding any other
provision set forth in this Credit Agreement, any Lender may at any
time assign and pledge all or any portion of its Loans and its Notes to
any Federal Reserve Bank as collateral security pursuant to Regulation
A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
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(g) Information. Subject to Section 11.17, any Lender may
furnish any information concerning the Borrowers in the possession of
such Lender from time to time to assignees and participants (including
prospective assignees and participants).
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrowers and the Agent or any
Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or remedies which
the Agent or any Lender would otherwise have. No notice to or demand on the
Borrowers in any case shall entitle the Borrowers to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Agent or the Lenders to any other or further action in any circumstances
without notice or demand.
11.5 PAYMENT OF EXPENSES, ETC.
The Borrowers agree to: (i) pay all reasonable out-of-pocket costs and
expenses of the Agent in connection with (A) the negotiation, preparation,
execution and delivery, syndication and administration of this Credit Agreement
and the other Credit Documents and the documents and instruments referred to
therein (including, without limitation, the reasonable fees and expenses of
Xxxxx, Xxxx & Xxxxxxxx, special counsel to the Agent) and (B) any amendment,
waiver or consent relating hereto and thereto including, but not limited to, any
such amendments, waivers or consents resulting from or related to any work-out,
renegotiation or restructure relating to the performance by the Borrowers under
this Credit Agreement, (ii) pay all reasonable out-of-pocket costs and expenses
of the Agent and each Lender in connection with (A) enforcement of the Credit
Documents and the documents and instruments referred to therein (including,
without limitation, in connection with any such enforcement, the reasonable fees
and disbursements of counsel for the Agent and each of the Lenders (including
the allocated cost of internal counsel)) and (B) any bankruptcy or insolvency
proceeding of a Borrower and (iii) indemnify the Agent and each Lender, their
respective Affiliates and the respective officers, directors, employees,
representatives and agents of the foregoing from and hold each of them harmless
against any and all losses, liabilities, claims, damages or expenses incurred by
any of them as a result of, or arising out of, or in any way related to, or by
reason of, any investigation, litigation or other proceeding (whether or not the
Agent or any Lender is a party thereto) related to the entering into and/or
performance of any Credit Document or the use of proceeds of any Loans
(including other extensions of credit) hereunder or the consummation of any
other transactions contemplated in any Credit Document, including, without
limitation, the reasonable fees and disbursements of counsel and settlement
costs incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
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11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement, nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the Borrowers; provided that no
such amendment, change, waiver, discharge or termination shall without the
consent of each Lender affected thereby:
(a) extend the Maturity Date or the Term Out Maturity
Date, or postpone or extend the time for any payment or prepayment of
principal (except pursuant to Section 3.3(b)) or the time of payment of
any reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit;
(b) reduce the rate or extend the time of payment of
interest thereon or fees or other amounts payable hereunder;
(c) reduce or waive the principal amount of any Loan or
of any reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit;
(d) increase or extend the Commitment of a Lender (it
being understood and agreed that a waiver of any Default or Event of
Default or a waiver of any mandatory reduction in the Commitments shall
not constitute a change in the terms of any Commitment of any Lender);
(e) except as permitted by Section 2.10, consent to the
assignment or transfer by a Borrower of any of its rights and
obligations under (or in respect of) the Credit Documents or release a
Borrower from its obligations under the Credit Documents;
(f) amend, modify or waive any provision of this Section
11.6 or Section 3.6, 3.8, 5.2, 9.1(a), 11.2, 11.3 or 11.5; or
(g) reduce any percentage specified in, or otherwise
modify, the definition of Required Lenders.
No provision of Section 10 may be amended or modified without the consent of the
Agent.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans or the
Letters of Credit, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set
forth herein and (y) the Required Lenders may consent to allow the Borrowers to
use cash collateral in the context of a bankruptcy or insolvency proceeding.
11.7 COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the
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same instrument. Delivery of executed counterparts by telecopy shall be as
effective as an original and shall constitute a representation that an original
will be delivered.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.9 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then it shall not be entitled to vote on any matter requiring the consent
of the Required Lenders or to object to any matter requiring the consent of all
the Lenders; provided, however, that (a) a Lender's Commitment may not be
increased without its consent whether or not it is a Defaulting Lender and (b)
all other benefits and obligations under the Loan Documents shall apply to such
Defaulting Lender.
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND
WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, the issuance of the Letters of Credit and the repayment
of the Loans, LOC Obligations and other obligations and the termination of the
Commitments hereunder.
11.11 GOVERNING LAW; VENUE.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with
respect to this Credit Agreement or any other Credit Document may be
brought in the courts of the State of New York, or of the United States
for the Southern District of New York, and, by execution and delivery
of this Credit Agreement, each Borrower hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally,
the jurisdiction of such courts. 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 the
address for notices pursuant to Section 11.1, such service to become
effective 30 days after such mailing. Nothing herein shall affect the
right of a Lender to serve process in any other manner permitted by law
or to commence legal proceedings or to otherwise proceed against a
Borrower in any other jurisdiction.
(b) Each Borrower 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 Credit Agreement or any other Credit Document brought in the
courts referred to in subsection (a) hereof and hereby further
irrevocably
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waives and agrees not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
11.12 WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY. Each Borrower agrees not to assert any
claim against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys or agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to any of the transactions contemplated hereby or by
the other Credit Documents.
11.13 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 FURTHER ASSURANCES.
Each Borrower agrees, upon the request of the Agent, to promptly take
such actions, as reasonably requested, as are necessary to carry out the intent
of this Credit Agreement and the other Credit Documents.
11.15 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.16 BINDING EFFECT; CONTINUING AGREEMENT.
(a) This Credit Agreement shall become effective at such
time when all of the conditions set forth in Section 5.1 have been
satisfied or waived by the Lenders and it shall have been executed by
the Borrowers, the Agent and the Lenders, and thereafter this Credit
Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Agent and each Lender and their respective successors
and permitted assigns.
(b) This Credit Agreement shall be a continuing agreement
and shall remain in full force and effect until all Loans, LOC
Obligations, interest, fees and other Borrowers Obligations have been
paid in full and all Commitments and Letters of Credit have been
terminated. Upon such termination, the Borrowers shall have no further
obligations (other than those provisions that expressly survive the
termination thereof) under the Credit
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Documents; provided that should any payment, in whole or in part, of
the Borrowers Obligations be rescinded or otherwise required to be
restored or returned by the Agent or any Lender, whether as a result of
any proceedings in bankruptcy or reorganization or otherwise, then the
Credit Documents shall automatically be reinstated and all amounts
required to be restored or returned and all costs and expenses incurred
by the Agent or any Lender in connection therewith shall be deemed
included as part of the Borrowers Obligations.
11.17 CONFIDENTIALITY.
The Agent and each Lender will keep any information delivered or made
available by the Borrowers pursuant to this Credit Agreement confidential from
anyone other than persons employed or retained by the Agent or such Lender and
its Affiliates who are engaged in evaluating, approving, structuring or
administering this Credit Agreement; provided that the Agent and the Lenders
shall be entitled to disclose such information (a) to any other Lender or to the
Agent, (b) upon the order of any court or administrative agency, (c) upon the
request or demand of any regulatory agency or authority, (d) which had been
publicly disclosed other than as a result of a disclosure by the Agent or any
Lender prohibited by this Agreement, (e) in connection with any litigation to
which the Agent, any Lender or its subsidiaries or parent may be a party, (f) to
the extent necessary in connection with the exercise of any remedy under this
Agreement, (g) to such Lender's or Agent's legal counsel and independent
auditors and (h) subject to provisions substantially similar to this Section
11.17, to any actual or proposed participant or assignee.
Notwithstanding the foregoing provisions of this Section 11.17, the
Borrower, the Agent and each Lender (each a "PARTY") (and each of their
respective, and their respective affiliates', employees, officers, directors,
representatives, advisors and agents) may disclose to any and all Persons,
without limitation of any kind, the structure and tax aspects (as such terms are
used in Sections 6011, 6111 and 6112 of the Code and the regulations promulgated
thereunder) of this Credit Agreement and the transactions contemplated hereby
(the "TAX RELATED INFORMATION") and all materials of any kind (including
opinions or other tax analyses) provided to any Party with respect to the Tax
Related Information, other than any information for which nondisclosure is
reasonably necessary in order to comply with applicable securities laws. The
Parties acknowledge and agree that the disclosure of the Tax Related Information
is not limited in any way by an express or implied understanding or agreement,
oral or written (whether or not such understanding or agreement is legally
binding). Furthermore, each Party acknowledges and agrees that it does not know
or have reason to know that its use or disclosure of the Tax Related Information
is limited in any other manner (such as where the Tax Related Information is
claimed to be proprietary or exclusive) for the benefit of any other Person. The
provisions of this paragraph supersede any confidentiality obligation of the
Parties relating to the Tax Related Information under any other agreement
between or among one or more of the Parties hereto, and the Parties agree that
any such confidentiality obligation shall be deemed void ab initio; provided,
that each Party recognizes that the privilege each has to maintain, in its sole
discretion, the confidentiality of a communication relating to the Tax Related
Information, including a confidential communication with its attorney or a
confidential communication with a federally authorized tax practitioner under
Section 7525 of the Internal Revenue Code, is not intended to be affected by the
foregoing.
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Signature Page to Duke Energy Field Services 364-Day Credit Agreement
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWERS:
DUKE ENERGY FIELD SERVICES, LLC,
a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
DUKE ENERGY FIELD SERVICES CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
LENDERS:
JPMORGAN CHASE BANK, individually in its
capacity as a Lender and in its
capacity as Agent
By: /s/ Xxxxxx X. Xxx
------------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
ABN AMRO BANK N.V.
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
THE BANK OF NOVA SCOTIA
By: /s/ A. S. Xxxxxxxxxx
------------------------------------
Name: A. S. Xxxxxxxxxx
Title: Senior Manager
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ J. Xxxxxxx Xxxxxx
------------------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Vice President
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
BANK ONE, N.A. (MAIN OFFICE - CHICAGO)
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
CITIBANK
By: /s/ J. Xxxxxxxx XxXxx
------------------------------------
Name: J. Xxxxxxxx XxXxx
Title: Managing Director
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
SUNTRUST BANK
By: /s/ Xxxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Vice President
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
UBS AG, CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxx X. Saint
------------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
XXXXX FARGO BANK, N.A.
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
