CREDIT AGREEMENT
Among
ENTERPRISE PRODUCTS OPERATING L.P.,
as the Company,
BANKBOSTON, N.A.,
SOCIETE GENERALE, SOUTHWEST AGENCY
and
FIRST UNION NATIONAL BANK,
as Co-Arrangers,
THE CHASE MANHATTAN BANK,
as Co-Arranger and as Administrative Agent,
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Arranger and as Documentation Agent,
THE BANK OF NOVA SCOTIA,
as Co-Arranger and as Syndication Agent
and
THE SEVERAL BANKS FROM TIME TO TIME PARTIES HERETO
with
FIRST UNION CAPITAL MARKETS,
acting as Managing Agent
and
CHASE SECURITIES INC.,
acting as Lead Arranger and Book Manager
Dated as of July 28, 1999
{CHASE LOGO}
TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 16
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT LOANS 17
2.1 Revolving Credit Commitments 17
2.2 Revolving Credit Notes 17
2.3 Procedure for Borrowing under Revolving Credit Commitments 18
2.4 Termination, Reduction or Extension of Revolving Credit Commitments 18
SECTION 3. LETTERS OF CREDIT 19
3.1 Letter of Credit Commitments 19
3.2 Issuance and Continuation of Letters of Credit 19
3.3 Participating Interests 20
3.4 Reimbursement Obligation of the Company 20
3.5 Letter of Credit Payments 20
3.6 Increased Costs 21
3.7 Nature of Obligations; Indemnities 21
3.8 Purpose of the Letters of Credit 23
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
FINANCING FACILITIES 23
4.1 Optional Prepayments 23
4.2 Commitment Fees 24
4.3 Letter of Credit Commissions 25
4.4 Conversion Options; Minimum Amount of Revolving Credit Loans 25
4.5 Minimum Amounts of Eurodollar Tranches 26
4.6 Interest Rate, Payment Dates and Lending Offices 26
4.7 Computation of Interest and Fees 26
4.8 Inability to Determine Interest Rate 27
4.9 Pro Rata Treatment and Payments 27
4.10 Illegality 28
4.11 Requirements of Law 28
4.12 Taxes 30
4.13 Indemnity 31
SECTION 5. REPRESENTATIONS AND WARRANTIES 31
5.1 Financial Condition. 31
5.2 No Change 32
5.3 Existence; Compliance with Law 32
5.4 Power; Authorization; Enforceable Obligations 32
5.5 No Legal Bar 33
5.6 No Default 33
5.7 Investments and Guaranties 33
5.8 Liabilities; Litigation 33
5.9 Taxes; Governmental Charges 33
5.10 Titles, etc. 33
5.11 Intellectual Property 34
5.12 Casualties; Taking of Properties 34
5.13 Use of Proceeds; Margin Stock; No Financing of Corporate Takeovers 34
5.14 Compliance with Law 34
5.15 ERISA 35
5.16 Investment Company Act; Other Regulations 35
5.17 Accuracy and Completeness of Information 35
5.18 Public Utility Holding Company Act 36
5.19 Subsidiaries 36
5.20 Location of Business and Offices 36
5.21 Neither the Company Nor Subsidiary is a Utility 36
5.22 Year 2000 Matters 36
SECTION 6. AFFIRMATIVE COVENANTS 37
6.1 Financial Statements and Reports of the Company 37
6.2 Annual Certificates of Compliance 38
6.3 Quarterly Certificates of Compliance; Projections 39
6.4 Notice of Certain Events 39
6.5 ERISA Information 40
6.6 Taxes and Other Liens 41
6.7 Maintenance 41
6.8 Insurance 41
6.9 Payment of Expenses and Taxes 43
6.10 Accounts and Records 43
6.11 Right of Inspection 43
6.12 Payment of Obligations 44
6.13 Environmental Laws 44
6.14 Clean-Down 44
SECTION 7. NEGATIVE COVENANTS 45
7.1 Limitation on Debt 45
7.2 Limitation on Liens 46
7.3 Limitations on Fundamental Changes 46
7.4 Limitation on Sale of Assets 46
7.5 Limitation on Dividends 47
7.6 Limitation on Investments 47
7.7 Limitation on Optional Payments and Modifications of
Debt Instruments and Other Agreements 49
7.8 Limitation on Transactions with Affiliates 49
7.9 Limitation on Sales and Leasebacks 49
7.10 Limitation on Changes in Fiscal Year 49
7.11 Limitation on Lines of Business 49
7.12 Constituent Documents 49
7.13 Limitation on Restrictions Affecting Subsidiaries 50
7.14 Creation of Subsidiaries 50
7.15 Hazardous Materials 50
7.16 New Partners 50
7.17 Holding Companies 50
7.18 Actions by Permitted Joint Ventures 51
7.19 Hedging Transactions 51
7.20 ERISA Compliance 51
7.21 Financial Condition Covenants 51
SECTION 8. EVENTS OF DEFAULT 52
8.1 Events 52
8.2 Remedies 54
8.3 Right of Set-off 55
SECTION 9. CONDITIONS OF LENDING 56
9.1 Conditions to Initial Revolving Credit Loans and Letters of Credit 56
9.2 Conditions to Each Revolving Credit Loan and Letter of Credit 57
SECTION 10. THE AGENT 58
10.1 Appointment 58
10.2 Delegation of Duties 58
10.3 Exculpatory Provisions 59
10.4 Reliance by Agent 59
10.5 Notice of Default 59
10.6 Non-Reliance on Agent and Other Banks 60
10.7 Indemnification 60
10.8 Agent in Its Individual Capacity 61
10.9 Successor Agent 61
SECTION 11. MISCELLANEOUS 61
11.1 Notices 61
11.2 Amendments and Waivers 62
11.3 Invalidity 62
11.4 Successors and Assigns; Participations; Purchasing Banks 62
11.5 No Waiver; Cumulative Remedies 65
11.6 Payment of Expenses, Taxes and Indemnification 65
11.7 GOVERNING LAW 66
11.8 Several Obligations 66
11.9 Interest 66
11.10 Governmental Regulation 67
11.11 Entire Agreement 67
11.12 Exhibits 67
11.13 Titles of Sections and Subsections 67
11.14 Number of Documents 67
11.15 SUBMISSION TO JURISDICTION; WAIVERS 67
11.16 Interpretation 68
11.17 Counterparts 68
SCHEDULES
Schedule I - Revolving Credit Commitments
Schedule 5.7 - Investments
Schedule 5.10 - Titles, etc.
Schedule 5.19 - Subsidiaries
Schedule 5.21 - Utility
Schedule 7.1 - Other Debt
Schedule 7.2 - Other Liens
Schedule 7.8 - Transactions with Affiliates
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B-1 - Xxxxx & Xxxxx Opinion
Exhibit B-2 - Opinion of Xxxxxxx X. Xxxxxxxx, Esq.
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Commitment Transfer Supplement
CREDIT AGREEMENT dated as of July 28, 1999 among Enterprise Products
Operating L.P., a Delaware limited partnership (the "Company"), the several
banks from time to time parties hereto (collectively, the "Banks"; individually,
a "Bank"), The Chase Manhattan Bank, BankBoston, N.A., The Bank of Nova Scotia,
The First National Bank of Chicago, Societe Generale, Southwest Agency and First
Union National Bank, as Co-Arrangers, The First National Bank of Chicago, as
Documentation Agent, The Bank of Nova Scotia, as Syndication Agent, and The
Chase Manhattan Bank ("Chase"), as administrative agent for the Banks hereunder
(in such capacity, the "Agent"), with First Union Capital Markets acting as
Managing Agent and Chase Securities Inc. acting as Lead Arranger and Book
Manager.
W I T N E S S E T H:
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms have the
following meanings:
"Affiliate": any Person (other than a Subsidiary) which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
the Company. For purposes of this definition, a Person shall be deemed to be
"controlled by" the Company if the Company possesses, directly or indirectly,
power either to (i) vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (ii) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Aggregate L/C Outstandings": at a particular time, the sum of (a) the
aggregate amount then available to be drawn under all outstanding Letters of
Credit issued for the account of the Company plus (b) the aggregate amount of
any payments made by the Agent under any Letter of Credit for the account of the
Company that have not been reimbursed by the Company pursuant to subsection 3.5.
"Agreement": this Credit Agreement, as amended, supplemented or modified
from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate
in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Agent as its prime rate in effect at its
principal office in New York City (each change in the Prime Rate to be effective
on the date such change is publicly announced); "Base CD Rate" shall mean the
sum of (a) the product of (i) the Three-Month Secondary CD Rate and (ii) a
fraction, the numerator of which is one and the denominator of which is one
minus the C/D Reserve Percentage and (b) the C/D Assessment Rate; "Three-Month
Secondary CD Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such day (or,
if such day shall not be a Business Day, the next preceding Business Day) by the
Board of Governors of the Federal Reserve System (the "Board") through the
public information telephone line of the Federal Reserve Bank of New York (which
rate will, under the current practices of the Board, be published in Federal
Reserve Statistical Release H.15(519) during the week following such day), or,
if such rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York City received at
approximately 10:00 A.M., New York City time, on such day (or, if such day shall
not be a Business Day, on the next preceding Business Day) by the Agent from
three New York City negotiable certificate of deposit dealers of recognized
standing selected by it; and "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Agent from three federal funds brokers of recognized standing selected by it. If
for any reason the Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base CD
Rate or the Federal Funds Effective Rate, or both, for any reason, including the
inability or failure of the Agent to obtain sufficient quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined without
regard to clause (b) or (c), or both, of the first sentence of this definition,
as appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective Rate shall be
effective on the effective day of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Alternate Base Rate.
"Applicable Margin": for each Revolving Credit Loan, the rate per annum set
forth below:
(a) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company shows that the
Total Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was
less than or equal to 1.5 to 1, then the Applicable Margin, during the
period beginning on (and including) the date on which such Applicable
Margin Certificate was delivered by the Company to the Banks and ending on
(and excluding) the date on which the next Applicable Margin Certificate is
delivered by the Company to the Banks pursuant to subsection 6.1(c), shall
be (i) with respect to Alternate Base Rate Loans, 0% and (ii) with respect
to Eurodollar Loans, .75%; and
(b) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company shows that the
Total Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was
greater than 1.5 to 1 and less than or equal to 2.0 to 1, then the
Applicable Margin, during the period beginning on (and including) the date
on which such Applicable Margin Certificate was delivered by the Company to
the Banks and ending on (and excluding) the date on which the next
Applicable Margin Certificate is delivered by the Company to the Banks
pursuant to subsection 6.1(c), shall be (i) with respect to Alternate Base
Rate Loans, 0% and (ii) with respect to Eurodollar Loans, 1.00%;
(c) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company shows that the
Total Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was
greater than 2.0 to 1 and less than or equal to 2.5 to 1, then the
Applicable Margin, during the period beginning on (and including) the date
on which such Applicable Margin Certificate was delivered by the Company to
the Banks and ending on (and excluding) the date on which the next
Applicable Margin Certificate is delivered by the Company to the Banks
pursuant to subsection 6.1(c), shall be (i) with respect to Alternate Base
Rate Loans, 0.25% and (ii) with respect to Eurodollar Loans, 1.25%;
(d) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company shows that the
Total Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was
greater than 2.5 to 1, then the Applicable Margin, during the period
beginning on (and including) the date on which such Applicable Margin
Certificate was delivered by the Company to the Banks and ending on (and
excluding) the date on which the next Applicable Margin Certificate is
delivered by the Company to the Banks pursuant to subsection 6.1(c), shall
be (i) with respect to Alternate Base Rate Loans, .50% and (ii) with
respect to Eurodollar Loans, 1.50%;
provided if the Company shall fail to deliver the Applicable Margin
Certificate by the end of the fiscal quarter in which it is required, the
Applicable Margin for the next fiscal quarter shall be as provided in
clause (d) above; provided, further, that the Applicable Margin for the
period from the Closing Date until (and excluding) the date on which the
Company delivers to the Banks the Applicable Margin Certificate for the
fiscal quarter of the Company ended September 30, 1999, shall be, with
respect to Alternative Base Rate Loans, .50%, and with respect to
Eurodollar Loans, 1.50%; provided, further, that when the Company or the
Limited Partner receives a senior unsecured debt rating of at least BBB-
from Standard & Poor's Ratings Services, a division of XxXxxx-Xxxx, Inc.
("Standard & Poor's"), and a debt rating of at least Baa3 from Xxxxx'x
Investors Service, Inc. ("Moody's"), the Applicable Margin with respect to
Eurodollar Loans shall be reduced by .125%; and, in the event the senior
unsecured debt rating is greater than BBB- from Standard & Poor's and Baa3
from Moody's, the Applicable Margin with respect to Eurodollar Loans shall
be reduced by .250%. Each such reduction shall be effective on the next
Business Day following the date the applicable rating is achieved and shall
be reversed on the next Business Day following any downgrade of any one of
the ratings below the levels aforementioned.
"Applicable Margin Certificate": as defined in subsection 6.1(c).
"Application": an application, in such form as the Agent may specify from
time to time, requesting the Agent to open a Letter of Credit.
"Available Investment Revolving Credit Commitment": as to any Bank, at a
particular time, an amount equal to the difference between (a) the amount of
such Bank's Investment Revolving Credit Commitment at such time and (b) such
Bank's Investment Revolving Extensions of Credit at such time.
"Available Revolving Credit Commitment": as to any Bank, at a particular
time, an amount equal to the sum of the Available Investment Revolving Credit
Commitment of such Bank and the Available Working Capital Revolving Credit
Commitment of such Bank.
"Available Working Capital Revolving Credit Commitment": as to any Bank, at
a particular time, an amount equal to the difference between (a) the amount of
such Bank's Working Capital Revolving Credit Commitment at such time and (b)
such Bank's Working Capital Loans outstanding at such time.
"BEF Credit Agreement": the Amended and Restated Credit Agreement, dated as
of August 16, 1995, among Belvieu Environmental Fuels, the financial
institutions and other lenders from time to time parties thereto, Chemical Bank,
now known as The Chase Manhattan Bank, as agent, as amended, supplemented or
otherwise modified from time to time.
"BEF Participation": the interest of the Company in the loans outstanding
under the BEF Credit Agreement.
"Borrowing Date": any Business Day specified by the Company as the Company
requests the Banks to make Revolving Credit Loans thereunder.
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to close.
"C/D Assessment Rate": for any day as applied to any Revolving Credit Loan,
the annual assessment rate (rounded upward to the nearest 1/100th of 1%)
estimated by the Agent to be the then current net annual assessment rate payable
on such day to the Federal Deposit Insurance Corporation or any successor
("FDIC") for FDIC's insuring time deposits made in Dollars at offices of Chase
in the United States.
"C/D Reserve Percentage": for any day as applied to any Revolving Credit
Loan, that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board of Governors of the Federal Reserve System (or any
successor), for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding one billion
Dollars in respect of new non-personal time deposits in Dollars in New York City
having a maturity of 60 days.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing. In addition, with
respect to the Company, "Capital Stock" shall include the limited partner
interests of the Company and the General Partner Interests and, with respect to
the Limited Partner, "Capital Stock" shall include the Units and the general
partner interest of the Limited Partner.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601, et seq.
"Change of Control": any of the following events:
(i) Xxx Xxxxxx (his wife, descendants and trusts for the benefit of
his wife and/or descendants and the heirs, legatees and distributees of his
estate) shall cease to own, directly or indirectly, (A) at least 51% (on a
fully converted, fully diluted basis) of the economic interest in the
Capital Stock of EPCO or (B) an aggregate number of shares of Capital Stock
of EPCO sufficient to elect a majority of the board of directors of EPCO;
(ii) EPCO shall cease to own 100% of the issued and outstanding
Capital Stock of EPC Partners II, Inc. ("EPC II");
(iii) EPC II (or another wholly owned Subsidiary of EPCO) shall cease
to own at least 65% of the outstanding membership interests in the General
Partner;
(iv) EPC II shall fail to own at least a majority of the outstanding
Common Units;
(v) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), excluding EPC II and further excluding Shell Oil Company and any of
its Affiliates acquiring or owning an interest in any of the special units
of the Limited Partner (or the Common Units into which any of such special
units are converted) issued by the Limited Partner in connection with the
Tejas Acquisition, shall become, or obtain rights (whether by means of
warrants, options or otherwise) to become, the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of more than 20% of the outstanding Common Units;
(vi) the General Partner shall cease to be the general partner of the
Limited Partner or the Company; or
(vii) the Limited Partner shall cease to be the sole limited partner
of the Company.
"Chase": The Chase Manhattan Bank and its successors and assigns.
"Closing": the consummation of the transactions contemplated by this
Agreement to occur upon the initial satisfaction or waiver of the conditions
precedent set forth in subsection 9.1.
"Closing Date": the date on which the conditions set forth in subsection
9.1 shall have been satisfied or waived.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Commercial Letters of Credit": the commercial documentary letters of
credit, payable in Dollars, to be issued by the Agent hereunder for the account
of the Company in accordance with subsection 3.2.
"Commitment Percentage": as to any Bank at any time, the percentage which
such Bank's Revolving Credit Commitment then constitutes of the aggregate
Revolving Credit Commitments (or, at any time after the Revolving Credit
Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Bank's Revolving Extensions of Credit then outstanding
constitutes of the aggregate principal amount of the Revolving Extensions of
Credit then outstanding).
"Commitment Period": the period from and including the Closing Date to but
not including the Revolving Credit Commitment Termination Date, or such earlier
date on which the Revolving Credit Commitment shall terminate as provided
herein.
"Commitment Transfer Supplement": a commitment transfer supplement,
substantially in the form of Exhibit D.
"Common Units": the common units of limited partner interests in the
Limited Partner.
"Commonly Controlled Entity": an entity, whether or not incorporated, which
is under common control with the Company within the meaning of Section 4001 of
ERISA.
"Consolidated Interest Expense": for any period, total interest expense
(including that attributable to capital lease obligations) of the Company and
its Subsidiaries for such period with respect to all outstanding Debt of the
Company and its Subsidiaries (including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under any hedging agreements to the
extent such net costs are allocable to such period in accordance with GAAP).
"Consolidated Net Income": for any period, the consolidated net income of
the Company and its Subsidiaries for such period after all applicable taxes on
income and profits payable by the Company as determined on a consolidated basis
in accordance with GAAP.
"Consolidated Tangible Net Worth": at any date of determination, the sum of
preferred stock (if any), par value of common stock, capital in excess of par
value of common stock, partners' capital, and retained earnings, less treasury
stock (if any), less goodwill, cost in excess of net assets acquired, deferred
development costs and all other assets as are not properly classified as
tangible assets, all as determined on a consolidated basis.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or undertaking to which
such Person is a party or by which it or any of its property is bound.
"Debt": of any Person, without duplication: (i) all obligations of such
Person for borrowed money; (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments or by any other securities
providing for the mandatory payment of money (including, without limitation,
preferred stock subject to mandatory redemption or sinking fund provisions);
(iii) all obligations of such Person to pay the deferred purchase price of
Property or services, except (a) trade accounts payable in the ordinary course
of business and (b) obligations pursuant to minimum requirement contracts;
(iv) all obligations of such Person as lessee under Financing Leases; (v) all
obligations of such Person to purchase securities (or other Property) which
arise out of or in connection with the sale of the same or substantially similar
securities or Property, excluding time exchanges of Product; (vi) all
obligations of such Person in respect of letters of credit, banker's
acceptances, or similar obligations issued or created for the account of such
Person; (vii) all Guarantee Obligations of such Person in respect of obligations
of the kind referred to in clauses (i) through (vi) above; and (viii) unfunded
vested benefits under each Plan; provided that, with respect to any Subsidiary,
"Debt" also includes any preferred stock of such Subsidiary which is not owned
directly or indirectly by the Company valued at the higher of its voluntary or
involuntary liquidation value.
"Default": any of the events specified in subsection 8.1, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Lending Office": initially, the office of each Bank designated as
such in Schedule I; thereafter, such other office of such Bank, if any, located
within the United States which shall be making or maintaining Alternate Base
Rate Loans.
"EBITDA": shall mean, for any period, the sum (without duplication) of (i)
operating income of the Company, and its consolidated Subsidiaries for such
period plus (ii) depreciation and amortization for such period to the extent not
already included in the calculation of operating income plus (iii) interest
income during such period (excluding interest income in respect of the BEF
Participation and the MBA Participation), plus (iv) cash distributions or
dividends received by the Company during such period from unconsolidated
entities (including, without limitation, unconsolidated Permitted Joint
Ventures), plus (v) other cash income received by the Company during such
period, plus (vi) interest and principal payments received by the Company with
respect to the BEF Participation and the MBA Participation, minus (vii)
operating lease expense for such period to the extent not already deducted in
the calculation of operating income, determined in each case, on a consolidated
basis in accordance with GAAP, provided, however EBITDA (x) will not include any
extraordinary, unusual or non-recurring gains or losses from asset sales and (y)
will be adjusted from time to time for cash flows from acquisitions, which cash
flows shall be added on a pro forma basis to each of the prior four fiscal
quarters.
"Environmental Complaint": any complaint, order, citation, notice or other
written communication from any Governmental Authority with respect to the
existence or alleged existence of a violation of any Requirement of Law or legal
liability resulting from any air emission, water discharge, noise emission,
asbestos, Hazardous Substance at, upon, under or within any of the property
owned, operated or used by the Company or any of its Subsidiaries.
"EPCO": Enterprise Products Company, a Texas corporation.
"EPCO Credit Agreement": as defined in subsection 9.1(g).
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
and as in effect from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a Eurodollar
Loan, the aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto), dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate": with respect to any Eurodollar Loan for any
Interest Period, the rate per annum equal to the average (rounded upwards to the
nearest whole multiple of one sixteenth of one percent) of the rate at which
Chase's Eurodollar Lending Office is offered Dollar deposits two Working Days
prior to the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations of such
Eurodollar Lending Office are customarily conducted at or about 10:00 A.M.,
New York City time, for delivery on the first day of such Interest Period for
the number of days comprised therein.
"Eurodollar Lending Office": initially, the office of each Bank designated
as such in Schedule I; thereafter, such other office of such Bank, if any, which
shall be making or maintaining Eurodollar Loans.
"Eurodollar Loans": Revolving Credit Loans hereunder at such time as they
are made and/or being maintained at a rate of interest based upon the Eurodollar
Rate.
"Eurodollar Rate": with respect to any Eurodollar Loan for any Interest
Period, a rate per annum determined for such day in accordance with the
following formula (rounded upwards to the nearest whole multiple of 1/100th of
one percent):
Eurodollar Base Rate 1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans having
the same Interest Period (whether or not originally made on the same day).
"Event of Default": any of the events specified in subsection 8.1, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, event or act has been satisfied.
"Excepted Liens": (i) Liens for taxes, assessments or other governmental
charges or levies not yet due or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the Company in conformity with GAAP; (ii) pledges
or deposits in connection with workers' compensation, unemployment insurance or
other social security, old age, disability or similar legislation; (iii) legal
or equitable encumbrances deemed to exist by reason of negative pledge or
negative mortgage covenants (such as that made in subsection 7.2 hereof) and
other covenants or undertakings of like nature; (iv) legal or equitable
encumbrances deemed to exist by reason of the existence of any litigation or
other legal proceeding or arising out of a judgment or award with respect to
which an appeal is being prosecuted (for so long as the Properties subject to
such encumbrances are not subject to levy or other enforcement action, due to
the posting of a bond to gain stay of execution or for any other appropriate
reason); (v) vendors', carriers', warehousemen's, repairmen's, mechanics',
workmen's, materialmen's, construction or other like Liens arising by operation
of law in the ordinary course of business or incident to the construction or
improvement of any Property in respect of obligations which are not yet due or
which are being contested in good faith by appropriate proceedings by or on
behalf of the Company or any Subsidiary, provided that adequate reserves with
respect thereto are maintained on the books of the Company in conformity with
GAAP; (vi) easements, restrictions, rights of way and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Company; (vii) Liens securing the purchase price
of automobiles, office equipment or other equipment of the Company or any
Subsidiary, provided that (A) such Lien shall not extend to or cover any other
Property of the Company or any Subsidiary, and (B) the principal amount of the
borrowing secured by any such Lien shall at no time exceed 80% of the purchase
price of the automobiles, office equipment or other equipment acquired; and
(viii) precautionary filings of financing statements under the applicable
Uniform Commercial Code made by (A) a lessor with respect to personal property
leased to the Company or a Subsidiary or (B) an owner of raw make or Product
with respect to raw make or Product being fractionated, processed, transported
or stored, as the case may be, by the Company or a Subsidiary.
"Existing Credit Agreement": the Credit Agreement dated as of July 27, 1998
(as amended and restated as of September 30, 1998), among the Company, The Chase
Manhattan Bank, as Agent, and the financial institutions parties thereto, as
amended, modified or supplemented to and including the Closing Date.
"Facilities": those assets comprising the liquid hydrocarbon fractionation
plants and related equipment located near Mont Belvieu, Xxxxxxxx County, Texas,
including without limitation any and all personal property, tanks, machinery,
fixtures, appliances, pipes, valves, fittings, computers and all equipment and
materials relating thereto or used in connection therewith, electrical
equipment, meters, gauges, monitors, and any other equipment or material of any
nature whatsoever used in the fractionation operation of such plants, together
with all alterations, additions, enlargements, revisions, substitutions or
replacements of any kind as may be constructed or acquired in connection with
such plants.
"Financing Lease": any lease of property, real or personal, the obligations
of the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"GAAP": generally accepted accounting principles in the United States of
America, consistently applied, and in force from time to time.
"General Partner": Enterprise Products GP, LLC, a Delaware limited
liability company.
"General Partner Interest": all general partner interests in the Company.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of such Person
guaranteeing or in effect guaranteeing any Debt, leases, dividends or other
obligations (the "primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent (a) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation shall be deemed to be the lower of (i) an amount equal to
the stated or determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made and (ii) the maximum amount for which the
guarantor may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount for
which such Person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such Person's maximum
reasonably anticipated liability in respect thereof as determined by the Company
in good faith.
"Hazardous Substance": as defined in subsection 6.2(c)(i).
"Indebtedness": at a particular time, any and all amounts owing or to be
owing, directly or indirectly, by the Company to the Agent or any of the Banks
in connection with this Agreement, the Revolving Credit Notes, the Letters of
Credit or any other Loan Documents.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the last
Business Day of each March, June, September and December, commencing on
September 30, 1999, (b) as to any one, two or three month Eurodollar Loan, the
last day of the Interest Period with respect thereto and (c) as to any six month
Eurodollar Loan, the date which is three months after the Borrowing Date or
conversion date with respect thereto and the last day of the Interest Period
with respect thereto.
"Interest Period": (a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to any Eurodollar Loans and
ending one, two, three or six months thereafter, as selected by the Company in
its notice of borrowing as provided in subsection 2.3 or its notice of
conversion as provided in subsection 4.4(a), as the case may be; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loans and ending one,
two, three or six months thereafter, as selected by the Company by irrevocable
notice to the Agent not less than three Working Days prior to the last day of
the then current Interest Period with respect to such Eurodollar Loans; provided
that, all of the foregoing provisions relating to Interest Periods are subject
to the following:
(i) if any Interest Period would otherwise end on a day which is
not a Working Day, that Interest Period shall be extended to the next
succeeding Working Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Working
Day;
(ii) no Interest Period shall extend beyond the Revolving Credit
Commitment Termination Date;
(iii) if the Company shall fail to give notice as provided above,
the Company shall be deemed to have selected an Alternate Base Rate
Loan to replace the affected Eurodollar Loan;
(iv) any Interest Period that begins on the last Working Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Working Day of a calendar month; and
(v) the Company shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Investment": as applied to any Person, any direct or indirect purchase or
other acquisition by such Person of stock or other securities of or any
partnership interest in any other Person, or any direct or indirect loan,
advance or capital contribution by such Person to any other Person, including
all Debt and accounts receivable from such other Person which are not current
assets or did not arise from sales to such other Person in the ordinary course
of business, and any direct or indirect purchase or other acquisition by such
Person of any assets (other than any acquisition of assets in the ordinary
course of business).
"Investment Revolving Credit Commitment": as to any Bank, its obligation to
make Investment Revolving Credit Loans pursuant to subsection 2.1(b) in an
aggregate principal amount not to exceed the amount set forth opposite such
Bank's name in Schedule I under the caption "Investment Revolving Credit
Commitment", as the same may be reduced pursuant to subsection 2.4,
collectively, as to all the Banks, the "Investment Revolving Credit
Commitments". The original aggregate amount of the Investment Revolving Credit
Commitments is $300,000,000.
"Investment Revolving Credit Loan" and "Investment Revolving Credit Loans":
as defined in subsection 2.1(b).
"Investment Revolving Extensions of Credit": as to any Bank at any time, an
amount equal to the sum of (a) the aggregate principal amount of all Investment
Revolving Credit Loans made by such Bank then outstanding and (b) such Bank's
Commitment Percentage of the Aggregate L/C Outstandings then outstanding.
"Letters of Credit": the collective reference to the Commercial Letters of
Credit and the Standby Letters of Credit.
"Lien": with respect to any assets, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset. For the
purposes of this Agreement, a Person shall be deemed to own subject to a Lien
any asset which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, Financing Lease or other title
retention agreement relating to such asset.
"Limited Partner": Enterprise Products Partners L.P., a Delaware limited
partnership.
"Loan Documents": this Agreement and the Revolving Credit Notes and the
Letters of Credit, as any of such agreements may be amended or supplemented from
time to time.
"Management Agreement": the EPCO Agreement, dated as of July 31, 1998,
between EPCO, the General Partner, the Limited Partner and the Company as
amended, modified or supplemented from time to time in accordance with
subsection 7.8.
"Material Adverse Effect": any material adverse effect on (i) the business,
operations, property, condition (financial or otherwise) or prospects of the
Company and its Subsidiaries taken as a whole, (ii) the ability of the Company
and its Subsidiaries taken as a whole to meet its obligations under or in
respect of the Loan Documents or the Letters of Credit on a timely basis or
(iii) the validity or enforceability of the Loan Documents or the Letters of
Credit or the rights and remedies of the Banks hereunder or thereunder.
"Material Environmental Amount": an amount payable by the Company and/or
its Subsidiaries in excess of $15,000,000 for remedial costs, compliance costs,
compensatory damages, punitive damages, fines, penalties or any combination
thereof.
"Maximum Rate": as defined in subsection 11.9(a).
"MBA Participation": the interest of the Company in the loans outstanding
under the Multiple Draw Term Loan Agreement, dated as of July 19, 1996, among
Mont Belvieu Associates, the financial institutions and other lenders from time
to time parties thereto and The Chase Manhattan Bank, as agent, as amended,
supplemented or otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA.
"Participants": as defined in subsection 11.4(b).
"Partnership Agreement": the Agreement of Limited Partnership of the
Company among the General Partner and the Limited Partner substantially in the
form previously provided to the Banks, as amended, modified and supplemented
from time to time in accordance with subsection 7.7.
"PBGC": the Pension Benefit Guaranty Corporation or any successor
established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Joint Ventures": any arrangement (including, without limitation,
a partnership, limited liability company, corporation or association but
excluding any such entity which had or has securities that are publicly traded)
whereby the Company and/or one or more of its Subsidiaries on the one hand, and
a Person or Persons other than the Company, an Affiliate of the Company or any
of its Subsidiaries, on the other, directly or indirectly hold interests in an
asset or group of assets (the "JV Assets") that are being operated or are
proposed to be operated by one or more of such holders for the accounts of all
such holders in accordance with the terms of an operating agreement, ownership
agreement, corporate charter, articles of association, partnership agreement or
other customary similar type arrangement among such holders; provided that (a)
the operation of the JV Assets shall at all times constitute a business similar
to the businesses being conducted by the Company and its Subsidiaries at the
inception of the arrangement and (b) the relative ownership interests in the JV
Assets bear a reasonable relationship to the relative capital contributions of
the participations and their respective partnerships in the operation of the JV
Assets.
"Person": any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof, or any other form of entity.
"Plan": at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Company, any Subsidiary or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Product": all oil, gas and/or other hydrocarbons and petroleum products
and by-products, whether in liquid or gaseous form, now owned or hereafter
acquired by the Company or any Subsidiary including, without limitation,
propane, commercial butane, normal butane, isobutane and ethane.
"Property": any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible.
"Purchasing Banks": as defined in subsection 11.4(c).
"Register": as defined in subsection 11.4(d).
"Reimbursement Obligation": an obligation of the Company to reimburse the
Agent pursuant to subsection 3.4.
"Release": as defined in subsection 6.2(c)(i).
"Relevant Environmental Laws": all Requirements of Law from time to time
applicable to any property owned, operated or used by the Company or any of its
Subsidiaries or any part thereof with respect to (a) the installation, existence
or removal of asbestos; (b) the existence, discharge or removal of Hazardous
Substances; (c) air emissions, water discharges, noise emissions and any other
environmental, health or safety matters; and (d) effects on the environment of
any of such properties or any part thereof or of any activity heretofore, now or
hereafter conducted on any of such properties.
"Required Banks": the holders of more than 50% of the Revolving Credit
Commitments or, if the Revolving Credit Commitments have been terminated, the
aggregate principal amount of all Revolving Extensions of Credit made by all of
the Banks then outstanding.
"Requirement of Law": as to any Person, the Certificate of Incorporation
and By-Laws, partnership agreement, limited liability company agreement or other
organizational or governing documents of such Person, and any law, statute,
code, ordinance, order, rule, regulation, judgment, decree, injunction,
franchise, permit, certificate, license, authorization or other direction or
requirement (including, without limitation, any of the foregoing which relate to
environmental standards or controls, energy regulations and occupational, safety
and health standards or controls) of any (domestic or foreign) federal, state,
county, municipal or other government, department, commission, board, court,
agency or any other instrumentality of any of them, in each case applicable to
or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": with respect to the Company, the Chairman of the
Board, chief executive officer, President, the chief operating officer or any
Executive, Senior or other Vice President or, with respect to financial matters,
the chief financial officer.
"Revolving Credit Commitment": as to any Bank, the sum of its Investment
Revolving Credit Commitment and its Working Capital Revolving Credit Commitment,
collectively, as to all the Banks, the "Revolving Credit Commitments".
"Revolving Credit Commitment Termination Date": July 28, 2001 as the same
may be extended pursuant to subsection 2.4.
"Revolving Credit Loan" and "Revolving Credit Loans": the individual or
collective reference to the Investment Revolving Credit Loans and the Working
Capital Revolving Credit Loans.
"Revolving Credit Note" and "Revolving Credit Notes": as defined in
subsection 2.2.
"Revolving Extensions of Credit": as to any Bank at any time, an amount
equal to the sum of (a) the Investment Revolving Extensions of Credit of such
Bank and (b) the aggregate principal amount of all Working Capital Revolving
Credit Loans made by such Bank then outstanding.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA but
which is not a Multiemployer Plan.
"Standby Letters of Credit": the standby letters of credit, payable in
Dollars, to be issued by the Agent for the account of the Company in accordance
with subsection 3.2.
"Subordinated Units": the subordinated units of limited partner interests
in the Limited Partner.
"Subsidiary": any corporation, limited liability company or partnership of
which more than 50% of the issued and outstanding securities or interests having
ordinary voting power for the election of directors (or persons having similar
authority) is owned or controlled, directly or indirectly, by the Company and/or
one or more of its Subsidiaries.
"Tejas Acquisition": the acquisition by the Company directly or indirectly
of the natural gas processing assets and other midstream assets of Tejas Natural
Gas Liquids, LLC.
"Taxes": as defined in subsection 4.12.
"Total Indebtedness/EBITDA Ratio": shall mean, for any fiscal quarter of
the Company, the ratio of Debt of the Company and its Subsidiaries as of the
last day of such fiscal quarter to EBITDA for the 12-month period ended on the
last day of such fiscal quarter.
"Transferee": as defined in subsection 11.4(f).
"Type": as to any Revolving Credit Loan, its nature as an Alternate Base
Rate Loan or Eurodollar Loan.
"Units": the collective reference to the Common Units and the Subordinated
Units.
"Working Capital Revolving Credit Commitment": as to any Bank, its
obligation to make Working Capital Revolving Credit Loans pursuant to subsection
2.1(a) in an aggregate principal amount not to exceed the amount set forth
opposite such Bank's name in Schedule I under the caption "Working Capital
Revolving Credit Commitment", as the same may be reduced pursuant to subsection
2.4, collectively, as to all the Banks, the "Working Capital Revolving Credit
Commitments". The original aggregate amount of the Working Capital Revolving
Credit Commitments is $50,000,000.
"Working Capital Revolving Credit Loan" and "Working Capital Revolving
Credit Loans": as defined in subsection 2.1(a).
"Working Day": any Business Day on which dealings in foreign currencies and
exchange between banks may be carried on in London, England.
1.2 Other Definitional Provisions . (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used in
the Revolving Credit Notes or any certificate or other documents made or
delivered pursuant hereto.
(b) Where the character or amount of any asset or liability or item of
income or expense or capital expenditures is required to be determined or
any consolidation or other accounting computation is required to be made
for the purposes of this Agreement, this shall be done in accordance with
GAAP applied on a basis consistent with those reflected by the Financial
Statements, except where such principles are inconsistent with the
requirements of this Agreement. All determinations of financial amounts on
the consolidated basis of the Company and its Subsidiaries shall make due
allowance for any minority stock interest in the Subsidiaries.
(c) The Agent shall make such minor technical adjustments among the
Banks as may be necessary or appropriate with respect to the allocation of
final loans or repayments among the Banks in order that such loans and
repayments of the Revolving Credit Loans, the Letters of Credit or other
Indebtedness, which shall have been divided among the Banks on the basis of
their Commitment Percentages, correspond exactly to the loans or repayments
of the Revolving Credit Loans, the Letters of Credit or other Indebtedness
severally due from or to each Bank.
(d) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT LOANS
2.1 Revolving Credit Commitments. (a) Subject to the terms and conditions
hereof, each Bank severally agrees to make revolving credit loans (individually,
a "Working Capital Revolving Credit Loan" and, collectively, the "Working
Capital Revolving Credit Loans") to the Company from time to time during the
Commitment Period, in an aggregate principal amount at any one time outstanding
not to exceed the Working Capital Revolving Credit Commitment of such Bank, as
such amount may be reduced as provided herein. During the Commitment Period the
Company may use the Working Capital Revolving Credit Commitments by borrowing,
prepaying the Working Capital Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) Subject to the terms and conditions hereof, each Bank severally
agrees to make revolving credit loans (individually, an "Investment
Revolving Credit Loan" and, collectively, the "Investment Revolving Credit
Loans") to the Company from time to time during the Commitment Period, in
an aggregate principal amount at any one time outstanding which, when added
to such Bank's Commitment Percentage of the Aggregate L/C Outstandings then
outstanding, shall not exceed the Investment Revolving Credit Commitment of
such Bank, as such amount may be reduced as provided herein. During the
Commitment Period the Company may use the Investment Revolving Credit
Commitments by borrowing, prepaying the Investment Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(c) The Revolving Credit Loans may be (i) Eurodollar Loans, (ii)
Alternate Base Rate Loans or (iii) a combination thereof, as determined by
the Company and notified to the Agent in accordance with subsections 2.3
and 4.4; provided that no Revolving Credit Loans shall mature after the
Revolving Credit Termination Date.
(d) The Company shall repay all Revolving Credit Loans on the
Revolving Credit Commitment Termination Date.
2.2 Revolving Credit Notes . Upon request of any Bank, the Working Capital
Revolving Credit Loans and/or the Investment Revolving Credit Loans made by such
Bank shall be evidenced by a promissory note or notes of the Company,
substantially in the form of Exhibit A (individually, a "Revolving Credit Note"
and, collectively, the "Revolving Credit Notes") with appropriate insertions
therein, payable to the order of such Bank. Each Bank is hereby authorized to
record the date, type and amount of each Revolving Credit Loan made or converted
by such Bank, the date and amount of each payment or prepayment of principal
thereof, and in the case of Eurodollar Loans, the Interest Period and interest
rate with respect thereto, on the schedule annexed to and constituting a part of
its Revolving Credit Note, which recordation shall constitute prima facie
evidence of the accuracy of the information so recorded; provided that the
failure by any such Bank to make any such recordation on its Revolving Credit
Note shall not affect any of the obligations of the Company under such Revolving
Credit Note or this Agreement.
2.3 Procedure for Borrowing under Revolving Credit Commitments. The
Company may borrow under either the Working Capital Revolving Credit Commitment
or the Investment Revolving Credit Commitment during the Commitment Period on
any Working Day if the borrowing is a Eurodollar Loan or on any Business Day if
the borrowing is an Alternate Base Rate Loan; provided that the Company shall
give the Agent irrevocable notice (which notice must be received by the Agent
prior to 10:00 A.M., New York City time) (a) three Working Days prior to the
requested borrowing date, in the case of Eurodollar Loans and (b) one Business
Day prior to the requested borrowing date, in the case of Alternate Base Rate
Loans, specifying (i) the amount to be borrowed, (ii) the requested borrowing
date, (iii) whether the borrowing is to be Working Capital Revolving Credit
Loans or Investment Revolving Credit Loans, (iv) whether the borrowing is to be
a Eurodollar Loan, an Alternate Base Rate Loan or a combination thereof and (v)
if the loan is to be entirely or partly a Eurodollar Loan, the length of the
Interest Period for such Eurodollar Loan. Upon receipt of such notice, the Agent
shall notify each Bank thereof promptly, but in any case by 5:00 p.m. of the
same day such notice is received. Each borrowing pursuant to either the Working
Capital Revolving Credit Commitments or the Investment Revolving Credit
Commitments shall be in an aggregate principal amount of (a) $1,000,000 or a
whole multiple of $500,000 in excess thereof in the case of Eurodollar Loans and
(b) in the case of Alternate Base Rate Loans, the lesser of (i) $1,000,000 or a
whole multiple of $500,000 in excess thereof and (ii) the sum of the then
Available Working Capital Revolving Credit Commitments, in the case of
borrowings of Working Capital Revolving Credit Loans, or the then Available
Investment Revolving Credit Commitments, in the case of borrowings of Investment
Revolving Credit Loans. Not later than 12:00 noon, New York City time, on the
date specified in such notice, each Bank shall make available to the Agent at
its office specified in subsection 11.1, in immediately available funds, the
amount then to be loaned by it. Proceeds of Revolving Credit Loans received by
the Agent shall be made available to the Company at the office of the Agent
specified in subsection 11.1 by crediting the Company's account on the books of
such office with the aggregate of the amounts made available to the Agent by the
Banks and in like funds as received by the Agent.
2.4 Termination, Reduction or Extension of Revolving Credit Commitments .
(a) The Company shall have the right, upon not less than five Business Days'
notice to the Agent, to terminate the Revolving Credit Commitments or, from time
to time, reduce the amount of the Revolving Credit Commitments. Any such
reduction shall be ratable among the Working Capital Revolving Credit
Commitments and the Investment Revolving Credit Commitments and no such
reduction shall be permitted to be an amount which is less than the aggregate
principal amount of the Working Capital Revolving Credit Loans, in the case of a
reduction of the Working Capital Revolving Credit Commitments, or the Investment
Revolving Credit Loans, in the case of a reduction of the Investment Revolving
Credit Commitments, then outstanding after giving effect to any contemporaneous
prepayment thereof. Upon receipt of such notice the Agent shall promptly notify
each Bank thereof. Any termination of the Revolving Credit Commitments shall be
accompanied by prepayment in full of the Revolving Credit Loans, together with
accrued interest thereon to the date of such prepayment. Any reduction of the
Working Capital Revolving Credit Commitments or the Investment Revolving Credit
Commitments (other than as a result of any mandatory prepayment) shall be in the
amount of $1,000,000 or any whole multiple of $500,000 in excess thereof and
shall reduce permanently the amount of the Working Capital Revolving Credit
Commitments or the Investment Revolving Credit Commitments, as the case may be,
then in effect. The Revolving Credit Commitments once terminated or reduced may
not be reinstated.
(b) The Company may on any day which is at least 60 and not more than 90
days prior to the Revolving Credit Commitment Termination Date in effect at such
time request by notice to the Agent and the Banks that the Revolving Credit
Commitment Termination Date be extended for an additional 364 day period
beginning on the Revolving Credit Commitment Termination Date then in effect. No
more than 30 days after receipt of any such extension request, each Bank shall
notify the Agent of its decision with respect thereto (as to which decision the
Agent shall promptly notify the Company). The Revolving Credit Commitment
Termination Date shall be so extended provided that (i) no Default or Event of
Default shall have occurred and is continuing at such time and (ii) the Company
shall have received the prior written consent of all the Banks for such
extension.
SECTION 3. LETTERS OF CREDIT
3.1 Letter of Credit Commitments . Subject to the terms and conditions
hereof, the Agent, on behalf of the Banks, and in reliance on the agreement of
the Banks set forth in subsection 3.3, agrees to issue Commercial Letters of
Credit and Standby Letters of Credit for the account of the Company on any
Business Day from and including the Closing Date to but not including the
Revolving Credit Commitment Termination Date (as the same may have been extended
at the time of issuance); provided that the Agent shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the
aggregate amount of the Available Investment Revolving Credit Commitments would
be less than zero or (ii) the Aggregate L/C Outstandings shall exceed
$10,000,000 until such time as all obligations under the Existing Credit
Agreement have been fully and finally paid in full and all commitments by the
Lenders hereunder have been finally terminated and thereafter, $40,000,000.
3.2 Issuance and Continuation of Letters of Credit. (a) The Company may
request the Agent to issue a Commercial Letter of Credit or a Standby Letter of
Credit for its account by delivering to the Agent at least four Business Days
prior to the proposed date of issuance at its address specified in subsection
11.1, an Application setting forth in such Application (i) the proposed issuance
date of such Letter of Credit, (ii) the face amount of such Letter of Credit and
(iii) such other information as may be requested in such Application. The
Company shall also provide such other certificates, documents and other papers
and information as the Agent may reasonably request. Upon receipt of such
Application, the Agent will notify each other Bank thereof and shall, subject to
the terms and conditions hereof, promptly open such Letter of Credit by issuing
the original of such Letter of Credit to the beneficiary thereof and by
furnishing a copy thereof to the Company. (b) Each Commercial Letter of Credit
and Standby Letter of Credit issued hereunder shall, among other things, (i) be
denominated in Dollars, (ii) provide for the payment of sight drafts when
presented for honor thereunder in accordance with the terms thereof and when
accompanied by the certificate described therein, (iii) have an expiry date
occurring not later than the Revolving Credit Commitment Termination Date, (iv)
not provide for its automatic extension beyond such expiry date, (v) be in form
and substance satisfactory to the Agent and (vi) be issued to a beneficiary
reasonably satisfactory to the Agent.
3.3 Participating Interests . Effective in the case of each Letter of
Credit as of the date of the opening thereof, each Bank severally agrees that it
shall be (or shall continue to be) unconditionally and irrevocably liable,
without regard to the occurrence of any Default or Event of Default, to the
extent of such Bank's Commitment Percentage, to reimburse the Agent on demand
for the amount of each draft paid by the Agent under such Letter of Credit to
the extent that such amount is not reimbursed by the Company pursuant to
subsection 3.4. Each such payment made by a Bank shall be treated as the
purchase by such Bank of a participating interest in such Company's
Reimbursement Obligation under subsection 3.4 in an amount equal to such
payment. Each Bank shall share on a pro rata basis (calculated by reference to
its participating interest from time to time in such Reimbursement Obligations)
in any interest which accrues pursuant to subsection 3.4. All amounts recovered
by the Agent or any Bank hereunder or under the other Loan Documents and which
are applied to the Reimbursement Obligations under subsection 3.4 shall be
distributed to the Banks in an amount equal to their respective pro rata shares
thereof (calculated as provided in the preceding sentence).
3.4 Reimbursement Obligation of the Company. In order to induce the Agent
to issue (or continue, as the case may be) the Letters of Credit and the Banks
to participate therein, the Company hereby agrees to reimburse the Agent (a)
unless such Reimbursement Obligation has been accelerated pursuant to Section 8,
on each date on which the Agent notifies the Company of the date and amount of a
draft presented under any Letter of Credit issued for its respective account and
paid by the Agent, for (i) the amount of such draft paid by the Agent on behalf
of the Banks under such Letter of Credit and (ii) the amount of any taxes, fees,
charges or other costs or expenses whatsoever incurred by the Agent or any Bank
in connection with any payment made by the Agent or any Bank under, or with
respect to, such Letter of Credit and (b) upon the acceleration of such
Reimbursement Obligation in accordance with subsection 8.2, for an amount equal
to the then maximum liability (whether direct or contingent) of the Agent and
the Banks under such Letter of Credit. Each such payment shall be made to the
Agent at the office of the Agent specified in subsection 11.1, in lawful money
of the United States of America and in immediately available funds. Interest on
any and all amounts remaining unpaid by the Company under this subsection 3.4
from the date such amounts become payable (whether at stated maturity, by
acceleration or otherwise) until payment in full shall be payable on demand of
the Agent at the fluctuating rate per annum equal to 2% above the Alternate Base
Rate.
3.5 Letter of Credit Payments. If any draft shall be presented for payment
under any Letter of Credit, the Agent shall promptly notify the Company of the
date and the amount of the draft presented for payment. If the Company fails to
reimburse the Agent as provided in subsection 3.4 by the close of business on
the date each such draft is paid by the Agent, the Agent shall promptly notify
each Bank thereof and of the date, the amount of the draft paid and such Bank's
ratable share thereof. No later than the close of business on the date such
notice is given, each Bank shall make available to the Agent, at its office
specified in subsection 11.1, in immediately available funds, such Bank's
ratable share of such draft. The responsibility of the Agent to the Company and
the Banks shall be only to determine that the documents (including each draft)
delivered under such Letter of Credit in connection with such presentment shall
be in conformity with such Letter of Credit. If any Bank's ratable share of a
draft presented for payment under any Letter of Credit is made available to the
Agent on a date after the date such draft is paid by the Agent, such Bank shall
pay to the Agent on demand an amount equal to the product of (i) the daily
average Federal Funds Effective Rate during such period as quoted by the Agent,
times (ii) the amount of such Bank's Commitment Percentage of such draft, times
(iii) a fraction the numerator of which is the number of days that elapse from
and including the date such draft is paid by the Agent to the date on which such
Bank's Commitment Percentage of such draft shall have become immediately
available to the Agent and the denominator of which is 360. A certificate of the
Agent submitted to any Bank with respect to any amounts owing under this
subsection 3.6 shall be conclusive, absent manifest error. If such Bank's
Commitment Percentage is not in fact made available to the Agent by such Bank
within three Business Days of the date such draft is paid by the Agent, the
Agent shall be entitled to recover such amount with interest thereon at the rate
per annum applicable to Alternate Base Rate Loans hereunder, on demand, from the
Company.
3.6 Increased Costs. If the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof or compliance by any Bank
with any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date hereof
shall either (i) impose, modify, assess or deem applicable any reserve, special
deposit, assessment or similar requirement against letters of credit issued by
the Agent or (ii) impose on the Agent or any Bank any other condition regarding
any Letter of Credit, and the result of any event referred to in clauses (i) or
(ii) above shall be to increase the cost to the Agent or any Bank of issuing or
maintaining such Letter of Credit, or its participation therein, as the case may
be (which increase in cost shall be the result of the Agent or any Bank's
reasonable allocation of the aggregate of such cost increases resulting from
such events), then, upon demand by the Agent or such Bank, the Company shall
promptly pay to the Agent or such Bank from time to time as specified by the
Agent or such Bank additional amounts which shall be sufficient to compensate
the Agent or such Bank for such increased cost, together with interest on each
such amount from the date demanded until payment in full thereof at the rate
provided in subsection 3.4. A certificate as to the fact and amount of such
increased cost incurred by the Agent or such Bank as a result of any event
showing in reasonable detail the basis for the calculation thereof submitted by
the Agent or any Bank to the Company, shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Revolving Credit Loans and all other amounts payable
hereunder.
3.7 Nature of Obligations; Indemnities. (a) The obligations of the Company
hereunder shall be absolute and unconditional under any and all circumstances
and irrespective of any set off, counterclaim or defense to payment which the
Company may have or had against the Agent, any Bank or any beneficiary of a
Letter of Credit, provided, however, that this provision shall be deemed a
waiver by the Company of the assertion of a compulsory counterclaim only to the
extent permitted by applicable law. The Company assumes all risks of the acts or
omissions of the users of the Letters of Credit. Neither the Agent nor any Bank
nor any of their respective correspondents shall be responsible: (i) for the
form, validity, sufficiency, accuracy, genuineness or legal effect of any
document specified in any of the applications for any of the Letters of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent, or forged; (ii) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any of the Letters of Credit or any of the rights or benefits
thereunder or proceeds thereof in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of any draft to bear
any reference or adequate reference to any of the Letters of Credit, or failure
of anyone to note the amount of any draft on the reverse of any of the Letters
of Credit or to surrender or to take up any of the Letters of Credit or to send
forward any such document apart from drafts as required by the terms of any of
the Letters of Credit, each of which provisions, if contained in a Letter of
Credit itself, it is agreed, may be waived by the Agent; (iv) for 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;
(v) for any error, neglect, default, suspension or insolvency of any
correspondents of the Agent; (v) for errors in translation or for errors in
interpretation of technical terms; (vii) for any loss or delay, in the
transmission or otherwise, of any such document or draft or of proceeds thereof;
(viii) for any misapplication by any beneficiary of any Letter of Credit of the
proceeds of a drawing of such Letter of Credit; or (ix) for any other
circumstances whatsoever in making or failing to make payment under a Letter of
Credit, except only that the Company shall have a claim against the Agent, and
the Agent shall be liable to the Company, to the extent, but only to the extent,
of any direct, as opposed to consequential, damages suffered by the Company
which the Company proves were caused by the Agent's willful misconduct or gross
negligence in determining whether documents presented under a Letter of Credit
comply with the terms of such Letter of Credit. None of the above shall affect,
impair or prevent the vesting of any of the rights or powers of the Agent or any
Bank. The Agent shall have the right to transmit the terms of the Letter of
Credit involved without translating them.
(b) In furtherance and extension and not in limitation of the specific
provisions hereinabove in this Section 3 set forth, (i) any action taken or
omitted by the Agent or by any of its correspondents under or in connection with
any of the Letters of Credit, if taken or omitted in good faith, shall be
binding upon the Company and shall not put the Agent or its correspondents under
any resulting liability to the Company and (ii) the Agent may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary; provided
that if the Agent shall receive written notification from both the beneficiary
of a Letter of Credit and the Company that sufficiently identifies (in the
opinion of the Agent) documents to be presented to the Agent which are not to be
honored, the Agent agrees that it will not honor such documents.
(c) The Company hereby agrees at all times to protect, indemnify and save
harmless each of the Agent, the Banks or their respective correspondents from
and against any and all claims, actions, suits and other legal proceedings, and
from and against any and all losses, claims, demands, liabilities, damages,
costs, charges, counsel fees and other expenses which they or any of them may,
at any time, sustain or incur by reason of or in consequence of or arising out
of the issuance of any of the Letters of Credit, except for losses and expenses
which the Company proves were caused by the willful misconduct or gross
negligence of an indemnified party; it being the intention of the parties that
this agreement shall be construed and applied to protect and indemnify each of
the Agent, the Banks and their respective correspondents against any and all
risks involved in the issuance of all of the Letters of Credit or participations
therein, all of which risks, whether or not foreseeable, being hereby assumed by
the Company, including, without limitation, any and all risks of all acts by any
Governmental Authority, domestic or foreign. The Agent and the Banks shall not,
in any way, be liable for any failure by the Agent or anyone else to pay a draft
drawn under any of the Letters of Credit as a result of any acts, whether
rightful or wrongful, of any Governmental Authority, or any other cause not
readily within their control or the control of their respective correspondents,
agents, or subagents. Without limiting the generality of the foregoing, the
Company shall reimburse the Agent and the Banks and their respective
correspondents and shall pay and indemnify the Agent, any Banks or its
correspondents against payment of, out-of-pocket costs and expenses, withholding
taxes, liabilities and damages (including, without limitation, reasonable
counsel fees) incurred or sustained by any of them in connection with any of the
Letters of Credit or by reason of any such failure to pay. Also, without
limiting the generality of the foregoing, the Company shall be responsible for,
and shall reimburse the Agent and the Banks forthwith upon its receipt of any
demand therefor, any and all commissions, fees and other charges paid or payable
by the Agent or any Bank to any foreign bank which shall be an advising bank or
a beneficiary of a Letter of Credit which shall, in reliance thereon, have
issued its own letter of credit in respect of obligations of the Company.
3.8 Purpose of the Letters of Credit . The Commercial Letters of Credit and
the Standby Letters of Credit shall be used for (i) the purpose of purchasing
imported Product and (ii) general business purposes in the ordinary course of
business or for such other purposes as may be approved by the Agent.
3.9 Applications. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO FINANCING FACILITIES
4.1 Optional Prepayments . (a) The Company may on the last day of the
relevant Interest Period if the Revolving Credit Loans to be prepaid are in
whole or in part Eurodollar Loans, or at any time and from time to time if the
Revolving Credit Loans to be prepaid are Alternate Base Rate Loans, prepay the
Revolving Credit Loans, in whole or in part, without premium or penalty, upon at
least (i) three Working Days' irrevocable notice, in the case of Eurodollar
Loans, and (ii) one Business Day's irrevocable notice, in the case of Alternate
Base Rate Loans, in each case to the Agent, specifying the date and amount of
prepayment and whether the payment is of Working Capital Revolving Credit Loans
or Investment Revolving Credit Loans and whether of Eurodollar Loans or
Alternate Base Rate Loans or a combination thereof, and if of a combination
thereof, the amount of prepayment allocable to each. Upon receipt of such notice
the Agent shall promptly notify each Bank thereof. If such notice is given, the
Company shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein, together with
accrued interest to such date on the amount prepaid.
(b) Each optional partial prepayment of the Revolving Credit Loans shall be
in an aggregate principal amount of $1,000,000 or a whole multiple of $1,000,000
in excess thereof. 4.2 Commitment Fees . The Company agrees to pay to the Agent,
for the account of each Bank, commitment fees with respect to the Revolving
Credit Commitment of such Bank for the period from and including the Closing
Date to and including the Revolving Credit Termination Date, calculated at the
following rates per annum on the average daily Available Revolving Credit
Commitment of such Bank for each day during the period for which the commitment
fee with respect to the Revolving Credit Commitments is being paid:
(i) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after June
30, 1999 shows that the Total Indebtedness/EBITDA Ratio on the last day of
such fiscal quarter was less than or equal to 1.5 to 1, then the commitment
fee for the Revolving Credit Commitment, during the period beginning on
(and including) the date on which such Applicable Margin Certificate was
delivered by the Company to the Banks and ending on (and excluding) the
date on which the next Applicable Margin Certificate is delivered by the
Company to the Banks pursuant to subsection 6.1(c), shall be .25%; and
(ii) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after June
30, 1999 shows that the Total Indebtedness/EBITDA Ratio on the last day of
such fiscal quarter was greater than 1.5 to 1 and less than or equal to 2.0
to 1, then the commitment fee for the Revolving Credit Commitment, during
the period beginning on (and including) the date on which such Applicable
Margin Certificate was delivered by the Company to the Banks and ending on
(and excluding) the date on which the next Applicable Margin Certificate is
delivered by the Company to the Banks pursuant to subsection 6.1(c), shall
be .30%;
(iii) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after June
30, 1999 shows that the Total Indebtedness/EBITDA Ratio on the last day of
such fiscal quarter was greater than 2.0 to 1 and less than or equal to 2.5
to 1, then the commitment fee for the Revolving Credit Commitment, during
the period beginning on (and including) the date on which such Applicable
Margin Certificate was delivered by the Company to the Banks and ending on
(and excluding) the date on which the next Applicable Margin Certificate is
delivered by the Company to the Banks pursuant to subsection 6.1(c), shall
be .375%;
(iv) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after June
30, 1999 shows that the Total Indebtedness/EBITDA Ratio on the last day of
such fiscal quarter was greater than 2.5 to 1, then the commitment fee for
the Revolving Credit Commitment, during the period beginning on (and
including) the date on which such Applicable Margin Certificate was
delivered by the Company to the Banks and ending on (and excluding) the
date on which the next Applicable Margin Certificate is delivered by the
Company to the Banks pursuant to subsection 6.1(c), shall be .50%;
provided, that the commitment fee for the Revolving Credit Commitment for
the period from the Closing Date until (and excluding) the date on which
the Company delivers to the Banks the Applicable Margin Certificate for the
fiscal quarter of the Company ended September 30, 1999, shall be .50%;
provided, further if the Company shall fail to deliver the Applicable
Margin Certificate by the end of the fiscal quarter in which it is
required, the commitment fee for the Revolving Credit Commitment for the
next fiscal quarter shall be as provided in clause (iv) above.
The commitment fees with respect to the Revolving Credit Commitments shall
be payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing September 30, 1999, and on the Revolving
Credit Termination Date or such earlier date as the Revolving Credit Commitments
shall terminate as provided herein.
4.3 Letter of Credit Commissions . (a) The Company agrees to pay to the
Agent for the account of the Banks a Letter of Credit commission for the period
from and including the date of issuance to and including the Revolving Credit
Commitment Termination Date, at the rate per annum equal to the Applicable
Margin then in effect with respect to Eurodollar Loans on the average daily face
amount of each Letter of Credit payable in arrears on the last Business Day of
each March, June, September and December and on the Revolving Credit Commitment
Termination Date.
(b) The Agent as issuer of each such Letter of Credit shall receive a
commission of 1/8 of 1% of the average daily face amount of each such Letter of
Credit for the period from and including the date of issuance to and including
the Revolving Credit Commitment Termination Date, payable in arrears on the last
Business Day of each March, June, September and December and on the Revolving
Credit Commitment Termination Date.
4.4 Conversion Options; Minimum Amount of Revolving Credit Loans . (a) The
Company may elect from time to time to convert Eurodollar Loans to Alternate
Base Rate Loans by giving the Agent at least three Business Days' prior
irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans shall only be made on the last day of an Interest Period with
respect thereto. The Company may elect from time to time to convert Alternate
Base Rate Loans to Eurodollar Loans by giving the Agent at least five Working
Days' prior irrevocable notice of such election. Upon receipt of such notice,
the Agent shall promptly notify each Bank thereof. Promptly following the date
on which such conversion is being made each Bank shall take such action as is
necessary to transfer its portion of such Loans to its Domestic Lending Office
or its Eurodollar Lending Office, as the case may be. All or any part of
outstanding Eurodollar Loans and Alternate Base Rate Loans may be converted as
provided herein, provided that (i) no Revolving Credit Loan may be converted
into a Eurodollar Loan when any Default or Event of Default has occurred and is
continuing, (ii) partial conversions shall be in an aggregate principal amount
of $1,000,000 or a whole multiple of $500,000 in excess thereof and (iii) any
such conversion may only be made if, after giving effect thereto, subsection 4.5
shall not have been contravened.
(b) Any Eurodollar Loans may be continued as such upon the expiration of an
Interest Period with respect thereto by compliance by the Company thereof with
the notice provisions contained in subsection 4.4(a); provided that no
Eurodollar Loan may be continued as such when any Default or Event of Default
has occurred and is continuing, but shall be automatically converted to an
Alternate Base Rate Loan on the last day of the then current Interest Period
with respect thereto. The Agent shall notify the Banks promptly that such
automatic conversion contemplated by this subsection 4.4(b) will occur. 4.5
Minimum Amounts of Eurodollar Tranches . All borrowings, conversions, payments,
prepayments and selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, (a) the aggregate principal amount of the Eurodollar Loans comprising
any Eurodollar Tranche shall not be less than $1,000,000 and (b) there shall be
no more than 15 Eurodollar Tranches of Revolving Credit Loans at any one time
outstanding.
4.6 Interest Rate, Payment Dates and Lending Offices . (a) The Revolving
Credit Loans comprising each Eurodollar Tranche shall bear interest for each
Interest Period with respect thereto on the unpaid principal amount thereof at a
rate per annum equal to the Eurodollar Rate determined for such Interest Period
plus the Applicable Margin.
(b) Alternate Base Rate Loans shall bear interest for the period from and
including the date thereof until maturity on the unpaid principal amount thereof
at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of the principal amount of any of the Revolving
Credit Loans shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise) each Eurodollar Loan shall be converted to an
Alternate Base Rate Loan at the end of the last Interest Period with respect
thereto. Any such overdue principal amount shall bear interest at a rate per
annum which is 2% above the rate which would otherwise be applicable pursuant to
subsection 4.6 (a) or (b) from the date of such non-payment until paid in full
(as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date. If
all or any portion of interest due on any of the Revolving Credit Loans shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise) or if all or any portion of any fee due in connection with this
Agreement or any of the Revolving Credit Loans shall not be paid when due, then
any such overdue amount shall bear interest at a rate per annum which is 2%
above the Alternate Base Rate plus the Applicable Margin from the date of such
non-payment until paid in full (as well as after as before judgment).
(e) Eurodollar Loans shall be made and maintained by each Bank at its
Eurodollar Lending Office, and Alternate Base Rate Loans shall be made and
maintained by each Bank at its Domestic Lending Office.
4.7 Computation of Interest and Fees . (a) Interest in respect of Alternate
Base Rate Loans, commitment fees and interest on overdue interest, commitment
fees and other amounts payable hereunder shall be calculated on the basis of a
365 (or 366, as the case may be) day year for the actual days elapsed. Interest
in respect of Eurodollar Loans shall be calculated on the basis of a 360 day
year for the actual days elapsed. The Agent shall as soon as practicable notify
the Company and the Banks of each determination of a Eurodollar Rate. Any change
in the interest rate on a Revolving Credit Loan resulting from a change in the
Alternate Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change in the
Alternate Base Rate is announced, or such change in the Eurocurrency Reserve
Requirements shall become effective, as the case may be. The Agent shall as soon
as practicable notify the Company and the Banks of the effective date and the
amount of each such change. (b) Each determination of an interest rate by the
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Banks in the absence of manifest error. The Agent
shall, at the request of the Company, deliver to the Company a statement showing
the quotations used by the Agent in determining any interest rate pursuant to
subsection 4.6(a).
4.8 Inability to Determine Interest Rate . In the event that:
(i) the Agent shall have determined (which determination shall be
conclusive and binding upon the Company) that, by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for any requested Interest
Period; or
(ii) the Agent shall have received notice prior to the first day of
such Interest Period from Banks constituting the Required Banks that the
interest rate determined pursuant to subsection 4.6(a) for such Interest
Period does not accurately reflect the cost to such Banks (as conclusively
certified by such Banks) of making or maintaining its affected Revolving
Credit Loan during such Interest Period,
with respect to (a) proposed Revolving Credit Loans that the Company has
requested be made as Eurodollar Loans, (b) Eurodollar Loans that will result
from the requested conversion of Alternate Base Rate Loans into Eurodollar Loans
or (c) the continuation of Eurodollar Loans beyond the expiration of the then
current Interest Period with respect thereto, the Agent shall forthwith give
telex or telephonic notice of such determination to the Company and the Banks at
least one day prior to, as the case may be, the requested Borrowing Date for
such Eurodollar Loans, the conversion date of such Domestic Dollar Loans or the
last day of such Interest Period. If such notice is given (x) any requested
Eurodollar Loans shall be made as Alternate Base Rate Loans, (y) any Alternate
Base Rate Loans that were to have been converted to Eurodollar Loans shall be
continued as Alternate Base Rate Loans and (z) any outstanding Eurodollar Loans
shall be converted, on the last day of the then current Interest Period with
respect thereto, to Alternate Base Rate Loans. Until such notice has been
withdrawn by the Agent, no further Eurodollar Loans shall be made, nor shall the
Company have the right to convert Alternate Base Rate Loans to Eurodollar Loans.
4.9 Pro Rata Treatment and Payments . (a) Each borrowing by the Company
from the Banks, each payment by the Company on account of any commitment fee
hereunder and any reduction of the Revolving Credit Commitments of the Banks
hereunder shall be made pro rata according to the respective Commitment
Percentages of the Banks. Each payment (including each prepayment) by the
Company on account of principal of and interest on the Working Capital Revolving
Credit Loans or the Investment Revolving Credit Loans shall be made pro rata
according to the respective outstanding principal amounts of the Working Capital
Revolving Credit Loans or the Investment Revolving Credit Loans, as the case may
be, held by each Bank. All payments (including prepayments) to be made by the
Company on account of principal, interest and fees shall be made without set-off
or counterclaim and shall be made to the Agent, for the account of the Banks, at
the Agent's office set forth in subsection 11.1, in lawful money of the United
States of America and in immediately available funds. The Agent shall distribute
such payments to the Banks promptly upon receipt in like funds as received. If
any payment hereunder (other than payments on the Eurodollar Loans) becomes due
and payable on a day other than a Business Day, such payment shall be extended
to the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan becomes due and payable on a day
other than a Working Day, the maturity thereof shall be extended to the next
succeeding Working Day unless the result of such extension would be to extend
such payment into another calendar month in which event such payment shall be
made on the immediately preceding Working Day.
(b) Unless the Agent shall have been notified in writing by any Bank prior
to a Borrowing Date that such Bank will not make the amount which would
constitute its Commitment Percentage of the borrowing on such date available to
the Agent, the Agent may assume that such Bank has made such amount available to
the Agent on such Borrowing Date, and the Agent may, in reliance upon such
assumption, make available to the Company a corresponding amount. If such amount
is made available to the Agent on a date after such Borrowing Date, such Bank
shall pay to the Agent on demand an amount equal to the product of (i) the daily
average Federal Funds Effective Rate during such period, times (ii) the amount
of such Bank's Commitment Percentage of such borrowing, times (iii) a fraction
the numerator of which is the number of days that elapse from and including such
Borrowing Date to the date on which such Bank's Commitment Percentage of such
borrowing shall have become immediately available to the Agent and the
denominator of which is 360. A certificate of the Agent submitted to any Bank
with respect to any amounts owing under this subsection 4.9(b) shall be
conclusive, absent manifest error. If such Bank's Commitment Percentage is not
in fact made available to the Agent by such Bank within three Business Days of
such Borrowing Date, the Agent shall be entitled to recover such amount with
interest thereon at the rate per annum applicable to Alternate Base Rate Loans
hereunder, on demand, from the Company.
4.10 Illegality . Notwithstanding any other provisions herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Bank hereunder to make Eurodollar Loans or convert Alternate Base Rate Loans to
Eurodollar Loans shall forthwith be canceled and (b) such Bank's Revolving
Credit Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Alternate Base Rate Loans on the respective next succeeding
Interest Payment Date(s) for such Revolving Credit Loans or within such earlier
period as required by law. If any such prepayment or conversion of a Eurodollar
Loan occurs on a day which is not the last day of the current Interest Period
with respect thereto, the Company shall pay to such Bank such amounts, if any,
as may be required pursuant to subsection 4.13.
4.11 Requirements of Law . (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Bank with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) does or shall subject any Bank to any tax of any kind whatsoever
with respect to this Agreement, any Revolving Credit Note or any Eurodollar
Loans made by it, or change the basis of taxation of payments to such Bank
of principal, commitment fee, interest or any other amount payable
hereunder (except for changes in the rate of tax on the overall net income
of such Bank);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against (A) assets
held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other acquisition
of funds by, any office of such Bank which are not otherwise included in
the determination of the Eurodollar Rate hereunder or (B) Letters of Credit
issued by the Agent or participated in by the Banks;
(iii) does or shall impose on such Bank any other condition; and the
result of any of the foregoing is to increase the cost to (A) any Bank, by
any amount which such Bank deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount
receivable hereunder, in each case, in respect to its Eurodollar Loans, or
(B) the Agent or any Bank of issuing or maintaining Letters of Credit (or
its participation therein, as the case may be), or to reduce any amount
receivable in connection therewith, then, in any such case, upon demand by
the Agent or such Bank (with a copy to the Agent), the Company shall
promptly pay to the Agent or such Bank, as the case may be, any additional
amounts necessary to compensate the Agent or such Bank for such additional
cost or reduced amount receivable, together with interest on each such
amount from the date demanded until payment in full thereof at the rate
provided in subsection 4.6(c) (in the case of increased costs in respect of
Eurodollar Loans) or subsection 3.5 (in the case of increased costs in
respect of Letters of Credit). If the Agent or a Bank becomes entitled to
claim any additional amounts pursuant to this subsection, it shall promptly
notify the Company, through the Agent, of the event by reason of which it
has become so entitled. A certificate as to any additional amounts payable
pursuant to the foregoing sentence submitted by the Agent or such Bank,
through the Agent, to the Company shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this
Agreement and payment of the outstanding Revolving Extensions of Credit.
Each Bank will promptly notify the Company and the Agent of any event
described in this subsection 4.11 of which it has knowledge and will
designate a different Eurodollar Lending Office if such designation will
avoid the need for, or reduce the amount of, compensation as described in
this subsection 4.11 and will not be otherwise disadvantageous to such
Bank.
If any Bank demands compensation from the Company pursuant to this
subsection 4.11 the Company may, upon at least three Business Days' prior
notice to such Bank through the Agent, prepay in full the then outstanding
Eurodollar Loans of such Bank, as the case may be, together with accrued
interest thereon to the date of prepayment and, concurrently therewith,
borrow from such Bank Alternate Base Rate Loans, in principal amounts equal
to the aggregate principal amounts of such Loans being prepaid and with the
same maturities, and such Bank shall make such Alternate Base Rate Loans.
If any prepayment or conversion of a Eurodollar Loan occurs on a day which
is not the last day of the then current Interest Period with respect
thereto, the Company shall pay to such Bank such amounts, if any, as may be
required pursuant to subsection 4.13.
(b) In the event that any Bank shall have determined that the adoption
of any law, rule or regulation regarding capital adequacy, or any change
therein or in the interpretation or application thereof or compliance by
any Bank or any corporation controlling such Bank with any request or
directive regarding capital adequacy (whether or not having the force of
law) from any central bank or Governmental Authority, does or shall have
the effect of reducing the rate of return on such Bank's or corporation's
capital as a consequence of such Bank's obligations hereunder to a level
below that which such Bank or corporation could have achieved but for such
Requirement of Law, change or compliance (taking into consideration such
Bank's or corporation's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within
fifteen days after submission by such Bank or corporation to the Company
(with a copy to the Agent) of a written request therefor, the Company shall
pay to such Bank such additional amount or amounts as will compensate such
Bank or corporation for such reduction. The agreements in this subsection
4.11(b) shall survive the termination of this Agreement and the payment of
the Revolving Extensions of Credit and all other amounts payable hereunder.
4.12 Taxes . (a) All payments made by the Company under this Agreement
shall be made free and clear of, and without reduction 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 Governmental Authority excluding,
in the case of the Agent and each Bank, net income and franchise taxes (or taxes
imposed in lieu of net income or franchise taxes) imposed on (or measured by)
the income or profits of the Agent or such Bank by the jurisdiction under the
laws of which the Agent or such Bank is organized or any political subdivision
or taxing authority thereof or therein or by any jurisdiction in which such
Bank's Domestic Lending Office or Eurodollar Lending Office, as the case may be,
is located or any political subdivision or taxing authority thereof or therein
or by any other jurisdiction (or political subdivision or taxing authority
thereof or therein) as a result of a connection between such Bank and such
jurisdiction (or political subdivision or taxing authority thereof or therein)
other than a connection resulting solely from entering into this Agreement (all
such non-excluded taxes, levies, imposts, deductions, charges or withholdings
being hereinafter called "Taxes"). If any Taxes are required to be withheld from
any amounts payable to the Agent or any Bank hereunder, the amounts so payable
to the Agent or such Bank shall be increased to the extent necessary to yield to
the Agent or such Bank (after payment of all Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement. Whenever any Taxes are payable by the Company, as promptly as
possible thereafter, the Company shall send to the Agent for its own account or
for the account of such Bank a certified copy of an original official receipt
received by the Company showing payment thereof. If the Company fails to pay any
Taxes when due to the appropriate taxing authority or fails to remit to the
Agent the required receipts or other required documentary evidence, the Company
shall indemnify the Agent and the Banks for any incremental taxes, interest or
penalties that may become payable by the Agent or any Bank as a result of any
such failure. The agreements in this subsection 4.12 shall survive the
termination of this Agreement and the payment of the Revolving Extensions of
Credit and all other amounts payable hereunder.
(b) Each Bank that is not incorporated under the laws of the United States
of America or a state thereof agrees that it will deliver to the Company and the
Agent (i) two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224 or successor applicable form, as the case may be, and (ii) an
Internal Revenue Service Form W-8 or W-9 or successor applicable form. Each such
Bank also agrees to deliver to the Company and the Agent two further copies of
the said Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms or
other manner of certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or after occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Company, and such extensions or renewals thereof as may reasonably be requested
by the Company or the Agent, unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Bank from duly
completing and delivering any such form with respect to it and such Bank so
advises the Company and the Agent. Such Bank shall certify (i) in the case of a
Form 1001 or 4224, that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes and
(ii) in the case of a Form W-8 or W-9, that it is entitled to an exemption from
United States backup withholding tax.
4.13 Indemnity . The Company agrees to indemnify each Bank and to hold each
Bank harmless from any loss or expense which such Bank may sustain or incur as a
consequence of (a) default by the Company in payment when due of the principal
amount of or interest on any Eurodollar Loans of such Bank, (b) default by the
Company in making a borrowing or conversion after the Company has given a notice
of borrowing in accordance with subsection 2.3 or a notice of conversion
pursuant to subsection 4.4(a), or (c) default by the Company in making any
prepayment after the Company has given a notice in accordance with subsection
4.1(a) or (d) a prepayment of a Eurodollar Loan on a day which is not the last
day of an Interest Period with respect thereto, including, without limitation,
in each case, any such loss or expense arising from the reemployment of funds
obtained by it to maintain its Eurodollar Loans hereunder or from fees payable
to terminate the deposits from which such funds were obtained. A certificate as
to any additional amounts payable pursuant to the foregoing sentence submitted
by such Bank or the Agent to the Company shall be conclusive in the absence of
manifest error. This covenant shall survive termination of this Agreement and
payment of the outstanding Revolving Extensions of Credit and all other amounts
payable hereunder.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Banks to enter into this Agreement and
to make their respective Revolving Credit Loans and to issue and participate in
Letters of Credit, the Company represents and warrants to the Agent and the
Banks that:
5.1 Financial Condition. (a) The audited consolidated and unaudited
consolidating balance sheets of the Company and its consolidated Subsidiaries
(and, if applicable, each Permitted Joint Venture, as provided for in subsection
6.1[a] and [b]) as at December 31, 1998, and the related audited consolidated
(and, as to statements of income, unaudited consolidating) statements of income,
equity and cash flow of the Company and its consolidated Subsidiaries (and, if
applicable, each Permitted Joint Venture, as provided for in subsection 6.1[a]
and [b]) for the fiscal year ended on said date, with the opinion thereon of
Deloitte & Touche heretofore furnished to each of the Banks, and the unaudited
consolidated and unaudited consolidating balance sheets of the Company and its
consolidated Subsidiaries (and, if applicable, each Permitted Joint Venture, as
provided for in subsection 6.1[a] and [b]) as at March 31, 1999, and their
related unaudited consolidated (and, as to statements of income, unaudited
consolidating) statements of income, equity and cash flow of the Company and its
consolidated Subsidiaries (and, if applicable, each Permitted Joint Venture, as
provided for in subsection 6.1[a] and [b]) for the three (3) month period ended
on such date heretofore furnished to the Agent, are complete and correct and
fairly present the consolidated financial condition of the Company and its
consolidated Subsidiaries (and, if applicable, each Permitted Joint Venture, as
provided for in subsection 6.1[a] and [b]) as at said dates and the results of
its operations for the fiscal year and the three (3) month period on said dates,
all in accordance with GAAP, as applied on a consistent basis (subject, in the
case of the interim financial statements, to normal year-end adjustments).
Neither the Company nor any Subsidiary has on the Closing Date any material
Debt, contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in the Financial
Statements or in Schedule 7.1. Since the date of the Financial Statements,
neither the business nor the Property of the Company, any Subsidiary or, to the
best of our knowledge, any Permitted Joint Venture have been materially and
adversely affected as a result of any fire, explosion, earthquake, flood,
drought, windstorm, accident, strike or other labor disturbance, embargo,
requisition or taking of Property or cancellation of contracts, permits or
concessions by any Governmental Authority, riot, activities of armed forces or
acts of God or of any public enemy.
(b) The unaudited consolidated financial statements of EPCO for the fiscal
quarter ended March 31, 1999, copies of which have heretofore been delivered to
each Bank, have been prepared in accordance with GAAP and present fairly the
financial condition, results of operation and changes in financial position of
EPCO and its Subsidiaries, as at the date or dates and for the period or periods
stated.
5.2 No Change . Since March 31, 1999, there has been no development or
event that has had or could reasonably be expected to have a Material Adverse
Effect.
5.3 Existence; Compliance with Law . The Company (a) is duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(b) has the partnership power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged and which it proposes to be
engaged after the Closing Date, (c) is duly qualified and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except to
the extent that the lack of such qualification could not have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate, have a
Material Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations . The Company has the
partnership power and authority, and the legal right, to make, deliver and
perform the Loan Documents and to borrow hereunder and has taken all necessary
action to authorize the borrowings on the terms and conditions of this Agreement
and to authorize the execution, delivery and performance of the Loan Documents.
No consent or authorization of, filing with or other act by or in respect of any
Governmental Authority is required in connection with the borrowings hereunder
or with the execution, delivery, performance, validity or enforceability of the
Loan Documents. This Agreement has been, and each other Loan Document will be,
duly executed and delivered on behalf of the Company. This Agreement
constitutes, and each other Loan Document when executed and delivered will
constitute, a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
5.5 No Legal Bar . The execution, delivery and performance of the Loan
Documents, the borrowings hereunder and the use of the proceeds thereof, will
not violate any Requirement of Law or any Contractual Obligation of the Company,
and will not result in, or require, the creation or imposition of any Lien on
any of its or their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation.
5.6 No Default Neither the Company nor any Subsidiary is in default under
or with respect to any Contractual Obligation in any respect which could have a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
5.7 Investments and Guaranties . At the date of this Agreement, neither the
Company nor any Subsidiary has any Investments or has outstanding any Guarantee
Obligations, except as permitted by this Agreement, reflected in the Financial
Statements or disclosed to the Banks in Schedule 5.7.
5.8 Liabilities; Litigation . Except as otherwise expressly permitted under
this Agreement, (i) neither the Company nor any Subsidiary has any material
(individually or in the aggregate) liabilities, direct or contingent, other than
liabilities incurred in the normal course of business, and (ii) there is no
litigation, legal, administrative or arbitral proceeding, investigation or other
action of any nature pending or, to the best knowledge of the Company,
threatened against or affecting the Company or any Subsidiary which involves the
reasonable possibility of any material judgment or liability greater than
$10,000,000 and not fully covered (after satisfaction of any deductible) by
insurance or which could reasonably be expected to have a Material Adverse
Effect. No unusual or unduly burdensome restriction, restraint, or hazard exists
by contract, Requirement of Law or otherwise relative to the business or
Properties of the Company or any Subsidiary.
5.9 Taxes; Governmental Charges . The Company and its Subsidiaries have
filed all tax returns and reports required to be filed and have paid all taxes,
assessments, fees and other governmental charges levied upon any of them or upon
any of their respective Properties or income which are due and payable,
including interest and penalties (other than those the amount or validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Company); and no tax liens have been filed and, to the best
knowledge of the Company, no claims are being asserted with respect to any such
taxes, fees or other charges.
5.10 Titles, etc. Except as set forth on Schedule 5.10, the Company and
its Subsidiaries have good title to their respective material (individually or
in the aggregate) Properties, free and clear of all Liens except (i) Liens
referred to in the financial statements described in subsection 5.1, (ii)
Excepted Liens, and (iii) Liens otherwise permitted or contemplated by this
Agreement.
5.11 Intellectual Property . The Company and each of its Subsidiaries owns
or is licensed to use, all trademarks, trade names, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted that are material to the condition (financial or other), business, or
operations of the Company and its Subsidiaries (the "Intellectual Property"). No
claim has been asserted and is pending by any Person with the respect to the use
of any such Intellectual Property, or challenging or questioning the validity or
effectiveness of any such Intellectual Property and the Company does not know of
any valid basis for any such claim. The use of such Intellectual Property by the
Company and each of its Subsidiaries does not infringe on the rights of any
Person, subject to such claims and infringements as do not, in the aggregate,
give rise to any liability on the part of the Company or any of its Subsidiaries
that is material to the Company and its Subsidiaries taken as a whole.
5.12 Casualties; Taking of Properties . Neither the business nor the
Properties of the Company or any Subsidiary have been materially and adversely
affected as a result of any fire, explosion, earthquake, flood, drought,
windstorm, accident, strike or other labor disturbance, embargo, requisition or
taking of Property or cancellation of contracts, permits or concessions by any
domestic or foreign government or any agency thereof, riot, activities of armed
forces or acts of God or of any public enemy.
5.13 Use of Proceeds; Margin Stock; No Financing of Corporate Takeovers .
The proceeds of the Working Capital Revolving Credit Loans will be used by the
Company for working capital purposes in the ordinary course of business of the
Company and for general partnership purposes, including to pay, in whole or in
part, distributions on the limited partner interests of the Limited Partner in
the Company (to enable the Limited Partner to make cash distributions with
respect to the Units and the general partner interest of the Limited Partner)
and the General Partner Interest (collectively the "Distributions") and for the
purposes of making Investments. The proceeds of the Investment Revolving Credit
Loans will be used by the Company to make Investments permitted pursuant to
subsection 7.6 and other working capital and general partnership purposes,
excluding however, for the purposes of making Distributions. No part of the
proceeds of the Revolving Credit Loans hereunder will be used for "purchasing"
or "carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U of the Board of Governors of the Federal Reserve
System as now and from time to time hereafter in effect or for any purpose which
violates the provisions of the Regulations of such Board of Governors. If
requested by the Agent, the Company will furnish to the Agent a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to
in said Regulation U. No proceeds of any loan or extension of credit made
pursuant to this Agreement will be used to acquire any security in any
transaction which is subject to Sections 13 or 14 of the Securities Exchange Act
of 1934, including particularly but without limitation Sections 13(d) and 14(d)
thereof. Neither the Company nor any Subsidiary nor any Person acting on behalf
of the Company or any Subsidiary has taken or will take any action which might
cause any of the Loan Documents to violate Regulation U or any other regulation
of the Board of Governors of the Federal Reserve System as the same may
hereinafter be in effect.
5.14 Compliance with Law . Each of the Company and its Subsidiaries:
(i) is not in violation of any Requirement of Law, which violation (in
the event such violation were asserted by any Person through appropriate
action) involves the reasonable possibility of having a Material Adverse
Effect; and
(ii) presently possesses all licenses, permits, franchises and other
governmental authorizations necessary to the ownership of any of its
Property, the operation of the Facilities and the conduct of its business,
the failure to obtain which (in the event such failure were asserted by any
Person through appropriate action) involves the reasonable possibility of
having a Material Adverse Effect.
5.15 ERISA . The Company, its Subsidiaries and any Commonly Controlled
Entity are in compliance in all material respects with the applicable provisions
of ERISA with respect to each Plan which they maintain and have fulfilled their
obligations under the minimum funding standards of ERISA with respect to each
Single Employer Plan. No "prohibited transaction," as such term is defined in
Section 4975 of the Internal Revenue Code of 1986, as amended, has occurred with
respect to any such Plan which could subject the Company, its Subsidiaries or
any Commonly Controlled Entity to any excise tax. No "reportable event," as such
term is defined in Section 4043 of ERISA and the regulations issued thereunder
(other than a reportable event not subject to the provision for 30-day notice to
the PBGC under such regulations), has occurred with respect to any Plan. No Plan
has been, or is likely to be, terminated in a manner which would result in the
imposition of a Lien on the Property of the Company, any Subsidiary or any
Commonly Controlled Entity pursuant to Section 4068 of ERISA. The present value
of all benefits vested under each Single Employer Plan maintained by the
Company, its Subsidiaries or any Commonly Controlled Entity (based on those
assumptions used to fund such Plan) did not, as of the last annual valuation
date applicable thereto, exceed the value of the assets of such Plan allocable
to such vested benefits. Neither the Company nor any of its Subsidiaries nor any
Commonly Controlled Entity is making or accruing (or has any obligation to make
or accrue) an obligation to make any contribution to a Multiemployer Plan, nor
has any such contribution been made within five years prior to the date hereof.
Neither the Company nor any of its Subsidiaries nor any Commonly Controlled
Entity provide for post-retirement benefits under Plans which are welfare
benefit plans (as defined in Section 3(1) of ERISA).
5.16 Investment Company Act; Other Regulations . The Company is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Company is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
5.17 Accuracy and Completeness of Information . All written information,
reports and other papers and data (other than projections) with respect to the
Company furnished to the Agent or the Banks by the Company in connection with
obtaining the Revolving Credit Loans were, at the time the same were so
furnished, complete and correct in all material respects, or have been
subsequently supplemented by other written information, reports or other papers
or data, to the extent necessary to give the Agent or the Banks a true and
accurate knowledge of the subject matter in all material respects. All written
projections with respect to the Company so furnished by the Company were
prepared or presented in good faith by the Company. No fact is known to the
Company which materially and adversely affects or in the future may (so far as
the Company can reasonably foresee) materially and adversely affect the
business, assets or liabilities, financial or other condition, results of
operations or business prospects of the Company which has not been set forth in
the financial statements referred to in subsection 5.1 or in such information,
reports, papers and data or otherwise disclosed in writing to the Agent and
Banks prior to the Closing Date. No document furnished or statement made in
writing to the Agent or the Banks by the Company in connection with the
negotiation, preparation or execution of this Agreement contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements contained therein not misleading, in either case
which has not been corrected, supplemented or remedied by subsequent documents
furnished or statements made in writing to the Agent or the Banks on or prior to
the Closing Date.
5.18 Public Utility Holding Company Act . The Company is not a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company," or a
"public utility" within the meaning of the Public Utility Holding Company Act of
1935, as amended.
5.19 Subsidiaries . As of the date of this Agreement, the Company has no
Subsidiaries except those shown in Schedule 5.19, which Schedule is complete and
accurate.
5.20 Location of Business and Offices . The Company's and each Subsidiary's
principal place of business and chief executive offices are located at 0000
Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxx 00000.
5.21 Neither the Company Nor Subsidiary is a Utility . Except as set forth
on Schedule 5.21, neither the Company nor any Subsidiary is a Person engaged in
the State of Texas in the (i) generation, transmission or distribution and sale
of electric power; (ii) provision of telephone or telegraph service to others;
(iii) production, transmission, or distribution and sale of steam or water; (iv)
operation of a railroad; or (v) provision of sewer service to others.
5.22 Year 2000 Matters . Any reprogramming required to permit the proper
functioning (but only to the extent that such proper functioning would otherwise
be impaired by the occurrence of the year 2000) prior to, in and following the
year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by the Company or any of its
Subsidiaries or used or relied upon in the conduct of their business (including
any such systems and other equipment supplied by others or with which the
computer systems of the Company or any of its Subsidiaries interface), and the
testing of all such systems and other equipment as so reprogrammed, will be
completed by September 30, 1999. The costs to the Company and its Subsidiaries
that have not been incurred as of the date hereof for such reprogramming and
testing and for the other reasonably foreseeable consequences to them of any
improper functioning of other computer systems and equipment containing embedded
microchips due to the occurrence of the year 2000 could not reasonably be
expected to result in a Default or Event of Default or to have a Material
Adverse Effect. Except for any reprogramming referred to above, the computer
systems of the Company and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient for the conduct of their business as currently conducted.
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as any Revolving Credit Commitment
remains in effect, any Revolving Credit Loan or Reimbursement Obligation remains
outstanding and unpaid or any other amount is owing to any Bank or the Agent
hereunder, the Company shall and (except in the case of delivery of financial
information, reports and notices) shall cause each of its Subsidiaries to:
6.1 Financial Statements and Reports of the Company . Promptly furnish to
the Agent and the Banks from time to time upon request such information
regarding the business and affairs and financial condition of the Company and
its Subsidiaries as the Agent may reasonably request, and furnish to each Bank:
(a) Annual Reports. Promptly after becoming available and in any event
within 90 days after the close of each fiscal year of the Company (i) the
audited consolidated and unaudited consolidating balance sheets of the
Company and its consolidated Subsidiaries and, subject to any consents
required by its constituent documents (which the Company shall use
reasonable efforts to obtain), each Permitted Joint Venture (except for any
Permitted Joint Venture in which the Company or any of its Subsidiaries is
not the general partner, in which case such financial statements shall be
delivered when received) as at the end of such year and (ii) the audited
consolidated (and, as to statements of income, unaudited consolidating)
statements of income, equity and cash flow of the Company and its
consolidated Subsidiaries and, subject to any consents required by its
constituent documents (which the Company shall use reasonable efforts to
obtain), each Permitted Joint Venture (except for any Permitted Joint
Venture in which the Company or any of its Subsidiaries is not the general
partner, in which case such financial statements shall be delivered when
received) for such year setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year, reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Deloitte & Touche or such other
independent public accountants acceptable to the Banks (in the case of the
Financial Statements of the Company), which report shall be to the effect
that such statements have been prepared in accordance with GAAP; and
(b) Quarterly Reports. Promptly after their becoming available and in
any event within 45 days after the close of each fiscal quarter of the
Company, (i) the unaudited consolidated and unaudited consolidating balance
sheets of the Company and its consolidated Subsidiaries and, subject to any
consents required by its constituent documents (which the Company shall use
reasonable efforts to obtain), each Permitted Joint Venture (except for any
Permitted Joint Venture in which the Company or any of its Subsidiaries is
not the general partner, in which case such financial statements shall be
delivered when received) as at the end of such quarter and (ii) the
unaudited consolidated (and, as to statements of income, unaudited
consolidating) statements of income, equity and cash flow of the Company
and, subject to any consents required by its constituent documents (which
the Company shall use reasonable efforts to obtain), each Permitted Joint
Venture (except for any Permitted Joint Venture in which the Company or any
of its Subsidiaries is not the general partner, in which case such
financial statements shall be delivered when received) for such quarter,
setting forth in each case in comparative form the corresponding figures
for the preceding fiscal year, all of the foregoing certified by the
principal financial officer of the Company to have been prepared in
accordance with GAAP subject to normal changes resulting from year-end
adjustment and accompanied by a written discussion of the financial
performance and operating results, including the major assets, of the
Company and, subject to any consents required by its constituent documents
(which the Company shall use reasonable efforts to obtain), each Permitted
Joint Venture (except for any Permitted Joint Venture in which the Company
or any of its Subsidiaries is not the general partner, in which case such
financial statements shall be delivered when received) for such quarter;
and
(c) Applicable Margin Certificates. (i) Within 45 days after the end
of each fiscal quarter of the Company, a certificate of the principal
financial officer of the Company showing in detail the computations
necessary to calculate the Applicable Margin (an "Applicable Margin
Certificate"), and (ii) an Applicable Margin Certificate as soon as
practicable following the obtaining of , and each change in, a current
senior unsecured debt rating referenced in the last proviso contained in
the definition of "Applicable Margin" set forth in subsection 1.1; and
(d) Other Information. From time to time, such other information or
documents (financial or otherwise) as any Bank may reasonably request.
6.2 Annual Certificates of Compliance . Concurrently with the furnishing of
the annual financial statements pursuant to subsection 6.1(a), furnish or cause
to be furnished to the Banks certificates of compliance, as follows:
(a) a certificate from the independent public accountants stating that
their audit has not disclosed the existence of any condition which
constitutes a Default, or if their audit has disclosed the existence of any
such condition, specifying the nature, period of existence and status
thereof; and
(b) a certificate signed by the principal financial officer of the
Company (i) stating that a review of the activities of the Company and its
Subsidiaries has been made under his supervision with a view to determining
whether the Company and its Subsidiaries have fulfilled all of their
respective obligations under each of the Loan Documents; (ii) stating that
the Company and its Subsidiaries have fulfilled their respective
obligations under such instruments and that all representations made herein
continue to be true and correct (or specifying the nature of any change),
or if the Company or any Subsidiary shall be in Default, specifying any
Default and the nature and status thereof; (iii) to the extent requested
from time to time by the Agent, specifically affirming compliance of the
Company and its Subsidiaries with any of their respective representations
or obligations under such instruments; and (iv) containing or accompanied
by such financial or other details, information and material as the Agent
may reasonably request to evidence such compliance; and
(c) within 60 days after the end of each calendar year, a certificate
of a Responsible Officer, or of the officer of the Company primarily
responsible for monitoring compliance by the Company and its Subsidiaries
with Relevant Environmental Laws, stating that (during such calendar year):
(i) No notice, notification, demand, request for information,
citation, summons or order has been issued for any violation of
Relevant Environmental Laws which could reasonably involve the
possibility of a Material Adverse Effect and, no complaint has been
filed, no penalty has been assessed and no investigation or review is
pending, or to the knowledge of such officer, after due inquiry,
threatened by any Governmental Authority or private litigant with
respect to any generation, treatment, storage, accumulation,
recycling, transportation, disposal, release or discharge, all as
defined in 42 USC, Paragraph9601(22) ("Release"), of any hazardous
substance, as defined in 42 USC, Paragraph 9601(14), and including
petroleum, its derivatives, by-products and other hydrocarbons,
polychlorinated biphenyls, paint containing lead, urea formaldehyde
foam insulation, and discharge of sewage or effluent, whether or not
regulated under Federal, state or local environmental statutes,
ordinances, rules, regulations or others ("Hazardous Substance")
generated by the operations or business, or located at any property,
of the Company and its Subsidiaries which complaint, penalty,
investigation, review or threat could involve the possibility of a
Material Adverse Effect; and
(ii) No oral or written notification of a Release of a Hazardous
Substance has been filed by or on behalf of the Company or any
Subsidiary other than reports of Releases not involving the
possibility of a Material Adverse Effect and no property now or
previously owned or leased by the Company or any Subsidiary is listed
or, to the best knowledge of such officer, after due inquiry, proposed
for listing, on the National Priorities List promulgated pursuant to
CERCLA, on CERCLIS or any similar state list of sites requiring
investigation or clean-up.
6.3 Quarterly Certificates of Compliance; Projections . (a) Within 45 days
after the end of each calendar quarter of each calendar year, furnish or cause
to be furnished to the Banks a principal financial officer's certificate in the
same form as the certificate required by subsection 6.2(b), including all the
matters referred to in clauses (i) through (iv), inclusive, thereof.
(b) Not later than 30 days prior to the end of each fiscal year, a copy of
the projections of the operating budget and cash flow for the next succeeding
fiscal year, such projections to be accompanied by a certificate of the chief
financial officer of the Company to the effect that such projections have been
prepared on the basis of sound financial planning practice and that such officer
has no reason to believe they are incorrect or misleading in any material
respect.
6.4 Notice of Certain Events . Promptly notify the Banks of the occurrence
of any of the following events upon a Responsible Officer obtaining knowledge
thereof:
(a) any event which constitutes a Default or Event of Default; or
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding that may exist at any time between the Company
or any of its Subsidiaries and any Governmental Authority, that in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries in which the amount involved is $10,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought;
(d) any other event or condition having or which could reasonably be
expected to have a Material Adverse Effect; or
(e) the institution of or the withdrawal or partial withdrawal by the
Company or any Subsidiary from any Multiemployer Plan (as well as any other
information regarding ERISA required by subsection 6.5 hereof); or
(f) any casualties to the extent required by subsection 6.8(e); or
(g) (i) of any Environmental Complaint received by the Company or any
Subsidiary, and (ii) of any notice from any Person of (A) any violation or
alleged violation of any Relevant Environmental Law relating to any such
property or any part thereof or any activity at any time conducted on any
such property, (B) the occurrence of any release, spill or discharge in a
quantity that is reportable under any Relevant Environmental Law or (C) the
commencement of any clean up pursuant to or in accordance with any Relevant
Environmental Law of any Hazardous Substance on or about any such property
or any part thereof, which Environmental Complaint or notice could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Company proposes to take
with respect thereto.
6.5 ERISA Information . Furnish to the Agent:
(a) within ten Business Days after the institution of or the
withdrawal or partial withdrawal by the Company, any Subsidiary or any
Commonly Controlled Entity from any Multiemployer Plan, a written notice
thereof signed by an executive officer of the Company stating the
applicable details;
(b) within ten Business Days after the filing thereof with the United
States Secretary of Labor, the PBGC or the Internal Revenue Service, copies
of each annual and other report with respect to each Plan or any trust
created thereunder;
(c) within ten Business Days after an officer of the Company becomes
aware of the occurrence of any "reportable event," as such term is defined
in Section 4043 of ERISA, or of any "prohibited transaction," as such term
is defined in Section 4975 of the Code, in connection with any Plan or any
trust created thereunder which might constitute grounds for a termination
of such Plan under Title IV of ERISA, a written notice signed by an
executive officer of the Company specifying the nature thereof and what
action the Company, any of its Subsidiaries or any Commonly Controlled
Entity is taking or proposes to take with respect thereto; and
(d) within ten Business Days after an officer of the Company becomes
aware of any material action at law or at equity brought against the
Company, any of its Subsidiaries, any Commonly Controlled Entity, or any
fiduciary of a Plan in connection with the administration of any Plan or
the investment of assets thereunder, a written notice signed by an
executive officer of the Company specifying the nature thereof and what
action the Company is taking or proposes to take with respect thereto.
The Company shall also furnish to the Agent, within ten Business Days after
an officer of the Company becomes aware of any action taken by the Internal
Revenue Service with respect to matters as to which information has been
furnished pursuant to subsection (c) above, a written notice specifying the
nature of such action.
6.6 Taxes and Other Liens . Pay and discharge, or cause to be paid and
discharged, promptly or make, or cause to be made, timely deposit of all taxes
(including Federal Insurance Contribution Act ("FICA") payments and withholding
taxes), assessments and governmental charges or levies imposed upon the Company
or any Subsidiary or upon the income or any Property of the Company or any
Subsidiary as well as all claims of any kind (including claims for labor,
materials, supplies and rent) which, if unpaid, might become a Lien upon any or
all of the Property of the Company or any Subsidiary; provided, however, that
neither the Company nor any Subsidiary shall be required to pay any such tax,
assessment, charge, levy or claim if the amount, applicability or validity
thereof shall currently be contested in good faith by appropriate proceedings
diligently conducted by or on behalf of the Company or its Subsidiary, and if
the Company or its Subsidiary shall have set up reserves therefor adequate under
GAAP.
6.7 Maintenance . (i) Continue to engage in business of the same general
type as now conducted by it or as contemplated hereby and maintain its corporate
existence, rights and franchises, except as otherwise permitted by subsection
7.7, (ii) observe and comply with all Contractual Obligations and Requirements
of Law which if not complied with would involve the reasonable possibility of
having a Material Adverse Effect, and (iii) maintain its Properties (and any
Properties leased by or consigned to it or held under title retention or
conditional sales contracts) in good and workable condition, ordinary wear and
tear excepted, at all times and make all repairs, replacements, additions,
betterments and improvements to its Properties as are needful and proper in
accordance with customary industry practices so that the business carried on in
connection therewith may be conducted properly and efficiently at all times.
6.8 Insurance . (a) At all times, provide, maintain (with financially sound
and reputable insurance companies) and keep in force all of the following:
(i) Policies of insurance insuring the Facilities against loss or
damage by fire and lightning and against loss or damage by other risks
embraced by coverage of the type now known as the broad form of
extended coverage, including, but not limited to, riot and civil
commotion, vandalism and malicious mischief, and against such other
risks or hazards as the Agent may from time to time reasonably
designate in an amount sufficient to prevent the Agent or the Company
or any Subsidiary from becoming a co-insurer under the terms of the
applicable policies, but in any event in an amount not less than 100%
of the then full replacement cost thereof (exclusive of the cost of
excavations and foundations) without deduction for physical
depreciation, and each such policy shall contain a replacement cost
endorsement, if available.
(ii) Policies of comprehensive general liability insurance
(primary and excess) insuring the Company (or its Subsidiaries, as the
case may be) against loss resulting in bodily injury, death or
property damage for an aggregate amount per annum satisfactory to the
Banks. The policy terms and conditions shall be customary for the
risks contemplated, and they shall contain standard cross liability
and severability of interests clauses.
(iii) The Agent shall reserve the right to require that the
Company or any of its Subsidiaries secure flood insurance if such
insurance is commercially available up to the amount provided in
subsection 6.8(a)(i).
(iv) Such other insurance (including, but not limited to,
business interruption insurance, boiler and machinery and/or general
liability), in such amounts, as may from time to time be reasonably
required by the Agent.
(v) Such other insurance with respect to its and its
Subsidiaries' Properties and businesses against such liabilities,
casualties, risks, and contingencies and in such types and amounts so
as to maintain adequate insurance coverage in accordance with normal
industry practice for businesses similar to that of the Company and
its Subsidiaries.
(b) Furnish or cause to be furnished to the Agent upon request of
the Agent from time to time a summary of the insurance coverage of the
Company and its Subsidiaries, in form and substance satisfactory to
the Agent and, if requested, will furnish the Agent copies of the
applicable policies.
(c) All policies required by subsection 6.8: (a)(i) shall be
issued by companies approved by the Agent (such approval not to be
unreasonably withheld), (ii) shall be subject to the approval of the
Agent as to amount, expiration dates and a coverage in a form of
industry standards, (iii) shall provide that it cannot be modified as
to basic policy conditions or canceled without 30 days' prior written
notice to the Agent, and (iv) may contain such reasonable deductibles
as are customary in the industry for Persons in circumstances (other
than economic circumstances) similar to those of the Company or its
Subsidiaries, as the case may be.
(d) Furnish or cause to be furnished to the Agent a certificate
of each policy required under subsection 6.8(a) and, at least 30 days
prior to the expiration of any such policy, proof of issuance of a
policy continuing in force the coverage described in subsection 6.8(a)
provided by the expiring policy. In the event that the Company does
not deposit with the Agent a new policy of insurance or certificate
thereof with evidence of payment of premiums within such period, the
Agent may, but shall not be obligated to, procure such insurance and
the Company shall reimburse the Agent for the premiums paid thereon
promptly upon demand, together with interest thereon at the rate
provided in subsection 4.6(c) from the date of written demand of the
Agent for reimbursement until the date of reimbursement to the Agent.
(e) As soon as practicable after the happening of any property
casualty involving potential damage, liabilities, loss or claims in
respect of property in excess of $10,000,000 for each individual
occurrence, the Company shall give prompt written notice thereof to
the Agent.
6.9 Payment of Expenses and Taxes . (a) Pay or reimburse the Agent for all
its reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, any of the Loan Documents and any other documents prepared in
connection therewith, and the consummation of the transactions contemplated
thereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Agent, (b) pay or reimburse each Bank and the Agent for all their
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under the Loan Documents and any such other
documents, including, without limitation, reasonable fees and disbursements of
counsel to the Agent and to the several Banks, (c) pay, indemnify and hold each
Bank and the Agent harmless from, any and all recording and filing fees and any
and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents and any such other documents, and (d) pay, indemnify, and hold each
Bank and the Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of the Loan
Documents and any such other documents (all the foregoing, collectively, the
"indemnified liabilities"), provided that the Company shall have no obligation
hereunder with respect to indemnified liabilities arising from (i) the gross
negligence or willful misconduct of the Agent or any such Bank, (ii) legal
proceedings commenced against the Agent or any such Bank by any security holder
or creditor thereof arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such, or (iii) legal
proceedings commenced against any such Bank by the Agent or any other Bank. The
agreements in this subsection shall survive repayment of the Revolving Credit
Loans and all other amounts payable hereunder.
6.10 Accounts and Records . Keep books of record and account in which full,
true and correct entries will be made of all dealings or transactions in
relation to their respective business and activities, in accordance with GAAP.
6.11 Right of Inspection . Permit any officer, employee or agent of the
Agent or any of the Banks to visit and inspect any of the Properties of the
Company or any Subsidiary, examine the Company's or any Subsidiary's books of
record and accounts, take copies and extracts therefrom, and discuss the
affairs, finances and accounts of the Company or any Subsidiary with the
Company's or any Subsidiary's officers, accountants and auditors, all upon
reasonable notice and at such times during normal business hours and as often as
the Agent or any of the Banks may desire. If the Company or any Subsidiary
maintains computer tapes, discs, print-outs or other records in the possession
of another Person (including accountants and auditors), the Company hereby
agrees at the request of the Agent or any Bank to notify or cause such
Subsidiary to notify such other Person to permit the Agent or any Bank access to
the same upon reasonable notice and at all reasonable times during normal
business hours and to provide the Agent or any Bank with copies of any records
available to the Company or any Subsidiary which the Agent or any Bank may
request, at the cost and expense of the Company as to any action by the Agent
under this subsection (but not by the Banks unless a Default or Event of Default
has occurred and is continuing).
6.12 Payment of Obligations . Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Company or its Subsidiaries, as the case may be.
6.13 Environmental Laws .
(a) Comply with, and ensure compliance by all tenants and subtenants,
if any, with, all applicable Relevant Environmental Laws and obtain and
comply with and maintain, and ensure that all tenants and subtenants obtain
and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Relevant
Environmental Laws except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Relevant Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Relevant Environmental
Laws except to the extent that the same are being contested in good faith
by appropriate proceedings and the pendency of such proceedings could not
reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Agent and the Banks, and
their respective employees, agents, officers and directors, from and
against any and all claims, demands, penalties, fines, liabilities,
settlements and damages, and reasonable costs and expenses, of whatever
kind or nature known or unknown, contingent or otherwise, arising out of,
or in any way relating to the violation of, noncompliance with or liability
under, any Relevant Environmental Law applicable to the operations of the
Company, any of its Subsidiaries or the Facilities, or any orders,
requirements or demands of Governmental Authorities related thereto,
including, without limitation, attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise
out of the gross negligence or willful misconduct of the party seeking
indemnification therefor. The agreements in this paragraph shall survive
repayment of the Loans and all other amounts payable hereunder.
6.14 Clean-Down . For a period of 15 consecutive days during each calendar
year, cause the aggregate outstanding Working Capital Revolving Credit Loans to
be $0.
6.15 Financial Statements of Tejas Natural Gas Liquids, LLC. The Company
shall deliver to the Banks on or before 60 days after the Closing the audited
statements of income of Tejas Natural Gas Liquids, LLC and its subsidiaries
(based upon the "carve-out method" of accounting) as of December 31, 1996 and
December 31, 1997.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that, so long as any Revolving Credit Commitment
remains in effect, any Revolving Credit Loan or Reimbursement Obligation remains
outstanding and unpaid or any other amount is owing to any Bank or the Agent
hereunder, the Company shall not and shall not permit any of its Subsidiaries
to, directly or indirectly:
7.1 Limitation on Debt . Incur, create, assume or suffer to exist any Debt,
except:
(a) the Revolving Credit Loans and other Indebtedness;
(b) Debt which is permitted in connection with the cost of Property
under clause (vii) of the definition of "Excepted Liens";
(c) endorsements of negotiable or similar instruments for collection
or deposit in the ordinary course of business;
(d) taxes, assessments or other government charges which are not yet
due or are being contested in good faith by appropriate action promptly
initiated and diligently conducted, if such reserve as shall be required by
GAAP shall have been made therefor;
(e) additional Debt and Guarantee Obligations, together not to exceed
$10,000,000 at any one time outstanding;
(f) Guarantee Obligations constituting performance guarantees provided
in the ordinary course of business by the Company and its Subsidiaries
supporting obligations of Subsidiaries which obligations have been incurred
in the ordinary course of business (including in connection with the
operation, construction or acquisition of pipelines and related
facilities);
(g) Guarantee Obligations of the Company of EPCO's obligations under
the Lease Agreement, dated as of September 1, 1989, between Meridian Trust
Company, as Trustee, as Lessor, and EPCO, as Lessee;
(h) Debt set forth in Schedule 7.1;
(i) Indebtedness under the Existing Credit Agreement; and
(j) Debt arising out of or pursuant to the issuance by the Company of
senior unsecured notes up to and including the aggregate principal amount
of $350,000,000.
7.2 Limitation on Liens . Create, incur, assume, permit or suffer to exist
any Lien on any of its Properties (now owned or hereafter acquired), except:
(a) Excepted Liens;
(b) additional Liens securing Debt not to exceed $10,000,000 at any
one time outstanding;
(c) Liens set forth in Schedule 7.2; and
(d) Liens relating to the obligations under the Lease Agreement
referenced in subsection 7.1(g) and the sublease between the Company and
EPCO pertaining thereto.
7.3 Limitations on Fundamental Changes . Except as permitted by subsection
7.4(b), enter into any merger, consolidation or amalgamation, or liquidate, wind
up or dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease, assign, transfer or otherwise dispose of, all or substantially all
of its property, business or assets or any direct or indirect interest in any
Permitted Joint Venture any of the interests in which is owned by a Subsidiary,
or make any material change in its present method of conducting business,
except:
(a) any Subsidiary of the Company may be merged or consolidated with
or into the Company or any one or more Subsidiaries of the Company
(provided that, if any of such Subsidiaries is not wholly owned by the
Company, the Limited Partner and the General Partner, taken together, the
Subsidiary or Subsidiaries in which the Company owns the greatest interest
or the Company shall be the continuing or surviving entity);
(b) any Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Company or any other Subsidiary in which, as to any Subsidiary not wholly
owned by the Company, the Limited Partner and the General Partner, taken
together, the Company owns at least the same percentage interests as the
Company owns in the transferor Subsidiary; and
(c) the Company and any Subsidiary may enter the natural gas
processing business generally as well as through and in connection with the
Tejas Acquisition.
7.4 Limitation on Sale of Assets . Convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets (including, without
limitation, receivables and leasehold interests), whether now owned or hereafter
acquired, except:
(a) as permitted by subsection 7.3;
(b) as long as no Default or Event of Default has occurred and is
continuing or would result therefrom the Company and its Subsidiaries may
sell or otherwise dispose of property in any fiscal year having an
aggregate value not in excess of 5% of Consolidated Tangible Net Worth
calculated on the last day of the prior fiscal quarter;
(c) the sale of inventory in the ordinary course of business; and
(d) the sale or disposition of equipment or other property or assets
that are no longer useful in the business of the Company or such Subsidiary
or are replaced by equipment or other property or assets of at least
comparable value and use.
7.5 Limitation on Dividends . Declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of the Company or any Subsidiary or any
warrants or options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Company or
any Subsidiary (such declarations, payments, setting apart, purchases,
redemptions, defeasances, retirements, acquisitions and distributions being
herein called "Restricted Payments"), except that (i) any Subsidiary may make
Restricted Payments to the Company, (ii) as long as no Default or Event of
Default has occurred and is continuing or would result therefrom, the Company
may make Restricted Payments once each fiscal quarter consisting of cash
distributions in accordance with the terms of the Partnership Agreement in order
to enable the Limited Partner to make cash distributions with respect to the
Units and the general partner interest of the Limited Partner, and (iii) as long
as no Default or Event of Default has occurred and is continuing or would result
therefrom, the Company may make Restricted Payments to the Limited Partner and
the General Partner (but only if the General Partner thereupon contributes such
Common Units to the Limited Partner) in the form of Common Units for purposes in
connection with the Limited Partner's employee deferred compensation plan, not
to exceed 500,000 Common Units in the aggregate.
7.6 Limitation on Investments . Make any Investment in any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in direct obligations of the United States of America
or any agency thereof having a maturity of less than one year;
(c) Investments in certificates of deposit of maturities less than one
year, issued by commercial banks in the United States having capital and
surplus equal to or in excess of $100,000,000;
(d) Investments made by any Subsidiary to the Company;
(e) Investments in Subsidiaries and Permitted Joint Ventures, provided
that such Investments shall be permitted only to the extent that (A) (i)
such Investments are made from funds constituting "Available Cash" (as
defined in the Partnership Agreement) for such fiscal year or (without
duplication) from the proceeds of Investment Revolving Credit Loans, after
paying in full the "Minimum Quarterly Distribution" (as defined in the
Partnership Agreement) (X) for all Common Units for any previous calendar
quarter and (Y) for all Subordinated Units for the most recently ended
calendar quarter or (ii) such Investments are made from (without
duplication of investments permitted in other clauses of this subsection
7.6) proceeds of public offerings of Units contributed as equity to the
Company, and proceeds of distributions made by Permitted Joint Ventures any
of the interests of which is owned by a Subsidiary or proceeds of
distributions made by other Permitted Joint Ventures to the Company and/or
any Subsidiary, in each case received after the date hereof and (B) in any
such case, no Default or Event of Default shall have occurred and be
continuing, or would occur as a result of such Investment;
(f) capital contributions, loans or other Investments by Subsidiaries
of the Company or any Permitted Joint Venture to or in the Company or any
Subsidiary, provided that no Default or Event of Default shall have
occurred and be continuing, or would occur as a result of such investment;
(g) capital contributions or other Investments by the Company or any
Subsidiary to any existing Permitted Joint Venture any of the interests in
which are owned by the Company or a Subsidiary in accordance with the terms
of the constitutive documents of such Permitted Joint Venture, provided in
each such case that (x) no Default or Event of Default has occurred and is
continuing or would result therefrom and (y) such Permitted Joint Venture
existed on July 27, 1998 and such capital contribution or Investment is
financed with the proceeds of any of the items referred to in subsections
7.6(e) or (h);
(h) capital contributions, loans or other Investments to the extent
made with the proceeds of public offerings of Units for the purposes
described in the offering documents for such public offerings;
(i) capital contributions or other Investments to consummate the Tejas
Acquisition;
(j) capital contributions or other Investments in connection with the
proposed acquisition of a 263 mile liquids pipeline from Sorrento,
Louisiana to Mt. Belvieu, Texas, an ethane pipeline and an ethane storage
well from Shell Chemical Company or an affiliate thereof;
(k) capital contributions or other Investments to an entity to be
owned by the Company (or a Subsidiary of the Company) and an affiliate of
Exxon Corporation in connection with a new propylene concentrator facility
in Baton Rouge, Louisiana;
(l) capital contributions or other Investments to consummate the
acquisition of the 50% general partner interest in Mont Belvieu Associates
owned by one or more Affiliates of Xxxxxx Xxxxxx Energy Partners L.P.; and
(m) other acquisitions of equity securities of, or assets constituting
a business unit of, any Person, provided that, such acquisitions do not
constitute an Investment under any of the foregoing clauses (a) through (g)
and immediately prior to and after giving effect to any such acquisition,
no Default or Event of Default shall have occurred or be continuing.
Notwithstanding the foregoing, the aggregate amount of the capital contributions
or other Investments made in Permitted Joint Ventures pursuant to paragraphs (e)
and (g) above shall not exceed $25,000,000 in any fiscal year (excluding
Investments during fiscal years 1998 and 1999 with respect to the Wilprise
Pipeline, the Tristates Pipeline, the Baton Rouge Fractionator and the NGL
Product Chiller).
7.7 Limitation on Optional Payments and Modifications of Debt Instruments
and Other Agreements . (a) Make any optional payment or prepayment on,
redemption of or purchase of, or voluntarily defease, or directly or indirectly
voluntarily or optionally purchase, redeem, retire or otherwise acquire, any
Debt (other than the Revolving Credit Loans), (b) amend, modify or change, or
consent or agree to any amendment, modification or change to, any of the terms
of any Debt (other than any such amendment, modification or change which would
extend the maturity or reduce the amount of any payment of principal thereof or
which would reduce the rate or extend the date for payment of interest thereon),
(c) amend, modify or change, or consent to any amendment, modification or change
to, any of the terms of, the Partnership Agreement, the Management Agreement,
the Company's certificate of limited partnership or any agreement under which
Debt of any Permitted Joint Venture any of the interests in which is owned by a
Subsidiary is issued, evidenced or secured, except to the extent the same could
not reasonably be expected to have a Material Adverse Effect or (d) waive or
otherwise relinquish any of its rights or causes of action arising out of the
Partnership Agreement, the Management Agreement, the Company's certificate of
limited partnership or any agreement under which Debt of any Permitted Joint
Venture any of the interests in which is owned by a Subsidiary is issued,
evidenced or secured.
7.8 Limitation on Transactions with Affiliates . Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a)(i) otherwise permitted under this Agreement, and (ii)
upon fair and reasonable terms no less favorable to the Company or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate or (b) in existence
on the Closing Date and set forth on Schedule 7.8.
7.9 Limitation on Sales and Leasebacks . Enter into any arrangement with
any Person providing for the leasing by the Company or any Subsidiary of real or
personal property which has been or is to be sold or transferred by the Company
or such Subsidiary to such Person or to any other Person to whom funds have been
or are to be advanced by such Person on the security of such property or rental
obligations of the Company or such Subsidiary.
7.10 Limitation on Changes in Fiscal Year . Permit the fiscal year of the
Company to end on a day other than December 31.
7.11 Limitation on Lines of Business . Enter into any business, either
directly or through any Subsidiary or Permitted Joint Venture, except for those
businesses in which the Company and its Subsidiaries and the Permitted Joint
Ventures are engaged on the date of this Agreement and further except for the
natural gas processing business.
7.12 Constituent Documents . Permit the amendment, waiver or modification
of the limited partnership agreement, limited liability company agreement or
certificate of formation or incorporation of any Subsidiary if such amendment
could reasonably be expected to have a Material Adverse Effect or would
authorize or issue any Capital Stock not authorized or issued on the Closing
Date, except to the extent such authorization or issuance would have the same
substantive effect as any transaction permitted by subsection 7.4.
7.13 Limitation on Restrictions Affecting Subsidiaries . Enter into, or
suffer to exist, any agreement with any Person, other than the Banks pursuant
hereto, which prohibits or limits the ability of any Subsidiary to (a) pay
dividends or make other distributions or pay any Debt owed to the Company or any
Subsidiary, (b) make loans or advances to or make other investments in the
Company or any Subsidiary, (c) transfer any of its properties or assets to the
Company or any Subsidiary or (d) transfer any of its properties or assets to the
Company or any Subsidiary.
7.14 Creation of Subsidiaries . Create or acquire any new Subsidiary of the
Company or any of its Subsidiaries, unless, immediately upon the creation or
acquisition of any such Subsidiary, no Default or Event of Default shall have
occurred and be continuing after giving effect thereto.
7.15 Hazardous Materials . Except to the extent that the same could not
reasonably be expected to have a Material Adverse Effect, permit the
manufacture, storage, transmission or presence of any Hazardous Substance over
or upon any of its properties except in accordance with all applicable
Requirements of Law or release, discharge or otherwise dispose of any Hazardous
Substance on any of its properties except that the Company and its Subsidiaries
may treat, store and transport petroleum, its derivatives, by-products and other
hydrocarbons, hydrogen sulfide and sulfur dioxide in the ordinary course of
their business.
7.16 New Partners . Permit any Permitted Joint Venture, the interests in
which are owned by the Company or any Subsidiary, formed or acquired after the
date hereof to admit any new partners or issue or sell any partnership interests
after the date on which the Company or any Subsidiary obtains its interest
therein, if in any such case the result thereof would be to dilute the economic
interest of the Company or such Subsidiary in such Permitted Joint Venture.
7.17 Holding Companies . Notwithstanding any other provisions of this
Agreement and the other Loan Documents, permit any Subsidiary which is a general
partner in or owner of a general partnership interest in a Permitted Joint
Venture to incur or suffer to exist any obligations or indebtedness of any kind,
whether contingent or fixed (excluding any contingent liability of such
Subsidiary to creditors of such Permitted Joint Venture arising solely as a
result of its status as a general partner or owner of such Permitted Joint
Venture) or create or suffer to exist any Liens, in each case except to the
extent any such obligations, indebtedness or Liens are otherwise permitted by
this Agreement; or permit any Subsidiary which is a general partner in or owner
of a general partnership interest in a Permitted Joint Venture to acquire any
property or asset after the Closing Date (or, if later, the date of acquisition
or formation of such Permitted Joint Venture) except for distributions made to
it by such Permitted Joint Venture; or permit any Subsidiary which is a general
partner in or owner of a general partnership interest in a Permitted Joint
Venture to engage in any business or activity other than holding the general
partnership interest in (or other ownership interest) such Permitted Joint
Venture held by it on the date of formation of such Permitted Joint Venture.
7.18 Actions by Permitted Joint Ventures . Consent or agree to or acquiesce
in any Permitted Joint Venture, the interests in which are owned by a
Subsidiary, changing its policy of making distributions of available cash to
partners.
7.19 Hedging Transactions . Enter into any interest rate, cross-currency,
commodity, equity or other security, swap, collar or similar hedging agreement
or purchase any option to purchase or sell or to cap any interest rate,
cross-currency, commodity, equity or other security, in any such case, other
than to hedge risk exposures in the operation of its business, ownership of
assets or the management of its liabilities.
7.20 ERISA Compliance . Permit any Plan maintained by it, any Subsidiary or
any Commonly Controlled Entity to:
(a) engage in any "prohibited transaction" as such term is defined in
Section 406 of ERISA or Section 4975 of the Code;
(b) incur any "accumulated funding deficiency", whether or not waived,
as such term is defined in Section 302 of ERISA;
(c) terminate any Single Employer Plan in a manner which could result
in the imposition of a Lien on the Property of the Company or any
Subsidiary pursuant to Section 4068 of ERISA; or
(d) become subject to any other condition, which could subject the
Company, any Subsidiary or any Commonly Controlled Entity to any tax,
penalty or other liabilities in the aggregate material in relation to the
business, operations, property, financial or other condition of the
Company, its Subsidiaries and any Commonly Controlled Entity taken as a
whole.
7.21 Financial Condition Covenants .
(a) Tangible Net Worth. Permit its Consolidated Tangible Net Worth as
of the last day of any fiscal quarter of the Company to be less than
$250,000,000.
(b) Ratio of EBITDA to Consolidated Interest Expense. For any fiscal
quarter of the Company, permit the ratio of EBITDA for the 12-month period
ended on the last day of such fiscal quarter to Consolidated Interest
Expense for such period to be less than 3.50 to 1.0.
(c) Ratio of Total Indebtedness to EBITDA. Permit the Total
Indebtedness/EBITDA Ratio to exceed 3.00 to 1.0 as of the last day of any
fiscal quarter of the Company.
For purposes of clauses (b) and (c) of this subsection, EBITDA shall mean,
at the date of determination occurring on September 30, 1999, the product of (A)
EBITDA for the nine-month period ending September 30, 1999 multiplied by (B)
12/9.
7.22 No Hostile Tender Offers. Make any hostile tender offer within the
contemplation of Section 14d of the Securities and Exchange Act of 1934, as
amended, or otherwise.
SECTION 8. EVENTS OF DEFAULT
8.1 Events . Any of the following events shall be considered an "Event of
Default" as that term is used herein:
(a) Payments - (i) default is made in the payment or prepayment when
due of any installment of principal of the Revolving Credit Loans or any
Reimbursement Obligation; or (ii) default is made in the payment of any
interest on the Revolving Credit Loans or any commitment fee provided for
herein or other Indebtedness (other than Reimbursement Obligations), within
five days after any such amount becomes due in accordance with the terms
thereof or hereof; or
(b) Representations and Warranties - any representation or warranty by
the Company herein or in any other Loan Document, or in any certificate,
request or other document furnished pursuant to or under this Agreement or
any other Loan Document proves to have been incorrect in any material
respect as of the date when made or deemed made; or
(c) Affirmative Covenants - default is made in the due observance or
performance by the Company or any Subsidiary of any of the covenants or
agreements contained in Section 6 (other than subsections 6.4(a) and 6.14)
or any other Section or subsection (except Section 7) of this Agreement,
and such default continues unremedied for a period of 30 days after the
earlier of (i) notice thereof being given by the Agent at the request or
with the consent of the Required Banks to the Company, or (ii) such default
otherwise becoming known to the Company or any Subsidiary; or
(d) Negative Covenants - default is made in the due observance or
performance by the Company or any Subsidiary of any of the covenants or
agreements contained in subsections 6.4(a) or 6.14 or Section 7 of this
Agreement; or
(e) Other Loan Document Obligations - default is made in the due
observance or performance by the Company or any Subsidiary of any of the
other covenants or agreements contained in any Loan Document other than
this Agreement, and such default continues unremedied for a period of 30
days after notice thereof being given by the Agent at the request or with
the consent of the Required Banks to the Company, or beyond the expiration
of any applicable grace period which may be expressly allowed under such
Loan Document; or
(f) Involuntary Bankruptcy or Other Proceedings - an involuntary case
or other proceeding shall be commenced against the Company or any
Subsidiary which seeks liquidation, reorganization or other relief with
respect to it or its debts or other liabilities under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its Property, and such
involuntary case or other proceeding shall remain undismissed or unstayed
for a period of 30 days; or an order for relief against the Company or any
Subsidiary shall be entered in any such case under the Federal Bankruptcy
Code; or
(g) Voluntary Petitions, etc. - the Company or any Subsidiary shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts or other
liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its Property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall be unable to or shall
fail generally to, or shall admit in writing its inability to pay its debts
generally as they become due, or shall take any corporate action to
authorize or effect any of the foregoing; or
(h) Discontinuance of Business - the Company discontinues its usual
business; or
(i) Default on Other Debt - the Company, any of its Subsidiaries or
Permitted Joint Ventures shall default (A) in any payment of principal of
or interest on any other Debt, which Debt is in the original principal
amount of $10,000,000 or more for each default, beyond any period of grace
provided with respect thereto, or (B) in the performance of any other
agreement, term, or condition relating to any other Debt if the effect of
such default is to cause such obligation to become due before its stated
maturity or to permit the holder(s) of such obligation or the trustee(s)
under any such agreement or instrument to cause such obligation to become
due prior to its stated maturity, whether or not such default or failure to
perform should be waived by the holder(s) of such obligation or such
trustee(s); or
(j) Undischarged Judgments - the Company or any of its Subsidiaries or
Permitted Joint Ventures shall fail within 30 days to pay, bond or
otherwise discharge any judgment or order for the payment of money in
excess of $5,000,000 that is not otherwise being satisfied in accordance
with its terms and is not stayed on appeal or otherwise being appropriately
contested in good faith; or
(k) If at any time the Company or any of its Subsidiaries or Permitted
Joint Ventures shall become liable for remediation and/or environmental
compliance expenses and/or fines, penalties or other charges which, in the
aggregate, are in excess of the Material Environmental Amount for the
Company and its Subsidiaries; or
(l) ERISA Events - (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan, (iii) a Reportable Event shall occur with respect to,
or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment
of a trustee is, in the reasonable opinion of the Required Banks, likely to
result in the termination of such Plan for purposes of Title IV of ERISA,
(iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) the Company or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Banks is likely to, incur any liability
in connection with a withdrawal from, or the Insolvency or Reorganization
of, a Multiemployer Plan or (vi) any other event or condition shall occur
or exist, with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such events or
conditions, if any, could subject the Company or any of its Subsidiaries to
any tax, penalty or other liabilities in the aggregate material in relation
to the business, operations, property or financial or other condition of
the Company or any of its Subsidiaries; or
(m) A Change of Control shall occur.
(n) Activities of the Limited Partner - the Limited Partner shall (a)
conduct, transact or otherwise engage in, or commit to conduct, transact or
otherwise engage in, any business or operations other than those incidental
to its ownership of the limited partner interests in the Company, (b)
incur, create, assume or suffer to exist any Debt or other liabilities or
financial obligations, other than (i) nonconsensual obligations imposed by
operation of law and (ii) obligations with respect to the Units or (c) own,
lease, manage or otherwise operate any properties or assets (including cash
and Cash Equivalents), other than (i) the limited partner interests in the
Company, (ii) ownership interests (not to exceed 1% in each such case) of a
Subsidiary and (iii) cash received in connection with dividends made by the
Company in accordance with subsection 7.5 pending application to the
holders of the Units and the General Partner Interest.
(o) Management Agreement - (i) The Management Agreement shall cease to
be in full force and effect prior to the end of the initial term thereof
substantially as in effect on the date hereof; or (ii) EPCO or the General
Partner shall default in the observance or performance of any material
provision of the Management Agreement;
8.2 Remedies . (a) Upon the occurrence of any Event of Default described in
subsection 8.1(f) or (g), the Revolving Credit Commitments and other lending
obligations, if any, of the Banks hereunder shall immediately terminate, and the
entire principal amount of all Indebtedness then outstanding (including the
Reimbursement Obligations) together with interest then accrued thereon shall
become immediately due and payable, all without written notice and without
presentment, demand, protest, notice of protest or dishonor or any other notice
of default of any kind, all of which are hereby expressly waived by the Company.
(b) Upon the occurrence and at any time during the continuance of any
other Event of Default specified in subsection 8.1, the Agent shall at the
request, or may with the consent of, the Required Banks, by written notice
to the Company (i) declare the entire principal amount of all Indebtedness
then outstanding (including the Reimbursement Obligations) together with
interest then accrued thereon to be immediately due and payable without
presentment, demand, protest, notice of protest or dishonor or other notice
of default of any kind, all of which are hereby expressly waived by the
Company and/or (ii) terminate the Revolving Credit Commitments and other
lending obligations, if any, of the Banks hereunder unless and until the
Agent and the Banks shall reinstate the same in writing. With respect to
all Letters of Credit with respect to which presentment for honor shall not
have occurred at the time of an acceleration pursuant to this paragraph,
the Company shall at such time deposit in a cash collateral account opened
by the Agent an amount equal to the aggregate then undrawn and unexpired
amount of such Letters of Credit. Amounts held in such cash collateral
account shall be applied by the Agent to the payment of drafts drawn under
such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of the Company hereunder and
under the other Loan Documents. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have
been satisfied and all other obligations of the Company hereunder and under
the other Loan Documents shall have been paid in full, the balance, if any,
in such cash collateral account shall be returned to the Company (or such
other Person as may be lawfully entitled thereto).
8.3 Right of Set-off . Upon (i) the occurrence and during the continuance
of any Event of Default or if (ii) the Company becomes insolvent, however
evidenced, the Agent and the Banks are hereby authorized at any time and from
time to time, without notice to the Company (any such notice being expressly
waived by the Company), to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Agent or any Bank to or for the credit or
the account of the Company against any and all of the Indebtedness (including
the Reimbursement Obligations) of the Company irrespective of whether or not the
Agent or any Bank shall have made any demand under this Agreement or the
Revolving Credit Loans and although such obligations may be unmatured. If an
amount to be set-off by any Bank is to be applied to obligations of the Company
to such Bank other than the Indebtedness, such amount shall be applied ratably
to such other obligations and to the Indebtedness. If any Bank (a "benefitted
Bank") shall at any time receive any payment of all or part of its Revolving
Credit Loans, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in clause (f) or (g) of subsection 8.1, or
otherwise) in a greater proportion than any such payment to and collateral
received by any other Bank, if any, in respect of such other Bank's Revolving
Credit Loans, or interest thereon, such benefitted Bank shall purchase for cash
from the other Banks such portion of each such other Bank's Revolving Credit
Loans, or shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. The
Company agrees that each Bank so purchasing a portion of another Bank's
Revolving Credit Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Bank were the direct holder of such portion. In case any payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made. The
Agent and the Banks agree promptly to notify the Company after any such set-off
and application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of the Agent and the
Banks under this subsection are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Agent or the
Banks may have.
SECTION 9. CONDITIONS OF LENDING
9.1 Conditions to Initial Revolving Credit Loans and Letters of Credit .
The effectiveness of this Agreement and the agreement of each Bank to make
available the Revolving Credit Loans and to participate in the initial issuance
or continuation of the Letters of Credit on the Closing Date pursuant to this
Agreement are subject to the satisfaction of the conditions precedent stated in
this subsection 9.1 wherein each document to be delivered to the Agent or any
Bank shall be in form and substance satisfactory to the Agent or such Bank and
(except for the Revolving Credit Notes and the notices referred to in subsection
11.1(a)) in sufficient copies for each Bank:
(a) Credit Agreement and Revolving Credit Notes. The Company shall
have duly and validly executed and delivered to the Agent this Agreement
and, for the account of each Bank which so requests, a Revolving Credit
Note.
(b) Compliance Certificate. The Agent shall have received a compliance
certificate, which shall be true and correct, in the form of Exhibit C,
duly and properly executed by a Responsible Officer of the Company, and
dated as of the date of this Agreement.
(c) Secretary's Certificates. The Agent shall have received
certificates of the Secretary or Assistant Secretary of the Company setting
forth (x) resolutions of its board of directors (or other equivalent body)
in form and substance satisfactory to the Agent with respect to the
authorization of this Agreement and any other Loan Documents provided
herein and the officers of the Company authorized to sign such instruments,
(y) specimen signatures of the officers so authorized and (z) a duly
executed copy of the Partnership Agreement and the Management Agreement
certified by the General Partner and a certificate of limited partnership
of the Company.
(d) Legal Opinions. The Agent shall have received, with a counterpart
for each Bank, the following executed legal opinions:
(i) the executed legal opinion of Xxxxx & Xxxxx, counsel to the
Company, dated the Closing Date and substantially in the form of
Exhibit B-1, with such changes therein as shall be requested or
approved by the Agent;
(ii) the executed legal opinion of Xxxxxxx X. Xxxxxxxx, Esq.,
chief legal officer of the Company, dated the Closing Date and
substantially in the form of Exhibit B-2, with such changes therein as
shall be requested or approved by the Agent;
Each such legal opinion shall cover such matters incident to the
transactions contemplated by this Agreement and the Loan Documents as
the Agent may reasonably require.
(e) Approvals. All governmental and third party approvals (including
landlords' and other consents) necessary in connection with the continuing
operations of the Company and its Subsidiaries and the transactions
contemplated hereby shall have been obtained and be in full force and
effect, and all applicable waiting periods shall have expired without any
action being taken or threatened by any competent authority that would
restrain, prevent or otherwise impose adverse conditions on the financing
contemplated hereby.
(f) Existing Credit Agreement. The Company shall have executed an
amendment to the Existing Credit Agreement satisfactory to the Banks.
(g) EPCO Credit Agreement. EPCO shall have executed an amendment to
the EPCO Credit Agreement satisfactory to the Banks.
(h) Acquisition. The Tejas Acquisition shall have been consummated in
form and substance satisfactory to the Banks.
(i) Financial Statements. The Banks shall have received and be
reasonably satisfied with the financial statements referred to in
subsection 5.1, and such financial statements shall not, in the judgment of
the Banks, reflect any material adverse change in the consolidated
financial condition of the Company or EPCO as reflected in the financial
statements or projections previously delivered to the Banks.
(j) No Defaults. There shall exist no event of default (or condition
which would constitute an event of default with the giving of notice or the
passage of time) under any material Capital Stock, financing agreements,
lease agreements, partnership agreements or other material contracts of the
Company, its Subsidiaries, or to the Company's knowledge, the Permitted
Joint Ventures.
(k) Fees. The Agent and the Banks shall have received all fees and
expenses required to be paid on or before the Closing Date.
(l) No Material Adverse Effect. There shall have occurred, in the sole
opinion of the Required Banks, no change, either in any case or in the
aggregate, in the condition, financial or otherwise, of the Company or any
Subsidiary or with respect to the Company's or any Subsidiary's Properties
from the facts represented in this Agreement or any other Loan Document,
which could reasonably be expected to have a Material Adverse Effect.
(m) The Banks shall have received the audited balance statement and
the audited statement of income of Tejas Natural Gas Liquids, LLC and its
subsidiaries (based upon the "carve-out method" of accounting) as of
December 31, 1998.
9.2 Conditions to Each Revolving Credit Loan and Letter of Credit . The
several obligations of the Banks to make any Revolving Credit Loans on any date
and to participate in the issuance or continuation of any Letters of Credit on
any date are subject to the satisfaction of the conditions precedent stated in
this subsection 9.2 wherein each document to be delivered to the Agent or any
Bank shall be in form and substance satisfactory to the Agent and such Bank and
in sufficient copies for each Bank.
(a) Representations and Warranties. Each of the representations and
warranties made by the Company, in or pursuant to this Agreement or any
other Loan Document shall be true and correct in all material respects on
and as of such date as if made on and as of such date (unless such
representations and warranties are stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date).
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the Revolving Credit
Loans or the Letters of Credit requested to be made or opened, as the case
may be, on such date.
(c) No Litigation. No litigation, investigation or proceeding before
or by any arbitrator or Governmental Authority shall be continuing or
threatened against the Company or any Subsidiary or any of the officers or
directors of any thereof in connection with this Agreement or any other
Loan Document.
(d) Additional Documents. The Agent shall have received each
additional document, instrument, legal opinion or item of information
reasonably requested by the Agent, including, without limitation, a copy of
any debt instrument, security agreement or other material contract to which
the Company or any Subsidiary may be a party.
(e) Additional Matters. All corporate, partnership and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and any
other Loan Document shall be satisfactory in form and substance to the
Agent, and the Agent shall have received such other documents, legal
opinions and other opinions in respect of any aspect or consequence of the
transactions contemplated hereby as they shall reasonably request. Each
borrowing by, and each issuance of a Letter of Credit for the account of,
the Company hereunder shall constitute a representation and warranty by the
Company as of the date of such borrowing or issuance, as the case may be,
that the conditions contained in this subsection 9.2 have been satisfied.
SECTION 10. THE AGENT
10.1 Appointment . Each Bank hereby irrevocably designates and appoints the
Agent as the agent of such Bank under this Agreement and the other Loan
Documents, and each such Bank irrevocably authorizes the Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
10.2 Delegation of Duties . The Agent may execute any of its duties under
this Agreement and the other Loan 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 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 (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
under or in connection with this Agreement or any other Loan Document (except to
the extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from its or such
Person's own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Banks for any recitals, statements, representations or
warranties made by the Company or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agent under or
in connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of the Company to
perform its obligations hereunder or thereunder. The Agent shall not be under
any obligation to any Bank to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Company.
10.4 Reliance by Agent . The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, 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 Company), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the payee of any Revolving
Credit Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Banks (or, if so specified by
this Agreement, all Banks) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense that 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, under this Agreement and the other Loan Documents in
accordance with a request of the Required Banks (or, if so specified by this
Agreement, all Banks), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks and all future holders of
the Revolving Credit Loans.
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 Bank or the Company referring to this
Agreement, 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 notice thereof to the Banks. The Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks (or, if so specified by this
Agreement, all Banks); provided that unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Banks.
10.6 Non-Reliance on Agent and Other Banks . Each Bank expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates have made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Company or any affiliate thereof, shall be
deemed to constitute any representation or warranty by the Agent to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Company and its affiliates and made its
own decision to make its Loans hereunder and enter into this Agreement. Each
Bank also represents that it will, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Company and its affiliates. Except for
notices, reports and other documents expressly required to be furnished to the
Banks by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Company or any affiliate
thereof that may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification . The Banks agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Company and without
limiting the obligation of the Company to do so), ratably according to their
respective Commitment Percentages in effect on the date on which indemnification
is sought under this subsection 10.7 (or, if indemnification is sought after the
date upon which the Revolving Credit Commitments shall have terminated and the
Revolving Credit Loans shall have been paid in full, ratably in accordance with
such Commitment Percentages immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever that
may at any time (including, without limitation, at any time following the
payment of the Revolving Credit Loans) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of, the Revolving Credit
Commitments, this Agreement, any of the other Loan 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 Bank shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Revolving Credit Loans and all other amounts payable hereunder. The
Administrative Agent shall have the right to deduct any amount owed to it by any
Bank under this subsection 10.7 from any payment made by it to such Bank
hereunder. 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 Company as though the Agent was not the Agent. With respect to
its Revolving Credit Loans made or renewed by it and with respect to any Letter
of Credit issued or participated in by it, the Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Bank and may
exercise the same as though it were not the Agent, and the terms "Bank" and
"Banks" shall include the Agent in its individual capacity.
10.9 Successor Agent . The Agent may resign as Agent upon 10 days' notice
to the Banks and the Company. If the Agent shall resign as Agent under this
Agreement and the other Loan Documents, then the Required Banks shall appoint
from among the Banks a successor agent for the Banks, which successor agent
shall (unless an Event of Default shall have occurred and be continuing) be
subject to approval by the Company (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Agent, and the term "Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Agent's rights, powers and duties as Agent shall be terminated, without any
other or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Revolving Credit Loans. If no
successor agent has accepted appointment as Agent by the date that is 10 days
following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Banks shall
assume and perform all of the duties of the Agent hereunder until such time, if
any, as the Required Banks appoint a successor agent as provided for above.
After any retiring Agent's resignation as Agent, the provisions of this Section
10 shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement and the other Loan Documents.
SECTION 11. MISCELLANEOUS
11.1 Notices . Any notice, request or demand required or permitted to be
given or made under or in connection with this Agreement or the Revolving Credit
Loans shall be in writing and shall be mailed by first class or express mail,
postage prepaid, or sent by telex, telegram, telecopy or other similar form of
rapid transmission confirmed by mailing (by first class or express mail, postage
prepaid) written confirmation at substantially the same time as such rapid
transmission, or personally delivered to an officer of the receiving party. All
such communications shall be mailed, sent or delivered,
(a) if to the Company, to the address shown opposite its signature to
this Agreement, or to such other address or to such individual's or
department's attention as the Company may have furnished the Agent and the
Banks in writing; or
(b) if to the Agent, to its address shown opposite its signature to
this Agreement, or to such other address or to such individual's or
department's attention as it may have furnished to the Company and the
Banks in writing; or
(c) if to the Banks, to their respective addresses shown opposite
their respective signatures to this Agreement, or to such other address or
to such individual's or department's attention as any Bank may have
furnished the Company and the Agent in writing.
Any notice, request or demand so addressed and mailed shall be deemed to be
given when so mailed, except that any notice, request or demand to or upon
the Agent or the Banks pursuant to subsection 2.3, 2.4, 3.2, 4.1 or 4.4 or
communications related to such notice, request or demand shall not be
effective until actually received by the Agent; and any notice, request or
demand so sent by rapid transmission shall be deemed to be given when
receipt of such transmission is acknowledged, and any request or demand so
delivered in person shall be deemed to be given when receipted for by, or
actually received by, an authorized officer of the Company, the Agent or a
Bank, as the case may be.
11.2 Amendments and Waivers . Any provision of this Agreement or any other
Loan Document may be amended or waived if, but only if, such amendment or waiver
is (a) consented to in writing by the Required Banks and (b) in writing and is
signed by the Company (and/or any other Person which is a party to any other
Loan Document being amended or with respect to which a waiver is being obtained)
and the Agent; provided that no such amendment or waiver shall, (a) unless
signed by all the Banks, (i) change the Revolving Credit Commitment of any Bank
or subject any Bank to any additional obligation, (ii) change the principal of
or decrease the rate of interest on the Revolving Credit Loans or any fees
hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on the Revolving Credit Loans, the Indebtedness or any fees hereunder,
(iv) change the Commitment Percentages or reduce the percentage specified in the
definition of Required Banks, (v) defer or reduce any payment of principal or
interest on the Revolving Credit Loans or (vi) amend, modify or waive any
provision of this subsection, (b) amend, modify or waive any provision of
Sections 3 or 10 without the written consent of the then Agent. Any such waiver
and any such amendment, supplement or modification shall apply equally to each
of the Banks and shall be binding upon the Company, the Banks, the Agent and all
future holders of the Revolving Credit Loans. In the case of any waiver, the
Company, the Banks and the Agent shall be restored to their former position and
rights hereunder and under the outstanding Revolving Credit Loans, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
11.3 Invalidity . In the event that any one or more of the provisions
contained in this Agreement or any other Loan Document shall, for any reason, be
held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other Loan Document.
11.4 Successors and Assigns; Participations; Purchasing Banks .
(a) This Agreement shall be binding upon and inure to the benefit of
the Company, the Banks, the Agent, all future holders of the Revolving
Credit Loans and their respective successors and assigns, except that the
Company may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or
more banks or other entities ("Participants") participating interests in
any Revolving Credit Loan owing to such Bank, any Revolving Credit
Commitment of such Bank or any other interest of such Bank hereunder and
under the other Loan Documents. In the event of any such sale by a Bank of
participating interests to a Participant, such Bank's obligations under
this Agreement to the other parties to this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Revolving Credit
Loan for all purposes under this Agreement and the other Loan Documents,
and the Company and the Agent shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations under
this Agreement and the other Loan Documents. The Company agrees that if
amounts outstanding under this Agreement and the Revolving Credit Loans are
due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall
be deemed to have the right of setoff in respect of its participating
interest as if the amount of its participating interest were owing directly
to it as a Bank under this Agreement or any Note, provided that such
Participant shall only be entitled to such right of setoff if it shall have
agreed in the agreement pursuant to which it shall have acquired its
participating interest to share with the Banks the proceeds thereof as
provided in subsection 8.3. The Company also agrees that each Participant
shall be entitled to the benefits of subsections 4.11, 4.12 and 4.13 with
respect to its participation in the Revolving Credit Commitments and the
Revolving Credit Loans outstanding from time to time; provided, that no
Participant shall be entitled to receive any greater amount pursuant to
such subsections than the transferor Bank would have been entitled to
receive in respect of the amount of the participation transferred by such
transferor Bank to such Participant had no such transfer occurred.
(c) Any Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to any Bank or any
affiliate thereof and, with the consent of the Company (so long as no Event
of Default shall have occurred and is continuing, in which case the consent
of the Company shall not be required) and the Agent (which in each case
shall not be unreasonably withheld), to one or more additional banks or
financial institutions ("Purchasing Banks") all or any part of its rights
and obligations under this Agreement and the Revolving Extensions of Credit
pursuant to a Commitment Transfer Supplement, substantially in the form of
Exhibit D, executed by such Purchasing Bank, such transferor Bank (and, in
the case of a Purchasing Bank that is not then a Bank or an affiliate
thereof, by the Company and the Agent) and delivered to the Agent for its
acceptance and recording in the Register. Upon such execution, delivery,
acceptance and recording, from and after the Transfer Effective Date
determined pursuant to such Commitment Transfer Supplement, (x) the
Purchasing Bank thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and
obligations of a Bank hereunder with a Revolving Credit Commitment as set
forth therein, and (y) the transferor Bank thereunder shall, to the extent
provided in such Commitment Transfer Supplement, be released from its
obligations under this Agreement (and, in the case of a Commitment Transfer
Supplement covering all or the remaining portion of a transferor Bank's
rights and obligations under this Agreement, such transferor Bank shall
cease to be a party hereto). Such Commitment Transfer Supplement shall be
deemed to amend this Agreement to the extent, and only to the extent,
necessary to reflect the addition of such Purchasing Bank and the resulting
adjustment of Commitment Percentages arising from the purchase by such
Purchasing Bank of all or a portion of the rights and obligations of such
transferor Bank under this Agreement and the Revolving Credit Notes. On or
prior to the Transfer Effective Date determined pursuant to such Commitment
Transfer Supplement, the Company, at its own expense, shall, to the extent
requested by the Purchasing Bank or the transferor Bank, execute and
deliver to the Agent in exchange for the surrendered Revolving Credit Note
a new Revolving Credit Note to the order of such Purchasing Bank in an
amount equal to the Revolving Credit Commitment assumed by it pursuant to
such Commitment Transfer Supplement and, if the transferor Bank has
retained a Revolving Credit Commitment hereunder, new Revolving Credit
Notes to the order of the transferor Bank in an amount equal to the
Revolving Credit Commitment retained by it hereunder. Such new Revolving
Credit Notes shall be dated the Closing Date and shall otherwise be in the
form of the Revolving Credit Notes replaced thereby. The Revolving Credit
Notes surrendered by the transferor Bank shall be returned by the Agent to
the Company marked "canceled".
(d) The Agent shall maintain at its address referred to in subsection
11.1 a copy of each Commitment Transfer Supplement delivered to it and a
register (the "Register") for the recordation of the names and addresses of
the Banks and the Revolving Credit Commitment of, and principal amount of
the Revolving Credit Loans owing to, each Bank from time to time. The
entries in the Register shall be conclusive, in the absence of manifest
error, and the Company, the Agent and the Banks may treat each Person whose
name is recorded in the Register as the owner of the Loan recorded therein
for all purposes of this Agreement. The Register shall be available for
inspection by the Company or any Bank at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement executed by a
transferor Bank and Purchasing Bank (and, in the case of a Purchasing Bank
that is not then a Bank or an affiliate thereof, by the Company and the
Agent), together with payment to the Agent of a registration and processing
fee of $4,000, the Agent shall (i) promptly accept such Commitment Transfer
Supplement, (ii) on the Transfer Effective Date determined pursuant thereto
record the information contained therein in the Register and (iii) give
notice of such acceptance and recordation to the Banks and the Company.
(f) The Company authorizes each Bank to disclose to any Participant or
Purchasing Bank (each, a "Transferee") and any prospective Transferee any
and all financial information in such Bank's possession concerning the
Company and its affiliates which has been delivered to such Bank by or on
behalf of the Company pursuant to this Agreement or which has been
delivered to such Bank by or on behalf of the Company in connection with
such Bank's credit evaluation of the Company and its affiliates prior to
becoming a party to this Agreement.
(g) If, pursuant to this subsection, any interest in this Agreement or
any Revolving Credit Loan is transferred to any Transferee which is
organized under the laws of any jurisdiction other than the United States
or any state thereof, the transferor Bank shall cause such Transferee,
concurrently with the effectiveness of such transfer, (i) to represent to
the transferor Bank (for the benefit of the transferor Bank, the Agent and
the Company) that under applicable law and treaties no taxes will be
required to be withheld by the Agent, the Company or the transferor Bank
with respect to any payments to be made to such Transferee in respect of
the Revolving Credit Loans, (ii) to furnish to the transferor Bank (and, in
the case of any Purchasing Bank registered in the Register, the Agent and
the Company) either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such Transferee claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder) and (iii) to agree (for the benefit of the
transferor Bank, the Agent and the Company) to provide the transferor Bank
(and, in the case of any Purchasing Bank registered in the Register, the
Agent and the Company) a new Form 4224 or Form 1001 upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such Transferee, and to comply from time to time
with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
(h) Nothing herein shall prohibit any Bank from pledging or assigning
any Note to any Federal Reserve Bank in accordance with applicable law.
11.5 No Waiver; Cumulative Remedies . No failure to exercise and no delay
in exercising, on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder or under the Loan Documents, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided or provided in the Loan
Documents are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
11.6 Payment of Expenses, Taxes and Indemnification . The Company agrees
(a) to pay or reimburse the Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement, the other
Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Agent, (b) to pay or reimburse each Bank and the Agent for all
its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, fees and disbursements
of counsel to the Agent and to the several Banks and (c) to pay, indemnify, and
hold each Bank and the Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Bank and the Agent harmless from and against
any and all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents or in respect of the use of the proceeds of the Revolving Credit Loans
hereunder (all the foregoing, collectively, the "indemnified liabilities"),
provided that the Company shall have no obligation hereunder with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of such indemnified party. The agreements in this subsection shall survive
repayment of the Revolving Credit Loans and all other amounts payable hereunder.
11.7 GOVERNING LAW . THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.8 Several Obligations . The respective obligations of the Banks under
this Agreement are several and not joint, and no Bank shall be the partner or
agent of any other (except to the extent to which the Agent is authorized to act
as such). The failure of any Bank to perform any of its obligations hereunder
shall not relieve any other Bank from any of its obligations hereunder.
11.9 Interest . (a) It is the intention of the parties hereto that each
Bank shall conform strictly to usury laws applicable to it. Accordingly, if the
transactions contemplated hereby would be usurious as to any Bank under laws
applicable (including the laws of the United States of America, the State of
New York or any other jurisdiction whose laws may be mandatorily applicable to
such Bank notwithstanding the other provisions of this Agreement), then, in that
event, notwithstanding anything to the contrary in this Agreement or in any
other Loan Document, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under law applicable to any Bank that
is contracted for, taken, reserved, charged or received by such Bank under this
Agreement or under any other Loan Document shall under no circumstances exceed
the maximum amount allowed by such applicable law (the "Maximum Rate"), and any
excess shall be credited by such Bank on the principal amount of the Revolving
Credit Loans (or, if the principal amount of the Revolving Credit Loans shall
have been or would thereby be paid in full, refunded by such Bank to the
Company); and (ii) in the event that the maturity of the Revolving Credit Loans
is accelerated by reason of an election of the holder thereof resulting from any
Event of Default under this Agreement or otherwise, or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest under law applicable to any Bank may never include more than the
maximum amount allowed by such applicable law, and excess interest, if any,
provided for in this Agreement or otherwise shall be canceled automatically by
such Bank as of the date of such acceleration or prepayment and, if theretofore
paid, shall be credited by the Bank on the principal amount of the Revolving
Credit Loans (or, if the principal amount of the Revolving Credit Loans shall
have been paid in full, refunded by such Bank to the Company).
(b) Recapture. If at any time the rate of interest on any Revolving Credit
Loans would exceed the Maximum Rate but for the foregoing limitation, the
interest rate on such Revolving Credit Loans shall remain at the Maximum Rate,
notwithstanding subsequent reduction of the rate of interest on such Revolving
Credit Loans, until the total amount of interest accrued thereon equals the
amount of interest which would have accrued if the rate of interest on such
Revolving Credit Loans had not been limited to the Maximum Rate, but nothing in
this paragraph shall effect or extend the maturity of such Revolving Credit
Loans.
If at maturity or final payment of any Revolving Credit Loans, the total
amount of interest accrued thereon is less than the total amount of interest
which would have accrued had the rate of interest on such Revolving Credit Loans
not been limited to the Maximum Rate, the Company agrees, to the full extent
permitted by law, to pay to the Banks an amount equal to the positive
difference, if any, derived by subtracting (a) the amount of interest which
accrued thereon pursuant to the provisions of the foregoing two paragraphs from
(b) the lesser of (i) the amount of interest which would have accrued on such
Revolving Credit Loans if the Maximum Rate had at all times been in effect, and
(ii) the amount of interest which would have accrued if the rate of interest on
such Revolving Credit Loans, not limited to the Maximum Rate, had at all times
been in effect.
11.10 Governmental Regulation . Anything contained in this Agreement to the
contrary notwithstanding, no Bank shall be obligated to extend credit to the
Company in an amount in violation of any limitation or prohibition.
11.11 Entire Agreement . This Agreement and the other Loan Documents embody
the entire agreement and understanding between the Agent, the Banks and the
Company and supersede all prior agreements and understandings between such
parties relating to the subject matter hereof and thereof.
11.12 Exhibits . The exhibits attached to this Agreement are incorporated
herein and shall be considered a part of this Agreement for the purposes stated
herein, except that in the event of any conflict between any of the provisions
of such exhibits and the provisions of this Agreement, the provisions of this
Agreement shall prevail.
11.13 Titles of Sections and Subsections . All titles or headings to
sections, subsections or other divisions of this Agreement or the exhibits
hereto are only for the convenience of the parties and shall not be construed to
have any effect or meaning with respect to the other content of such sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
11.14 Number of Documents . All statements, notices, reports and requests
hereunder shall be furnished to the Agent with sufficient counterparts so that
the Agent may furnish one to each of the Banks.
11.15 SUBMISSION TO JURISDICTION; WAIVERS . (1) THE COMPANY HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(I) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO WHICH
IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT OF ANY THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(II) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(III) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL
(OR ANY SUBSTANTIALLY SIMILAR FORM AND MAIL), POSTAGE PREPAID, TO IT AT ITS
ADDRESS SPECIFIED IN SUBSECTION 11.1;
(IV) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
(V) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO
IN THIS SUBSECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
(2) THE COMPANY, THE BANKS AND THE AGENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.16 Interpretation . Any conflict or inconsistency between a provision of
this Agreement and the corresponding provision of any of the Loan Documents
shall be resolved in favor of this Agreement.
11.17 Counterparts . This Agreement may be executed in two or more
counterparts, and it shall not be necessary that the signatures of all parties
hereto be contained on any one counterpart hereof; each counterpart shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
11.18 Co-Arrangers, etc. The Co-arrangers, co-agents and documentation
agent, in their capacities as such, shall not have any duties or
responsibilities under or pursuant to this Agreement.
THIS WRITTEN AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE OTHER INSTRUMENTS
AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH, REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
[Signatures begin on next page]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed in New York, New York by their proper and duly authorized officers
as of the date first above written.
Addresses:
Delivery: COMPANY:
ENTERPRISE PRODUCTS OPERATING L.P.
0000 Xxxxx Xxxx Xxxx
0xx Xxxxx
Xxxxxxx, Xxxxx 00000 By: Enterprise Products GP, LLC, General Partner
Mail: By: /s/ Xxxx X. Xxxxxx
P. O. Box 4324 --------------------------------------------
Houston, Texas 77210-4324 Xxxx X. Xxxxxx
Executive Vice President and Chief
Financial Officer
BANKS AND AGENTS:
THE CHASE MANHATTAN BANK,
Mail: as Agent and as a Bank
000 Xxxxxx Xxxxxx
0xx Xxxxx By: /S/ Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000 ----------------------------
Name: Xxxxx Xxxx
With copy to: Title: Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
THE FIRST NATIONAL BANK OF CHICAGO,
Mail: as Documentation Agent and as a Bank
One First National Plaza
Mail Suite 0362 By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx, XX 00000 ------------------------------
Attn: Xxxxxxx Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President
With copy to:
000 Xxxxxx Xxxxxx
Xxxx Xxxxx XX0-0000
Attn: Xxxxxxx X. Xxxxxx
THE BANK OF NOVA SCOTIA,
Mail: as Syndication Agent and as a Bank
The Bank of Nova Scotia
Houston Representative Office By: /s/ F.C.H. Xxxxx
1100 Louisiana, Suite 3000 -------------------------------
Xxxxxxx, XX 00000 Name: F.C.H. Xxxxx
Attn: Xxxxx Xxxxxx Title: Senior Manager Loan Operations
With copy to:
The Bank of Nova Scotia
Atlanta Agency
000 Xxxxxxxxx Xx. XX
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
FIRST UNION NATIONAL BANK
Mail:
0000 Xxxxxx Xxxxxx By: /s/ illegible signature
Suite 2255 -------------------------------
Xxxxxxx, XX 00000 Name:
Attn: Xxxxx Xxxxxxx Title:
SOCIETE GENERALE
Mail:
1111 Xxxxx By: /s/ Bet Hunter
Suite 2020 ------------------------------
Xxxxxxx, XX 00000 Name: Bet Hunter
Attn: Xxxxxxxxx Xxxxxx Title:
With copy to:
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx Row
BANKBOSTON, N.A.
Mail:
000 Xxxxxxx Xx. By: /s/ Xxxxxxxx X. Xxxxxxxxx
01-08-04 -------------------------------
Xxxxxx, XX 00000 Name: Xxxxxxxx X. Xxxxxxxxx
Attn: Xxxxxxxxxxx Xxxxxxxx Title: Managing Director
THE FUJI BANK, LIMITED
Mail: NEW YORK BRANCH
Two World Trade Center By: /s/ Xxxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 -------------------------------
Attn: Xxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx
Title: Vice President & Manager
BANK OF TOKYO-MITSUBISHI, LTD.,
Mail: HOUSTON AGENCY
0000 Xxxxxxxxx Xxxxxx By: /s/ I Otani
Suite 2800 -------------------------------
Houston, TX 77002-5216 Name: X. Xxxxx
Attn: Xxxx X. XxXxxxxx Title: Deputy General Manager
TORONTO DOMINION (TEXAS), INC.
Mail:
Toronto Dominion Securities By: /s/ Xxxx X. Xxxxx
000 Xxxxxx Xxxxxx, 17th Floor -------------------------------
Xxxxxxx, XX 00000 Name: Xxxx X. Xxxxx
Attn: Xxxx Xxxxx Title: Vice President
Energy Services-Houston
CREDIT AGRICOLE INDOSUEZ
Mail:
000 Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Suite 2340 -------------------------------
Xxxxxxx, XX 00000 Name: Xxxxxxx X. Xxxxxxx
Attn: Xxxx Xxxxxxx Title: Senior Relationship Manager
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: First Vice President
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
Mail: AG, CAYMAN ISLAND BRANCH
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000 By: /s/ Xxxx X. Xxxxxxxx
Attn: Xxxx X. Xxxxxxxx -------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
GUARANTY FEDERAL BANK, F.S.B.
Mail:
0000 XX Xxxx 410 By: /s/ Xxx X. Xxxxxxxx
Xxx Xxxxxxx, XX 00000 -------------------------------
Attn: Xxx X. Xxxxxxxx Name: Xxx X. Xxxxxxxx
Title: Vice President
With copy to:
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxx-Xxxxxx
CREDIT LYONNAIS NEW YORK BRANCH
0000 Xxxxxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxx
Suite 5360 -------------------------------
Xxxxxxx, XX 00000 Name: Xxxxxxx Xxxxxxx
Attn: Xxxxxxx Xxxxxxx Title: Executive Vice President
MEESPIERSON CAPITAL CORP.
Mail:
000 Xxxxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
Suite 1750 -------------------------------
Xxxxxx, XX 00000 Name: Xxxxxxx X. Xxxxxx
Attn: Xxxxxxx X. Xxxxxx Title: Senior Vice President
HIBERNIA NATIONAL BANK
Mail:
000 Xxxxxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
Xxx Xxxxxxx, XX 00000 -------------------------------
Attn: Xxxxx Xxxxxxx Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
THE DAI-ICHI KANGYO BANK, LTD.
Mail:
One World Trade Center By: /s/ Xxxxxxx Xxxxx
-------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
Enterprise Products Operating L.P.
Revolving Credit Commitments
Credit Agreement dated July 28, 1999
Working
Investment Capital Total
Revolving Revolving Revolving
Credit Credit Credit
Committment Committment Committment
----------- ----------- -----------
The Chase Manhattan Bank 8.57% $ 25,714,285.68 $ 4,285,714.32 $ 30,000,000.00
The Bank of Nova Scotia 8.29% 24,857,142.86 4,142,857.14 29,000,000.00
First Union National Bank 8.29% 24,857,142.86 4,142,857.14 29,000,000.00
Societe Generale 8.29% 24,857,142.86 4,142,857.14 29,000,000.00
BankBoston, NA 8.29% 24,857,142.86 4,142,857.14 29,000,000.00
The First National Bank of Chicago 8.29% 24,857,142.86 4,142,857.14 29,000,000.00
The Fuji Bank, Limited 7.14% 21,428,571.43 3,571,428.57 25,000,000.00
Bank of Tokyo-Mitsu, Houston Agency 7.14% 21,428,571.43 3,571,428.57 25,000,000.00
Toronto Dominion (Texas) Inc. 7.14% 21,428,571.43 3,571,428.57 25,000,000.00
Credit Agricole Indosuez 4.29% 12,857,142.86 2,142,857.14 15,000,000.00
DG Bank Duetsche Genossenchaftsban 4.29% 12,857,142.86 2,142,857.14 15,000,000.00
Guaranty Federal Bank, FSB 4.29% 12,857,142.86 2,142,857.14 15,000,000.00
Credit Lyonnais New York Branch 4.29% 12,857,142.86 2,142,857.14 15,000,000.00
Meespierson Capital Corp 4.29% 12,857,142.86 2,142,857.14 15,000,000.00
The DAI-ICHI Kangyo Bank, Ltd 4.29% 12,857,142.86 2,142,857.14 15,000,000.00
Hibernia National Bank 2.86% 8,571,428.57 1,428,571.43 10,000,000.00
---- ------------ ------------ -------------
Totals 100.00% $300,000,000.00 $50,000,000.00 $350,000.000.00
====== =============== ============== ===============
Schedule I
Revolving Credit Commitments
Investment Revolving Working Capital Revolving
Bank Credit Commitment Credit Commitment
---- ----------------- -----------------
The Chase Manhattan Bank $25,714,285.68 $4,285,714.32
Total Revolving Credit Commitment $30,000,000
Domestic Lending Office and Eurodollar Lending Office:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The Bank of Nova Scotia $24,857,142.86 $4,142,857.14
Total Revolving Credit Commitment $29,000,000
Domestic Lending Office and Eurodollar Lending Office:
The Bank of Nova Scotia,
Atlanta Agency
000 Xxxxxxxxx Xx., X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
First Union National Bank $24,857,142.86 $4,142,857.14
Total Revolving Credit Commitment $29,000,000
Domestic Lending Office and Eurodollar Lending Office:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Investment Revolving Working Capital Revolving
Bank Credit Commitment Credit Commitment
---- ----------------- -----------------
Societe Generale $24,857,142.86 $4,142,857.14
Total Revolving Credit Commitment $29,000,000
Domestic Lending Office and Eurodollar Lender Office:
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
BankBoston, N.A. $24,857,142.86 $4,142,857.14
Total Revolving Credit Commitment $29,000,000
Domestic Lending Office and Eurodollar Lending Office:
000 Xxxxxxx Xxxxxx
00-00-00
Xxxxxx, XX 00000
The First National Bank of $24,857,142.86 $4,142,857.14
Chicago
Total Revolving Credit Commitment $29,000,000
Domestic Lending Office and Eurodollar Lending Office:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
The Fuji Bank, Limited $21,428,571.43 $3,571,428.57
Total Revolving Credit Commitment $25,000,000
Domestic Lending Office and Eurodollar Lending Office:
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Investment Revolving Working Capital Revolving
Bank Credit Commitment Credit Commitment
---- ----------------- -----------------
Bank of Tokyo-Mitsubishi, $21,428,571.43 $3,571,428.57
Ltd., Houston Agency
Total Revolving Credit Commitment $25,000,000
Domestic Lending Office and Eurodollar Lending Office:
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Toronto Dominion (Texas), Inc. $21,428,571.43 $3,571,428.57
Total Revolving Credit Commitment $25,000,000
Domestic Lending Office and Eurodollar Lending Office:
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Credit Agricole Indosuez $12,857,142.86 $2,142,857.14
Total Revolving Credit Commitment $15,000,000
Domestic Lending Office and Eurodollar Lending Office:
00 X. Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Investment Revolving Working Capital Revolving
Bank Credit Commitment Credit Commitment
---- ----------------- -----------------
DG Bank Deutsche $12,857,142.86 $2,142,857.14
Genossenschaftsbank ag,
Cayman Island Branch
Total Revolving Credit Commitment $15,000,000
Domestic Lending Office and Eurodollar Lending Office:
DG Bank Deutsche Genossenschaftsbank, AG
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Guaranty Federal Bank, F.S.B. $12,857,142.86 $2,142,857.14
Total Revolving Credit Commitment $15,000,000
Domestic Lending Office and Eurodollar Lending Office:
0000 XX Xxxx 000
Xxx Xxxxxxx, XX 00000
Credit Lyonnais New York Branch $12,857,142.86 $2,142,857.14
Total Revolving Credit Commitment $15,000,000
Domestic Lending Office and Eurodollar Lending Office:
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Investment Revolving Working Capital Revolving
Bank Credit Commitment Credit Commitment
---- ----------------- -----------------
Meespierson Capital Corp. $12,857,142.86 $2,142,857.14
Revolving Credit Commitment $15,000,000
Domestic Lending Office and Eurodollar Lending Office:
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
DAI-ICHI Kangyo Bank $12,857,142.86 $2,142,857.14
Total Revolving Credit Commitment $15,000,000
Domestic Lending Office and Eurodollar Lending Office:
The Dai-Ichi Kangyo Bank, New York Branch
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Hibernia National Bank $8,571,428.57 $1,428,571.43
Total Revolving Credit Commitment $10,000,000
Domestic Lending Office and Eurodollar Lending Office:
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
SCHEDULE 5.7
INVESTMENTS
1. Refer to the Subsidiaries listed on Schedule 5.19.
2. Other Investments
Name of Investment Type of Entity Jurisdiction of Effective Ownership by
Incorporation/ Company
Formation
Baton Rouge Fractionators LLC Limited Liability Delaware Approx. 33-1/3% (Final
Company percentage has not been
determined)
Belvieu Environmental Fuels General Partnership Texas 33-1/3%
EPIK Gas Liquids, LLC Limited Liability Texas 50%
Company
Entell NGL Services, L.L.C. Limited Liability Delaware 50% (100% after Tejas
Company Acquisition)
EPIK Terminalling, LP Limited Partnership Texas 50%
Mont Belvieu Associates General Partnership Texas 49% (99% after
acquisition of interest
from Xxxxxx Xxxxxx)
Tri-States NGL Pipeline, LLC Limited Liability Delaware 16.66% (33.32% after
Company Tejas Acquisition)
Wilprise Pipeline LLC Limited Liability Delaware Approx. 40% (Final
Company percentage has not been
determined)
In connection with the consummation of the Tejas Acquisition, the Company
will acquire the following Investments:
Name of Investment Type of Entity Jurisdiction of Effective Ownership by
Incorporation/ Company
Formation
Xxxxx Pipeline Company Corporation Delaware 11.5%
Venice Energy Services Company, L.L.C. Limited Liability Delaware 13%
Company
ProGas, LLC Limited Liability Delaware 50%
Company
K/D/S Promix, L.L.C. Limited Liability Delaware 33-1/3%
Company
Belle Rose Pipeline, L.L.C. Limited Liability Delaware 33-1/3%
Company
SCHEDULE 5.10
TITLES, ETC.
Notwithstanding anything to the contrary contained in Section 5.10 of the
Credit Agreement, no representation or warranty is made by the Company as to its
or any of its Subsidiaries= title in and to the easements and rights-of-way
constituting pipelines owned by the Company or any of its Subsidiaries,
including without limitation, the respective grantors thereof; provided,
however, that the examination and investigation by the Company or such
Subsidiary, as the case may be, of title to the lands traversed by the subject
pipeline systems in connection with the acquisition of rights-of-way and similar
property interests for the subject pipeline systems were conducted in accordance
with the standards of the pipeline industry. In addition, neither the Company
nor any of its Subsidiaries have obtained consents to acquire certain of the
rights-of-way and easements for pipelines formerly owned by Enterprise Products
Company, EPC Holdings, Ltd. (formerly EPC Partners, Ltd.), Texas Gulf Partners
Pipeline Company and their respective predecessors.
SCHEDULE 5.19
SUBSIDIARIES
Name of Subsidiary Type of Entity Jurisdiction of Effective Ownership by
Incorporation/ Company
Formation
Cajun Pipeline Company, LLC Limited Liability Texas 100%
Company
Chunchula Pipeline Company, LLC Limited Liability Texas 100%
Company
Enterprise Products Texas Operating, Limited Partnership Texas 99%
L.P.
HSC Pipeline Partnership, LP Limited Partnership Texas 99%
Propylene Pipeline Partnership, LP Limited Partnership Texas 99%
Sorrento Pipeline Company, LLC Limited Liability Texas 100%
Company
In connection with the consummation of the Tejas Acquisition, the Company will
acquire the following Subsidiaries:
Name of Subsidiary Type of Entity Jurisdiction of Effective Ownership by
Incorporation/ Company
Formation
Tejas Natural Gas Liquids, LLC (Name to Limited Liability Delaware 100%
be changed to AEnterprise Natural Gas Company
Liquids, LLC@)
Tejas NGL Pipelines, LLC (Name to be Limited Liability Delaware 100%
changed to AEnterprise NGL Pipeline, Company
LLC@)
Tejas Gas Processing, LLC (Name to be Limited Liability Delaware 100%
changed to AEnterprise Gas Processing, Company
LLC@)
Tejas NGL Private Lines & Storage, LLC Limited Liability Delaware 100%
(Name to be changed to AEnterprise NGL Company
Private Lines & Storage, LLC@)
Tejas Fractionation, LLC (Name to be Limited Liability Delaware 100%
changed to AEnterprise Fractionation, Company
LLC@)
Entell NGL Services, L.L.C. Limited Liability Delaware 50% (100% after Tejas
Company Acquisition)
SCHEDULE 5.21
UTILITY
The Company and/or certain of its Subsidiaries sells to its suppliers of
electric utilities, electric power produced by its cogeneration units and by its
Mont Belvieu operations. The electric utilities are required under Texas law to
purchase such cogeneration power.
SCHEDULE 7.1
OTHER DEBT
Debt of Mont Belvieu Associates, of which, after the acquisition by the
Company of the partnership interest in Mont Belvieu Associates owned by Xxxxxx
Xxxxxx Energy Partners, L.P. and its affiliates, the Company will own,
indirectly, at least a 99% partnership interest. The amount of such Debt is
approximately $10,000,000, of which the Company owns a participation interest of
approximately $6,000,000. Such Debt is expected to be repaid in full on or about
the date of closing of such acquisition.
SCHEDULE 7.2
OTHER LIENS
None.
SCHEDULE 7.8
TRANSACTIONS WITH AFFILIATES
1. The Management Agreement.
2. Master Rail Sublease Agreement dated as of June 1, 1998, between
Enterprise Products Company and Enterprise Products Operating L.P., relating to
100 Trinity 33,687 gallon pressurized tank cars.
3. Equipment Sublease Agreement dated as of June 1, 1998, between
Enterprise Products Company and Enterprise Products Operating L.P., relating to
three Centaur T-4500s Generator Sets.
4. Equipment Sublease Agreement dated as of June 1, 1998, between West
Xxxxxxxx Co-Generation Partners, L.P. and Enterprise Products Operating L.P.,
relating to three Centaur 40S-4701 Generator Sets.
5. Assignment of Lease (Lessee) dated as of June 1, 1998, between
Enterprise Products Company and EPC Partners, Ltd.
6. Amended and Restated Equipment Sublease Agreement between Enterprise
Products Company and Enterprise Products Operating L.P., relating to certain
isobutane manufacturing equipment.
7. Memorandum of Ground Sublease Agreement dated as of June 1, 1998,
between Enterprise Products Company and Enterprise Products Operating L.P.,
relating to six tracts of land located in Xxxxxxxx County, Texas.
8. Ground Sublease Agreement dated as of June 1, 1998, between Enterprise
Products Company and Enterprise Products Company, covering six tracts of land
located in Xxxxxxxx County, Texas.
EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$________________________ New York, New York
_________________________, 199____
FOR VALUE RECEIVED, the undersigned, ENTERPRISE PRODUCTS OPERATING L.P., a
Delaware limited partnership (the "Borrower"), hereby unconditionally promises
to pay to the order of (the "Lender") at the office of The Chase Manhattan Bank,
located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in lawful money of the
United States of America and in immediately available funds, on the Revolving
Credit Commitment Termination Date the principal amount of (a) DOLLARS ($ ), or,
if less, (b) the aggregate unpaid principal amount of all Revolving Credit Loans
made by the Lender to the Borrower pursuant to subsection 2.1 of the Credit
Agreement, as hereinafter defined. The Borrower further agrees to pay interest
in like money at such office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in subsections 4.4 and
4.6 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each
Revolving Credit Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Revolving
Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to in the
Credit Agreement dated as of July ___, 1999 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto and The Chase Manhattan Bank, as agent, (b) is subject to
the provisions of the Credit Agreement and (c) is subject to optional and
mandatory prepayment in whole or in part as provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwisedefined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
ENTERPRISE PRODUCTS OPERATING L.P.
By: Enterprise Products LP, LLC, General Partner
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
EXHIBIT B-1
{Xxxxx & Xxxxx Opinion}
EXHIBIT B-2
ENTERPRISE PRODUCTS GP, LLC
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000
September __, 1999
The Chase Manhattan Bank, as Agent,
and the financial institutions
parties to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
I am the Executive Vice President and Chief Legal Officer of Enterprise
Products GP, LLC, a Delaware limited liability company and the sole general
partner of Enterprise Products Operating L.P., a Delaware limited partnership
(the "Borrower"), in connection with the Borrower's execution and delivery of
the Credit Agreement, dated as of July 28, 1999 (the "Credit Agreement"), among
the Borrower, The Chase Manhattan Bank, as agent for the Banks referred to below
(in such capacity, the "Agent"), certain entities, as co-arrangers,
administrative agent, documentation agent, syndication agent, managing agent,
lead arranger and/or book manager, and the other financial institutions parties
thereto (collectively, the "Banks"). This opinion is being furnished to you
pursuant to Section 9.1(d)(ii) of the Credit Agreement. Unless otherwise defined
herein, terms defined in the Credit Agreement are used herein as therein
defined.
In expressing the opinions expressed below, I have examined executed
counterparts (or copies thereof) of each of the Loan Documents, the originals or
conformed copies of such corporate or partnership records, agreements and
instruments of the Borrower and the General Partner and the Limited Partner
(individually, a "Partner" and, collectively, the "Partners"), certificates of
public officials and of officers of the Borrower and the Partners and such other
documents and records, and such matters of law, as I have deemed appropriate as
a basis for the opinions hereinafter expressed. As to factual matters, I have
relied upon, and assumed the accuracy of, (a) statements and certifications of
representatives of the Borrower or officers or managers, as applicable, of the
relevant Partner and of appropriate public officials, and (b) the
representations and warranties of the Borrower and the Partners contained in or
made pursuant to each of the Loan Documents to which they are respectively a
party, and my opinion is limited to such factual matters in existence on the
date hereof. In stating my opinion, I have assumed the genuineness of all
signatures of persons signing the Loan Documents on behalf of parties thereto
(including faxed copies of such signatures), other than the persons signing on
behalf of the Borrower, the authenticity and completeness of all documents,
certificates and records submitted to me as originals and the conformity to
authentic original instruments of all documents (including any of the Loan
Documents), certificates and records submitted to me as certified, conformed,
faxed or photostatic copies. I have assumed further that the execution and
delivery of the Loan Documents or any other instruments executed in connection
with the Loan Documents, or as part of the same transaction as the Loan
Documents, by any party other than the Borrower and the Partners have been duly
authorized by such other party and are legal, valid, binding and enforceable
obligations of such other party.
This opinion is limited in all respects to the laws of the State of Texas
and federal law as in effect on the date hereof. I note that the Credit
Agreement and certain of the other Loan Documents provide that they are to be
governed by the laws of the State of New York. Accordingly, in expressing this
opinion, I have assumed, with your permission, that the laws of the State of New
York are identical in all respects to the laws of the State of Texas.
Based upon the foregoing and subject to the limitations, qualifications,
assumptions and exceptions set forth herein, I am of the opinion that:
1. The Borrower has the legal right to (i) own or lease the property which
it owns or operates as lessee, (ii) conduct the business in which it is
currently engaged and in which it proposes, as of the date hereof, to be engaged
after the date hereof, (iii) make, deliver and perform the Credit Agreement and
each of the other Loan Documents to which it is a party in accordance with the
terms and provisions thereof and (iv) borrow under the Credit Agreement. The
Borrower is in compliance with all Requirements of Law, except where the failure
to so comply could not reasonably be expected to have a Material Adverse Effect.
While I am not licensed to practice law in any jurisdiction other than the State
of Texas, and therefore am unable to express an opinion as to whether the
Borrower is required to qualify to do business as a foreign limited partnership
in any jurisdiction, I do not believe that the Borrower would be required to so
qualify in any jurisdiction other than the States of Texas, Alabama, Louisiana
and Mississippi. No other filing, recording, publishing or other act is
necessary or appropriate in connection with the existence or business of the
Borrower.
2. The Borrower has taken all necessary legal action to authorize the
borrowings by the Borrower on the terms and conditions of the Credit Agreement
and the Loan Documents and to authorize the execution, delivery and performance
of each of the Loan Documents to which it is a party in accordance with the
terms and provisions thereof.
3. No approvals or consents of any Governmental Authority or other consents
or approvals by any other Person which have not been obtained on or prior to the
date hereof are required in connection with (a) the participation by the
Borrower in the transactions contemplated by the Credit Agreement and the other
Loan Documents, or the execution, delivery and performance by the Borrower of
the Credit Agreement or any of the other Loan Documents and (b) the validity and
enforceability thereof and the exercise by the Banks of their rights and
remedies thereunder
4. The execution, delivery and performance by the Borrower of the Credit
Agreement and each of the other Loan Documents in accordance with the terms
thereof will not (a) violate any Requirement of Law or any Contractual
Obligation of the Borrower, (b) result in the breach of, or constitute a default
under, any indenture or loan or credit agreement or any other material
agreement, lease or instrument of which I have knowledge to which the Borrower
is a party or by which its properties may be bound, and (c) result in, or
require, the creation or imposition of any Lien on any of its properties or
revenues pursuant to any Requirement of Law or Contractual Obligation.
5. No litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the best of our knowledge,
threatened by or against the Borrower or against any of its properties or
revenues (a) with respect to the Credit Agreement or any of the other Loan
Documents to which the Borrower is a party or any of the transactions
contemplated thereby or (b) which, if adversely determined, could reasonably be
expected to have Material Adverse Effect.
This opinion is subject to, and qualified in all respects by, with your
permission, the following:
A. I have not been called upon to, and accordingly do not, express any
opinion as to the various state and federal laws regulating banks or the conduct
of their business that may relate to the Loan Documents and the transactions
provided for therein.
B. All statements in this opinion which are stated "to my knowledge" are
based, to the extent I have deemed proper, solely upon reasonable inquiries of
an officer or representative of the Partners. Although I have not independently
verified the accuracy of the statements, I have discussed the statements with
the individuals making them, and I have no reason to believe that any such
statement is untrue or inaccurate in any material respect.
This opinion is limited to matters stated herein and no opinion is implied
or may be inferred beyond the matters expressly stated. I disclaim any
obligation to up-date this opinion or to advise you of any changes in any of the
opinions or other matters set forth herein.
This opinion is being furnished only to, and is solely for the benefit of,
the addressees who are parties to the Credit Agreement on the date hereof (each
of whom may rely upon this opinion as of the date hereof). This opinion may not
be used, circulated, quoted, relied upon or otherwise referred to by any other
person or entity or for any other purpose without my prior written consent.
Very truly yours,
Xxxxxxx X. Xxxxxxxx
Executive Vice President and
Chief Legal Officer
operatingopinion.wpd
3
EXHIBIT C
COMPLIANCE CERTIFICATE
----------------------
The undersigned hereby certifies that he is an Executive Vice President of
ENTERPRISE PRODUCTS COMPANY, a Texas corporation (the "Company"), and that as
such he is authorized to execute this certificate on behalf of the Company. With
reference to the Credit Agreement dated as of ____________, (the "Agreement"),
among the Company, The Chase Manhattan Bank, as agent (in such capacity, the
"Agent") for the banks named therein (collectively the "Banks"), certain
entities, as co-arrangers and the Banks, the undersigned further certifies,
represents and warrants, in such capacity on behalf of the Company, as follows
(each capitalized term used herein having the same meaning given to it in the
Agreement unless otherwise specified):
(a) The representations and warranties of the Company contained in the
Agreement and otherwise made in writing by or on behalf of the Company
pursuant to the Agreement were true and correct in all material respects
when made, and are repeated at and as of the time of delivery hereof and
are true and correct in all material respect at and as of the time of
delivery hereof.
(b) The Company has performed and complied in all material respects
with all agreement and conditions contained in the Agreement required to be
performed or complied with by it prior to or at the time of delivery
hereof.
(c) Neither the Company nor any Subsidiary has incurred any material
(individually or in the aggregate) liabilities, direct or contingent, since
_____________, other than liabilities incurred in the normal course of
business, liabilities being paid in full on the date hereof and liabilities
specifically permitted in the Agreement.
(d) Since __________, no change has occurred, either in any case or in
the aggregate, in the condition, financial or otherwise, of the Company
which would have a Material Adverse Effect.
(e) There exists, and, after giving effect to the Loan or Loans with
respect to which this Certificate is being delivered, will exist, no
Default under the Agreement or any event or circumstance which constitutes,
or with notice or lapse of time (or both) would constitute, an event of
default under any loan or credit agreement,, indenture, deed of trust,
security agreement or other agreement or instrument evidencing or
pertaining to any Debt of the Company or any Subsidiary, or under any
material agreement or instrument to which the Company or any Subsidiary is
a party or by which the company or any Subsidiary is bound, in any respect
which could have a Material Adverse Effect.
EXECUTED AND DELIVERED this ________ day of ___________, 1999.
ENTERPRISE PRODUCTS COMPANY
By:______________________________
XXXX X. XXXXXX,
Executive Vice President
EXHIBIT D
FORM OF
COMMITMENT TRANSFER SUPPLEMENT
Reference is made to the Credit Agreement, dated as of July 27, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Enterprise Products Operating L.P. (the "Borrower"), the
Lenders named therein, Den norske Bank ASA and Bank of Tokyo-Mitsubishi Ltd.,
Houston Agency, as co-arrangers and The Chase Manhattan Bank, as co-arranger and
as administrative agent for the Lenders (in such capacity, the "Agent"). Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor") and the
Assignee identified on Schedule l hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule 1 hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Credit Agreement with respect to those credit facilities contained in the
Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility"; collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Facilities and (i) requests that the Agent, upon
request by the Assignee, exchange the attached Notes for a new Note or Notes
payable to the Assignee and (ii) if the Assignor has retained any interest in
the Assigned Facility, requests that the Agent exchange the attached Notes for a
new Note or Notes payable to the Assignor, in each case in amounts which reflect
the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Commitment Transfer Supplement; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements delivered pursuant to subsection 5.1 thereof and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Commitment Transfer Supplement; (c) agrees that it
will, independently and without reliance upon the Assignor, 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 decisions in taking or
not taking action under the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
4.12(b) of the Credit Agreement.
4. The effective date of this Commitment Transfer Supplement shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Commitment Transfer Supplement, it will
be delivered to the Agent for acceptance by it and recording by the Agent
pursuant to the Credit Agreement, effective as of the Effective Date (which
shall not, unless otherwise agreed to by the Agent, be earlier than five
Business Days after the date of such acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for
amounts which have accrued to the Effective Date and to the Assignee for amounts
which have accrued subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Commitment Transfer
Supplement, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Commitment Transfer Supplement,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Commitment Transfer Supplement shall be governed by and construed
in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Commitment Transfer
Supplement to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Schedule 1
to Commitment Transfer Supplement
Name of Assignor:_____________________________
Name of Assignee:_____________________________
Effective Date of Assignment:_______________________
Credit Principal
Facility Assigned Amount Assigned Commitment Percentage Assigned(1)
----------------- --------------- ---------------------------------
$______________ ___.__________ %
[Name of Assignee] [Name of Assignor]
By:___________________________________ By:___________________________________
Title: Title:
Accepted:
THE CHASE MANHATTAN BANK,
as Agent
By:____________________________________ ___________________________________
Title:
(1) Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all
Lenders.
