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EXHIBIT 10.12
364-DAY CREDIT AGREEMENT
among
DUKE ENERGY FIELD SERVICES, LLC
and
DUKE ENERGY FIELD SERVICES CORPORATION
as Borrowers,
THE LENDERS IDENTIFIED HEREIN
AND
BANK OF AMERICA, N.A.,
as Agent,
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Syndication Agent
AND
XXXXXXX XXXXX CAPITAL CORPORATION
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Co-Documentation Agents
DATED AS OF MARCH 31, 2000
Arranged by:
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS......................................................................1
1.1 Definitions.....................................................................................1
1.2 Computation of Time Periods....................................................................11
1.3 Accounting Terms...............................................................................11
1.4 Time...........................................................................................11
SECTION 2. LOANS................................................................................................12
2.1 Revolving-A Loan Commitment....................................................................12
2.2 Revolving-B Loan Commitment....................................................................12
2.3 Method of Borrowing for Loans..................................................................12
2.4 Funding of Loans...............................................................................13
2.5 Continuations and Conversions..................................................................13
2.6 Minimum Amounts................................................................................14
2.7 Reductions of Revolving Loan Commitments.......................................................14
2.8 Notes..........................................................................................15
2.9 Joint and Several Liability of the Borrowers...................................................15
2.10 Limitation of Liability of Borrowers...........................................................16
SECTION 3. PAYMENTS.............................................................................................17
3.1 Interest.......................................................................................17
3.2 Prepayments....................................................................................18
3.3 Payment in full at Maturity....................................................................19
3.4 Facility Fees..................................................................................19
3.5 Place and Manner of Payments...................................................................19
3.6 Pro Rata Treatment.............................................................................20
3.7 Computations of Interest and Fees..............................................................20
3.8 Sharing of Payments............................................................................21
3.9 Evidence of Debt...............................................................................22
SECTION 4. ADDITIONAL PROVISIONS REGARDING LOANS................................................................22
4.1 Eurodollar Loan Provisions.....................................................................22
4.2 Capital Adequacy...............................................................................25
4.3 Compensation...................................................................................25
4.4 Taxes..........................................................................................26
SECTION 5. CONDITIONS PRECEDENT.................................................................................29
5.1 Closing Conditions.............................................................................29
5.2 Conditions to Loans............................................................................31
SECTION 6. REPRESENTATIONS AND WARRANTIES.......................................................................32
6.1 Organization and Good Standing.................................................................32
6.2 Due Authorization..............................................................................32
6.3 No Conflicts...................................................................................32
6.4 Consents.......................................................................................32
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6.5 Enforceable Obligations........................................................................33
6.6 Financial Condition............................................................................33
6.7 Taxes..........................................................................................33
6.8 Compliance with Law............................................................................33
6.9 Use of Proceeds; Margin Stock..................................................................33
6.10 Government Regulation..........................................................................34
6.11 Solvency.......................................................................................34
6.12 Environmental Matters..........................................................................34
6.13 Material Subsidiaries..........................................................................34
SECTION 7. AFFIRMATIVE COVENANTS................................................................................34
7.1 Information Covenants..........................................................................34
7.2 Preservation of Existence and Franchises.......................................................37
7.3 Books and Records..............................................................................37
7.4 Compliance with Law............................................................................37
7.5 Payment of Taxes and Other Indebtedness........................................................37
7.6 Maintenance of Property; Insurance.............................................................37
7.7 Use of Proceeds................................................................................38
7.8 Audits/Inspections.............................................................................38
7.9 Maintenance of Ownership.......................................................................38
SECTION 8. NEGATIVE COVENANTS...................................................................................38
8.1 Nature of Business.............................................................................39
8.2 Liens..........................................................................................39
8.3 Consolidation and Merger.......................................................................41
8.4 Sale or Lease of Assets........................................................................41
8.5 Transactions with Affiliates...................................................................41
SECTION 9. EVENTS OF DEFAULT....................................................................................42
9.1 Events of Default..............................................................................42
9.2 Acceleration; Remedies.........................................................................44
9.3 Allocation of Payments After Event of Default..................................................45
SECTION 10 AGENCY PROVISIONS....................................................................................45
10.1 Appointment....................................................................................45
10.2 Delegation of Duties...........................................................................46
10.3 Exculpatory Provisions.........................................................................46
10.4 Reliance on Communications.....................................................................47
10.5 Notice of Default..............................................................................47
10.6 Non-Reliance on Agent and Other Lenders........................................................47
10.7 Indemnification................................................................................48
10.8 Agent in Its Individual Capacity...............................................................48
10.9 Successor Agent................................................................................48
SECTION 11. MISCELLANEOUS.......................................................................................49
11.1 Notices........................................................................................49
11.2 Right of Set-Off...............................................................................49
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11.3 Benefit of Agreement...........................................................................50
11.4 No Waiver; Remedies Cumulative.................................................................52
11.5 Payment of Expenses, etc. .....................................................................53
11.6 Amendments, Waivers and Consents...............................................................53
11.7 Counterparts/Telecopy..........................................................................54
11.8 Headings.......................................................................................54
11.9 Defaulting Lender..............................................................................55
11.10 Survival of Indemnification and Representations and Warranties.................................55
11.11 Governing Law; Venue...........................................................................55
11.12 Waiver of Jury Trial; Waiver of Consequential Damages..........................................55
11.13 Severability...................................................................................56
11.14 Further Assurances.............................................................................56
11.15 Entirety.......................................................................................56
11.16 Binding Effect; Continuing Agreement...........................................................56
SCHEDULES
Schedule 1.1 Commitment Percentages
Schedule 6.13 Material Subsidiaries
Schedule 8.2 Liens
Schedule 8.4 Scheduled Asset Sales
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.3 Form of Notice of Borrowing
Exhibit 2.5 Form of Notice of Continuation/Conversion
Exhibit 2.8(a) Form of Revolving-A Loan Note
Exhibit 2.8(b) Form of Revolving-B Loan Note
Exhibit 11.3(b) Form of Assignment Agreement
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364-DAY CREDIT AGREEMENT
THIS 364-DAY CREDIT AGREEMENT (this "Credit Agreement"), dated as of
March 31, 2000, is entered into among DUKE ENERGY FIELD SERVICES, LLC, a
Delaware limited liability company and DUKE ENERGY FIELD SERVICES CORPORATION, a
Delaware corporation (individually, a "Borrower" and collectively, the
"Borrowers"), the Lenders (as defined herein) and BANK OF AMERICA, N.A., as
administrative agent for the Lenders (in such capacity, the "Agent").
RECITALS
WHEREAS, the Borrowers have requested that the Lenders make available
to them a revolving credit facility in the aggregate amount of $2.8 billion for
the purposes set forth herein; and
WHEREAS, the Lenders have agreed to provide the requested revolving
credit facility to the Borrowers on the terms, and subject to the conditions,
set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus (a)
from the Closing Date until 90 days subsequent to the Closing Date,
.50% per annum and (b) from the date 91 days subsequent to the Closing
Date and thereafter, .625% per annum.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under
direct or indirect common control with such Person. A Person shall be
deemed to control a corporation if such Person possesses, directly or
indirectly, the power to direct or cause direction of the management
and policies of such corporation, whether through the ownership of
voting securities, by contract or otherwise.
"Agency Services Address" means Bank of America, N.A., 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, or such other address as
may be identified by written notice from the Agent to the Borrowers and
the Lenders.
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"Agent" means Bank of America, N.A. and any successors and
assigns in such capacity.
"Approved Officer" means the president, a vice president, the
treasurer or the assistant treasurer of the Borrowers or such other
representative of the Borrowers as may be designated by any one of the
foregoing with consent of the Agent.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"Base Rate" means, for any day, the rate per annum equal to
the greater of (a) the Federal Funds Rate in effect on such day plus
1/2 of 1% or (b) the Prime Rate in effect on such day. If for any
reason the Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable after due inquiry
to ascertain the Federal Funds Rate for any reason, including the
inability or failure of the Agent to obtain sufficient quotations in
accordance with the terms hereof, the Base Rate shall be determined
without regard to clause (a) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist.
Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such
change in the Prime Rate or the Federal Funds Rate, respectively.
"Base Rate Loan" means a Loan which bears interest based on
the Base Rate.
"Borrowers" means, subject to Section 2.10, Duke Energy Field
Services, LLC, a Delaware limited liability company and Duke Energy
Field Services Corporation, a Delaware corporation and "Borrower" means
either of them.
"Borrowers Obligations" means, without duplication, all of the
obligations of the Borrowers to the Lenders and the Agent, whenever
arising, under this Credit Agreement, the Notes or any of the other
Credit Documents.
"Business Day" means any day other than a Saturday, a Sunday,
a legal holiday or a day on which banking institutions are authorized
or required by law or other governmental action to close in Dallas,
Texas or New York, New York; provided that in the case of Eurodollar
Loans, such day is also a day on which dealings between banks are
carried on in U.S. dollar deposits in the London interbank market.
"Capital Stock" means (a) in the case of a corporation, all
classes of capital stock of such corporation, (b) in the case of a
partnership, partnership interests (whether general or limited), (c) in
the case of a limited liability company, membership interests and (d)
any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
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"Change of Control" means the acquisition, directly or
indirectly, beneficially or of record by any person or group (within
the meaning of the Exchange Act), other than Duke Energy Corporation or
Xxxxxxxx Petroleum, of more than 50% of the Voting Stock of either
Borrower.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment Percentages" means the Revolving-A Loan Commitment
Percentage and the Revolving-B Loan Commitment Percentage, individually
or collectively, as appropriate.
"Commitments" means, collectively, the Revolving-A Loan
Commitment and the Revolving-B Loan Commitment of each Lender.
"Credit Documents" means this Credit Agreement, the Notes, any
Notice of Borrowing and all other related agreements and documents
issued or delivered hereunder or thereunder or pursuant hereto or
thereto.
"Credit Exposure" means, as applied to each Lender (a) at any
time prior to the termination of the Commitments, the Revolving-A Loan
Commitment Percentage of such Lender multiplied by the Revolving-A Loan
Commitment plus the Revolving-B Loan Commitment Percentage of such
Lender multiplied by the Revolving-B Loan Commitment and (b) at any
time after the termination of the Commitments, the sum of the principal
balance of the outstanding Loans of such Lender.
"Debt Issuance" means the issuance of any Indebtedness for
borrowed money by a Borrower, other than the issuance of commercial
paper.
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" means, at any time, any Lender that, at
such time (a) has failed to make a Loan required pursuant to the term
of this Credit Agreement, (b) has failed to pay to the Agent or any
Lender an amount owed by such Lender pursuant to the terms of this
Credit Agreement or (c) has been deemed insolvent by a court of
competent jurisdiction or has become subject to a bankruptcy or
insolvency proceeding or to a receiver, trustee or similar official.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Effective Date" means the date on which the conditions set
forth in Section 5.1 shall have been fulfilled (or waived in the sole
discretion of the Lenders).
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"Eligible Assignee" means (a) a Lender and (b) any other
Person approved by (i) the Borrowers in their sole discretion (or if
subsequent to August 1, 2000, there remains any outstanding Revolving-B
Loans or the Revolving-B Loan Commitment has not been terminated,
approved by the Borrowers, such approval not to be unreasonably
withheld or delayed) and (ii) the Agent (such approval not to be
unreasonably withheld or delayed); provided that (A) the Borrowers'
consent is not required during the existence and continuation of an
Event of Default and (B) neither a Borrower nor an Affiliate of a
Borrower shall qualify as an Eligible Assignee.
"Environmental Laws" means any legal requirement of any
Governmental Authority pertaining to (a) the protection of health,
safety, and the indoor or outdoor environment, (b) the conservation,
management, or use of natural resources and wildlife, (c) the
protection or use of surface water and groundwater or (d) the
management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure
to, any hazardous or toxic substance or material or (e) pollution
(including any release to land surface water and groundwater) and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendment of 1984,
42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act, as
amended, 42 USC 7401 et seq., Toxic Substances Control Act of 1976, 15
USC 2601 et seq., Hazardous Materials Transportation Act, 49 USC App.
1801 et seq., Occupational Safety and Health Act of 1970, as amended,
29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et seq.,
Emergency Planning and Community Right-to-Know Act of 1986, 42 USC
11001 et seq., National Environmental Policy Act of 1969, 42 USC 4321
et seq., Safe Drinking Water Act of 1974, as amended, 42 USC 300(f) et
seq., any analogous implementing or successor law, and any amendment,
rule, regulation, order, or directive issued thereunder.
"Equity Issuance" means any issuance by a Borrower of Capital
Stock, including, without limitation, pursuant to the exercise of
options (other than employee stock options in the ordinary course of
business) or warrants or pursuant to the conversion of debt securities
to equity but excluding, if any, any issuance of Capital Stock to a
Subsidiary of Xxxxxxxx Petroleum Company as a result of and at the time
of the merger of a Subsidiary of Xxxxxxxx Petroleum into Duke Energy
Field Services Corporation.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with a Borrower or any of
its Subsidiaries within the meaning of
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Section 4001(a)(14) of ERISA, or is a member of a group which includes
a Borrower or any of its Subsidiaries and which is treated as a single
employer under Sections 414(b), (c), (m), or (o) of the Code.
"Eurodollar Loan" means a Loan bearing interest at the
Adjusted Eurodollar Rate.
"Eurodollar Rate" means with respect to any Eurodollar Loan,
for the Interest Period applicable thereto, a rate per annum equal to
the London Interbank Offered Rate.
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time or any successor regulation, as the maximum reserve
requirement (including, without limitation, any basic, supplemental,
emergency, special, or marginal reserves) applicable with respect to
Eurocurrency liabilities, as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by
reference to which the interest rate of Eurodollar Loans is
determined).
"Event of Default" has the meaning specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as
amended, modified, succeeded or replaced from time to time.
"Extension of Credit" means, as to any Lender, the making of a
Loan by such Lender (or a participation therein by a Lender).
"Facility Fees" has the meaning specified in Section 3.4.
"Fee Letter" means that certain letter agreement, dated as of
the Closing Date, between the Agent and the Borrower, as amended,
modified, supplemented or replaced from time to time.
"Federal Funds Rate" means for any day the rate per annum
(rounded upward to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers
on such day, as published by the Federal Reserve Bank of New York on
the Business Day next succeeding such day; provided that (a) if such
day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Agent on such day on such transactions as determined by
the Agent.
"Floating Eurodollar Rate" means, on any date of
determination, the Eurodollar Rate for a one-month period plus .50% per
annum.
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"Floating Eurodollar Rate Loan" means a Loan accruing interest
at the Floating Eurodollar Rate.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local or
foreign court, monetary authority or governmental agency, authority,
instrumentality or regulatory body.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations
of such Person for the deferred purchase price of property or services
purchased, (c) all obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
the property acquired, (d) all obligations of such Person under lease
obligations which shall have been, or should be, in accordance with
GAAP, recorded as capital leases in respect of which such Person is
liable as lessee, (e) the face amount of all letter of credit
indebtedness available to be drawn (other than letter of credit
obligations relating to indebtedness included in Indebtedness pursuant
to another clause of this definition) and, without duplication, the
unreimbursed amount of all drafts drawn thereunder, (f) obligations
secured by a Lien on property or assets of such Person, whether or not
assumed (but in any event not exceeding the fair market value of the
property or asset), (g) all guarantees of Indebtedness referred to in
clauses (a) through (f) above, (h) all amounts payable by such Person
in connection with mandatory redemptions or repurchases of preferred
stock, and (i) any obligations of such Person (in the nature of
principal or interest) in respect of acceptances or similar obligations
issued or created for the account of such Person.
"Interest Payment Date" means (a) as to Base Rate Loans and
Floating Eurodollar Rate Loans, the first day of each fiscal quarter of
the Borrowers and the Maturity Date and (b) as to Eurodollar Loans, the
last day of each applicable Interest Period and the Maturity Date and,
in addition, where the applicable Interest Period for a Eurodollar Loan
is greater than three months, then also on the last day of each
three-month period during such Interest Period. If an Interest Payment
Date falls on a date which is not a Business Day, such Interest Payment
Date shall be deemed to be the next succeeding Business Day, except
that in the case of Eurodollar Loans where the next succeeding Business
Day falls in the next succeeding calendar month, then on the next
preceding Business Day.
"Interest Period" means, with respect to Eurodollar Loans, a
period of one, two, three or six months' duration, as the Borrowers may
elect, commencing, in each case, on the date of the borrowing
(including continuations and conversions of Eurodollar Loans);
provided, however, (a) if any Interest Period would end on a day which
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day (except that where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day), (b) no Interest Period shall extend
beyond the
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Maturity Date and (c) where an Interest Period begins on a day for
which there is no numerically corresponding day in the calendar month
in which the Interest Period is to end, such Interest Period shall end
on the last Business Day of such calendar month.
"Lender" means any of the Revolving-A Lenders or the
Revolving-B Lenders.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale or other
title retention agreement, any financing or similar statement or notice
filed under the Uniform Commercial Code as adopted and in effect in the
relevant jurisdiction or other similar recording or notice statute, and
any lease in the nature thereof).
"Loans" means the Revolving-A Loans and the Revolving-B Loans.
"London Interbank Offered Rate" means, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate of
interest per annum appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is specified
on Telerate Page 3750, the applicable rate shall be the arithmetic mean
of all such rates. If, for any reason, such rate is not available, the
term "London Interbank Offered Rate" shall mean, with respect to any
Eurodollar Loan for the Interest Period applicable thereto, the rate of
interest per annum appearing on such other service as may be nominated
by the British Bankers' Association as the London interbank offered
rate for deposits in Dollars at approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more
than one rate is specified, the applicable rate shall be the arithmetic
mean of all such rates.
"Material Adverse Effect" means a material adverse effect on
the business, financial positions or results of operations of the
Borrowers and their Subsidiaries taken as a whole.
"Material Subsidiary" means any Subsidiary of the Borrowers
that, together with its Subsidiaries, owns in excess of 10% of the
consolidated assets of the Borrowers and their Subsidiaries.
"Maturity Date" means March 30, 2001.
"Multiemployer Plan" means a Plan covered by Title IV of ERISA
which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3)
of ERISA.
"Multiple Employer Plan" means a Plan covered by Title IV of
ERISA, other than a Multiemployer Plan, which a Borrower or any ERISA
Affiliate and at least one employer other than a Borrower or any ERISA
Affiliate are contributing sponsors.
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"Net Cash Proceeds" means the gross cash proceeds received
from a Debt Issuance or an Equity Issuance, net of transaction costs
payable to third parties (rounded downward to the nearest $1,000,000).
"Notes" means the Revolving-A Loan Notes and the Revolving-B
Loan Notes, individually or collectively, as appropriate.
"Notice of Borrowing" means a request by the Borrowers for a
Loan in the form of Exhibit 2.3.
"Notice of Continuation/Conversion" means a request by the
Borrowers for the continuation or conversion of a Loan in the form of
Exhibit 2.5.
"Off Balance Sheet Indebtedness" means any obligation of a
Person that would be considered indebtedness for tax purposes but is
not set forth on the balance sheet of such Person, including, but not
limited to, (a) any synthetic lease, tax retention operating lease, off
balance sheet loan or similar off-balance sheet financing product of
such Person, (b) the aggregate amount of uncollected accounts
receivables of such Person subject at such time to a sale of
receivables (or similar transaction) and (c) obligations of any
partnership or joint venture that is recourse to such Person.
"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in any Loans as provided
in Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Person" means any individual, partnership, joint venture,
firm, corporation, association, trust, limited liability company or
other enterprise (whether or not incorporated), or any government or
political subdivision or any agency, department or instrumentality
thereof.
"Plan" means any employee pension benefit plan (as defined in
Section 3(2) of ERISA) which is covered by ERISA and with respect to
which a Borrower or any ERISA Affiliate is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" within the meaning of Section 3(5) of ERISA.
"Prime Rate" means the per annum rate of interest established
from time to time by the Agent at its principal office in Charlotte,
North Carolina (or such other principal office as communicated by the
Agent to the Borrowers and the Lenders) as its Prime Rate. Any change
in the interest rate resulting from a change in the Prime Rate shall
become effective as of 12:01 a.m. of the Business Day on which each
change in the Prime Rate is announced by the Agent. The Prime Rate is a
reference rate used by the Agent in determining interest
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rates on certain loans and is not intended to be the lowest rate of
interest charged on any extension of credit to any debtor.
"Register" has the meaning set forth in Section 11.3(c).
"Regulation A, D, T, U, or X" means Regulation A, D, T, U or
X, respectively, of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a
portion thereof.
"Reportable Event" means a "reportable event" as defined in
Section 4043 of ERISA with respect to which the notice requirements to
the PBGC have not been waived.
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50% of the
aggregate Credit Exposure of all Lenders at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time
then there shall be excluded from the determination of Required Lenders
the aggregate principal amount of Credit Exposure of such Lender at
such time.
"Revolving-A Lender" means any Person who has a Revolving-A
Loan Commitment Percentage greater than zero, including any Eligible
Assignee which may become a Revolving-A Lender by way of assignment in
accordance with the terms hereof, together with their successors and
permitted assigns.
"Revolving-A Loan Commitment" means ONE BILLION Dollars
($1,000,000,000) as such amount may be otherwise reduced in accordance
with Section 2.7.
"Revolving-A Loan Commitment Percentage" means, for each
Lender, the percentage identified as its Revolving-A Loan Commitment
Percentage opposite such Lender's name on Schedule 1.1, as such
percentage may be modified by assignment in accordance with the terms
of this Credit Agreement.
"Revolving-A Loan Notes" means the promissory notes of the
Borrowers in favor of each of the Lenders evidencing the Revolving-A
Loans provided pursuant to Section 2.1, individually or collectively,
as appropriate, as such notes may be amended or modified from time to
time and substantially in the form of Exhibit 2.8(a).
"Revolving-A Loans" means the loans made by the Lenders to the
Borrowers pursuant to Section 2.1
"Revolving-B Lender" means any Person who has a Revolving-B
Loan Commitment Percentage greater than zero, including any Eligible
Assignee which may become a Revolving-B Lender by way of assignment in
accordance with the terms hereof, together with their successors and
permitted assigns.
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"Revolving-B Loan Commitment" means ONE BILLION EIGHT HUNDRED
MILLION DOLLARS ($1,800,000,000) as such amount may be otherwise
reduced in accordance with Section 2.7.
"Revolving-B Loan Commitment Percentage" means, for each
Lender, the percentage identified as its Revolving-B Loan Commitment
Percentage opposite such Lender's name on Schedule 1.1, as such
percentage may be modified by assignment in accordance with the terms
of this Credit Agreement.
"Revolving-B Loan Notes" means the promissory notes of the
Borrowers in the favor of each of the Lenders evidencing the
Revolving-B Loans provided pursuant to Section 2.2, individually or
collectively, as appropriate, as such notes may be amended or modified
from time to time and substantially in the form of Exhibit 2.8(b).
"Revolving-B Loans" means the loans made by the Lenders to the
Borrowers pursuant to Section 2.2.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan or a Multiple
Employer Plan.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (b) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature in their ordinary course, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's assets would
constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged
or is to engage, (d) the fair value of the assets of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present
fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed as the amount which, in light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries and (b) any
partnership, association, joint venture, limited liability company or
other entity in which such person directly or indirectly through
Subsidiaries has more than 50% equity interest at any time.
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"Super Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 66.67% of the
aggregate Credit Exposure of all Lenders at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time
then there shall be excluded from the determination of Super Required
Lenders the aggregate principal amount of Credit Exposure of such
Lender at such time.
"Termination Event" means (a) with respect to any Single
Employer Plan, the occurrence of a Reportable Event or the substantial
cessation of operations (within the meaning of Section 4062(e) of
ERISA), (b) the withdrawal of a Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or
the termination of a Multiple Employer Plan, (c) the distribution of a
notice of intent to terminate or the actual termination of a Plan
pursuant to Section 4041(a)(2) or 4041A of ERISA, (d) the institution
of proceedings to terminate or the actual termination of a Plan by the
PBGC under Section 4042 of ERISA, (e) any event or condition which
might reasonably constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Plan, or (f) the complete or partial withdrawal of a Borrower or any
ERISA Affiliate from a Multiemployer Plan.
"Voting Stock" means all classes of the Capital Stock (or
other voting interests) of such Person then outstanding and normally
entitled to vote in the election of directors or other governing body
of such Person.
1.2 COMPUTATION OF TIME PERIODS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
basis.
1.4 TIME.
All references to time herein shall be references to Central Standard
Time or Central Daylight time, as the case may be, unless specified otherwise.
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SECTION 2.
LOANS
2.1 REVOLVING-A LOAN COMMITMENT.
Subject to the terms and conditions set forth herein, each Revolving-A
Lender severally agrees to make revolving loans to the Borrowers in Dollars, at
any time and from time to time, during the period from the Effective Date to the
Maturity Date (each a "Revolving-A Loan" and collectively the "Revolving-A
Loans"); provided, however, that (a) the aggregate amount of Revolving-A Loans
outstanding shall not exceed the Revolving-A Loan Commitment and (b) with
respect to each individual Revolving-A Lender, such Revolving-A Lender's pro
rata share of outstanding Revolving-A Loans shall not exceed such Revolving-A
Lender's Revolving-A Loan Commitment Percentage of the Revolving-A Loan
Commitment. Subject to the terms of this Credit Agreement, the Borrowers may
borrow, repay and reborrow Revolving-A Loans.
2.2 REVOLVING-B LOAN COMMITMENT.
Subject to the terms and conditions set forth herein, each Revolving-B
Lender severally agrees to make revolving loans to the Borrowers in Dollars, at
any time and from time to time, during the period from the Effective Date to the
Maturity Date (each a "Revolving-B Loan" and collectively the "Revolving-B
Loans"); provided, however, that (a) the aggregate amount of Revolving-B Loans
outstanding shall not exceed the Revolving-B Loan Commitment and (b) with
respect to each individual Revolving-B Lender, such Revolving-B Lender's pro
rata share of outstanding Revolving-B Loans shall not exceed such Revolving-B
Lender's Revolving-B Loan Commitment Percentage of the Revolving-B Loan
Commitment. Subject to the terms of this Credit Agreement, the Borrowers may
borrow, repay and reborrow Revolving-B Loans.
2.3 METHOD OF BORROWING FOR LOANS.
By no later than 11:00 a.m. (a) on the date of the requested borrowing
of Loans that will be Base Rate Loans or Floating Eurodollar Rate Loans or (b)
three Business Days prior to the date of the requested borrowing of Loans that
will be Eurodollar Loans, the Borrowers shall submit a written Notice of
Borrowing in the form of Exhibit 2.3 to the Agent setting forth (i) the amount
requested, (ii) whether such Loans shall accrue interest at the Base Rate, the
Floating Eurodollar Rate or the Adjusted Eurodollar Rate, (iii) whether such
Loans will be Revolving-A Loans or Revolving-B Loans, (iv) with respect to Loans
that will be Eurodollar Loans, the Interest Period applicable thereto and (v)
certification that the Borrowers have complied in all respects with Section 5.2.
Notwithstanding anything herein to the contrary, the Borrowers shall be able to
choose to have a Loan accrue interest at the Floating Eurodollar Rate only
during the period from the Closing Date to and through sixty (60) days following
the Closing Date.
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2.4 FUNDING OF LOANS.
Upon receipt of a Notice of Borrowing, the Agent shall promptly inform
the Revolving-A Lenders or the Revolving-B Lenders, as applicable, as to the
terms thereof. Each such Lender shall make its Revolving-A Loan Commitment
Percentage or its Revolving-B Loan Commitment Percentage, as applicable, of the
requested Loans available to the Agent by 1:00 p.m. on the date specified in the
Notice of Borrowing by deposit, in Dollars, of immediately available funds at
the Agency Services Address. The amount of the requested Loans will then be made
available to the Borrowers by the Agent by crediting the account of the
Borrowers on the books of such office of the Agent, to the extent the amount of
such Loans are made available to the Agent.
No Lender shall be responsible for the failure or delay by any other
Lender in its obligation to make Loans hereunder; provided, however, that the
failure of any Lender to fulfill its obligations hereunder shall not relieve any
other Lender of its obligations hereunder. Unless the Agent shall have been
notified by any Lender prior to the date of any such Loan that such Lender does
not intend to make available to the Agent its portion of the Loans to be made on
such date, the Agent may assume that such Lender has made such amount available
to the Agent on the date of such Loans, and the Agent in reliance upon such
assumption, may (in its sole discretion but without any obligation to do so)
make available to the Borrowers a corresponding amount. If such corresponding
amount is not in fact made available to the Agent, the Agent shall be able to
recover such corresponding amount from such Lender. If such Lender does not pay
such corresponding amount forthwith upon the Agent's demand therefor, the Agent
will promptly notify the Borrowers and the Borrowers shall immediately pay such
corresponding amount within two Business Days to the Agent. The Agent shall also
be entitled to recover from the Lender or the Borrowers, as the case may be,
interest on such corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrowers to the
date such corresponding amount is recovered by the Agent at a per annum rate
equal to (a) from the Borrowers at the applicable rate for such Loan pursuant to
the Notice of Borrowing and (b) from a Lender at the Federal Funds Rate.
2.5 CONTINUATIONS AND CONVERSIONS.
The Borrowers shall have the option (subject to the limitations set
forth below), on any Business Day, to continue existing Eurodollar Loans for a
subsequent Interest Period, to convert Base Rate Loans or Floating Eurodollar
Rate Loans into Eurodollar Loans or to convert Eurodollar Loans into Base Rate
Loans or Floating Eurodollar Rate Loans or to convert Base Rate Loans into
Floating Eurodollar Rate Loans or to convert Floating Eurodollar Rate Loans into
Base Rate Loans; provided, however, that (a) each such continuation or
conversion must be requested by the Borrowers pursuant to a written Notice of
Continuation/Conversion, in the form of Exhibit 2.5, in compliance with the
terms set forth below, (b) if a Eurodollar Loan is continued or converted into a
Base Rate Loan or a Floating Eurodollar Rate Loan on any day other than the last
day of the Interest Period applicable thereto, then the Borrowers shall be
subject to the provisions set forth in Section 4.3, (c) Eurodollar Loans may not
be continued nor may Base Rate Loans or Floating Eurodollar Rate Loans be
converted into Eurodollar Loans during the existence and continuation of a
Default or Event of Default and (d) any request to
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extend a Eurodollar Loan that fails to comply with the terms hereof or any
failure to request an extension of a Eurodollar Loan at the end of an Interest
Period shall constitute a conversion to a Base Rate Loan on the last day of the
applicable Interest Period. Each continuation or conversion must be requested by
the Borrowers no later than 11:00 a.m. (i) on the date for a requested
conversion of a Eurodollar Loan to a Base Rate Loan or a Floating Eurodollar
Rate Loan or (ii) three Business Days prior to the date for a requested
continuation of a Eurodollar Loan or conversion of a Base Rate Loan or Floating
Eurodollar Rate Loan to a Eurodollar Loan, in each case pursuant to a written
Notice of Continuation/Conversion submitted to the Agent which shall set forth
(A) whether the Borrowers wish to continue or convert such Loans and (B) if the
request is to continue a Eurodollar Loan or convert a Base Rate Loan or a
Floating Eurodollar Rate Loan to a Eurodollar Loan, the Interest Period
applicable thereto. Notwithstanding anything herein to the contrary, unless a
Notice of Continuation/Conversion to the contrary has been timely received all
Floating Eurodollar Rate Loans outstanding on the date sixty (60) days after the
Closing Date shall automatically be converted into Base Rate Loans in accordance
with the terms hereof. Subsequent to the date sixty (60) days after the Closing
Date, the Borrowers may no longer convert Base Rate Loans or Eurodollar Loans
into Floating Eurodollar Rate Loans.
2.6 MINIMUM AMOUNTS.
Each request for a Loan or a conversion or continuation hereunder shall
be subject to the following requirements: (a) each Eurodollar Loan shall be in a
minimum amount of $10,000,000 (and in integral multiples of $1,000,000 in excess
thereof), (b) each Base Rate Loan and each Floating Rate Eurodollar Loan shall
be in a minimum amount of the lesser of $10,000,000 (and in integral multiples
of $1,000,000 in excess thereof) or the remaining amount available to be
borrowed and (c) no more than ten Eurodollar Loans shall be outstanding
hereunder at any one time. For the purposes of this Section, all Eurodollar
Loans with the same Interest Periods that begin and end on the same date shall
be considered as one Eurodollar Loan, but Eurodollar Loans with different
Interest Periods, even if they begin on the same date, shall be considered
separate Eurodollar Loans.
2.7 REDUCTIONS OF REVOLVING LOAN COMMITMENTS.
(a) Upon at least five Business Days' notice, the Borrowers
shall have the right to permanently terminate or reduce the aggregate
unused amount of the Revolving-A Loan Commitment or the Revolving-B
Loan Commitment at any time or from time to time; provided that (a)
each partial reduction shall be in an aggregate amount at least equal
to $10,000,000 and in integral multiples of $1,000,000 above such
amount, (b) no reduction shall be made which would reduce the
Revolving-A Loan Commitment to an amount less than the sum of the then
outstanding Revolving-A Loans and (c) no reduction shall be made which
would reduce the Revolving-B Loan Commitment to an amount less than the
sum of the then outstanding Revolving-B Loans.
(b) The Revolving-B Loan Commitment shall be automatically
reduced at the time and by the amount of any prepayment of the
Revolving-B Loans required by
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Sections 3.2(b)(ii) and (iii). Any reduction in (or termination of) the
Revolving-A Loan Commitment or the Revolving-B Loan Commitment shall be
permanent and may not be reinstated.
2.8 NOTES.
(a) Revolving-A Loan Notes. The Revolving-A Loans made by the
Lenders shall be evidenced by a duly executed promissory note of the
Borrowers payable to each Lender in substantially the form of Exhibit
2.8(a) (the "Revolving-A Loan Notes").
(b) Revolving-B Loan Notes. The Revolving-B Loans made by the
Lenders shall be evidenced by a duly executed promissory note of the
Borrowers payable to each Lender in substantially the form of Exhibit
2.8(b) (the "Revolving-B Loan Notes").
2.9 JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
Subject to Section 2.10:
(a) Each of the Borrowers is accepting joint and several
liability hereunder in consideration of the financial accommodation to
be provided by the Lenders under this Credit Agreement, for the mutual
benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of each of the Borrowers to accept
joint and several liability for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby
irrevocably and unconditionally accepts, not merely as a surety but
also as a co-debtor, joint and several liability with the other
Borrower with respect to the payment and performance of all of the
obligations arising under this Credit Agreement and the other Credit
Documents, it being the intention of the parties hereto that all of the
Borrowers Obligations shall be the joint and several obligations of
each of the Borrowers without preferences or distinction between them.
(c) If and to the extent that either of the Borrowers shall
fail to make any payment with respect to any of the obligations
hereunder as and when due or to perform any of such obligations in
accordance with the terms thereof, then in each such event, the other
Borrower will make such payment with respect to, or perform, such
obligation.
(d) The provisions of this Section 2.9 are made for the
benefit of the Lenders and their successors and assigns, and may be
enforced by them from time to time against either of the Borrowers as
often as occasion therefor may arise and without requirement on the
part of the Lenders first to xxxxxxxx any of its claims or to exercise
any of its rights against the other Borrower or to exhaust any remedies
available to it against the other Borrower or to resort to any other
source or means of obtaining payment of any of the Borrowers
Obligations hereunder or to elect any other remedy. The provisions of
this
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Section 2.9 shall remain in effect until all the Borrowers Obligations
hereunder shall have been paid in full or otherwise fully satisfied. If
at any time, any payment, or any part thereof, made in respect of any
of the Borrowers Obligations, is rescinded or must otherwise be
restored or returned by the Lenders upon the insolvency, bankruptcy or
reorganization of any of the Borrowers, or otherwise, the provisions of
this Section 2.9 will forthwith be reinstated and in effect as though
such payment had not been made.
(e) Notwithstanding any provision to the contrary contained
herein or in any of the other Credit Documents, to the extent the
obligations of either Borrower shall be adjudicated to be invalid or
unenforceable for any reason (including, without limitation, because of
any applicable state or federal law relating to fraudulent conveyances
or transfers) then the obligations of such Borrower hereunder shall be
limited to the maximum amount that is permissible under applicable law
(whether federal or state and including, without limitation, the
Bankruptcy Code).
(f) Each Borrower hereby appoints the other Borrower to act as
its agent for all purposes under this Credit Agreement (including,
without limitation, with respect to all matters relating to the
borrowing and repayment of Loans) and agrees that (i) a Borrower may
execute such documents on behalf of the other Borrower as it deems
appropriate and the other Borrower shall be obligated by all of the
terms of any such document executed on its behalf, (ii) any notice or
communication delivered by the Agent or a Lender to a Borrower shall be
deemed delivered to both Borrowers and (iii) the Agent and the Lenders
may accept, and be permitted to rely on, any document, instrument or
agreement executed by one Borrower on behalf of the other Borrower.
2.10 LIMITATION OF LIABILITY OF BORROWERS.
Notwithstanding anything in this Credit Agreement or in the Notes to
the contrary, including without limitation, Section 2.9:
(a) Duke Energy Field Services Corporation shall have no
rights or obligations as a Borrower, and will not be subject to the
terms of the Credit Documents, until (i) consummation of the merger of
Xxxxxxxx Gas Company Shareholder, Inc., a Subsidiary of Xxxxxxxx
Petroleum Company, with and into Duke Energy Field Services Corporation
and (ii) notification from the Borrowers to the Lenders that such
merger has occurred and that, going forward, Duke Energy Field Services
Corporation will irrevocably have all of the rights and obligations of
a Borrower, jointly and severally with Duke Energy Field Services, LLC,
under the Credit Documents (including, without limitation, any Loans
made prior to such notification) and will be subject to the terms of
the Credit Documents.
(b) The agreement by Duke Energy Field Services Corporation to
become jointly and severally liable with Duke Energy Field Services,
LLC for the indebtedness under the Credit Documents pursuant to
subsection (a) above shall be accomplished in two phases: (i)
initially, Duke Energy Field Services Corporation shall become directly
liable for 69.7% of such indebtedness and shall become indirectly
liable for 30.3% of such
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indebtedness through Xxxxxxxx Gas Company ("PGC"), a Delaware
corporation and a wholly-owned Subsidiary of Duke Energy Field Services
Corporation (PGC being directly liable for such 30.3%), in each case
jointly and severally with Duke Energy Field Services, LLC, which shall
remain jointly and severally liable for 100% of such indebtedness; and
(ii) immediately thereafter, Duke Energy Field Services Corporation
shall become directly liable for the 30.3% of such indebtedness
theretofore attributed to PGC and, thereafter, PGC shall no longer be
liable, directly or indirectly, for any such indebtedness.
(c) On or after the date that, pursuant to subsections (a) and
(b) above, Duke Energy Field Services Corporation has become directly
liable for 100% of the indebtedness, rights and obligations of a
Borrower under the Credit Documents, the Borrowers may, upon written
notice to the Lenders, release Duke Energy Field Services, LLC from its
joint and several obligations under the Credit Documents. Thereafter,
Duke Energy Field Services, LLC will have no rights or obligations
under the Credit Documents, will no longer be subject to the terms of
the Credit Documents and all obligations owing pursuant to the Credit
Documents shall be the sole responsibility of Duke Energy Field
Services Corporation.
(d) Notwithstanding the use of the term "Borrowers" as set
forth in the Credit Documents: (i) prior to Duke Energy Field Services
Corporation having any rights or obligations as a Borrower, as set
forth in clause (a) above, the terms "Borrowers" or "a Borrower" as
used in the Credit Documents shall only mean a reference to Duke Energy
Field Services, LLC and (ii) on and after the date that Duke Energy
Field Services, LLC is released from liability, in accordance with
clause (c) above, the terms "Borrowers" or "a Borrower" as used in the
Credit Documents shall only mean a reference to Duke Energy Field
Services Corporation.
SECTION 3.
PAYMENTS
3.1 INTEREST.
(a) Interest Rate.
(i) All Base Rate Loans shall accrue interest at the
Base Rate.
(ii) All Eurodollar Loans shall accrue interest at
the Adjusted Eurodollar Rate applicable to such Eurodollar
Loan.
(iii) all Floating Eurodollar Rate Loans shall accrue
interest at the Floating Eurodollar Rate.
(b) Default Rate of Interest. Upon the occurrence, and during
the continuation, of an Event of Default, all past due principal of
and, to the extent permitted by law, past due
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interest on, the Loans and any other past due amounts owing hereunder
or under the other Credit Documents shall bear interest, payable on
demand, at a per annum rate equal to one percent (1%) plus the rate
which would otherwise be applicable (or if no rate is applicable, then
the rate for Loans that are Base Rate Loans plus one percent (1%) per
annum).
(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date.
3.2 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrowers shall have the right
to prepay Loans in whole or in part from time to time without premium
or penalty; provided, however, that (i) Eurodollar Loans may only be
prepaid on three Business Days' prior written notice to the Agent and
any prepayment of Eurodollar Loans will be subject to Section 4.3; and
(ii) each such partial prepayment of Loans shall be in the minimum
principal amount of $10,000,000. Any payments made under this Section
3.2(a) shall be applied as the Borrowers may elect; provided that if
the Borrowers fail to specify how a voluntary prepayment should be
applied then such prepayment shall be applied first to Base Rate Loans,
second to Floating Eurodollar Rate Loans and third to Eurodollar Loans
in direct order of Interest Period maturities, in each case, pro rata
between Revolving-A Loans and Revolving-B Loans.
(b) Mandatory Prepayments.
(i) Revolving-A Committed Amount; Revolving-B
Committed Amount. If at any time the amount of Revolving-A
Loans outstanding exceeds the Revolving-A Loan Commitment, the
Borrowers shall immediately make a principal payment to the
Agent in a manner and in an amount such that the outstanding
Revolving-A Loans are less than or equal to the Revolving-A
Loan Commitment. If at any time the amount of Revolving-B
Loans outstanding exceeds the Revolving-B Loan Commitment, the
Borrowers shall immediately make a principal payment to the
Agent in a manner and in an amount such that the outstanding
Revolving-B Loans are less than or equal to the Revolving-B
Loan Commitment.
(ii) Debt Issuance. Promptly upon receipt by a
Borrower of proceeds from any Debt Issuance, such Borrower
shall forward 100% of the Net Cash Proceeds of such Debt
Issuance to the Lenders as a prepayment of the Revolving-B
Loans (to be applied as set forth in Section 3.2(c) below).
(iii) Equity Issuance. Promptly upon receipt by a
Borrower of proceeds from an Equity Issuance, such Borrower
shall forward 100% of the Net Cash Proceeds of such Equity
Issuance to the Lenders as a prepayment of the Revolving-B
Loans (to be applied as set forth in Section 3.2(c) below).
(c) Applications of Prepayments. All amounts required to be
paid pursuant to Section 3.2(b)(i) shall be applied to Revolving-A
Loans or Revolving-B Loans, as
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applicable. All amounts required to be paid pursuant to Sections
3.2(b)(ii) and (iii) shall be applied to Revolving-B Loans (with a
corresponding permanent reduction in the Revolving-B Loan Commitment).
All amounts payable pursuant to Section 3.2(b) shall be applied, to the
extent applicable, first to Base Rate Loans, then to Floating
Eurodollar Rate Loans and then to Eurodollar Loans in the direct order
of Interest Period maturities.
3.3 PAYMENT IN FULL AT MATURITY.
On the Maturity Date, the entire outstanding principal balance of all
Loans, together with accrued but unpaid interest and all other sums owing under
this Credit Agreement, shall be due and payable in full, unless accelerated
sooner pursuant to Section 9.2.
3.4 FACILITY FEES.
(a) In consideration of the Revolving-A Loan Commitment being
made available by the Revolving-A Lenders, the Borrowers agree to pay
to the Agent, for the pro rata benefit of each Revolving-A Lender, a
fee equal to .125% multiplied by the daily average Revolving-A Loan
Commitment during the applicable period of determination (the
"Revolving-A Facility Fees").
(b) In consideration of the Revolving-B Loan Commitment being
made available by the Revolving-B Lenders, the Borrowers agree to pay
to the Agent, for the pro rata benefit of each Revolving-B Lender, a
fee equal to .125% multiplied by the daily average Revolving-B Loan
Commitment during the applicable period of determination (the
"Revolving-B Facility Fees").
(c) The accrued Revolving-A Facility Fees and the accrued
Revolving-B Facility Fees (collectively, the "Facility Fees") shall be
due and payable in arrears on the first Business Day after the end of
each fiscal quarter of the Borrowers (as well as on the Maturity Date)
for the immediately preceding fiscal quarter (or portion thereof),
beginning with the first of such dates to occur after the Closing Date.
3.5 PLACE AND MANNER OF PAYMENTS.
All payments of principal, interest, fees, expenses and other amounts
to be made by a Borrower under this Credit Agreement shall be made without
setoff, deduction or counterclaim and received not later than 2:00 p.m. on the
date when due in Dollars and in immediately available funds by the Agent at the
Agency Services Address. A Borrower shall, at the time it makes any payment
under this Credit Agreement, specify to the Agent the Loans, fees or other
amounts payable by a Borrower hereunder to which such payment is to be applied
(and in the event that it fails to specify, or if such application would be
inconsistent with the terms hereof, the Agent shall distribute such payment to
the Lenders in such manner as it reasonably determines in its sole discretion).
The Agent will distribute such payments to the applicable Lenders on the same
Business Day if any such payment is received prior to 2:00 p.m.; otherwise the
Agent will distribute each payment to the applicable Lenders prior to 12:00 noon
on the next succeeding Business Day. Whenever any
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payment hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day
(subject to accrual of interest and fees for the period of such extension),
except that in the case of Eurodollar Loans, if the extension would cause the
payment to be made in the next following calendar month, then such payment shall
be made on the next preceding Business Day.
3.6 PRO RATA TREATMENT.
Except to the extent otherwise provided herein, all Loans, each payment
or prepayment of principal of any Loan, each payment of interest on the Loans,
each payment of Facility Fees, each reduction of the Revolving-A Loan
Commitment, each reduction of the Revolving-B Loan Commitment and each
conversion or continuation of any Loans, shall be allocated pro rata among the
applicable Lenders in accordance with their respective Revolving-A Loan
Commitment Percentages or Revolving-B Loan Commitment Percentages; provided
that, if any Lender shall have failed to pay its applicable pro rata share of
any Loan, then any amount to which such Lender would otherwise be entitled
pursuant to this Section 3.6 shall instead be payable to the Agent until the
share of such Loan not funded by such Lender has been repaid and any interest
owed by such Lender as result of such failure to fund has been paid; and
provided further, that in the event any amount paid to any Lender pursuant to
this Section 3.6 is rescinded or must otherwise be returned by the Agent, each
Lender shall, upon the request of the Agent, repay to the Agent the amount so
paid to such Lender, with interest for the period commencing on the date such
payment is returned by the Agent until the date the Agent receives such
repayment at a rate per annum equal to, during the period to but excluding the
date two Business Days after such request, the Federal Funds Rate, and
thereafter, the Base Rate plus one percent (1%) per annum.
3.7 COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans that are based upon the Prime
Rate, on which interest shall be computed on the basis of a 365 or 366
day year as the case may be, all computations of interest and fees
hereunder shall be made on the basis of the actual number of days
elapsed over a year of 360 days.
(b) It is the intent of the Lenders and the Borrowers to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Borrowers are hereby limited by the provisions of this paragraph which
shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any
event or contingency (including but not limited to prepayment or
acceleration of the maturity of any obligation), shall the interest
taken, reserved, contracted for, charged, or received under this Credit
Agreement, under the Notes or otherwise, exceed the maximum nonusurious
amount permissible under applicable law. If, from any possible
construction of any of the Credit Documents or any other document,
interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to the
provisions of this paragraph and interest owing pursuant to such
documents shall be automatically reduced to the maximum nonusurious
amount permitted under applicable law, without the
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necessity of execution of any amendment or new document. If any Lender
shall ever receive anything of value which is characterized as interest
on the Loans under applicable law and which would, apart from this
provision, be in excess of the maximum lawful amount, an amount equal
to the amount which would have been excessive interest shall, without
penalty, be applied to the reduction of the principal amount owing on
the Loans and not to the payment of interest, or refunded to the
Borrowers or the other payor thereof if and to the extent such amount
which would have been excessive exceeds such unpaid principal amount of
the Loans. The right to demand payment of the Loans or any other
indebtedness evidenced by any of the Credit Documents does not include
the right to receive any interest which has not otherwise accrued on
the date of such demand, and the Lenders do not intend to charge or
receive any unearned interest in the event of such demand. All interest
paid or agreed to be paid to the Lenders with respect to the Loans
shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term
(including any renewal or extension) of the Loans so that the amount of
interest on account of such indebtedness does not exceed the maximum
nonusurious amount permitted by applicable law.
3.8 SHARING OF PAYMENTS.
Each Lender agrees that, in the event that any Lender shall
obtain payment in respect of any Loan or any other obligation owing to
such Lender under this Credit Agreement through the exercise of a right
of set-off, banker's lien, counterclaim or otherwise (including, but
not limited to, pursuant to the Bankruptcy Code) in excess of its pro
rata share as provided for in this Credit Agreement, such Lender shall
promptly purchase from the other Lenders a participation in such Loans
and other obligations, in such amounts and with such other adjustments
from time to time, as shall be equitable in order that all Lenders
share such payment in accordance with their respective ratable shares
as provided for in this Credit Agreement. Each Lender further agrees
that if a payment to a Lender (which is obtained by such Lender through
the exercise of a right of set-off, banker's lien, counterclaim or
otherwise) shall be rescinded or must otherwise be restored, each
Lender which shall have shared the benefit of such payment shall, by
repurchase of a participation theretofore sold, return its share of
that benefit to each Lender whose payment shall have been rescinded or
otherwise restored. The Borrowers agree that any Lender so purchasing
such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including set-off, banker's lien or
counterclaim, with respect to such participation as fully as if such
Lender were a holder of such Loan or other obligation in the amount of
such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender shall fail to remit to the Agent or any
other Lender an amount payable by such Lender to the Agent or such
other Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall accrue interest thereon, for each
day from the date such amount is due until the day such amount is paid
to the Agent or such other Lender, at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a
setoff to which this Section 3.8 applies, such Lender shall, to the
extent practicable, exercise its rights
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in respect of such secured claim in a manner consistent with the rights
of the Lenders under this Section 3.8 to share in the benefits of any
recovery on such secured claim.
3.9 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrowers from time to
time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Credit Agreement. Each
Lender will make reasonable efforts to maintain the accuracy of its
account or accounts and to promptly update its account or accounts from
time to time, as necessary.
(b) The Agent shall maintain the Register pursuant to Section
11.3(c), and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount, type and
Interest Period of each such Loan hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable to
each Lender hereunder and (iii) the amount of any sum received by the
Agent hereunder from or for the account of the Borrowers and each
Lender's share thereof. The Agent will make reasonable efforts to
maintain the accuracy of the subaccounts referred to in the preceding
sentence and to promptly update such subaccounts from time to time, as
necessary.
(c) The entries made in the Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.9, and the
entries made in the accounts maintained pursuant to subsection (a) of
this Section 3.9, if consistent with the entries of the Agent, shall be
prima facie evidence of the existence and amounts of the obligations of
the Borrowers therein recorded; provided, however, that the failure of
any Lender or the Agent to maintain any such account, such Register or
such subaccount, as applicable, or any error therein, shall not in any
manner affect the obligation of the Borrowers to repay the Loans made
by such Lender in accordance with the terms hereof.
SECTION 4.
ADDITIONAL PROVISIONS REGARDING LOANS
4.1 EURODOLLAR LOAN PROVISIONS.
(a) Unavailability. If, on or prior to the first day of any
Interest Period, (i) the Agent shall have determined in good faith
(which determination shall be conclusive and binding upon the
Borrowers) that (A) Dollar deposits are not generally available in the
London interbank Eurodollar market in the applicable principal amounts
and Interest Period of a requested Eurodollar Loan or (B) by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period or for the Floating Eurodollar Rate, or (ii) the Agent
shall have received
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notice from the Required Lenders that the Eurodollar Rate determined or
to be determined for such Interest Period or the Floating Eurodollar
Rate, as the case may be, will not adequately and fairly reflect the
cost to the Lenders of making or maintaining Eurodollar Loans for such
Interest Period or Floating Eurodollar Rate Loans, as the case may be,
(as conclusively certified by such Lenders), the Agent shall give
notice thereof to the Borrowers and the Lenders as soon as practicable
thereafter. Upon delivery of such notice, (A) any Eurodollar Loans
requested to be made on the first day of such Interest Period or any
requested Floating Rate Eurodollar Loans, as the case may be, shall be
made as Base Rate Loans, (B) any Loans that were to have been converted
to or continued as Eurodollar Loans or Floating Eurodollar Rate Loans,
as the case may be, shall be prepaid by the Borrowers or converted to
or continued as Base Rate Loans and (C) any outstanding Eurodollar
Loans shall be converted, on the first day of such Interest Period, to
Base Rate Loans and any Floating Rate Eurodollar Loans shall be
converted, on the next succeeding Business Day, to Base Rate Loans.
Until the Agent has withdrawn such notice, no further Eurodollar Loans
or Floating Eurodollar Rate Loans, as the case may be, shall be made or
continued as such, nor shall the Borrowers have the right to convert
Base Rate Loans to Eurodollar Loans or Floating Eurodollar Rate Loans,
as the case may be.
(b) Change in Legality. Notwithstanding any other provision
herein, if any change, after the date hereof, in any law, governmental
rule, regulation, guideline or order (including the introduction of any
new law or governmental rule, regulation, guideline or order) or in the
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof shall make it
unlawful for any Lender to make or maintain any Eurodollar Loan or
Floating Eurodollar Rate Loan then, by written notice to the Borrowers
and to the Agent, such Lender may:
(i) declare that Eurodollar Loans and Floating
Eurodollar Rate Loans, and conversions to or continuations of
Eurodollar Loans and Floating Eurodollar Rate Loans, will not
thereafter be made by such Lender hereunder, whereupon any
request by the Borrowers for, or for conversion into or
continuation of, Eurodollar Loans or Floating Eurodollar Rate
Loans shall, as to such Lender only, be deemed a request for,
or for conversion into or continuation of, Base Rate Loans,
unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurodollar Loans
and Floating Eurodollar Rate Loans made by it be converted to
Base Rate Loans in which event all such Eurodollar Loans and
Floating Eurodollar Rate Loans shall be converted to Base Rate
Loans either (A) on the last day of the then current Interest
Period applicable to such Eurodollar Loan if such Lender can
lawfully continue to maintain and fund such Eurodollar Loan or
(B) immediately if such Lender shall determine that it may not
lawfully continue to maintain and fund such Eurodollar Loan to
such day.
(c) Requirements of Law. If at any time a Lender shall incur
increased costs or reductions in the amounts received or receivable
hereunder with respect to the making, the commitment to make or the
maintaining of any Eurodollar Loan or Floating Rate Eurodollar
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Loan because of (i) any change after the date hereof in any law,
governmental rule, regulation, guideline or order (including the
introduction of any new law or governmental rule, regulation, guideline
or order) or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or
administration thereof, including, without limitation, the imposition,
modification or deemed applicability of any reserves, deposits or
similar requirements (such as, for example, but not limited to, a
change in official reserve requirements) or (ii) other circumstances
affecting the London interbank Eurodollar market; then the Borrowers
shall pay to such Lender promptly upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender may
determine in its sole discretion) as may be required to compensate such
Lender for such increased costs or reductions in amounts receivable
hereunder. If any Lender becomes entitled to claim any additional
amounts pursuant to this Section 4.1(c), it shall provide prompt notice
thereof to the Borrowers, through the Agent, certifying (A) that one of
the events described in this Section 4.1(c) has occurred and describing
in reasonable detail the nature of such event, (B) as to the increased
cost or reduced amount resulting from such event and (C) as to the
additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof provided that no such amount
shall be payable with respect to any period commencing more than 90
days prior to the date such Lender first notifies the Borrowers of its
intention to demand compensation therefor under this Section.
(d) Regulation D Compensation. In the event that a Lender is
required to maintain reserves of the type contemplated by the
definition of "Eurodollar Reserve Percentage", such Lender may require
the Borrowers to pay, contemporaneously with each payment of interest
on the Eurodollar Loans, additional interest on the related Eurodollar
Loan of such Lender at a rate per annum determined by such Lender up to
but not exceeding the excess of (i)(A) the applicable London Interbank
Offered Rate divided by (B) one minus the Eurodollar Reserve Percentage
over (ii) the applicable London Interbank Offered Rate. Any Lender
wishing to require payment of such additional interest (x) shall so
notify the Borrowers and the Agent, in which case such additional
interest on the Eurodollar Loans of such Lender shall be payable to
such Lender at the place indicated in such notice with respect to each
Interest Period commencing at least three Business Days after the
giving of such notice and (y) shall notify the Borrowers at least three
Business Days prior to each date on which interest is payable on the
Eurodollar Loans of the amount then due it under this Section. Each
such notification shall be accompanied by such information as the
Borrowers may reasonably request.
Each determination and calculation made by a Lender under this Section
4.1 shall, absent manifest error, be binding and conclusive on the parties
hereto. Any conversions of Eurodollar Loans, or Floating Eurodollar Rate Loans,
as the case may be, made pursuant to this Section 4.1 shall subject the
Borrowers to the payments required by Section 4.3 to the extent applicable. This
Section shall survive termination of this Credit Agreement and the other Credit
Documents and payment of the Loans and all other amounts payable hereunder.
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4.2 CAPITAL ADEQUACY.
If any Lender has determined that the adoption or becoming effective,
after the date hereof, of any applicable law, rule or regulation regarding
capital adequacy, or any change therein (after the date hereof), or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender (or its parent corporation)
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such Governmental Authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's (or parent corporation's) capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Lender (or
its parent corporation) could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such Lender's (or
parent corporation's) policies with respect to capital adequacy), then, upon
notice from such Lender (which shall include the basis and calculations in
reasonable detail supporting the compensation requested in such notice), and
receipt by the Borrowers of such written notice from such Lender (with a copy to
the Agent) the Borrowers shall be obligated to pay to such Lender such
additional amount or amounts as will compensate such Lender on an after tax
basis (after taking into account applicable deductions and credits in respect of
the amount so indemnified) for such reduction provided that no such amount shall
be payable with respect to any period commencing more than 90 days prior to the
date such Lender first notifies the Borrowers of its intention to demand
compensation therefor under this Section. Each determination by any Lender of
amounts owing under this Section 4.2 shall, absent manifest error, be conclusive
and binding on the parties hereto. The covenants of this Section 4.2 shall
survive termination of this Credit Agreement and the other Credit Documents and
the payment of the Loans and all other amounts payable hereunder.
4.3 COMPENSATION.
The Borrowers promise to indemnify each Lender and to hold each Lender
harmless from any loss or expense which such Lender may sustain or incur as a
consequence of (a) default by the Borrowers in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrowers have given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrowers in making any prepayment of a Eurodollar Loan after
the Borrowers have given a notice thereof in accordance with the provisions of
this Credit Agreement, (c) the making of a prepayment of Eurodollar Loans on a
day which is not the last day of an Interest Period with respect thereto and (d)
the payment, continuation or conversion of a Eurodollar Loan on a day which is
not the last day of the Interest Period applicable thereto or the failure to
repay a Eurodollar Loan when required by the terms of this Credit Agreement.
Such indemnification may include an amount equal to (i) an amount of interest
calculated at the Eurodollar Rate which would have accrued on the amount in
question, for the period from the date of such prepayment or of such failure to
borrow, convert, continue or repay to the last day of the applicable Interest
Period (or, in the case of a failure to borrow, convert or continue, the
Interest Period that would have commenced on the date of such failure) in each
case at the applicable rate of interest for such Eurodollar Loans provided for
herein minus (ii) the amount of interest (as reasonably determined by such
Lender) which would have
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accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank Eurocurrency market. If
any Lender becomes entitled to claim any additional amounts pursuant to this
Section 4.3, it shall provide prompt notice thereof to the Borrower, through the
Agent, as to the additional amount demanded by such Lender and a reasonably
detailed explanation of the calculation thereof. The covenants in this Section
4.3 shall survive the termination of this Credit Agreement and the payment of
the Loans and all other amounts payable hereunder.
4.4 TAXES.
(a) Except as provided below in this Section 4.4, all payments
made by the Borrowers under this Credit Agreement and any Notes shall
be made free and clear of, and without deduction or withholding for or
on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
court, or governmental body, agency or other official, excluding taxes
measured by or imposed upon the net income of any Lender or its
applicable lending office, or any branch or affiliate thereof, and all
franchise taxes, branch taxes, taxes on doing business or taxes on the
capital or net worth of any Lender or its applicable lending office, or
any branch or affiliate thereof, in each case imposed in lieu of net
income taxes: (i) by the jurisdiction under the laws of which such
Lender, applicable lending office, branch or affiliate is organized or
is located, or in which its principal executive office is located, or
any nation within which such jurisdiction is located or any political
subdivision thereof; or (ii) by reason of any connection between the
jurisdiction imposing such tax and such Lender, applicable lending
office, branch or affiliate other than a connection arising solely from
such Lender having executed, delivered or performed its obligations, or
received payment under or enforced, this Credit Agreement or any Notes.
If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be
withheld from any amounts payable to an Agent or any Lender hereunder
or under any Notes, (A) the amounts so payable to the Agent or such
Lender shall be increased to the extent necessary to yield to the Agent
or such Lender (after payment of all Non-Excluded Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Credit Agreement and any Notes, provided, however,
that the Borrowers shall be entitled to deduct and withhold any Non-
Excluded Taxes and shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the
United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this Section 4.4
whenever any Non-Excluded Taxes are payable by the Borrowers, and (B)
as promptly as possible after requested, the Borrowers shall send to
the Agent for its own account or for the account of such Lender, as the
case may be, a certified copy of an original official receipt received
by the Borrowers showing payment thereof. If the Borrowers fail to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Agent the required receipts or other required
documentary evidence, the Borrowers shall indemnify the Agent and any
Lender for any incremental Non-Excluded Taxes, interest or penalties
that may become payable by the
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Agent or any Lender as a result of any such failure. The agreements in
this Section 4.4 shall survive the termination of this Credit Agreement
and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) (A) on or before the date of any payment
by the Borrowers under this Credit Agreement
or the Notes to such Lender, deliver to the
Borrowers and the Agent (x) two duly
completed copies of United States Internal
Revenue Service Form 1001 or 4224, or
successor applicable form, as the case may
be, certifying that it is entitled to
receive payments under this Credit Agreement
and any Notes without deduction or
withholding of any United States federal
income taxes and (y) an Internal Revenue
Service Form W-8 or W-9, or successor
applicable form, as the case may be,
certifying that it is entitled to an
exemption from United States backup
withholding tax;
(B) deliver to the Borrowers and the
Agent two further copies of any such form or
certification on or before the date that any
such form or certification expires or
becomes obsolete and after the occurrence of
any event requiring a change in the most
recent form previously delivered by it to
the Borrower; and
(C) obtain such extensions of time
for filing and complete such forms or
certifications as may reasonably be
requested by the Borrowers or the Agent; or
(ii) in the case of any such Lender that is not a
"bank" within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (A) represent to the Borrowers (for the
benefit of the Borrowers and the Agent) that it is not a bank
within the meaning of Section 881 (c)(3)(A) of the Internal
Revenue Code, (B) agree to furnish to the Borrowers, on or
before the date of any payment by the Borrowers, with a copy
to the Agent, two accurate and complete original signed copies
of Internal Revenue Service Form W-8, or successor applicable
form, certifying to such Lender's legal entitlement at the
date of such certificate to an exemption from U.S. withholding
tax under the provisions of Section 881(c) of the Internal
Revenue Code with respect to payments to be made under this
Credit Agreement and any Notes (and to deliver to the
Borrowers and the Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrowers or
the Agent for filing and completing such forms), and (C)
agree, to the extent legally entitled to do so, upon
reasonable request by
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the Borrowers, to provide to the Borrowers (for the benefit of
the Borrowers and the Agent) such other forms as may be
reasonably required in order to establish the legal
entitlement of such Lender to an exemption from withholding
with respect to payments under this Credit Agreement and any
Notes.
Notwithstanding the above, if any change in treaty,
law or regulation has occurred after the date such Person
becomes a Lender hereunder which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and
such Lender so advises the Borrowers and the Agent, then such
Lender shall be exempt from such requirements. Each Person
that shall become a Lender or a participant of a Lender
pursuant to Section 11.3 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms,
certifications and statements required pursuant to this
subsection (b); provided that in the case of a participant of
a Lender, the obligations of such participant of a Lender
pursuant to this subsection (b) shall be determined as if the
participant of a Lender were a Lender except that such
participant of a Lender shall furnish all such required forms,
certifications and statements to the Lender from which the
related participation shall have been purchased.
4.5 REPLACEMENT OF LENDERS.
The Agent and each Lender shall use reasonable efforts to avoid or
mitigate any increased cost or suspension of the availability of an interest
rate under Sections 4.1 through 4.4 above to the greatest extent practicable
(including transferring the Loans to another lending office or Affiliate of a
Lender) unless, in the opinion of the Agent or such Lender, such efforts would
be likely to have an adverse effect upon it. In the event a Lender makes a
request to the Borrowers for additional payments in accordance with Section 4.1,
4.2 or 4.4, or suspends Eurodollar Loans under Section 4.1, then, provided that
no Default or Event of Default has occurred and is continuing at such time, the
Borrowers may, at their own expense (such expense to include any transfer fee
payable to the Agent under Section 11.3(b) and any expense pursuant to Section
4) and in its sole discretion, require such Lender to transfer and assign in
whole (but not in part), without recourse (in accordance with and subject to the
terms and conditions of Section 11.3(b)), all of its interests, rights and
obligations under this Credit Agreement to an Eligible Assignee which shall
assume such assigned obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (a) such assignment shall not
conflict with any law, rule or regulation or order of any court or other
Governmental Authority and (b) the Borrowers or such assignee shall have paid to
the assigning Lender in immediately available funds the principal of and
interest accrued to the date of such payment on the portion of the Loans
hereunder held by such assigning Lender and all other amounts owed to such
assigning Lender hereunder, including amounts owed pursuant to Sections 4.1
through 4.4.
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SECTION 5.
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement is
subject to satisfaction (or waiver) of the following conditions:
(a) Executed Credit Documents. Receipt by the Agent of duly
executed copies of (i) this Credit Agreement, (ii) the Notes and (iii)
all other Credit Documents, each in form and substance acceptable to
the Lenders.
(b) Organizational Documents.
(i) Receipt by the Agent of the following with
respect to Duke Energy Field Services, LLC:
(A) Certificate of Formation. A copy of the
certificate of formation of such Borrower certified
to be true and complete by the appropriate
Governmental Authority of the State of Delaware and
certified by an authorized officer of such Borrower
to be true and correct as of the Effective Date.
(B) LLC Agreement. A copy of the LLC
Agreement of such Borrower certified by an authorized
officer of such Borrower to be true and correct as of
the Effective Date.
(C) Resolutions. Copies of resolutions of
the members of such Borrower approving and adopting
the Credit Documents to which such Borrower is a
party, the transactions contemplated therein and
authorizing execution and delivery thereof and
certified by an authorized officer of such Borrower
to be in full force and effect as of the Effective
Date.
(D) Good Standing. Copies of certificates of
good standing, existence or their equivalent with
respect to such Borrower certified as of a recent
date by the appropriate Governmental Authorities of
the State of Delaware.
(E) Incumbency. An incumbency certificate
certified by an authorized officer to be true and
correct as of the Effective Date.
(ii) Receipt by the Agent of the following with
respect to Duke Energy Field Services Corporation:
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(A) Charter Documents. Copies of the
articles or certificates of incorporation or other
charter documents of such Borrower certified to be
true and complete as of a recent date by the
appropriate Governmental Authority of the State of
Delaware and certified by a secretary or assistant
secretary of such Borrower to be true and correct as
of the Effective Date.
(B) Bylaws. A copy of the bylaws or other
governing documents of such Borrower certified by a
secretary or assistant secretary of such Borrower to
be true and correct as of the Effective Date.
(C) Resolutions. Copies of resolutions of
the Board of Directors of such Borrower approving and
adopting the Credit Documents to which it is a party,
the transactions contemplated therein and authorizing
execution and delivery thereof, certified by a
secretary or assistant secretary of such Borrower to
be true and correct and in force and effect as of the
Effective Date.
(D) Good Standing. Copies of certificates of
good standing, existence or its equivalent with
respect to such Borrower certified as of a recent
date by the appropriate Governmental Authorities of
the State of Delaware.
(E) Incumbency. An incumbency certificate of
such Borrower certified by a secretary or assistant
secretary to be true and correct as of the Effective
Date.
(c) Opinion of Counsel. Receipt by the Agent of an opinion
from legal counsel to the Borrowers, addressed to the Agent on behalf
of the Lenders and dated as of the Effective Date, in form and
substance satisfactory to the Agent.
(d) Financial Statements. Receipt by the Lenders of such
financial information regarding the Borrowers as the Lenders may
reasonably request.
(e) Fees and Expenses. Payment by the Borrowers of all fees
and expenses owed by it to the Lenders and the Agent, including,
without limitation, (i) payment to each Lender of an upfront fee equal
to 5 bps on its total Commitment and (ii) payment to the Agent of the
fees set forth in the Fee Letter.
(f) Litigation. As of the Closing Date, there shall be no
material actions, suits, investigations or legal, equitable,
arbitration or administrative proceedings pending or threatened against
a Borrower which are likely to be decided adversely to such Borrower
and if so decided would have a Material Adverse Effect.
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(g) Material Adverse Effect. As of the Closing Date, no event
or condition shall have occurred since December 31, 1999 that would
have or would be reasonably expected to have a Material Adverse Effect.
(h) Borrowers' Certificate. The Agent shall have received a
certificate or certificates executed by an Approved Officer of the
Borrowers, on behalf of the Borrowers, as of the Closing Date stating
that (i) the Borrowers are in compliance with all existing financial
obligations, unless such non-compliance would not have a Material
Adverse Effect, (ii) no action, suit, investigation or proceeding is
pending or, to such officer's knowledge, threatened in any court or
before any arbitrator or governmental instrumentality that purports to
affect a Borrower or any transaction contemplated by the Credit
Documents, if such action, suit, investigation or proceeding is likely
to be adversely determined and if adversely determined would have a
Material Adverse Effect, (iii) the financial statements and information
delivered to the Agent on or before the Closing Date were prepared in
good faith and in accordance with GAAP and (iv) immediately after
giving effect to this Credit Agreement, the other Credit Documents and
all the transactions contemplated herein and therein to occur on such
date, (A) no Default or Event of Default exists and (B) all
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects on and as of
the date made.
(i) Other. Receipt by the Lenders of such other documents,
instruments, agreements or information as reasonably requested by any
Lender.
5.2 CONDITIONS TO LOANS.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make new Loans unless:
(a) Request. The Borrowers shall have timely delivered a duly
executed and completed Notice of Borrowing in conformance with all the
terms and conditions of this Credit Agreement.
(b) Representations and Warranties. The representations and
warranties made by the Borrowers in this Credit Agreement are true and
correct in all material respects at and as if made as of the date of
the funding of the Loans (except to the extent such representations and
warranties expressly and exclusively relate to an earlier date).
(c) No Default. No Default or Event of Default shall exist or
be continuing either prior to or after giving effect thereto.
(d) Availability. Immediately after giving effect to the
making of a Revolving-A Loan the Revolving-A Loans outstanding shall
not exceed the Revolving-A Loan Commitment. Immediately after giving
effect to the making of a Revolving-B Loan the Revolving-B Loans
outstanding shall not exceed the Revolving-B Loan Commitment.
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The delivery of each Notice of Borrowing shall constitute a representation and
warranty by the Borrowers of the correctness of the matters specified in
subsections (b), (c) and (d) above.
SECTION 6.
REPRESENTATIONS AND WARRANTIES
The Borrowers hereby represents and warrants to each Lender that:
6.1 ORGANIZATION AND GOOD STANDING.
Each Borrower (a) is a limited liability company or a corporation duly
formed, validly existing and in good standing under the laws of the State of
Delaware, (b) is duly qualified and in good standing as a foreign limited
liability company or corporation authorized to do business in every jurisdiction
where the failure to so qualify would have a Material Adverse Effect and (c) has
the requisite corporate power and authority to own its properties and to carry
on its business as now conducted and as proposed to be conducted.
6.2 DUE AUTHORIZATION.
Each Borrower (a) has the requisite corporate power and authority to
execute, deliver and perform this Credit Agreement and the other Credit
Documents and to incur the obligations herein and therein provided for and (b)
has been authorized by all necessary corporate action to execute, deliver and
perform this Credit Agreement and the other Credit Documents.
6.3 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated herein and therein, nor
performance of and compliance with the terms and provisions hereof and thereof
by each Borrower will (a) violate or conflict with any provision of its
organizational documents or bylaws, (b) materially violate, contravene or
conflict with any law (including without limitation, the Public Utility Holding
Company Act of 1935, as amended), regulation (including without limitation,
Regulation U or Regulation X), order, writ, judgment, injunction, decree or
permit applicable to it, (c) materially violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any indenture,
loan agreement, mortgage, deed of trust, contract or other agreement or
instrument to which it is a party or by which it may be bound or (d) result in
or require the creation of any Lien upon or with respect to its properties.
6.4 CONSENTS.
No consent, approval, authorization or order of, or filing,
registration or qualification with, any court or Governmental Authority or third
party is required in connection with the execution,
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delivery or performance of this Credit Agreement or any of the other Credit
Documents that has not been obtained.
6.5 ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
the Borrowers enforceable against the Borrowers in accordance with their
respective terms, except as may be limited by bankruptcy or insolvency laws or
similar laws affecting creditors' rights generally or by general equitable
principles.
6.6 FINANCIAL CONDITION.
The financial statements delivered to the Lenders pursuant to Section
5.1(d) and pursuant to Section 7.1(a) and (b): (i) have been prepared in
accordance with GAAP (subject to the provisions of Section 1.3) and (ii) present
fairly the financial condition, results of operations and cash flows of the
Borrowers as of such date and for such periods (subject, in the case of interim
statements, to normal year-end adjustments and the absence of footnotes).
6.7 TAXES.
Each Borrower and each of its Material Subsidiaries has filed, or
caused to be filed, all material tax returns (federal, state, local and foreign)
required to be filed and paid all amounts of taxes shown thereon to be due
(including interest and penalties) and has paid all other taxes, fees,
assessments and other governmental charges (including mortgage recording taxes,
documentary stamp taxes and intangibles taxes) owing by it, except (a) for such
taxes which are not yet delinquent or that are being contested in good faith and
by proper proceedings, and against which adequate reserves are being maintained
in accordance with GAAP or (b) where such nonfiling or nonpayment would not have
a Material Adverse Effect.
6.8 COMPLIANCE WITH LAW.
Each Borrower and each of its Material Subsidiaries is in compliance
with all laws, rules, regulations, orders, decrees and requirements of
Governmental Authorities applicable to it or to its properties (including,
without limitation, ERISA, the Code and Environmental Laws), except (a) where
the necessity of compliance therewith is being contested in good faith by
appropriate proceedings or (b) such failure to comply would not have or would
not be reasonably expected to have a Material Adverse Effect.
6.9 USE OF PROCEEDS; MARGIN STOCK.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 7.7. None of such proceeds will be used for the
purpose of (a) purchasing or carrying any "margin stock" as defined in
Regulation U or Regulation X, (b) for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry "margin stock",
(c) for
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any other purpose which might constitute this transaction a "purpose credit"
within the meaning of Regulation U or Regulation X or (d) for the acquisition of
another Person unless the board of directors (or other comparable governing
body) or stockholders, as appropriate, of such Person has approved such
acquisition.
6.10 GOVERNMENT REGULATION.
Each Borrower is exempt from the provisions of the Public Utility
Holding Company Act of 1935, as amended. Neither Borrower is an "investment
company" registered or required to be registered under the Investment Company
Act of 1940, as amended, or controlled by such a company.
6.11 SOLVENCY.
Each Borrower is and, after the consummation of the transactions
contemplated by this Credit Agreement, will be Solvent.
6.12 ENVIRONMENTAL MATTERS.
Except as would not result or be reasonably expected to result in a
Material Adverse Effect: (a) each of the properties of the Borrowers (the
"Properties") and all operations at the Properties are in compliance with all
applicable Environmental Laws, (b) there is no violation of any Environmental
Law with respect to the Properties or the businesses operated by the Borrowers
(the "Businesses"), and (c) there are no conditions relating to the Businesses
or Properties that would reasonably be expected to give rise to a liability
under any applicable Environmental Laws.
6.13 MATERIAL SUBSIDIARIES.
As of the Closing Date, set forth on Schedule 6.13 is a list of all
Material Subsidiaries of the Borrowers.
SECTION 7.
AFFIRMATIVE COVENANTS
Each Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans, together with interest, fees and
other obligations hereunder, have been paid in full and the Commitments shall
have terminated:
7.1 INFORMATION COVENANTS.
The Borrowers will furnish, or cause to be furnished, to the Agent and
each of the Lenders:
(a) Annual Financial Statements. As soon as available, and in
any event within 120 days after the close of each fiscal year of the
Borrowers, a consolidated balance sheet of
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the Borrowers and their Subsidiaries as of the end of such fiscal year,
together with a related consolidated income statement and related
statements of cash flows, capitalization and retained earnings for such
fiscal year, setting forth in comparative form figures for the
preceding fiscal year, all such financial information described above
to be audited by independent certified public accountants of recognized
national standing and whose opinion, which shall be furnished to the
Agent, shall be to the effect that such financial statements have been
prepared in accordance with GAAP (except for changes with which such
accountants concur); provided that the Borrowers' Form 10-K Annual
Report as filed with the Securities and Exchange Commission, without
exhibits, will satisfy the requirements of this Section 7.1(a).
(b) Quarterly Financial Statements. As soon as available, and
in any event within 60 days after the close of each fiscal quarter of
the Borrowers (other than the fourth fiscal quarter) a consolidated
balance sheet of the Borrowers and their Subsidiaries as of the end of
such fiscal quarter, together with a related consolidated income
statement and related statement of cash flows for such fiscal quarter
in each case setting forth in comparative form figures for the
corresponding period of the preceding fiscal year, and accompanied by a
certificate of an Approved Officer of the Borrowers to the effect that
such quarterly financial statements fairly present in all material
respects the financial condition of the Borrowers and have been
prepared in accordance with GAAP, subject to changes resulting from
audit and normal year-end audit adjustments to same; provided that the
Borrowers' Form 10-Q Quarterly Report as filed with the Securities and
Exchange Commission, without exhibits, will satisfy the requirements of
this Section 7.1(b).
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of an Approved Officer of the Borrowers (i) stating that
no Default or Event of Default exists, or if any Default or Event of
Default does exist, specifying the nature and extent thereof and what
action the Borrowers propose to take with respect thereto and (ii)
updating Schedule 6.13, if appropriate.
(d) Reports. Promptly upon transmission or receipt thereof,
copies of any filings and registrations with, and reports to or from,
the Securities and Exchange Commission, or any successor agency, and
copies of all financial statements, proxy statements, notices and
reports as a Borrower shall send to its equityholders.
(e) Notices. Within five days after any officer of a Borrower
with responsibility relating thereto obtaining knowledge thereof, the
Borrowers will give written notice to the Agent immediately of (i) the
occurrence of a Default or Event of Default, specifying the nature and
existence thereof and what action the Borrowers propose to take with
respect thereto, and (ii) the occurrence of any of the following with
respect to the Borrowers: (A) the pendency or commencement of any
litigation, arbitral or governmental proceeding against a Borrower the
claim of which is likely to be decided adversely to such Borrower and,
if adversely determined, would have or would be reasonably expected to
have a Material Adverse Effect or (B) the institution of any
proceedings against a Borrower with respect to, or the receipt of
notice by such Person of potential liability or responsibility for
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violation or alleged violation of, any federal, state or local law,
rule or regulation (including, without limitation, any Environmental
Law) that is likely to be decided adversely to a Borrower and, if
adversely decided, would have a Material Adverse Effect.
(f) ERISA. Upon a Borrower or any ERISA Affiliate obtaining
knowledge thereof, the Borrowers will give written notice to the Agent
promptly (and in any event within five Business Days) of: (i) any event
or condition, including, but not limited to, any Reportable Event, that
constitutes, or would be reasonably expected to lead to, a Termination
Event if such Termination Event would have a Material Adverse Effect;
(ii) with respect to any Multiemployer Plan, the receipt of notice as
prescribed in ERISA or otherwise of any withdrawal liability assessed
against a Borrower or any ERISA Affiliate, or of a determination that
any Multiemployer Plan is in reorganization or insolvent (both within
the meaning of Title IV of ERISA); (iii) the failure to make full
payment on or before the due date (including extensions) thereof of all
amounts which a Borrower or any of its Subsidiaries or ERISA Affiliates
is required to contribute to each Plan pursuant to its terms and as
required to meet the minimum funding standard set forth in ERISA and
the Code with respect thereto; or (iv) any change in the funding status
of any Plan that would have or would be reasonably expected to have a
Material Adverse Effect; together, with a description of any such event
or condition or a copy of any such notice and a statement by an officer
of a Borrower briefly setting forth the details regarding such event,
condition, or notice, and the action, if any, which has been or is
being taken or is proposed to be taken with respect thereto. Promptly
upon request, each Borrower shall furnish the Agent and each of the
Lenders with such additional information concerning any Plan as may be
reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section 3(39)
of ERISA).
(g) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of the Borrowers and their Subsidiaries as the
Agent or the Required Lenders may reasonably request.
Information required to be delivered pursuant to this Sections 7.1(a),
7.1(b) and 7.1(d) shall be deemed to have been delivered on the date on which
the Borrowers provide notice to the Lenders that such information has been
posted on the Securities and Exchange Commission website on the Internet at
xxx.xxx/xxxxx/xxxxxxxx.xxx or at another website identified in such notice and
accessible by the Lenders without charge; provided that (i) such notice may be
included in a certificate delivered pursuant to Section 7.1(c) and (ii) the
Borrowers shall deliver paper copies of the information referred to in Sections
7.1(a), 7.1(b) and 7.1(d), to any Lender that requests such delivery.
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7.2 PRESERVATION OF EXISTENCE AND FRANCHISES.
Each Borrower will, and will cause each Material Subsidiary to, do all
things necessary to preserve and keep in full force and effect its existence and
rights, franchises and authority; provided, however, that, subject to Section
8.3, a Borrower shall not be required to preserve any such existence, right or
franchise if it in good faith determines that preservation thereof is no longer
necessary or desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to the Lenders.
7.3 BOOKS AND RECORDS.
Each Borrower will keep, and will cause its Material Subsidiaries to
keep, complete and accurate books and records of its transactions in accordance
with good accounting practices on the basis of GAAP (including the establishment
and maintenance of appropriate reserves).
7.4 COMPLIANCE WITH LAW.
Each Borrower will comply, and will cause each Material Subsidiary to
comply, with all laws (including, without limitation, all Environmental Laws and
ERISA laws), rules, regulations and orders, and all applicable restrictions
imposed by all Governmental Authorities, applicable to it and its property, if
(a) the failure to comply would have or would be reasonably expected to have a
Material Adverse Effect or (b) the necessity of compliance therewith is being
contested in good faith by appropriate proceedings.
7.5 PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
Each Borrower will, and will cause each Material Subsidiary to, pay,
settle or discharge (a) all taxes, assessments and governmental charges or
levies imposed upon it, or upon its income or profits, or upon any of its
properties, before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if unpaid, might
give rise to a Lien upon any of its properties, and (c) all of its other
Indebtedness as it shall become due; provided, however, that no Borrower shall
be required to pay any such tax, assessment, charge, levy, claim or Indebtedness
which (i) is being contested in good faith by appropriate proceedings and as to
which adequate reserves therefor have been established in accordance with GAAP
or (ii) the nonpayment of which would not have a Material Adverse Effect.
7.6 MAINTENANCE OF PROPERTY; INSURANCE.
(a) Each Borrower will keep, and will cause each Material
Subsidiary to keep, all property useful and necessary in its business
in good working order and condition, ordinary wear and tear excepted.
(b) Each Borrower will, and will cause each of its Material
Subsidiaries to, maintain (either in the name of such Borrower or in
such Material Subsidiary's own name) with financially sound and
responsible insurance companies, insurance on all their
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respective properties in at least such amounts and against at least
such risks (and with such risk retention) as are usually insured
against in the same general area by companies of established repute
engaged in the same or a similar business; provided that self-insurance
by a Borrower or any such Material Subsidiary shall not be deemed a
violation of this covenant to the extent that companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Borrowers or such Material Subsidiary operates
self-insure.
7.7 USE OF PROCEEDS.
The proceeds of the Loans may be used solely (a) to make a special
one-time distribution to Duke Energy Corporation and Xxxxxxxx Petroleum Company
and for transaction costs in connection therewith, (b) to provide credit support
for each Borrower's commercial paper and (c) for other general corporate
purposes of each Borrower.
7.8 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Borrower
will, and will cause its Material Subsidiaries to, permit representatives
appointed by the Agent, including, without limitation, independent accountants,
agents, attorneys, and appraisers to visit and inspect each Borrower's and its
Material Subsidiaries' property, including its books and records, its accounts
receivable and inventory, each Borrower's and its Material Subsidiaries'
facilities and its other business assets, and to make photocopies or photographs
thereof and to write down and record any information such representatives obtain
and shall permit the Agent or its representatives to investigate and verify the
accuracy of information provided to the Lenders and to discuss all such matters
with the officers, employees and representatives of each Borrower and its
Material Subsidiaries.
7.9 MAINTENANCE OF OWNERSHIP.
Each Borrower will maintain ownership of all Capital Stock of each
Material Subsidiary, directly or indirectly, free and clear of all Liens except
as permitted by Section 8.3. The Borrowers will take such action as necessary to
ensure that, on and after the date that a Subsidiary of Xxxxxxxx Petroleum is
merged into Duke Energy Field Services Corporation, Duke Energy Field Services,
LLC will be (and will remain) a wholly owned Subsidiary, direct or indirect, of
Duke Energy Field Services Corporation unless Duke Energy Field Services, LLC is
merged with and into Duke Energy Field Services Corporation.
SECTION 8.
NEGATIVE COVENANTS
Each Borrower hereby covenants and agrees that so long as this Credit
Agreement is in effect and until the Loans, together with interest, fees and
other obligations hereunder, have been paid in full and the Commitments shall
have terminated:
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8.1 NATURE OF BUSINESS.
The Borrowers will not, and will not permit any of their Materials
Subsidiaries to, materially alter the character of their business on a
consolidated basis from that conducted as of the Closing Date.
8.2. LIENS.
A Borrower will not create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it or any of its Material Subsidiaries,
except for the following:
(a) Liens granted by such Borrower or any Material Subsidiary
existing on the date of this Credit Agreement securing Indebtedness
outstanding on the date of this Credit Agreement as set forth on
Schedule 8.2.
(b) any Lien on any asset of any Person existing at the time
such Person is merged or consolidated with or into a Borrower or any
Material Subsidiary and not created in contemplation of such event.
(c) any Lien existing on any asset prior to the acquisition
thereof by a Borrower or any Material Subsidiary and not created in
contemplation of such acquisition.
(d) any Lien on any asset securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of
acquiring such asset; provided that such Lien attaches to such asset
concurrently with or within 180 days after the acquisition thereof.
(e) any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien permitted
by any of the foregoing clauses of this Section 8.2; provided that such
Indebtedness is not increased and is not secured by any additional
assets.
(f) Liens for taxes, assessments or other governmental charges
or levies not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP.
(g) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and interest owners of oil and gas
production and other Liens imposed by law, created in the ordinary
course of business and for amounts not past due for more than 60 days
or which are being contested in good faith by appropriate proceedings
which are sufficient to prevent imminent foreclosure of such Liens, are
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promptly instituted and diligently conducted and with respect to which
adequate reserves or other appropriate provisions are being maintained
in accordance with GAAP.
(h) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts.
(i) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and other
restrictions, charges or encumbrances (whether or not recorded)
affecting the use of real property.
(j) Liens with respect to judgments and attachments which do
not result in an Event of Default.
(k) Liens, deposits or pledges to secure the performance of
bids, tenders, contracts (other than contracts for the payment of
money), leases (permitted under the terms of this Agreement), public or
statutory obligations, surety, stay, appeal, indemnity, performance or
other obligations arising in the ordinary course of business.
(l) rights of first refusal entered into in the ordinary
course of business.
(m) Liens consisting of any (i) rights reserved to or vested
in any municipality or governmental, statutory or public authority to
control or regulate any property of a Borrower or any Material
Subsidiary or to use such property in any manner which does not
materially impair the use of such property for the purpose for which it
is held by a Borrower or any such Material Subsidiary, (ii) obligations
or duties to any municipality or public authority with respect to any
franchise, grant, license, lease or permit and the rights reserved or
vested in any Governmental Authority or public utility to terminate any
such franchise, grant, license, lease or permit or to condemn or
expropriate any property, or (iii) zoning laws, ordinances or municipal
regulations.
(n) liens on deposits required by any Person with whom a
Borrower or any Material Subsidiary enters into forward contracts,
futures contracts, swap agreements or other commodities contracts in
the ordinary course of business.
(o) other Liens, including Liens imposed by Environmental
Laws, arising in the ordinary course of its business which (i) do not
secure Indebtedness, (ii) do not secure any obligation in an amount
exceeding $100,000,000 at any time, (iii) do not in the aggregate
materially detract from the value of its assets or materially impair
the use thereof in the operation of its business or (iv) in addition to
those Liens described in
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clause (ii) above, secure reimbursement obligations under letters of
credit not exceeding $100,000,000 outstanding at any one time.
8.3 CONSOLIDATION AND MERGER.
A Borrower will not, and will not permit any of its Material
Subsidiaries to, (a) enter into any transaction of merger or (b) consolidate,
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution); provided that, so long as no Default or Event of Default shall
exist or be caused thereby: (i) a Person (including a Subsidiary of a Borrower)
may be merged or consolidated with or into a Borrower so long as such Borrower
shall be the continuing or surviving corporation and (ii) a Material Subsidiary
may merge with or into another Subsidiary of a Borrower.
8.4 SALE OR LEASE OF ASSETS.
During the term of this Credit Agreement, a Borrower will not, directly
or indirectly, convey, sell, lease, transfer or otherwise dispose of assets,
business or operations (other than the assets set forth on Schedule 8.4) with an
aggregate book value in excess of twenty-five percent (25%) of its consolidated
total assets, as determined in accordance with GAAP, as calculated as of the end
of the most recent fiscal quarter.
8.5. TRANSACTIONS WITH AFFILIATES.
A Borrower will not, and will not permit any Material Subsidiary to,
directly or indirectly, pay any funds to or for the account of, make any
investment in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect, any transaction with,
any officer, director, employee or Affiliate unless all such transactions
between such Borrower and its Material Subsidiaries on the one hand and any
officer, director, employee or Affiliate on the other, taken in the aggregate
and not individually, shall be on an arms-length basis and on terms no less
favorable to such Borrower or such Material Subsidiary than could have been
obtained from a third party who was not an officer, director, employee or
Affiliate; provided that the foregoing provisions of this Section shall not
prohibit a Borrower and each Material Subsidiary from declaring or paying any
lawful dividend so long as, after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing.
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SECTION 9.
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. A Borrower shall: (i) default in the payment when
due of any principal of any of the Loans; or (ii) default, and such
default shall continue for five or more Business Days, in the payment
when due of any interest on the Loans or of any fees or other amounts
owing hereunder, under any of the other Credit Documents or in
connection herewith.
(b) Representations. Any representation, warranty or statement
made or deemed to be made by a Borrower herein, in any of the other
Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove to have
been untrue in any material respect on the date as of which it was
deemed to have been made.
(c) Covenants. A Borrower shall:
(i) default in the due performance or observance of
any term, covenant or agreement contained in Section 7.1(e),
7.8, 8.1, 8.2, 8.3, 8.4 and 8.5.
(ii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b), or (c)(i) of this Section
9.1) contained in this Credit Agreement or any other Credit
Document and such default shall continue unremedied for a
period of at least 30 days after notice thereof given by the
Agent.
(d) Credit Documents. Any Credit Document shall fail to be in
full force and effect or a Borrower shall so assert or any Credit
Document shall fail to give the Agent and/or the Lenders the rights,
powers and privileges purported to be created thereby.
(e) Bankruptcy, etc. The occurrence of any of the following
with respect to a Borrower or a Material Subsidiary (i) a court or
governmental agency having jurisdiction in the premises shall enter a
decree or order for relief in respect of a Borrower or a Material
Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoint
a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of a Borrower or a Material Subsidiary or for any
substantial part of its property or ordering the winding up or
liquidation of its affairs; or (ii) an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect is commenced against a Borrower or a Material Subsidiary and
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such petition remains unstayed and in effect for a period of 90
consecutive days; or (iii) a Borrower or a Material Subsidiary shall
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such law,
or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person or any substantial part of its property or make
any general assignment for the benefit of creditors; or (iv) a Borrower
or a Material Subsidiary shall admit in writing its inability to pay
its debts generally as they become due or any action shall be taken by
such Person in furtherance of any of the aforesaid purposes.
(f) Defaults under Other Agreements. With respect to any
Indebtedness or any Off Balance Sheet Indebtedness in excess of
$100,000,000 (other than Indebtedness outstanding under this Credit
Agreement) of a Borrower or any Material Subsidiary, such Borrower or
such Material Subsidiary shall (A) default in any payment (beyond the
applicable grace period with respect thereto, if any) with respect to
any such Indebtedness or fail to timely pay such Indebtedness at
maturity, or (B) default (after giving effect to any applicable grace
period) in the observance or performance of any covenant or agreement
relating to such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
or condition shall occur or condition exist, the effect of which
default or other event or condition is to cause any such Indebtedness
to become due prior to its stated maturity.
(g) Judgments. One or more judgments, orders, or decrees shall
be entered against a Borrower or a Material Subsidiary involving a
liability of $50,000,000 or more, in the aggregate, (to the extent not
paid or covered by insurance provided by a carrier who has acknowledged
coverage) and such judgments, orders or decrees shall continue
unsatisfied, undischarged and unstayed for a period ending on the first
to occur of (i) the last day on which such judgment, order or decree
becomes final and unappealable and, where applicable, with the status
of a judicial lien or (ii) 45 days.
(h) ERISA. The occurrence of any of the following events or
conditions which could result in a liability of a Borrower or an ERISA
Affiliate of $50,000,000 or more in the aggregate: (i) any "accumulated
funding deficiency," as such term is defined in Section 302 of ERISA
and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of a
Borrower or any ERISA Affiliate in favor of the PBGC or a Plan; (ii) a
Termination Event shall occur with respect to a Single Employer Plan
which is, in the reasonable opinion of the Agent, likely to result in
the termination of such Plan for purposes of Title IV of ERISA; (iii) a
Termination Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan which is, in the reasonable opinion of the
Agent, likely to result in (A) the termination of such Plan for
purposes of Title IV of ERISA, or (B) a Borrower or any ERISA Affiliate
incurring any liability in connection with a withdrawal from,
reorganization of (within the meaning of Section 4241 of ERISA), or
insolvency (within the meaning of Section 4245 of ERISA) of such Plan;
or (iv) any prohibited transaction (within the meaning of Section 406
of ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which would
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be reasonably expected to subject a Borrower or any ERISA Affiliate to
any liability under Sections 406, 409, 502(i), or 502(l) of ERISA or
Section 4975 of the Code, or under any agreement or other instrument
pursuant to which a Borrower or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
(i) Change of Control. The occurrence of any Change of
Control.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence of an Event of Default, and at any time thereafter
unless and until such Event of Default has been waived by the Required Lenders
(or the Lenders as may be required hereunder), the Agent may, with the consent
of the Super Required Lenders, and shall, upon the request and direction of the
Super Required Lenders, by written notice to the Borrowers take any of the
following actions without prejudice to the rights of the Agent or any Lender to
enforce its claims against the Borrowers, except as otherwise specifically
provided for herein:
(i) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(ii) Acceleration of Loans. Declare the unpaid amount of all
Borrowers Obligations to be due whereupon the same shall be immediately
due and payable without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower.
(iii) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, including,
without limitation, all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section
9.1(e) shall occur, then the Commitments shall automatically terminate and all
Loans, all accrued interest in respect thereof, all accrued and unpaid fees and
other indebtedness or obligations owing to the Lenders and the Agent hereunder
shall immediately become due and payable without the giving of any notice or
other action by the Agent or the Lenders.
Notwithstanding the fact that enforcement powers reside primarily with the
Agent, each Lender has, to the extent permitted by law, a separate right of
payment and shall be considered a separate "creditor" holding a separate "claim"
within the meaning of Section 101(5) of the Bankruptcy Code or any other
insolvency statute.
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9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provision of this Credit Agreement, after the
occurrence of an Event of Default, all amounts collected or received by the
Agent or any Lender on account of amounts outstanding under any of the Credit
Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agent and the Lenders in connection with enforcing the rights of
the Lenders under the Credit Documents, pro rata as set forth below;
SECOND, to payment of any fees owed to the Agent, or any
Lender, pro rata as set forth below;
THIRD, to the payment of all accrued interest payable to the
Lenders hereunder, pro rata as set forth below;
FOURTH, to the payment of the outstanding principal amount of
the Loans, pro rata as set forth below;
FIFTH, to all other obligations which shall have become due
and payable under the Credit Documents and not repaid pursuant to
clauses "FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whomever may
be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans held
by such Lender bears to the aggregate then outstanding Loans), of amounts
available to be applied.
SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT.
Each Lender hereby designates and appoints Bank of America, N.A. as
agent of such Lender to act as specified herein and the other Credit Documents,
and each such Lender hereby authorizes the Agent, as the agent for such Lender,
to take such action on its behalf under the provisions of this Credit Agreement
and the other Credit Documents and to exercise such powers
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and perform such duties as are expressly delegated by the terms hereof and of
the other Credit Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere
herein and in the other Credit Documents, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Agent. The provisions of this Section are solely for the benefit of
the Agent and the Lenders and the Borrowers shall not have any rights as a third
party beneficiary of the provisions hereof. In performing its functions and
duties under this Credit Agreement and the other Credit Documents, the Agent
shall act solely as agent of the Lenders and does not assume and shall not be
deemed to have assumed any obligation or relationship of agency or trust with or
for a Borrower.
10.2 DELEGATION OF DUTIES.
The Agent may execute any of its duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible to the Lenders for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
10.3 EXCULPATORY PROVISIONS.
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection
herewith or in connection with any of the other Credit Documents (except for its
or such Person's own gross negligence or willful misconduct), or responsible in
any manner to any of the Lenders for any recitals, statements, representations
or warranties made by a Borrower contained herein or in any of the other Credit
Documents or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection herewith or
in connection with the other Credit Documents, or enforceability or sufficiency
therefor of any of the other Credit Documents, or for any failure of a Borrower
to perform its obligations hereunder or thereunder. The Agent shall not be
responsible to any Lender for the effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Credit Agreement, or any
of the other Credit Documents or for any representations, warranties, recitals
or statements made herein or therein or made by a Borrower in any written or
oral statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by the Agent to the Lenders or by or on behalf of a Borrower
to the Agent or any Lender or be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or therein or as to the use of the proceeds of
the Loans or of the existence or possible existence of any Default or Event of
Default or to inspect the properties, books or records of a Borrower. The Agent
is not a trustee for the Lenders and owes no fiduciary duty to the Lenders.
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10.4 RELIANCE ON COMMUNICATIONS.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrowers, independent accountants and other experts
selected by the Agent with reasonable care). The Agent may deem and treat the
Lenders as the owner of its interests hereunder for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Agent in accordance with Section 11.3(b). The Agent shall be
fully justified in failing or refusing to take any action under this Credit
Agreement or under any of the other Credit Documents unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder or under any
of the other Credit Documents in accordance with a request of the Required
Lenders (or to the extent specifically provided in Section 11.6, all the
Lenders) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders (including their successors and
assigns).
10.5 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Agent has
received notice from a Lender or the Borrowers referring to the Credit Document,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Agent receives such a notice, the
Agent shall give prompt notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders.
10.6 NON-RELIANCE ON AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Agent or any
Affiliate thereof hereinafter taken, including any review of the affairs of the
Borrowers, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Borrowers
and made its own decision to make its Extensions of Credit hereunder and enter
into this Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Credit Agreement, and to make such investigation as
it deems
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necessary to inform itself as to the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Borrowers.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, assets, property, financial or
other conditions, prospects or creditworthiness of the Borrowers which may come
into the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
10.7 INDEMNIFICATION.
Each Lender agrees to indemnify the Agent in its capacity as such (to
the extent not reimbursed by the Borrowers and without limiting the obligation
of the Borrowers to do so), ratably according to its Commitment Percentage, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the payment in full of the Borrowers Obligations) be imposed on,
incurred by or asserted against the Agent in its capacity as such in any way
relating to or arising out of this Credit Agreement or the other Credit
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for any purpose
shall, in the opinion of the Agent, be insufficient or become impaired, the
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this Section 10.7 shall survive the payment of the Borrowers
Obligations and all other amounts payable hereunder and under the other Credit
Documents and the termination of the Commitments.
10.8 AGENT IN ITS INDIVIDUAL CAPACITY.
The Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrowers as though the
Agent were not Agent hereunder. With respect to the Loans made and all Borrowers
Obligations owing to it, the Agent shall have the same rights and powers under
this Credit Agreement as any Lender and may exercise the same as though it were
not the Agent, and the terms "Lender" and "Lenders" shall include the Agent in
its individual capacity.
10.9 SUCCESSOR AGENT.
The Agent may, at any time, resign upon 30 days written notice to the
Lenders and the Borrowers. Upon any such resignation, the Borrowers with the
consent of the Required Lenders (such consent of the Required Lenders not to be
unreasonably withheld or delayed) shall have the right to appoint a successor
Agent. If no successor Agent shall have been so appointed and shall have
accepted such appointment within 30 days after the notice of resignation, then
the retiring Agent shall select a successor Agent provided such successor is a
Lender hereunder or qualifies as
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an Eligible Assignee (or if no Eligible Assignee shall have been so appointed by
the retiring Agent and shall have accepted such appointment, then the Lenders
shall perform all obligations of the retiring Agent hereunder until such time,
if any, as a successor Agent shall have been appointed and shall have accepted
such appointment as provided for above). Upon the acceptance of any appointment
as Agent hereunder by a successor, such successor Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations as Agent, as appropriate, under this Credit Agreement and the other
Credit Documents and the provisions of this Section 10.9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Credit Agreement.
SECTION 11.
MISCELLANEOUS
11.1 NOTICES.
Except as otherwise expressly provided herein, all notices and other
communications shall have been duly given and shall be effective (a) when
delivered, (b) when transmitted via telecopy (or other facsimile device), (c)
the Business Day following the day on which the same has been delivered prepaid
(or pursuant to an invoice arrangement) to a reputable national overnight air
courier service, or (d) the third Business Day following the day on which the
same is sent by certified or registered mail, postage prepaid, in each case to
the respective parties at the address or telecopy numbers set forth on Schedule
11.1, or at such other address as such party may specify by written notice to
the other parties hereto.
11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and the commencement of remedies described in
Section 9.2, each Lender is authorized at any time and from time to time,
without presentment, demand, protest or other notice of any kind (all of which
rights being hereby expressly waived), to set-off and to appropriate and apply
any and all deposits (general or special) and any other indebtedness at any time
held or owing by such Lender (including, without limitation branches, agencies
or Affiliates of such Lender wherever located) to or for the credit or the
account of a Borrower against obligations and liabilities of such Borrower to
the Lenders hereunder, under the Notes, the other Credit Documents or otherwise,
irrespective of whether the Agent or the Lenders shall have made any demand
hereunder and although such obligations, liabilities or claims, or any of them,
may be contingent or unmatured, and any such set-off shall be deemed to have
been made immediately upon the occurrence of an Event of Default even though
such charge is made or entered on the books of such Lender subsequent thereto.
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11.3 BENEFIT OF AGREEMENT.
(a) Generally. This Credit Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided that, except as set forth
in Section 2.10, a Borrower may not assign and transfer any of its
interests without the prior written consent of the Lenders; and
provided further that the rights of each Lender to transfer, assign or
grant participations in its rights and/or obligations hereunder shall
be limited as set forth below in this Section 11.3.
(b) Assignments. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under
this Credit Agreement (including, without limitation, all or a portion
of its Loans, its Notes, and its Commitment); provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender or an assignment of all of a Lender's rights and
obligations under this Credit Agreement, any such partial
assignment shall be in an amount at least equal to $20,000,000
(or, if less, the remaining amount of the Commitment being
assigned by such Lender) and an integral multiple of
$1,000,000 in excess thereof; and
(iii) the parties to such assignment shall execute
and deliver to the Agent for its acceptance an Assignment
Agreement in substantially the form of Exhibit 11.3(b),
together with a processing fee from the assignor of $3,500.
Upon execution, delivery, and acceptance of such Assignment Agreement,
the assignee thereunder shall be a party hereto and, to the extent of
such assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the Agent and the
Borrowers shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is
not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to the Borrowers and the Agent
certification as to exemption from deduction or withholding of taxes in
accordance with Section 4.4.
By executing and delivering an assignment agreement in
accordance with this Section 11.3(b), the assigning Lender thereunder
and the assignee thereunder shall be deemed to confirm to and agree
with each other and the other parties hereto as follows: (A) such
assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim
created by such assigning Lender and the assignee warrants that it is
an Eligible Assignee; (B) except as set forth in clause (A) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations
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made in or in connection with this Credit Agreement, any of the other
Credit Documents or any other instrument or document furnished pursuant
hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit
Agreement, any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto or the financial
condition of the Borrowers or the performance or observance by the
Borrowers of any of their obligations under this Credit Agreement, any
of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto; (C) such assignee represents and
warrants that it is legally authorized to enter into such assignment
agreement; (D) such assignee confirms that it has received a copy of
this Credit Agreement, the other Credit Documents and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such assignment agreement;
(E) such assignee will independently and without reliance upon the
Agent, such assigning Lender or any other Lender, and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Credit Agreement and the other Credit Documents; (F)
such assignee appoints and authorizes the Agent to take such action on
its behalf and to exercise such powers under this Credit Agreement or
any other Credit Document as are delegated to the Agent by the terms
hereof or thereof, together with such powers as are reasonably
incidental thereto; and (G) such assignee agrees that it will perform
in accordance with their terms all the obligations which by the terms
of this Credit Agreement and the other Credit Documents are required to
be performed by it as a Lender.
(c) Register. The Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it and a register for
the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender
from time to time (the "Register"). The entries in the Register shall
be conclusive and binding for all purposes, absent manifest error, and
the Borrowers, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes
of this Credit Agreement. The Register shall be available for
inspection by the Borrowers or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment Agreement
executed by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Agent shall, if such
Assignment Agreement has been completed and is in substantially the
form of Exhibit 11.3(b) hereto, (i) accept such Assignment Agreement,
(ii) record the information contained therein in the Register and (iii)
give prompt notice thereof to the parties thereto.
(e) Participations. Each Lender may sell participations to one
or more Persons in all or a portion of its rights, obligations or
rights and obligations under this Credit Agreement (including all or a
portion of its Commitment, its Notes and its Loans); provided, however,
that (i) such Lender's obligations under this Credit Agreement shall
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remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii)
the participant shall be entitled to the benefit of the yield
protection provisions contained in Sections 4.1 through 4.4, inclusive,
but shall not be entitled to receive any amount greater than such
Lender would have been able to receive, and (iv) the Borrowers shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Credit Agreement,
and such Lender shall retain the sole right to enforce the obligations
of the Borrowers relating to its Loans and its Notes and to approve any
amendment, modification, or waiver of any provision of this Credit
Agreement (other than amendments, modifications, or waivers decreasing
the amount of principal of or the rate at which interest is payable on
such Loans or Notes, extending any scheduled principal payment date or
date fixed for the payment of interest on such Loans or Notes, or
extending its Commitment).
(f) Nonrestricted Assignments. Notwithstanding any other
provision set forth in this Credit Agreement, any Lender may at any
time assign and pledge all or any portion of its Loans and its Notes to
any Federal Reserve Bank as collateral security pursuant to Regulation
A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(g) Information. Any Lender may furnish any information
concerning the Borrowers in the possession of such Lender from time to
time to assignees and participants (including prospective assignees and
participants).
(h) Costs Associated With Assignment. All reasonable
out-of-pocket costs and expenses of the Agent, the assigning Lender and
the assignee Lender associated with the preparation, execution and
delivery of an Assignment Agreement and any documents related thereto
(including, without limitation, the reasonable fees and disbursements
of counsel) shall be paid by the assigning Lender (or such other Person
as agreed to by the assigning Lender, the assignee Lender and the
Agent).
11.4 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent or any Lender in
exercising any right, power or privilege hereunder or under any other Credit
Document and no course of dealing between the Borrowers and the Agent or any
Lender shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder or thereunder. The rights and remedies
provided herein are cumulative and not exclusive of any rights or remedies which
the Agent or any Lender would otherwise have. No notice to or demand on the
Borrowers in any case shall entitle the Borrowers to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of the Agent or the Lenders to any other or further action in any circumstances
without notice or demand.
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11.5 PAYMENT OF EXPENSES, ETC.
The Borrowers agree to: (i) pay all reasonable out-of-pocket costs and
expenses of the Agent and Banc of America Securities LLC ("BAS") in connection
with (A) the negotiation, preparation, execution and delivery, syndication and
administration of this Credit Agreement and the other Credit Documents and the
documents and instruments referred to therein (including, without limitation,
the reasonable fees and expenses of Xxxxx & Xxx Xxxxx, PLLC, special counsel to
the Agent) and (B) any amendment, waiver or consent relating hereto and thereto
including, but not limited to, any such amendments, waivers or consents
resulting from or related to any work-out, renegotiation or restructure relating
to the performance by the Borrowers under this Credit Agreement, (ii) pay all
reasonable out-of-pocket costs and expenses of the Agent and the Lenders in
connection with (A) enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, in connection
with any such enforcement, the reasonable fees and disbursements of counsel for
the Agent and each of the Lenders (including the allocated cost of internal
counsel)) and (B) any bankruptcy or insolvency proceeding of a Borrower and
(iii) indemnify the Agent, BAS and each Lender, its officers, directors,
employees, representatives and agents from and hold each of them harmless
against any and all losses, liabilities, claims, damages or expenses incurred by
any of them as a result of, or arising out of, or in any way related to, or by
reason of, any investigation, litigation or other proceeding (whether or not the
Agent, BAS or any Lender is a party thereto) related to the entering into and/or
performance of any Credit Document or the use of proceeds of any Loans
(including other extensions of credit) hereunder or the consummation of any
other transactions contemplated in any Credit Document, including, without
limitation, the reasonable fees and disbursements of counsel and settlement
costs incurred in connection with any such investigation, litigation or other
proceeding (but excluding any such losses, liabilities, claims, damages or
expenses to the extent incurred by reason of gross negligence or willful
misconduct on the part of the Person to be indemnified).
11.6 AMENDMENTS, WAIVERS AND CONSENTS.
Neither this Credit Agreement, nor any other Credit Document nor any of
the terms hereof or thereof may be amended, changed, waived, discharged or
terminated unless such amendment, change, waiver, discharge or termination is in
writing and signed by the Required Lenders and the Borrowers; provided that no
such amendment, change, waiver, discharge or termination shall without the
consent of each Lender affected thereby:
(a) extend the Maturity Date, or postpone or extend the time
for any payment or prepayment of principal;
(b) reduce the rate or extend the time of payment of interest
(other than as a result of waiving the applicability of any
post-default increase in interest rates) thereon or fees or other
amounts payable hereunder;
(c) reduce or waive the principal amount of any Loan;
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(d) increase or extend the Commitment of a Lender (it being
understood and agreed that a waiver of any Default or Event of Default
or a waiver of any mandatory reduction in the Commitments shall not
constitute a change in the terms of any Commitment of any Lender);
(e) except as permitted by Section 2.10, consent to the
assignment or transfer by a Borrower of any of its rights and
obligations under (or in respect of) the Credit Documents or release a
Borrower from its obligations under the Credit Documents;
(f) amend, modify or waive any provision of this Section 11.6
or Section 3.6, 3.8, 9.1(a), 11.2, 11.3 or 11.5; or
(g) reduce any percentage specified in, or otherwise modify,
the definition of Required Lenders.
No amendment or change that affects the application of prepayments pursuant to
Section 3.2(c) or the allocation of payments between the Revolving-A Loans and
the Revolving-B Loans shall be effective unless Lenders holding in the aggregate
at least 51% of the Revolving-A Loan Commitment and at least 51% of the
Revolving-B Loan Commitment shall consent to such amendment or change in
allocation of payments.
No provision of Section 10 may be amended or modified without the consent of the
Agent.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans, and each
Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy
Code supersede the unanimous consent provisions set forth herein and (y) the
Required Lenders may consent to allow the Borrowers to use cash collateral in
the context of a bankruptcy or insolvency proceeding.
11.7 COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts by telecopy shall be as effective as an original and shall
constitute a representation that an original will be delivered.
11.8 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
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11.9 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender then it shall not be entitled to vote on any matter requiring the consent
of the Required Lenders or to object to any matter requiring the consent of all
the Lenders; provided, however, that all other benefits and obligations under
the Loan Documents shall apply to such Defaulting Lender.
11.10 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
All indemnities set forth herein and all representations and warranties
made herein shall survive the execution and delivery of this Credit Agreement,
the making of the Loans, and the repayment of the Loans and other obligations
and the termination of the Commitments hereunder.
11.11 GOVERNING LAW; VENUE.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with
respect to this Credit Agreement or any other Credit Document may be
brought in the courts of the State of New York, or of the United States
for the Southern District of New York, and, by execution and delivery
of this Credit Agreement, each Borrower hereby irrevocably accepts for
itself and in respect of its property, generally and unconditionally,
the jurisdiction of such courts. Each Borrower further irrevocably
consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to it at the
address for notices pursuant to Section 11.1, such service to become
effective 30 days after such mailing. Nothing herein shall affect the
right of a Lender to serve process in any other manner permitted by law
or to commence legal proceedings or to otherwise proceed against a
Borrower in any other jurisdiction.
(b) Each Borrower hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Credit Agreement or any other Credit Document brought in the
courts referred to in subsection (a) hereof and hereby further
irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
11.12 WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES.
EACH OF THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
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COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE
OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY. Each Borrower
agrees not to assert any claim against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
or agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to any of the transactions
contemplated hereby or by the other Credit Documents.
11.13 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.14 FURTHER ASSURANCES.
Each Borrower agrees, upon the request of the Agent, to promptly take
such actions, as reasonably requested, as are necessary to carry out the intent
of this Credit Agreement and the other Credit Documents.
11.15 ENTIRETY.
This Credit Agreement together with the other Credit Documents
represent the entire agreement of the parties hereto and thereto, and supersede
all prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.16 BINDING EFFECT; CONTINUING AGREEMENT.
(a) This Credit Agreement shall become effective at such time
when all of the conditions set forth in Section 5.1 have been satisfied
or waived by the Lenders and it shall have been executed by the
Borrowers, the Agent and the Lenders, and thereafter this Credit
Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Agent and each Lender and their respective successors
and permitted assigns.
(b) This Credit Agreement shall be a continuing agreement and
shall remain in full force and effect until all Loans, interest, fees
and other Borrowers Obligations have been paid in full and all
Commitments have been terminated. Upon such termination, the Borrowers
shall have no further obligations (other than those provisions that
expressly survive the termination thereof) under the Credit Documents;
provided that should any payment, in whole or in part, of the Borrowers
Obligations be rescinded or otherwise required to be restored or
returned by the Agent or any Lender, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, then the
Credit Documents shall automatically be reinstated and all amounts
required to be restored or returned and all costs and expenses incurred
by the Agent or any Lender in connection therewith shall be deemed
included as part of the Borrowers Obligations.
[Remainder of Page Intentionally Left Blank]
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Signature Page to Duke Energy Field Services 364-Day Credit Agreement
Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWERS: DUKE ENERGY FIELD SERVICES, LLC
a Delaware limited liability company
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------------------------
Title: Senior Vice President/Chief Financial Officer
-----------------------------------------------
DUKE ENERGY FIELD SERVICES CORPORATION,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------------------------
Title: Senior Vice President/Chief Financial Officer
-----------------------------------------------
62
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
LENDERS: BANK OF AMERICA, N.A., individually in its
capacity as a Lender and in its capacity as Agent
By: /s/ XXXXXXXX X. XXXXX
----------------------------------------------------
Name: Xxxxxxxx X. Xxxxx
--------------------------------------------------
Title: Principal
-------------------------------------------------
63
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
XXXXXX COMMERCIAL PAPER INC.
By: /s/ XXXXXXX XXXXXXX
----------------------------------------------------
Name: Xxxxxxx Xxxxxxx
--------------------------------------------------
Title: Authorized Signatory
-------------------------------------------------
64
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/ XXXXX X.X. XXXXXX
----------------------------------------------------
Name: Xxxxx X.X. Xxxxxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
Xxxxxxx Xxxxx Capital Corp.
65
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
THE CHASE MANHATTAN BANK
By: /s/ XXXXXX XXXX
----------------------------------------------------
Name: Xxxxxx Xxxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
66
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ XXXXXXX X. XXXXXXXXXX
----------------------------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
--------------------------------------------------
Title: Principal
-------------------------------------------------
67
Signature Page to Duke Energy Field Services 364-Day Credit Agreement
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ XXXXXX XXXXXXXXX
----------------------------------------------------
Name: Xxxxxx Xxxxxxxxx
--------------------------------------------------
Title: Vice President
-------------------------------------------------
