Exhibit 10.04
EXECUTION COPY
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SECURED WORKING CAPITAL FACILITY
among
PORT XXXXXX FINANCE CORP.,
as Borrower,
PORT XXXXXX XXXXX COMPANY L.P.,
as Partnership and Guarantor,
SABINE RIVER HOLDING CORP.,
as General Partner of the Partnership and Guarantor,
NECHES RIVER HOLDING CORP.,
as Limited Partner of the Partnership and Guarantor,
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent for and on behalf of the Working Capital Lenders,
and
THE WORKING CAPITAL LENDERS PARTY HERETO
Dated as of August 19, 1999
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Table Of Contents
Section Page
ARTICLE I
DEFINITIONS
1.01 Terms Not Otherwise Defined.......................................... 1
1.02 Certain Defined Terms................................................ 2
ARTICLE II
LOANS
2.01 Loans
2.02 Minimum Borrowing Amounts, etc...................................... 8
2.03 Notice of Borrowing................................................. 8
2.04 Disbursement of Funds............................................... 9
2.05 Notes............................................................... 9
2.06 Conversions......................................................... 10
2.07 Pro Rata Borrowings................................................. 11
2.08 Interest............................................................ 12
2.09 Interest Periods.................................................... 12
2.10 Increased Costs; Illegality; etc.................................... 13
2.11 Compensation; Breakage.............................................. 14
2.12 Change of Lending Office............................................ 17
2.13 Replacement of Working Capital Lenders.............................. 17
2.14 Optional Prepayments of Loans....................................... 18
2.15 Pro Rata Prepayments................................................ 19
2.16 Mandatory Prepayments............................................... 20
ARTICLE III
LETTERS OF CREDIT
3.01 Letters of Credit................................................... 20
3.02 Letter of Credit Requests........................................... 22
3.03 Letter of Credit Participations..................................... 23
3.04 Agreement to Repay Letter of Credit Drawings........................ 25
3.05 Increased Costs..................................................... 26
3.06 Indemnification..................................................... 27
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Section Page
ARTICLE IV
FEES; COMMITMENTS
4.01 Fees................................................................ 28
4.02 Voluntary Termination or Reduction of Commitments................... 28
4.03 Termination of Commitments.......................................... 29
ARTICLE V
PAYMENTS
5.01 Method and Place of Payment......................................... 29
5.02 Pro Rata Treatment.................................................. 29
5.03 Right of Set-off.................................................... 30
ARTICLE VI
CONDITIONS PRECEDENT
6.01 Conditions Precedent for Loans....................................... 31
6.02 Conditions Precedent for Letters of Credit........................... 31
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01 Representations and Warranties of the Borrower and the Guarantors.... 32
ARTICLE VIII
COVENANTS
8.01 Covenants of the Borrower and the Guarantors......................... 32
ARTICLE IX
EVENTS OF DEFAULT
9.01 Events of Default.................................................... 32
ARTICLE X
GUARANTEE
10.01 Guarantee of the Guarantors..................................... 33
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Section Page
ARTICLE XI
THE ADMINISTRATIVE AGENT
11.01 Incorporation by Reference 35
ARTICLE XII
MISCELLANEOUS
12.01 Waiver............................................................... 36
12.02 Notices.............................................................. 36
12.03 Expenses, Etc........................................................ 36
12.04 Amendments, Etc...................................................... 38
12.05 Successors and Assigns............................................... 38
12.06 Assignments and Participation........................................ 38
12.07 Survival............................................................. 40
12.08 Counterparts......................................................... 40
12.09 GOVERNING LAW........................................................ 40
12.10 WAIVER OF JURY TRIAL................................................. 40
12.11 Consent to Jurisdiction.............................................. 41
12.12 Severability......................................................... 41
12.13 Register............................................................. 41
APPENDICES
EXHIBIT I........................................................ Form of Note
EXHIBIT II................................... Form of Assignment and Acceptance
EXHIBIT III........................................ Form of Notice of Borrowing
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SECURED WORKING CAPITAL FACILITY
This Agreement, dated as of August 19, 1999, is made among:
PORT XXXXXX FINANCE CORP., a company incorporated under the laws of
the State of Delaware, as Borrower (the "Borrower"),
PORT XXXXXX XXXXX COMPANY L.P., a limited partnership organized under
the laws of the State of Delaware, as Partnership and Guarantor (the
"Partnership"),
SABINE RIVER HOLDING CORP., a company incorporated under the laws of
the State of Delaware, as General Partner of the Partnership and Guarantor (the
"General Partner"),
NECHES RIVER HOLDING CORP., a company incorporated under the laws of
the State of Delaware, as Limited Partner of the Partnership and Guarantor (the
"Limited Partner" and together with the Partnership and the General Partner, the
"Guarantors"),
EACH OF THE WORKING CAPITAL LENDERS PARTY HERETO, as identified on the
signature pages of this Agreement or that, pursuant to Section 2.13 or 12.06,
shall become a Working Capital Lender under this Agreement (collectively, the
"Working Capital Lenders"), and
DEUTSCHE BANK AG, NEW YORK BRANCH, a New York State licensed branch of
a German bank, as Administrative Agent for and on behalf of the Working Capital
Lenders (the "Administrative Agent").
WHEREAS, the Borrower desires that the Working Capital Lenders provide
working capital for the Xxxxx Project, and the Working Capital Lenders are
willing to provide such working capital, subject to, and on the terms and
conditions set forth in, this Agreement and the other Financing Documents;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and undertakings contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 Terms Not Otherwise Defined. Capitalized terms used and not
otherwise defined in this Agreement have the meanings specified in the Common
Security Agreement (including Appendix A thereto).
1.02 Certain Defined Terms. The following terms have the following
meanings:
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to the Common Security Agreement.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to alt directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person.
"Affiliated Lenders" means, for any Working Capital Lender, any of its
Affiliates and, in the case of a Working Capital Lender that is a fund that
invests in loans, any other funds that invest in loans and are managed or
advised by the same investment advisor.
"Agreement" shall mean this Secured Working Capital Facility, as the
same may be from time to time modified, amended or supplemented from time to
time.
"Applicable Margin" shall mean a percentage equal to (a) in the case
of Base Rate Loans, 3.75% and (b) in the case of Eurodollar Loans, 4.75%, in
each of cases (a) and (b), as such Applicable Margin may be increased from time
to time pursuant to Section 2.08(c).
"Arrangers" shall have the meaning set forth in the Bank Senior Loan
Agreement.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit II hereto
(appropriately completed).
"Available Amount" of each Letter of Credit shall mean the maximum
amount available to be drawn thereunder (regardless of whether any conditions
for drawing could then be met).
"Base Rate" at any time shall mean the higher of (x) the rate which is
1/2 of 1% in excess of the Federal Funds Rate and (y) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 2.08(a).
"Borrowing" shall mean the borrowing of one Type of Loans of one
Tranche by the Borrower from all the Working Capital Lenders who have
Commitments to make
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Loans of such Tranche on the date of borrowing (or resulting from a conversion
or conversions on such date) having, in the case of Eurodollar Loans, the same
Interest Period; provided that Base Rate Loans incurred pursuant to Section 2.10
shall be considered part of the related Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which shall be
in New York City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (ii) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) above and which is also a day for trading by and between
banks in the New York or London interbank Eurodollar market.
"Commitment Fee" shall have the meaning provided in Section 4.01(a).
"Commitments" means any Trade Commitments and any Compensating L/C
Commitments.
"Compensating Letter of Credit" shall have the meaning specified in
Section 3.01(a).
"Compensating L/C Loans" shall have the meaning specified in Section
2.01(a).
"Compensating L/C Commitment" shall mean, with respect to each Working
Capital Lender, the amount set forth opposite such Working Capital Lender's name
in Part A of Schedule I directly below the column entitled "Compensating L/C
Commitment", as the same may be reduced from time to time pursuant to this
Agreement.
"Effective Date" shall mean the date of this Agreement.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in clause (b) of Section 2.08.
"Eurodollar Rate" shall mean with respect to each Interest Period for
a Eurodollar Loan, (i) the rate per annum determined by the Administrative
Agent, at approximately 11:00 A.M. (London time) on the date which is two
Business Days prior to the beginning of the relevant Interest Period (as
specified in the applicable Notice of Borrowing or Notice of Conversion) by
reference to the British Bankers Association Interest Settlement Rates for
deposits in U.S. Dollars (as set forth by any service which has been nominated
by the British Bankers Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such Interest Period
(provided that, to the extent that an interest rate is not ascertainable
pursuant to the foregoing provision of
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this definition, the "Eurodollar Rate" shall be the interest rate per annum,
determined by the Administrative Agent to be the average of the rates per annum
at which deposits in U.S. Dollars are offered for such relevant Interest Period
to major banks in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 A.M. (London time) on the date which
is two Business Days prior to the beginning of such Interest Period) divided
(and rounded upward to the next whole multiple of 1/16 of 1%) by (ii) a
percentage equal to 100% minus the then stated maximum rate of all reserve
requirements (including without limitation any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Excluded Taxes" shall have the meaning set forth in the Bank Senior
Loan Agreement.
"Facility Expiry Date" means January 15, 2007.
"Facing Fee" shall have the meaning provided in clause (c) of Section
4.01.
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 4.01.
"Hold Level" shall have the meaning set forth in the Bank Senior Loan
Agreement as in effect on the date hereof.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period", with respect to any Eurodollar Loan, shall mean the
interest period applicable thereto, as determined pursuant to Section 2.09.
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Working Capital Lender to make available its portion of any
Borrowing or (ii) a Working
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Capital Lender having notified the Administrative Agent and/or the Borrower that
it does not intend to comply with its obligations under Section 2.01, 3.01 or
3.03 of this Agreement.
"Letter of Credit" means any Trade Letter of Credit and any
Compensating Letter of Credit.
"Letter of Credit Fees" shall have the meaning provided in clause (b)
of Section 4.01.
"Letter of Credit Issuer" shall mean Deutsche Bank and any other
Working Capital Lender which, at the request of the Borrower and with the
consent of the Administrative Agent, agrees in such other Working Capital
Lender's sole discretion to become a Letter of Credit Issuer for purposes of
issuing Letters of Credit pursuant to Article III. The sole Letter of Credit
Issuer on the Effective Date shall be Deutsche Bank.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Available Amount of all outstanding
Letters of Credit and (ii) the aggregate amount of all Unpaid Drawings in
respect of all Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
3.02(a).
"Loans" shall mean the Trade Loans and the Compensating L/C Loans.
"Majority Trade Lenders" means, at any time, Working Capital Lenders
holding at least 50% of the aggregate of (a) the outstanding principal amount of
Trade Loans outstanding, (b) the aggregate Letter of Credit Outstandings (and
participations therein) in respect of Trade Letters of Credit and (c) the
aggregate amount of outstanding Trade Commitments.
"Majority Compensating L/C Lenders" means, at any time, Working
Capital Lenders holding at least 50% of the aggregate of (a) the outstanding
principal amount of Compensating L/C Loans outstanding, (b) the aggregate Letter
of Credit Outstandings (and participations therein) in respect of Compensating
Letters of Credit and (c) the aggregate amount of outstanding Compensating L/C
Commitments.
"Maturity Date" shall mean January 15, 2007.
"Minimum Borrowing Amount" shall mean $1,000,000.
"Note" shall have the meaning set forth in clause (a) of Section 2.05.
"Notice of Borrowing" shall have the meaning provided in clause (a) of
Section 2.03.
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"Notice of Conversion" shall have the meaning provided in Section
2.06.
"Notice Office" shall mean the office of the Administrative Agent
located at One Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
or such other office as the Administrative Agent may designate to the Borrower
and the Working Capital Lenders from time to time.
"Oil Payment Letter of Credit" shall have the meaning set forth in
Section 3.01(a).
"Participant" shall have the meaning provided in clause (a) of Section
3.03.
"Payment Office" shall mean the office of the Administrative Agent
located at One Bankers Trust Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
or such other office as the Administrative Agent may designate to the Borrower
and the Working Capital Lenders from time to time.
"Percentage" of any Working Capital Lender means (a) in respect of
Trade Commitments (or Loans made or Trade Letters of Credit issued thereunder),
a fraction (expressed as a percentage) the numerator of which is the Trade
Commitment of such Working Capital Lender at such time and the denominator of
which is the aggregate amount of Trade Commitments of all Working Capital
Lenders at such time, (b) in respect of Compensating L/C Commitments (or
Compensating Letters of Credit issued thereunder), a fraction (expressed as a
percentage) the numerator of which is the Compensating L/C Commitment of such
Working Capital Lender at such time and the denominator of which is the
aggregate amount of Compensating L/C Commitments of all Working Capital Lenders
at such time. Notwithstanding the foregoing, if the Percentage of any Working
Capital Lender is to be determined after the termination of either all Trade
Commitments or all Compensating L/C Commitments, then the Percentages of the
Working Capital Lenders shall be determined immediately prior (and without
giving effect) to such termination.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof
"Prime Lending Rate" shall mean the rate which Deutsche Bank A.G., New
York Branch, announces from time to time as its prime lending or other similar
rate, the Prime Lending Rate to change when and as such prime lending or other
similar rate changes. The Prime Lending Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any customer.
Deutsche Bank may make commercial loans or other loans at rates of interest at,
above or below the Prime Lending Rate.
"Register" shall have the meaning provided in Section 12.13.
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"Replaced Lender" shall have the meaning provided in Section 2.13.
"Replacement Lender" shall have the meaning provided in Section 2.13.
"Required Working Capital Lenders" means (a) in respect of Trade Loans
or Trade Letters of Credit, Majority Trade Lenders and (b) in respect of
Compensating L/C Loans or Compensating Letters of Credit, Majority Compensating
L/C Lenders.
"Responsible Officer" shall mean, with respect to (i) the delivery of
Notices of Borrowing, Notices of Conversion, Letter of Credit Requests and
similar notices, the chief operating officer, any treasurer or other financial
officer of the Borrower, (ii) delivery of financial information and officer's
certificates pursuant to this Agreement, the chief operating officer, any
treasurer or other financial officer of the Borrower and (iii) any other matter
in connection with this Agreement or any other Credit Document, any officer (or
a person or persons so designated by any two officers) of the Borrower, in each
case to the extent reasonably acceptable to the Administrative Agent.
"Trade Commitment" shall mean, with respect to each Working Capital
Lender, the amount set forth opposite such Working Capital Lender's name in Part
A of Schedule I directly below the column entitled "Trade Commitment", as the
same may be reduced from time to time pursuant to the Agreement.
"Trade Letter of Credit" shall have the meaning set forth in Section
3.01(a).
"Trade Loans" shall have the meaning set forth in Section 2.01(a).
"Tranche" shall mean (a) all the Trade Loans or (b) all the
compensating L/C Loans.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar Loan.
"Unpaid Drawing" shall have the meaning provided in Section 3.04(a).
"U.S. Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States of America.
"Working Capital Lender" shall mean each financial institution listed
on Schedule I (as amended from time to time) as a "Working Capital Lenders", as
well as any Person which becomes a Working Capital Lender hereunder pursuant to
Section 12.06(b) or Section 2.13.
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ARTICLE II
LOANS
2.01 Loans. (a) On the terms and subject to the conditions set forth
in this Agreement, each Working Capital Lender hereby severally agrees to make,
at any time during the period from and including the Effective Date and prior to
the termination of the applicable Commitments
(i) loans and advances ("Trade Loans") to the Borrower to be used by
the Borrower to finance or refinance purchases of non-Maya crude oil, for
the Borrower's general corporate purposes or to reimburse any Letter of
Credit Issuer for any drawing on any Trade Letter of Credit, in an
aggregate principal amount not to exceed, for any Working Capital Lender at
any time, that aggregate principal amount which, together with (A) the
aggregate outstanding principal amount of Trade Loans held by such Working
Capital Lender and (B) the aggregate amount of such Working Capital
Lender's Participations in Letter of Credit Outstandings in respect of
Trade Letters of Credit (exclusive of Unpaid Drawings which are being
repaid with the proceeds of such Loans simultaneously with the incurrence
of such Loans), equals the Trade Commitment, if any, of such Working
Capital Lender at such time; and
(ii) loans and advances ("Compensating L/C Loans") to the Borrower to
be used by the Borrower to reimburse any Letter of Credit Issuer for any
drawing on a Compensating Letter of Credit, in an aggregate principal
amount not to exceed, for any Working Capital Lender at any time, that
aggregate principal amount which, together with (A) the aggregate
outstanding principal amount of Compensating L/C Commitments held by such
Working Capital Lender and (B) the aggregate amount of such Working Capital
Lender's Participations in Letter of Credit Outstandings in respect of
Compensating Letters of Credit (exclusive of Unpaid Drawings which are
being repaid with the proceeds of such Loans simultaneously with the
incurrence of such Loans), equals the Compensating L/C Commitments, if any,
of such Working Capital Lender at such time.
(b) Each Loan (i) shall be denominated in U.S. Dollars, (ii) may, at
the option of the Borrower, be incurred and maintained as, or converted into,
Base Rate Loans or Eurodollar Loans, provided that all Loans made as part of the
same Borrowing shall, unless otherwise specifically provided herein, consist of
Loans of the same Type, and (iii) may be repaid and reborrowed in accordance
with the provisions of this Agreement.
2.02 Minimum Borrowing Amounts, etc. The aggregate principal amount
of each Borrowing of Loans shall not be less than the Minimum Borrowing Amount.
More than one Borrowing may be incurred on any day, provided that at no time
shall there be outstanding more than ten Borrowings of Eurodollar Loans.
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2.03 Notice of Borrowing. (a) Whenever the Borrower desires to make a
Borrowing under this Agreement, a Responsible Officer of the Borrower shall give
the Administrative Agent at its Notice Office, prior to 12:00 noon (New York
time), at least three Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of Eurodollar Loans, and at
least one Business Day's prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Base Rate Loans to be made under this
Agreement. Each such notice (each, a "Notice of Borrowing") shall, except as
otherwise expressly provided in Section 2.10, be irrevocable, and, in the case
of each written notice and each confirmation of telephonic notice, shall be in
the form of Exhibit III hereto, appropriately completed to specify: (i) the
aggregate principal amount of Loans to be made pursuant to such Borrowing, (ii)
the date of such Borrowing (which shall be a Business Day), (iii) whether the
Borrowing shall consist of Trade Loans or Compensating L/C Loans and (iv)
whether the respective Borrowing shall consist of Base Rate Loans or, to the
extent permitted hereunder, Eurodollar Loans and, if Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Administrative Agent
shall promptly give each Working Capital Lender written notice (or telephonic
notice promptly confirmed in writing) of each proposed Borrowing, of such
Working Capital Lender's proportionate share thereof, if any, and of the other
matters required by the immediately preceding sentence to be specified in the
Notice of Borrowing.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent in good faith to be from a Responsible Officer of the
Borrower. In each such case, the Administrative Agent's record of the terms of
such telephonic notice shall be conclusive evidence of the contents of such
notice, absent manifest error.
2.04 Disbursement of Funds. (a) Not later than 1:00 P.M. (New York
time) on the date specified in each Notice of Borrowing, each Working Capital
Lender will make available its pro rata share (determined in accordance with
Section 2.07), if any, of each Borrowing requested to be made on such date in
the manner provided below. All amounts shall be made available to the
Administrative Agent in U.S. Dollars and in immediately available funds at the
Payment Office and the Administrative Agent promptly will make available to the
Borrower by depositing to its account at the Payment Office the aggregate of the
amounts so made available. Unless the Administrative Agent shall have been
notified by any Working Capital Lender prior to the date of Borrowing that such
Working Capital Lender does not intend to make available to the Administrative
Agent its portion of a Borrowing to be made on such date, the Administrative
Agent may assume that such Working Capital Lender has made such amount available
to the Administrative Agent on such date of Borrowing, and the Administrative
Agent, in reliance upon such assumption, may (in its sole discretion and without
any obligation to do so) make available to the Borrower a corresponding amount.
If such corresponding amount is not in fact made
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available to the Administrative Agent by such Working Capital Lender and the
Administrative Agent has made available the same to the Borrower, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Working Capital Lender. If such Working Capital Lender does not
pay such corresponding amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent shall promptly notify the Borrower, and the
Borrower shall immediately pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover on demand from
such Working Capital Lender or the Borrower, 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 Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Working
Capital Lender, the overnight Federal Funds Rate or (y) if paid by the Borrower,
the then applicable rate of interest, calculated in accordance with Section
2.08.
(b) Nothing in this Agreement shall be deemed to relieve any Working
Capital Lender from its obligation to fulfill its commitments hereunder or to
prejudice any rights which the Borrower may have against any Working Capital
Lender as a result of any default by such Working Capital Lender hereunder.
2.05 Notes. (a) The Borrower's obligation to pay the principal of,
and interest on, all the Loans of each Tranche made to the Borrower by each
Working Capital Lender shall be set forth on the Register maintained by the
Administrative Agent pursuant to Section 12.13 and, subject to the provisions of
clause (d) of this Section 2.05, shall be evidenced by a promissory note
substantially in the form of Exhibit I with blanks appropriately completed in
conformity herewith (each, a "Note" and, collectively, the "Notes").
(b) The Note issued to each Working Capital Lender in respect of each
Tranche shall (i) be executed by the Borrower and each Guarantor, (ii) be
payable to such Working Capital Lender or its registered assigns and be dated
the date of issuance thereof, (iii) be in a stated principal amount equal to the
Trade Commitment or Compensating L/C Commitment, as the case may be, of such
Working Capital Lender and be payable in the principal amount of the outstanding
Loans of such Tranche evidenced thereby, (iv) mature on the Maturity Date, (v)
bear interest as provided in the appropriate clause of Section 2.08 in respect
of the Base Rate Loans and Eurodollar Loans, as the case may be, evidenced
thereby, (vi) be subject to prepayment as provided in Sections 2.14 and 2.16 and
(vii) be entitled to the benefits of this Agreement and the other Financing
Documents.
(c) Each Working Capital Lender will note on its internal records the
amount of each Loan made by it to the Borrower and each payment in respect
thereof and will, prior to any transfer of any of its Notes, endorse on the
schedule annexed thereto the outstanding principal amount of Loans evidenced
thereby. Failure to make any such notation
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or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
(d) Notwithstanding anything to the contrary contained in this
Section 2.05 or elsewhere in this Agreement, Notes shall only be delivered to
Working Capital Lenders which at any time specifically request the delivery of
such Notes. No failure of any Working Capital Lender to request or obtain a Note
evidencing its Loans to the Borrower shall affect or in any manner impair the
obligations of the Borrower to pay the Loans (and all related obligations) which
would otherwise be evidenced thereby in accordance with the requirements of this
Agreement, and shall not in any way affect the security therefor provided by the
Financing Documents. Any Working Capital Lender which does not have a Note
evidencing its outstanding Loans shall in no event be required to make the
notations otherwise described in clause (c) of this Section 2.05. At any time
when any Working Capital Lender requests the delivery of a Note to evidence any
of its Loans, the Borrower shall promptly execute and deliver to the respective
Working Capital Lender the requested Note or Notes in the appropriate amount or
amounts to evidence such Loans.
2.06 Conversions. The Borrower shall have the option to convert on
any Business Day occurring on or after the Effective Date all or a portion at
least equal to the applicable Minimum Borrowing Amount of the outstanding
principal amount of Loans of any Tranche made pursuant to one or more Borrowings
of one or more Types of Loans into a Borrowing or Borrowings of another Type of
Loan of the same Tranche, provided that (i) except as otherwise provided in
clause (b) of Section 2.10 or unless the Borrower pays all breakage costs and
other amounts owing to each Working Capital Lender pursuant to Section 2.11
concurrently with any such conversion, Eurodollar Loans may be converted into
Base Rate Loans only on the last day of an Interest Period applicable to the
Loans being converted, and no partial conversion of a Borrowing of Eurodollar
Loans shall reduce the outstanding principal amount of the Eurodollar Loans made
pursuant to such Borrowing to less than the Minimum Borrowing Amount, (ii) Base
Rate Loans may not be converted into Eurodollar Loans if a Default, Event of
Default or Potential Default has occurred and is continuing on the date of the
conversion, unless the holders of more than 50% of the aggregate outstanding
principal amount of such Base Rate Loans (or the Administrative Agent on their
behalf) have notified the Borrower that such an election at such time would not
be disadvantageous to such holders and (iii) Borrowings of Eurodollar Loans
resulting from this Section 2.06 shall be limited in number as provided in
Section 2.02. Each such conversion shall be effected by the Borrower by giving
the Administrative Agent at its Notice Office, prior to 12:00 noon (New York
time), at least three Business Days' (or one Business Day's in the case of a
conversion into Base Rate Loans) prior written notice (or telephonic notice
promptly confirmed in writing) (each, a "Notice of Conversion") specifying the
Loans to be so converted, the Borrowing pursuant to which the Loans were made
and the Tranche of such Borrowing and, if to be converted into a Borrowing of
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Working Capital Lender prompt notice of any
such proposed conversion affecting any of its Loans. Upon any
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such conversion, the proceeds thereof will be deemed to be applied directly on
the day of such conversion to prepay the outstanding principal amount of the
Loans being converted.
2.07 Pro Rata Borrowings. All Borrowings of Loans of any Tranche
under this Agreement (including Mandatory Borrowings) shall be incurred by the
Borrower from the Working Capital Lenders pro rata on the basis of their
Percentages in the Commitments applicable to such Tranche. It is understood that
no Working Capital Lender shall be responsible for any default by any other
Working Capital Lender of its obligation to make Loans under this Agreement, and
that each Working Capital Lender shall be obligated to make the Loans to be made
by it hereunder, regardless of the failure of any other Working Capital Lender
to fulfill its commitments hereunder.
2.08 Interest. (a) The Borrower agrees to pay interest in respect of
the unpaid principal amount of each Base Rate Loan made to it from the date of
the Borrowing thereof until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Base Rate Loan and (ii) the conversion of
such Base Rate Loan to a Eurodollar Loan pursuant to Section 2.06, at a rate per
annum which shall at all times be the relevant Applicable Margin plus the Base
Rate, each as in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan made to it from the date of the
Borrowing thereof until the earlier of (i) the maturity (whether by acceleration
or otherwise) of such Eurodollar Loan and (ii) the conversion of such Eurodollar
Loan to a Base Rate Loan pursuant to Section 2.06, 2.09 or clause (b) of Section
2.10, as applicable, at a rate per annum which shall at all times be the
relevant Applicable Margin plus the Eurodollar Rate for such Interest Period,
each as in effect from time to time.
(c) With the consent of the Borrower (such consent not to be
unreasonably withheld), the Arrangers may increase the Applicable Margin for
either Tranche or in connection with the Letter of Credit Fee in connection with
any assignment by the Arrangers of Commitments, Loans and/or participations in
Letter of Credit Outstandings in respect of such Tranche in accordance with
Section 12.06(b) to the extent that after giving effect to such assignment, the
aggregate amount of (x) all Commitments, Loans and participations in Letters of
Credit Outstandings under this Facility and (y) all Commitments (as defined in
the Bank Senior Loan Agreement) and Bank Senior Loans under the Bank Senior Loan
Agreement held by any Arranger exceeds its Hold Level. Any such increase in the
Applicable Margin in respect of outstanding Loans shall be effective on the date
of such assignment, in the case of an assignment of a Commitment, a
participation or Base Rate Loan, or at the commencement of the next succeeding
Interest Period, in the case of an assignment of a Eurodollar Loan.
(d) To the extent permitted by law, overdue principal and overdue
interest in respect of each Loan shall, in each case, bear interest at a rate
per annum equal to the greater
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of (i) the rate which is 2% in excess of the rate borne by such Loan immediately
prior to the respective payment default and (ii) the rate which is 2% in excess
of the rate otherwise applicable to Base Rate Loans from time to time. Interest
which accrues under this clause (c) shall be payable on demand.
(e) Interest shall accrue from and including the date of any Borrowing
to but excluding the date of any repayment thereof and shall be payable
quarterly in arrears on each January 15, April 15, July 15 and October 15; at
maturity (whether by acceleration or otherwise); and, after such maturity, on
demand.
(f) Interest on Loans under this Agreement and commitment fees shall
be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable.
(g) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for the respective Interest Period or
Interest Periods and shall promptly notify the Borrower and the Working Capital
Lenders thereof. Each such determination shall, absent manifest error, be final
and conclusive and binding on all parties hereto.
2.09 Interest Periods. At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 12:00 noon (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans (in the case of any subsequent Interest Period),
the Borrower shall have the right to elect by giving the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the Borrower be a three or six month period. Notwithstanding
anything to the contrary contained above:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period applicable thereto
expires;
(iii) if any Interest Period for any Borrowing of Eurodollar Loans
begins on a day for which there is no numerically corresponding day in the
calendar month
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at the end of such Interest Period, such Interest Period shall end on the
last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that, if any Interest Period for any
Borrowing of Eurodollar Loans would otherwise expire on a day which is not
a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period for a Borrowing of Eurodollar Loans shall be
selected which would extend beyond the Maturity Date; and
(vi) no Interest Period may be elected at any time when a Default, an
Event of Default or a Potential Default has occurred and is continuing,
unless the holders of more than 50% of the aggregate principal amount of
the affected Eurodollar Loans (or the Administrative Agent on their behalf)
have notified the Borrower that such an election at such time would not be
disadvantageous to the Working Capital Lenders.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to the respective
Borrowing of Eurodollar Loans as provided above, the Borrower shall be deemed to
have elected to convert such Borrowing into a Borrowing of Base Rate Loans
effective as of the expiration date of such current Interest Period.
2.1 Increased Costs; Illegality; etc. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clause (ii) or (iii) below, any Working Capital Lender, shall have determined in
good faith (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i) on any Interest Determination Date, that, by reason of any
changes arising after the Effective Date affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Eurodollar Rate;
(ii) at any time, that such Working Capital Lender shall incur
increased costs or reductions in the amounts received or receivable under
this Agreement with respect to any Eurodollar Loans because of (A) any
change since the Effective Date in any applicable law, governmental rule,
regulation, guideline, order or request (whether or not having the force of
law), or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline,
order or request (other than, in each case, any such change with
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respect to taxes or any similar charges), such as, for example, a change in
official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurodollar Rate or (B) other circumstances affecting such Working
Capital Lender, the interbank Eurodollar market or the position of such
Working Capital Lender in such market (other than circumstances relating to
taxes or any similar charges); or
(iii) at any time after the Effective Date, that the making or
continuance of any Eurodollar Loan has become unlawful by compliance by
such Working Capital Lender with any law, governmental rule, regulation,
guideline or order (or would conflict with any governmental rule,
regulation, guideline, request or order not having the force of law but
with which such Working Capital Lender customarily complies even though the
failure to comply therewith would not be unlawful), or has become
impracticable as a result of a contingency occurring after the Effective
Date which materially and adversely affects the interbank Eurodollar
market;
then, in any such event, such Working Capital Lender (or in the case of clause
(i) above, the Administrative Agent) shall promptly give notice (by telephone
confirmed in writing) to the Borrower and (except in the case of clause (i)) to
the Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Working Capital Lenders).
Thereafter, (w) in the case of clause (i) above, Eurodollar Loans shall no
longer be available until such time as the Administrative Agent notifies the
Borrower and the Working Capital Lenders that the circumstances giving rise to
such notice by the Administrative Agent no longer exist, and any Notice of
Borrowing or Notice of Conversion given by the Borrower with respect to
Eurodollar Loans which have not yet been incurred (including by way of
conversion) shall be deemed rescinded by the Borrower, (x) in the case of clause
(ii) above, the Borrower agrees to pay to such Working Capital Lender, 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
Working Capital Lender in its sole discretion shall determine) as shall be
required to compensate such Working Capital Lender for such increased costs or
reductions in amounts received or receivable hereunder (a written notice as to
the additional amounts owed to such Working Capital Lender, showing in
reasonable detail the basis for the calculation thereof, prepared in good faith
and submitted to the Borrower by such Working Capital Lender shall, absent
manifest error, be final and conclusive and binding upon all parties hereto,
although the failure to give any such notice shall not release or diminish any
of the Borrower's obligations to pay additional amounts pursuant to this Section
2.10 upon the subsequent receipt of such notice) and (y) in the case of clause
(iii) above, the Borrower shall take one of the actions specified in clause (b)
of this Section 2.10 as promptly as possible and, in any event, within the time
period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in clause (a)(ii) or (iii) of this Section 2.10, the
Borrower may (and in the case of
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a Eurodollar Loan affected pursuant to clause (a)(iii) of this Section 2.10, the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel such Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that the Borrower was notified by a Working Capital Lender pursuant to clause
(a)(ii) or (iii) of this Section 2.10), or (ii) if the affected Eurodollar Loan
is then outstanding, upon at least three Business Days' notice to the
Administrative Agent, require the affected Working Capital Lender to convert
each such Eurodollar Loan into a Base Rate Loan (which conversion, in the case
of the circumstance described in clause (a)(iii) of this Section 2.10, shall
occur no later than the last day of the Interest Period then applicable to such
Eurodollar Loan or such earlier day as shall be required by applicable law),
provided that if more than one Working Capital Lender is affected at any time,
then all affected Working Capital Lenders must be treated the same pursuant to
clause (b) of this Section 2.10.
(c) If any Working Capital Lender shall have determined that after the
Effective Date, the adoption or effectiveness of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, 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 Working Capital Lender or any
corporation controlling such Working Capital Lender with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Working Capital Lender's or such
other corporation's capital or assets as a consequence of such Working Capital
Lender's Trade Commitment or its obligations hereunder to the Borrower to a
level below that which such Working Capital Lender or such other corporation
could have achieved but for such adoption, effectiveness, change or compliance
(taking into consideration such Working Capital Lender's or such other
corporation's policies with respect to capital adequacy), then from time to
time, upon written demand by such Working Capital Lender (with a copy to the
Administrative Agent), accompanied by the notice referred to in the last
sentence of this clause (c), the Borrower agrees to pay to such Working Capital
Lender such additional amount or amounts as will compensate such Working Capital
Lender or such other corporation for such reduction in the rate of return to
such Working Capital Lender or such other corporation. Each Working Capital
Lender, upon determining in good faith that any additional amounts will be
payable pursuant to this clause (c), will give prompt written notice thereof to
the Borrower (a copy of which shall be sent by such Working Capital Lender to
the Administrative Agent), which notice shall set forth in reasonable detail the
basis of the calculation of such additional amounts, although the failure to
give any such notice shall not release or diminish the Borrower's obligation to
pay additional amounts pursuant to this clause (c) upon the subsequent receipt
of such notice. In determining any additional amounts owing under this clause
(c), each Working Capital Lender will act reasonably and in good faith and will
use averaging and attribution methods which are reasonable, provided that such
Working Capital
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Lender's reasonable good faith determination of compensation owing under this
clause (c) shall, absent manifest error, be final and conclusive and binding on
all the parties hereto.
2.11 Compensation; Breakage. The Borrower agrees to compensate each
Working Capital Lender upon its written request (which request shall set forth
in reasonable detail the basis for requesting such compensation) for all
reasonable losses, expenses and liabilities (including without limitation any
loss, expense or liability incurred by reason of the liquidation or reemployment
of deposits or other funds required by such Working Capital Lender to fund its
Eurodollar Loans but excluding any loss of anticipated profits) which such
Working Capital Lender may sustain: (i) if for any reason (other than a default
by such Working Capital Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion given by the Borrower
(whether or not rescinded by the Borrower or deemed rescinded pursuant to clause
(a) of Section 2.10); (ii) if any repayment (including any prepayment made
pursuant to Section 2.14 or 2.16 or as a result of an acceleration of the Loans
pursuant to Section 10.04 of the Common Security Agreement or as a result of the
replacement of a Working Capital Lender pursuant to Section 2.13) or conversion
of any Eurodollar Loans occurs on a date which is not the last day of an
Interest Period applicable thereto; (iii) if any prepayment of any Eurodollar
Loans is not made on any date specified in a notice of prepayment given by the
Borrower; (iv) as a consequence of (x) any other default by the Borrower to
repay its Eurodollar Loans as and when required by the terms of this Agreement
or (y) an election made by the Borrower pursuant to clause (b) of Section 2.10.
Each Working Capital Lender's calculation of the amount of compensation owing
pursuant to this Section 2.11 shall be made in good faith or (v) solely in the
case of Working Capital Lenders that are Arrangers, in connection with any
assignment of Eurodollar Loans on a day other than the last day of an Interest
Period, to the extent that after giving effect to such assignment, the aggregate
amount of (x) all Commitments. Loans, and participations in Letter of Credit
Outstandings under this Facility and (y) all Commitments (as defined in the Bank
Senior Loan Agreement) and Bank Senior Loans under the Bank Senior Loan
Agreement held by such Arranger exceeds its Hold Level. A Working Capital
Lender's basis for requesting compensation pursuant to this Section 2.11 and a
Working Capital Lender's calculation of the amount thereof made in accordance
with the requirements of this Section 2.11, shall, absent manifest error, be
final and conclusive and binding on all parties hereto.
2.12 Change of Lending Office. (a) Each Working Capital Lender may at
any time or from time to time designate, by written notice to the Administrative
Agent to the extent not already reflected on its signature page, one or more
lending offices (which, for this purpose, may include Affiliates of the
respective Working Capital Lender) for the various Loans made, and Letters of
Credit participated in, by such Working Capital Lender, provided that, for
designations made after the Effective Date, to the extent such designation shall
result in increased costs under Section 2.10, 3.05 or 5.04 in excess of those
which would be charged in the absence of the designation of a different lending
office (including a different
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Affiliate of the respective Working Capital Lender), then the Borrower shall not
be obligated to pay such excess increased costs (although the Borrower, in
accordance with and pursuant to the other provisions of this Agreement, shall be
obligated to pay the costs which would apply in the absence of such designation
and any subsequent increased costs of the type described above resulting from
changes after the date of the respective designation). Each lending office and
Affiliate of any Working Capital Lender designated as provided above shall, for
all purposes of this Agreement, be treated in the same manner as the respective
Working Capital Lender (and shall be entitled to all indemnities and similar
provisions in respect of its acting as such hereunder).
(b) Each Working Capital Lender agrees that, upon the occurrence of
any event giving rise to the operation of clauses (a)(ii) or (a)(iii) of Section
2.10, clause (c) of 2.10, 3.05 or 5.04 with respect to such Working Capital
Lender, it will, if requested by the Borrower, use reasonable efforts (subject
to overall policy considerations of such Working Capital Lender) to designate
another lending office for any Loans or Letters of Credit affected by such
event, provided that such designation is made on such terms that such Working
Capital Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequences of the event giving
rise to the operation of any such section. Nothing in this Section 2.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Working Capital Lender provided in Section 2.10, 3.05 or 5.04 (although each
such Working Capital Lender shall nevertheless have an obligation to change its
applicable lending office subject to the terms set forth in the immediately
preceding sentence).
2.13 Replacement of Working Capital Lenders. Subject to Section 2.07
and Section 2.10 of the Common Security Agreement, so long as no Default, Event
of Default or Potential Default has occurred and is continuing, the Borrower
may, upon the occurrence of any event giving rise to the operation of clauses
(a)(ii) or (a)(iii) of Section 2.10, clause (c) of Section 2.10, Section 3.05 or
Section 5.04 with respect to any Working Capital Lender which results in such
Working Capital Lender charging to the Borrower increased costs in a material
amount in excess of those being generally charged by the other Working Capital
Lenders, the Borrower shall have the right to replace such Working Capital
Lender (the "Replaced Lender") with one or more commercial banks reasonably
acceptable to the Administrative Agent (a "Replacement Lender"), provided that:
(i) at the time of any replacement pursuant to this Section 2.13,
the Replacement Lender shall enter into one or more Assignment and
Assumption Agreements pursuant to clause (b) of Section 12.06 (and with all
fees payable pursuant to clause (b) of Section 12.06 to be paid by the
Replacement Lender) pursuant to which the Replacement Lender shall acquire
all of the outstanding Loans, Commitments and Participations in Letter of
Credit Outstandings of the Replaced Lender and, in connection therewith,
shall pay to the Replaced Lender in respect thereof an amount equal to the
sum of (A) an amount equal to the principal of, and
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all accrued interest on, all outstanding Loans of the Replaced Lender, (B)
an amount equal to all Unpaid Drawings (unless there are no Unpaid
Drawings) that have been funded by (and not reimbursed to) such Replaced
Lender, together with all then unpaid interest with respect thereto at such
time and (C) an amount equal to all accrued, but theretofore unpaid, fees
owing to the Replaced Lender pursuant to Section 4.01; and
(ii) all obligations of the Borrower then owing to the Replaced
Lender (other than those specifically described in clause (i) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid, but including all amounts, if any, owing under Section 2.11
shall be paid in full to such Replaced Lender concurrently with such
replacement; and
upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Administrative Agent pursuant to Section 12.13
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of the appropriate Note or Notes executed by the Borrower, (x) the
Replacement Lender shall become a Working Capital Lender for all purposes of
this Agreement and the Replaced Lender shall cease to constitute a Working
Capital Lender hereunder, except with respect to the Borrower's obligation
pursuant to Section 12.03, which shall survive as to such Replaced Lender and
(y) the Percentages of the Working Capital Lenders shall be automatically
adjusted at such time to give effect to such replacement.
2.14 Optional Prepayments of Loans. Subject to Section 4.02 and the
terms and conditions of Article II of the Common Security Agreement, the
Borrower shall have the right to prepay the outstanding principal amount of any
Loans at any time or from time to time outstanding under this Agreement, in
whole or in part, without premium or penalty (but with the prepayment
compensation, if any, required by Section 2.11), on any Business Day, provided,
however, that:
(a) the Borrower shall give the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) of its intent to prepay
such Loans, the amount of Loans of each Tranche to be prepaid, the Types of
Loans to be prepaid and, in the case of Eurodollar Loans, the specific Borrowing
pursuant to which such Loans were made, which notice (i) shall be given by the
Borrower prior to 12:00 noon (New York time) (A) at least one Business Day prior
to the date of such prepayment in the case of Base Rate Loans and (y) at least
three Business Days prior to the date of such prepayment in the case of
Eurodollar Loans and (ii) shall promptly be transmitted by the Administrative
Agent to each of the Working Capital Lenders;
(b) any prepayments of Loans pursuant to this Section 2.14 shall be
applied as provided in clause (c) of Section 2.04 of the Common Security
Agreement; and
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(c) each partial prepayment of principal of Loans of any Tranche
shall be in an aggregate amount at least equal to (i) in the case of Eurodollar
Loans, $1,000,000 and, if greater, in an amount which is an integral multiple of
$100,000 and (ii) in the case of Base Rate Loans, $500,000 and, if greater, in
an amount which is an integral multiple of $100,000, provided that no partial
prepayment of Eurodollar Loans pursuant to any Borrowing shall reduce the
aggregate principal amount of the Eurodollar Loans outstanding pursuant to such
Borrowing below the Minimum Borrowing Amount.
2.15 Pro Rata Prepayments. Subject to the terms of the Common
Security Agreement, in the event that the Borrower shall make, or be (or be
notified that it is) required to make, or give notice that it will make, any
payment of any principal of any Capital Markets Senior Debt outstanding under
the Indenture prior to the originally scheduled maturity date thereof (other
than as provided in Section 2.07 of the Common Security Agreement), the Borrower
shall give prompt notice thereof to the Administrative Agent and shall
simultaneously with such payment (or, if not on a Payment Date, with the consent
of Majority Trade Lenders and Majority Compensating L/C Lenders, as applicable,
on the next succeeding Payment Date), make a prepayment of Loans in accordance
with Sections 2.04 and 2.06 of the Common Security Agreement. A Working Capital
Lender may waive its right to receive any such prepayment without prejudice to
its right to receive any subsequent prepayment. Each prepayment of Loans under
this Section 2.15 shall be accompanied by the prepayment compensation, if any,
required pursuant to Section 2.11.
2.16 Mandatory Prepayments. The Borrower shall make Mandatory
Prepayments pursuant to Section 2.05 of the Common Security Agreement. Any
Working Capital Lender may waive its right to receive all or any part of any
Mandatory Prepayment required to be made pursuant to the Common Security
Agreement without prejudice to its right to receive any subsequent Mandatory
Prepayment. Each prepayment of Loans under this Section 2.16 shall be
accompanied by the prepayment compensation, if any, required pursuant to Section
2.11.
ARTICLE III
LETTERS OF CREDIT
3.01 Letters of Credit. (a) Subject to and upon the terms and
conditions set forth in this Agreement, the Borrower may request a Letter of
Credit Issuer at any time and from time to time after the Effective Date and
prior to the tenth Business Day (or the 30th day in the case of Trade Letters of
Credit) preceding the Maturity Date to issue on a sight basis, (i) for the
account of the Borrower and for the benefit of any holder (or any trustee, agent
or other similar representative for any such holders) of Oil Payment
Reimbursement Obligations, irrevocable sight trade letters of credit each such
in a form customarily used by such Letter of Credit Issuer or in such other form
as has been approved by such Letter of Credit Issuer (each, an "Oil Payment
Letter of Credit") in support of such Oil Payment
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Reimbursement Obligations, (ii) for the account of the Borrower and for its
general corporate purposes, irrevocable sight trade letters of credit (each, a
"General Trade Letter of Credit" and, together with the Oil Payment Letters of
Credit, "Trade Letters of Credit") in a form customarily used by such Letter of
Credit Issuer or in such other form as has been approved by such Letter of
Credit Issuer and (iii) for the account of the Borrower and for the benefit of
PMI for the purpose of providing a "Compensating Letter of Credit" (as such term
is defined in the Long-Term Oil Supply Agreement), an irrevocable sight standby
letter of credit in a form customarily used by such Letter of Credit Issuer or
in such other form as has been approved by such Letter of Credit Issuer.
(b) Subject to and upon the terms and conditions set forth herein,
each Letter of Credit Issuer hereby agrees that it will, at any time and from
time to time after the Effective Date and prior to the tenth Business Day (or
the 30th day in the case of Trade Letters of Credit) preceding the Maturity
Date, following its receipt of the respective Letter of Credit Request, issue
for the account of the Borrower the requested Letters of Credit. Notwithstanding
the foregoing, no Letter of Credit Issuer shall be under any obligation to issue
any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit or any requirement of law
applicable to such Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Letter of Credit Issuer shall prohibit, or
request that such Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Letter of Credit Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such
Letter of Credit Issuer is not otherwise compensated) not in effect on the
Effective Date, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Letter of Credit Issuer as of the
Effective Date and which such Letter of Credit Issuer in good xxxxx xxxxx
material to it; or
(ii) such Letter of Credit Issuer shall have received written notice
from the Borrower or the Required Working Capital Lenders prior to the
issuance of such Letter of Credit of the type described in clause (c)(v) of
this Section 3.01 or the last sentence of clause (b) of Section 3.02.
(c) Notwithstanding the foregoing, (i) (A) no Trade Letter of Credit
shall be issued if any Working Capital Lender's pro rata share of the Available
Amount under such Trade Letter of Credit, together with (x) such Working Capital
Lender's pro rata share of all Letter of Credit Outstandings in respect of other
Trade Letters of Credit and (y) the aggregate outstanding principal amount of
Trade Loans held by such Working Capital Lender, equals or exceeds the Trade
Commitment of such Working Capital Lenders at such
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time, and (B) no Compensating Letter of Credit shall be issued if any Working
Capital Lender's pro rata share of the Available Amount under such Compensating
Letter of Credit, together with (x) such Working Capital Lender's pro rata share
of the Available Amount under all other Compensating Letters of Credit and (y)
the aggregate outstanding principal amount of Compensating L/C Loans held by
such Working Capital Lender, equals or exceeds the Compensating L/C Commitment
of such Working Capital Lender at such time; (ii) (A) no Oil Payment Letter of
Credit shall have a term exceeding 120 days or an expiry date occurring later
than the tenth Business Day preceding the Maturity Date, (B) no Compensating
Letter of Credit shall have a term exceeding one year (except that any such
Compensating Letter of Credit may be extendible for successive periods of up to
one year) or an expiry day occurring later than 30 days prior to the Maturity
Date; (iii) each Letter of Credit shall be denominated in Dollars; (iv) the
Stated Amount of each Letter of Credit shall not be less than $100,000 or such
lesser amount as is acceptable to the respective Letter of Credit Issuer; and
(v) no Letter of Credit Issuer will issue any Letter of Credit after it has
received written notice from the Borrower, the Administrative Agent or the
Required Working Capital Lenders stating that a Default or an Event of Default
exists until such time as such Letter of Credit Issuer shall have received a
written notice of (x) rescission of such notice from the party or parties
originally delivering the same or (y) a waiver of such Default or Event of
Default by the Required Working Capital Lenders under this Agreement.
(d) Notwithstanding the foregoing, in the event a Lender Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless the respective Letter of Credit Issuer has entered into
arrangements satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the participation in Letters of Credit of
all defaulting Working Capital Lenders, including by cash collateralizing such
Working Capital Lenders' Percentage of the Letter of Credit Outstandings, as the
case may be.
3.02 Letter of Credit Requests. (a) Whenever the Borrower desires
that a Letter of Credit be issued, the Borrower shall give the Administrative
Agent and the respective Letter of Credit Issuer written notice thereof (a
"Letter of Credit Request") prior to 12:00 noon (New York time), via courier
delivery or facsimile transmission, at least three Business Days (or such
shorter period as may be acceptable to the respective Letter of Credit Issuer)
or, in the case of Oil Payment Letters of Credit, one Business Day prior to the
proposed date of issuance (which shall be a Business Day). Each Letter of
Credit Request shall include any other documents as such Letter of Credit Issuer
customarily requires in connection therewith.
(b) The making of each Letter of Credit Request shall be deemed to
be a representation and warranty by the Borrower that the conditions precedent
referred to in Section 6.02 have been satisfied and that such Letter of Credit
may be issued in accordance with, and it will not violate the requirements of
clause (c) of Section 3.01. Unless the respective Letter of Credit Issuer has
received notice from the Borrower, the Administrative
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Agent or the Required Working Capital Lenders before it issues a Letter of
Credit that one or more of the conditions precedent referred to in Section 6.02
are not then satisfied or that the issuance of such Letter of Credit would
violate clause (c) of Section 3.01, then such Letter of Credit Issuer may issue
the requested Letter of Credit for the account of the Borrower in accordance
with such Letter of Credit Issuer's usual and customary practice.
3.03 Letter of Credit Participations. (a) Immediately upon the
issuance by a Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Working
Capital Lender, and each such Working Capital Lender (each, a "Participant")
shall be deemed irrevocably and unconditionally to have purchased and received
from such Letter of Credit Issuer, without recourse or warranty, an undivided
interest and participation, to the extent of such Participant's Percentage, if
any, in such Letter of Credit, each drawing made thereunder and the obligations
of the Borrower under this Agreement with respect thereto (although Letter of
Credit Fees shall be payable directly to the Administrative Agent for the
account of the Working Capital Lenders as provided in clause (b) of Section
4.01, the Participants shall have no right to receive any portion of any Facing
Fees with respect to such Letters of Credit) and any security therefor or
guaranty pertaining thereto. Upon any change in the Commitments or the
Percentages of the Working Capital Lenders in accordance with this Agreement, it
is hereby agreed that, with respect to all outstanding Letters of Credit and
Unpaid Drawings with respect thereto, there shall be an automatic adjustment to
the participations pursuant to this Section 3.03 to reflect such change.
(b) In determining whether to pay under any Letter of Credit, no
Letter of Credit Issuer shall have any obligation relative to the Participants
other than to determine that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct as determined by a court of
competent jurisdiction, shall not create for such Letter of Credit Issuer any
resulting liability.
(c) In the event that any Letter of Credit Issuer makes any payment
under any Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to the Letter of Credit Issuer pursuant to clause
(a) of Section 3.04, such Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Participant of such failure, and each such Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer, the amount of such Participant's Percentage of such payment in
Dollars and in same day funds. If the Administrative Agent so notifies any
Participant required to fund a payment under a Letter of Credit prior to 11:00
A.M. (New York time) on any Business Day, such Participant shall make available
to the Administrative Agent at the Payment Office for the account of the
respective Letter of Credit Issuer such Participant's Percentage of the amount
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of such payment on such Business Day in same day funds (and, to the extent such
notice is given after 11:00 A.M. (New York time) on any Business Day, such
Participant shall make such payment on the immediately following Business Day).
If and to the extent such Participant shall not have so made its Percentage of
the amount of such payment available to the Administrative Agent for the account
of the respective Letter of Credit Issuer, such Participant agrees to pay to the
Administrative Agent for the account of such Letter of Credit Issuer, forthwith
on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Administrative Agent for the
account of the Letter of Credit Issuer at the overnight Federal Funds Rate. The
failure of any Participant to make available to the Administrative Agent for the
account of the respective Letter of Credit Issuer its Percentage of any payment
under any Letter of Credit issued by it shall not relieve any other Participant
of its obligation hereunder to make available to the Administrative Agent for
the account of such Letter of Credit Issuer its Percentage of any payment under
any such Letter of Credit on the date required, as specified above, but no
participant shall be responsible for the failure of any other Participant to
make available to the Administrative Agent for the account of such Letter of
Credit Issuer such other Participant's Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) of this Section 3.03, such Letter of Credit Issuer shall,
subject to the terms of the Common Security Agreement, pay to the Administrative
Agent and the Administrative Agent shall promptly pay to each Participant which
has paid its Percentage thereof, in U.S. Dollars and in same day funds, an
amount equal to such Percentage of the principal amount thereof and interest
thereon accruing after the purchase of the respective participations.
(e) Each Letter of Credit Issuer shall, promptly after each issuance
of, or amendment or modification to, a Letter of Credit issued by it, give the
Administrative Agent and the Borrower written notice of such issuance, amendment
or modification, together with a copy thereof. Upon receipt of any such written
notice from the Letter of Credit Issuer, the Administrative Agent shall promptly
notify each Participant. Upon request from a Participant, the Administrative
Agent will furnish to such Participant copies of each Letter of Credit issued
and amendments or modifications, if any.
(f) Each Letter of Credit Issuer (other than Deutsche Bank) shall
deliver to the Administrative Agent, promptly on the first Business Day of each
week, by facsimile transmission, the aggregate daily Available Amount available
to be drawn under the outstanding Trade Letters of Credit issued by such Letter
of Credit Issuer for the previous week. The Administrative Agent shall, within
10 days after the last Business Day of each calendar month, deliver to each
Participant a report setting forth for such preceding calendar month the
aggregate daily Available Amount available to be drawn under all outstanding
Trade Letters of Credit during such calendar month.
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(g) The obligations of the Participants to make payments to the
Administrative Agent for the account of the respective Letter of Credit Issuer
with respect to Letters of Credit issued by it shall be irrevocable and not
subject to counterclaim, set-off or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any
of the other Financing Documents;
(ii) the existence of any claim, right of set-off, defense or other
right which the Borrower or any of its Affiliates may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, any Letter of Credit Issuer, any Working
Capital Lender or any other Person, whether in connection with this
Agreement, any Letter of Credit, the transactions contemplated herein or
any unrelated transactions (including any underlying transaction between
the Borrower or any of its Affiliates and the beneficiary named in any such
Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Financing Documents; or
(v) the occurrence of any Default or Event of Default.
3.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
hereby agrees to reimburse the respective Letter of Credit Issuer, by making
payment (whether from the proceeds of Loans or otherwise) to the Administrative
Agent in Dollars and in immediately available funds at the Payment Office, for
any payment or disbursement made by such Letter of Credit Issuer under any
Letter of Credit issued by it (each such amount so paid or disbursed until
reimbursed, an "Unpaid Drawing") immediately after, and in any event on the date
of, such payment or disbursement, with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to
2:00 P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but not including the date such Letter
of Credit Issuer is reimbursed therefor at a rate per annum which shall be the
Applicable Margin for Loans maintained as Base Rate Loans as in effect from time
to time (plus an additional 2% per annum if not reimbursed by the third Business
Day after the date of such payment or disbursement), such interest also to be
payable on demand. Each Letter of Credit Issuer shall provide the
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Borrower prompt notice of any payment or disbursement made by it under any
Letter of Credit issued by it, provided that (i) the notices referred to above
shall not be required to be given if a Default or an Event of Default under
clause (f) of Section 10.01 of the Common Security Agreement shall have occurred
and be continuing (in which case the Unpaid Drawings shall be due and payable
immediately without presentment, demand, protest or notice of any kind (all of
which are hereby waived by the Borrower) and (ii) the failure of, or delay in,
giving any such notice shall not release or diminish the obligations of the
Borrower under this clause or under any other section of this Agreement.
(b) The Borrower's obligation under this Section 3.04 to reimburse
the respective Letter of Credit Issuer with respect to drawings on Letters of
Credit (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any right of
set-off, counterclaim or defense to payment which the Borrower or any of its
Affiliates may have or have had against any beneficiary named in any Letter of
Credit, the Letter of Credit Issuer, the Administrative Agent, any Working
Capital Lender or other Person, including without limitation any defense based
upon the failure of any drawing under a Letter of Credit issued by it to conform
to the terms of the Letter of Credit, any nonapplication or misapplication by
the beneficiary of the proceeds of such drawing, provided, however, that the
Borrower shall not be obligated to reimburse such Letter of Credit Issuer for
any wrongful payment made by such Letter of Credit Issuer under a Letter of
Credit issued by it as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of such Letter of Credit Issuer as
determined by a court of competent jurisdiction, provided, further, that any
reimbursement made by the Borrower shall be without prejudice to any claim it
may have against such Letter of Credit Issuer as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of such Letter
of Credit Issuer.
3.05 Increased Costs. If after the Effective Date, any Letter of
Credit Issuer or any Participant determines that the adoption or effectiveness
of any applicable law, rule or regulation, order, guideline or request or any
change therein, 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 any Letter of Credit
Issuer or any Participant with any request or directive (whether or not having
the force of law) by any such authority, central bank or comparable agency shall
either (a) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by such Letter
of Credit Issuer or such Participant's participation therein, or (b) impose on
any Letter of Credit Issuer or any Participant any other conditions directly or
indirectly affecting this Agreement, any Letter of Credit or such Participant's
participation therein; and the result of any of the foregoing is to increase the
cost to such Letter of Credit Issuer or such Participant of issuing, maintaining
or participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Letter of Credit Issuer or such Participant
hereunder or reduce the rate of return on its capital (other than any increased
costs or reduction in the amount received or
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receivable resulting from the imposition of or a change in the rate of taxes or
any similar charges) with respect to Letters of Credit, then, upon written
demand to the Borrower by such Letter of Credit Issuer or such Participant (a
copy of which notice shall be sent by such Letter of Credit Issuer or such
Participant to the Administrative Agent), accompanied by the certificate
described in the last sentence of this Section 3.05, the Borrower agrees to pay
to such Letter of Credit Issuer or such Participant such additional amount or
amounts as will compensate such Letter of Credit Issuer or such Participant for
such increased cost or reduction. Any Letter of Credit Issuer or any
Participant, upon determining that any additional amounts will be payable
pursuant to this Section 3.05, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such Letter of Credit Issuer or such Participant, as the case may be (a copy of
which certificate shall be sent by such Letter of Credit Issuer or such
Participant to the Administrative Agent), setting forth in reasonable detail the
basis for the determination of such additional amount or amounts necessary to
compensate such Letter of Credit Issuer or such Participant as aforesaid and
such certificate, if delivered in good faith, shall be final and conclusive and
binding on the Borrower absent manifest error, although the failure to deliver
any such certificate shall not release or diminish the Borrower's obligations to
pay additional amounts pursuant to this Section 3.05 upon subsequent receipt of
such certificate.
3.06 Indemnification. The Working Capital Lenders agree to indemnify
the Letter of Credit Issuers in their capacity as such, ratably according to
their respective Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
reasonable expenses or disbursements of any kind whatsoever which may at any
time (including without limitation at any time following the payment of the
Obligations) be imposed on, incurred by or asserted against the Letter of Credit
Issuers in any way relating to or arising out of this Agreement or any other
Financing Document, or any documents contemplated by or referred to herein or
the transactions contemplated hereby or any action taken or omitted to be taken
by the Letter of Credit Issuers under or in connection with any of the
foregoing, but only to the extent that any of the foregoing is not paid by the
Borrower or any of its Affiliates, provided that no Working Capital Lender shall
be liable to the Letter of Credit Issuers for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting primarily from the gross negligence
or willful misconduct of the Letter of Credit Issuers. If any indemnity
furnished to the Letter of Credit Issuers for any purpose shall, in the opinion
of the Letter of Credit Issuers be insufficient or become impaired, the Letter
of Credit Issuers may call for additional indemnity and cease, or not commence,
to do the acts indemnified against until such additional indemnity is furnished.
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ARTICLE IV
FEES; COMMITMENTS
4.01 Fees. (a) The Borrower shall pay to the Administrative Agent for
distribution to each Working Capital Lender, a commitment fee (the "Commitment
Fee") for the period from the Effective Date to but excluding the Facility
Expiry Date, computed at a rate for each day equal to .50% per annum on the
aggregate daily average unutilized Commitment of such Working Capital Lender.
Accrued Commitment Fees shall be due and payable quarterly in arrears on each
January 15, April 15, July 15 and October 15, provided that accrued Commitment
Fees in respect of Trade Commitments or Compensating L/C Commitments shall also
be payable in arrears upon the termination of all Trade Commitments or
Compensating L/C Commitments, as the case may be, pursuant to Sections 4.02 or
4.03.
(b) The Borrower shall pay to the Administrative Agent for pro rata
distribution to each Working Capital Lender (based on its Percentage) a fee in
respect of each Letter of Credit (the "Letter of Credit Fee") computed at a rate
per annum equal to the Applicable Margin for Loans maintained as Eurodollar
Loans then in effect (as such Applicable Margin may be increased pursuant to
Section 2.08(c)) on the daily Available Amount of such Letter of Credit. Accrued
Letter of Credit Fees shall be due and payable in arrears on each January 15,
April 15, July 15 and October 15 and on the Maturity Date.
(c) The Borrower shall pay to each Letter of Credit Issuer a fee in
respect of each Letter of Credit issued by such Letter of Credit Issuer (the
"Facing Fee") computed at the rate of .15% per annum on the daily Available
Amount of such Letter of Credit. Accrued Facing Fees shall be due and payable in
arrears on each January 15, April 15, July 15 and October 15 and on the Maturity
Date.
(d) The Borrower shall pay directly to each Letter of Credit Issuer
upon each issuance of, payment under, or amendment of, a Letter of Credit issued
by such Letter of Credit Issuer such amount as shall at the time of such
issuance, payment or amendment be the administrative charge which such Letter of
Credit Issuer is generally charging for issuances of, payments under or
amendments of, letters of credit issued by it.
4.02 Voluntary Termination or Reduction of Commitments. Upon at least
three Business Days' prior notice to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to each of
the Working Capital Lenders), the Borrower shall have the right, without premium
or penalty, to terminate or partially reduce the Trade Commitment or the
Compensating L/C Commitment, in each case (a) in integral multiples of
$1,000,000 in the case of partial reductions and (b) pro rata based on the
Working Capital Lenders' respective Percentages of such Commitment.
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4.03 Termination of Commitments. All Oil Payment Support Commitments
shall terminate upon the earlier of (a) the Facility Expiry Date or (b) after
the taking of any Enforcement Action pursuant to Section 10.05 of the Common
Security Agreement, the delivery to the Borrower of a written notice of
termination signed by or on behalf of Majority Trade Lenders. All Compensating
L/C Commitments shall terminate upon the earlier of (a) the Facility Expiry Date
or (b) after the taking of any Enforcement Action pursuant to Section 10.05 of
the Common Security Agreement, the delivery to the Borrower of a written notice
of termination signed by or on behalf of Majority Compensating L/C Lenders.
ARTICLE V
PAYMENTS
5.01 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the ratable account of the Working Capital Lenders
entitled thereto not later than 12:00 noon (New York time) on the date when due
and shall be made in Dollars in immediately available funds, without deduction,
set-off or counterclaim, at the appropriate Payment Office of the Administrative
Agent in respect of any obligation of the Borrower under this Agreement. Any
payments under this Agreement or under any Note which are made later than 12:00
noon (New York time) on any Business Day shall be deemed to have been made on
the next succeeding Business Day. Whenever any payment to be made hereunder or
under any Note 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 and,
with respect to payments of principal, interest shall be payable during such
extension at the applicable rate in effect immediately prior to such extension.
5.02 Pro Rata Treatment. Except to the extent otherwise provided in
this Agreement or the Common Security Agreement:
(a) each payment of Commitment Fees, Letter of Credit Fees or Facing
Fees under Section 4.01 shall be made for the account of the Working Capital
Lenders and/or the Letter of Credit Issuers, as applicable, so that each such
payment is a Pro Rata Payment;
(b) other than with respect to any payment or prepayment made
pursuant to Section 2.13, each payment or prepayment of principal of Loans by
the Borrower shall be made for the account of the Working Capital Lenders so
that each such payment or prepayment is a Pro Rata Payment; and
(c) each payment of interest on Loans by the Borrower under this
Agreement shall be made for the account of the Working Capital Lenders so that
each such payment is a Pro Rata Payment.
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5.03 Right of Set-off. The Borrower agrees that each Working Capital
Lender shall be entitled, at its option but only with the prior written consent
of the Administrative Agent, to offset balances held by it for the account of
the Borrower at any of its offices against any obligations of the Borrower
(including principal and interest on any of the Loans) to such Working Capital
Lender that are not paid when due.
5.04 Covered Taxes. The Borrower agrees that, whether or not any
Letter of Credit is issued or Loan is made under this Agreement:
(a) All payments of principal and interest on the Loans (or any
Unpaid Drawings) and all other amounts payable on, under or in respect of this
Agreement or any other Financing Document by the Borrower to the Administrative
Agent, any Letter of Credit Issuer or any Working Capital Lender including
without limitation amounts payable by the Borrower under clause (b) of this
Section 5.04 and under Sections 2.08, 2.10, 2.11, 2.14, 2.16, 3.04, 3.05, 3.06
and 4.01, shall be made free and clear of, and without deduction or withholding
for, any and all present and future taxes, levies, imposts, tariffs, duties,
assessments, deductions, withholdings, fees, liabilities or other charges other
than Excluded Taxes (collectively, "Taxes") imposed, assessed, levied or
collected by any Governmental Authority, together with interest thereon and
penalties with respect thereto, if any, under or in respect of this Agreement,
any Notes, any Letters of Credit, Loans, or any other Financing Document, the
execution, registration, enforcement, notarization or other formalization of any
thereof, and any payments of principal, interest, charges, fees, commissions or
other amounts made on, under or in respect thereof ("Covered Taxes"), all of
which shall be paid by the Borrower, for its own account, prior to the date on
which penalties attach thereto.
(b) The Borrower shall indemnify and hold harmless the
Administrative Agent, each Letter of Credit Issuer, and each Working Capital
Lender against, and promptly reimburse the Administrative Agent, each Letter of
Credit Issuer, and each Bank Senior Lender on demand for, an Covered Taxes paid
by the Administrative Agent, any Letter of Credit Issuer or any Working Capital
Lender and any Loss that the Administrative Agent, any Letter of Credit Issuer
or any Working Capital Lender may incur at any time arising out of or in
connection with any failure of the Borrower to make any payment of Covered Taxes
when due, other than any interest, penalties or legal fees arising from the
failure of the Borrower to pay such Covered Taxes due to the gross negligence or
willful misconduct of the Administrative Agent, such Letter of Credit Issuer or
such Working Capital Lender.
(c) In the event that the Borrower is required by Applicable Law to
deduct or withhold Covered Taxes from any amounts payable on, under or in
respect of this Agreement, the Notes, the Letters of Credit, or any other
Financing Document (including without limitation any amounts payable under
clause (b) of this Section 5.05 and Sections 2.08, 2.10, 2.11, 2.14, 2.16, 3.04,
3.05, 3.06 and 4.01, the Borrower shall pay the Administrative Agent, each
Letter of Credit Issuer and each Working Capital Lender such additional amount
as may be required, after the deduction or withholding of any Covered
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Taxes, to enable the Person entitled to such amount to receive from the Borrower
an amount equal to the full amount stated to be payable under this Agreement,
the Notes, the Letters of Credit, Loans, or any other Financing Documents.
(d) The Borrower shall furnish to the Administrative Agent original
or certified copies of tax receipts in respect of any withholding of Covered
Taxes required under this Section 5.04 within 30 days after the date of each
payment under this Agreement as to which such withholding is required, and the
Borrower shall promptly furnish to the Administrative Agent any other
information, documents and receipts that the Administrative Agent, any Letter of
Credit Issuer or any Working Capital Lender may from time to time require to
establish to its satisfaction that full and timely payment has been made of all
Covered Taxes required to be paid under this Section 5.04.
ARTICLE VI
CONDITIONS PRECEDENT
6.01 Conditions Precedent for Loans. The several obligations of each
Working Capital Lender to make Loans (or to convert any Base Rate Loan into a
Eurodollar Rate Loan) under this Agreement shall be subject to each of the
following conditions precedent:
(a) Satisfaction of Common Conditions Precedent. All the common
conditions precedent set forth in Section 9.02 (other than clause (f) of
such Section 9.02) of the Common Security Agreement shall have been
satisfied (or waived as provided in Section 14.13 of the Common Security
Agreement).
(b) Notes. If requested pursuant to Section 2.05, such Working
Capital Lender or the Administrative Agent on behalf of such Working
Capital Lender shall have received a duly completed and executed Note or
Notes evidencing such Loan.
6.02 Conditions Precedent for Letters of Credit. The several
obligations of each Working Capital Lender to issue Letters of Credit under this
Agreement shall be subject to each of the following conditions precedent:
(a) Notice of Issuance of Letter of Credit. On or before the date of
issuance of such Letter of Credit, the applicable Letter of Credit Issuer
and the Administrative Agent shall have received one Letter of Credit
Request from the Borrower in accordance with Section 3.02, together with
all other information specified in Article III and such other documents or
information as the applicable Letter of Credit Issuer and the
Administrative Agent may require in connection with the issuance of such
Letter of Credit.
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(b) Satisfaction of Other Conditions. On the date of issuance of
such Letter of Credit, each of the conditions precedent set forth in
clauses (a), (c)(i), (d), (e) and (g) of Section 9.02 of the Common
Security Agreement shall be satisfied to the same extent as if the issuance
of such Letter of Credit were the making of a Loan and the date of Issuance
of such Letter of Credit were a Borrowing Date.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01 Representations and Warranties of the Borrower and the
Guarantors. Each of the Borrower and the Guarantors confirms each of the
representations and warranties made by it in Section 3.01 of the Common Security
Agreement, as if made as of the date of this Agreement, which representations
and warranties are incorporated herein by reference as if fully set forth in
this Agreement.
ARTICLE VII
COVENANTS
8.01 Covenants of the Borrower and the Guarantors. Each of the
Borrower and the Guarantors agrees that, so long as any Working Capital Lender
has any Commitment under this Agreement or any amount payable under this
Agreement remains unpaid, it shall observe and perform each of the covenants
applicable to it set forth in Article IV of the Common Security Agreement, which
covenants and agreements are incorporated by reference in this Agreement as if
fully set forth herein, in accordance with their terms.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Events of Default. The occurrence of any Default or Event of
Default set forth in Article X of the Common Security Agreement shall constitute
a "Default" or "Event of Default", as the case may be, for all purposes of this
Agreement. If any Default or Event of Default shall occur and be continuing,
then the Working Capital Lenders shall have (in addition to any and all other
available remedies at law and in equity) each of the remedies set forth in
Article X of the Common Security Agreement.
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ARTICLE X
GUARANTEE
10.01 Guarantee of the Guarantors. (a) Each of the Guarantors hereby
unconditionally and jointly and severally guarantees to each Working Capital
Lender and the Administrative Agent (i) the due and punctual payment of the
principal of, premium on (if any) and interest on each Loan and Unpaid Drawing
when and as the same shall become due and payable, whether at the maturity
thereof, by declaration of acceleration or otherwise, in accordance with the
terms of this Agreement and the Common Security Agreement and (ii) the
performance by the Borrower of each of its other obligations under this
Agreement and the other Financing Documents. In the case of the failure of the
Borrower or any successor thereto punctually to pay to each Working Capital
Lender or the Administrative Agent any such principal or interest and any other
amounts due under this Agreement and the Common Security Agreement, each of the
Guarantors hereby agree to cause any such payments to be made punctually when
and as the same shall become due and payable, whether at the maturity thereof,
by declaration of acceleration or otherwise, as if such payments were made by
the Borrower. Each of the Guarantors hereby agrees that its obligations
hereunder shall be as if it were a principal debtor and obligor and not merely a
surety, and shall be absolute and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any Loan or
Letter of Credit or any provision of this Agreement or of the other Loan
Documents, any failure to enforce the provisions of any Loan or Letter of Credit
or any provision of this Agreement or of the other Loan Documents, any waiver,
modification or indulgence granted to the Borrower with respect thereto by any
Working Capital Lender, the Collateral Trustee or the Administrative Agent, any
recovery of any judgment against the Borrower to enforce the same, any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of the terms of any Loan or Letter of Credit, the Agreement or any other Loan
Document or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or guarantor.
(b) Each of the Guarantors hereby expressly (i) waives (A)
promptness, diligence, presentment, demand of payment, filing of claims with a
court in the event of merger, bankruptcy or insolvency of the Borrower, any
right to require a proceeding first against the Borrower, the benefit of
discussion, protest, order and notice with respect to any Loan or Letter of
Credit or the Senior Debt or Oil Payment Reimbursement Obligations evidenced
thereby and all demands whatsoever and (B) any requirement that a Working
Capital Lender exhaust any right to take any action against the Borrower or any
other Person prior to or contemporaneously with proceeding to exercise any right
against the Guarantors and (ii) covenants that this guarantee will not be
discharged with respect to any Loan or Letter of Credit or the Senior Debt or
Oil Payment Reimbursement Obligation evidenced thereby except by payment in full
of the principal amount due thereunder and any interest thereon.
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(c) Each of the Guarantors acknowledges and agrees for the benefit
of the Administrative Agent on behalf of the Working Capital Lenders and the
Working Capital Lenders that the Administrative Agent and the Working Capital
Lenders may, subject to the other provisions of this Agreement and the Common
Security Agreement, directly and simultaneously proceed against any or all of
the Guarantors for the enforcement of this guarantee and against the Borrower.
The obligations of the Guarantors under this guarantee are independent of the
obligations of the Borrower, and a separate action or actions may be brought and
prosecuted against any or all of the Guarantors, whether or not (i) any action
or proceeding is brought against the Borrower, (ii) the Borrower is joined in
any such action or proceeding against any or all of the Guarantors or (iii) the
Administrative Agent or the Working Capital Lenders have taken any action to
collect or attempted to collect otherwise such obligations from the Borrower or
any other Person liable therefor.
(d) Each of the Guarantors hereby irrevocably agrees that (i) this
Guarantee will constitute the direct and unconditional obligation of each of the
Guarantors and, (ii) this guarantee shall rank pari passu with all other
unsubordinated obligations of the Guarantors.
(e) Each of the Guarantors hereby agrees that this guarantee shall
continue to be effective or be reinstated, as the case may be, if at any time,
payment or any partial payment of any obligations or interest thereon is
rescinded or must otherwise be restored by a Working Capital Lender to the
Borrower upon the bankruptcy or insolvency of the Borrower or any of the
Guarantors.
(f) Each of the Guarantors hereby agrees that it will pay, or
reimburse any Working Capital Lender on demand for, all reasonable costs and
expenses (including fees and disbursements of counsel) incurred by such Working
Capital Lender in connection with any rescission or restoration of this
guarantee, including any such costs and expenses incurred in defending against
any claim alleging that any payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
(g) Each of the Guarantors hereby agrees that, until such time as
all Loans, all amounts due under the Letter of Credit and all amounts payable
under this Guarantee and the other Loan Documents are paid in full, none of the
Guarantors shall be entitled to enforce any claim or other rights, whether
presently or hereafter acquired against the Borrower, that arise from the
existence, payment, performance or enforcement of any of the Guarantors'
obligations under this guarantee, including without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of any Working Capital Lender of any
Loan or Letter of Credit and the Administrative Agent on behalf of such Working
Capital Lender against the Borrower or any collateral that any such Working
Capital Lender or the Administrative Agent on behalf of such Working Capital
Lender acquires under this Agreement or any other Loan Document, whether or not
such claim, remedy or right arises in equity, or under contract, statute or
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common law, including without limitation the right to take or receive from the
Borrower, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any of the Guarantors in violation of the
preceding sentence at any time prior to the payment in full of all Loans, Unpaid
Drawings and the Senior Debt or Oil Payment Reimbursement Obligations evidenced
thereby and all other amounts payable under this guarantee, such amount shall be
deemed to have been paid to the respective Guarantor or Guarantors for the
benefit of, and held in trust for the benefit of, the Working Capital Lenders
and the Administrative Agent on behalf of the Working Capital Lenders, and shall
forthwith be paid to the Administrative Agent for the benefit of the Working
Capital Lenders to be credited and applied upon such guaranteed obligations,
whether matured or unmatured, in accordance with the terms of this Agreement and
the Common Security Agreement.
(h) The Guarantors shall give prompt written notice to the
Administrative Agent of any fact known to any of the Guarantors that would
prohibit the making of any payment to the Administrative Agent in respect of
this guarantee.
(i) Notwithstanding anything in this Article X to the contrary, the
guarantee under clause (a) of this Section 10.1 shall not apply to the extent
any obligation is guaranteed pursuant to (i) the guarantee attached to the
securities evidencing Capital Markets Senior Debt in accordance with Section 205
and Article 12 of the Indenture, (ii) the guarantee of Bank Senior Debt pursuant
to Article XI of the Bank Senior Loan Agreement or (iii) the guarantee of Senior
Debt Obligations and Oil Payment Reimbursement Obligations pursuant to Section
12.01 of the Common Security Agreement.
ARTICLE XI
THE ADMINISTRATIVE AGENT
11.01 Incorporation by Reference. Each Working Capital Lender hereby
irrevocably appoints and authorizes Deutsche Bank AG, New York Branch as the
Administrative Agent to act as its agent, with such powers as are specifically
delegated to the Administrative Agent by the terms of this Agreement and the
Common Security Agreement, together with such other powers as are incidental
thereto, and each Working Capital Lender authorizes and instructs the
Administrative Agent to execute and deliver on its behalf each of the Common
Security Agreement, the Transfer Restrictions Agreement, the Intercreditor
Agreement, each Security Document and any other applicable Financing Document,
and agrees to be bound by the terms and conditions of each such agreement as if
it had executed and delivered such agreement for and in its own name. The
Administrative Agent hereby accepts such appointment upon the terms and
conditions set forth in this Article XII. The terms and provision of Article
XII of the Bank Senior Loan Agreement are incorporated herein, mutatis
mutandis, as if fully set forth in this Agreement.
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ARTICLE XII
MISCELLANEOUS
12.01 Waiver. Except as expressly provided in this Agreement, no
failure on the part of the Administrative Agent, any Letter of Credit Issuer or
any Working Capital Lender to exercise, no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement or
any Note shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this Agreement or any Note
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided in this Agreement are
cumulative and not exclusive of any remedies provided by law.
12.02 Notices. Any notice, request, demand, consent, designation,
direction, instruction, certificate, report or other communication to be given
or made under this Agreement (including without limitation any modifications of,
or waivers or consents under, this Agreement) shall be given or made in writing
(which may include e-mail or other electronic communication) and shall be deemed
duly given when (i) personally delivered, (ii) sent by facsimile transmission
(but only if, immediately after the transmission, the sender's facsimile machine
records in writing the correct answerback), or (iii) five days have elapsed
after mailing by certified or registered mail, postage pre-paid, in each case
addressed to a party at the address or facsimile transmission number specified
below such party's name on the signature pages hereof or to such other address
or facsimile transmission number of which such party has given notice. Any
notice to be given by or on behalf of the Borrower or the Guarantors may be
given by the Partnership acting alone; and any notice to be given to the
Borrower or the Guarantors shall be deemed duly given to both the Borrower and
the Guarantors if given to the Guarantors alone. Any notice to be given by or
on behalf of the Borrower or the Guarantors to the Working Capital Lenders may
be sent to the Administrative Agent. Notice of address or facsimile
transmission number change shall be effective only upon receipt.
12.03 Expenses, Etc. Whether or not any of the transactions
contemplated by this Agreement are consummated, the Borrower agrees to reimburse
(or cause to be reimbursed) the Administrative Agent, each Letter of Credit
Issuer and each Working Capital Lender on demand for all out-of-pocket costs and
expenses of each of the Working Capital Lenders, Letter of Credit Issuers and
the Administrative Agent (including without limitation all commissions, charges,
costs and expenses, if any, for the conversion of currencies, fees and expenses
of legal counsel, consultants and advisors and travel-related costs and
expenses) made, paid, suffered or incurred in connection with (a) the
preparation, negotiation, execution and delivery, syndication (both before and
after the Closing Date) and, where appropriate, authentication, registration and
recordation of this Agreement, the other Financing Documents and any other
documents and instruments related hereto or thereto (including legal opinions),
(b) any amendment or modification to, or the protection or preservation of any
right or claim under, or consent or waiver in connection with, this
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Agreement or any other Financing Document, any such other document or instrument
related hereto or thereto or any Collateral, (c) the authentication,
registration, translation, syndication and recordation (where appropriate) and
the delivery of the evidences of indebtedness relating to the Loan, the Letter
of Credit and the disbursements thereof and (d) the syndication, administration
and enforcement (including with respect to a workout) of this Agreement, the
other Financing Documents and any other documents and instruments referred to
herein or therein.
The Borrower hereby agrees to indemnify the Administrative Agent, each
Letter of Credit Issuer and each Working Capital Lender and their respective
directors, officers, employees, agents and Affiliates from, and hold each of
them harmless against, any and all claims or Losses incurred by it arising out
of or by reason of any investigation or litigation or other proceedings
(including without limitation any threatened investigation or litigation or
other proceedings) relating to, arising out of or resulting from this Agreement,
the Loans or Letter of Credit or any actual or proposed use by the Borrower or
the Partnership of the proceeds of the Loans or Letter of Credit, including
without limitation the fees and disbursements of counsel incurred in connection
with any such investigation or litigation or other proceedings. Without limiting
the generality of the foregoing, the Borrower shall indemnify the Administrative
Agent, each Letter of Credit Issuer and each Working Capital Lender and their
respective directors, officers, employees, agents and Affiliates from, and hold
each of them harmless against, any claims or Losses, including without
limitation those described in the preceding sentence relating to any
Environmental Law including without limitation those arising as a result of the
past, present or future operations of the Partnership or any of its Affiliates
(or any predecessor in interest to the Partnership or any of its Affiliates) or
the environmental contamination of any site or facility owned, operated or
leased at any time by the Partnership or any of its Affiliates (or any such
predecessor in interest), any Release or threatened Release of any Hazardous
Substance by the Partnership or any of its Affiliates (or any such predecessor
in interest) at or from any such site or facility, or any claim or Loss relating
to any Environmental Law in connection with the Xxxxx Project including without
limitation any such claim or Loss, arising as a result of operations,
environmental contamination or any Release or threatened Release that shall
occur during any period when the Administrative Agent, any Letter of Credit
Issuer or any Working Capital Lender shall be in possession of any such site or
facility following the exercise by the Administrative Agent , any Letter of
Credit Issuer or any Working Capital Lender of any of its rights and remedies
under this Agreement or any of the Security Documents, that is related to the
operations, compliance, environmental contamination or any Release or threatened
Release occurring prior to such period or relates to conditions previously in
existence, or of practices employed by the Partnership or any of its Affiliates,
at such site or facility and the Borrower waives any rights it may have under
any Environmental Law relating to this indemnity or the Administrative Agent,
any Letter of Credit Issuer or any Working Capital Lender.
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12.04 Amendments, Etc. Except as otherwise expressly provided in this
Agreement and Section 14.13 of the Common Security Agreement, any provision of
this Agreement may be amended, modified or supplemented only by an instrument in
writing signed by each of the parties hereto, and any provision of this
Agreement may be waived by Majority Trade Lenders and Majority Compensating L/C
Lenders or by the Administrative Agent acting with the consent of Majority Trade
Lenders and Majority Compensating L/C Lenders, provided, however, that: (a) no
amendment, modification, supplement or waiver shall, unless by an instrument
signed by all of the Working Capital Lenders of any Tranche (i) increase, or
extend the term of the Commitments, any Loan, Note or Letter of Credit relating
to such Tranche, or extend the time or waive any requirement for the reduction
or termination of any Commitments, (ii) extend the date fixed for the payment of
principal of, or interest on, any Loan of such Tranche or any related commitment
fee under this Agreement or any related Notes, (iii) reduce the amount of any
such payment of principal in respect of the Loans of such Tranche, (iv) reduce
the rate at which interest is payable on the Loans of any Tranche or any related
commitment fee is payable under this Agreement or any related Notes, (v) alter
the rights or obligations of the Borrower to prepay Loans, (vi) alter the terms
of this Section 12.04, (vii) modify the definition of the term "Majority Trade
Lenders" or "Majority Compensating L/C Lenders" or modify in any other manner
the number or percentage of the Working Capital Lenders required to make any
determinations or waive any rights under this Agreement or to modify any
provision hereof, (viii) waive any of the conditions precedent set forth in
Article VI as applied to such Tranche, (ix) subject any Working Capital Lender
to any additional obligations in respect of its Loans of such Tranche, (x)
subject to the express provisions of the Common Security Agreement, relinquish
or diminish any security or support for the Borrower's obligations under this
Agreement, or (xi) release the Collateral Trustee from the irrevocable
instructions granted to it pursuant to the Common Security Agreement, and (b)
any modification or supplement of this Agreement, insofar as it relates to the
Administrative Agent or any Letter of Credit Issuer, shall require the consent
of the Administrative Agent or such Letter of Credit Issuer, as the case may be.
12.05 Successors and Assigns. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and permitted assigns.
12.06 Assignments and Participation. (a) The Borrower may not assign
any of its rights or obligations under this Agreement or any of the Senior Notes
without the prior written consent of all Working Capital Lenders and the
Administrative Agent.
(b) Each Working Capital Lender may assign all or any portion of its
Commitments and related Loans or participations in Letters of Credit
Outstandings (or, if the Commitments in respect of any Tranche have been
terminated, its Loans and participations in Letters of Credit Outstandings) to
any other entity, provided that any assignment to an entity that is not an
Affiliated Lender of such Working Capital Lender shall require the written
consent of (x) the Administrative Agent, (y) any Letter of Credit Issuer that
has
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issued an outstanding Letter of Credit and (z) solely in the case of an
assignment by an Arranger, after giving affect to which such Arranger would hold
Commitments, Loans and participations in Letter of Credit Outstandings in an
aggregate amount less than US$5,000,000 (and only so long as no Default, Event
of Default or Prospective Default has occurred and is continuing), the Borrower
(in each of cases (x), (y) and (z), such consent not to be unreasonably
withheld) and provided, further, that no such assignment shall result in an
assignor or assignee (in each case, together with its Affiliated Lenders) who
holds Commitment Loans or participations in Letter of Credit Outstandings
holding an aggregate amount of Commitments, Loans and participations in Letter
of Credit Outstandings less than $5,000,000 (or such lower amount as may be
approved by the Administrative Agent). Upon execution and delivery by the
assignee to the Administrative Agent of an instrument in writing, substantially
in the form of Exhibit II hereto, pursuant to which such assignee agrees to
become a "Working Capital Lender" for purposes of this Agreement (to the extent
not already a Working Capital Lender), (i) the Register shall be deemed modified
to reflect the Working Capital Lenders' Commitments after giving effect to such
assignment, (ii) upon the surrender of the relevant Notes by the assigning
Working Capital Lender (or against customary indemnification arrangements) new
Notes will be issued, at the Borrower's expense, to such new Working Capital
Lender and to the assigning Working Capital Lender in conformity with Section
2.05, (iii) the assignee shall have, to the extent of such assignment, all the
obligations, rights and benefits of a Working Capital Lender under this
Agreement and any other Financing Document, holding the Commitments, Loans and
participations in Letter of Credit Outstandings assigned to it (in addition to
the Commitment, Loans and participations in Letter of Credit Outstandings
theretofore held by such assignee), and (iv) the assigning Working Capital
Lender shall, to the extent of such assignment, be released from its obligations
hereunder. Upon each such assignment (except any such assignment to an
Affiliated Lender of the assigning Working Capital Lender), the assigning
Working Capital Lender shall pay the Administrative Agent an assignment fee of
$3,500.
(c) A Working Capital Lender may transfer, assign or grant one or
more other Persons (each, a "Loan Participant") a participation in all or any
part of its rights hereunder, provided that (i) such Working Capital Lender
shall remain a "Working Capital Lender" for all purposes hereunder (and may not
transfer or assign any part of its Commitments except in accordance with Section
12.06(b)) and the Loan Participant shall not constitute a "Working Capital
Lender" hereunder and (ii) no Working Capital Lender shall transfer, assign or
grant any participation under which the Loan Participant shall have rights to
approve any amendment to or waiver of this Agreement or any other Financing
Document other than an amendment or waiver referred to under clauses (i) through
(iv), (x) or (xi) of Section 12.04(a). In the case of any such participation,
the Loan Participant shall not have any rights under this Agreement or any of
the other Financing Documents (the Loan Participant's rights against the such
Working Capital Lender in respect of such participation to be those set forth in
the agreement executed by such Working Capital Lender and such Loan Participant
in connection with such participation) and all amounts payable by the
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Borrower hereunder shall be determined as if such Working Capital Lender had not
sold such participation.
(d) A Working Capital Lender may furnish any information concerning
the Borrower or any of the Guarantors in the possession of such Working Capital
Lender from time to time to assignees and Participants and their investment
advisors (including prospective assignees and any of Participants), provided
that such assignees and Participants and prospective assignees and Participants
and their investment advisors shall first execute and deliver to the Borrower or
the applicable Guarantor an agreement in writing to become subject to the
provisions contained in Section 14.12 of the Common Security Agreement.
(e) Nothing in this Agreement shall prevent or prohibit any Working
Capital Lender from pledging its Loans, participations in Letters of Credit and
Notes hereunder to a Federal Reserve Bank in support of borrowings made by such
Working Capital Lender from such Federal Reserve Bank and, with the consent of
the Administrative Agent, any Working Capital Lender which is a fund may pledge
all or any portion of its Loans, participations in Letters of Credit and Notes
to its trustee in support of its obligations to its trustee. No pledge pursuant
to this clause (e) shall release the transferor Working Capital Lender from any
of its obligations hereunder.
12.07 Survival. The obligations of the Borrower under Sections 2.10,
2.11, 3.05, 5.04, 12.03, 12.11 and 12.13 and the obligations of the Working
Capital Lenders to indemnify the Administrative Agent, as incorporated by
reference in Article XI, and the Letter of Credit Issuers, as set forth in
Section 3.06, shall survive the repayment of the Loans and any amount due in
connection with the Letters of Credit and the termination of the Commitments.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time payment and performance of the Borrower's obligations under
this Agreement, or any part thereof, is, pursuant to Applicable Law, rescinded
or reduced in amount, or must otherwise be restored or returned by the
Administrative Agent or any Working Capital Lender. In the event that any
payment or any part thereof is so rescinded, reduced, restored or returned, such
obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, restored or returned.
12.08 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.09 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
12.10 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE PARTNERSHIP, THE
ADMINISTRATIVE AGENT AND THE WORKING
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CAPITAL LENDERS HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE SENIOR NOTES OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
12.11 Consent to Jurisdiction. The Borrower and each of the Guarantors
confirm their consent and submission to jurisdiction, and their appointment of
CT Corporation System as agent for service of process, pursuant to clause (b) of
Section 14.12 of the Common Security Agreement, which section is incorporated by
reference as it relates to the Borrower and the Guarantors as if fully set forth
in this Agreement.
12.12 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.13 Register. The Borrower hereby designates the Administrative
Agent to serve as such Borrower's agent, solely for purposes of this Section
12.13, to maintain a register (the "Register") on which it will record the Loan
Commitments from time to time of each of the Working Capital Lenders, the Loans
made by each of the Working Capital Lenders and each repayment in respect of the
principal amount of the Loans of each Working Capital Lender. Failure to make
any such recordation, or any error in such recordation shall not affect the
Borrower's obligations in respect of such Loans. With respect to any Working
Capital Lender, the transfer of any Loan Commitment of such Working Capital
Lender and the rights to the principal of, and interest on, any Loan shall not
be effective until such transfer is recorded on the Register maintained by the
Administrative Agent with respect to ownership of such Loan Commitment and Loans
and prior to such recordation all amounts owing to the transferor with respect
to such Loan Commitment and Loans shall remain owing to the transferor. The
registration of assignment of transfer of all or part of any Loan Commitment and
Loans shall be recorded by the Administrative Agent on the Register only upon
the acceptance by the Administrative Agent of a properly executed and delivered
Assignment and Assumption Agreement pursuant to clause (b) of Section 12.06.
Coincident with the delivery of such an Assignment and Assumption Agreement to
the Administrative Agent for acceptance and registration of assignment or
transfer of all or part of a Loan Commitment or Loan, or as soon thereafter as
practicable, the assigning or transferor Bank Senior Lender shall surrender the
Note evidencing such Loan Commitment or Loan, and thereupon one or more new
Notes in the same aggregate principal amount shall be issued to the assigning or
transferor Working Capital Lender or the new Working Capital Lender. The
Borrower jointly and severally agrees to indemnify the Administrative Agent from
and against any and all losses, claim, damages and liabilities of whatsoever
nature which may be
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imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 12.13.
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IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
PORT XXXXXX FINANCE CORP.,
as Borrower
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
PORT XXXXXX XXXXX COMPANY L.P.,
as Partnership and Guarantor
By: SABINE RIVER HOLDING CORP.,
GENERAL PARTNER
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SABINE RIVER HOLDING CORP.,
as General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
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NECHES RIVER HOLDING CORP.,
as Limited Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
DEUTSCHE BANK AG, NEW YORK BRANCH
AND OR CAYMAN ISLANDS BRANCH
as Administrative Agent for and on behalf
of the Working Capital Lenders
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xx Xxxxxx
Title: Associate
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Working Capital Lenders
-----------------------
Trade Compensating
Commitment L/C Commitment
US$13,125,000 US$15,000,000 Deutsche Bank AG, New York Branch
AND OR CAYMAN ISLANDS BRANCH
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xx Xxxxxx
Title: Associate
Lending Office:
Deutsche Bank AG
Addresses for Notices:
00 Xxxx 00/xx/ Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
Addresses for Notices:
000 Xxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
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Working Capital Lenders
-----------------------
Trade Compensating
Commitment L/C Commitment
US$16,625,000 US$19,000,000 Credit Suisse First Boston
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx Ngwube
-----------------------------------
Name: Xxxxx Ngwube
Title: Associate
Lending Office:
Credit Suisse First Boston
Addresses for Notices:
Eleven Xxxxxxx Xxxxxx, 00/xx/ Xxxxx
Project Finance -- Portfolio
Management
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
Xxxxx Naval
Telephone: 000-000-0000; 000-000-0000
Telecopier: 000-000-0000
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Trade Compensating
Commitment L/C Commitment
US$5,250,000 US$6,000,000 Xxxxxxx Sachs Credit Partners L.P.
By: /s/ Xx Xxxxx
-----------------------------------
Name: Xx Xxxxx
Title: Managing Director
Lending Office:
Xxxxxxx Xxxxx Credit Partners L.P.
Addresses for Notices:
00 Xxxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
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EXHIBIT I
to Secured Working Capital Facility
Form of Senior Note
SENIOR NOTE
New York, New York
U.S. Dollars _________ __________, 1999
FOR VALUE RECEIVED, PORT XXXXXX FINANCE CORP., a corporation organized
under the laws of the State of Delaware (the "Borrower"), PORT XXXXXX XXXXX
COMPANY L.P., a limited partnership organized under the laws of the State of
Delaware (the "Partnership"), SABINE RIVER HOLDING CORP., a corporation
organized under the laws of the State of Delaware (the "General Partner"), and
NECHES RIVER HOLDING CORP., a corporation organized under the laws of the State
of Delaware (the "Limited Partner" and, together with the Partnership and the
General Partner, the "Guarantors"), hereby unconditionally and jointly and
severally promise to pay to the order of ____________ (the "Working Capital
Lender") at the principal office of __________________________ located at
________________, _____________, _________, in lawful money of the United States
and in immediately available funds, the principal amount of (a) _______________
U.S. Dollars ($ ________) or, if less, (b) the aggregate unpaid principal amount
of all [Trade Loans][Compensating L/C Loans] made by the Working Capital Lender
to the Borrower pursuant to the Secured Working Capital Facility, dated as of
August 19, 1999 (as amended, modified or supplemented from time to time, the
"Agreement"), among the Borrower, the Guarantors, the Working Capital Lenders
from time to time parties thereto and Deutsche Bank AG, New York Branch, as
Administrative Agent for the Working Capital Lenders. The Borrower and the
Guarantors also promise to pay interest on the unpaid principal amount of each
Loan from the date of such Loan until such Loan is paid in full, in like money
at such office at the rate or rates per annum and on the date or dates specified
in the Agreement.
The holder of this Senior Note is authorized to endorse on the schedule
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each Loan made
pursuant to the Agreement, the date and amount of each payment or prepayment of
principal thereof and the length of each Interest Period with respect thereto,
which endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed, provided that any failure by the holder of this Senior
Note to make such an endorsement or any error in such endorsement shall in no
manner affect the validity or enforceability of the obligation of the Borrower
and the Guarantors to make payments of principal and interest in accordance with
the terms of this Senior Note and the Agreement.
I-1
All parties hereto, whether as makers, endorsers or otherwise, severally
waive diligence, presentment, demand, protest and notice of any kind whatsoever.
The failure or forbearance by the holder to exercise any of its rights under
this Senior Note in any particular instance shall in no event constitute a
waiver thereof.
This Senior Note is one of the Notes referred to in, and is entitled to the
benefits of, the Agreement, which, among other things, contains provisions for
the acceleration of the maturity of the [Trade Loans][Compensating L/C Loans]
upon the happening of certain events, for Optional Prepayment of the principal
of the [Trade Loans][Compensating L/C Loans] prior to the Maturity Date and for
the amendment or waiver of certain provisions of the Agreement or this Senior
Note, all upon the terms and conditions therein specified. Capitalized terms
used and not otherwise defined herein shall have the meanings ascribed thereto
in the Agreement.
Upon the taking of an Enforcement Action (as defined in the Common Security
Agreement referred to in the Agreement) the principal of, and interest on, this
Senior Note may be declared to be forthwith due and payable in the manner, upon
the conditions and with the effect provided in the Agreement and in the Common
Security Agreement.
This Senior Note may be prepaid as provided in the Agreement and the Common
Security Agreement.
The Borrower and the Guarantors agree to pay, exclusively in lawful money
of the United States of America, costs of collection and attorneys' fees in case
default occurs in the payment of this Senior Note.
THIS SENIOR NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
This Senior Note is not negotiable and interests herein may be assigned
only upon the terms and conditions specified in the Agreement.
I-2
IN WITNESS WHEREOF, this Senior Note has been duly executed by the
undersigned as of the date first written above.
PORT XXXXXX FINANCE CORP.
By:_______________________________________________
Name:
Title:
PORT XXXXXX XXXXX COMPANY L.P.
By: SABINE RIVER HOLDING CORP.,
GENERAL PARTNER
By:_______________________________________________
Name:
Title:
SABINE RIVER HOLDING CORP.
By:_______________________________________________
Name:
Title:
NECHES RIVER HOLDING CORP.
By:_______________________________________________
Name:
Title:
I-3
[TRADE LOANS][COMPENSATING L/C LOANS] AND PRINCIPAL PAYMENTS
Amount of Amount of Amount of
Loans Made Principal Unpaid
Date Under Secured Interest Repaid Toward Principal Notation
Working Period Such Loan Balance of Made By
Capital Facility Such Loan
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I-4
EXHIBIT II
to Secured Woking Capital Facility
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Secured Working Capital Facility, dated as of
August 19, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Working Capital Agreement"), among PORT XXXXXX FINANCE CORP., a
corporation organized under the laws of the State of Delaware (the "Borrower"),
PORT XXXXXX XXXXX COMPANY L.P., a limited partnership organized under the laws
of Delaware (the "Partnership"), SABINE RIVER HOLDING CORP., a corporation
organized under the laws of the State of Delaware (the "General Partner"), and
NECHES RIVER HOLDING CORP., a corporation organized under the laws of the State
of Delaware (the "Limited Partner" and, together with the Partnership and the
General Partner, the "Guarantors") (together, the "Borrowers"), the Working
Capital Lenders from time to time party thereto (the "Working Capital Lenders")
and Deutsche Bank AG, New York Branch, as Administrative Agent for the Working
Capital Lenders. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed thereto in the Secured Working Capital
Facility.
The Assignor identified on Schedule I hereto (the "Assignor") and the
Assignee identified on Schedule I hereto (the "Assignee") hereby agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule I hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Secured Working Capital Facility with respect to those Loans (individually,
an Assigned Loan"; collectively, the Assigned Loans") and Letters of Credit as
are set forth on Schedule I hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statement, warranties or representations made
in or in connection with any Financing Document, or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Financing Document or any other instrument or document furnished pursuant
thereto, other than that the Assignor has not created any adverse claim upon the
interest being assigned by it hereunder and that such interest is free and clear
of any such adverse claim; (b) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower or any
other obligor or the performance or observance by the Borrowers or any other
obligor of any of their respective obligations under any Financing Document or
any
II-1
other instrument or document furnished pursuant hereto or thereto; and (c)
attaches any Senior Notes held by it evidencing Assigned Loans and (i) requests
that the Administrative Agent exchange the attached Senior Notes for new Senior
Notes payable to the Assignee and (ii) if the Assignor has retained any interest
in any Assigned Loan, requests that the Administrative Agent exchange the
attached Senior Notes for new Senior Notes payable to the Assignor and the
Assignee, in each case in amounts which reflect the assignment being made hereby
(and after giving effect to any other assignments which have become effective on
the Effective Date).
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Financing Documents together with copies of such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Administrative Agent
or any other Working Capital Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Financing Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Administrative Agent to take such action as agent (in its
capacity as Administrative Agent under the Secured Working Capital Facility) on
its behalf and to exercise such powers and discretion under the Financing
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it will
be bound by the provisions of the Financing Documents and will perform in
accordance with its terms all the obligations which by the terms of the
Financing Documents are required to be performed by it as a Working Capital
Lender.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule I hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent, effective as of the Effective Date (which shall not,
unless otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts that have accrued prior to the Effective Date and to
the Assignee for amounts which have accrued subsequent to the Effective Date.
The Assignor and the Assignee shall make all appropriate adjustments in payments
by the Administrative Agent for
II-2
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Secured Working Capital Facility and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Working Capital
Lender thereunder and under such other agreements and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Agreement and Acceptance, relinquish its rights and be released from its
obligations under the Bank Senior Loan Agreement and such other agreements.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule I hereto.
II-3
Schedule I
to Assignment and Acceptance
Name of Assignor:________________________________
Name of Assignee:________________________________
Effective Date of Assignment:____________________
[specify Loans and Letters of Credit being assigned]
[Name of Assignee] [Name of Assignor]
By:___________________________ By:___________________________
Name: Name:
Title: Title:
Consented to:
------------
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent for and on behalf of
the Working Capital Lenders
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
Received:
---------
BANKERS TRUST COMPANY,
as Collateral Trustee for the Secured Parties
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
II-4
CREDIT SUISSE FIRST BOSTON
By:___________________________
Name:
Title:
PORT XXXXXX FINANCE CORP.
By:____________________________
Name:
Title:
II-5
EXHIBIT III
FORM OF
NOTICE OF BORROWING
[To follow]
III-1
