EXHIBIT 10.2
[CHASE LETTERHEAD]
CREDIT AGREEMENT
This agreement dated as of December 23, 2008 is between JPMorgan Chase Bank,
N.A. (together with its successors and assigns, the "BANK"), whose address is
000 Xx. Xxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, and Blackwater New Orleans,
L.L.C. (individually, the "BORROWER" and if more than one, collectively, the
"BORROWERS"), whose address is 0000 Xxxxxxx 00, Xxxxxxxxx, XX 00000.
1. CREDIT FACILITIES.
1.1 SCOPE. This agreement, unless otherwise agreed to in writing by the
Bank and the Borrower or prohibited by any Legal Requirement (as
hereafter defined), governs the Credit Facilities as defined below.
Advances under any Credit Facilities shall be subject to the
procedures established from time to time by the Bank. Any procedures
agreed to by the Bank with respect to obtaining advances, including
automatic loan sweeps, shall not vary the terms or conditions of
this agreement or the other Related Documents regarding the Credit
Facilities.
2. DEFINITIONS AND INTERPRETATIONS.
2.1 DEFINITIONS. As used in this agreement, the following terms have the
following respective meanings:
A. "AFFILIATE" means any Person which, directly or indirectly
Controls or is Controlled by or under common Control with, another
Person, and any director or officer thereof. The Bank is under no
circumstances to be deemed an Affiliate of the Borrower or any of
its Subsidiaries.
B. "AUTHORIZING DOCUMENTS" means certificates of authority to
transact business, certificates of good standing, borrowing
resolutions, appointments, officer's certificates, certificates of
incumbency, and other documents which empower and authorize or
evidence the power and authority of all Persons (other than the
Bank) executing any Related Document or their representatives to
execute and deliver the Related Documents and perform the Person's
obligations thereunder.
C. "COLLATERAL" means all Property, now or in the future subject to
any Lien in favor of the Bank, securing or intending to secure, any
of the Liabilities.
D. "CONTROL" as used with respect to any Person, means the power to
direct or cause the direction of, the management and policies of
that Person, directly or indirectly, whether through the ownership
of Equity Interests, by contract, or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
E. "CREDIT FACILITIES" means all extensions of credit from the Bank
to the Borrower, whether now existing or hereafter arising,
including but not limited to those described in Section 1, if any,
and those extended contemporaneously with this agreement.
F. "DISTRIBUTIONS" means all dividends and other distributions made
to any Equity Owners, other than salary, bonuses, and other
compensation for services expended in the current accounting period.
G. "EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company,
beneficial interests in a trust or other equity ownership interests
in a Person, and any warrants, options or other rights entitling the
holder thereof to purchase or acquire any such equity interest.
H. "EQUITY OWNER" means a shareholder, partner, member, holder of a
beneficial interest in a trust or other owner of any Equity
Interests.
I. "GAAP" means generally accepted accounting principles in effect
from time to time in the United States of America, consistently
applied.
J. "LEGAL REQUIREMENT" means any law, ordinance, decree,
requirement, order, judgment, rule, regulation (or interpretation of
any of the foregoing) of any foreign governmental authority, the
United States of America, any state thereof, any political
subdivision of any of the foregoing or any agency, department,
commission, board, bureau, court or other tribunal having
jurisdiction over the Bank, any Pledgor or any Obligor or any of its
Subsidiaries or their respective Properties or any agreement by
which any of them is bound.
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K. "LIABILITIES" means all indebtedness, liabilities and obligations
of every kind and character of the Borrower to the Bank, whether the
obligations, indebtedness and liabilities are individual, joint and
several (solidary), contingent or otherwise, now or hereafter
existing, including, without limitation, all liabilities, interest,
costs and fees, arising under or from any note, open account,
overdraft, credit card, lease, Rate Management Transaction, letter
of credit application, endorsement, surety agreement, guaranty,
acceptance, foreign exchange contract or depository service
contract, whether payable to the Bank or to a third party and
subsequently acquired by the Bank, any monetary obligations
(including interest) incurred or accrued during the pendency of any
bankruptcy, insolvency, receivership or other similar proceedings,
regardless of whether allowed or allowable in such proceeding, and
all renewals, extensions, modifications, consolidations,
rearrangements, restatements, replacements or substitutions of any
of the foregoing.
L. "LIEN" means any mortgage, deed of trust, pledge, charge,
encumbrance, security interest, collateral assignment or other lien
or restriction of any kind.
M. "NOTES" means all promissory notes, instruments and/or contracts
now or hereafter evidencing the Credit Facilities.
N. "OBLIGOR" means any Borrower, guarantor, surety, co-signer,
endorser, general partner or other Person who may now or in the
future be obligated to pay any of the Liabilities.
O. "ORGANIZATIONAL DOCUMENTS" means, with respect to any Person,
certificates of existence or formation, documents establishing or
governing the Person or evidencing or certifying that the Person is
duly organized and validly existing in accordance with all
applicable Legal Requirements, including all amendments,
restatements, supplements or modifications to such certificates and
documents as of the date of the Related Document referring to the
Organizational Document and any and all future modifications thereto
approved by the Bank.
P. "PERMITTED INVESTMENTS" means (1) readily marketable direct
obligations of the United States of America or any agency thereof
with maturities of one year or less from the date of acquisition;
(2) fully insured (if issued by a bank other than the Bank)
certificates of deposit with maturities of one year or less from the
date of acquisition issued by any commercial bank operating in the
United States of America having capital and surplus in excess of
$500,000,000.00; and (3) commercial paper of a domestic issuer if at
the time of purchase such paper is rated in one of the two highest
rating categories of Standard and Poor's Corporation or Xxxxx'x
Investors Service.
Q. "PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, joint stock association,
association, bank, business trust, trust, unincorporated
organization, any foreign governmental authority, the United States
of America, any state of the United States and any political
subdivision of any of the foregoing or any other form of entity.
R. "PLEDGOR" means any Person providing Collateral.
S. "PROPERTY" means any interest in any kind of property or asset,
whether real, personal or mixed, tangible or intangible.
T. "RATE MANAGEMENT TRANSACTION" means any transaction (including an
agreement with respect thereto) that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity
or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction,
floor transaction, collar transaction, forward transaction, currency
swap transaction, cross-currency rate swap transaction, currency
option, derivative transaction or any other similar transaction
(including any option with respect to any of these transactions) or
any combination thereof, whether linked to one or more interest
rates, foreign currencies, commodity prices, equity prices or other
financial measures.
U. "RELATED DOCUMENTS" means this agreement, the Notes, applications
for letters of credit, all loan agreements, credit agreements,
reimbursement agreements, security agreements, mortgages, deeds of
trust, pledge agreements, assignments, guaranties, and any other
instrument or document executed in connection with this agreement or
with any of the Liabilities.
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V. "SUBSIDIARY" means, as to any particular Person (the "parent"), a
Person the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of the
date of determination, as well as any other Person of which fifty
percent (50%) or more of the Equity Interests is at the time of
determination directly or indirectly owned, Controlled or held, by
the parent or by any Person or Persons Controlled by the parent,
either alone or together with the parent.
2.2 INTERPRETATIONS. Whenever possible, each provision of the Related
Documents shall be interpreted in such manner as to be effective and
valid under applicable Legal Requirements. If any provision of this
agreement cannot be enforced, the remaining portions of this
agreement shall continue in effect. In the event of any conflict or
inconsistency between this agreement and the provisions of any other
Related Documents, the provisions of this agreement shall control.
Use of the term "including" does not imply any limitation on (but
may expand) the antecedent reference. Any reference to a particular
document includes all modifications, supplements, replacements,
renewals or extensions of that document, but this rule of
construction does not authorize amendment of any document without
the Bank's consent. Section headings are for convenience of
reference only and do not affect the interpretation of this
agreement. Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in
accordance with GAAP. Whenever the Bank's determination, consent,
approval or satisfaction is required under this agreement or the
other Related Documents or whenever the Bank may at its option take
or refrain from taking any action under this agreement or the other
Related Documents, the decision as to whether or not the Bank makes
the determination, consents, approves, is satisfied or takes or
refrains from taking any action, shall be in the sole and exclusive
discretion of the Bank, and the Bank's decision shall be final and
conclusive.
3. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT.
3.1 CONDITIONS PRECEDENT TO INITIAL EXTENSION OF CREDIT UNDER EACH OF
THE CREDIT FACILITIES. Before the first extension of credit governed
by this agreement and any initial advance under any of the Credit
Facilities, whether by disbursement of a loan, issuance of a letter
of credit, or otherwise, the Borrower shall deliver to the Bank, in
form and substance satisfactory to the Bank:
A. LOAN DOCUMENTS. The Notes, and as applicable, the letter of
credit applications, reimbursement agreements, the security
agreements, the pledge agreements, financing statements, mortgages
or deeds of trust, the guaranties, the subordination agreements, and
any other documents which the Bank may reasonably require to give
effect to the transactions described in this agreement or the other
Related Documents;
B. ORGANIZATIONAL AND AUTHORIZING DOCUMENTS. The Organizational
Documents and Authorizing Documents of the Borrower and any other
Persons (other than the Bank) executing the Related Documents in
form and substance satisfactory to the Bank that at a minimum: (i)
document the due organization, valid existence and good standing of
the Borrower and every other Person (other than the Bank) that is a
party to this agreement or any other Related Document; (ii) evidence
that each Person (other than the Bank) which is a party to this
agreement or any other Related Document has the power and authority
to enter into the transactions described therein; and (iii) evidence
that the Person signing on behalf of each Person that is a party to
the Related Documents (other than the Bank) is duly authorized to do
so; and
C. LIENS. The termination, assignment or subordination, as
determined by the Bank, of all Liens on the Collateral in favor of
any secured party (other than the Bank).
D. PLEDGE. An Assignment of Deposit Account evidencing a pledge of
an amount equal to at least twelve (12) months of principal due and
payable under the $2,500,000.00 term loan being extended by the Bank
to the Borrower to secure the Borrower's Liabilities to the Bank.
The pledge evidenced by such Assignment of Deposit Account shall
remain in effect until the Borrower achieves a Fixed Charge Coverage
Ratio (as defined in Section 5.2.M of this agreement) of at least
1.20 to 1.00 on or after March 31, 2010.
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3.2 CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT. Before any
extension of credit governed by this agreement, whether by
disbursement of a loan, issuance of a letter of credit or otherwise,
the following conditions must be satisfied:
A. REPRESENTATIONS. The representations of the Borrower and any
other parties, other than the Bank, in the Related Documents are
true on and as of the date of the request for and funding of the
extension of credit;
B. NO EVENT OF DEFAULT. No default, event of default or event that
would constitute a default or event of default but for the giving of
notice, the lapse of time or both, has occurred in any provision of
this agreement, the Notes or any other Related Documents and is
continuing or would result from the extension of credit;
C. ADDITIONAL APPROVALS, OPINIONS, AND DOCUMENTS. The Bank has
received any other approvals, opinions and documents as it may
reasonably request; and
D. NO PROHIBITION OR ONEROUS CONDITIONS. The making of the extension
of credit is not prohibited by and does not subject the Bank, any
Obligor, or any Subsidiary of the Borrower to any penalty or onerous
condition under, any Legal Requirement.
4. AFFIRMATIVE COVENANTS. The Borrower agrees to do, and cause each of its
Subsidiaries to do, each of the following:
4.1 INSURANCE. Maintain insurance with financially sound and reputable
insurers, with such insurance and insurers to be satisfactory to the
Bank, covering its Property and business against those casualties
and contingencies and in the types and amounts as are in accordance
with sound business and industry practices, and furnish to the Bank,
upon request of the Bank, reports on each existing insurance policy
showing such information as the Bank may reasonably request.
4.2 EXISTENCE. Maintain its existence and business operations as
presently in effect in accordance with all applicable Legal
Requirements, pay its debts and obligations when due under normal
terms, and pay on or before their due date, all taxes, assessments,
fees and other governmental monetary obligations, except as they may
be contested in good faith if they have been properly reflected on
its books and, at the Bank's request, adequate funds or security has
been pledged or reserved to insure payment.
4.3 FINANCIAL RECORDS. Maintain proper books and records of account, in
accordance with GAAP, and consistent with financial statements
previously submitted to the Bank.
4.4 INSPECTION. Permit the Bank, its agents and designees to: (a)
inspect and photograph its Property, to examine and copy files,
books and records, and to discuss its business, operations,
prospects, assets, affairs and financial condition with the
Borrower's or its Subsidiaries' officers and accountants, at times
and intervals as the Bank reasonably determines; (b) perform audits
or other inspections of the Collateral, including the records and
documents related to the Collateral; and (c) confirm with any Person
any obligations and liabilities of the Person to the Borrower or its
Subsidiaries. The Borrower will, and will cause its Subsidiaries to
cooperate with any inspection or audit. The Borrower will pay the
Bank the reasonable costs and expenses of any audit or inspection of
the Collateral (including fees and expenses charged internally by
the Bank for asset reviews) promptly after receiving the invoice.
4.5 FINANCIAL REPORTS. Furnish to the Bank whatever information,
statements, books and records the Bank may from time to time
reasonably request, including at a minimum:
A. Within forty-five (45) days after each quarterly period, the
consolidated financial statements of the Borrower and its
Subsidiaries prepared and presented in accordance with GAAP,
including a balance sheet as of the end of that period, and income
statement for that period, and, if requested at any time by the
Bank, statements of cash flow and retained earnings for that period,
all certified as correct by one of its authorized agents.
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B. Within one hundred and twenty (120) days after and as of the end
of each of its fiscal years, the consolidated financial statements
of the Borrower and its Subsidiaries prepared and presented in
accordance with GAAP, including a balance sheet and statements of
income, cash flow and retained earnings, such financial statements
to be compiled by an independent certified public accountant of
recognized standing satisfactory to the Bank.
4.6 NOTICES OF CLAIMS, LITIGATION, DEFAULTS, ETC. Promptly inform the
Bank in writing of: (1) all existing and all threatened litigation,
claims, investigations, administrative proceedings and similar
actions or changes in Legal Requirements affecting it which could
materially affect its business, assets, affairs, prospects or
financial condition; (2) the occurrence of any event which gives
rise to the Bank's option to terminate the Credit Facilities; (3)
the institution of steps by it to withdraw from, or the institution
of any steps to terminate, any employee benefit plan as to which it
may have liability; (4) any reportable event or any prohibited
transaction in connection with any employee benefit plan; (5) any
additions to or changes in the locations of its businesses; and (6)
any alleged breach by the Bank of any provision of this agreement or
of any other Related Document.
4.7 OTHER AGREEMENTS. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between it and any
other Person.
4.8 TITLE TO ASSETS AND PROPERTY. Maintain good and marketable title to
all of its Properties, and defend them against all claims and
demands of all Persons at any time claiming any interest in them.
4.9 ADDITIONAL ASSURANCES. Promptly make, execute and deliver any and
all agreements, documents, instruments and other records that the
Bank may request to evidence any of the Credit Facilities, cure any
defect in the execution and delivery of any of the Related
Documents, perfect any Lien, comply with any Legal Requirement
applicable to the Bank or the Credit Facilities or describe more
fully particular aspects of the agreements set forth or intended to
be set forth in any of the Related Documents.
4.10 EMPLOYEE BENEFIT PLANS. Maintain each employee benefit plan as to
which it may have any liability, in compliance with all Legal
Requirements.
4.11 BANKING RELATIONSHIP. Establish and maintain its primary banking
depository and disbursement relationship with the Bank.
4.12 COMPLIANCE CERTIFICATES. Provide the Bank, within one hundred and
twenty (120) days after the end of each fiscal year, with a
certificate executed by its chief financial officer, or other
officer or an individual satisfactory to the Bank, certifying that,
as of the date of the certificate, no default exists under any
provision of this agreement or the other Related Documents.
5. NEGATIVE COVENANTS.
5.1 Unless otherwise noted, the financial requirements set forth in this
section will be computed in accordance with GAAP applied on a basis
consistent with financial statements previously submitted by the
Borrower to the Bank.
5.2 Without the written consent of the Bank, the Borrower will not and
no Subsidiary of the Borrower will:
A. DISTRIBUTIONS. Redeem, retire, purchase or otherwise acquire,
directly or indirectly, any of its Equity Interests, return any
contribution to an Equity Owner or, other than stock dividends and
dividends paid to the Borrower, declare or pay any Distributions;
provided, however, that if there is no existing default under this
agreement or any other Related Document and to do so will not cause
a default under any of such agreements the Borrower may pay
Distributions to its Equity Owners sufficient in amount to pay their
income tax obligations attributable to the Borrower's taxable income
if the Borrower is a sub S corporation, limited liability company or
partnership.
B. SALE OF EQUITY INTERESTS. Issue, sell or otherwise dispose of its
Equity Interests.
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C. DEBT. Incur, contract for, assume, or permit to remain
outstanding, indebtedness for borrowed money, installment
obligations, or obligations under capital leases or operating
leases, other than (1) unsecured trade debt incurred in the ordinary
course of business, (2) indebtedness owing to the Bank, (3)
indebtedness reflected in its latest financial statement furnished
to the Bank prior to execution of this agreement and that is not to
be paid with proceeds of borrowings under the Credit Facilities, and
(4) indebtedness outstanding as of the date hereof that has been
disclosed to the Bank in writing and that is not to be paid with
proceeds of borrowings under the Credit Facilities.
D. GUARANTIES. Guarantee or otherwise become or remain secondarily
liable on the undertaking of another, except for endorsement of
drafts for deposit and collection in the ordinary course of
business.
E. LIENS. Create or permit to exist any Lien on any of its Property
except: existing Liens known to and approved by the Bank; Liens to
the Bank; Liens incurred in the ordinary course of business securing
current nondelinquent liabilities for taxes, worker's compensation,
unemployment insurance, social security and pension liabilities.
F. USE OF PROCEEDS. Use, or permit any proceeds of the Credit
Facilities to be used, directly or indirectly, for the purpose of
"purchasing or carrying any margin stock" within the meaning of
Federal Reserve Board Regulation U. At the Bank's request, it will
furnish a completed Federal Reserve Board Form U-1.
G. CONTINUITY OF OPERATIONS. (1) Engage in any business activities
substantially different from those in which it is presently engaged;
(2) cease operations, liquidate, merge, transfer, acquire or
consolidate with any other Person, change its name, dissolve, or
sell any assets out of the ordinary course of business; or (3) enter
into any arrangement with any Person providing for the leasing by it
of Property which has been sold or transferred by it to such Person.
H. LIMITATION ON NEGATIVE PLEDGE CLAUSES. Enter into any agreement
with any Person other than the Bank which prohibits or limits its
ability to create or permit to exist any Lien on any of its
Property, whether now owned or hereafter acquired.
I. CONFLICTING AGREEMENTS. Enter into any agreement containing any
provision which would be violated or breached by the performance of
its obligations under this agreement or any of the other Related
Documents.
J. TRANSFER OF OWNERSHIP. Permit any pledge of any Equity Interest
in it or any sale or other transfer of any Equity Interest in it.
K. LIMITATION ON LOANS, ADVANCES TO AND INVESTMENTS IN OTHERS AND
RECEIVABLES FROM OTHERS. Purchase, hold or acquire any Equity
Interest or evidence of indebtedness of, make or permit to exist any
loans or advances to, permit to exist any receivable from, or make
or permit to exist any investment or acquire any interest whatsoever
in, any Person, except: (1) extensions of trade credit to customers
in the ordinary course of business on ordinary terms; (2) Permitted
Investments; and (3) loans, advances, investments and receivables
existing as of the date of this agreement that have been disclosed
to and approved by the Bank in writing and that are not to be paid
with proceeds of borrowings under the Credit Facilities.
L. ORGANIZATIONAL DOCUMENTS. Alter, amend or modify any of its
Organizational Documents.
M. FIXED CHARGE COVERAGE RATIO. Beginning March 31, 2010, permit its
"Fixed Charge Coverage Ratio" (hereinafter defined in this
subsection) for any "Test Period" (hereinafter defined in this
subsection) to be less than 1.20 to 1.00. As used in this subsection
the term "FIXED CHARGE COVERAGE RATIO" means the ratio of (i) net
income before income tax expense, plus amortization expense,
depreciation expense, interest expense, rent and operating lease
payments made, minus any Distributions made, all computed for the
Test Period, to (ii) prior period current maturities of long term
debt and capital leases (i.e., current maturities of long term debt
and capital leases computed as of the beginning of the Test Period),
plus interest expense, income tax expense, rent and operating lease
payments made, all computed for the Test Period, except as expressly
noted otherwise. As used in this subsection, the term "TEST PERIOD"
means each period of twelve consecutive months.
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N. GOVERNMENT REGULATION. (1) Be or become subject at any time to
any Legal Requirement or list of any government agency (including,
without limitation, the U.S. Office of Foreign Asset Control list)
that prohibits or limits the Bank from making any advance or
extension of credit to it or from otherwise conducting business with
it, or (2) fail to provide documentary and other evidence of its
identity as may be requested by the Bank at any time to enable the
Bank to verify its identity or to comply with any applicable Legal
Requirement, including, without limitation, Section 326 of the USA
Patriot Act of 2001, 31 U.S.C. Section 5318.
O. SUBSIDIARIES. Form, create or acquire any Subsidiary.
5.3 FINANCIAL STATEMENT CALCULATIONS. The financial covenant(s) set
forth in the Section entitled "Negative Covenants" or in any
subsection thereof shall, except as may be otherwise expressly
provided with respect to any particular financial covenant, be
calculated on the basis of the Borrower's financial statements
prepared on a consolidated basis with its Subsidiaries in accordance
with GAAP. Except as may be otherwise expressly provided with
respect to any particular financial covenant, if any financial
covenant states that it is to be tested with respect to any
particular period of time (which may be referred to therein as a
"Test Period") ending on any test date (e.g., a fiscal month end,
fiscal quarter end, or fiscal year end), then compliance with that
covenant shall be required commencing with the period of time ending
on the first test date that occurs after the date of this agreement
(or, if applicable, of the amendment to this agreement which added
or amended such financial covenant).
6. REPRESENTATIONS AND WARRANTIES BY THE BORROWER. To induce the Bank to
enter into this agreement and to extend credit or other financial
accommodations under the Credit Facilities, the Borrower represents and
warrants as of the date of this agreement and as of the date of each
request for credit under the Credit Facilities that each of the following
statements is and shall remain true and correct throughout the term of
this agreement and until all Credit Facilities and all Liabilities under
the Notes and other Related Documents are paid in full: (a) the execution
and delivery of this agreement and the other Related Documents to which it
is a party, and the performance of the obligations they impose, do not
violate any Legal Requirement, conflict with any agreement by which it is
bound, or require the consent or approval of any other Person, (b) this
agreement and the other Related Documents have been duly authorized,
executed and delivered by all parties thereto (other than the Bank) and
are valid and binding agreements of those Persons, enforceable according
to their terms, except as may be limited by bankruptcy, insolvency or
other laws affecting the enforcement of creditors' rights generally and by
general principles of equity, (c) all balance sheets, profit and loss
statements, and other financial statements and other information furnished
to the Bank in connection with the Liabilities are accurate and fairly
reflect the financial condition of the Persons to which they apply on
their effective dates, including contingent liabilities of every type,
which financial condition has not changed materially and adversely since
those dates, (d) no litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) is pending
or threatened against it, and no other event has occurred which may in any
one case or in the aggregate materially adversely affect it or any of its
Subsidiaries' financial condition, properties, business, affairs or
operations other than litigation, claims, or other events, if any, that
have been disclosed to and acknowledged by the Bank in writing, (e) all of
its tax returns and reports that are or were required to be filed, have
been filed, and all taxes, assessments and other governmental charges have
been paid in full, except those presently being contested by it in good
faith and for which adequate reserves have been provided, (f) it is not an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended, (g)
it is not a "holding company", or a "subsidiary company" of a "holding
company" or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended, (h) there are no defenses or
counterclaims, offsets or adverse claims, demands or actions of any kind,
personal or otherwise, that it could assert with respect to this agreement
or the Credit Facilities, (i) it owns, or is licensed to use, all
trademarks, trade names, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted, and (j)
no part of the proceeds of the Credit Facilities will be used for
"purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System of the United States (the "BOARD")
as now and from time to time hereafter in effect or for any purpose which
violates the provisions of any regulations of the Board or any other Legal
Requirement. The Borrower, other than a natural Person, further represents
that: (a) it is duly organized and validly existing under the laws of the
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state where it is organized and is in good standing in its state of
organization and each state where it is doing business, and (b) the
execution and delivery of this agreement and the other Related Documents
to which it is a party and the performance of the obligations they impose
(i) are within its powers, (ii) have been duly authorized by all necessary
action of its governing body, and (iii) do not contravene the terms of its
Organizational Documents or other agreement or document governing its
affairs.
7. DEFAULT/REMEDIES. If any of the Credit Facilities is not paid at maturity,
whether by acceleration or otherwise, or if a default by anyone occurs
under the terms of this agreement, the Notes or any other Related
Documents, then the Bank shall have all of the rights and remedies
provided by any law, equity or agreement.
8. MISCELLANEOUS.
8.1 NOTICE. Any notices and demands under or related to this agreement
shall be in writing and delivered to the intended party at its
address stated in this agreement, and if to the Bank, at its main
office if no other address of the Bank is specified in this
agreement, by one of the following means: (a) by hand; (b) by a
nationally recognized overnight courier service; or (c) by certified
mail, postage prepaid, with return receipt requested. Notice shall
be deemed given: (a) upon receipt if delivered by hand; (b) on the
Delivery Day after the day of deposit with a nationally recognized
courier service; or (c) on the third Delivery Day after the notice
is deposited in the mail. "DELIVERY DAY" means a day other than a
Saturday, a Sunday or any other day on which national banking
associations are authorized to be closed. Any party may change its
address for purposes of the receipt of notices and demands by giving
notice of the change in the manner provided in this provision.
8.2 NO WAIVER. No delay on the part of the Bank in the exercise of any
right or remedy waives that right or remedy. No single or partial
exercise by the Bank of any right or remedy precludes any other
future exercise of it or the exercise of any other right or remedy.
The making of an advance during the existence of any default or
subsequent to the occurrence of a default or when all conditions
precedent have not been met shall not constitute a waiver of the
default or condition precedent. No waiver or indulgence by the Bank
of any default is effective unless it is in writing and signed by
the Bank, nor shall a waiver on one occasion bar or waive that right
on any future occasion.
8.3 INTEGRATION. This agreement, the Notes, and the other Related
Documents embody the entire agreement and understanding between the
Borrower and the Bank and supersede all prior agreements and
understandings relating to their subject matter. If any one or more
of the obligations of the Borrower under this agreement or the Notes
is invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining obligations
of the Borrower shall not in any way be affected or impaired, and
the invalidity, illegality or unenforceability in one jurisdiction
shall not affect the validity, legality or enforceability of the
obligations of the Borrower under this agreement, the Notes and the
other Related Documents in any other jurisdiction.
8.4 JOINT AND SEVERAL LIABILITY. Each party executing this agreement as
the Borrower is individually, jointly and severally (solidarily)
liable under this agreement.
8.5 GOVERNING LAW AND VENUE. This agreement shall be governed by and
construed in accordance with the laws of the State of Louisiana
(without giving effect to its laws of conflicts). The Borrower
agrees that any legal action or proceeding with respect to any of
its obligations under this agreement may be brought by the Bank in
any state or federal court located in the State of Louisiana, as the
Bank in its sole discretion may elect. By the execution and delivery
of this agreement, the Borrower submits to and accepts, for itself
and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of those courts. The Borrower waives any
claim that the State of Louisiana is not a convenient forum or the
proper venue for any such suit, action or proceeding.
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8.6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The Borrower understands
and agrees that in extending the Credit Facilities, the Bank is
relying on all representations, warranties, and covenants made by
the Borrower in this agreement or in any certificate or other
instrument delivered by the Borrower to the Bank under this
agreement or in any of the other Related Documents. The Borrower
further agrees that regardless of any investigation made by the
Bank, all such representations, warranties and covenants will
survive the making of the Credit Facilities and delivery to the Bank
of this agreement, shall be continuing in nature, and shall remain
in full force and effect until such time as the Liabilities shall be
paid in full.
8.7 NON-LIABILITY OF THE BANK. The relationship between the Borrower and
the Bank created by this agreement is strictly a debtor and creditor
relationship and not fiduciary in nature, nor is the relationship to
be construed as creating any partnership or joint venture between
the Bank and the Borrower. The Borrower is exercising its own
judgment with respect to its business. All information supplied to
the Bank is for the Bank's protection only and no other party is
entitled to rely on such information. There is no duty for Bank to
review, inspect, supervise or inform the Borrower of any matter with
respect to the Borrower's business. The Bank and the Borrower intend
that the Bank may reasonably rely on all information supplied by the
Borrower to the Bank, together with all representations and
warranties given by the Borrower to the Bank, without investigation
or confirmation by the Bank and that any investigation or failure to
investigate will not diminish the Bank's right to so rely.
8.8 INDEMNIFICATION OF THE BANK. The Borrower agrees to indemnify,
defend and hold the Bank, its parent companies, Subsidiaries,
Affiliates, their respective successors and assigns and each of
their respective shareholders, directors, officers, employees and
agents (collectively, the "INDEMNIFIED PERSONS") harmless from any
and against any and all loss, liability, obligation, damage,
penalty, judgment, claim, deficiency, expense, interest, penalties,
attorneys' fees (including the fees and expenses of any attorneys
engaged by the Indemnified Person) and amounts paid in settlement
("CLAIMS") to which any Indemnified Person may become subject
arising out of or relating to the Credit Facilities, the Liabilities
under this agreement or any other Related Documents or the
Collateral, except to the limited extent that the Claims are
proximately caused by the Indemnified Person's gross negligence or
willful misconduct. The indemnification provided for in this
paragraph shall survive the termination of this agreement and shall
not be affected by the presence, absence or amount of or the payment
or nonpayment of any claim under, any insurance.
8.9 COUNTERPARTS. This agreement may be executed in multiple
counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts, taken together, shall
constitute one and the same agreement.
8.10 ADVICE OF COUNSEL. The Borrower acknowledges that it has been
advised by counsel, or had the opportunity to be advised by counsel,
in the negotiation, execution and delivery of this agreement and any
other Related Documents.
8.11 RECOVERY OF ADDITIONAL COSTS. If the imposition of or any change in
any Legal Requirement, or the interpretation or application of any
thereof by any court or administrative or governmental authority
(including any request or policy not having the force of law) shall
impose, modify, or make applicable any taxes (except federal, state,
or local income or franchise taxes imposed on the Bank), reserve
requirements, capital adequacy requirements, Federal Deposit
Insurance Corporation (FDIC) deposit insurance premiums or
assessments, or other obligations which would (A) increase the cost
to the Bank for extending, maintaining or funding the Credit
Facilities, (B) reduce the amounts payable to the Bank under the
Credit Facilities, or (C) reduce the rate of return on the Bank's
capital as a consequence of the Bank's obligations with respect to
the Credit Facilities, then the Borrower agrees to pay the Bank such
additional amounts as will compensate the Bank therefor, within five
(5) days after the Bank's written demand for such payment. The
Bank's demand shall be accompanied by an explanation of such
imposition or charge and a calculation in reasonable detail of the
additional amounts payable by the Borrower, which explanation and
calculations shall be conclusive in the absence of manifest error.
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8.12 EXPENSES. The Borrower agrees to pay or reimburse the Bank for all
its out-of-pocket costs and expenses and reasonable attorneys' fees
(including the fees of in-house counsel) incurred in connection with
the development, preparation and execution of, and in connection
with the enforcement or preservation of any rights under, this
agreement, any amendment, supplement, or modification thereto, and
any other Related Documents. These costs and expenses include
without limitation any costs or expenses incurred by the Bank in any
bankruptcy, reorganization, insolvency or other similar proceeding.
9. USA PATRIOT ACT NOTIFICATION. The following notification is provided to
the Borrower pursuant to Section 326 of the USA Patriot Act of 2001, 31
U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help
the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain,
verify, and record information that identifies each Person that opens an
account, including any deposit account, treasury management account, loan,
other extension of credit, or other financial services product. What this
means for the Borrower: When the Borrower opens an account, if it is an
individual the Bank will ask for its name, taxpayer identification number,
residential address, date of birth, and other information that will allow
the Bank to identify it, and, if it is not an individual the Bank will ask
for its name, taxpayer identification number, business address, and other
information that will allow the Bank to identify it. The Bank may also
ask, if the Borrower is an individual, to see its driver's license or
other identifying documents, and if it is not an individual, to see its
Organizational Documents or other identifying documents.
10. WAIVER OF SPECIAL DAMAGES. THE BORROWER WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER
FROM THE BANK IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES.
11. JURY WAIVER. THE BORROWER AND THE BANK HEREBY VOLUNTARILY, KNOWINGLY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE
IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE)
BETWEEN THE BORROWER AND THE BANK ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO
PROVIDE THE FINANCING DESCRIBED HEREIN.
ADDRESS(ES) FOR NOTICES: BORROWER:
0000 Xxxxxxx 00 Xxxxxxxxxx New Orleans, L.L.C.
Xxxxxxxxx, XX 00000
By: Blackwater Midstream Corp., Manager
Attn: By:
------------------------------ -----------------------------------
-----------------------------------
Printed Name Title
Date Signed:
--------------------------
ADDRESS FOR NOTICES: BANK:
000 Xx. Xxxxxxx Xxxxxx XXXxxxxx Chase Bank, N.A.
Xxx Xxxxxxx, XX 00000
Attn: By:
------------------------------ -----------------------------------
-----------------------------------
Printed Name Title
Date Signed:
--------------------------
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