EXECUTION COUNTERPART
REVOLVING CREDIT AGREEMENT
DATED AS OF MAY 16, 2005
AMONG
NORTHERN BORDER PIPELINE COMPANY,
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
and
SUNTRUST BANK
as Syndication Agent
XXXXXX XXXXXX FINANCING, INC.,
BARCLAYS BANK PLC,
and
CITIBANK, N.A.,
as Co-Documentation Agents
----------
WACHOVIA CAPITAL MARKETS, LLC
and
SUNTRUST CAPITAL MARKETS, INC.,
as Co-Lead Arrangers and Book Managers
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; CONSTRUCTION.................................. 1
Section 1.1. Definitions........................................... 1
Section 1.2. Classifications of Loans and Borrowings............... 18
Section 1.3. Accounting Terms and Determination.................... 18
Section 1.4. Terms Generally....................................... 19
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS........................ 19
Section 2.1. General Description of Facilities..................... 19
Section 2.2. Revolving Loans....................................... 20
Section 2.3. Procedure for Revolving Borrowings.................... 20
Section 2.4. Swingline Commitment.................................. 20
Section 2.5. Funding of Borrowings................................. 22
Section 2.6. Interest Elections.................................... 22
Section 2.7. Optional Reduction and Termination of Commitments..... 23
Section 2.8. Repayment of Loans.................................... 24
Section 2.9. Evidence of Indebtedness.............................. 24
Section 2.10. Prepayments........................................... 25
Section 2.11. Interest on Loans..................................... 25
Section 2.12. Fees.................................................. 26
Section 2.13. Computation of Interest and Fees...................... 27
Section 2.14. Inability to Determine Interest Rates................. 27
Section 2.15. Illegality............................................ 28
Section 2.16. Increased Costs....................................... 28
Section 2.17. Funding Indemnity..................................... 29
Section 2.18. Taxes................................................. 30
Section 2.19. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs................................ 31
Section 2.20. Letters of Credit..................................... 33
Section 2.21. Increase of Commitments; Additional Lenders........... 37
Section 2.22. Mitigation of Obligations............................. 38
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT........ 39
Section 3.1. Conditions To Effectiveness........................... 39
Section 3.2. Each Credit Event..................................... 40
Section 3.3. Delivery of Documents................................. 41
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................. 41
Section 4.1. Existence; Power...................................... 41
Section 4.2. Organizational Power; Authorization................... 41
Section 4.3. Governmental Approvals; No Conflicts.................. 41
Section 4.4. Financial Statements.................................. 42
Section 4.5. Litigation and Environmental Matters.................. 42
Section 4.6. Compliance with Laws and Agreements................... 42
Section 4.7. Investment Company Act, Etc. ......................... 42
Section 4.8. Taxes................................................. 42
Section 4.9. Margin Regulations.................................... 43
Section 4.10. ERISA................................................. 43
Section 4.11. Ownership of Property................................. 43
Section 4.12. Disclosure............................................ 44
Section 4.13. Labor Relations....................................... 44
Section 4.14. Subsidiaries.......................................... 44
Section 4.15. Insolvency............................................ 44
Section 4.16. OFAC.................................................. 44
Section 4.17. Patriot Act........................................... 45
ARTICLE V AFFIRMATIVE COVENANTS...................................... 45
Section 5.1. Financial Statements and Other Information............ 45
Section 5.2. Notices of Material Events............................ 46
Section 5.3. Existence; Conduct of Business........................ 47
Section 5.4. Compliance with Laws, Etc. ........................... 47
Section 5.5. Payment of Obligations................................ 47
Section 5.6. Books and Records..................................... 47
Section 5.7. Visitation, Inspection, Etc. ......................... 48
Section 5.8. Maintenance of Properties; Insurance.................. 49
Section 5.9. Use of Proceeds and Letters of Credit................. 49
Section 5.10. Pari Passu Status..................................... 49
Section 5.11. Maintenance of Tax Status............................. 49
Section 5.12. Maintenance of Tariff................................. 49
ARTICLE VI FINANCIAL COVENANTS........................................ 49
Section 6.1. Leverage Ratio........................................ 50
Section 6.2. Interest Coverage Ratio............................... 50
ARTICLE VII NEGATIVE COVENANTS......................................... 50
Section 7.1. Indebtedness.......................................... 50
Section 7.2. Negative Pledge....................................... 50
Section 7.3. Fundamental Changes................................... 51
Section 7.4. Investments, Loans, Etc. ............................. 52
Section 7.5. Restricted Payments................................... 53
Section 7.7. Transactions with Affiliates.......................... 53
Section 7.8. Restrictive Agreements................................ 53
Section 7.9. Government Regulations................................ 54
Section 7.10. Hedging Transactions.................................. 54
Section 7.11. Accounting Changes.................................... 54
Section 7.12. Restrictions on Agreements Governing Indebtedness..... 54
Section 7.13. Certain Amendments to Cash Distribution Policies
and Borrower Partnership Agreement................. 54
ARTICLE VIII EVENTS OF DEFAULT.......................................... 55
ii
Section 8.1. Events of Default..................................... 55
ARTICLE IX THE ADMINISTRATIVE AGENT................................... 57
Section 9.1. Appointment of Administrative Agent................... 57
Section 9.2. Nature of Duties of Administrative Agent.............. 58
Section 9.3. Lack of Reliance on the Administrative Agent.......... 59
Section 9.4. Certain Rights of the Administrative Agent............ 59
Section 9.5. Reliance by Administrative Agent...................... 59
Section 9.6. The Administrative Agent in its Individual Capacity... 59
Section 9.7. Successor Administrative Agent........................ 60
Section 9.8. Authorization to Execute other Loan Documents......... 60
Section 9.9. Syndication Agent and Co-Documentation Agents......... 60
ARTICLE X MISCELLANEOUS.............................................. 61
Section 10.1. Notices............................................... 61
Section 10.2. Waiver; Amendments.................................... 62
Section 10.3. Expenses; Indemnification............................. 63
Section 10.4. Successors and Assigns................................ 65
Section 10.5. Governing Law; Jurisdiction; Consent to
Service of Process................................. 68
Section 10.6. WAIVER OF JURY TRIAL.................................. 69
Section 10.7. Right of Setoff....................................... 69
Section 10.8. Counterparts; Integration............................. 70
Section 10.9. Survival.............................................. 70
Section 10.10. Severability.......................................... 70
Section 10.11. Confidentiality....................................... 70
Section 10.12. Interest Rate Limitation.............................. 71
Section 10.13. Waiver of Effect of Corporate Seal.................... 71
Section 10.15. No General Partner Liability.......................... 72
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule II Commitment Amounts
Schedule 4.5 - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule 7.7 - Transactions with Affiliates
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.4 - Form of Notice of Swingline Borrowing
Exhibit 2.6 - Form of Notice of Continuation/Conversion
iii
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate
Exhibit 3.1(b)(vi) - Form of Officer's Certificate
Exhibit 5.1(c) - Form of Compliance Certificate
iv
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered
into as of May 16, 2005, by and among NORTHERN BORDER PIPELINE COMPANY., a Texas
general partnership (the "Borrower"), the several banks and other financial
institutions and lenders from time to time party hereto (the "Lenders"),
WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent for
the Lenders (the "Administrative Agent"), as issuing bank (the "Issuing Bank")
and as swingline lender (the "Swingline Lender"), SUNTRUST BANK, as syndication
agent (the "Syndication Agent") and XXXXXX XXXXXX FINANCING, INC., BARCLAYS BANK
PLC, and CITIBANK, N.A., as Co-Documentation Agents.
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders establish a
$175,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders, the Issuing Bank and the Swingline Lender to the extent of their
respective Commitments as defined herein, are willing severally to establish the
requested revolving credit facility, letter of credit subfacility and the
swingline subfacility in favor of the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders, the Administrative Agent,
the Issuing Bank and the Swingline Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein specified
(to be equally applicable to both the singular and plural forms of the terms
defined):
"Additional Lender" shall have the meaning given to such term in
Section 2.21.
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar
Reserve Percentage.
"Administrative Agent" shall have the meaning assigned to such term in
the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"Affiliate" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For the purposes of
this definition, "Control" shall mean the power, directly or indirectly, to
direct or cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by control or otherwise.
The terms "Controlling", "Controlled by", and "under common Control with" have
the meanings correlative thereto.
"Aggregate Revolving Commitment Amount" shall mean the aggregate
principal amount of the Aggregate Revolving Commitments from time to time. On
the Closing Date, the Aggregate Revolving Commitment Amount equals $175,000,000.
"Aggregate Revolving Commitments" shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" shall mean, as of any date, with respect to all
Revolving Loans outstanding on any date or the letter of credit fee, the
percentage per annum determined by reference to the applicable Rating Category
from time to time in effect as set forth on Schedule I; provided, that a change
in the Applicable Margin resulting from a change in the Rating Category shall be
effective on the day on which either rating agency changes its rating and shall
continue until the day prior to the day that a further change becomes effective.
The Applicable Margin as of the Closing Date shall be at Level I as set forth on
Schedule I.
"Applicable Percentage" shall mean, as of any date, with respect to
the facility fee as of any date, the percentage per annum determined by
reference to the applicable Rating Category as set forth on Schedule I;
provided, that a change in the Applicable Percentage resulting from a change in
the Rating Category shall be effective on the day on which either rating agency
changes its rating and shall continue until the day prior to the day that a
further change becomes effective. Notwithstanding the foregoing, the Applicable
Percentage for the facility fee as of the Closing Date shall be at Level III as
set forth on Schedule I.
"Approved Fund" shall mean any Person (other than a natural Person)
that is (or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary
course of its business and that is administered or managed by (i) a Lender, (ii)
an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by
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Section 10.4(b)) and accepted by the Administrative Agent, in the form of
Exhibit C attached hereto or any other form approved by the Administrative
Agent.
"Availability Period" shall mean the period from the Closing Date to
the Revolving Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds Rate,
as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"Borrower" shall have the meaning assigned to such term in the opening
paragraph hereof.
"Borrower Partnership Agreement" means the General Partnership
Agreement relating to the formation of Borrower, dated as of March 9, 1978 as
amended, supplemented, restated or otherwise modified from time to time.
"Borrowing" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in the case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia and New York, New York
are authorized or required by law to close and (ii) if such day relates to a
Borrowing of, a payment or prepayment of principal or interest on, a conversion
of or into, or an Interest Period for, a Eurodollar Loan or a notice with
respect to any of the foregoing, any day on which dealings in Dollars are
carried on in the London interbank market.
"Capital Lease Obligations" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease (or other
arrangement conveying the right to use) of real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" shall mean any non-redeemable capital stock (or in the
case of a partnership or limited liability company, the partners' or members'
equivalent equity interest) of the Borrower or any of its Subsidiaries (to the
extent issued to a Person other than the Borrower), whether common or preferred.
"Change in Control" shall mean (i) the failure of Northern Border
Partners, directly or indirectly through one or more of its wholly owned
Subsidiaries, to own as a general
3
partner, free and clear of all Liens, more than 50% of the partnership interests
in Borrower or (ii) the failure of ONEOK, Inc. directly, or indirectly, to own,
free and clear of all Liens, general partner interests in Partners and the
Intermediate Partnership such that the aggregate voting rights of such ONEOK,
Inc. is greater than 50% of the outstanding voting rights of all general
partners of Northern Border Partners and the Intermediate Partnership.
"Change in Law" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.16(b), by such Lender's or the
Issuing Bank's parent corporation, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment or a Swingline Commitment.
"Closing Date" shall mean the date on which the conditions precedent
set forth in Section 3.1 and Section 3.2 have been satisfied or waived in
accordance with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Commitment" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"Compliance Certificate" shall mean a certificate from the principal
executive officer, the principal financial officer or the treasurer of the
Operator in the form of, and containing the certifications set forth in, the
certificate attached hereto as Exhibit 5.1(c).
"Consolidated EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (i) Consolidated Net
Income for such period plus (ii) to the extent deducted in determining
Consolidated Net Income for such period, (A) Consolidated Interest Expense, (B)
income tax expense determined on a consolidated basis in accordance with GAAP,
(C) depreciation and amortization determined on a consolidated basis in
accordance with GAAP, and (D) all other non-cash charges, determined in each
case on a consolidated basis in accordance with GAAP for such period.
"Consolidated Interest Expense" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total interest expense, including without limitation
the interest component of any payments in respect of Capital Lease Obligations
capitalized or expensed during such period (whether or not actually paid during
such period) plus (ii) the net amount payable (or minus the net amount
receivable) under any Hedging Transaction (relating to interest rates only)
during such period (whether or not actually paid or received during such
period).
4
"Consolidated Net Income" shall mean, for the Borrower and its
Subsidiaries for any period, the net income (or loss) of the Borrower and its
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP, including without limitation any income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any of its Subsidiaries on the date that such
Person's assets are acquired by the Borrower or any of its Subsidiaries, but
excluding therefrom (to the extent otherwise included therein) (i) any
extraordinary gains or losses, (ii) any gains attributable to write-ups of
assets, and (iii) any equity interest of the Borrower or any Subsidiary of the
Borrower in the unremitted earnings of any Person that is not a Subsidiary.
"Consolidated Total Debt" shall mean, as of any date, all Indebtedness
of the Borrower and its Subsidiaries measured on a consolidated basis as of such
date, but excluding Indebtedness of the type described in subsection (xi) of the
definition thereto.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property in
which it has an interest is bound.
"Default" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section
2.11(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
"Eligible Assignee" shall mean (i) a Lender; (ii) an Affiliate of a
Lender; (iii) an Approved Fund; and (iv) any other Person (other than a natural
Person) approved by the Administrative Agent, the Issuing Bank, and unless an
Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed). If the consent of the
Borrower to an assignment or to an Eligible Assignee is required hereunder
(including a consent to an assignment which does not meet the minimum assignment
thresholds specified in paragraph (b) of Section 10.4), the Borrower shall be
deemed to have given its consent five Business Days after the date notice
thereof has actually been delivered by the assigning Lender (through the
Administrative Agent) to the Borrower, unless such consent is expressly refused
by the Borrower prior to such fifth Business Day.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (i) any actual or alleged
violation of any Environmental Law, (ii) the generation, use, handling,
transportation,
5
storage, treatment or disposal of any Hazardous Materials, (iii) any actual or
alleged exposure to any Hazardous Materials, (iv) the Release or threatened
Release of any Hazardous Materials or (v) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean each "person" (as defined in Section 3(a)
of ERISA) (whether or not incorporated) which is, or has been within the past
five years, a member of the Borrower's controlled group (within the meaning of
PBGC regulation Section 4001.2).
"ERISA Event" shall mean (i) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (ii)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (iii) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan; (iv) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (v) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (vi) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (vii) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, bears interest at
a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of the
maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Event of Default" shall have the meaning provided in Article VIII.
6
"Excluded Taxes" shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which any Lender is located and (c) in the case of
a Foreign Lender, any withholding tax that (i) is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new lending office, other than taxes that
have accrued prior to the designation of such lending office that are otherwise
not Excluded Taxes, and (iii) is attributable to such Foreign Lender's failure
to comply with Section 2.18(e).
"Existing Credit Agreement" shall mean that certain Revolving Credit
Agreement, dated as of May 16, 2002, as amended, by and among the Borrower, the
lenders from time to time party thereto and Bank One, National Association, as
administrative agent.
"Existing Lenders" shall mean the lenders party to the Existing Credit
Agreement as of the date hereof.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% 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.
"Fee Letters" shall mean, collectively, (i) that certain fee letter,
dated as of April 14, 2005, executed by Wachovia Bank, National Association and
Wachovia Capital Markets, LLC and accepted by Borrower and Northern Border
Partners and (ii) that certain fee letter, dated as of April 14, 2005, executed
by SunTrust Capital Markets, Inc. and SunTrust Bank and accepted by Borrower and
Northern Border Partners.
"FERC" shall mean the Federal Energy Regulatory Commission and any
successor agency or commission.
"Fiscal Quarter" shall mean any fiscal quarter of the Borrower.
"Fiscal Year" shall mean any fiscal year of the Borrower.
"Foreign Lender" shall mean any Lender that is not a United States
person under Section 7701(a)(3) of the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is organized under
the laws of a jurisdiction other than one of the fifty states of the United
States or the District of Columbia.
7
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of Section
1.3.
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (iii)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (iv) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or any fraction or by-product thereof, asbestos
or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedging Obligations" of any Person shall mean any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired under (i) any and all Hedging
Transactions, (ii) any and all cancellations, buy backs, reversals, terminations
or assignments of any Hedging Transactions and (iii) any and all renewals,
extensions and modifications of any Hedging Transactions and any and all
substitutions for any Hedging Transactions.
"Hedging Transaction" of any Person shall mean any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into by such Person that is a rate swap, basis swap, forward rate transaction,
commodity swap, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collateral transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or
8
any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.
"Indebtedness" of any Person shall mean, without duplication (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business on terms customary in the trade), (iv) all obligations of such
Person under any conditional sale or other title retention agreement(s) relating
to property acquired by such Person, (v) all Capital Lease Obligations of such
Person, (vi) all obligations, contingent or otherwise, of such Person in respect
of letters of credit, acceptances or similar extensions of credit, (vii) all
Guarantees of such Person of the type of Indebtedness described in clauses (i)
through (vi) above, (viii) all Indebtedness of a third party secured by any Lien
granted by such Person on property owned by such Person, whether or not such
Indebtedness has been assumed by such Person, (ix) all obligations of such
Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any common stock of such Person, (x) Off-Balance Sheet
Liabilities and (xi) all Hedging Obligations. The Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, except to the extent that the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indentures" means the Indenture, 7.75% Senior Notes due 2009, dated
as of August 17, 1999; the Indenture, 7.5% Senior Notes due 2021, dated as of
September 17, 2001; and the Indenture, 6.25% Senior Notes due 2007, dated as of
April 29, 2002.
"Information Memorandum" shall mean the Confidential Information
Memorandum dated April 2005 relating to the Borrower and the transactions
contemplated by this Agreement and the other Loan Documents.
"Interest Coverage Ratio" shall mean, as of any date, the ratio of (i)
Consolidated EBITDA to (ii) Consolidated Interest Expense, in each case for the
four consecutive Fiscal Quarters ending on or immediately prior to such date.
"Interest Period" shall mean with respect to (i) any Swingline
Borrowing, such period as the Swingline Lender and the Borrower shall mutually
agree and (ii) any Eurodollar Borrowing, a period of one, two, three or six
months; provided, that:
(i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring thereafter
in respect of such Borrowing shall commence on the day on which the next
preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless such Business Day falls in another calendar month, in
which case such Interest Period would end on the next preceding Business
Day;
9
(iii) any Interest Period which begins on the last Business Day of a
calendar month or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period shall end on
the last Business Day of such calendar month; and
(iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"Intermediate Partnership" shall mean Northern Border Intermediate
Limited Partnership, a Delaware limited partnership.
"Issuing Bank" shall mean Wachovia Bank, National Association, or any
other Lender, each in its capacity as an issuer of Letters of Credit pursuant to
Section 2.20.
"LC Commitment" shall mean that portion of the Aggregate Revolving
Commitment Amount that may be used by the Borrower for the issuance of Letters
of Credit in an aggregate face amount not to exceed $50,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender and each Additional Lender that joins this Agreement pursuant to Section
2.21
"Letter of Credit" shall mean any stand-by letter of credit issued
pursuant to Section 2.20 by the Issuing Bank for the account of the Borrower
pursuant to the LC Commitment.
"Leverage Ratio" shall mean, as of any date, the ratio of (i)
Consolidated Total Debt as of such date to (ii) Consolidated EBITDA for the four
consecutive Fiscal Quarters ending on or immediately prior to such date.
"LIBOR" shall mean, for any applicable Interest Period with respect to
any Eurodollar Loan, the British Bankers' Association Interest Settlement Rate
per annum for deposits in Dollars for a period equal to such Interest Period
appearing on the display designated as Page 3750 on the Dow Xxxxx Markets
Service (or such other page on that service or such other service designated by
the British Bankers' Association for the display of such Association's Interest
Settlement Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on
the day that is two Business Days prior to the first day of the Interest Period
or if such Page 3750 is
10
unavailable for any reason at such time, the rate which appears on the Reuters
Screen ISDA Page as of such date and such time; provided, that if the
Administrative Agent determines that the relevant foregoing sources are
unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent two (2)
Business Days preceding the first day of such Interest Period by leading banks
in the London interbank market as of 10:00 a.m. (New York time) for delivery on
the first day of such Interest Period, for the number of days comprised therein
and in an amount comparable to the amount of the Eurodollar Loan of the
Administrative Agent.
"Lien" shall mean (i) any mortgage, deed of trust, deed to secure
debt, pledge, security interest, lien (statutory or otherwise), charge, claim,
easement or encumbrance, hypothecation, assignment, deposit arrangement, or (ii)
any preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever (including any conditional sale or other title
retention agreement and any capital lease having the same economic effect as any
of the foregoing).
"Loan Documents" shall mean, collectively, this Agreement, the Notes
(if any), the LC Documents, all Notices of Borrowing, all Notices of
Conversion/Continuation, all Compliance Certificates and any and all other
instruments, agreements, documents and writings executed in connection with any
of the foregoing.
"Loans" shall mean all Revolving Loans and Swingline Loans in the
aggregate or any of them, as the context shall require.
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singularly or in conjunction with any other event or events, act or
acts, condition or conditions, occurrence or occurrences whether or not related,
a material adverse change in, or a material adverse effect on, (i) the business,
results of operations, financial condition, assets, or liabilities of the
Borrower or of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform any of its obligations under the Loan
Documents, (iii) the rights and remedies of the Administrative Agent, the
Issuing Bank, Swingline Lender, and the Lenders under any of the Loan Documents
evidencing, governing or securing the Obligations or (iv) the legality, validity
or enforceability of any of the Loan Documents evidencing, governing or securing
the Obligations.
"Material Indebtedness" shall mean Indebtedness (other than the Loans
and Letters of Credit) and Hedging Obligations of the Borrower or any of its
Subsidiaries, individually or in an aggregate principal amount exceeding
$15,000,000. For purposes of determining the amount of attributed Indebtedness
from Hedging Obligations, the "principal amount" of any Hedging Obligations at
any time shall be the Net Xxxx-to-Market Exposure of such Hedging Obligations.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
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"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Xxxx-to-Market Exposure" of any Person shall mean, as of any date
of determination with respect to any Hedging Obligation, the excess (if any) of
all unrealized losses over all unrealized profits of such Person arising from
such Hedging Obligation. "Unrealized losses" shall mean the fair market value of
the cost to such Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of the date of determination (assuming the Hedging
Transaction were to be terminated as of that date), and "unrealized profits"
means the fair market value of the gain to such Person of replacing such Hedging
Transaction as of the date of determination (assuming such Hedging Transaction
were to be terminated as of that date).
"Northern Border Partners" shall mean Northern Border Partners, L.P.,
a Delaware limited partnership.
"Northern Border Partners Credit Agreement" shall mean that certain
Revolving Credit Agreement, dated as of the date hereof, by and among Northern
Border Partners, Intermediate Partnership, the lenders from time to time parties
thereto, and Wachovia Bank, National Association, as administrative agent, as
amended, supplemented restated or otherwise modified from time to time.
"Notes" shall mean, collectively, the Revolving Credit Notes and the
Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.6(b).
"Notice of Revolving Borrowing" shall have the meaning as set forth in
Section 2.3.
"Notice of Swingline Borrowing" shall have the meaning as set forth in
Section 2.4.
"Obligations" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including any
interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
fees and expenses of counsel to the Administrative Agent, the Issuing Bank and
any Lender (including the Swingline Lender) incurred pursuant to this Agreement
or any other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter
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arising hereunder or thereunder, and all Hedging Obligations owed to the
Administrative Agent, any Lender or any of their Affiliates incurred in order to
limit interest rate or fee fluctuation with respect to the Loans and Letters of
Credit, and all obligations and liabilities incurred in connection with
collecting and enforcing the foregoing, together with all renewals, extensions,
modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions that do not create a liability on the
balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person.
"Operating Agreement" shall mean that certain operating agreement,
dated February 28, 1980, between the Borrower and Operator, as amended, modified
or supplemented from time to time.
"Operator" shall mean Northern Plains Natural Gas Company LLC, a
Delaware limited liability company, as provided for in Section 8 of the Borrower
Partnership Agreement, or such other Person as may be designated in accordance
with Section 8 of the Borrower Partnership Agreement.
"OSHA" shall mean the Occupational Safety and Health Act of 1970, as
amended from time to time, and any successor statute.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant" shall have the meaning set forth in Section 10.4(d).
"Partner" shall mean any one of Northern Border Intermediate Limited
Partnership and TC PipeLines Intermediate Limited Partnership, or any Person
substitute for any thereof as a partner pursuant to Section 10 of the Borrower
Partnership Agreement or which becomes a partner pursuant to Section 11 of the
Borrower Partnership Agreement.
"Partners' Capital" shall mean, at any time, the amount reflected as
"Partners' Capital" on a consolidated balance sheet of the Borrower and its
Subsidiaries at such time, prepared in accordance with GAAP.
"Payment Office" shall mean the office of the Administrative Agent
located at 000 Xxxxx Xxxxxxx Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000,
or such other location as to which the Administrative Agent shall have given
written notice to the Borrower and the other Lenders.
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"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"Permitted Encumbrances" shall mean:
(i) Liens imposed by law for taxes, assessments or other governmental
charges or levies not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP;
(ii) Liens of landlords, carriers, operators, warehousemen, mechanics,
and materialmen, statutory Liens of producers of hydrocarbons, and similar
Liens arising by operation of law, in each case incurred in the ordinary
course of business for amounts not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance, other social
security laws or regulations or other forms of governmental insurance or
benefits;
(iv) deposits to secure the performance of tenders, bids, contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature, in
each case entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal
proceeding that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(vi) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or materially
interfere with the ordinary conduct of business of the Borrower and its
Subsidiaries taken as a whole; and
(vii) Liens securing obligations of others, neither assumed nor
guaranteed by the Borrower nor on which it customarily pays interest,
existing upon real estate or rights in or relating to real estate acquired
by such Person for substation, metering station, compression station,
gathering line, transmission line, transportation line, distribution line
or right of way purposes, and any Liens reserved in leases for rent and for
compliance with the terms of the leases in the case of leasehold estates,
to the extent that any such Lien referred to in this clause (vii) does not
materially impair the use of the property.
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" shall mean:
14
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or
by any agency thereof to the extent such obligations are backed by the full
faith and credit of the United States), in each case maturing within one
year from the date of acquisition thereof;
(ii) commercial paper and auction rate securities having the highest
rating, at the time of acquisition thereof, of S&P or Moody's and in either
case maturing or having an auction date within six months from the date of
acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time deposits
maturing within 180 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the
laws of the United States or any state thereof which has a combined capital
and surplus and undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (i) above and entered
into with a financial institution satisfying the criteria described in
clause (iii) above; and
(v) mutual funds investing solely in any one or more of the Permitted
Investments described in clauses (i) through (iv) above.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"Pipeline" shall mean the Borrower's pipeline system and related
facilities extending from a point near Port of Xxxxxx, Montana, to a point near
North Hayden, Indiana, as it may hereafter be expanded and extended.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pro Rata Share" shall mean with respect to any Commitment of any
Lender at any time, a percentage, the numerator of which shall be such Lender's
Commitment (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, such Lender's Revolving Credit
Exposure), and the denominator of which shall be the sum of such Commitments of
all Lenders (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, all Revolving Credit Exposure of all
Lenders).
"PUHCA" shall mean the Public Utility Holding Company Act of 1935, as
amended, together with the rules and regulations promulgated thereunder.
15
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time, and
any successor regulations.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding more than
50% of the aggregate outstanding Revolving Commitments at such time or if the
Lenders have no Commitments outstanding, then Lenders holding more than 50% of
the Revolving Credit Exposure.
"Requirement of Law" for any Person shall mean the articles or
certificate of incorporation, bylaws, partnership certificate and agreement, or
limited liability company certificate of organization and agreement, as the case
may be, and other organizational and governing documents of such Person, and any
law, treaty, rule or regulation, or determination of a Governmental Authority,
in each case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Responsible Officer" shall mean any of the President, Vice President,
Finance and Treasurer or any vice president of the Operator or such other
representative of the Operator as may be designated in writing by any one of the
foregoing with the consent of the Administrative Agent, and, with respect to the
financial covenants only, the President, Vice President, Finance and Treasurer
or treasurer of the Operator.
"Restricted Payment" shall have the meaning set forth in Section 7.5.
"Revolving Commitment" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit and Swingline Loans in an aggregate principal
amount not exceeding the amount set forth with respect to such Lender on
Schedule II, as such schedule may be amended pursuant to Section 2.21, or in the
case of a Person becoming a Lender after the Closing Date through an assignment
of an existing Revolving Commitment, the amount of the assigned "Revolving
Commitment" as provided in the Assignment and Acceptance executed by such Person
as an assignee, as the same may be increased or deceased pursuant to terms
hereof.
"Revolving Commitment Termination Date" shall mean the earliest of (i)
May 16, 2010, (ii) the date on which the Revolving Commitments are terminated
pursuant to Section 2.7 and (iii) the date on which all amounts outstanding
under this Agreement have been declared or have automatically become due and
payable (whether by acceleration or otherwise).
16
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's Revolving
Loans, LC Exposure and Swingline Exposure.
"Revolving Credit Note" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit A.
"Revolving Loan" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's, a Division of the XxXxxx-Xxxx
Companies.
"Senior Notes" means the Borrower's Senior Notes issued pursuant to
the Indentures.
"Service Agreement" shall mean an agreement in substantially the form
of U.S. Shippers Service Agreement, and any other form of firm transportation
agreement, included in the Tariff, entered into between the Borrower and a
Shipper, as such agreements may be amended, modified or supplemented from time
to time.
"Shipper" shall mean any Person who is, at the time of such
characterization, a party to a Service Agreement with the Borrower for the
transportation of gas through the Pipeline.
"Subsidiary" shall mean, with respect to any Person (the "parent"),
any corporation, partnership, joint venture, limited liability company,
association or other entity 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 such date, as
well as any other corporation, partnership, joint venture, limited liability
company, association or other entity of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held.
Unless otherwise indicated, all references to "Subsidiary" hereunder shall mean
a Subsidiary of the Borrower.
"Swingline Commitment" shall mean the commitment of the Swingline
Lender to make Swingline Loans in an aggregate principal amount at any time
outstanding not to exceed $15,000,000.
"Swingline Exposure" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.4, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"Swingline Lender" shall mean Wachovia Bank, National Association, or
any other Lender that may agree to make Swingline Loans hereunder.
17
"Swingline Loan" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the Borrower
payable to the order of the Swingline Lender in the principal amount of the
Swingline Commitment, substantially the form of Exhibit B.
"Syndication Agent" shall mean SunTrust Bank, as Syndication Agent.
"Synthetic Lease" shall mean a lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease" by the
lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended and (ii) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property.
"Synthetic Lease Obligations" shall mean, with respect to any Person,
the sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases which are attributable to principal and, without duplication,
(ii) all rental and purchase price payment obligations of such Person under such
Synthetic Leases assuming such Person exercises the option to purchase the lease
property at the end of the lease term.
"Tariff" shall mean the FERC gas tariff of the Borrower stating the
terms and conditions applicable to the transportation of gas through the
Pipeline, such terms and conditions consisting of the compilation on file with
the FERC of Borrower's Rate Schedules, General terms and Conditions and related
forms of Service Agreement (as each of such terms is defined in said Tariff), as
amended and in effect from time to time.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Type", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan" or "Swingline Loan") or by Type (e.g. a "Eurodollar Loan" or
"Base Rate Loan") or by Class and Type (e.g. "Revolving Eurodollar Loan").
Borrowings also may be classified and referred to by Class (e.g. "Revolving
Borrowing") or by Type (e.g. "Eurodollar Borrowing") or by Class and Type (e.g.
" Revolving Eurodollar Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless otherwise
defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on
18
a basis consistent with the most recent audited consolidated financial statement
of the Borrower delivered pursuant to Section 5.1(a); provided, that if the
Borrower notifies the Administrative Agent that the Borrower wishes to amend any
covenant in Article VI to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Lenders wish to amend Article VI for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
SECTION 1.4. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall". In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, restated,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and "hereunder" and words
of similar import shall be construed to refer to this Agreement as a whole and
not to any particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles,
Sections, Exhibits and Schedules to this Agreement and (v) all references to a
specific time shall be construed to refer to the time in the city and state of
the Administrative Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to and upon
the terms and conditions herein set forth, (i) the Lenders hereby establish in
favor of the Borrower a revolving credit facility pursuant to which each Lender
severally agrees (to the extent of such Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the Issuing
Bank agrees to issue Letters of Credit in accordance with Section 2.20, (iii)
the Swingline Lender agrees to make Swingline Loans in accordance with Section
2.4 and (iv) each Lender agrees to purchase a participation interest in the
Letters of Credit and the Swingline Loans pursuant to the terms and conditions
hereof; provided, that in no event shall the aggregate principal amount of all
outstanding Revolving Loans, Swingline Loans and outstanding LC Exposure exceed
at any time the Aggregate Revolving Commitment Amount from time to time in
effect.
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SECTION 2.2. REVOLVING LOANS. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans, ratably in
proportion to its Pro Rata Share, to the Borrower, from time to time during the
Availability Period, in an aggregate principal amount outstanding at any time
that will not result in such Lender's Revolving Credit Exposure exceeding such
Lender's Revolving Commitment. During the Availability Period, the Borrower
shall be entitled to borrow, prepay and reborrow Revolving Loans in accordance
with the terms and conditions of this Agreement; provided, that the Borrower may
not borrow or reborrow should there exist a Default or Event of Default.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.
The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Revolving Borrowing
substantially in the form of Exhibit 2.3 (a "Notice of Revolving Borrowing") (x)
prior to 11:00 a.m. (New York time) on the requested date of each Base Rate
Borrowing and (y) prior to 11:00 a.m. (New York time) three (3) Business Days
prior to the requested date of each Eurodollar Borrowing. Each Notice of
Revolving Borrowing shall be irrevocable and shall specify: (i) the aggregate
principal amount of such Borrowing, (ii) the date of such Borrowing (which shall
be a Business Day), (iii) the Type of such Revolving Loan comprising such
Borrowing and (iv) in the case of a Eurodollar Borrowing, the duration of the
initial Interest Period applicable thereto (subject to the provisions of the
definition of Interest Period). Each Revolving Borrowing shall consist entirely
of Base Rate Loans or Eurodollar Loans, as the Borrower may request. The
aggregate principal amount of each Borrowing shall be not less than $5,000,000
or a larger multiple of $1,000,000; provided, that Base Rate Loans made pursuant
to Section 2.4 or Section 2.20(d) may be made in lesser amounts as provided
therein. At no time shall the total number of Eurodollar Borrowings outstanding
at any time exceed five. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall advise each
Lender of the details thereof and the amount of such Lender's Revolving Loan to
be made as part of the requested Revolving Borrowing.
SECTION 2.4. SWINGLINE COMMITMENT.
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower, from time to
time during the Availability Period, in an aggregate principal amount
outstanding at any time not to exceed the lesser of (i) the Swingline Commitment
then in effect and (ii) the difference between the Aggregate Revolving
Commitment Amount and the aggregate Revolving Credit Exposures of all Lenders;
provided, that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. The Borrower shall be entitled
to borrow, repay and reborrow Swingline Loans in accordance with the terms and
conditions of this Agreement.
(b) The Borrower shall give the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) of each Swingline Borrowing
substantially in the form of Exhibit 2.4 attached hereto ("Notice of Swingline
Borrowing") prior to 11:00 a.m. (New York time) on the requested date of each
Swingline Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and
shall specify: (i) the principal amount of such Swingline Loan, (ii) the date of
such Swingline Loan (which shall be a Business Day) and (iii) the account
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of the Borrower to which the proceeds of such Swingline Loan should be credited.
The Administrative Agent will promptly advise the Swingline Lender of each
Notice of Swingline Borrowing. Each Swingline Loan shall accrue interest at the
Base Rate or any other interest rate as agreed between the Borrower and the
Swingline Lender and shall have an Interest Period (subject to the definition
thereof) as agreed between the Borrower and the Swingline Lender. The aggregate
principal amount of each Swingline Loan shall be not less than $100,000 or a
larger multiple of $50,000, or such other minimum amounts agreed to by the
Swingline Lender and the Borrower. The Swingline Lender will make the proceeds
of each Swingline Loan available to the Borrower in Dollars in immediately
available funds at the account specified by the Borrower in the applicable
Notice of Swingline Borrowing not later than 1:00 p.m. (New York time) on the
requested date of such Swingline Loan.
(c) The Swingline Lender, at any time and from time to time in its
sole discretion, may, on behalf of the Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf), give a Notice
of Revolving Borrowing to the Administrative Agent requesting the Lenders
(including the Swingline Lender) to make Base Rate Loans in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Lender will make the
proceeds of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in accordance with
Section 2.5, which will be used solely for the repayment of such Swingline Loan.
(d) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
(e) Each Lender's obligation to make a Base Rate Loan pursuant to
Section 2.4(c) or to purchase the participating interests pursuant to Section
2.4(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline Lender shall be
entitled to recover such amount on demand from such Lender, together with
accrued interest thereon for each day from the date of demand thereof (i) at the
Federal Funds Rate until the second Business Day after such demand and (ii) at
the Base Rate at all times thereafter. Until such time as such Lender makes its
required payment,
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the Swingline Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of the unpaid participation for all purposes of the Loan
Documents. In addition, such Lender shall be deemed to have assigned any and all
payments made of principal and interest on its Loans and any other amounts due
to it hereunder, to the Swingline Lender to fund the amount of such Lender's
participation interest in such Swingline Loans that such Lender failed to fund
pursuant to this Section 2.4, until such amount has been purchased in full.
SECTION 2.5. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately available
funds by 1:00 p.m. (New York time) to the Administrative Agent at the Payment
Office; provided, that the Swingline Loans will be made as set forth in Section
2.4. The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained by the Borrower with
the Administrative Agent or at the Borrower's option, by effecting a wire
transfer of such amounts to an account designated by the Borrower to the
Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender (x) prior to 12:00 p.m. (New York time) on the requested date of each
Base Rate Borrowing and (y) prior to 5:00 p.m. (New York time) one (1) Business
Day prior to the date of a Eurodollar Borrowing in which such Lender is to
participate that such Lender will not make available to the Administrative Agent
such Lender's share of such Borrowing, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such
date, and the Administrative Agent, in reliance on such assumption, may make
available to the Borrower on such date a corresponding amount. If such
corresponding amount is not in fact made available to the Administrative Agent
by such Lender on the date of such Borrowing, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender
together with interest at the Federal Funds Rate until the second Business Day
after such demand and thereafter at the Base Rate. If such 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 together with interest at the rate specified for such Borrowing. Nothing
in this subsection shall be deemed to relieve any Lender from its obligation to
fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights
which the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on the basis
of their respective Pro Rata Shares. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each Lender shall
be obligated to make its Loans provided to be made by it hereunder, regardless
of the failure of any other Lender to make its Loans hereunder.
SECTION 2.6. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing, shall
have an initial Interest
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Period as specified in such Notice of Borrowing. Thereafter, the Borrower may
elect to convert such Borrowing into a different Type or to continue such
Borrowing, and in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section 2.6. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. This Section shall NOT apply to
Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section 2.6, the Borrower
shall give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in the form of
Exhibit 2.6 attached hereto (a "Notice of Conversion/Continuation") that is to
be converted or continued, as the case may be, (x) prior to 11:00 a.m. (New York
time) on the requested date of a conversion into a Base Rate Borrowing and (y)
prior to 11:00 a.m. (New York time) three (3) Business Days prior to a
continuation of or conversion into a Eurodollar Borrowing. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing
to which such Notice of Continuation/Conversion applies and if different options
are being elected with respect to different portions thereof, the portions
thereof that are to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) shall be
specified for each resulting Borrowing); (ii) the effective date of the election
made pursuant to such Notice of Continuation/Conversion, which shall be a
Business Day, (iii) whether the resulting Borrowing is to be a Base Rate
Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing is to
be a Eurodollar Borrowing, the Interest Period applicable thereto after giving
effect to such election, which shall be a period contemplated by the definition
of "Interest Period". If any such Notice of Continuation/Conversion requests a
Eurodollar Borrowing but does not specify an Interest Period, the Borrower shall
be deemed to have selected an Interest Period of one month. The principal amount
of any resulting Borrowing shall satisfy the minimum borrowing amount for
Eurodollar Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
SECTION 2.7. OPTIONAL REDUCTION AND TERMINATION OF COMMITMENTS.
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(a) Unless previously terminated, all Revolving Commitments, Swingline
Commitments and LC Commitments shall terminate on the Revolving Commitment
Termination Date.
(b) Upon at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative Agent
(which notice shall be irrevocable), the Borrower may reduce the Aggregate
Revolving Commitments in part or terminate the Aggregate Revolving Commitments
in whole; provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Lender, (ii)
any partial reduction pursuant to this Section 2.7 shall be in an amount of at
least $5,000,000 and any larger multiple of $1,000,000, and (iii) no such
reduction shall be permitted which would reduce the Aggregate Revolving
Commitment Amount to an amount less than the outstanding Revolving Credit
Exposures of all Lenders. Any such reduction in the Aggregate Revolving
Commitment Amount below the sum of the principal amount of the Swingline
Commitment and the LC Commitment shall result in a proportionate reduction
(rounded to the next lowest integral multiple of $100,000) in the Swingline
Commitment and the LC Commitment.
SECTION 2.8. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving Loans shall be
due and payable (together with accrued and unpaid interest thereon) on the
Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be due and
payable (together with accrued and unpaid interest thereon) on the earlier of
(i) the last day of the Interest Period applicable to such Borrowing and (ii)
the Revolving Commitment Termination Date.
SECTION 2.9. EVIDENCE OF INDEBTEDNESS. (a) Each Lender shall maintain
in accordance with its usual practice appropriate records evidencing the
Indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each continuation thereof pursuant
to Section 2.6, (iv) the date of each conversion of all or a portion thereof to
another Type pursuant to Section 2.6, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and amount
of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro Rata Share thereof. The entries made
in such records shall be prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded; provided, that the failure or
delay of any Lender or the Administrative Agent in maintaining or making entries
into any such record or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this Agreement.
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(b) At the request of any Lender (including the Swingline Lender) at
any time, the Borrower agrees that it will execute and deliver to such Lender a
Revolving Credit Note and, in the case of the Swingline Lender only, a Swingline
Note, payable to the order of such Lender.
SECTION 2.10. PREPAYMENTS.
(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing, in whole or in part, without premium or penalty,
by giving irrevocable written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent no later than (i) in the case of prepayment
of any Eurodollar Borrowing, 11:00 a.m. (New York time) not less than three (3)
Business Days prior to any such prepayment, (ii) in the case of any prepayment
of any Base Rate Borrowing, not less than one Business Day prior to the date of
such prepayment, and (iii) in the case of Swingline Borrowings, prior to 11:00
a.m. (New York time) on the date of such prepayment. Each such notice shall be
irrevocable and shall specify the proposed date of such prepayment and the
principal amount of each Borrowing or portion thereof to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender's Pro Rata Share of
any such prepayment. If such notice is given, the aggregate amount specified in
such notice shall be due and payable on the date designated in such notice,
together with accrued interest to such date on the amount so prepaid in
accordance with Section 2.11(d); provided, that if a Eurodollar Borrowing is
prepaid on a date other than the last day of an Interest Period applicable
thereto, the Borrower shall also pay all amounts required pursuant to Section
2.17. Each partial prepayment of any Loan (other than a Swingline Loan) shall be
in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type pursuant to Section 2.2 or in the case of a Swingline
Loan pursuant to Section 2.4. Each prepayment of a Borrowing shall be applied
ratably to the Loans comprising such Borrowing.
(b) If at any time the Revolving Credit Exposure of all Lenders
exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to
Section 2.7 or otherwise, the Borrower shall immediately repay Swingline Loans
and Revolving Loans in an amount equal to such excess, together with all accrued
and unpaid interest on such excess amount and any amounts due under Section
2.17. Each prepayment shall be applied first to the Swingline Loans to the full
extent thereof, second to the Base Rate Loans to the full extent thereof, and
finally to Eurodollar Loans to the full extent thereof. If after giving effect
to prepayment of all Swingline Loans and Revolving Loans, the Revolving Credit
Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the
Borrower shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Issuing Bank and the
Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees
thereon to be held as collateral for the LC Exposure. Such account shall be
administered in accordance with Section 2.20(g) hereof.
SECTION 2.11. INTEREST ON LOANS.
(a) The Borrower shall pay interest on each Base Rate Loan at the Base
Rate in effect from time to time and on each Eurodollar Loan at the Adjusted
LIBO Rate for the applicable Interest Period in effect for such Loan, plus, in
each case, the Applicable Margin in effect from time to time.
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(b) The Borrower shall pay interest on each Swingline Loan at the rate
applicable to such Loan pursuant to Section 2.4(b).
(c) While an Event of Default exists or after acceleration, at the
option of the Required Lenders, the Borrower shall pay interest ("Default
Interest") with respect to all Eurodollar Loans at the rate otherwise applicable
for the then-current Interest Period plus an additional 2% per annum until the
last day of such Interest Period, and thereafter, and with respect to all Base
Rate Loans (including all Swingline Loans) and all other Obligations hereunder
(other than Loans), at an all-in rate in effect for Base Rate Loans, plus an
additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each March, June, September and December
and on the Revolving Commitment Termination Date. Interest on all outstanding
Eurodollar Loans shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of any Eurodollar Loans having an Interest
Period in excess of three months or 90 days, respectively, on each day which
occurs every three months or 90 days, as the case may be, after the initial date
of such Interest Period, and on the Revolving Commitment Termination Date.
Interest on each Swingline Loan shall be payable on the maturity date of such
Loan, which shall be the last day of the Interest Period applicable thereto, and
on the Revolving Commitment Termination Date. Interest on any Loan which is
converted into a Loan of another Type or which is repaid or prepaid shall be
payable on the date of such conversion or on the date of any such repayment or
prepayment (on the amount repaid or prepaid) thereof. All Default Interest shall
be payable on demand.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrower and the
Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.12. FEES.
(a) The Borrower shall pay to the Administrative Agent and the
Syndication Agent for their own respective accounts fees in the amounts and at
the times previously agreed upon in writing by the Borrower and the
Administrative Agent or the Syndication Agent, as applicable.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee, which shall accrue at the Applicable
Percentage per annum (determined daily in accordance with Schedule I) on the
daily amount of the Revolving Commitment (whether used or unused) of such Lender
during the Availability Period; provided, that if such Lender continues to have
any Revolving Credit Exposure after the Revolving Commitment Termination Date,
then the facility fee shall continue to accrue on the daily amount of such
Revolving Credit Exposure from and after the Revolving Commitment Termination
Date to the date that all of such Lender's Revolving Credit Exposure has been
paid in full.
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(c) The Borrower agrees to pay (i) to the Administrative Agent, for
the account of each Lender, a letter of credit fee with respect to its
participation in each Letter of Credit, which shall accrue at a rate per annum
equal to the Applicable Margin for Eurodollar Loans then in effect on the
average daily amount of such Lender's LC Exposure attributable to such Letter of
Credit during the period from and including the date of issuance of such Letter
of Credit to but excluding the date on which such Letter of Credit expires or is
drawn in full (including without limitation any LC Exposure that remains
outstanding after the Revolving Commitment Termination Date) and (ii) to the
Issuing Bank for its own account a fronting fee, which shall accrue at the rate
of 0.125% per annum on the average daily amount of the LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the
Availability Period (or until the date that such Letter of Credit is irrevocably
cancelled, whichever is later), as well as the Issuing Bank's standard fees with
respect to issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Notwithstanding the foregoing, if the
Required Lenders elect to increase the interest rate on the Loans to the Default
Interest pursuant to Section 2.11(c), the rate per annum used to calculate the
letter of credit fee pursuant to clause (i) above shall automatically be
increased by an additional 2% per annum.
(d) The Borrower shall pay to the Administrative Agent, for the
ratable benefit of each Lender, the upfront fee previously agreed upon by the
Borrower and the Administrative Agent, which shall be due and payable on the
Closing Date.
(e) Accrued fees under paragraphs (b) and (c) above shall be payable
quarterly in arrears on the last day of each March, June, September and
December, commencing on June 30, 2005 and on the Revolving Commitment
Termination Date (and if later, the date the Loans and LC Exposure shall be
repaid in their entirety); provided further, that any such fees accruing after
the Revolving Commitment Termination Date shall be payable on demand.
SECTION 2.13. COMPUTATION OF INTEREST AND FEES. Interest hereunder
based on the Administrative Agent's prime lending rate shall be computed on the
basis of a year of 365 days (or 366 days in a leap year) and paid for the actual
number of days elapsed (including the first day but excluding the last day). All
other interest and all fees shall be computed on the basis of a year of 360 days
and paid for the actual number of days elapsed (including the first day but
excluding the last day). Each determination by the Administrative Agent of an
interest amount or fee hereunder shall be made in good faith and, except for
manifest error, shall be final, conclusive and binding for all purposes.
SECTION 2.14. INABILITY TO DETERMINE INTEREST RATES. If prior to the
commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant interbank market, adequate
means do not exist for ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and fairly
reflect the cost to
27
such Lenders (or Lender, as the case may be) of making, funding or
maintaining their (or its, as the case may be) Eurodollar Loans for such
Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any Eurodollar
Revolving Borrowing for which a Notice of Revolving Borrowing has previously
been given that it elects not to borrow on such date, then such Revolving
Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.15. ILLEGALITY. If any Change in Law shall make it unlawful
or impossible for any Lender to make, maintain or fund any Eurodollar Loan and
such Lender shall so notify the Administrative Agent, the Administrative Agent
shall promptly give notice thereof to the Borrower and the other Lenders,
whereupon until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Eurodollar Revolving Loans, or to continue or
convert outstanding Loans as or into Eurodollar Loans, shall be suspended. In
the case of the making of a Eurodollar Revolving Borrowing, such Lender's
Revolving Loan shall be made as a Base Rate Loan as part of the same Revolving
Borrowing for the same Interest Period and if the affected Eurodollar Loan is
then outstanding, such Loan shall be converted to a Base Rate Loan either (i) on
the last day of the then current Interest Period applicable to such Eurodollar
Loan if such Lender may lawfully continue to maintain such Loan to such date or
(ii) immediately if such Lender shall determine that it may not lawfully
continue to maintain such Eurodollar Loan to such date. Notwithstanding the
foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good faith exercise
of its discretion.
SECTION 2.16. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement that is not otherwise included in the determination of
the Adjusted LIBO Rate hereunder against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the eurodollar
interbank market any other condition affecting this Agreement or any
Eurodollar Loans made by such Lender or any Letter of Credit or any
participation therein;
28
and the result of either of the foregoing is to increase the cost to such Lender
of making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender, within five Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank shall have determined that on or
after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or on the capital of such Lender's or
the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt
by the Borrower of written demand by such Lender (with a copy thereof to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's parent corporation, as the case may be,
specified in paragraph (a) or (b) of this Section 2.16 shall be delivered to the
Borrower (with a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrower shall pay any such Lender or the Issuing
Bank, as the case may be, such amount or amounts within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section 2.16 shall not constitute a waiver
of such Lender's or the Issuing Bank's right to demand such compensation;
provided, that the Borrower shall not be required to compensate a Lender or the
Issuing Bank under this Section 2.16 for any increased costs or reductions
incurred more than 90 days prior to the date that such Lender or the Issuing
Bank notifies the Borrower of such increased costs or reductions and of such
Lender's or the Issuing Bank's intention to claim compensation therefor;
provided further, that if the Change in Law giving rise to such increased costs
or reductions is retroactive, then such 90 day period shall be extended to
include the period of such retroactive effect.
SECTION 2.17. FUNDING INDEMNITY. In the event of (a) the payment of
any principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
29
any applicable notice (regardless of whether such notice is withdrawn or
revoked). In the case of a Eurodollar Loan, such loss, cost or expense shall be
deemed to include an amount determined by such Lender to be the excess, if any,
of (A) the amount of interest that would have accrued on the principal amount of
such Eurodollar Loan if such event had not occurred at the Adjusted LIBO Rate
applicable to such Eurodollar Loan for the period from the date of such event to
the last day of the then current Interest Period therefor (or in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Eurodollar Loan) over (B) the amount of interest that
would accrue on the principal amount of such Eurodollar Loan for the same period
if the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid
or converted or the date on which the Borrower failed to borrow, convert or
continue such Eurodollar Loan. A certificate as to any additional amount payable
under this Section 2.17 submitted to the Borrower by any Lender (with a copy to
the Administrative Agent) shall be conclusive, absent manifest error.
SECTION 2.18. TAXES.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided, that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.18) the Administrative Agent, any Lender or the Issuing
Bank (as the case may be) shall receive an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within five (5) Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section 2.18) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
30
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the Code or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees
that it will deliver to the Administrative Agent and the Borrower (or in the
case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying
that the payments received from the Borrower hereunder are effectively connected
with such Foreign Lender's conduct of a trade or business in the United States;
or (ii) Internal Revenue Service Form W-8 BEN, or any successor form thereto,
certifying that such Foreign Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest; or (iii) Internal Revenue Service Form
W-8 BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the Foreign
Lender qualifies as "portfolio interest" exempt from U.S. withholding tax under
Code section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is
not a bank for purposes of Code section 881(c)(3)(A), or the obligation of the
Borrower hereunder is not, with respect to such Foreign Lender, a loan agreement
entered into in the ordinary course of its trade or business, within the meaning
of that section; (2) the Foreign Lender is not a 10% shareholder of the Borrower
within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the
Foreign Lender is not a controlled foreign corporation that is related to the
Borrower within the meaning of Code section 881(c)(3)(C); or (iv) such other
Internal Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to
the Borrower and the Administrative Agent such forms on or before the date that
it becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In
addition, each such Foreign Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign
Lender. Each such Foreign Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the Internal Revenue Service for such
purpose).
SECTION 2.19. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Sections 2.16, 2.17 or 2.18, or
otherwise) prior to 12:00 noon (New York time) on the date when due, in
immediately available funds, free and clear of any defenses, rights of set-off,
counterclaim, or withholding or deduction of taxes. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at the Payment Office, except payments to be made directly
to the Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.16, 2.17 and 2.18 and 10.3 shall be made
31
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be made payable for the period
of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Swingline Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount or amounts due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or the Issuing Bank,
32
as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.4(b), 2.5(b), 2.19(d), 2.20(d) or (e) or 10.3(d),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.20. LETTERS OF CREDIT.
(a) During the Availability Period, the Issuing Bank, in reliance upon
the agreements of the other Lenders pursuant to Section 2.20(d), agrees to
issue, at the request of the Borrower, Letters of Credit for the account of the
Borrower or any of its Subsidiaries on the terms and conditions hereinafter set
forth; provided, that (i) each Letter of Credit shall expire on the earlier of
(A) the date one year after the date of issuance of such Letter of Credit (or in
the case of any renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is five (5) Business Days prior to the
Revolving Commitment Termination Date; (ii) each Letter of Credit shall be in a
stated amount of at least $100,000; and (iii) the Borrower may not request any
Letter of Credit, if, after giving effect to such issuance (A) the aggregate LC
Exposure would exceed the LC Commitment or (B) the aggregate Revolving Credit
Exposure of all Lenders would exceed the Aggregate Revolving Commitment Amount.
Each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Bank without recourse a participation in
each Letter of Credit equal to such Lender's Pro Rata Share of the aggregate
amount available to be drawn under such Letter of Credit on the date of issuance
with respect to all other Letters of Credit. Each issuance of a Letter of Credit
shall be deemed to utilize the Revolving Commitment of each Lender by an amount
equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
give the Issuing Bank and the Administrative Agent irrevocable written notice at
least three (3) Business Days prior to the requested date of such issuance
specifying the date (which shall be a Business Day) such Letter of Credit is to
be issued (or amended, extended or renewed, as the case may be), the expiration
date of such Letter of Credit, the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. In addition
to the satisfaction of the conditions in Article III, the issuance of such
Letter of Credit (or any amendment which increases the amount of such Letter of
Credit) will be subject to the further conditions that such Letter of Credit
shall be in such form and contain such terms as the Issuing Bank shall approve
and that the Borrower shall have executed and delivered any additional
applications, agreements and instruments relating to such Letter of Credit as
the Issuing Bank shall reasonably require; provided, that in the event of any
33
conflict between such applications, agreements or instruments and this
Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any Letter of
Credit, the Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received such notice
and if not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice from the Administrative
Agent on or before the Business Day immediately preceding the date the Issuing
Bank is to issue the requested Letter of Credit (1) directing the Issuing Bank
not to issue the Letter of Credit because such issuance is not then permitted
hereunder because of the limitations set forth in Section 2.20(a) or that one or
more conditions specified in Article III are not then satisfied, then, subject
to the terms and conditions hereof, the Issuing Bank shall, on the requested
date, issue such Letter of Credit in accordance with the Issuing Bank's usual
and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to such LC
Disbursement. The Borrower shall be irrevocably and unconditionally obligated to
reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank in
respect of such drawing, without presentment, demand or other formalities of any
kind. Unless the Borrower shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. (New York time) on the Business Day
immediately prior to the date on which such drawing is honored that the Borrower
intends to reimburse the Issuing Bank for the amount of such drawing in funds
other than from the proceeds of Revolving Loans, the Borrower shall be deemed to
have timely given a Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the Issuing Bank; provided, that
for purposes solely of such Borrowing, the conditions precedents set forth in
Section 3.2 hereof shall not be applicable. The Administrative Agent shall
notify the Lenders of such Borrowing in accordance with Section 2.3, and each
Lender shall make the proceeds of its Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the Issuing Bank in
accordance with Section 2.5. The proceeds of such Borrowing shall be applied
directly by the Administrative Agent to reimburse the Issuing Bank for such LC
Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Base Rate Borrowing should
have occurred. Each Lender's obligation to fund its participation shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the
34
existence of a Default or an Event of Default or the termination of the
Aggregate Revolving Commitments, (iii) any adverse change in the condition
(financial or otherwise) of the Borrower or any of its Subsidiaries, (iv) any
breach of this Agreement by the Borrower or any other Lender, (v) any amendment,
renewal or extension of any Letter of Credit or (vi) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
On the date that such participation is required to be funded, each Lender shall
promptly transfer, in immediately available funds, the amount of its
participation to the Administrative Agent for the account of the Issuing Bank.
Whenever, at any time after the Issuing Bank has received from any such Lender
the funds for its participation in a LC Disbursement, the Issuing Bank (or the
Administrative Agent on its behalf) receives any payment on account thereof, the
Administrative Agent or the Issuing Bank, as the case may be, will distribute to
such Lender its Pro Rata Share of such payment; provided, that if such payment
is required to be returned for any reason to the Borrower or to a trustee,
receiver, liquidator, custodian or similar official in any bankruptcy
proceeding, such Lender will return to the Administrative Agent or the Issuing
Bank any portion thereof previously distributed by the Administrative Agent or
the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) below on the due date therefor,
such Lender shall pay interest to the Issuing Bank (through the Administrative
Agent) on such amount from such due date to the date such payment is made at a
rate per annum equal to the Federal Funds Rate; provided, that if such Lender
shall fail to make such payment to the Issuing Bank within three (3) Business
Days of such due date, then, retroactively to the due date, such Lender shall be
obligated to pay interest on such amount at the rate set forth in Section
2.11(c).
(g) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from the Administrative Agent or
the Required Lenders demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Issuing Bank and the Lenders, an amount in cash equal to the LC Exposure as of
such date plus any accrued and unpaid fees thereon; provided, that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
notice of any kind, upon the occurrence of any Event of Default with respect to
the Borrower described in clause (g) or (h) of Section 8.1. Such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Borrower agrees to execute any
documents and/or certificates to effectuate the intent of this paragraph. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Borrower's risk and expense, such deposits shall not bear interest.
Interest and profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it had not been
reimbursed and to the extent so applied, shall be held for the satisfaction of
the reimbursement obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the Borrower under
this Agreement and the other Loan Documents. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the
35
occurrence of an Event of Default, such amount (to the extent not so applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
(h) Promptly following the end of each calendar quarter, the Issuing
Bank shall deliver (through the Administrative Agent) to each Lender and the
Borrower a report describing the aggregate Letters of Credit outstanding at the
end of such Fiscal Quarter. Upon the request of any Lender from time to time,
the Issuing Bank shall deliver to such Lender any other information reasonably
requested by such Lender with respect to each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements hereunder
shall be absolute, unconditional and irrevocable and shall be performed strictly
in accordance with the terms of this Agreement under all circumstances
whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability of any Letter of Credit or
this Agreement, or whether any Letter of Credit was issued for the account
of any Subsidiary of Borrower;
(ii) The existence of any claim, set-off, defense or other right which
the Borrower or any Subsidiary or Affiliate of the Borrower may have at any
time against a beneficiary or any transferee of any Letter of Credit (or
any Persons or entities for whom any such beneficiary or transferee may be
acting), any Lender (including the Issuing Bank) or any other Person,
whether in connection with this Agreement or the Letter of Credit or any
document related hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that does not
comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section
2.20, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing
36
thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank; provided, that the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any actual direct damages (as opposed to special,
indirect (including claims for lost profits or other consequential damages), or
punitive damages, claims in respect of which are hereby waived by the Borrower
to the extent permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise due care when determining
whether drafts or other documents presented under a Letter of Credit comply with
the terms thereof. The parties hereto expressly agree, that in the absence of
gross negligence or willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised due care in each such determination. In furtherance
of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform Customs and
Practices for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended from time to time, and,
to the extent not inconsistent therewith, the governing law of this Agreement
set forth in Section 10.5.
SECTION 2.21. INCREASE OF COMMITMENTS; ADDITIONAL LENDERS.
(a) So long as no Event of Default has occurred and is continuing,
from time to time after the Closing Date, Borrower may, upon at least 30 days'
written notice to the Administrative Agent (who shall promptly provide a copy of
such notice to each Lender), propose to increase the Aggregate Commitments to an
amount not to exceed $225,000,000 (the amount of any such increase, the
"Additional Commitment Amount"). Each Lender shall have the right for a period
of 15 days following receipt of such notice, to elect by written notice to the
Borrower and the Administrative Agent to increase its Revolving Commitment by a
principal amount equal to its Pro Rata Share of the Additional Commitment
Amount. No Lender (or any successor thereto) shall have any obligation to
increase its Revolving Commitment or its other obligations under this Agreement
and the other Loan Documents, and any decision by a Lender to increase its
Revolving Commitment shall be made in its sole discretion independently from any
other Lender.
(b) If any Lender shall not elect to increase its Revolving Commitment
pursuant to subsection (a) of this Section 2.21, the Borrower may designate
another bank or other financial institution (which may be, but need not be, one
or more of the existing Lenders) which at the time agrees to, in the case of any
such Person that is an existing Lender, increase its Revolving Commitment and in
the case of any other such Person (an "Additional Lender"), become a party to
this Agreement; provided, however, that any new bank or financial institution
must be reasonably acceptable to the Administrative Agent. The sum of the
increases in the Revolving Commitments of the existing Lenders pursuant to this
subsection (b) plus the
37
Revolving Commitments of the Additional Lenders shall not in the aggregate
exceed the unsubscribed amount of the Additional Commitment Amount.
(c) An increase in the aggregate amount of the Revolving Commitments
pursuant to this Section 2.21 shall become effective upon the receipt by the
Administrative Agent of an supplement or joinder in form and substance
satisfactory to the Administrative Agent executed by the Borrower and by each
Additional Lender and by each other Lender whose Revolving Commitment is to be
increased, setting forth the new Revolving Commitments of such Lenders and
setting forth the agreement of each Additional Lender to become a party to this
Agreement and to be bound by all the terms and provisions hereof, together with
Notes evidencing such increase in the Commitments, and such evidence of
appropriate corporate authorization on the part of the Borrower with respect to
the increase in the Revolving Commitments and such opinions of counsel for the
Borrower with respect to the increase in the Revolving Commitments as the
Administrative Agent may reasonably request.
(d) Upon the acceptance of any such agreement by the Administrative
Agent, the Aggregate Revolving Commitment Amount shall automatically be
increased by the amount of the Revolving Commitments added through such
agreement and Schedule II shall automatically be deemed amended to reflect the
Revolving Commitments of all Lenders after giving effect to the addition of such
Revolving Commitments.
(e) Upon any increase in the aggregate amount of the Revolving
Commitments pursuant to this Section 2.21 that is not pro rata among all
Lenders, (x) within five Business Days, in the case of any Base Rate Loans then
outstanding, and at the end of the then current Interest Period with respect
thereto, in the case of any Eurodollar Loans then outstanding, the Borrower
shall prepay such Loans in their entirety and, to the extent the Borrower elects
to do so and subject to the conditions specified in Article III, the Borrower
shall reborrow Loans from the Lenders in proportion to their respective
Revolving Commitments after giving effect to such increase, until such time as
all outstanding Loans are held by the Lenders in proportion to their respective
Commitments after giving effect to such increase and (y) effective upon such
increase, the amount of the participations held by each Lender in each Letter of
Credit then outstanding shall be adjusted automatically such that, after giving
effect to such adjustments, the Lenders shall hold participations in each such
Letter of Credit in proportion to their respective Revolving Commitments.
SECTION 2.22. MITIGATION OF OBLIGATIONS. If any Lender requests
compensation under Section 2.16, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.18, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the sole judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable under
Section 2.16 or Section 2.18, as the case may be, in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all costs and expenses incurred by any Lender in connection with such
designation or assignment.
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ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective, and the Lenders, the Swingline Lender and Issuing Bank shall be
obligated to make the initial Loans and issue the initial Letters of Credit
hereunder, upon the satisfaction of the following conditions, in addition to the
conditions precedent specified in Section 3.2:
(a) The Administrative Agent and SunTrust Bank shall have received all
fees and other amounts due and payable on or prior to the Closing Date,
including reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of outside counsel to the
Administrative Agent and SunTrust Bank) required to be reimbursed or paid by the
Borrower hereunder, under any other Loan Document and under any agreement with
the Administrative Agent, Wachovia Capital Markets, LLC., as Arranger, or
SunTrust Bank
(b) The Administrative Agent (or its counsel) shall have received the
following:
(i) a counterpart of this Agreement signed by or on behalf of each
party hereto or written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement;
(ii) duly executed Revolving Credit Notes payable to such Lender and
the Swingline Note payable to the Swingline Lender;
(iii) evidence satisfactory to the Administrative Agent that all
amounts due and payable under the Existing Credit Agreement have been
repaid and all commitments of the lenders from time to time parties thereto
have been or concurrently will be terminated;
(iv) a certificate of the Secretary or Assistant Secretary of the
Operator, each in the form of Exhibit 3.1(b)(iv), attaching and certifying
copies of the Borrower Partnership Agreement, the Operating Agreement or
comparable organizational documents, and copies of the articles of
incorporation or partnership agreement of each Partner, and of the
resolutions of the management committee of the Borrower and other
appropriate authorizations, authorizing the execution, delivery and
performance of the Loan Documents to which it is a party and certifying the
name, title and true signature of each officer of the Operator executing
the Loan Documents;
(v) a favorable written opinion, addressed to the Administrative Agent
and each of the Lenders, and covering such matters relating to the Borrower
and the Operator, the Loan Documents and the transactions contemplated
therein as the Administrative Agent or the Required Lenders shall
reasonably request, of (a) Xxxxxxx Xxxxx LLP, counsel to the Borrower and
the Operator, and (b) Xxxxx Place, Vice President and General Counsel of
the Operator.
39
(vi) a certificate in the form of Exhibit 3.1(b)(vi), dated the
Closing Date and signed by a Responsible Officer, certifying that (x) no
Default or Event of Default exists, (y) all representations and warranties
of the Borrower set forth in the Loan Documents are true and correct and
(z) since the date of the financial statements of the Borrower described in
Section 4.4, there shall have been no change which has had or could
reasonably be expected to have a Material Adverse Effect;
(vii) a duly executed Notice of Borrowing;
(viii) a duly executed funds disbursement letter, together with a
report setting forth the sources and uses of the proceeds hereof;
(ix) certified copies of all consents, approvals, authorizations,
registrations and filings and orders required or advisable to be made or
obtained under any Requirement of Law, or by any Contractual Obligation of
the Borrower, in connection with the execution, delivery, performance,
validity and enforceability of the Loan Documents or any of the
transactions contemplated thereby, and such consents, approvals,
authorizations, registrations, filings and orders shall be in full force
and effect and all applicable waiting periods shall have expired, and no
investigation or inquiry by any governmental authority regarding the Credit
Facility or any transaction being financed with the proceeds thereof shall
be ongoing; and
(x) copies of the audited consolidated financial statements for
Borrower and its Subsidiaries for the Fiscal Years ending December 31,
2002, December 31, 2003 and December 31, 2004.
SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender to make
a Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit is subject to the satisfaction of the
following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, all representations and warranties of the Borrower set
forth in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Borrowing or the date of issuance, amendment,
extension or renewal of such Letter of Credit, in each case before and after
giving effect thereto;
(c) the Borrower shall have delivered the required Notice of
Borrowing; and
(d) the Administrative Agent shall have received such other documents,
certificates, information or legal opinions as the Administrative Agent or the
Required Lenders may reasonably request, all in form and substance reasonably
satisfactory to the Administrative Agent or the Required Lenders and consistent
with the terms of the Agreement.
40
Each Borrowing and each issuance, amendment, extension or renewal of
any Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs
(a) and (b) of this Section 3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
each Lender as follows:
SECTION 4.1. EXISTENCE; POWER. The Borrower, each of its Subsidiaries
and the Operator (i) is duly organized, validly existing and in good standing as
a corporation, partnership or limited liability company under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
carry on its business as now conducted, and (iii) is duly qualified to do
business, and is in good standing, in each jurisdiction where such qualification
is required, except where a failure to be so qualified could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The execution,
delivery and performance by the Borrower of the Loan Documents are within such
Person's organizational powers and have been duly authorized by all necessary
organizational, and if required, shareholder, partner or member, action. This
Agreement has been duly executed and delivered by the Borrower, and constitutes,
and each other Loan Document to which the Borrower is a party, when executed and
delivered by the Borrower, will constitute, valid and binding obligations of the
Borrower, enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS. The execution,
delivery and performance by the Borrower of this Agreement and the other Loan
Documents (a) do not require any consent or approval of, registration or filing
with, or any action by, any Governmental Authority, except those as have been
obtained or made and are in full force and effect, (b) will not violate any
Requirements of Law applicable to the Borrower and any of its Subsidiaries, or
any judgment, order or ruling of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding on the Borrower or any of its Subsidiaries or any of its
assets or give rise to a right thereunder to require any payment to be made by
the Borrower or any of its Subsidiaries, in each case other than violations,
defaults or rights which could not reasonably expected to result in a Material
Adverse
41
Effect, and (d) will not result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries, except Liens (if any) created
under the Loan Documents.
SECTION 4.4. FINANCIAL STATEMENTS. The Borrower has furnished to each
Lender the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 2004 and the related consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended
prepared by KPMG, LLP. Such financial statements fairly present the consolidated
financial condition of the Borrower and its Subsidiaries as of such dates and
the consolidated results of operations for such periods in conformity with GAAP
consistently applied. As of the Closing Date, since December 31, 2004, there
have been no changes with respect to the Borrower and its Subsidiaries which
have had or could reasonably be expected to have, singly or in the aggregate, a
Material Adverse Effect.
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect or (ii) which in any manner draws
into question the validity or enforceability of this Agreement or any other Loan
Document.
(b) Except for the matters set forth on Schedule 4.5, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability, that, in each case, could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. The Borrower and
each Subsidiary is in compliance with (a) its Tariff, all Requirements of Law
and all judgments, decrees and orders of any Governmental Authority and (b) all
indentures, agreements or other instruments binding upon it or its properties,
except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither the Borrower nor any
of its Subsidiaries is (a) an "investment company" or is "controlled" by an
"investment company", as such terms are defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended, (b) a "holding company"
or a "subsidiary company" of a "registered holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935, as
amended or (c) otherwise subject to any other regulatory scheme limiting its
ability to incur debt or requiring any approval or consent from or registration
or filing with, any Governmental Authority in connection therewith.
SECTION 4.8. TAXES. The Borrower and its Subsidiaries and each other
Person for whose taxes the Borrower or any Subsidiary could become liable have
timely filed or caused
42
to be filed all Federal income tax returns and all other material tax returns
that are required to be filed by them, and have paid all taxes shown to be due
and payable on such returns or on any assessments made against it or its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, except where the same are currently
being contested in good faith by appropriate proceedings and for which the
Borrower or such Subsidiary, as the case may be, has set aside on its books
adequate reserves in accordance with GAAP. The charges, accruals and reserves on
the books of the Borrower and its Subsidiaries in respect of such taxes are
adequate, and no tax liabilities that could be materially in excess of the
amount so provided are anticipated.
SECTION 4.9. MARGIN REGULATIONS. None of the proceeds of any of the
Loans or Letters of Credit will be used, directly or indirectly, for
"purchasing" or "carrying" any "margin stock" with the respective meanings of
each of such terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the Regulation U. Neither the Borrower
nor its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying "margin stock."
SECTION 4.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan, and the present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Plans.
SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) Each of the Borrower and its Subsidiaries has good title to, or
valid leasehold or easement interests in, all of its real and personal property
material to the operation of its business, including all such properties
reflected in the most recent audited consolidated balance sheet of the Borrower
referred to in Section 4.4 or purported to have been acquired by the Borrower or
any Subsidiary after said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of Liens prohibited by
this Agreement except to the extent that the failure to have such good title or
that such Liens exist could not reasonably be expected to result in a Material
Adverse Effect. All leases that individually or in the aggregate are material to
the business or operations of the Borrower and its Subsidiaries are valid and
subsisting and are in full force.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service marks, trade
names, copyrights and other intellectual property material to its business, and
the use thereof by the Borrower and its Subsidiaries does not infringe in any
material respect on the rights of any other Person except
43
to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
(c) The properties of the Borrower and its Subsidiaries are insured
with financially sound and reputable insurance companies which are not
Affiliates of the Borrower, in such amounts with such deductibles and covering
such risks as are customarily carried by companies engaged in similar businesses
and owning similar properties in localities where the Borrower or any applicable
Subsidiary operates.
SECTION 4.12. DISCLOSURE. The Borrower has disclosed to the Lenders
all agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports that
the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender in connection
with the negotiation or syndication of this Agreement or any other Loan Document
or delivered hereunder or thereunder (as modified or supplemented by any other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in each case
when taken as a whole, in light of the circumstances under which they were made,
not misleading.
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts or other
material labor disputes or grievances against the Borrower or any of its
Subsidiaries, or, to the Borrower's knowledge, threatened against or affecting
the Borrower or any of its Subsidiaries, and no significant unfair labor
practice, charges or grievances are pending against the Borrower or any of its
Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority. All payments due from the Borrower or any of
its Subsidiaries pursuant to the provisions of any collective bargaining
agreement have been paid or accrued as a liability on the books of the Borrower
or any such Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.14. SUBSIDIARIES. Schedule 4.14 sets forth the name of, the
jurisdiction of incorporation or organization of, and the type of, each
Subsidiary, in each case as of the Closing Date.
SECTION 4.15. INSOLVENCY. After giving effect to the execution and
delivery of the Loan Documents, the making of the Loans under this Agreement,
neither the Borrower nor its Subsidiaries will be "insolvent," within the
meaning of such term as defined in Section 101 of Title 11 of the United States
Code, as amended from time to time, or be unable to pay its debts generally as
such debts become due, or have an unreasonably small capital to engage in any
business or transaction, whether current or contemplated.
SECTION 4.16. OFAC. The Borrower (i) is not a person whose property or
interest in property is blocked or subject to blocking pursuant to Section 1 of
Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)), (ii) does
44
not engage in any dealings or transactions prohibited by Section 2 of such
executive order, and is not otherwise associated with any such person in any
manner violative of Section 2, and (iii) is not a person on the list of
Specially Designated Nationals and Blocked Persons or subject to the limitations
or prohibitions under any other U.S. Department of Treasury's Office of Foreign
Assets Control regulation or executive order.
SECTION 4.17. PATRIOT ACT. The Borrower is in compliance, in all
material respects, with (i) the Trading with the Enemy Act, as amended, and each
of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling
legislation or executive order relating thereto, and (ii) the Uniting And
Strengthening America By Providing Appropriate Tools Required To Intercept And
Obstruct Terrorism (USA Patriot Act of 2001). No part of the proceeds of the
Loans will be used, directly or indirectly, for any payments to any governmental
official or employee, political party, official of a political party, candidate
for political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended.
SECTION 4.18. PARTNERSHIP AGREEMENT. The Borrower Partnership
Agreement is in full force and effect.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower
will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 120 days after the
end of each Fiscal Year of Borrower, a copy of the annual audited report for
such Fiscal Year for the Borrower and its Subsidiaries, containing a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows (together with all footnotes thereto) of the
Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case
in comparative form the figures for the previous Fiscal Year, all in reasonable
detail and reported on by KPMG, LLP or other independent public accountants of
nationally recognized standing (without a "going concern" or like qualification,
exception or explanation and without any qualification or exception as to scope
of such audit) to the effect that such financial statements present fairly in
all material respects the financial condition and the results of operations of
the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and
consolidating basis in accordance with GAAP and that the examination by such
accountants in connection with such consolidated financial statements has been
made in accordance with generally accepted auditing standards;
45
(b) as soon as available and in any event within 60 days after the end
of each Fiscal Quarter of the Borrower, an unaudited consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as of the end
of such Fiscal Quarter and the related unaudited consolidated and consolidating
statements of income and cash flows of the Borrower and its Subsidiaries for
such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting
forth in each case in comparative form the figures for the corresponding quarter
and the corresponding portion of Borrower's previous Fiscal Year;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a Compliance Certificate signed by the
chief executive officer, chief financial officer or treasurer of the Borrower;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed with the
Securities and Exchange Commission, or any Governmental Authority succeeding to
any or all functions of said Commission, and all annual financial reports which
the Borrower files with FERC or the Department of Energy; and
(e) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial condition of
the Borrower or any Subsidiary as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.2. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to
the Administrative Agent prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or, to the knowledge of
the Borrower, affecting the Borrower or any Subsidiary which, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which the
Borrower or any of its Subsidiaries (i) fails to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any Environmental Liability
and in each of the preceding clauses, which individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate amount exceeding
$15,000,000;
(e) the occurrence of any default or event of default, or the receipt
by Borrower or any of its Subsidiaries of any written notice of an alleged
default or event of default, respect of any Material Indebtedness of the
Borrower or any of its Subsidiaries,
46
(f) the occurrence of any material default under any Service Agreement
(other than a T-1R Service Agreement) with a Shipper or any action or inaction
by itself or any Shipper which but for the lapse of time or the giving of notice
or both would become a material default under its Service Agreement which could
reasonably be expected to result in a Material Adverse Effect, accompanied by a
written statement of the executive officer of the Borrower or the Operator which
sets forth, so far as is known to such officer, the relevant details of such
default, action or inaction and any action the Borrower or the Shipper has taken
or proposes to take with respect thereto;
(g) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 5.2 shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence and its respective rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business and will continue to engage in the same business as presently conducted
or such other businesses that are reasonably related thereto; provided, that
nothing in this Section 5.3 shall prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 7.3.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. The Borrower will, and will
cause each of its Subsidiaries to, comply with its Tariff and all laws, rules,
regulations and requirements of any Governmental Authority applicable to its
business and properties, including without limitation, all Environmental Laws,
ERISA and OSHA, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5. PAYMENT OF OBLIGATIONS. The Borrower will, and will cause
each of its Subsidiaries to, pay and discharge at or before maturity, all of its
obligations and liabilities (including without limitation all tax liabilities
and claims that could result in a statutory Lien) before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.6. BOOKS AND RECORDS. The Borrower will, and will cause each
of its Subsidiaries to, keep proper books of record and account in which full,
true and correct entries shall be made of all dealings and transactions in
relation to its business and activities to the extent necessary to prepare the
consolidated financial statements of Borrower in conformity with law or GAAP
with respect to which such Person is required to maintain written records in
relation to its business and activities.
47
SECTION 5.7. VISITATION, INSPECTION, ETC. The Borrower will, and will
cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times
and as often as the Administrative Agent or any Lender may reasonably request
after reasonable prior notice to the Borrower; provided, however, if an Event of
Default has occurred and is continuing, no prior notice shall be required.
48
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business (including the Pipeline) in good working
order and condition, ordinary wear and tear excepted and (b) maintain with
financially sound and reputable insurance companies, insurance with respect to
its properties and business, and the properties and business of its
Subsidiaries, against loss or damage of the kinds customarily insured against by
companies in the same or similar businesses operating in the same or similar
locations.
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT. The Borrower will
use the proceeds of all Loans to refinance existing indebtedness, to finance
permitted acquisitions and investments, to pay related fees and expenses, and to
provide for working capital needs and for other general business purposes of the
Borrower and its Subsidiaries. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that would violate any rule or
regulation of the Board of Governors of the Federal Reserve System, including
Regulations T, U or X. All Letters of Credit will be used for general business
purposes.
SECTION 5.10. PARI PASSU STATUS. The Borrower will ensure the claims
and rights of the Lenders against it under this Agreement and each other Loan
Document will not be subordinate to, and will rank at all times at least pari
passu with, all other unsecured Debt of the Borrower. The Borrower will not
amend, modify or supplement the Indentures or the Senior Notes in any manner
that would make them materially more onerous to the Borrower than the provisions
of this Agreement and the Notes as in effect from time to time.
SECTION 5.11. MAINTENANCE OF TAX STATUS. Except to the extent
otherwise required in the Borrower Partnership Agreement, the Borrower shall
take all action necessary to prevent it from being, and will take no action
which would have the effect of causing the Borrower to be, treated as an
association taxable as a corporation or otherwise to be taxed as an entity for
federal income tax purposes.
SECTION 5.12. MAINTENANCE OF TARIFF The Borrower shall use best
efforts to cause Tariff to remain effective.
SECTION 5.13. SHIPPER CREDIT QUALITY. The Borrower will require all
Shippers to meet the credit worthiness standards of the Borrower's Tariff and
the Borrower's historical credit practices (except to the extent changes to such
credit practices are required as a result of any FERC proceeding) and, if
necessary, to provide credit enhancement consistent with Borrower's Tariff and
such credit practices.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding:
49
SECTION 6.1. LEVERAGE RATIO. The Borrower will maintain at all times a
Leverage Ratio of not greater than 4.50:1.00 (the "Required Threshold");
provided, however, that if the Borrower consummates one or more acquisitions
permitted hereunder in which the aggregate purchase price of all such
acquisitions exceeds $25,000,000, then the Required Threshold shall be increased
to 5.00:1.00 for the first two full fiscal reporting periods during any 12-month
period immediately following the consummation of such acquisitions.
SECTION 6.2. INTEREST COVERAGE RATIO. The Borrower will maintain as of
the end of each Fiscal Quarter, commencing with the Fiscal Quarter ending June
30, 2005, an Interest Coverage Ratio of not less than 3.00:1.00.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has a
Commitment hereunder or any Obligation remains unpaid or outstanding:
SECTION 7.1. INDEBTEDNESS. The Borrower will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except Indebtedness in an aggregate outstanding principal amount at any one time
outstanding not to exceed 5% of Partners' Capital at such time. Borrower will
not, and will not permit any Subsidiary to, issue any preferred stock or other
preferred equity interests that (i) matures or is mandatorily redeemable
pursuant to a sinking fund obligation or otherwise, (ii) is or may become
redeemable or repurchaseable by Borrower or such Subsidiary at the option of the
holder thereof, in whole or in part or (iii) is convertible or exchangeable at
the option of the holder thereof for Indebtedness or preferred stock or any
other preferred equity interests described in this paragraph, on or prior to, in
the case of clause (i), (ii) or (iii), the first anniversary of the Revolving
Commitment Termination Date.
SECTION 7.2. NEGATIVE PLEDGE. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided,
that such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary;
(c) purchase money Liens upon or in any fixed or capital assets to
secure the purchase price or the cost of construction or improvement of such
fixed or capital assets or to secure Indebtedness incurred solely for the
purpose of financing the acquisition, construction or improvement of such fixed
or capital assets (including Liens securing any Capital Lease Obligations);
provided, that (i) such Lien secures Indebtedness permitted by Section 7.1, (ii)
such Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof; (iii) such
Lien does not extend to any other asset; and (iv)
50
the Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets;
(d) any Lien (i) existing on any asset of any Person at the time such
Person becomes a Subsidiary of the Borrower, (ii) existing on any asset of any
Person at the time such Person is merged with or into the Borrower or any
Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided,
that any such Lien was not created in the contemplation of any of the foregoing
and any such Lien secures only those obligations which it secures on the date
that such Person becomes a Subsidiary or the date of such merger or the date of
such acquisition; and
(e) extensions, renewals, or replacements of any Lien referred to in
paragraphs (a) through (d) of this Section 7.2; provided, that the principal
amount of the Indebtedness secured thereby is not increased and that any such
extension, renewal or replacement is limited to the assets originally encumbered
thereby;
(f) any Liens (i) in favor of the Administrative Agent arising under
Section 2.20(g) and (ii) in favor of any trustee under any indentures governing
Indebtedness of the Borrower or any of its Subsidiaries securing unpaid fees of
such trustee in collateral in possession of such trustee.
SECTION 7.3. FUNDAMENTAL CHANGES.
(a) The Borrower will not, and will not permit any Subsidiary to,
merge into or consolidate into any other Person, or permit any other Person to
merge into or consolidate with it, or sell, lease, transfer or otherwise dispose
of (in a single transaction or a series of transactions) all of its assets (in
each case, whether now owned or hereafter acquired) or all or substantially all
of the stock of or other equity interest in any of its Subsidiaries (in each
case, whether now owned or hereafter acquired) or liquidate or dissolve;
provided, that if at the time thereof and immediately after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing,
then (i) the Borrower or any Subsidiary may merge with a Person if the Borrower
(or such Subsidiary if the Borrower is not a party to such merger) is the
surviving Person, (ii) any Subsidiary may merge into another Subsidiary; (iii)
any Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Borrower and (iv) any Subsidiary may
sell, lease, transfer or otherwise dispose of (in a single transaction or a
series of transactions) all of its assets (in each case, whether now owned or
hereafter acquired) or all or substantially all of the stock of or other equity
interest or may liquidate or dissolve if no Default or Event of Default has
occurred and is continuing or would result therefrom, and the Borrower
determines in good faith that such sale, lease, transfer, disposition,
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided, however, that (x) in no
event shall any such merger, consolidation, sale, transfer, lease or other
disposition whether or not otherwise permitted by this Section 7.3 have the
effect of releasing the Borrower from any of its obligations and liabilities
under this Agreement or the other Loan Documents and (y) in no event shall the
Borrower merge or consolidate with or into any other Person, or sell, assign,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its business and assets (whether now
owned or hereafter
51
acquired) to, any Person, except pursuant to Section 14 or Section 15 (to the
extent it applies to a merger pursuant to Section 14) of the Borrower
Partnership Agreement.
(b) The Borrower shall not lease, sell or otherwise dispose of its
assets to any other Person except: (i) sales of inventory and other assets in
the ordinary course of business, (ii) leases, sales or other dispositions of its
assets that, together with all other assets of Borrower previously leased, sold
or disposed of (other than disposed of pursuant to this Section 7.3(b)) during
the twelve-month period ending with the month in which any such lease, sale or
other disposition occurs, do not constitute a substantial portion of the assets
of Borrower, (iii) sales of assets which are concurrently leased back, (iv)
dispositions of assets which are obsolete or no longer used or useful in the
business of Borrower, and (v) as permitted pursuant to Section 14 or Section 15
(to the extent it applies to a merger pursuant to Section 14) of the Borrower
Partnership Agreement.
(c) The Borrower will not, and will not permit any of its Subsidiaries
to, engage in any business other than the operation of the Pipeline, the
construction and operation of additions, extensions and expansions related to
the Pipeline, the ownership and operation of any other pipelines, gas storage
facilities and related equipment and Property, and services related to the
transportation and marketing of natural gas.
SECTION 7.4. INVESTMENTS, LOANS, ETC. The Borrower will not, and will
not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly-owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness or other
securities (including any option, warrant, or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person (all of the foregoing being collectively called
"Investments"), or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person that constitute a business unit,
or create or form any Subsidiary, except:
(a) Investments (other than Permitted Investments) existing on the
date hereof and set forth on Schedule 7.4 (including Investments in
Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
(d) loans or advances to employees, officers or directors of the
Borrower or any Subsidiary in the ordinary course of business for travel,
relocation and related expenses; provided, however, that the aggregate amount of
all such loans and advances does not exceed $1,000,000 at any time;
(e) Hedging Transactions permitted by Section 7.10;
(f) Investments consisting of advances in the ordinary course of
business in the operation of the Pipeline, the construction of additional gas
compressor facilities on the Pipeline or the retrofitting of gas compressor
facilities existing on the Pipeline;
52
(g) Purchases or other acquisitions of the capital stock or
obligations of, or any interest in, any other Person not in excess in the
aggregate for all such purchases and acquisitions of 5% of Partners' Capital,
provided that after giving effect to such purchase or acquisition, no Event of
Default shall have occurred and be continuing or will result therefrom; or
(h) Investments permitted by Section 7.3(c).
SECTION 7.5. RESTRICTED PAYMENTS. The Borrower will not, and will not
permit its Subsidiaries to, declare or make, or agree to pay or make, directly
or indirectly, any dividend on any class of its stock, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, retirement, defeasance or other acquisition of, any shares
of common stock or Indebtedness subordinated to the Obligations of the Borrower
or any Guarantee thereof or any options, warrants, or other rights to purchase
such common stock or such Indebtedness, whether now or hereafter outstanding
(each, a "Restricted Payment"), except for (i) dividends payable by the Borrower
solely in shares of any class of its common stock, (ii) Restricted Payments made
by any Subsidiary to the Borrower or to another Subsidiary, on at least a pro
rata basis with any other shareholders if such Subsidiary is not wholly owned by
the Borrower and other wholly owned Subsidiaries, and (iii) if no Event of
Default has occurred or would result therefrom, distributions on the partnership
interests in accordance with the Borrower Partnership Agreement.
SECTION 7.6. RESERVED.
SECTION 7.7. TRANSACTIONS WITH AFFILIATES. Except as set forth in
Schedule 7.7, the Borrower will not, and will not permit any of its Subsidiaries
to, sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or otherwise engage in
any other transactions with, any of its Affiliates, except (a) in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, and (b) any Restricted Payment permitted by
Section 7.5.
SECTION 7.8. RESTRICTIVE AGREEMENTS. The Borrower will not, and will
not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or imposes any condition
upon (a) the ability of the Borrower or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, except as provided for by the Northern Border Partners
Credit Agreement or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i) the
foregoing shall not apply to restrictions or conditions imposed by law or by
this Agreement or any other Loan Document, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder, (iii) clause (a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions
53
and conditions apply only to the property or assets securing such Indebtedness
and (iv) clause (a) shall not apply to customary provisions in leases
restricting the assignment thereof.
SECTION 7.9. GOVERNMENT REGULATIONS. The Borrower will not conduct its
business in such a way that it will become subject to regulation under the
Investment Company Act of 1940, as amended, PUHCA, the Federal Power Act, as
amended, or any other Law (other than Regulations T, U, and X of the Board of
Governors of the Federal Reserve System) which regulates the incurrence of
Indebtedness.
SECTION 7.10. HEDGING TRANSACTIONS. The Borrower will not, and will
not permit any of the Subsidiaries to, enter into any Hedging Transaction, other
than Hedging Transactions entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities. Solely for the
avoidance of doubt, the Borrower acknowledges that a Hedging Transaction entered
into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Transaction under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any common stock or any Indebtedness or (ii)
as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Transaction entered into in the ordinary course
of business to hedge or mitigate risks.
SECTION 7.11. ACCOUNTING CHANGES. The Borrower will not, and will not
permit any of its Subsidiaries to, make any significant change in accounting
treatment or reporting practices, except as required by law or GAAP with respect
to which the Borrower and its Subsidiaries is required to maintain written
records in relation to its business and activities, or change the fiscal year of
the Borrower or of any of its Subsidiaries, except to change the fiscal year of
a Subsidiary to conform its fiscal year to that of the Borrower.
SECTION 7.12. RESTRICTIONS ON AGREEMENTS GOVERNING INDEBTEDNESS. The
Borrower will not, and will not permit any of its Subsidiaries to, enter into or
otherwise become a party to any agreement governing Indebtedness of the Borrower
or such Subsidiary which contains any redemption or "put rights" with respect to
such Indebtedness.
SECTION 7.13. CERTAIN AMENDMENTS TO CASH DISTRIBUTION POLICIES AND
BORROWER PARTNERSHIP AGREEMENT. The Borrower agrees that it shall not consent
to, vote in favor of or permit any amendment of (a) its cash distribution
policies of in any manner which would result in a Material Adverse Event or
materially adversely affect the rights and remedies of Lenders under and in
connection with this Agreement, the Notes or any other Loan Document; or (b) the
Borrower Partnership Agreement, in any manner which would (i) have a material
adverse effect on the rights and remedies of Lenders under and in connection
with this Agreement, the Notes or any other Loan Document; or (ii) result in a
Material Adverse Event.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following events (each
an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or of any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount payable under clause (a) of this
Section 8.1) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of five (5) days; or
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement or any
other Loan Document (including the Schedules attached thereto) and any
amendments or modifications hereof or waivers hereunder, or in any certificate,
report, financial statement or other document submitted to the Administrative
Agent or the Lenders by the Borrower or any representative of the Borrower
pursuant to or in connection with this Agreement or any other Loan Document
shall prove to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant or
agreement contained in Sections 5.1, 5.2, or 5.3 (with respect to the Borrower's
existence) or Articles VI or VII; or
(e) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those referred to in clauses
(a), (b) and (d) above) or any other Loan Document, and such failure shall
remain unremedied for 30 days after the earlier of (i) any officer of the
Borrower becomes aware of such failure, or (ii) notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of, or premium or
interest on, any Material Indebtedness that is outstanding, when and as the same
shall become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument evidencing or governing such Indebtedness; or any other event shall
occur or condition shall exist under any agreement or instrument relating to
such Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable,
or required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or
55
redemption), purchased or defeased, or any offer to prepay, redeem, purchase or
defease such Indebtedness shall be required to be made, in each case prior to
the stated maturity thereof;; or
(g) the Borrower or any Subsidiary shall (i) commence a voluntary case
or other proceeding or file any petition seeking liquidation, reorganization or
other relief under any federal, state or foreign bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (i) of this Section 8.1, (iii) apply for or consent to the appointment
of a custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any such Subsidiary or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of
creditors, or (vi) take any action for the purpose of effecting any of the
foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or any substantial
part of its assets, under any federal, state or foreign bankruptcy, insolvency
or other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, and in any
such case, such proceeding or petition shall remain undismissed for a period of
60 days or an order or decree approving or ordering any of the foregoing shall
be entered; or
(i) the Borrower or any Subsidiary shall become unable to pay, shall
admit in writing its inability to pay, or shall fail to pay, its debts as they
become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in liability to the Borrower
and the Subsidiaries in an aggregate amount exceeding $15,000,000; or
(k) any judgment or order for the payment of money in excess of
$15,000,000 in the aggregate shall be rendered against the Borrower or any
Subsidiary, and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against the
Borrower or any Subsidiary that could reasonably be expected to have a Material
Adverse Effect, and there shall be a period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any Loan Document shall, at any time after its execution and
delivery and for any reason, cease to be in full force and effect in any
material respect, or be declared to be null and void (other than in accordance
with the terms hereof or thereof), or the validity or
56
enforceability thereof be contested by the Borrower, or the Borrower shall deny
in writing that it has any or any further liability or obligations under any
Loan Document to which it is a party; or
(o) any event or condition shall occur or exist with respect to any
activity or substance regulated under the Environmental Law and, as a result of
such event or condition, the Borrower or any of its Subsidiaries shall have
incurred or in the opinion of the Required Lenders will be reasonably likely to
incur a liability in excess of $15,000,000 during any consecutive twelve (12)
month period; or
(p) the Borrower shall dissolve, liquidate, or otherwise terminate its
existence; or
(q) the Borrower or any Partner or any parent company thereof shall
seek, or shall directly or indirectly cause any Person to see, in any proceeding
before the FERC or any other administrative or legal authority in the United
States or Canada to rescind or terminate or to have repealed or declared invalid
the Tariff, or to suspend, amend or modify the Tariff in any respect, which may
reasonably by expected to have a Material Adverse Effect on the Borrower's
ability to perform its obligations under the Loan Documents; provided, however,
that no Event of Default shall occur under this Section 8.1(q) solely by reason
of the taking of any action required to be taken by any such Person to satisfy
the requirements of any order of any court or regulatory authority having
jurisdiction;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section 8.1) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately, (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become, due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower,
(iii) exercise all remedies contained in any other Loan Document, and (iv)
exercise any other remedies available at law or in equity; and that, if an Event
of Default specified in either clause (g) or (h) shall occur, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon, and all fees, and all other Obligations
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT.
(a) Each Lender irrevocably appoints Wachovia Bank, National
Association as the Administrative Agent and authorizes it to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent under this Agreement and the other
57
Loan Documents, together with all such actions and powers that are reasonably
incidental thereto. The Administrative Agent may perform any of its duties
hereunder or under the other Loan Documents by or through any one or more
sub-agents or attorneys-in-fact appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent or attorney-in-fact may perform any
and all of its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions set forth in this Article
shall apply to any such sub-agent or attorney-in-fact and the Related Parties of
the Administrative Agent, any such sub-agent and any such attorney-in-fact and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as the Administrative Agent may agree at
the request of the Required Lenders to act for the Issuing Bank with respect
thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article with respect
to any acts taken or omissions suffered by the Issuing Bank in connection with
Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used in this Article
included the Issuing Bank with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Issuing Bank.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 10.2) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
sub-agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall not be deemed to have knowledge of any Default or
Event of Default unless and until written notice thereof (which notice shall
include an express reference to such event being a "Default" or "Event of
Default" hereunder) is given to the Administrative Agent by the Borrower or any
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder
58
or thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements, or other terms and conditions
set forth in any Loan Document, (iv) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article III or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent. The Administrative Agent
may consult with legal counsel (including counsel for the Borrower) concerning
all matters pertaining to such duties.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT. Each of the
Lenders, the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Lenders; and the Administrative Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made by
the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts.
SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
bank serving as the Administrative Agent shall have the same rights and powers
under this Agreement and any other Loan Document in its capacity as a Lender as
any other Lender and may exercise or refrain from exercising the same as though
it were not the Administrative Agent; and the terms "Lenders", "Required
Lenders", "holders of Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in its individual
capacity. The bank acting as the Administrative Agent and its Affiliates may
accept deposits from, lend
59
money to, and generally engage in any kind of business with the Borrower or any
Subsidiary or Affiliate of the Borrower as if it were not the Administrative
Agent hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent,
subject to the approval by the Borrower provided that no Default or Event of
Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof or
a bank which maintains an office in the United States, having a combined capital
and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations under this Agreement and the
other Loan Documents. If within 45 days after written notice is given of the
retiring Administrative Agent's resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
of this Article shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent.
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS. Each
Lender hereby authorizes the Administrative Agent to execute on behalf of all
Lenders all Loan Documents other than this Agreement.
SECTION 9.9. SYNDICATION AGENT AND CO-DOCUMENTATION AGENTS. Each
Lender hereby designates SunTrust Bank as Syndication Agent and agrees that the
Syndication Agent shall have no duties or obligations under any Loan Documents
to any Lender or the Borrower. Each Lender hereby designates Xxxxxx Xxxxxx
Financing, Inc., Barclays Bank PLC, and Citibank, N.A., as Co-Documentation
Agents and agrees that the Co-Documentation Agents shall have no duties or
obligations under any Loan Documents to any Lender or any Loan Party.
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ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: Northern Border Pipeline Company
00000 XXX Xxxxxxx
Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx,
Vice President, Finance and Treasurer
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to: Northern Plains Natural Gas Company
00000 XXX Xxxxxxx
Xxxxx, XX 00000
Attn: Ms. Xxxxx Place
Vice President and General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
To the Administrative Agent,
the Issuing Bank or the
Swingline Lender: Wachovia Bank, National Association,
as Administrative Agent
Charlotte Plaza
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telecopier: 000-000-0000
Telephone: (000) 000-0000
with a copy to:
Wachovia Bank, National Association
Xxx Xxxxxxxx Xxxxxx, 0xx xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxx. Xxxxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
61
and
King & Spalding LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
To any other Lender: the address set forth in the
Administrative Questionnaire or the
Assignment and Acceptance Agreement
executed by such Lender
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All such
notices and other communications shall, when transmitted by overnight delivery,
or faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Bank shall not be effective until
actually received by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or
other Person on account of any action taken or not taken by the Administrative
Agent or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any extent by any failure of
the Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in any such telephonic
or facsimile notice.
SECTION 10.2. WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the Issuing Bank
or any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the Borrower and the Administrative
Agent or any Lender, shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 10.2, and then such waiver or
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consent shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making of a
Loan or the issuance of a Letter of Credit shall not be construed as a waiver of
any Default or Event of Default, regardless of whether the Administrative Agent,
any Lender or the Issuing Bank may have had notice or knowledge of such Default
or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the
other Loan Documents, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Borrower and the Required Lenders or the Borrower and the Administrative
Agent with the consent of the Required Lenders and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii) reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or LC Disbursement or
interest thereon or any fees hereunder or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender affected
thereby, (iv) change Section 2.19(b) or (c) in a manner that would alter the pro
rata sharing of payments required thereby, without the written consent of each
Lender or waive or amend any condition set forth in Section 3.1, (v) change any
of the provisions of this Section 10.2 or the definition of "Required Lenders"
or any other provision hereof specifying the number or percentage of Lenders
which are required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent of each
Lender; (vi) release any guarantor or limit the liability of any such guarantor
under any guaranty agreement, without the written consent of each Lender; (vii)
release all or substantially all collateral (if any) securing any of the
Obligations, without the written consent of each Lender; provided further, that
no such agreement shall amend, modify or otherwise affect the rights, duties or
obligations of the Administrative Agent, the Swingline Bank or the Issuing Bank
without the prior written consent of such Person. Notwithstanding anything
contained herein to the contrary, this Agreement may be amended and restated
without the consent of any Lender (but with the consent of the Borrower and the
Administrative Agent) if, upon giving effect to such amendment and restatement,
such Lender shall no longer be a party to this Agreement (as so amended and
restated), the Commitments of such Lender shall have terminated (but such Lender
shall continue to be entitled to the benefits of Sections 2.16, 2.17, 2.18 and
10.3), such Lender shall have no other commitment or other obligation hereunder
and shall have been paid in full all principal, interest and other amounts owing
to it or accrued for its account under this Agreement.
SECTION 10.3. EXPENSES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and
expenses of the Administrative Agent, the Syndication Agent and their
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, the Syndication Agent and their Affiliates, in
connection with the syndication of the credit facilities provided for herein,
the preparation of the Loan Documents and any amendments, modifications or
waivers thereof (whether or not the transactions contemplated in this Agreement
or any other
63
Loan Document shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket costs and expenses (including, without limitation, the
reasonable fees, charges and disbursements of outside counsel) incurred by the
Administrative Agent, the Syndication Agent, the Issuing Bank or any Lender in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section 10.3, or in connection
with the Loans made or any Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent (and any
sub-agent thereof), each Lender and the Issuing Bank, and each Related Party of
any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold
harmless each Indemnitee from all fees and time charges and disbursements for
attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower or any of
its Subsidiaries arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or Release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory, whether brought by a third party or by the Borrower or any
other Subsidiary, and regardless of whether any Indemnitee is a party thereto,
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
(x) are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee, (y) result from a claim brought by the Borrower
or any other Subsidiary against an Indemnitee for breach in bad faith of such
Indemnitee's obligations hereunder or under any other Loan Document, if the
Borrower or such Subsidiary has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction or
(z) result from a claim brought by one Indemnitee against another Indemnitee
(other than the Administrative Agent, the Syndication Agent, the Swingline
Lender or the Issuing Bank, in their capacities as such).
(c) The Borrower shall pay, and hold the Administrative Agent and each
of the Lenders harmless from and against, any and all present and future stamp,
documentary, and other similar taxes with respect to this Agreement and any
other Loan Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each
64
Lender harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required
to be paid to the Administrative Agent, the Issuing Bank or the Swingline Lender
under clauses (a), (b) or (c) hereof, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender's Pro Rata Share (determined as of the time that the
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, that the unreimbursed expense or indemnified payment, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to actual or direct damages) arising out of, in connection with or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or any Letter of Credit or the use
of proceeds thereof.
(f) All amounts due under this Section 10.4 shall be payable promptly
after written demand therefor.
SECTION 10.4. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender, and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of paragraph (b) of this Section, (ii) by way of
participation in accordance with the provisions of paragraph (d) of this Section
or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of paragraph (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in paragraph (d) of this
Section and, to the extent expressly contemplated hereby, the Related Parties of
each of the Administrative Agent and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more assignees all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
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(A) in the case of an assignment of the entire remaining amount
of the assigning Lender's Commitment and the Loans at the time owing
to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in paragraph (b)(i)(A) of this
Section, the aggregate amount of the Commitment (which for this
purpose includes Revolving Credit Exposure outstanding thereunder) or,
if the applicable Commitment is not then in effect, the principal
outstanding balance of the Revolving Credit Exposure of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent or, if "Trade Date" is specified in the
Assignment and Acceptance, as of the Trade Date) shall not be less
than $1,000,000, unless each of the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld
or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as
an assignment of a proportionate part of all the assigning Lender's rights
and obligations under this Agreement with respect to the Revolving Credit
Exposure or the Commitment assigned.
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by paragraph (b)(i)(B) of this
Section and, in addition:
(A) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (x) an
Event of Default has occurred and is continuing at the time of such
assignment or (y) such assignment is to a Lender, an Affiliate of a
Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to
be unreasonably withheld or delayed) shall be required for assignments
to a Person that is not a Lender with a Commitment; and
(C) the consent of the Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment
that increases the obligation of the assignee to participate in
exposure under one or more Letters of Credit (whether or not then
outstanding), and the consent of the Swingline Lender (such consent
not to be unreasonably withheld or delayed) shall be required for any
assignment in respect of the Revolving Credit Commitments.
(iv) Assignment and Acceptance. The parties to each assignment shall
deliver to the Administrative Agent (A) a duly executed Assignment and
Acceptance, (B) a processing and recordation fee of $1,000, (C) an
Administrative Questionnaire unless the assignee is already a Lender and
(D) the documents required under Section 10.4 if such assignee is a Foreign
Lender.
66
(v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (c) of this Section 10.4, from and after the effective date
specified in each Assignment and Acceptance, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 2.19, 2.20, 2.21 and 10.3 with
respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (d) of this Section
10.4.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Charlotte, North
Carolina a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Revolving Credit Exposure owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or notice to,
the Borrower, the Administrative Agent, the Swingline Bank or the Issuing Bank
sell participations to any Person (other than a natural person, the Borrower or
any of the Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all
or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Lenders, Issuing Bank and Swingline Lender shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement.
(e) Any agreement or instrument pursuant to which a Lender sells such
a participation shall provide that such Lender shall retain the sole right to
enforce this Agreement
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and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver with respect to the following to the extent affecting
such Participant: (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the date fixed for any payment of any principal of, or interest on, any
Loan or LC Disbursement or interest thereon or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date for
the termination or reduction of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.19(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
10.4 or the definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders which are required to waive,
amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the consent of each Lender; (vi) release any
guarantor or limit the liability of any such guarantor under any guaranty
agreement without the written consent of each Lender; or (vii) release all or
substantially all collateral (if any) securing any of the Obligations. Subject
to paragraph (e) of this Section 10.4, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.16, 2.17, and 2.18 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section 10.4. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 10.7 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.19 as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.16 and Section 2.18 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.18 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.18(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United States
District Court of the
00
Xxxxxxxx Xxxxxxxx xx Xxx Xxxx, and of any state court of the State of Supreme
Court of the State of New York sitting in New York county and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Loan Document or the transactions contemplated
hereby or thereby, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York state court or, to the extent permitted by applicable law, such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding described in paragraph (b) of this Section 10.5 and brought
in any court referred to in paragraph (b) of this Section 10.5. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service
of process in the manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. RIGHT OF SETOFF. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, to set off and
apply against all deposits (general or special, time or demand, provisional or
final) of the
69
Borrower at any time held or other obligations at any time owing by such Lender
and the Issuing Bank to or for the credit or the account of the Borrower against
any and all Obligations held by such Lender or the Issuing Bank, as the case may
be, irrespective of whether such Lender or the Issuing Bank shall have made
demand hereunder and although such Obligations may be unmatured. Each Lender and
the Issuing Bank agree promptly to notify the Administrative Agent and the
Borrower after any such set-off and any application made by such Lender and the
Issuing Bank, as the case may be; provided, that the failure to give such notice
shall not affect the validity of such set-off and application.
SECTION 10.8. COUNTERPARTS; INTEGRATION. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letters, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute
the entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
SECTION 10.9. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.16, 2.17, 2.18, and 10.3 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof as the
case may be. All representations and warranties made herein, in the
certificates, reports, notices, and other documents delivered pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
other Loan Documents, and the making of the Loans and the issuance of the
Letters of Credit.
SECTION 10.10. SEVERABILITY. Any provision of this Agreement or any
other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11. CONFIDENTIALITY. Each of the Administrative Agent, the
Issuing Bank and each Lender agrees to take normal and reasonable precautions to
maintain the confidentiality of any information designated in writing as
confidential and provided to it by the
70
Borrower or any Subsidiary, except that such information may be disclosed (i) to
any Related Party of the Administrative Agent, the Issuing Bank or any such
Lender, including without limitation accountants, legal counsel and other
advisors, (ii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (iii) to the extent requested by any
regulatory agency or authority, (iv) to the extent that such information becomes
publicly available other than as a result of a breach of this Section 10.11, or
which becomes available to the Administrative Agent, the Issuing Bank, any
Lender or any Related Party of any of the foregoing on a nonconfidential basis
from a source other than the Borrower, (v) in connection with the exercise of
any remedy hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, and (ix) subject to provisions
substantially similar to this Section 10.11, to any actual or prospective
assignee or Participant, or (vi) with the consent of the Borrower. Any Person
required to maintain the confidentiality of any information as provided for in
this Section 10.11 shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the
confidentiality of such information as such Person would accord its own
confidential information.
SECTION 10.12. INTEREST RATE LIMITATION. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which may be treated as
interest on such Loan under applicable law (collectively, the "Charges"), shall
exceed the maximum lawful rate of interest (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 10.12 shall be cumulated
and the interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
SECTION 10.13. WAIVER OF EFFECT OF CORPORATE SEAL. The Borrower
represents and warrants that it is not required to affix its corporate seal to
this Agreement or any other Loan Document pursuant to any Requirement of Law or
regulation, agrees that this Agreement is delivered by Borrower under seal and
waives any shortening of the statute of limitations that may result from not
affixing the corporate seal to this Agreement or such other Loan Documents.
SECTION 10.14. PATRIOT ACT. The Administrative Agent and each Lender
hereby notifies the Borrower that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Patriot Act"), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower in accordance with
the Patriot Act. The Borrower shall, and shall cause each of its Subsidiaries
to, provide to the extent commercially reasonable, such information and take
such other actions as are reasonably requested by the Administrative Agent or
any Lender in order to assist the Administrative Agent and the Lenders in
maintaining compliance with the Patriot Act.
71
SECTION 10.15. NO GENERAL PARTNER LIABILITY The Administrative Agent
and Lenders agree for themselves and their respective successors, participants
and assigns, including any subsequent holder of any Note, that any claim against
Borrower which may arise under any Loan Document shall be made only against and
shall be limited to the assets of Borrower, and that no judgment, order or
execution entered in any suit, action or proceeding, whether legal or equitable,
on this Agreement, such Note or any of the other Loan Documents shall be
obtained or enforced against any general partner of the Borrower or its assets
for the purpose of obtaining satisfaction and payment of such Note, the
Obligations evidenced thereby, any other Obligation or any claims arising
thereunder or under this Agreement or any other Loan Document, any right to
proceed against any general partner of the Borrower individually or their
respective representatives or assets being hereby expressly waived, renounced
and remitted by the Administrative Agent and Lenders for themselves and their
respective successors, participants and assigns. Nothing in this Section 10.15,
however, shall be construed so as to prevent the Administrative Agent, any
Lender or any other holder of any Note from commencing any action, suit or
proceeding with respect to or causing legal papers to be served upon any general
partner of the Borrower for the purpose of obtaining jurisdiction over Borrower.
(remainder of page left intentionally blank)
72
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
NORTHERN BORDER PIPELINE COMPANY
By: Northern Plains Natural Gas Company LLC,
as Operator
By /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Finance and Treasurer
WACHOVIA BANK, NATIONAL ASSOCIATION
AS ADMINISTRATIVE AGENT, AS ISSUING BANK, AS
SWINGLINE LENDER AND AS A LENDER
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
[SIGNATURE PAGES TO THE NORTHERN BORDER PIPELINE CREDIT AGREEMENT]
SUNTRUST BANK
AS SYNDICATION AGENT AND AS A LENDER
By /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Managing Director
[SIGNATURE PAGES TO THE NORTHERN BORDER PIPELINE CREDIT AGREEMENT]
XXXXXX XXXXXXX FINANCING, INC., AS A LENDER
By: /s/ Xxxx Xxxxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxxx Xxxxx
Title: Vice President
[SIGNATURE PAGES TO THE NORTHERN BORDER PIPELINE CREDIT AGREEMENT]
BARCLAYS BANK PLC
By: /s/ Xxxxxxxx Xxxx
----------------------------------------
Name: Xxxxxxxx Xxxx
Title: Director
[SIGNATURE PAGES TO THE NORTHERN BORDER PIPELINE CREDIT AGREEMENT]
CITIBANK, N.A., AS A LENDER
By: /s/ Xxx X. Xxxxx
----------------------------------------
Name: Xxx X. Xxxxx
Title: Attorney-In-Fact
[SIGNATURE PAGES TO THE NORTHERN BORDER PIPELINE CREDIT AGREEMENT]
MIZUHO CORPORATE BANK, LTD, AS A LENDER
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
[SIGNATURE PAGES TO THE NORTHERN BORDER PIPELINE CREDIT AGREEMENT]
ROYAL BANK OF CANADA, AS A LENDER
By: /s/ Xxxxx X. XxXxxxxxx
----------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Authorized Signatory
[SIGNATURE PAGES TO THE NORTHERN BORDER PIPELINE CREDIT AGREEMENT]
XXXXX FARGO BANK, N.A., AS A LENDER
By: /s/ Xxx Xxxxx
----------------------------------------
Name: Xxx Xxxxx
Title: Portfolio Manager
[SIGNATURE PAGES TO THE NORTHERN BORDER PIPELINE CREDIT AGREEMENT]
SCHEDULE I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
Applicable Applicable Applicable
Pricing Margin for Margin for Percentage for
Level Rating Category Eurodollar Loans Base Rate Loans Facility Fee
------- --------------- ---------------- --------------- ----------------
I A-or higher/A3 or higher 0.325% per annum 0.00% per annum 0.075% per annum
II BBB+/Baa1 0.400% per annum 0.00% per annum 0.100% per annum
III BBB/Baa2 0.500% per annum 0.00% per annum 0.125% per annum
IV BBB- /Baa3 0.575% per annum 0.00% per annum 0.175% per annum
V BB+ or lower/Ba1 or lower 1.00% per annum 0.00% per annum 0.250% per annum
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior, unsecured long-term debt securities of the Borrower
without third-party credit enhancement, whether or not any such debt securities
are actually outstanding, and any rating assigned to any other debt security of
the Borrower shall be disregarded. The rating in effect on any date is that in
effect at the close of business on such date. If the Borrower is split-rated and
(1) the ratings differential is one category, the higher of the two ratings will
apply (e.g., A-/Baa1 results in Level I status) (2) the ratings differential is
two categories, the rating which falls between them shall apply (e.g., A-/Baa2,
then the rate would be based on Level II status) or (3) the ratings differential
is more than two category, the rate shall be determined by reference to the
category next above that of the lower of the two ratings (e.g., A-/Baa3, then
the rate would be based on Level III status). If the Borrower is not rated by
either Xxxxx'x or S&P, then the rate shall be established by reference to Level
V.
If the rating system of Xxxxx'x or S&P shall change, or if either rating
agency shall cease to be in the business of rating corporate debt obligations,
the Borrower, the Lenders and the Administrative Agent shall negotiate in good
faith to amend this Schedule to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Margin and the Applicable Percentage shall
be determined by reference to the rating most recently in effect prior to any
such change or cessation. If after a reasonable time the parties cannot agree to
a mutually acceptable
amendment, the Applicable Margin and the Applicable Percentage shall be
determined by reference to Level V.
Schedule I-2
SCHEDULE II
COMMITMENT AMOUNTS
REVOLVING COMMITMENT
LENDER AMOUNT PRO RATA SHARE
------ -------------------- --------------
Wachovia Bank, National Association $30,000,000 17.142857143%
SunTrust Bank $30,000,000 17.142857143%
Xxxxxx Xxxxxxx Financing, Inc. $21,000,000 12.00%
Barclays Bank PLC $21,000,000 12.00%
Citibank, N.A. $21,000,000 12.00%
Mizuho Corporate Bank, Ltd. $21,000,000 12.00%
Royal Bank of Canada $15,500,000 8.000000000%
Xxxxx Fargo Bank, N.A. $15,500,000 8.857142827%
SCHEDULE 4.5
ENVIRONMENTAL MATTERS
None
SCHEDULE 4.14
SUBSIDIARIES
None
SCHEDULE 7.2
EXISTING LIENS
None
Schedule 7.2
SCHEDULE 7.4
EXISTING INVESTMENTS
None
SCHEDULE 7.7
TRANSACTIONS WITH AFFILIATES
Operating Agreement dated as of February 28, 1980 between Northern Border
Pipeline Company and Northern Plains Natural Gas Company, LLC as amended,
modified or supplemented from time to time.
Services Agreement to be entered into with ONEOK, Inc. for the benefit of
Borrower and its Subsidiaries for services including but not limited to
corporate accounting, human resources and benefits, information technology,
purchasing, administration and systems.
Service Agreements entered, and to be entered into, between Northern Border
Pipeline Company and ONEOK Energy Services Company, L.P. for firm and
interruptible transportation on the Pipeline and on the proposed expansion
project on the Pipeline.
Schedule 7.7
