EXHIBIT 10(c)
CREDIT AGREEMENT
among
NORTHERN BORDER PIPELINE COMPANY,
a Texas general partnership,
as Borrower
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
THE FIRST NATIONAL BANK OF CHICAGO,
ROYAL BANK OF CANADA, and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agents
and
FIRST CHICAGO CAPITAL MARKETS, INC.,
ROYAL BANK OF CANADA, and
BANCAMERICA SECURITIES, INC.
as Joint Arrangers
Dated as of June 16, 1997
CREDIT AGREEMENT
This Credit Agreement, dated as of June 16, 1997, is among
Northern Border Pipeline Company, a Texas general partnership, as
Borrower (the "Borrower"), the Lenders (hereinafter defined), The
First National Bank of Chicago, as Administrative Agent (in such
capacity, the "Administrative Agent") , The First National Bank
of Chicago, Royal Bank of Canada and Bank of America, as
Syndication Agents (in such capacity "Syndication Agents") and
collectively, with the Administrative Agent, (the "Agents") and
First Chicago Capital Markets, Inc., Royal Bank of Canada and
BancAmerica Securities, Inc., as Joint Arrangers (in such
capacity, collectively the "Joint Arrangers"). The parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.1. Defined Terms.
As used in this Agreement:
"ABR" means a fluctuating rate of interest equal to the
higher of (a) CBR and (b) the Federal Funds Effective Rate most
recently determined by the Administrative Agent plus 1/2% per
annum.
"ABR Advance" means an Advance which bears interest at the
ABR.
"Absolute Rate" means, with respect to a Loan made by a
particular Lender for the relevant Absolute Rate Interest Period,
the rate of interest per annum (rounded to the nearest 1/100 of
1%) offered by such Lender and accepted by the Borrower pursuant
to Section 2.3.6(b).
"Absolute Rate Advance" means a borrowing hereunder
consisting of the aggregate amount of the several Absolute Rate
Loans made by some or all of the Lenders to the Borrower at the
same time and for the same Absolute Rate Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive
Bid Quotes setting forth Absolute Rates pursuant to Section 2.3.
"Absolute Rate Interest Period" means, with respect to an
Absolute Rate Advance or an Absolute Rate Loan, a period from
seven up to 360 days commencing on a Business Day selected by the
Borrower pursuant to this Agreement. If such Absolute Rate
Interest Period would end on a day which is not a Business Day,
such Absolute Rate Interest Period shall end on the next
succeeding Business Day.
"Absolute Rate Loan" means a Loan which bears interest at an
Absolute Rate.
"Accepting Lender" is defined in Section 2.23.
"Acquisition" means any transaction, or any series of
related transactions, consummated after the date of this
Agreement, by which the Borrower or any of the Subsidiaries (i)
acquires any going business or all or substantially all of the
assets of any firm, corporation or division thereof, whether
through purchase of assets or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority of
the ownership of a Person.
"Administrative Agent" means The First National Bank of
Chicago in its capacity as Administrative Agent or any successor
thereto in such capacity.
"Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Loans made by the Lenders to the
Borrower on the same Borrowing Date, at the same Rate Option and
for the same Interest Period, or a Swing Loan, as the case may
be.
"Affiliate" means a Person which, directly or indirectly,
controls or is controlled by or under common control with any
other Person. For purposes of this definition, the concept of
"control", when used with respect to any specified Person, shall
signify the possession of the power to direct the management and
policies of such Person, directly or indirectly, whether through
the ownership of voting securities or by contract or otherwise.
"Agents" means collectively, the Administrative Agent and
Syndication Agents in their capacity as Administrative Agent and
Syndication Agents and not in their individual capacities as a
Lender, and any successor Agents appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the
Commitments of all the Lenders as reduced from time to time
pursuant to the terms hereof.
"Agreement" means this credit agreement, as it may be
amended, modified or supplemented from time to time.
"Applicable Margin" means the number of basis points per
annum, which shall be subject to adjustment (upwards or
downwards, as appropriate) based on the Leverage Ratio, in
accordance with the table set forth below; provided, that
notwithstanding the foregoing, so long as the Borrower's senior
unsecured long term debt has a rating of at least A- by Standard
& Poors Ratings Group or A3 by Xxxxx'x Investors Services, the
Applicable Margin is 17.5 bps for purposes of determining the
Eurodollar Rate and 30 bps for purposes of determining the Fixed
CD Rate. The Leverage Ratio shall be determined from the then
most recent annual or quarterly financial statements delivered by
the Borrower pursuant to Sections 6.1.1(a) or 6.1.1(b) and any
changes in the Applicable Margin shall become effective five days
following the delivery of such financial statements. Until
financial statements for the first fiscal quarter ending after
the date hereof have been delivered, the Applicable Margin for
purposes of determining the Eurodollar Rate shall be 21 basis
points and for purposes of determining the Fixed CD Rate shall be
33.5 basis points based upon a Leverage Ratio of 43%. In the
event that the Borrower shall at any time fail to furnish to the
Lenders the financial statements required to be delivered
pursuant to Section 6.1.1(a) or 6.1.1(b) by the time required
pursuant to such Section, the maximum Applicable Margin as set
forth in the table below shall apply until such time as such
financial statements are so delivered.
Leverage Leverage
Ratio Ratio
<55% >55%
Eurodollar 21 22.5
Rate +
CD Base Rate 33.5 35
+
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Assessment Rate" means, for any CD Interest Period, the net
assessment rate per annum (rounded upwards, if necessary, to the
next higher 1/100 of 1%) payable to the Federal Deposit Insurance
Corporation (or any successor) for the insurance of domestic
deposits of First Chicago during the calendar year in which the
first day of such CD Interest Period falls, as estimated by First
Chicago on the first day of the CD Interest Period.
"Authorized Officer" means any of the President; Vice
President, Finance, or any vice president of the Operator, acting
singly.
"Authorized Representative" means any Authorized Officer,
the Operator's Director, Finance or the Operator's Manager, Debt
& Investment.
"Borrowing Date" means a date on which an Advance is made or
to be made hereunder.
"Borrowing Notice" is defined in Section 2.9.
"Business Day" means (i) with respect to borrowing, payment
or rate selection of Eurodollar Advances, a day other than
Saturday or Sunday on which commercial banks are open for
business in Chicago and New York and on which dealings in U.S.
dollars are carried on in the London interbank market and (ii)
for all other purposes, a day other than Saturday or Sunday on
which commercial banks are open for business in Chicago and New
York.
"Capitalized Lease" of a Person means any lease of property
by such Person as lessee which would be capitalized on a balance
sheet of such Person prepared in accordance with GAAP.
"Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which
would be shown as a liability on a balance sheet of such Person
prepared in accordance with GAAP.
"CBR" means the corporate base rate of interest announced by
the Administrative Agent from time to time, changing when and as
said corporate base rate changes.
"CD Interest Period" means, with respect to a Fixed CD Rate
Advance, a period of 30, 60, 90 or 180 days commencing on a
Business Day selected by the Borrower pursuant to this Agreement.
If such CD Interest Period would end on a day which is not a
Business Day, such CD Interest Period shall end on the next
succeeding Business Day.
"CD Base Rate" means, relative to any Interest Period for CD
Rate Loans, the rate of interest determined by the Administrative
Agent to be the arithmetic average (rounded upwards, if
necessary, to the nearest 1/100th of 1%) of the prevailing rates
per annum bid at 10:00 a.m., Chicago time (or as soon thereafter
as practicable), on the first day of such Interest Period by two
or more certificate of deposit dealers of recognized standing for
the purchase at face value from each Reference Lender of its
certificates of deposit in an amount approximately equal to the
CD Rate Loan being made or maintained by each such Reference
Lender to which such Interest Period applies and having a
maturity approximately equal to such Interest Period.
"Change" is defined in Section 3.2.
"Closing Date" means the date the conditions of Section 4.1
are satisfied.
"Commitment" means, for each Lender, the obligation of such
Lender to make Facility A Loans and Facility B Loans not
exceeding the amount set forth opposite its signature below or as
set forth in any Notice of Assignment relating to any assignment
that has become effective pursuant to Section 12.3.2, as such
amount may be modified from time to time pursuant to the terms
hereof.
"Competitive Bid Advance" means a borrowing hereunder
consisting of the aggregate amount of the several Competitive Bid
Loans made by some or all of the Lenders to the Borrower at the
same time, at the same interest basis, for the same Interest
Period and under the same Facility.
"Competitive Bid Borrowing Notice" is defined in Section
2.3.6.
"Competitive Bid Loan" means a Eurodollar Bid Rate Loan or
an Absolute Rate Loan, as the case may be made pursuant to
Section 2.3.
"Competitive Bid Margin" means the margin above or below the
applicable Eurodollar Rate offered for a Eurodollar Loan,
expressed as a percentage (rounded to the nearest 1/100 of 1%) to
be added or subtracted from such Eurodollar Rate.
"Competitive Bid Note" means a promissory note in
substantially the form of Exhibit "A-2" hereto, with appropriate
insertions, duly executed and delivered to the Administrative
Agent by the Borrower for the account of a Lender and payable to
the order of such Lender, including any amendment, modification,
renewal or replacement of such promissory note.
"Competitive Bid Quote" means a Competitive Bid Quote
substantially in the form of Exhibit "C" hereto completed and
delivered by a Lender to the Administrative Agent in accordance
with Section 2.3.4.
"Competitive Bid Quote Request" means a Competitive Bid
Quote Request substantially in the form of Exhibit "E" hereto
completed and delivered by the Borrower to the Administrative
Agent in accordance with Section 2.3.2.
"Compliance Certificate" is defined in Section 6.1.1(c).
"Consolidated Net Worth" means at any date the Partners'
Capital of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP as of such date.
"Conversion Date" means the date on which the applicable
conditions precedent to conversion of the outstanding Facility B
Advances as set forth in Section 4.3 are satisfied.
"Declining Lender" is defined in Section 2.23.
"Default" means an event or circumstance which with notice,
or lapse of time, or both, will constitute an Event of Default.
"Dollars" and "$" each mean lawful money of the United
States.
"Environmental Laws" means any and all present Federal,
state, local and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, consent decrees, permits, concessions,
grants, franchises, licenses, agreements or other governmental
restrictions relating to the regulation or protection of human
health, safety or the environment or to emissions, discharges,
releases or threatened releases of hazardous materials into the
environment, including, without limitation, ambient air, soil,
surface water, groundwater, wetlands, land or subsurface strata,
or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of hazardous materials. Without limiting the foregoing,
Environmental Laws shall include, but not be limited to, the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq., as amended, the Solid Waste
Disposal Act, 42 U.S.C. Section 6901 et seq., as amended, the Federal
Water Pollution Control Act, 33 U.S.C. Section 1251 et seq., as amended,
the Clean Air Act, 42 U.S.C. Section 7401 et seq., as amended, the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Emergency
Planning and Community Right-to-Know-Act, 42 U.S.C. Section 11001 et
seq., the Natural Gas Pipeline Safety Act, 49 App. U.S.C. Section 1671
et seq., the Liquid Pipeline Safety Act, 40 U.S.C. Sections 1811, 2001
et seq., the Occupational Safety and Health Act, 29 U.S.C. Section 651
et seq., the Hazardous Materials Transportation Act, 49 U.S.
Section 1801 et seq., any analogous, foreign, state, and local laws,
and any rules or regulations promulgated thereunder.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any rule or regulation
issued thereunder.
"ERISA Affiliate" means each Person (as defined in Section
3(a) of ERISA) which together with the Borrower would be deemed
to be a member of the same "controlled group" within the meaning
of Section 414(b) and (c) of the Internal Revenue Code.
"Eurodollar Advance" means an Advance which bears interest
at the Eurodollar Rate.
"Eurodollar Auction" means a solicitation of Competitive Bid
Quotes priced at a margin above or below the Eurodollar Rate
pursuant to Section 2.3.2.
"Eurodollar Base Rate" means, with respect to any Eurodollar
Interest Period for any Eurodollar Loan, the rate per annum equal
to the average of the offered quotations appearing on Telerate
Page 3750 (or if such Telerate Page shall not be available, any
successor or similar service as may be selected by the
Administrative Agent and the Borrower) as of 11:00 a.m., London
time, (or as soon thereafter as practicable) on the day two
Business Days prior to the first day of such Eurodollar Interest
Period for dollar deposits having a term comparable to such
Eurodollar Interest Period. If none of such Telerate Page 3750
nor any successor or similar service is available, then the
"Eurodollar Base Rate" shall mean, with respect to any Eurodollar
Interest Period for any applicable Eurodollar Loan, the rate per
annum determined by the Administrative Agent to be the average of
the rates quoted by the Reference Lenders at approximately 11:00
a.m., London time, (or as soon thereafter as practicable) on the
day two Business Days prior to the first day of such Eurodollar
Interest Period for the offering by such Reference Lenders to
leading banks in the interbank market of U.S. dollar deposits
having a term comparable to such Eurodollar Interest Period and
in an amount comparable to the principal amount of the Eurodollar
Loan of such respective Reference Lender to which such Eurodollar
Interest Period relates. If any Reference Lender does not
furnish a timely quotation, the Agent shall determine the
relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Lender or
Lenders. Each determination of the Eurodollar Base Rate shall be
conclusive and binding, absent manifest error.
"Eurodollar Bid Rate" means, with respect to a Competitive
Bid Loan made by a given Lender for the relevant Eurodollar
Interest Period, the sum of (i) the Eurodollar Base Rate and (ii)
the Competitive Bid Margin offered by such Lender and accepted by
the Borrower pursuant to Section 2.3.6.
"Eurodollar Bid Rate Advance" means a Competitive Bid
Advance which bears interest at a Eurodollar Bid Rate.
"Eurodollar Bid Rate Loan" means a Competitive Bid Loan
which bears interest at a Eurodollar Bid Rate.
"Eurodollar Interest Period" means, with respect to a
Eurodollar Advance, a period of one, two, three, six or if
available from all Lenders twelve months commencing on a Business
Day selected by the Borrower pursuant to this Agreement. Such
Eurodollar Interest Period shall end on the day in the succeeding
calendar month which corresponds numerically to the beginning day
of such Eurodollar Interest Period, provided, however, that if
there is no such numerically corresponding day in such succeeding
month, such Eurodollar Interest Period shall end on the last
Business Day of such succeeding month. If a Eurodollar Interest
Period would otherwise end on a day which is not a Business Day,
such Eurodollar Interest Period shall end on the next succeeding
Business Day, provided, however, that if said next succeeding
Business Day falls in a new month, such Eurodollar Interest
Period shall end on the immediately preceding Business Day.
"Eurodollar Loan" means a Loan which bears interest at the
Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar
Advance or a Eurodollar Loan for the relevant Eurodollar Interest
Period the sum of (i) the Eurodollar Base Rate applicable to such
Eurodollar Interest Period plus (ii) the Applicable Margin. The
Eurodollar Rate shall be rounded, if necessary, to the next
higher 1/100th of 1%.
"Event of Default" means an event described in Article VII.
"Expansion and Extension" means the expansion and extension
of the Borrower's pipeline and related facilities (as described
in the Borrower's FERC filings relating thereto).
"Facility" means Facility A or Facility B, as the case may be.
"Facility A" means the revolving credit facility made
available to the Borrower pursuant to Section 2.1.
"Facility A Advance" means an Advance consisting of Facility
A Loans pursuant to Section 2.1.1 or a Swing Loan pursuant to
Section 2.1.3.
"Facility A Aggregate Commitment" means $200,000,000 as
reduced from time to time pursuant to the terms hereof.
"Facility A Commitment" means, for each Lender, the
obligation of such Lender to make Facility A Loans ratably in
proportion to the ratio that its Commitment bears to the
Aggregate Commitment or as set forth in any Notice of Assignment
relating to any assignment that has become effective pursuant to
Section 12.3.2, as such amount may be modified from time to time
pursuant to the terms hereof.
"Facility A Competitive Bid Advance" means a Competitive Bid
Advance under Facility A.
"Facility A Loan" means a Loan under Facility A.
"Facility A Termination Date" means the date five years from
the Closing Date, however the Borrower shall have the option to
extend such date pursuant to Section 2.23.
"Facility B" means the facility made available to the
Borrower pursuant to Section 2.2.
"Facility B Advance" means an Advance pursuant to Section
2.2.1.
"Facility B Aggregate Commitment" means $550,000,000 as
reduced from time to time pursuant to the terms hereof.
"Facility B Commitment" means, for each Lender, the
obligation of such Lender to make Facility B Loans ratably in
proportion to the ratio that its Commitment bears to the
Aggregate Commitment or as set forth in any Notice of Assignment
relating to any assignment that has become effective pursuant to
Section 12.3.2, as such amount may be modified from time to time
pursuant to the terms hereof.
"Facility B Competitive Bid Advance" means a Competitive Bid
Advance under Facility B.
"Facility B Loan" means a Loan under Facility B.
"Facility B Termination Date" means the date five years from
the Closing Date if the Conversion Date occurs on or before the
date three years from the Closing Date, otherwise it means the
date which is three years from the Closing Date.
"Facility Fee" means the number of basis points per annum,
which shall be subject to adjustment (upwards or downwards, as
appropriate) based on the Leverage Ratio, in accordance with the
table set forth below, provided, that notwithstanding the
foregoing, so long as the Borrower's senior unsecured long term
debt has a rating of at least A- by Standard & Poors Ratings
Group or at least A3 by Xxxxx'x Investors Services,
respectively, the Facility Fee shall be 7.5 bps. The Leverage
Ratio shall be determined from the then most recent annual or
quarterly financial statements delivered by the Borrower,
pursuant to Section 6.1.1(a) or 6.1.1(b) and any changes in the
Facility Fee shall become effective five days following the
delivery of such financial statements. Until financial
statements for the first fiscal quarter ending after the date
hereof have been delivered, the Facility Fee shall be 9 basis
points based upon a Leverage Ratio of 43%. In the event that the
Borrower shall at any time fail to furnish to the Lenders the
financial statements required to be delivered pursuant to Section
6.1.1(a) or 6.1.1(b), the maximum Facility Fee as set forth in
the table below shall apply until such time as such financial
statements are so delivered.
LEVERAGE LEVERAGE RATIO
RATIO GREATER THAN
LESS THAN OR EQUAL TO
55% 55%
Facility Fee 9 15
"Facility Note" means a promissory note in substantially the
form of Exhibit "A-1" hereto, duly executed and delivered to the
Administrative Agent by the Borrower and payable to the order of
a Lender in the amount of its Commitment, including any
amendment, modification, renewal or replacement of such
promissory note.
"Federal Funds Effective Rate" means, for any period a
fluctuating rate of interest equal for each day during such
period to (a) the weighted average of the rates on overnight
Federal Funds transaction with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such
day by the Federal Reserve Bank of New York or (b) if such rate
is not so published for any day the average of the quotations for
such day on such transactions received by the Administrative
Agent from three Federal Funds brokers of recognized standing
selected by it.
"FERC" means the Federal Energy Regulatory Commission and
any successor agency or commission.
"First Chicago" means The First National Bank of Chicago in
its individual capacity, and its successors.
"Fixed CD Rate" means with respect to a Fixed CD Rate
Advance or a Fixed CD Loan for the relevant CD Interest Period,
the sum of (i) the CD Base Rate applicable to such CD Interest
Period plus (ii) the Applicable Margin. The Fixed CD Rate shall
be rounded, if necessary, to the next higher 1/100 of 1%.
"Fixed CD Rate Advance" means an Advance which bears
interest at the Fixed CD Rate.
"Fixed CD Rate Loan" means a Loan which bears interest at
the Fixed CD Rate.
"Fixed Rate" means the Fixed CD Rate, the Eurodollar Rate,
the Absolute Rate or the Eurodollar Competitive Bid Rate. "Fixed
Rate Advance" and "Fixed Rate Loan" mean an Advance or a Loan, as
the case may be, which bears interest at a Fixed Rate.
"GAAP" means generally accepted accounting principles as in
effect from time to time, applied on a basis consistent with the
most recent financial statements of the Borrower and its
Subsidiaries delivered to the Lenders pursuant hereto.
"Guaranty" means, with respect to any Person, (a) all
indebtedness and other obligations, contingent or otherwise, of
such Person under or in respect of any letter of credit issued
for its own account, and (b) all indebtedness and other
obligations of such Person under any agreement, undertaking or
other arrangement by which such Person (i) assumes, guarantees,
endorses (other than the endorsement of instruments for
collection in the ordinary course of business), commits or agrees
(whether or not such commitment or agreement is contingent or
subject to the occurrence of a specified event or events) to
purchase or otherwise acquire or provide funds for the payment of
any obligation or liability of any other Person or (ii) agrees to
maintain the net worth, working capital or any other financial
condition of any other Person.
"Hazardous Material" means (a) any "hazardous substance," as
defined by the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, and (b) any "hazardous
waste," as defined by the Resource Conservation and Recovery Act,
as amended and (c) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material waste or substance within
the meaning of any applicable Environmental Law, all as amended
or hereafter amended.
"Indebtedness" of a Person means (i) obligations of such
Person for borrowed money, (ii) obligations of such Person
representing the deferred purchase price of property other than
accounts payable arising in the ordinary course of such Person's
business payable on terms customary in the trade, (iii)
obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from property now or hereafter
owned or acquired by such Person, (iv) obligations of such Person
which are evidenced by notes, acceptances, or other instruments,
(v) Capitalized Lease Obligations of such Person, (vi)
obligations of such Person as lessee of any real or personal
property (or any interest therein) which have not been or should
not be, in accordance with GAAP, recorded as Capitalized Lease
Obligations other than leases of property and equipment for
annual rentals not in excess of $10,000,000 in the aggregate in
any year, (vii) obligations for which such Person is obligated
pursuant to a Guaranty and (viii) all Indebtedness of others
secured by a lien on any asset of such person whether or not such
Indebtedness is assumed by such person (except Indebtedness of
others secured by Liens, 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
the Borrower for substation, metering 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 (viii) does not materially impair the use of the
property covered by such Lien for the purposes for which such
property is held by the Borrower).
"Interest Period" means a CD Interest Period or a Eurodollar
Interest Period or an Absolute Rate Interest Period.
"Investment" of a Person means any loan, advance (other than
commission, relocation, travel and similar loans and/or advances
to officers and employees made in the ordinary course of
business), extension of credit (other than Guaranties, accounts
receivable arising in the ordinary course of business on terms
customary in the trade and prepayments made and production
payments acquired in the ordinary course of business), or
contribution of capital by such Person to any other Person or any
investment in, or purchase or other acquisition of, the stock,
partnership interests, notes, debentures or other securities of
any other Person made by such Person.
"Invitation for Competitive Bid Quotes" means an Invitation
for Competitive Bid Quotes substantially in the form of Exhibit
"F" hereto, completed and delivered by the Administrative Agent
to the Lenders in accordance with Section 2.3.3.
"Lenders" means the Lenders listed on the signature pages of
this Agreement and their respective successors and assigns,
including any Lenders that became parties hereto pursuant to
Section 12.3.
"Lending Installation" means any office, branch, subsidiary
or affiliate of a Lender.
"Leverage Ratio" means the ratio, expressed as a percentage,
of the Borrower's Indebtedness to the sum of the Borrower's
Indebtedness plus Consolidated Net Worth.
"Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, preference, priority, lien, claim,
charge, encumbrance, title or other security agreement or any
interest in Property to secure payment of a debt or performance
of an obligation (including, without limitation, the interest of
a vendor or lessor under any conditional sale, Capitalized Lease
or other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's
portion of any Advance.
"Loan Documents" means this Agreement and the Notes and the
other relevant documents delivered by the Borrower pursuant to
Section 4.1 or 4.2 hereof.
"Majority Lenders" means Lenders in the aggregate having at
least 51% of the Aggregate Commitment, or if the Aggregate
Commitment has been terminated, Lenders in the aggregate holding
at least 51% of the aggregate unpaid principal amount of the
outstanding Advances.
"Material Adverse Effect" means a material adverse effect on
(i) the business, Property, financial condition or operations of
the Borrower and its Subsidiaries taken as a whole, or (ii) the
ability of the Borrower to perform its obligations under any of
the Loan Documents.
"Negative Pledge" means, with respect to any Person, any
agreement which prohibits or limits the creation by such Person
of any Lien in, of or on any of the Property, assets or revenue
of such Person.
"Note" means a Facility Note, a Swing Line Note, or a
Competitive Bid Note.
"Note Purchase Agreements" means the Note Purchase
Agreements dated as of July 15, 1992, each as amended by the
Supplemental Agreement dated as of June 1, 1995 and the Letter
Amendment dated October 14, 1996 with Borrower as obligor.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Notes, all accrued and unpaid Facility
Fees and all other obligations of the Borrower to the Lenders or
to any Lender or any Agent arising under any of the Loan
Documents.
"Operating Agreement" means that certain Operating
Agreement, dated February 28, 1980, between the Borrower and the
Operator, as heretofore amended, modified or supplemented and as
such agreement may be further amended, modified or supplemented
from time to time.
"Operator" means the Person provided for in Section 8 of the
Partnership Agreement, which, at the date of this Agreement, is
Northern Plains Natural Gas Company, a Delaware corporation.
"Participants" is defined in Section 12.2.1.
"Partner" means any one of Northern Border Intermediate
Limited Partnership, TransCanada Border PipeLine Ltd., and
TransCan Northern Ltd., or any Person substituted for any thereof
as a partner pursuant to Section 10 of the Partnership Agreement
or which becomes a partner pursuant to Section 11 of the
Partnership Agreement.
"Partners' Capital" means, at any time, the amount reflected
as "Partners' Capital" on a consolidated balance sheet of the
Borrower and its Subsidiaries as at such time, prepared in
accordance with GAAP.
"Partnership Agreement" means that certain General
Partnership Agreement relating to the formation of the Borrower
effective as of March 9, 1978, as heretofore amended, modified
and supplemented and as such agreement may be further amended,
modified or supplemented from time to time hereafter to the
extent, and in the manner, permitted by the terms of this
Agreement.
"Payment Date" means the last Business Day of each calendar
quarter.
"Permitted Liens" means (i) Liens in connection with
workmen's compensation, unemployment insurance or other social
security or old age pension obligations (excluding, in the case
of the Borrower, obligations covered by ERISA), (ii) Liens
securing the performance of bids, tender, contracts (other than
for the repayment of borrowed money or for the deferred purchase
price of Property or services), leases (other than leases which
constitute Indebtedness), statutory obligations, surety and
appeal bonds, Liens to secure progress or partial payments made
to the Borrower and other Liens of like nature, in each case made
in the ordinary course of business, (iii) legal or equitable
encumbrances deemed to exist by reason of negative pledge
covenants such as that made in Section 6.2.7 and other covenants
or undertakings of like nature, (iv) Liens for taxes, assessments
or governmental charges which are not yet due or which are being
contested in good faith and by appropriate proceedings for which
adequate reserves have been established, (v) legal or equitable
encumbrances deemed to exist by reason of the existence of any
litigation or other legal proceeding (excluding, in the case of
the Borrower and the Partners, any attachment prior to judgment,
judgment lien or attachment in aid of execution on a judgment),
(vi) mechanic's, workmen's, materialmen's construction or other
like Liens arising in the ordinary course of business or incident
to the construction or improvement of any Property in respect of
obligations (A) which are not yet due or (B) which are being
contested in good faith by appropriate proceedings, (vii) rights
reserved to or vested in any municipality or governmental,
statutory or public authority by the terms of any right, power,
franchise, grant, license or permit, or by any provision of law,
to terminate such right, power, franchise, grant, license or
permit or to purchase, condemn, expropriate or recapture or to
designate a purchaser of any of the Property of the Borrower,
(viii) rights reserved to or vested in any municipality or
governmental, statutory or public authority to control or
regulate any Property of the Borrower, or to use such Property in
a manner which does not materially impair the use of such
Property for the purposes for which it is held by the Borrower,
(ix) any obligations or duties affecting the Property of the
Borrower to any municipality or governmental, statutory or public
authority with respect to any franchise, grant, license or
permit, (x) rights of a common owner of any interest in Property
held by the Borrower as such common owner and tenants in common
or through other common ownership and (xi) zoning, planning and
environmental laws and ordinances and municipality regulations.
"Person" means any corporation, natural person, limited
liability company, firm, joint venture, partnership, trust,
unincorporated organization, enterprise, government or any
department or agency of any government.
"Pipeline" means the Borrower's pipeline system and related
facilities extending from a point near Port of Xxxxxx, Montana,
to a point near Harper, Iowa as it may be expanded and extended
pursuant to the Expansion and Extension.
"Plan" means any multiemployer or single-employer plan as
defined in Section 4001 of ERISA which is maintained or
contributed to, or at any time during the five calendar years
preceding the date of this Agreement was maintained or
contributed to, for employees of the Borrower or an ERISA
Affiliate.
"Property" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person,
or other assets owned, leased or operated by such Person, and
includes, without limitation, stock, partnership and limited
liability company interests owned or held in any other Person by
such Person.
"Rate Option" means a Eurodollar Rate, a Fixed CD Rate or an
ABR.
"Reference Lenders" means each of the Agents.
"Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System from time to time in effect and any
successor or other regulation or official interpretation of said
Board of Governors relating to reserve requirements applicable to
member Lenders of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System from time to time in effect and any
successor or other regulation or official interpretation of said
Board of Governors relating to the extension of credit by Lenders
for the purpose of purchasing or carrying margin stocks
applicable to member Lenders of the Federal Reserve System.
"Replacement Lender" is defined in Section 2.23.
"Required Accounting Principles" means, as applied to any
Person, the accounting rules and regulations, if any, at the time
prescribed by the regulatory body or bodies under the
jurisdiction of which such Person is at the time operating and,
to the extent of matters not covered by such rules or
regulations, generally accepted principles of accounting at the
time prevailing for Persons engaged in businesses similar to that
of such Person in the country in which such Person has its
principal place of business.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"S&P" means Standard and Poor's Ratings Group and any
successor thereto that is a nationally-recognized rating agency.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Senior Notes" means the Borrower's $250,000,000 Senior
Notes issued pursuant to the Note Purchase Agreements.
"Service Agreement" means an agreement in substantially the
form of the 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" means 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 and
shall include on the date hereof those Persons identified on
Schedule "1-a" hereto.
"Subsidiary" of a Person means (i) any corporation more than
50% of the outstanding securities having ordinary voting power of
which shall at the time be owned directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person
and one or more of its Subsidiaries, or (ii) any partnership,
association, joint venture, limited liability company or similar
business organization more than 50% of the ownership interests
having ordinary voting power of which shall at the time be so
owned. Unless otherwise expressly provided, all references
herein to a "Subsidiary" shall mean a direct or indirect
Subsidiary of the Borrower.
"Support Agreements" means the Support Agreements listed in
Schedule 5 together with any other agreements entered into from
time to time by or on behalf of any of the Shippers in support of
its obligations under its Service Agreement.
"Swing Loan" is defined in Section 2.1.3.
"Swing Loan Sublimit" means an aggregate amount not to
exceed on any date the amount of $15,000,000 (in minimum
increments of $1,000,000) as such amount may be reduced from time
to time pursuant to Section 2.1.3.
"Swing Loan Note" means a promissory note in substantially
the form of Exhibit "A-3" hereto, duly executed and delivered to
the Administrative Agent by the Borrower and payable to the order
of the Administrative Agent in the amount of the Swing Loan
Sublimit, including any amendment, modification, renewal or
replacement of such promissory note.
"T-1R Shipper" means any Person who has, at the time of such
characterization, obtained firm pipeline capacity on a release
basis pursuant to Section 27.1 of the General Terms and
Conditions of the Tariff and who has executed a T-1R Service
Agreement with the Borrower for the transportation of gas through
the Pipeline.
"T-1R Service Agreement" means that form of Service
Agreement included in the Tariff entered into between the
Borrower and a T-1R Shipper for certain firm gas transportation
rights pursuant to the T-1R Rate Schedule, as such agreement may
be amended, modified or supplemented from time to time.
"Tariff" means 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 the 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" are defined in Section 2.21.
"Transferee" is defined in Section 12.4.
The foregoing definitions shall be equally applicable to
both the singular and plural forms of the defined terms.
ARTICLE II
THE FACILITIES
SECTION II.1. Facility A.
SECTION II.1.1 Description of Facility A. Each Lender
severally agrees, on the terms and conditions set forth in this
Agreement, to make Facility A Loans to the Borrower from time to
time in amounts not to exceed in the aggregate at any one time
outstanding the amount of its Facility A Commitment. Each Lender
may, in its sole discretion, make bids to make Competitive Bid
Loans to the Borrower under Facility A in accordance with Section
2.3; provided that in no event may the sum of the aggregate
principal amount of all outstanding Facility A Advances plus all
Facility A Competitive Bid Advances exceed the Facility A
Aggregate Commitment.
SECTION II.1.2 Availability of Facility A. Subject to the
terms of this Agreement, Facility A is available to the Borrower
from the date of this Agreement to the Facility A Termination
Date, and subject to the other terms hereof the Borrower may
borrow, repay and reborrow, under the Facility A at any time
prior to the Facility A Termination Date.
SECTION II.1.3 Swing Loan. Subject to the terms and
conditions of this Agreement, the Borrower may request one or
more loans from the Administrative Agent (each such loan, a
"Swing Loan') from time to time for periods of up to 29 days on
any Business Day during the period from the date hereof to the
Facility A Termination Date, in an aggregate amount not to exceed
the Swing Loan Sublimit; provided however, that, after giving
effect to any borrowing of Swing Loans, the aggregate amount of
all outstanding Facility A Advances plus the outstanding Facility
A Competitive Bid Advances shall not at any time exceed the
Facility A Aggregate Commitment. The Administrative Agent may,
but shall have no obligation whatsoever to, make any Swing Loan.
At the maturity of each applicable Swing Loan, each Lender will,
at the Administrative Agent's request, reimburse the
Administrative Agent for its pro rata share of such Swing Loans
(such reimbursements to bear interest at ABR until paid or
converted by the Borrower).
SECTION II.1.4 Facility A Advances. Each Facility A Advance
hereunder (other than any Swing Loans or any Facility A
Competitive Bid Advances) shall consist of borrowings made from
the several Lenders in accordance with their respective Facility
A Commitments. The Facility A Advances (other than any Swing
Loans and other than any Facility A Competitive Bid Advances)
shall be evidenced by the Facility Notes. The Swing Loans shall
be evidenced by the Swing Loan Note.
SECTION II.2. Facility B.
SECTION II.2.1 Description of Facility B. Each Lender
severally agrees, on the terms and conditions set forth in this
Agreement, to make Loans to the Borrower from time to time in
amounts not to exceed in the aggregate at any one time
outstanding the amount of its Facility B Commitment. Each Lender
may, in its sole discretion, make bids to make Competitive Bid
Loans to the Borrower under Facility B in accordance with Section
2.3; provided, that in no event may the sum of the aggregate
principal amount of all outstanding Facility B Advances plus all
Facility B Competitive Bid Advances exceed the Facility B
Aggregate Commitment.
SECTION II.2.2 Availability of Facility B. Subject to the
terms of this Agreement, Facility B is available to the Borrower
from the date of this Agreement to the Facility B Termination
Date or the Conversion Date, whichever occurs first, and subject
to the other terms hereof prior to such time the Borrower may
borrow, repay and reborrow, under Facility B.
SECTION II.2.3 Facility B Advances. Each Facility B Advance
hereunder (other than Facility B Competitive Bid Advances) shall
consist of borrowings made from the several Lenders in accordance
with their respective Facility B Commitments. The Facility B
Advances (other than any Facility B Competitive Bid Advances)
shall be evidenced by the Facility Notes.
SECTION II.3. Competitive Bid Advances.
SECTION II.3.1 Competitive Bid Option. Subject to the terms
and conditions of this Agreement (including, without limitations,
the limitations set forth in the last sentence of Section 2.1.1
and 2.2.1 as to the maximum aggregate principal amount of all
outstanding Advances hereunder), the Borrower may as set forth in
this Section 2.3, request the Lenders, prior to the Facility A
Termination Date, the Facility B Termination Date or the
Conversion Date, as applicable, to make offers to make
Competitive Bid Advances to the Borrower under Facility A or
Facility B, or both. Each Lender may, but shall have no
obligation to, make such offers and the Borrower may, but shall
have no obligation to, accept any such offers in the manner set
forth in this Section 2.3. Competitive Bid Advances shall be
evidenced by the Competitive Bid Notes.
SECTION II.3.2 Competitive Bid Quote Request. When the
Borrower wishes to request offers to make Competitive Bid Loans
under Section 2.3, it shall transmit to the Administrative Agent,
by facsimile, a Competitive Bid Quote Request so as to be
received no later than (i) 11:00 a.m. (Chicago time) at least
four Business Days prior to the Borrowing Date proposed therein,
in the case of a Eurodollar Auction or (ii) 11:00 a.m. (Chicago
time) at least one Business Day prior to the Borrowing Date
proposed therein, in the case of an Absolute Rate Auction
specifying:
(a) the proposed Borrowing Date, which shall be a
Business Day, for the proposed Competitive Bid Advance;
(b) the aggregate principal amount of such Competitive
Bid Advance;
(c) whether the Competitive Bid Quotes requested are
to set forth a Competitive Bid Margin or an Absolute Rate,
or both;
(d) the Interest Period applicable thereto;
(e) whether the Competitive Bid Advance is to be
prepayable; and
(f) whether the Competitive Bid Advance is being
requested under Facility A or Facility B.
The Borrower may request offers to make Competitive Bid Loans
for more than one Interest Period, for a Eurodollar Auction and an
Absolute Rate Auction and under Facility A or Facility B in a
single Competitive Bid Quote Request. No Competitive Bid Quote
Request shall be given within 3 Business Days (or upon reasonable
prior notice to the Lenders, such other number of days as the
Borrower and the Administrative Agent may agree) of any other
Competitive Bid Quote Request. Each Competitive Bid Quote
Request shall be in a minimum amount of $5,000,000 (and in
integral multiples of $1,000,000 in excess thereof). A
Competitive Bid Quote Request that does not conform substantially
to the format of Exhibit "E" hereto shall be rejected, and the
Administrative Agent shall promptly notify the Borrower of such
rejection by facsimile.
SECTION II.3.3 Invitation for Competitive Bid Quotes.
Promptly and in any event before noon (Chicago time) on the same
Business Day of receipt of a Competitive Bid Quote Request that
is not rejected pursuant to Section 2.3.2, the Administrative
Agent shall send to each of the Lenders by facsimile an
Invitation for Competitive Bid Quotes which shall constitute an
invitation by the Borrower to each Lender to submit Competitive
Bid Quotes offering to make the Competitive Bid Loans to which
such Competitive Bid Quote Request relates in accordance with
Section 2.3.4.
SECTION II.3.4 Submission and Contents of Competitive Bid
Quotes. (i) Each Lender may, in its sole discretion, submit a
Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must comply
with the requirements of this Section 2.3.4 and must be submitted
to the Administrative Agent by facsimile at its offices specified
in or pursuant to Article XIII not later than (a) (I) 9:30 a.m.
(Chicago time) in the case of First Chicago and (II) 9:45 a.m.
(Chicago time) in the case of each other Lender, at least three
Business Days prior to the proposed Borrowing Date, in the case
of a Eurodollar Auction or (b) (I) 8:45 a.m. (Chicago time) in
the case of First Chicago and (II) 9:00 a.m. (Chicago time) in
the case of each other Lender on the proposed Borrowing Date, in
the case of an Absolute Rate Auction (or, in either case upon
reasonable prior notice to the Lenders, such other time and date
as the Borrower and the Administrative Agent may agree, provided
that First Chicago shall always be required to submit its
Competitive Bid Quotes not less than fifteen minutes prior to the
other Lenders). Subject to Article IV, any Competitive Bid Quote
so made shall be irrevocable except with the written consent of
the Administrative Agent given on the instructions of the
Borrower.
(ii) Each Competitive Bid Quote shall in any case specify:
(a) the proposed Borrowing Date and whether such
Competitive Bid Quote is under Facility A or Facility B,
which shall be the same as that set forth in the applicable
Invitation for Competitive Bid Quotes;
(b) the principal amount of the Competitive Bid Loan
for which each such offer is being made, which principal
amount (1) may be greater than, less than or equal to the
Commitment of the quoting Lender, (2) must be at least
$5,000,000 and an integral multiple of $1,000,000, and (3)
may not exceed the principal amount of Competitive Bid
Advances for which offers were requested;
(c) in the case of a Eurodollar Auction, the
Competitive Bid Margin offered for each such Competitive Bid
Loan;
(d) the minimum or maximum amount, if any, of any
Competitive Bid Loan which may be accepted by the Borrower
and/or the limit, if any, as to the aggregate principal
amount of Competitive Bid Loans from such Lender which may
be accepted by the Borrower;
(e) in the case of an Absolute Rate Auction, the
Absolute Rate offered for each such Competitive Bid Loan;
(f) the applicable Interest Period; and
(g) the identity of the quoting Lender.
(iii) The Administrative Agent shall reject any
Competitive Bid Quote that:
(a) is not substantially in the form of Exhibit "G"
hereto or does not specify all of the information required
by Section 2.3.4(ii);
(b) contains qualifying, conditional or similar
language, other than any such language contained in Exhibit
"G" hereto;
(c) proposes terms other than or in addition to those
set forth in the applicable Invitation for Competitive Bid
Quotes; or
(d) arrives after the time set forth in Section
2.3.4(i).
If any Competitive Bid Quote shall be rejected pursuant to
this Section 2.3.4(iii), then the Administrative Agent shall notify
the relevant Lender of such rejection as soon as practical.
SECTION II.3.5 Notice to the Borrower. The Administrative
Agent shall promptly notify the Borrower of the terms (i) of any
Competitive Bid Quote submitted by a Lender that is in accordance
with Section 2.3.4 and (ii) of any Competitive Bid Quote that is
in accordance with Section 2.3.4 and amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent
Competitive Bid Quote specifically states that it is submitted
solely to correct a manifest error in such former Competitive Bid
Quote. The Administrative Agent's notice to the Borrower shall
specify the aggregate principal amount of Competitive Bid Loans
for which offers have been received for each Interest Period
specified in the related Competitive Bid Quote Request and the
respective principal amounts and Competitive Bid Margins or
Absolute Rates, as the case may be, so offered.
SECTION II.3.6 Acceptance and Notice by the Borrower.
Subject to the receipt of the notice from the Administrative
Agent referred to in Section 2.3.5, not later than (i) 10:45 a.m.
(Chicago time) at least three Business Days prior to the proposed
Borrowing Date, in the case of a Eurodollar Auction or (ii) 10:00
a.m. (Chicago time) on the proposed Borrowing Date, in the case
of an Absolute Rate Auction, the Borrower shall notify the
Administrative Agent of its acceptance or rejection of the offers
so notified to it pursuant to Section 2.3.5; provided, however,
that the failure by the Borrower to give such notice to the
Administrative Agent shall be deemed to be a rejection of all
such offers. In the case of acceptance, such notice (a
"Competitive Bid Borrowing Notice") shall specify the aggregate
principal amount of offers for each Interest Period that are
accepted. The Borrower may accept or reject any Competitive Bid
Quote in whole or in part (subject to the terms of Section
2.3.4(ii)(d)); provided that:
(a) the aggregate principal amount of each Competitive
Bid Advance may not exceed the applicable amount set forth
in the related Competitive Bid Quote Request;
(b) acceptance of offers for any Competitive Bid
Advance with otherwise identical terms may only be made on
the basis of ascending Competitive Bid Margins or Absolute
Rates, as the case may be;
(c) the Borrower may not accept any offer of the type
described in Section 2.3.4(iii) or that otherwise fails to
comply with the requirements of this Agreement for the
purpose of obtaining a Competitive Bid Loan under this
Agreement; and
(d) after giving effect to such Competitive Bid
Advance, the aggregate principal amount of all outstanding
Advances shall not exceed the Aggregate Commitment and the
requirements of the provisos of the last sentences of
Sections 2.1.1 and 2.2.1 shall be satisfied.
SECTION II.3.7 Allocation by the Administrative Agent. If
offers are made by two or more Lenders with the same Competitive
Bid Margins or Absolute Rates, as the case may be, for a greater
aggregate principal amount than the amount in respect of which
offers are permitted to be accepted for the related Interest
Period under Facility A or Facility B, the principal amount of
Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among
such Lenders as nearly as possible (in such multiples, not
greater than $500,000, as the Administrative Agent may deem
appropriate) in proportion to the aggregate principal amount of
such offers; provided, however, that no Lender shall be allocated
a portion of any Competitive Bid Advance which is less than the
minimum amount which such Lender has indicated that it is willing
to accept. Allocations by the Administrative Agent of the
amounts of Competitive Bid Loans shall be conclusive in the
absence of manifest error. The Administrative Agent shall
promptly, but in any event on the same Business Day in the case
of Eurodollar Bid Rate Advances, and by 11:00 a.m. (Chicago time)
in the case of Absolute Rate Advances, notify each Lender of its
receipt of a Competitive Bid Borrowing Notice and the aggregate
principal amount of such Competitive Bid Advance allocated to
each participating Lender.
SECTION II.3.8 Administration Fees. The Borrower hereby
agrees to pay to the Administrative Agent for its sole account
administration fees for Competitive Bid Quote Requests in such
amounts as heretofore agreed upon by the Borrower in writing.
SECTION II.4. Types of Advances. The Facility A Advances
and the Facility B Advances may be ABR Advances or Eurodollar
Advances, or a combination thereof, selected by the Borrower in
accordance with the terms hereof.
SECTION II.5. Facility Fees. The Borrower will pay the
Facility Fee on the average daily amount of the Aggregate
Commitment, regardless of usage, payable quarterly in arrears on
each Payment Date and on the date on which both the Facility A
Aggregate Commitment and the Facility B Aggregate Commitment have
terminated to the Administrative Agent for the ratable benefit of
the Lenders (including the Administrative Agent) from the date of
execution of this Agreement until termination of both the
Facility A Aggregate Commitment and the Facility B Aggregate
Commitment.
SECTION II.6. Reduction or Cancellation. The Borrower may
at any time after the date hereof cancel either the Facility A
Aggregate Commitment or (prior to the Conversion Date) the
Facility B Aggregate Commitment, in whole, or reduce either of
them with a corresponding reduction in the Aggregate Commitment,
in a minimum amount of $10,000,000 (and in integral multiples of
$5,000,000) ratably among the Lenders upon at least five (5)
Business Days' prior written notice to the Administrative Agent,
which notice shall specify the amount of such reduction and
whether and to what extent such reduction shall apply to the
Facility A Aggregate Commitment or the Facility B Aggregate
Commitment, or either of them; provided, however, no such notice
of cancellation shall be effective to the extent that it would
(i) reduce the Facility A Aggregate Commitment to an amount which
would be less than the sum of the outstanding principal amount of
the Facility A Advances plus the Facility A Competitive Bid
Advances or (ii) reduce the Facility B Aggregate Commitment to an
amount which would be less than the sum of the outstanding
principal amount of the Facility B Advances plus the Facility B
Competitive Bid Advances. Any notice of cancellation given
pursuant to this Section 2.6 shall be irrevocable and permanent
and shall specify the date upon which such cancellation is to
take effect. The Administrative Agent shall promptly notify each
Lender of its receipt of notice from the Borrower electing to
cancel all or reduce a portion of the Aggregate Commitment. Each
reduction of the Facility A Aggregate Commitment or the Facility
B Aggregate Commitment shall cancel each Lender's Commitment
ratably in proportion to the ratio that such Lender's Commitment
bears to the Aggregate Commitment.
SECTION II.7. Method of Borrowing. Not later than 1:00
p.m. Chicago time on each Borrowing Date, each Lender shall make
available its Loan or Loans in funds immediately available in
Chicago, to the Administrative Agent at its address specified
pursuant to Article XIII. The Administrative Agent will make the
funds so received from the Lenders available to the Borrower at
the Borrower's account number 3901-8523 at Citibank, N.A., New
York, NY, ABA number 000-0000-00. Notwithstanding the foregoing
provisions of this Section 2.7, to the extent that a Loan made by
a Lender matures on the Borrowing Date of a requested Loan, such
Lender shall apply the proceeds of the Loan it is then making to
the repayment of the maturing Loan.
SECTION II.8. Method of Borrowing Swing Loan. The Borrower
shall deliver a written request to the Administrative Agent,
which must be received by the Administrative Agent at or prior to
12:00 Noon (Chicago time) on the requested Borrowing Date,
specifying: (1) the amount of the Borrowing, which shall be in an
aggregate minimum amount of $1,000,000 or any multiple of
$1,000,000; (2) the requested Borrowing Date, which shall be a
Business Day and (3) the Borrower's Rate Option, which can be
either (i) ABR or (ii) a mutually agreed upon money market rate.
The Administrative Agent shall notify the Borrower by 2:00 p.m.
(Chicago time) whether it will make such Swing Loan. If the
Administrative Agent does not so notify the Borrower, the
Administrative Agent shall be deemed to have declined to make
such Swing Loan.
SECTION II.9. Method of Selecting Rate Options and Interest
Periods. The Borrower shall select the Rate Option and Interest
Period applicable to each Advance from time to time. The
Borrower shall give the Administrative Agent irrevocable notice
(a "Borrowing Notice") not later than 11:00 a.m. Chicago time on
the Borrowing Date of each ABR Advance, one Business Day before
the Borrowing Date of each Fixed CD Rate Advance and three
Business Days before the Borrowing Date for each Eurodollar
Advance, specifying: (a) the Borrowing Date, which shall be a
Business Day, of such Advance, (b) the aggregate amount of such
Advance, (c) the Rate Option selected for such Advance, and
(d) in the case of each Fixed Rate Advance, the Interest Period
applicable thereto. Each Fixed Rate Advance shall bear interest
from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to
such Fixed Rate Advance.
SECTION II.10. Minimum Amount of Each Advance. Each Fixed
Rate Advance shall be in the minimum amount of $5,000,000 (and in
multiples of $1,000,000 if in excess thereof), and each ABR
Advance shall be in the minimum amount of $5,000,000 (and in
multiples of $1,000,000), provided, however, that any ABR Advance
may be in the amount of the unused Facility A Aggregate
Commitment or Facility B Aggregate Commitment.
SECTION II.11. Rate after Maturity. Any applicable Advance
not paid at maturity thereof, whether by acceleration or
otherwise, shall bear interest until paid in full at a rate per
annum equal to the ABR, plus 2% per annum.
SECTION II.12. Method of Payment. All payments of
principal, interest, and fees hereunder shall be made in
immediately available funds by noon (Chicago time) on the date
when due and shall be made ratably (except for Swing Loans and
Competitive Bid Loans) among the Lenders, to the Administrative
Agent at the Administrative Agent's address specified pursuant to
Article XIII or at any other Lending Installation in the U.S. of
the Administrative Agent specified in writing by the
Administrative Agent to the Borrower. Each payment delivered to
the Administrative Agent for the account of any Lender shall be
delivered promptly by the Administrative Agent to such Lender in
the same type of funds which the Administrative Agent received at
its address specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the Administrative
Agent from such Lender.
SECTION II.13. Notes; Telephonic Notices. Each Lender is
hereby authorized to record the principal amount of each of its
Loans and each repayment on the schedule attached to its Note;
provided, however, that the failure to so record shall not affect
the Borrower's obligations under such Note. The Borrower hereby
authorizes the Lenders and the Administrative Agent to extend
Advances and effect Rate Option selections based on telephonic
notices made by any person or persons, the Administrative Agent
or any Lender in good faith believes to be acting on behalf of
the Borrower. The Borrower agrees to deliver promptly to the
Administrative Agent a written confirmation of each telephonic
notice signed by an Authorized Representative. If the written
confirmation differs in any material respect from the action
taken by the Administrative Agent and the Lenders, the records of
the Administrative Agent and the Lenders shall govern absent
manifest error.
SECTION II.14. Interest Payment Dates; Interest Basis.
Interest accrued on each Fixed Rate Advance shall be payable on
the last day of its applicable Interest Period and on any date on
which the Advance is prepaid, whether due to acceleration or
otherwise. Interest accrued on each Fixed Rate Advance having an
Interest Period longer than three months shall also be payable on
the last day of each three-month interval during such Interest
Period. Interest accrued on each ABR Advance shall be payable on
each Payment Date, on the date such ABR Advance is paid or
converted into a Fixed Rate Advance and on the Commitment
Termination Date. Interest on all Eurodollar Rate Loans and
Fixed CD Rate Loans and fees shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest on ABR Loans
shall be calculated for actual days elapsed on the basis of a
365, or when appropriate 366, day year. Interest shall be
payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to noon
(Chicago time) at the place of payment. If any payment of
principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the
next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing
interest in connection with such payment.
SECTION II.15. Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions. Promptly after receipt
thereof, the Administrative Agent will notify each Lender of the
contents of each Aggregate Commitment reduction notice, Borrowing
Notice and prepayment notice received by it hereunder. The
Administrative Agent will notify each Lender and the Borrower of
the interest rate applicable to each Fixed Rate Advance promptly
upon determination of such interest rate and will give each
Lender and the Borrower prompt notice of each change. Each
Reference Lender agrees to furnish timely information for the
purpose of determining the Eurodollar Rate or the Fixed CD Rate,
as applicable.
SECTION II.16. Lending Installations. Each Lender may book
its Loans at any Lending Installation selected by such Lender and
may change its Lending Installation from time to time; provided,
that no Lender shall select a Lending Installation that shall
impose any additional material cost on the Borrower. All terms
of this Agreement shall apply to any such Lending Installation
and the Notes shall be deemed held by each Lender for the benefit
of such Lending Installation. Each Lender may, by written or
facsimile notice to the Administrative Agent and the Borrower,
designate a Lending Installation through which Loans will be made
by it and for whose account Loan payments are to be made.
SECTION II.17. Non-Receipt of Funds by the Administrative
Agent. Unless the Borrower or a Lender, as the case may be,
notifies the Administrative Agent prior to the date on which it
is scheduled to make payment to the Administrative Agent of (i)
in the case of a Lender, the proceeds of a Loan or (ii) in the
case of the Borrower, a payment of principal, interest or fees to
the Administrative Agent for the account of the Lenders, that it
does not intend to make such payment, the Administrative Agent
may assume that such payment has been made. The Administrative
Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be,
has not in fact made such payment to the Administrative Agent,
the recipient of such payment shall, on demand by the
Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in
respect of each day during the period commencing on the date such
amount was so made available by the Administrative Agent until
the date the Administrative Agent recovers such amount at a rate
per annum equal to (i) in the case of payment by a Lender, the
federal funds rate for such day (as determined by the
Administrative Agent) or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Advance.
If any Lender fails to make its scheduled payment, the
Administrative Agent agrees to provide the Borrower with
reasonable assistance in locating a Lender (reasonably acceptable
to the Administrative Agent) which will agree to assume the
Commitment of the defaulting Lender under this Agreement.
SECTION II.18. Voluntary Prepayments. Advances bearing
interest based at the ABR Rate may be prepaid at any time without
penalty on one Business Day's prior written notice in a minimum
amount of $5,000,000. Advances bearing interest based on the
Eurodollar Rate or Fixed CD Rate may be paid prior to the last
day of the applicable Interest Period upon three Business Days'
prior written notice, subject to customary breakage
indemnifications, in a minimum amount of $5,000,000. Competitive
Bid Loans may not be prepaid without the consent of the
applicable Lender. The Borrower shall compensate the Lenders for
any funding losses and loss of profits incurred as a result of
any prepayment of an Advance bearing interest based on the
Eurodollar Rate, Fixed CD Rate, Eurodollar Bid Rate or Absolute
Rate, unless Borrower and Lender previously agreed that Loan
would be prepayable without such compensation, prior to the last
day of the applicable Interest Period as provided in Section 3.4.
SECTION II.19. Conversion and Continuation of Outstanding
Advances. ABR Advances shall continue as ABR Advances unless and
until paid or converted into Fixed Rate Advances. Each Fixed
Rate Advance shall continue as a Fixed Rate Advance of the same
type until the end of the then applicable Interest Period
therefor, at which time such Fixed Rate Advance shall be
automatically converted into an ABR Advance unless the Borrower
shall have given the Agent a Conversion/Continuation Notice
requesting that, at the end of such Interest Period, such Fixed
Rate Advance either continue as a Fixed Rate Advance of a type
specified for the same or another Interest Period or be
converted into an ABR Advance. Subject to the terms of Section
2.10, the Borrower may elect from time to time to convert all or
any part of an Advance of any type into another type of Advance;
provided that any conversion of any Fixed Rate Advance shall be
made on, and only on, the last day of the Interest Period
applicable thereto. The Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice") of
each conversion of an Advance or continuation of a Fixed Rate
Advance not later than 11:00 a.m. (Chicago time) the Business
Day, in the case of a conversion into an ABR Advance, at least
one Business Day, in the case of a conversion into a Fixed CD
Rate Advance or three Business Days, in the case of a conversion
into or continuation of a Eurodollar Advance, prior to the date
of the requested conversion or continuation, specifying: (i) the
requested date which shall be a Business Day, of such conversion
or continuation; (ii) the aggregate amount and type of the
Advance which is to be converted or continued; and (iii) the
amount and type(s) of Advance(s) into which such Advance is to be
converted or continued and, in the case of a conversion into or
continuation of a Eurodollar Advance or Fixed CD Rate Advance,
the duration of the Interest Period applicable thereto.
SECTION II.20. Rates. The Borrower may elect that Facility
A Advances and Facility B Advances accrue interest at a rate per
annum: (i) on that portion maintained from time to time as an ABR
Advance, equal to the ABR from time to time in effect; (ii) on
that portion maintained as a CD Rate Advance, during each
Interest Period applicable thereto, equal to the Fixed CD Rate
for such Interest Period; and (iii) on that portion maintained as
a Eurodollar Advance, during each Interest Period applicable
thereto, equal to the Eurodollar Rate for such Interest Period.
SECTION II.21. Withholding Tax Exemption. Subject to the
other provisions of this Section 2.21, all payments by the
Borrower in respect of principal, interest, fees and other
amounts due hereunder or under the Notes shall be made, free and
clear of and without deduction for any and all present and future
taxes, levies, imposts, deductions, charges, withholdings, and
all liabilities with respect thereto, excluding income and
franchise and ad valorem taxes of, in the case of each Lender and
the Agents, of the jurisdiction under the laws of which such
Lender or the Agents (as the case may be) is organized and, in
the case of each Lender, of the jurisdiction of such Lender's
Lending Installation and any political subdivision or taxing
authority of either thereof or therein (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). At least
five Business Days prior to the first date on which interest or
fees are payable hereunder for the account of any Lender, each
Lender (or Lending Installation) that is not incorporated under
the laws of the United States of America, or a state thereof,
agrees that it will deliver to each of the Borrower and the
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender (or Lending Installation) is entitled to
receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income
taxes. Each Lender (or Lending Installation) which so delivers a
Form 1001 or 4224 further undertakes to deliver to each of the
Borrower and the Administrative Agent two additional copies of
such form (or a successor form) on or before the date that such
form expires (currently, three successive calendar years for Form
1001 and one calendar year for Form 4224) or becomes obsolete or
after the occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments thereto or
extensions or renewals thereof as may be reasonably requested by
the Borrower or the Administrative Agent, in each case certifying
that such Lender (or Lending Installation) is entitled to receive
payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender (or Lending
Installation) from duly completing and delivering any such form
with respect to it and such Lender (or Lending Installation)
advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or
withholding of United States federal income tax, in which case
such Lender shall deliver to the Borrower and Administrative
Agent the required number of any form or certificate it is
eligible to provide to reduce the amount of such withholding or
deduction. Each Lender that is not a United States person (as
such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) represents and warrants to the Borrower and to the
Administrative Agent that on the date hereof such Lender (i) is
engaged in the active conduct of a trade or business in the
United States and that it will make its Loans through a branch or
office located in the United States (or otherwise is entitled to
deliver accurate and complete signed copies of Internal Revenue
Service Form 4224), or (ii) is exempt from U.S. withholding taxes
with respect to payments to be made to such Lender hereunder in
accordance with current U.S. Federal income tax law and the
current provisions of a tax treaty to which the United States is
a party. If such representation and warranty shall prove to be
untrue as to any Lender or withholding taxes otherwise become
applicable otherwise than as a result of a change in a treaty,
law or regulation, the Borrower shall not be obligated to
reimburse such Lender under this Section 2.21 with respect to
such withholding tax on interest, and, to the extent, if any,
that such Lender shall have received such reimbursement, it shall
repay the amount thereof to the Borrower or the Administrative
Agent, as applicable. If any Lender receives a refund of or a
credit for Taxes for which the Borrower has paid or reimbursed
such Lender pursuant to this Section 2.21, such Lender shall pay
to the Borrower the amount of such refund or credit.
Any and all present or future Taxes and related liabilities
(including penalties, interest, additions to tax and expenses)
which are not paid by the Borrower pursuant to and as required by
this Section 2.21 shall be paid by the Lender which received the
principal, interest or fees in respect of which such Taxes or
related liabilities are payable. Any and all present or future
Taxes which are required by law to be deducted or withheld from
or in respect of any sum payable hereunder to any Lender and
which are not paid by the Borrower pursuant to and as required by
this Section 2.21 will be deducted or withheld by the
Administrative Agent without any increase in the sum payable.
Each Lender agrees to indemnify each Agent and hold each Agent
harmless for the full amount of any and all present or future
taxes and related liabilities (including penalties, interest,
additions to tax and expenses, and any Taxes imposed by any
jurisdiction on amounts payable to such Agent under this
Section 2.21) which are imposed on or with respect to principal,
interest, or fees payable to such Lender hereunder and which are
not paid by the Borrower pursuant to this Section 2.21, whether
or not such taxes or related liabilities were correctly or
legally asserted. This indemnification shall be made within
thirty (30) days from the date such Agent makes written demand
therefor.
If any Taxes specified in this Section 2.21 are asserted to
be due from any Lender or Agent, such Lender or Agent will notify
the Borrower (with a copy to the Administrative Agent) of such
claim. Such Lender or Agent, as the case may be, may pay such
asserted taxes, and the Borrower will indemnify such Lender or
Agent for such payments, together with any interest, penalties
and expenses in connection therewith, with interest thereon at
the rate specified in Section 2.11 (calculated as if such
payments constituted overdue amounts as of the date of making
such payments), unless within 10 days after its receipt of such
notification, the Borrower pays such asserted Taxes (and supplies
such Lender or Administrative Agent with evidence of such
payment) or (i) the Borrower notifies such Lender or
Administrative Agent that the Borrower intends to contest in good
faith and by appropriate proceedings the claim for such taxes
asserted against such Lender or Agent, (ii) counsel for such
Lender or Agent advises such Lender or Agent that it may withhold
such payment without incurring thereby any additional legal
liability (other than an obligation to pay interest thereon) and
(iii) the Borrower indemnifies such Lender or Agent for any
additional interest, payment, expenses or liabilities incurred by
reason of its failure to make such payment when originally
asserted.
Without prejudice to the survival or termination of any
other agreement of the Borrower hereunder, the agreements of the
Borrower contained in this Section 2.21 shall survive the payment
in full of the Notes.
SECTION II.22. Agent's Fees. In order to compensate First
Chicago for the cost and expense of acting as Administrative
Agent under this Agreement, the Borrower hereby agrees to pay to
First Chicago the fees agreed to between the Borrower and First
Chicago with respect to its activities in administering this
Agreement.
SECTION II.23. Extension of Facility A Termination Date.
Subject to the other provisions of this Agreement, the Facility A
Aggregate Commitment shall be effective for an initial period
from the Closing Date to the Facility A Termination Date;
provided that so long as no Default or Event of Default shall
have occurred and be continuing the Facility A Termination Date,
and concomitantly the Facility A Aggregate Commitment, may,
subject to the other provisions of this Agreement, be extended
for successive one year periods expiring on the date which is one
(1) year from the then scheduled Facility A Termination Date. In
order to request such extension, the Borrower will deliver
written notice delivered to the Administrative Agent not more
than one hundred fifty (150) days nor less than one hundred five
(105) days prior to the anniversary date immediately preceding
the then Facility A Termination Date that the Facility A
Termination Date be extended for one year from the then scheduled
Facility A Termination Date. The Administrative Agent shall then
promptly notify each Lender of such request, and each Lender
shall notify the Administrative Agent in writing no later than
forty-five (45) days after receipt by the Lenders of the relevant
request for an extension from the Borrower, pursuant to this
Section 2.23 whether such Lender, in the exercise of its sole
discretion, will extend the Facility A Termination Date for such
one year period. Any Lender which shall not timely notify the
Administrative Agent whether it will extend the Facility A
Termination Date shall be deemed to not have agreed to extend the
Facility A Termination Date. No Lender shall have any obligation
whatsoever to agree to extend the Facility A Termination Date.
Any agreement to extend the Facility A Termination Date by any
Lender shall be irrevocable, except as provided in
Section 2.23(b)(iii).
(a) If all the Lenders notify the Administrative Agent
pursuant to the foregoing provisions of this Section 2.23 of
their agreement to extend the Facility A Termination Date
(such Lenders agreeing to extend the Facility A Termination
Date herein called the "Accepting Lenders"), then the
Administrative Agent shall so notify each Lender and the
Borrower, and such extension shall be effective without
other or further action by any party hereto for such
additional one year period.
(b) If Lenders constituting at least the Majority
Lenders approve the extension of the then scheduled Facility
A Termination Date and if one or more of the Lenders shall
notify, or be deemed to notify, the Administrative Agent
pursuant to the foregoing provisions of this Section 2.23
that they will not extend the then scheduled Facility A
Termination Date (such Lenders herein called the "Declining
Lenders"), then (A) the Administrative Agent shall promptly
so notify the Borrower and the Accepting Lenders, (B) the
Accepting Lenders shall, upon the Borrower's election to
extend the then scheduled Facility A Termination Date in
accordance with clause (i) or (ii) below, extend the then
scheduled Facility A Termination Date and (C) the Borrower
shall pursuant to a notice delivered to the Administrative
Agent, the Accepting Lenders and the Declining Lenders, no
later than the tenth day following the date by which each
Lender is required, pursuant to Section 2.23(b)(i), to
approve or disapprove the requested extension of the
Facility A Aggregate Commitment, either:
(i) elect to extend the Facility A Termination Date with
respect to the Accepting Lenders and direct the
Declining Lenders to terminate their Facility A
Commitments, which termination shall become effective
on the date which would have been the Facility A
Termination Date except for the operation of this
Section 2.23. On such date, (x) the Borrower shall
deliver a notice of the effectiveness of such
termination to the Declining Lenders with a copy to the
Administrative Agent and (y) the Borrower shall pay in
full in immediately available funds all Obligations of
the Borrower owing to the Declining Lenders and (z)
upon the occurrence of the events set forth in clauses
(x) and (y), the Declining Lenders shall each cease to
be a Lender hereunder for all purposes, and shall no
longer have any obligations hereunder; however, such
Person shall be obligated to make or entitled to
receive payments pursuant to Article III, Section 2.21
and Section 9.7 and to the Agents pursuant to Section
10.3 (but only to the extent the event giving rise to
such payment occurred prior to the time at which the
events set forth in clauses (x) and (y) shall have
occurred) as if it were a Lender and the Administrative
Agent shall promptly notify the Accepting Lenders and
the Borrower of the new Facility A Aggregate
Commitment; or
(ii) elect to extend the Facility A Termination Date with
respect to the Accepting Lenders and, prior to or no
later than the then scheduled Facility A Termination
Date, (A) to replace one or more of the Declining
Lender or Declining Lenders with another lender or
lenders reasonably acceptable to the Administrative
Agent (such lenders herein called the "Replacement
Lenders") and (B) the Borrower shall pay in full in
immediately available funds all Obligations of the
Borrower owing to the Declining Lenders which are not
being replaced, as provided in clause (i) above;
provided that (x) the Replacement Lender or Replacement
Lenders shall purchase, and the Declining Lender or
Declining Lenders shall sell, the Notes of the
Declining Lender or Declining Lenders being replaced
and the Declining Lender's or Declining Lenders' rights
hereunder without recourse or expense to, or warranty
(except warranty of ownership which is free and clear
of any adverse claims) by, such Declining Lender or
Declining Lenders being replaced for a purchase price
equal to the aggregate outstanding principal amount of
the Note or Notes payable to such Declining Lender or
Declining Lenders plus any accrued but unpaid interest
on such Note or Notes and accrued but unpaid fees in
respect of such Declining Lender's or Declining
Lenders' Loans and Facility A Commitments hereunder,
and (y) all obligations of the Borrower owing under or
in connection with this Agreement with respect to
Facility A to the Declining Lender or Declining Lenders
being replaced (including, without limitation, such
increased costs, breakage fees payable under
Article III and all other costs and expenses payable to
each such Declining Lender) shall be paid in full in
immediately available funds to such Declining Lender or
Declining Lenders concurrently with such replacement,
and (z) upon the payment of such amounts referred to in
clauses (x) and (y), the Replacement Lender or
Replacement Lenders shall each constitute a Lender
hereunder and the Declining Lender or Declining Lenders
being so replaced shall no longer constitute a Lender
and shall no longer have any obligations hereunder;
however, such Person shall be obligated to make or
entitled to receive payments pursuant to Article III,
Section 2.21 and Section 9.7, and to the Agents
pursuant to Section 10.3 (but only to the extent the
event giving rise to such payment occurred prior to the
time at which the events set forth in clauses (x) and
(y) shall have occurred) as if it were a Lender or
(iii) elect to revoke and cancel the extension request
in such prior written notice by giving notice of such
revocation and cancellation to the Administrative Agent
(which shall promptly notify the Lenders thereof) no
later than the tenth day following the date by which
each Lender is required, pursuant to Section 2.23(a),
to approve or disapprove the requested extension of the
Facility A Termination Date, and concomitantly the
Facility A Aggregate Commitment. If the Borrower fails
to timely provide the election notice referred to in
this clause (iii), the Borrower shall be deemed to have
revoked and canceled the extension request in the prior
written notice and to have elected not to extend the
Facility A Termination Date, and the concomitant
Facility A Aggregate Commitment, and, on the then
scheduled Facility A Termination Date, the Borrower
shall repay in full all Obligations under the Loan
Documents.
ARTICLE III
CHANGE IN CIRCUMSTANCES
SECTION III.1. Yield Protection. If any change in, or
introduction of, any law or any governmental or quasi-
governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law), or any interpretation
thereof, or compliance of any Lender therewith, (a) subjects any
Lender or any applicable Lending Installation to any tax, duty,
charge or withholding on or from payments due from the Borrower
(excluding taxation of the overall net income of any Lender or
applicable Lending Installation), or changes the basis of
taxation of payments to any Lender in respect of its Fixed Rate
Loans or other amounts due it hereunder, or (b) imposes or
increases or deems applicable any reserve, assessment, insurance
charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Installation, or (c) imposes any
other condition the result of which is to increase the cost to
any Lender or any applicable Lending Installation of making,
funding or maintaining Fixed Rate Loans or reduces any amount
receivable by any Lender or any applicable Lending Installation
in connection with Fixed Rate Loans, or requires any Lender or
any applicable Lending Installation to make any payment
calculated by reference to the amount of Fixed Rate Loans held or
interest received by it, by an amount deemed material by such
Lender, then, within 15 days of demand by such Lender specifying,
in reasonable detail, the nature of the change or introduction,
the Borrower shall pay such Lender that portion of such increased
expense incurred or reduction in an amount received which such
Lender determines is attributable to making, funding and
maintaining its Loans and its Commitment. The Borrower shall not
be obligated to compensate any Lender pursuant to this Section
3.1 for any amounts attributable to a period more than 120 days
prior to the giving of notice by such Lender to the Borrower of
its intention to seek compensation under this Section 3.1 or its
request therefor.
SECTION III.2. Changes in Capital Adequacy Regulations. If
a Lender determines that the amount of capital required or
expected to be maintained by such Lender, any Lending
Installation of such Lender, or any corporation controlling such
Lender is increased as a result of a Change, then, within 15 days
of demand by such Lender, the Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender
reasonably determines is attributable to this Agreement, its
Loans, or its obligation to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy being
applied with respect to customers similarly situated to Borrower
with whom such Lender has a contractual right to so charge such
amounts). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines or (ii) any
adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of
law) after the date of this Agreement which affects the amount of
capital required or expected to be maintained by any Lender or
any Lending Installation or any corporation controlling any
Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the
corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and
Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition
rules, and any amendments to such regulations adopted prior to
the date of this Agreement. The Borrower shall not be obligated
to compensate any Lender pursuant to this Section 3.2 for any
amounts attributable to a period more than 120 days prior to the
giving of notice by such Lender to the Borrower of its intention
to seek compensation under this Section 3.2 or its request
therefor.
SECTION III.3. Availability of Types of Advances. If any
Lender determines that maintenance of any of its Eurodollar Loans
or any of its Eurodollar Bid Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation
or directive, whether or not having the force of law, the
Administrative Agent shall suspend the availability of the
affected type of Advance and require any Eurodollar Advances or
Eurodollar Bid Rate Advances of the affected type to be converted
into ABR Advances. If the Majority Lenders determine that (i)
deposits of a type or maturity appropriate to match fund
Eurodollar Advances or Eurodollar Bid Rate Advances are not
available, the Administrative Agent shall suspend the
availability of such type of Advance with respect to any
Eurodollar Advances or Eurodollar Bid Rate Advances made after
the date of any such determination until such time as deposits of
a type or maturity appropriate to match fund Eurodollar Advances
or Eurodollar Bid Rate Advances are made available, or (ii) after
giving effect to amounts payable under Sections 3.1 and 3.2 an
interest rate applicable to a type of Advance does not accurately
reflect the cost of making a Eurodollar Advance or Eurodollar Bid
Rate Advance of such type, then, if for any reason whatsoever the
provisions of Section 3.1 are inapplicable, the Administrative
Agent shall suspend the availability of the affected type of
Advance with respect to any Eurodollar Advances or Eurodollar Bid
Rate Advances made after the date of any such determination.
SECTION III.4. Funding Indemnification. If any payment of a
Fixed Rate Advance occurs on a date which is not the last day of
the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Fixed Rate Advance is not made or
converted on the date specified by the Borrower for any reason
other than default by the relevant Lenders, the Borrower will
indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or
cost in liquidating or employing deposits acquired to fund or
maintain the Fixed Rate Advance. The Borrower shall not be
obligated to compensate any Lender pursuant to this Section 3.4
for any amounts attributable to a period more than 120 days prior
to the giving of notice by such Lender to the Borrower of its
intention to seek compensation under this Section 3.4 or its
request therefor.
SECTION III.5. Lender Statements; Survival of Indemnity. To
the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Fixed Rate
Loans to reduce any liability of the Borrower to such Lender
under Section 3.1 or to avoid the unavailability of a Rate Option
under Section 3.3, so long as such designation is not
disadvantageous to such Lender as determined by such Lender in
good faith. A written statement of a Lender as to the amount due
under Section 3.1, 3.2 or 3.4 shall be final, conclusive and
binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in
connection with a Fixed Rate Loan shall be calculated as though
each Lender funded its Fixed Rate Loan through the purchase of a
deposit of the type and maturity corresponding to the deposit
used as a reference in determining the Fixed Rate applicable to
such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written
statement shall be payable on demand after receipt by the
Borrower of the written statement. The obligations of the
Borrower under Sections 3.1, 3.2 and 3.4 shall survive payment of
the Obligations and termination of this Agreement.
SECTION III.6. Replacement of Lenders. If any Lender is
unable to make a Fixed Rate Loan pursuant to Section 3.3, is
subject to increased costs pursuant to Section 3.1, 3.2 or 3.4,
fails to designate an alternate Lending Installation pursuant to
Section 3.1 or 3.5, or is owed or reasonably anticipates being
owed additional amounts pursuant to Section 3.1 or 3.2 and fails
to take action to the extent required under Section 3.1, 3.2 or
3.5 to avoid or reduce any such additional amounts, the Borrower
shall have the right, if no Event of Default then exists, to
replace such Lender with another financial institution reasonably
acceptable to the Administrative Agent provided that (i) such
financial institution shall unconditionally offer in writing
(with a copy to the Administrative Agent) to purchase, in
accordance with Section 12.3.2, all of such Lender's rights and
obligations under this Agreement and the Notes, without recourse
or expense to, or warranty (except warranty of ownership which is
free and clear of any adverse claims) by, such Lender being
replaced for a purchase price equal to the aggregate outstanding
principal amount of the Notes payable to such Lender plus accrued
but unpaid fees and interest in respect of such Lender's
commitment hereunder to the date of such purchase on a date
therein specified, (ii) the obligations of the Borrower owing
pursuant to Section 3.1, 3.2 and 3.4 to the Lender being
replaced, shall be paid in full to the Lender being replaced
concurrently with such replacement, (iii) the replacement
financial institution shall execute a Notice of Assignment
pursuant to which it shall become a party hereto as provided in
Section 12.3.2 and shall pay the processing fee required pursuant
to such section, and (iv) upon compliance with the provisions for
assignment provided in Section 12.3 and the payment of amounts
referred to in clause (i), the replacement financial institution
shall constitute a "Lender" hereunder and the Lender being so
replaced shall no longer constitute a "Lender" hereunder;
provided that (x) if such Lender accepts such an offer and such
financial institution fails to purchase on such specified date in
accordance with the terms of such offer, the Borrower shall
continue to be obligated to pay the increased cost, amounts,
expenses and taxes under Sections 3.1, 3.2 and 3.4 above to such
Lender and (y) if such Lender fails to accept such purchase
offer, the Borrower shall not be obligated to pay such Lender
such increased cost pursuant to such sections from and after the
date of such purchase offer.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION IV.1. Initial Advance. The Lenders shall not be
required to make the initial Advance hereunder unless all
obligations of the Borrower under its Credit Agreement dated as
of July 15, 1992, as amended, are concurrently paid in full and
the Borrower has furnished the following (each dated the date of
such initial Advance) to the Administrative Agent with sufficient
copies for the Lenders:
(a) Copies of the Partnership Agreement of the
Borrower and the Operating Agreement, together with all
amendments thereto, and copies of the articles of
incorporation or partnership agreement of each Partner, each
certified by an Authorized Officer or a Partner, as
applicable, as being true, correct and complete.
(b) Copies, certified by an Authorized Officer, of
resolutions authorizing the execution by the Borrower of the
Loan Documents.
(c) An incumbency certificate, executed by an
Authorized Officer, which shall identify by name and title
and bear the signature of the Authorized Representatives to
sign the Loan Documents and to make borrowings hereunder,
upon which certificate the Agents and the Lenders shall be
entitled to rely until informed of any change in writing by
the Borrower.
(d) A certificate, signed by the Vice President,
Finance of the Operator, stating that on the initial
Borrowing Date no Default or Event of Default has occurred
and is continuing.
(e) Written opinions of the General Counsel of the
Operator and Xxxxxxx and Xxxxxx, addressed to the Agents and
the Lenders in substantially the forms of Exhibits "B-1" and
"B-2" hereto.
(f) Notes payable to the order of each of the Lenders.
(g) A certificate setting forth the Borrower's
insurance coverage and insurers as of the Closing Date.
(h) Such other documents as any Agent or its counsel
or the Majority Lenders may have reasonably requested.
(i) Solely with respect to the initial Advance under
Facility B, a FERC Certificate of Public Convenience and
Necessity granting Borrower the requisite authority to
construct and operate the Extension and Expansion in form
reasonably acceptable to the Borrower and the Agents.
(j) A certificate dated on the Closing Date of an
Authorized Officer certifying that the representations and
warranties contained in Article V are true and correct as of
the Closing Date.
SECTION IV.2. Each Loan and Conversion Date. (i) No Lender
shall be required to make any Loan on the applicable Borrowing
Date, and (ii) the Conversion Date of Facility B shall not occur,
unless on such date:
(a) There exists no Default or Event of Default.
(b) The representations and warranties contained in
Article V (other than in Sections 5.5, 5.7 and 5.19), are
true and correct as of such Borrowing Date or Conversion
Date except for changes in the Schedules hereto reflecting
transactions permitted by, and transactions not prohibited
by, this Agreement.
(c) All legal matters incident to the making of such
Loan shall be satisfactory to the relevant Lenders and their
counsel.
Each Borrowing Notice and Competitive Bid Borrowing Notice
with respect to each such Loan shall constitute a representation
and warranty by the Borrower that the conditions contained in
Section 4.2(a) and (b) have been satisfied.
SECTION IV.3. Conversion Date. The Conversion Date of
Facility B shall occur on the date as of which:
(a) the Expansion and Extension shall be completed
such that the Borrower has received written authorization
from the FERC or its representative, to commence service on
the Expansion and Extension and the Borrower shall have
complied in all material respects with the terms of the FERC
Certificate of Public Convenience and Necessity and the
Administrative Agent shall have received a certificate from
an appropriate officer of the Operator certifying that the
Borrower has received such written authorization;
(b) the new shipper contracts entered into by the
Borrower for substantially all of the Expansion and
Extension capacity shall be in full force and effect and the
Shippers' payment obligations thereunder have commenced by
Borrower notifying Shippers by at least one day's notice
that Borrower is capable of receiving and delivering gas
under such Shippers' contracts;
(c) the Borrower shall have received equity
contributions from its Partners equal to not less than 35%
of the total cost of the Expansion and Extension; and
(d) the matters in Section 4.2 have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agents and the
Lenders that:
SECTION V.1. General Partnership Existence and Standing.
The Borrower is a general partnership duly formed, validly
existing and in good standing under the laws of the State of
Texas and has all requisite authority to own its assets and to
conduct its business in each jurisdiction in which its business
is conducted except where failure to have such authority would
not have a Material Adverse Effect. The Operator is a corporation
duly formed, validly existing and in good standing under the laws
of the State of Delaware and has all requisite authority to own
its assets and to conduct its business in each jurisdiction in
which its business is conducted except where failure to have such
authority would not have a Material Adverse Effect.
SECTION V.2. Authorization and Validity. The Borrower has
the partnership power and authority and legal right to execute
and deliver the Loan Documents and to perform its obligations
thereunder. The execution and delivery by the Borrower of the
Loan Documents and the performance of its obligations thereunder
have been duly authorized by proper partnership proceedings, and
the Loan Documents constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and except that the
enforceability of obligations under agreements is subject to
general principles of equity (regardless of whether such
enforceability is considered at law or in equity).
SECTION V.3. No Conflict; Government Consent. Neither the
execution and delivery by the Borrower of the Loan Documents, nor
the consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or the provisions of any indenture,
instrument or agreement to which the Borrower is a party or is
subject, or by which it, or its Property, is bound, or conflict
with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the Property of
the Borrower pursuant to the terms of any such indenture,
instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or
registration with, or exemption by, any governmental or public
body or authority, or any subdivision thereof, which could have a
Material Adverse Effect or result in liability to the Lenders if
not obtained, is required to authorize, or is required in
connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, any
of the Loan Documents.
SECTION V.4. Financial Statements. The December 31, 1996
consolidated financial statements of the Borrower heretofore
delivered to the Lenders were prepared in accordance with GAAP in
effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of
the Borrower at such date and the results of its operations for
the period then ended.
SECTION V.5. Material Adverse Change. No material adverse
change in the business, properties, financial condition, or
operations of the Borrower has occurred since the date of the
financial statements referred to in Section 5.4.
SECTION V.6. Taxes. The Borrower has filed all tax
returns which are required to be filed and has paid all taxes and
assessments due pursuant to said returns or pursuant to any
assessment received by the Borrower, except such taxes, if any,
as are being contested in good faith and as to which adequate
reserves have been provided or which if not timely paid could not
reasonably be expected to have a Material Adverse Effect or
result in liability to the Lenders. No tax liens have been filed
and no claims are being asserted with respect to any such taxes.
The charges, accruals and reserves on the books of the Borrower
in respect of any taxes or other governmental charges are
adequate in all material respects.
SECTION V.7. Litigation and Contingent Obligations.
Except as set forth on Schedule "2" hereto, there is no
litigation, arbitration, governmental investigation, proceeding
or inquiry pending or, to the knowledge of any of the Authorized
Officers, threatened against or affecting the Borrower or any of
its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect. Other than any liability incident to
such litigation, arbitration or proceedings, the Borrower has no
material contingent obligations not provided for or disclosed in
the financial statements referred to in Section 5.4.
SECTION V.8. Subsidiaries. At the Closing Date, the
Borrower has no Subsidiaries.
SECTION V.9. ERISA. The Borrower has no ERISA Plans.
SECTION V.10. Accuracy of Information. All factual
information (taken as a whole) heretofore or contemporaneously
furnished by the Borrower in writing to any Lender for purposes
of or in connection with this Agreement or any transaction
contemplated herein was true and accurate in all material
respects on the date as of which such information was dated or
certified and is not incomplete by omitting to state any fact
necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which
such information was provided.
SECTION V.11. Representation with Respect to Regulations G,
T, U and X. No part of the proceeds of the Borrowings will be
used to purchase or carry margin stock (as defined in
Regulations G, T, U and X) in violation of Regulation G, T, U or
X, nor will the execution, performance or delivery by the
Borrower of the Notes or the Loan Documents, nor the application
of the proceeds of the Borrowings in accordance herewith, violate
Regulation G, T, U or X. The Borrower is not engaged
principally, nor is one of its important activities in the
business of extending credit for the purpose of buying or
carrying margin stock, and both before and after giving effect to
all of the transactions contemplated herein, less than 25% of the
assets of the Borrower consists of margin stock.
SECTION V.12. Compliance With Laws, Approvals, etc. The
Borrower is in compliance with its Tariff, and with all
applicable statutes, rules, regulations, orders and restrictions
(including Environmental Laws), and has obtained all necessary
permits, authorizations and approvals, of any domestic or foreign
government or any instrumentality or agency thereof, having
jurisdiction over the conduct of its businesses or the ownership
of its respective Property other than those for which application
has been made or will be made and which are reasonably expected
to be received in the ordinary course of business, except where
the failure to so comply or to have so obtained would not singly
or in the aggregate have a Material Adverse Effect.
SECTION V.13. Environmental Matters. The Borrower is not
subject to any liability or obligation for remedial action under
any Environmental Laws which could reasonably be expected to have
a Material Adverse Effect. There is no pending or, to the best
of the Borrower's knowledge, threatened investigation or inquiry
of the Borrower or any of its Properties (i) pertaining to any
violation of any Environmental Law relating to Hazardous
Materials, or (ii) which could reasonably be expected to result
in any requirement that the Borrower conduct any clean-up or
remediation activities with respect to any Hazardous Materials
which could reasonably be expected to have a Material Adverse
Effect. There are no Hazardous Materials located on or under any
of the properties of the Borrower (other than petroleum products
which are located thereon in the ordinary course of business and
in a manner which does not constitute a violation of applicable
Environmental Law) which could reasonably be expected to have a
Material Adverse Effect. The Borrower has not caused or
permitted any Hazardous Material to be disposed of on or under or
released from any of its Properties which disposal or release
could reasonably be expected to have a Material Adverse Effect.
The Borrower has no knowledge of any violation of any
Environmental Law by any previous owner of any of its Properties
that could reasonably be expected to have a Material Adverse
Effect.
SECTION V.14. Ownership of Properties; Liens. Except as
shown in Schedule 5.14, the Borrower has good and marketable
title to all Properties purported to be owned by it (other than
easements, with respect to which the Borrower has sufficient
title to permit the Borrower to operate the Pipeline), as
reflected in the most recent balance sheet of the Borrower
delivered pursuant hereto, or purported to have been acquired by
the Borrower after said date (except as sold or otherwise
disposed of in the ordinary course of business), in all cases
free and clear of Liens not permitted by Section 6.2.7 hereof.
The Borrower enjoys peaceful and undisturbed possession under all
leases of real property upon which facilities operated by it are
situated, and all such leases are valid and subsisting and in
full force and effect and neither the Borrower nor, to the
knowledge of the Borrower, any of the respective other parties
thereto is in default in any material respect under any such
lease.
SECTION V.15. Investment Company Act. Neither the Borrower
nor any Subsidiary thereof is an "investment company" or a
company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
SECTION V.16. Public Utility Holding Company Act. The
Borrower is not subject to or is exempt from regulation as, a
"holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended
("PUHCA").
SECTION V.17. Insurance. As of the Closing Date, the
certificate provided pursuant to Section 4.1(g) and signed by an
Authorized Representative of the Borrower, that attests to the
existence and adequacy of, and summarizes, the property and
casualty insurance program carried by the Borrower and that has
been furnished by the Borrower to the Administrative Agent and
the Lenders, is complete and accurate in all material respects.
SECTION V.18. Default. No Default or Event of Default has
occurred and is continuing.
SECTION V.19. Service Agreements and Support Agreements.
The Service Agreements (other than T-1R Service Agreements) and
precedent agreements identified on Schedule "1-a" and Schedule "1-
b" and the Support Agreements identified on Schedule "5" hereto
comprise all of the Service Agreements and precedent agreements
and Support Agreements in effect as of the date of this
Agreement, and, subject to the express terms thereof, each of
said Service Agreements, is valid for the term and the total
maximum receipt quantity set forth on such Schedule; and each of
such Service Agreements, assuming due authorization, execution
and delivery by the respective Shipper party thereto, is the
legal, valid and binding obligation of such Shipper party
thereto, enforceable against such Shipper in accordance with its
respective terms, except as such enforcement may be limited by
bankruptcy, insolvency or other similar laws relating to or
affecting the enforcement of creditors' rights generally and
except that the enforceability of obligations thereunder is
subject to general principles of equity (regardless whether such
enforceability is considered in a proceeding in equity or at
law).
SECTION V.20. Partnership Agreement. The Partnership
Agreement and the Operating Agreement are in full force and
effect.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Majority
Lenders shall otherwise consent in writing:
SECTION VI.1. Affirmative Covenants.
SECTION VI.1.1 Financial Reporting. The Borrower will
furnish to the Lenders:
(a) As soon as available, and in any event within
sixty (60) days after the end of each of the first three
quarterly periods of each of its fiscal years, a balance
sheet of the Borrower as of the end of such quarter, and
statements of income, cash flows and changes in partners'
capital of the Borrower for a period commencing at the end
of the previous fiscal year and ending with the end of such
quarter.
(b) As soon as available and in any event within 120
days after the close of each of its fiscal years, an audit
report certified by independent certified public
accountants, acceptable to the Administrative Agent,
together with a balance sheet of the Borrower as of the end
of such fiscal year, and statements of income, cash flows
and changes in partners' capital of the Borrower for each
fiscal year prepared in accordance with GAAP on a
consolidated basis for the Borrower.
(c) Together with the financial statements required
hereunder, a compliance certificate in substantially the
form of Exhibit "C" hereto signed by an Authorized Officer
(a "Compliance Certificate") certifying that the financial
statements fairly present the Borrower's financial condition
and results of operations and showing the calculations
necessary to determine compliance with this Agreement and
stating that no Default or Event of Default exists, or if
any Default or Event of Default exists, stating the nature
and status thereof.
(d) Promptly after becoming aware thereof, written
notice of any litigation which could reasonably be expected
to result in a judgment against the Borrower in excess of
$25,000,000, net of insurance coverage which is reasonably
expected to be paid by the insurer, or other event or
condition which could reasonably be expected to have a
Material Adverse Effect.
(e) Within 10 days after the distribution or filing
thereof, copies (excluding exhibits, which will be provided
on request) of all financial information the Borrower makes
generally available to its security holders (other than to
the Partners in their capacity as such) and copies of all
annual and quarterly reports of the Borrower which the
Borrower files with the Securities and Exchange Commission
and all annual financial reports which the Borrower files
with FERC or the Department of Energy.
(f) Within 10 Business Days after an executive officer
of the Borrower or the Operator becomes aware of the
occurrence of any Event of Default or Default, a written
statement of an executive officer of the Borrower or the
Operator which sets forth, so far as is known to such
officer, the relevant details of such Event of Default or
Default and the action which the Borrower has taken or
proposes to take with respect thereto.
(g) Within 10 Business Days after the commencement
thereof or after an executive officer of the Borrower or the
Operator becomes aware that the Borrower has been made a
party thereto, whichever occurs later, notice of all
actions, suits or proceedings before any court or
governmental authority or regulatory body or arbitrator to
which the Borrower is a party and which, in the good-faith
opinion of the Operator, presents a reasonable possibility
of having a Material Adverse Effect.
(h) Within 10 Business Days after an executive officer
of the Borrower or the Operator becomes aware of 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 have a
Material Adverse Effect, a written statement of an 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.
(i) Such other information respecting the condition or
operations, financial or otherwise, of the Borrower as any
Lender or Agent through the Administrative Agent may from
time to time reasonably request.
SECTION VI.1.2 Use of Proceeds. The Borrower will use the
proceeds of the Facility A Advances to provide (i) funds to
refinance certain existing indebtedness of the Borrower and (ii)
funds for general business purposes; provided that the Borrower
will not use any proceeds to fund an Acquisition not approved by
the board of directors or other governing body of the target or
selling company. The Borrower will use the proceeds of the
Facility B Advances to provide funds to finance the construction
of the Expansion and Extension and expenses incurred in
connection therewith.
SECTION VI.1.3 [INTENTIONALLY OMITTED]
SECTION VI.1.4 Taxes and Other Charges. The Borrower will
pay when due all taxes, assessments and governmental charges and
levies upon it or its income, profits or Property, as well as all
lawful claims for labor, materials, and supplies, which, if
unpaid could become a Lien or charge on such Property, or any
part thereof, except, with regard to any of the foregoing, which
are being contested in good faith by appropriate proceedings
diligently pursued and with respect to which adequate reserves
have been set aside or which, if not paid, could not reasonably
be expected to have a Material Adverse Effect.
SECTION VI.1.5 Insurance. The Borrower will maintain with
financially sound and reputable insurance companies insurance on
its Property in such amounts and covering such risks as is
consistent with prudent industry practice, and the Borrower will
furnish to any Lender upon reasonable request full information as
to the insurance carried, including, without limitation,
certificates of insurers, brokers and agents, as to such
insurance.
SECTION VI.1.6 Compliance with Laws. The Borrower will
comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be
subject, including, without limitation, all Environmental Laws,
and obtain, keep, and comply with, all necessary permits,
approvals, certificates and licenses in effect and remain in
compliance therewith, except in any such case where the failure
to do so could not reasonably be expected to have a Material
Adverse Effect.
SECTION VI.1.7 Maintenance of Properties. The Borrower will
maintain, preserve, protect and keep its Pipeline in good repair,
working order and condition in accordance with prudent industry
practices, and make all necessary and proper repairs, renewals
and replacements so that its business is carried on in accordance
with prudent industry practices, ordinary wear and tear excepted,
subject to acts of God, strikes, lockouts, or other industrial
disturbances, acts of public enemy, wars, blockades,
insurrections, riots, epidemics, lightning, earthquakes, fires,
storms, floods, washouts, arrests and restraints of governments
and people, civil disturbances, explosions, blowouts, cratering,
breakage or accident to machinery or lines of pipe, shortages
and/or governmentally imposed allocations of pipe or other
facilities, materials and equipment and any other causes, whether
of the kind herein enumerated or otherwise, not reasonably within
the control of the Borrower or which by the exercise of due
diligence, the Borrower is unable to overcome. The Borrower
shall not be required to settle strikes, lockouts, embargoes or
boycotts, or disputes with governmental authorities, by acceding
to the demands of the opposing party, or any such authority, when
such course is inadvisable in the discretion of the Borrower.
SECTION VI.1.8 Inspection. The Borrower will permit the
Agents and the Lenders, by their respective representatives and
agents, to visit and inspect any of the Property, partnership
books and financial records of the Borrower, to audit and examine
and make copies of the books of accounts and other financial
records (and after the occurrence and during the continuance of a
Default, other records) of the Borrower, and to discuss the
affairs, finances and accounts of the Borrower with, and to be
advised as to the same by, their respective officers upon
reasonable advance notice, and at such reasonable times (during
normal business hours) and intervals as the Agents and the
Lenders may designate; provided, however, that during such time
as no Default or Event of Default has occurred and is continuing,
visits, inspections and audits by the Agents and the Lenders
shall be conducted at their own risk, cost and expense and on the
same date and not more often than once during any calendar
quarter, unless otherwise agreed by the Borrower.
SECTION VI.1.9 Maintenance of Books and Records. The
Borrower will maintain proper books of record and account in
which the Borrower will make full, true, and correct entries, in
accordance with Required Accounting Principles, of all dealings
and transactions pursuant to any law or Required Accounting
Principles with respect to which the Borrower is required to
maintain written records in relation to its business and
activities.
SECTION VI.1.10 Pari Passu Status. The Borrower will
ensure that the claims and rights of the Lenders against it under
this Agreement will not be subordinate to, and will rank at all
times at least pari passu with, all other Indebtedness including
the Borrower's Senior Notes. The Borrower will not amend, modify
or supplement any Note Purchase Agreements or the Senior Notes in
any manner which 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 VI.1.11 Tariff. The Borrower will use its best
efforts to cause the Borrower's Tariff to remain effective at all
times.
SECTION VI.1.12 Preservation of Rights, Etc. Subject to
the provisions of Section 14 of the Partnership Agreement, the
Borrower will use its best efforts to maintain such
authorizations as may be required to enable it to do business as
a general partnership wherever the nature of its Property or of
its activities requires such authorizations and to preserve and
maintain its rights, franchises, leases, licenses and privileges
in all jurisdictions where necessary in light of its business or
Properties (except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect).
SECTION VI.1.13 Service Agreements and Support
Agreements. The Borrower will use its best efforts to maintain
each Service Agreement and Support Agreement (other than the T-1R
Service Agreements and any Support Agreements related thereto) in
full force and effect during the stated term thereof, other than
pursuant to a termination through the exercise of a remedy
permitted therein, and other than Support Agreements modified or
terminated consistent with Section 6.1.14, provided, however,
that this Section 6.1.13 shall not prohibit the Borrower from
terminating a Service Agreement in whole or in part pursuant to
Section 27.1, and subject to Section 25, of the General Terms and
Conditions of Borrower's Tariff as a result of the Borrower's
entering into a new Service Agreement in accordance with Section
6.1.14 or amending an existing Service Agreement with a Shipper
or Shippers satisfying the requirements for (i) the amount of
volumes so terminated and (ii) the remaining term of such
terminated Service Agreement(s) or portion thereof.
SECTION VI.1.14 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.
SECTION VI.2. Negative Covenants.
SECTION VI.2.1 Limitation on Negative Pledges. The Borrower
will not agree to, create, assume, or permit to exist, any
Negative Pledge binding on it which covers any of its Property,
assets or revenues except pursuant to the Note Purchase
Agreements or agreements evidencing Indebtedness permitted
pursuant to Section 6.3.
SECTION VI.2.2 Limitation on Other Business. Neither the
Borrower nor any of its Subsidiaries will engage in any business
other than the operation of the Pipeline; the construction and
operation of additions, extensions and expansions related to the
Pipeline, including the Expansion and Extension; 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 VI.2.3 Merger; etc. The Borrower will not 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 acquired) to, any
Person, except pursuant to Section 14 or Section 15 of the
Partnership Agreement, provided in each case that the surviving
Person shall unconditionally assume, in writing, each and every
obligation of the Borrower under the Loan Documents to which the
Borrower is or becomes a party.
SECTION VI.2.4 Sale of Assets. The Borrower will not lease,
sell or otherwise dispose of its Property, to any other Person
except: (a) sales of inventory and other assets in the ordinary
course of business, (b) leases, sales or other dispositions of
its Property that, together with all other Property of the
Borrower previously leased, sold or disposed of (other than
Property otherwise permitted to be sold, leased, or otherwise
disposed of pursuant to this Section 6.2.4) 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 Property of the Borrower, (c) sales of
assets which are concurrently leased back, and (d) dispositions
of assets which are obsolete or no longer used or useful in the
business of the Borrower.
SECTION VI.2.5 Investments and Acquisitions. The Borrower
will not make any loan or advance to any Person, except for
advances in the ordinary course of business in the operations of
the Pipeline or in connection with the construction of the
Expansion and Extension, the construction of additional gas
compressor facilities on the Pipeline or the retrofitting of gas
compressor facilities existing on the Pipeline, or purchase or
otherwise acquire the capital stock, assets or obligations of or
any interest in any Person other than
(a) Short-term obligations of, or fully guaranteed by,
the United States of America;
(b) Commercial paper rated A-l or better by S&P or P-l
or better by Xxxxx'x Investors Service, Inc.;
(c) Certificates of deposit issued by and time
deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of Five Hundred Million
Dollars ($500,000,000) or any Lender;
(d) Other Investments (not otherwise permitted
pursuant to this Section 6.2.5) in existence on the date
hereof and included in the financial statements provided
pursuant to Section 5.4 or in Schedule "4" hereto;
(e) Bonds, debentures, notes or other evidences of
indebtedness issued by any of the following agencies or such
other like governmental or governmental-sponsored agencies
which may be hereafter created: Bank for Cooperatives,
Federal Intermediate Credit Banks, Federal Financing Banks,
Federal Home Loan Bank System, Export-Import Bank of the
United States, Farmers Home Administration, Small Business
Administration, InterAmerican Development Bank,
International Bank for Reconstruction and Development,
Federal Land Banks, the Federal National Mortgage
Association, and the Government National Mortgage
Association, in each case if purchased by the Borrower from
a financial institution referred to in clause (c) above;
provided that such financial institution agrees to
repurchase such securities within 180 days from the purchase
by the Borrower;
(f) Repurchase agreements with any Agent or any
Lender, or any banks that are insured by the Federal Deposit
Insurance Corporation and having a capital and an unimpaired
surplus of at least Five Hundred Million Dollars
($500,000,000), and with members of the Association of
Primary Dealers in United States Government Securities, the
underlying securities of which are of the type described in
(a) or (e) above, and each of which is secured at all times
by obligations of the same type that have fair market value,
including accrued interest, at least equal to the amount of
such repurchase agreement, including accrued interest;
(g) Obligations of any state within the United States
of America, any nonprofit corporation or any instrumentality
of the foregoing, provided that at the time of their
purchase, such obligations are rated in one of the two
highest letter rating categories (e.g. in the case of S&P,
either its AAA or AA category) by a nationally recognized
securities credit rating agency;
(h) Obligations issued by political subdivisions or
municipalities of any state within the United States of
America, any nonprofit corporation or any instrumentality of
the foregoing, that are rated in one of the two highest
letter rating categories (e.g. in the case of S&P, either
its AAA or AA category) by a nationally recognized
securities credit rating agency;
(i) Eurodollar deposits with the overseas branch of
any Lender or any domestic bank having a capital and surplus
of at least Five Hundred Million Dollars ($500,000,000);
(j) Participations having a term of no more than 90
days with (i) any Lender or (ii) any financial institution,
the unsecured debt of which is rated in one of the two
highest letter rating categories (e.g. in the case of S&P,
either its AAA or AA category) by a nationally recognized
securities credit rating agency, in loans made or owned by
such Lender or other financial institution to Persons which
have open market commercial paper rated in either of the two
highest short-term rating categories by a nationally
recognized securities credit rating agency;
(k) Purchases or other acquisitions of the capital
stock, assets 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; or
(l) Acquisitions, provided that after giving effect to
such Acquisition, no Event of Default shall have occurred
and be continuing or will result therefrom, and upon the
effectiveness of the Acquisition the Borrower will remain in
compliance with this Agreement.
SECTION VI.2.6 Guaranty. The Borrower will not make or
suffer to exist any Guaranty, except endorsement of instruments
for deposit or collection in the ordinary course of business.
SECTION VI.2.7 Liens. The Borrower will not create, incur,
or suffer to exist any Lien in, of or on the Property of the
Borrower, except: (a) utility easements, building restrictions
and such other encumbrances or charges against real property as
are of a nature generally existing with respect to properties of
a similar character and which do not materially affect the
marketability of the same or interfere with the use thereof in
the business of the Borrower; (b) Liens existing on the date
hereof (not otherwise permitted pursuant to this Section 6.2.7)
and described in Schedule "3" hereto; (c) Permitted Liens; (d)
Liens created by (i) Capitalized Leases permitted by the terms
hereof provided that the Liens created by any such Capitalized
Lease attach only to the Property leased to the Borrower pursuant
thereto, and (ii) purchase money Liens securing Indebtedness
(including such Liens securing Indebtedness incurred within 12
months of the date on which such Property was acquired) provided
that all such Liens attach only to the Property purchased with
the proceeds of the Indebtedness secured thereby; (e) Liens on
Property of a Person which exist at the time such Person becomes
a Subsidiary of the Borrower which Liens were not granted in
contemplation of such Person becoming a Subsidiary of the
Borrower; (f) any Liens securing Indebtedness, 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 the Borrower for substation, metering
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 (f) does not materially
impair the use of the property covered by such Lien for the
purposes for which such property is held by the Borrower; and (g)
extensions, renewals or replacements of any Lien referred to in
Sections 6.2.7(a) through (f), provided that the principal amount
of the Indebtedness or obligation secured thereby is not
increased and that any such extension, renewal or replacement
Lien is limited to the Property originally encumbered thereby.
SECTION VI.2.8 Affiliates. The Borrower will not enter into
any transaction (including, without limitation, the purchase or
sale of any Property or service) with, or make any payment or
transfer to, any Affiliate (other than the Borrower and other
than distributions to partners of the Borrower) except upon terms
not materially less favorable to the Borrower than the Borrower
would obtain in a comparable arms-length transaction.
SECTION VI.2.9 Judgments. The Borrower will not allow any
final judgment for the payment of money in excess of Twenty-Five
Million Dollars ($25,000,000) with respect to the Borrower
rendered against the Borrower to remain undischarged or unbonded
for a period of thirty (30) days during which such execution
shall not be effectively stayed or deferred.
SECTION VI.2.10 ERISA. Neither the Borrower nor any
ERISA Affiliate shall maintain or contribute to any Plan without
obtaining the prior written consent of the Majority Banks, which
consent shall not be unreasonably withheld.
SECTION VI.3. Ratio of Debt. The Borrower will not permit
its ratio of Indebtedness to the sum of Partners' Capital
(determined in accordance with GAAP) plus Indebtedness to exceed
.65:1.0 on a consolidated basis.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events
shall constitute an Event of Default:
SECTION VII.1. False Representation or Warranty. Any
representation or warranty made or deemed made by or on behalf of
the Borrower to the Lenders or any Agent under or in connection
with this Agreement or any Loan, or any other Loan Document
(excluding any certificate or information) shall be false as of
the date on which made, or any certificate or information
delivered in connection with this Agreement shall be false in any
material respect as of the date on which made.
SECTION VII.2. Nonpayment of Principal. Nonpayment of
interest upon any Note or of any Facility Fee or other
obligations under any of the Loan Documents within five days
after the same becomes due or nonpayment of principal of any Note
when due.
SECTION VII.3. Breach of Other Terms. The breach by the
Borrower (other than a breach which constitutes a Default under
Section 7.1 or 7.2) of any of the terms or provisions of this
Agreement or any other Loan Document which is not remedied within
thirty days after an executive officer of the Borrower or the
Operator becomes aware thereof.
SECTION VII.4. Indebtedness. Failure of the Borrower to pay
any Indebtedness in excess in the aggregate of $10,000,000 when
due; or the default by the Borrower in the performance of any
term, provision or condition contained in any agreement under
which any Indebtedness in excess in the aggregate of $10,000,000
was created or is governed, the effect of which is to cause, or
to permit the holder or holders of such Indebtedness to cause,
such Indebtedness to become due prior to its stated maturity; or
any Indebtedness in excess in the aggregate of $10,000,000 shall
be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the stated
maturity thereof; provided that upon payment in full of the
Senior Notes, the foregoing $10,000,000 amounts shall
automatically without further action increase to the lesser of
(i) $25,000,000 in aggregate or (ii) the lowest cross-default or
cross-acceleration threshold in any agreement under which
Indebtedness of the Borrower is created or governed.
SECTION VII.5. Bankruptcy. The Borrower or any Subsidiary
shall (a) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect,
(b) not pay, or admit in writing its inability to pay, its debts
generally as they become due, (c) make an assignment for the
benefit of creditors, (d) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any
substantial part of its property, (e) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws or
seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed
against it, (f) take any partnership or corporate action to
authorize or effect any of the foregoing actions set forth in
this Section 7.5 or (g) fail to contest in good faith any
appointment or proceeding described in Section 7.6.
SECTION VII.6. Appointment of Receiver. Without the
application, approval or consent of the Borrower, a receiver,
trustee, examiner, liquidator or similar official shall be
appointed for the Borrower or any Subsidiary or any substantial
part of its property, or a proceeding described in Section 7.5(e)
shall be instituted against the Borrower or any Subsidiary and
such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 30 consecutive
days.
SECTION VII.7. Condemnation. Any court, government or
governmental agency shall condemn, seize or otherwise
appropriate, or take custody or control of all or any of the
Property of the Borrower if such action could reasonably be
expected to have a Material Adverse Effect.
SECTION VII.8. Judgment. Any judgment or order for the
payment of money in an aggregate amount greater than the sum of
(i) the amount of any insurance receivable by the Borrower in
respect of such judgments for which the applicable insurer has
not denied liability and (ii) either (A) the amount set forth in
the judgment default provisions of the Senior Notes (as of the
date of this Agreement $10,000,000) as they may be amended or in
effect from time to time, but in no event in excess of the lesser
of (i) $25,000,000 in aggregate or (ii) the lowest judgment
threshold in any agreement under which Indebtedness of the
Borrower is created or governed, or (B), if the Senior Notes have
been paid in full, the lesser of (i) $25,000,000 in aggregate or
(ii) the lowest judgment threshold in any agreement under which
Indebtedness of the Borrower is created or governed, shall be
rendered against the Borrower or any Subsidiary by a court of
competent jurisdiction and such judgment or order shall not be
satisfied in accordance with its terms and shall continue
unstayed and in effect for 30 days.
SECTION VII.9. Action to Change Tariff. The Borrower or any
Partner or any parent company thereof shall seek, or shall
directly or indirectly cause any Person to seek, 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 be 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 7.9 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.
SECTION VII.10. Regulatory Action to Change Tariff. Any
of the following events shall occur and could reasonably be
expected to have a material adverse effect on the Borrower's
ability to perform its obligations under the Loan Documents: (a)
the Tariff shall be effectively rescinded, terminated, disavowed,
repealed, declared invalid, suspended, amended or modified, or
the FERC shall order any such rescission, termination,
suspension, amendment or modification (and such order shall be
unstayed and in effect); or (b) any government approval at any
time required to be obtained or effected to enable the Borrower
or any Shipper to perform a material monetary obligation under
any Service Agreement shall be effectively withheld, rescinded,
terminated, repealed, declared invalid, suspended, amended or
modified (and such decision shall be unstayed and in effect).
SECTION VII.11. Voting Interest. The aggregate voting
interest of the Borrower's management committee held by
subsidiaries of Enron Corp., PanEnergy Corp., TransCanada
PipeLines Limited and The Xxxxxxxx Companies (or their successors
by merger) falls below 60% prior to completion of the Expansion
and Extension without obtaining the prior consent of the Majority
Lenders.
SECTION VII.12. Partnership Agreement. Except for an
automatic termination thereof in accordance with its terms, the
Borrower's Partnership Agreement ceases to be in full force and
effect.
SECTION VII.13. Abandonment of the Project. The
Borrower abandons all or any material portion of the Expansion
and Extension at any time that any Advances are outstanding under
Facility B.
SECTION VII.14. Change in Operator. There is a change
in Operator of the Borrower without the prior consent of the
Majority Lenders.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
SECTION VIII.1. Acceleration. If any Event of Default
described in Section 7.5 or 7.6 occurs, the obligations of the
Lenders to make Advances hereunder shall automatically terminate
and the Obligations shall immediately become due and payable
without any election or action on the part of any Agent or any
Lender. If any other Event of Default occurs, the Majority
Lenders may terminate or suspend the obligations of the Lenders
to make Loans hereunder, or declare the Obligations to be due and
payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest
or notice of any kind, all of which the Borrower hereby expressly
waives.
SECTION VIII.2. Amendments. Subject to the provisions
of this Article VIII, the Majority Lenders (or the Administrative
Agent with the consent in writing of the Majority Lenders) and
the Borrower may enter into agreements supplemental hereto for
the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or
the Borrower hereunder or waiving any Default or Event of Default
hereunder; provided, however, that no such supplemental agreement
shall, without the consent of all of the Lenders:
(a) Extend the maturity of any Note or reduce the
principal amount thereof, or reduce the rate or extend the
time of payment of interest thereon;
(b) Reduce the percentage specified in the definition
of Majority Lenders;
(c) Extend the Facility A Termination Date (except as
provided in Section 2.23) or the Facility B Termination
Date, or reduce the amount or extend the payment date for,
any payments required hereunder, or increase the amount of
the Commitment of any Lender hereunder, or change any term
or provision of this Agreement relating to the Conversion
Date or permit the Borrower to assign its rights under this
Agreement except as provided in Section 3.6; or
(d) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the
Administrative Agent shall be effective without the written
consent of the Administrative Agent.
SECTION VIII.3. Preservation of Rights. No delay or
omission of the Lenders or the Agents to exercise any right under
the Loan Documents shall impair such right or be construed to be
a waiver of any Default or Event of Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence
of a Default or Event of Default or the inability of the Borrower
to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no
waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section
8.2, and then only to the extent in such writing specifically set
forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the
Agents and the Lenders until the Obligations have been paid in
full.
ARTICLE IX
GENERAL PROVISIONS
SECTION IX.1. Survival of Representations. All
representations and warranties of the Borrower contained in this
Agreement and the other Loan Documents shall survive delivery of
the Notes and the making of the Loans herein contemplated.
SECTION IX.2. Governmental Regulation. Anything contained
in this Agreement to the contrary notwithstanding, no Lender
shall be obligated to extend credit to the Borrower in violation
of any limitation or prohibition provided by any applicable
statute or regulation.
SECTION IX.3. Taxes. Any taxes (excluding income taxes)
payable or ruled payable by Federal or state authority in respect
of the Loan Documents shall be paid by the Borrower, together
with interest and penalties, if any.
SECTION IX.4. Headings. Section headings in the Loan
Documents are for convenience of reference only, and shall not
govern the interpretation of any of the provisions of the Loan
Documents.
SECTION IX.5. Entire Agreement. The Loan Documents embody
the entire agreement and understanding among the Borrower, the
Agents and the Lenders and supersede all prior agreements and
understandings among the Borrower, the Agents and the Lenders
relating to the subject matter thereof.
SECTION IX.6. Several Obligations. The respective
obligations of the Lenders hereunder are several and not joint
and no Lender shall be the partner or agent of any other (except
to the extent to which the Administrative Agent is authorized to
act as such). The failure of any Lender to perform any of its
obligations hereunder shall not relieve any other Lender from any
of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective
successors and assigns.
SECTION IX.7. Expenses; Indemnification. The costs and
expenses of the syndication groups of the Administrative Agent
and the Joint Arrangers incurred in syndication will be for the
account of the Borrower whether or not the transactions herein
contemplated are consummated. The Administration Agent's costs
and expenses of preparation, negotiation, documentation,
administration, amendment and modification of this Agreement and
the other Loan Documents and the other documents referred to
herein and therein and any amendment, consent or waiver relating
thereto or hereto, will be for the account of the Borrower,
including reasonable expenses of and fees for attorneys for the
Administrative Agent and First Chicago Capital Markets, Inc. and
other advisors and professionals engaged by the Administrative
Agent as more fully described in the fee letter among the
Borrower, the Administrative Agent and First Chicago Capital
Markets, Inc. In addition, the Borrower shall pay the costs and
expenses of preserving any rights of the Agents, Arrangers or the
Lenders under, or enforcement of this Agreement and the other
Loan Documents and the other documents delivered hereunder and
thereunder, including, without limitation, costs and expenses
sustained by each Lender as a result of any failure by the
Borrower to perform or observe its obligations contained in any
of the Loan Documents, provided that the Borrower shall only be
liable hereunder for the counsel fees and expenses in this regard
of legal counsel selected by the Agents (and limited to one law
firm in the United States, one law firm in Canada, and one or
more correspondent law firms (including local and regulatory
counsel) as deemed appropriate by such United States law firm;
unless in the reasonable opinion of the Majority Lenders, a
conflict of interest exists between one or more of the Agents and
the Lenders and the other Agents, in which case Borrower shall be
liable for the counsel fees and expenses of one additional law
firm selected by the Majority Lenders). The Borrower agrees, to
the extent permitted by applicable law, to indemnify, exonerate
and hold the Administrative Agent, the Syndication Agents, the
Joint Arrangers and the Lenders and each of their officers,
directors, employees and agents (collectively the "Indemnitees"
and individually an "Indemnitee") free and harmless from and
against any and all actions, causes of action, suits, losses,
liabilities and damages, and expenses in connection therewith,
including without limitation reasonable counsel fees and
disbursements (collectively the "Indemnified Liabilities")
incurred by the Indemnitees or any of them as a result of, or
arising out of, or relating to any transaction financed or to be
financed in whole or in part directly or indirectly with proceeds
from the Advances or Loans, or the execution, delivery,
performance or enforcement of this Agreement or any Loan Document
by any of the Indemnitees, except for any such Indemnified
Liabilities arising on account of any Indemnitee's gross
negligence or willful misconduct and; provided that the Borrower
shall not be liable for any such obligations arising out of any
claim made by an Agent, a Joint Arranger or Lender against
another Agent, Joint Arranger or Lender. If and to the extent
the foregoing undertaking may be unenforceable for any reason,
the Borrower agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. The obligations of
the Borrower under this Section 9.7 shall survive payment of the
Notes.
SECTION IX.8. Numbers of Documents. All statements,
notices, closing documents, and requests hereunder shall be
furnished to the Administrative Agent with sufficient
counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
SECTION IX.9. Accounting. Except as provided to the
contrary herein, all accounting terms used herein shall be
interpreted and all accounting determinations hereunder shall be
made in accordance with Required Accounting Principles.
SECTION IX.10. Severability of Provisions. Any provision in
any Loan Document that is held to be inoperative, unenforceable,
or invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the
remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
SECTION IX.11. Nonliability of Lender. The relationship
between the Borrower and the Lenders and the Agents shall be
solely that of borrower and lender. Neither the Administrative
Agent nor any other Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Administrative
Agent nor any other Agent nor any Lender undertakes any
responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower's
business or operations.
SECTION IX.12. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER
THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION)
SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT
THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
SECTION IX.13. CONSENT TO JURISDICTION. THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK
IN ANY ACTION OR PROCEEDINGS ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF ANY AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST
THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY THE BORROWER AGAINST ANY AGENT OR ANY
LENDER OR ANY AFFILIATE OF ANY AGENT OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT
ONLY IN A COURT IN NEW YORK, NEW YORK.
SECTION IX.14. [INTENTIONALLY OMITTED.]
SECTION IX.15. Confidentiality. Each Lender agrees to hold
any confidential information which it may receive from the
Borrower pursuant to this Agreement in confidence, except for
disclosure to (i) other Lenders, (ii) legal counsel, accountants,
and other professional advisors to that Lender, (iii) regulatory
officials, (iv) as required by law, regulation, or legal process,
(v) in connection with any legal proceeding to which that Lender
is a party, and (v) in connection with an actual or proposed
sale, assignment, or other disposition or proposed disposition of
that Lender's interests hereunder.
SECTION IX.16. Limitation on Agent and Lender Liability.
The Borrower agrees that (i) neither any Agent nor any Lender
shall have any liability to the Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by the Borrower
in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the
Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined by a judgment of a
court that is binding on such Agent, or such Lender, final and
not subject to review on appeal, that such losses were the result
of acts or omissions on the part of such Agent or such Lender, as
the case may be, constituting gross negligence, willful
misconduct or knowing violations of law and (ii) such Borrower
waives, releases and agrees not to xxx upon any claim against any
Agent or any Lender (whether sounding in tort, contract or
otherwise) except a claim based upon gross negligence, willful
misconduct or knowing violations of law. Whether or not such
damages are related to a claim that is subject to the waiver
effected above and whether or not such waiver is effective,
neither any Agent nor any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees
not to xxx upon any claim for, any special, indirect or
consequential damages suffered by the Borrower in connection
with, arising out of, or in any way related to the transactions
contemplated or the relationship established by the Loan
Documents, or any act, omission or event occurring in connection
therewith, unless it is determined by a judgment of a court that
is binding on such Agent or such Lender, as the case may be,
final and not subject to review on appeal, that such damages were
the result of acts or omissions on the part of such Agent or such
Lender, as the case may be, constituting willful misconduct or
knowing violations of law.
SECTION IX.17. No Partners' Liability. The Lenders agree
for themselves and their respective successors and assigns,
including any subsequent holder of any Note, that any claim
against the Borrower which may arise under any Loan Document
shall be made only against and shall be limited to the assets of
the 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 Partner or its assets
for the purpose of obtaining satisfaction and payment of such
Note, the Indebtedness evidenced thereby or any claims arising
thereunder or under this Agreement or any other Loan Document,
any right to proceed against the Partners individually or their
respective assets being hereby expressly waived, renounced and
remitted by the Lenders for themselves and their respective
successor and assigns. Nothing in this Section 9.17, however,
shall be construed so as to prevent the Agents, 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 Partner for the purpose of obtaining jurisdiction over
the Borrower.
ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION X.1. Appointment and Authority of Administrative
Agent. In order to expedite the various transactions
contemplated by this Agreement, each Lender hereby designates and
appoints First Chicago to act as its agent hereunder, and
authorizes First Chicago to take such action on its behalf under
the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the
Administrative Agent, as the case may be, by the terms of this
Agreement or any other Loan Document, together with such other
powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement or any
other Loan Document, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth
herein or therein, or any fiduciary relationship with any Lender
or Borrower, and no implied covenants, functions,
responsibilities, duties, obligations, or liabilities shall be
read into this Agreement or any other Loan Document or otherwise
exist against the Administrative Agent. At any time that no
Person or Persons are acting as agent hereunder, the Borrower is
authorized to deal directly with each Lender for all purposes
hereunder including, without limitation, the remittances of
amounts then required to be paid hereunder and, in respect to any
request or the like purportedly delivered by the Majority Lenders
to the Borrower. The Administrative Agent is hereby expressly
authorized as agent on behalf of the Lenders, without hereby
limiting any implied authority:
(a) To receive on behalf of each Lender any payment of
principal or interest on the Advances paid to the
Administrative Agent, and to promptly distribute to each
Lender its pro rata share of all payments so received;
(b) To receive all documents and items to be furnished
hereunder;
(c) To act as nominee for and on behalf of all of the
Lenders in and under this Agreement and the other Loan
Documents;
(d) To arrange for the means whereby the funds of the
Lenders are to be made available to the Borrower;
SECTION X.2. Capacity of the Agents. With respect to
their commitment to lend hereunder and the Loans made by them,
the Agents in their respective capacities as a Lender and not as
the Agents as the case may be, shall have the same rights and
powers hereunder as the other Lenders and may exercise the same
rights and power as though they were not Agents.
SECTION X.3. No Liability of the Administrative Agent and
Indemnity. Neither the Administrative Agent nor any other Agent
nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (i) liable for
any action taken or omitted to be taken by it or them hereunder
or otherwise in connection with the Loan Documents (except for
its or such Person's own willful misconduct or gross negligence
in not performing a specific administrative duty hereunder), or
(ii) responsible in any manner to any Lender or any other Agent
for any recitals, statements, representations, or warranties made
by Borrower or any officer thereof contained in any Loan Document
or in any certificate, report, statement, or other document
referred to or provided for in, or received by the Administrative
Agent under or in connection with, any Loan Document or for the
value, validity, effectiveness, genuineness, enforceability, or
sufficiency of any Loan Document or for any failure of Borrower
to perform its obligations under any Loan Document. The
Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or
performance of any of the agreements or conditions contained in
any Loan Document, or to inspect the properties, books, or
records of Borrower. To the extent that such Agent is not
reimbursed or indemnified by the Borrower, each of the Lenders
will indemnify the Agents to the fullest extent permitted by
applicable Law pro rata based upon their respective Commitments
from and against any and all demands, liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind whatsoever which may at
any time be imposed on, incurred by, or asserted against any
Agent in any way relating to or arising out of this or any other
Loan Document, or any documents contemplated by or referred to
herein, or therein, or the transactions contemplated hereby, or
thereby, or any action taken or omitted by any Agent under or in
connection with any of the foregoing, including resulting from
such Agent's own negligence (and including, without limitation,
any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements
resulting from any violations or alleged violation of applicable
federal or state securities laws, committed by any Person other
than such Agent) but not gross negligence or willful misconduct.
The agreements in this Section 10.3. shall survive the
termination of this Agreement.
SECTION X.4. Employees of Administrative Agent. The
Administrative Agent may execute any and all duties hereunder by
or through agents or employees and shall be entitled to advice of
counsel pertaining to all matters hereunder. The Borrower has
agreed to reimburse the Administrative Agent for actual out-of-
pocket expenses incurred by the Administrative Agent and its
agents in acting under this Agreement and each other Loan
Document and to pay any reasonable legal and out-of-pocket
expenses incurred by the Administrative Agent in connection with
the development, preparation, negotiation, and execution of the
Loan Documents. Each Lender agrees to reimburse the
Administrative Agent when applicable, in the amount of its pro
rata share based upon its Commitment of any out-of-pocket
expenses incurred for the benefit of the Lenders and not
reimbursed by the Borrower.
SECTION X.5. Reliance. The Administrative Agent shall be
entitled to rely on any conversation, notice, consent,
certificate, schedule, affidavit, letter, telegram, teletype
message, statement, order, or other document believed to be
genuine and correct and to have been signed or sent by the proper
Person or Persons and, in respect of legal matters, upon an
opinion of counsel selected by the Administrative Agent.
SECTION X.6. Several Commitments. Except as expressly
provided in this Section 10.6, the obligations of the Lenders
under this Agreement are several. The default by any Lender in
making a Loan in accordance with its commitment hereunder shall
not relieve the other Lenders of their obligations hereunder. In
the event of any default by any Lender in advancing its pro rata
share of any Advance, a non-defaulting Lender shall be obligated
to advance its pro-rata share of such Advance but shall not be
obligated to advance the amount which the defaulting Lender was
required to advance hereunder. Nothing in this Section 10.6
shall be construed as releasing, modifying, or waiving the
obligation of each Lender to forward or deposit its pro rata
share of any Advance pursuant to the terms of this Section 10.6
and this Agreement.
SECTION X.7. Notice of Default. No Agent shall be deemed
to have knowledge or notice of the occurrence of any Default or
Event of Default unless such Agent has received notice from a
Lender or Borrower referring to this Agreement or other relevant
Loan Document, describing such Default or Event of Default and
stating that such notice is a "notice of default."
Notwithstanding the provisions of the immediately preceding
sentence, in the event that any Agent or any Lender knows of any
Default or Event of Default such Person shall, as soon as
practicable, give notice of same to each other Lender. In the
event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed
by the Majority Lenders; provided that, unless and until the
Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action (unless
directions from the Majority Lenders are required therefore under
Article VIII), with respect to such Default or Event of Default
as it shall deem advisable in the best interests of the Lenders.
SECTION X.8. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
any Agent or any other Lender and based on the financial
statements prepared by the Borrower and such other documents and
information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other
Loan Documents. Each Lender also acknowledges that it will,
independently and without reliance upon any Agent or any other
Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement and
the other Loan Documents.
SECTION X.9. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation
to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has
been appointed, forty-five days after the retiring Administrative
Agent gives notice of its intention to resign. Upon any such
resignation, the Majority Lenders shall have the right to appoint
with the consent of the Borrower which such consent shall not be
unreasonably withheld or delayed, on behalf of the Lenders, a
successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by the Majority Lenders within
thirty days after the resigning Administrative Agent's giving
notice of its intention to resign, then the resigning
Administrative Agent may appoint with the consent of the Borrower
which such consent shall not be unreasonably withheld or delayed,
on behalf of the Borrower and the Lenders, a successor
Administrative Agent. If the Administrative Agent has resigned
and no successor Administrative Agent has been appointed, the
Lenders may perform all the duties of the Administrative Agent
hereunder and the Borrower shall make all payments in respect of
the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor
Administrative Agent shall be deemed to be appointed hereunder
until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least
$500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the resigning Administrative Agent.
Upon the effectiveness of the resignation of the Administrative
Agent, the resigning Administrative Agent shall be discharged
from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation of an
Administrative Agent, the provisions of this Article X shall
continue in effect for the benefit of such Administrative Agent
in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent hereunder and
under the other Loan Documents.
SECTION X.10. Syndication Agents; Joint Arrangers. None of
the Syndication Agents shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than
those applicable to Lenders as Lenders. The Joint Arrangers
shall not have any obligations, liabilities, responsibilities or
duties under this Agreement or the other Loan Documents. Without
limiting the foregoing, none of the Syndication Agents, nor the
Joint Arrangers, shall have or be deemed to have any fiduciary
relationship with any Lender or any other Agent or Joint
Arranger.
ARTCILE XI
SETOFF; RATABLE PAYMENTS
SECTION XI.1. Setoff. In addition to, and without
limitation of, any rights of the Lenders under applicable law, if
the Borrower becomes insolvent, however evidenced, or (i) any
Event of Default described in Section 7.5 or 7.6 occurs or
(ii) any other Event of Default occurs and the Majority Lenders
agree to terminate the obligations of the Lenders to make Loans
hereunder or declare the Obligations to be due and payable, or
both, then any indebtedness from any Lender to the Borrower
(including all account balances, whether provisional or final and
whether or not collected or available) may be offset and applied
toward the payment of the Obligations owing to such Lender,
without presentment, demand, protest or notice of any kind, all
of which the Borrower hereby expressly waives whether or not the
Obligations, or any part thereof, shall then be due.
SECTION XI.2. Ratable Payments. If any Lender, whether by
setoff or otherwise, has payment made to it upon its Loans in a
greater proportion than that received by any other Lender (other
than in respect of Competitive Bid Advances or any Swing Loan),
such Lender agrees, promptly upon demand, to purchase a portion
of the Loans held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans.
If any Lender, whether in connection with setoff or amounts which
might be subject to setoff or otherwise, receives collateral or
other protection for its Obligations or such amounts which may be
subject to set off, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Loans.
In case any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
SECTION XII.1. Successors and Assigns. The terms and
provisions of the Loan Documents shall be binding upon and inure
to the benefit of the Borrower and the Lenders and their
respective successors and assigns, except that the Borrower shall
not have the right to assign its rights under the Loan Documents
and any assignment by any Lender must be made in compliance with
Section 12.3. The Administrative Agent may treat the payee of
any Note as the owner thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof
shall have been filed with the Administrative Agent, and any
assignee or transferee of a Note agrees by acceptance thereof to
be bound by all the terms and provisions of the Loan Documents.
Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the
holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any
Note or Notes issued in exchange therefor.
SECTION XII.2. Participations.
SECTION XII.2.1 Permitted Participants; Effect. Any
Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell
to one or more Lenders or other entities ("Participants")
participating interests in any Loan owing to such Lender, any
Note held by such Lender, any Commitment of such Lender or any
other interest of such Lender under the Loan Documents, provided
that Participants shall have no voting rights except with respect
to amendments which (i) forgive principal of, or interest on, any
loan, (ii) postpone any date fixed for the payment of principal
of, or interest on, any loan, or (iii) decrease the rates at
which interest or fees are payable (in each case, other than as
expressly provided in the Loan Documents). In the event of any
such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of
such obligations, such Lender shall remain the holder of any such
Note for all purposes under the Loan Documents, and the Borrower
and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights
and obligations under the Loan Documents.
SECTION XII.2.2 Voting Rights. Each Lender shall retain
the sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of any
provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan in which such
Participant has an interest which (i) forgives principal of, or
interest on, any loan, or (ii) postpones any date fixed for the
payment of principal of, or interest on, any loan, or
(iii) decreases the rates at which interest or fees are payable
in each case, other than as expressly provided in the Loan
Documents.
SECTION XII.2.3 Benefit of Setoff and Indemnities.
The Borrower agrees that each Participant shall be deemed to have
the right of setoff provided in Section 11.1 in respect of its
participating interest in amounts owing under the Loan Documents
to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan Documents,
provided that each Lender shall retain the right of setoff
provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant, except to the
extent such Participant has exercised its right of setoff. The
Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in
Section 11.1, each agrees to share with the Lenders, any amount
received pursuant to the exercise of its right of setoff, in
accordance with Section 11.2 as if each Participant was a Lender.
The Borrower also agrees that each Participant shall be entitled
to the benefits of Sections 3.1 and 3.3 with respect to its
participation in the Facility A Aggregate Commitments and the
Facility B Aggregate Commitments outstanding from time to time;
provided, that no Participant shall be entitled to receive any
greater amount pursuant to such Sections than the transferor
Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
SECTION XII.3. Assignments.
SECTION XII.3.1 Permitted Assignments. Any Lender
may, in the ordinary course of its commercial banking business,
in accordance with applicable law at any time assign to one or
more Lenders or other entities ("Purchasers") all or any part of
its rights and obligations under the Loan Documents and the
Borrower shall release the assignor Lender for the amount so
assigned, provided that each such assignment shall be in an
amount not less than the lesser of (a) all of the assigning
Lender's interest and (b) $10,000,000. Notwithstanding the
foregoing, no such assignments or participations are permitted
unless a pro rata portion of both the Facility A Commitment and
Facility B Commitment are so assigned or participated. Each
Lender may disclose information to prospective participants and
assignees, provided such prospective participants and assignees
agree to maintain the confidentiality of such information.
Unless a Default has occurred and is continuing, the consent of
the Borrower and the Administrative Agent shall be required prior
to an assignment becoming effective with respect to a Purchaser
which is not a Lender or an affiliate thereof. Such consent
shall be substantially in the form attached as Exhibit "1" to
Exhibit "D" hereto and shall not be unreasonably withheld.
SECTION XII.3.2 Effect; Effective Date. Upon (i)
delivery to the Administrative Agent of a notice of assignment,
substantially in the form of Exhibit "D" hereto (a "Notice of
Assignment"), together with any consents required by Section
12.3.1, and (ii) payment of a $2,500 fee to the Administrative
Agent for processing such assignment, such assignment shall
become effective on the effective date specified in such Notice
of Assignment. Such assignment shall be substantially in the
form of Exhibit "I" hereto or in such other form as may be agreed
to by the parties thereto and the Administrative Agent. On and
after the effective date of such assignment, such Purchaser shall
for all purposes be a Lender party to this Agreement and any
other Loan Document executed by the Lenders and shall have all
the rights and obligations of a Lender under the Loan Documents,
to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the
Administrative Agent shall be required to release the transferor
Lender with respect to the percentage of the Aggregate Commitment
and Loans assigned to such Purchaser. Upon the consummation of
any assignment to a Purchaser pursuant to this Section 12.3.2,
the transferor Lender, the Administrative Agent and the Borrower
shall make appropriate arrangements so that replacement Notes are
issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in
each case in principal amounts reflecting their Commitment, as
adjusted pursuant to such assignment.
SECTION XII.4. Dissemination of Information. The Borrower
authorizes each Lender to disclose to any Participant or
Purchaser (each a "Transferee") and any prospective Transferee
which agrees to be bound by the confidentiality provisions of
Section 9.15 as if it were a Lender any and all financial
information in such Lender's possession concerning the Borrower
which has been delivered to such Lender by the Borrower pursuant
to this Agreement or which has been delivered to such Lender by
the Borrower in connection with such Lender's credit evaluation
of the Borrower prior to entering into this Agreement.
SECTION XII.5. Tax Treatment. If, pursuant to this Article
XII, any interest in any Loan Document is transferred to any
Transferee which is organized under the laws of any jurisdiction
other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the
transferor Lender (for the benefit of the transferor Lender, the
Administrative Agent and the Borrower) that under applicable law
and treaties no taxes will be required to be withheld by the
Administrative Agent, the Borrower or the transferor Lender with
respect to any payments to be made to such Transferee in respect
of the Loans, (ii) to furnish to the transferor Lender, the
Administrative Agent and the Borrower either U.S. Internal
Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 (wherein such Transferee claims entitlement to complete
exemption from U.S. federal withholding tax on all interest
payments hereunder) and (iii) to agree (for the benefit of the
transferor Lender, the Administrative Agent and the Borrower) to
provide the transferor Lender, the Administrative Agent and the
Borrower a new Form 4224 or Form 1001 upon the obsolescence of
any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such Transferee, and to
comply from time to time with all applicable U.S. laws and
regulations with regard to such withholding tax exemption.
ARTICLE XIII
NOTICES
SECTION XIII.1. Giving Notice. All notices and other
communications provided to any party hereto under this Agreement
or any other Loan Document shall be in writing or by facsimile
and addressed or delivered to such party at its address set forth
below its signature hereto or at such other address as may be
designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or
if transmitted by facsimile, shall be deemed given when received.
SECTION XIII.2. Change of Address. The Borrower, the
Administrative Agent and any Lender may each change the address
for service of notice upon it by a notice in writing to the other
parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this
Agreement by signing any such counterpart. This Agreement shall
be effective when it has been executed by the Borrower, the
Administrative Agent and the Lenders and each party has notified
the Administrative Agent by facsimile or telephone, that it has
taken such action.
IN WITNESS WHEREOF, the Borrower, the Lenders and the
Administrative Agent have executed this Agreement as of the date
first above written.
NORTHERN BORDER PIPELINE COMPANY
By: Northern Plains Natural Gas
Company, Operator
By:
Title:
Commitments
Facility A Facility B
$16,000,000.00 $44,000,000.00 THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Syndication
Agent
and Administrative Agent
By:
Title:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention:
Commitments
Facility A Facility B
$16,000,000.00 $44,000,000.00 ROYAL BANK OF CANADA,
Individually and as Syndication
Agent and Joint Arranger
By:
Title:
Address: Financial Square, 23rd Floor
Old Slip and Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Syndication Agent
By:
Title:
Address: 0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Energy Group
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Commitments
Facility A Facility B
$16,000,000.00 $44,000,000.00 BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION,
Individually
By:
Title:
Address: 0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Energy Group
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
BANCAMERICA SECURITIES, INC.,
Joint Arranger
By:
Title:
Address: Loan Syndications and Trading
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention:
FIRST CHICAGO CAPITAL MARKETS, INC.,
Joint Arranger
By:
Title:
Address: Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention:
Facility A Facility B
$10,666,666.67 $29,333,333.33 DEN NORSKE BANK
By:
Xxxxxx Xxxxxxxx
Title:
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Facility A Facility B
$10,666,666.67 $29,333,333.33 BANK AUSTRIA AKTIENGESELLSCHAFT
By:
Title:
By:
Title:
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx III
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$6,333,333.33 $17,416,666.67 BANK BRUSSELS XXXXXXX, NEW YORK BRANCH
By:
Xxxxxx XxXxxxx
Title: Vice President and Manager
By:
Dominique Vangaever
Title: Senior Vice President
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx XxXxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$8,000,000.00 $22,000,000.00 CAISSE NATIONAL DE CREDIT AGRICOLE
By:
Title:
Address: 00 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 6060
with a copy to:
Attention: Xxxxx Xxxxxxxx
Credit Agricole
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$10,666,666.67 $29,333,333.33 THE DAI-ICHI KANGYO BANK, LIMITED
By:
Xxxxxx Xxxxxxxxx
Title:
Address: 0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$6,333,333.33 $17,416,666.67 THE SUMITOMO BANK, LIMITED
By:
Title:
Address: 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. XxXxxx
Energy Group
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
The Sumitomo Bank, Limited
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx Xxx, V.P.
PANA - Legal Dept.
Facility A Facility B
$6,333,333.33 $17,416,666.67 CIBC INC.
By:
Title:
Address: CIBC Inc.
Attention:
Telephone:
Telecopy:
with a copy to:
Address: CIBC Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$8,000,000.00 $22,000,000.00 THE SANWA BANK, LIMITED
By:
Xxxxxx X. Xxxxxx
Title: Vice President
Address: 00 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$6,333,333.33 $17,416,666.67 SUNTRUST BANK, ATLANTA
By:
Xxxx X. Xxxxx
Title:
By:
Title:
Address: 00 Xxxx Xxxxx, 00xx Xxxxx, XX 000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$6,333,333.33 $17,416,666.67 THE TOYO TRUST & BANKING CO., LTD.
By:
T. Mikumo
Title:
Address: 000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$10,666,666.67 $29,333,333.33 UNION BANK OF SWITZERLAND, HOUSTON AGENCY
By:
Title:
By:
Title:
Address: 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$6,333,333.33 $17,416,666.67 COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND" NEW YORK BRANCH
By:
Title:
By:
Title:
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Services Dept.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$10,666,666.67 $29,333,333.33 BANK OF MONTREAL
By:
Title:
Address: 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$6,333,333.33 $17,416,666.67 THE BANK OF NOVA SCOTIA
By:
Title:
Address: 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention:
Telephone:
Telecopy:
Facility A Facility B
$10,666,666.67 $29,333,333.33 THE BANK OF TOKYO-
MITSUBISHI, LTD., HOUSTON AGENCY
By:
Title:
Address: 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$6,333,333.33 $17,416,666.67 DEN DANSKE BANK
AKTIESELSKAB, CAYMAN ISLANDS BRANCH
By:
Title:
By:
Title:
Address: x/x Xxx Xxxxxx Xxxx,
Xxx Xxxx Xxxxxx
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxx Xxxx.
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$10,666,666.67 $29,333,333.33 THE BANK OF NEW YORK
By:
Title:
Address: Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Facility A Facility B
$10,666,666.67 $29,333,333.33 TORONTO DOMINION (TEXAS), INC.
By:
Title:
Address: 000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
EXHIBIT "A-1"
FACILITY NOTE
$______________________ ___________________, 1997
FOR VALUE RECEIVED, the undersigned, NORTHERN BORDER
PIPELINE COMPANY, a Texas general partnership (the "Borrower"),
promises to pay to the order of _____________________________________
(the "Lender"), for the account of its Lending Installation, on or
before the later of the Facility A Termination Date and the Facility
B Termination Date the lesser of (i) the principal amount of
______________________________($_________________) or (ii) the
aggregate unpaid principal amount of all Facility A Loans and all
Facility B Loans made by the Lender to the Borrower pursuant to
the Credit Agreement (hereinafter defined), in immediately
available funds at the times and in the amounts as set forth in
the Credit Agreement. The Borrower promises to pay interest on
the unpaid principal balance of the Loans, from time to time
outstanding, at the rates and on the dates set forth in the
Credit Agreement. The aggregate unpaid principal amount of all
Loans shall be due and payable on the later of the Facility A
Termination Date and the Facility B Termination Date.
This note is the Facility Note issued pursuant to, and is
entitled to the benefits of, that certain Credit Agreement, dated
as of______________, 1997 (as the same may be amended, modified
or restated from time to time, the "Credit Agreement"), among
Northern Border Pipeline Company, a Texas general partnership, as
Borrower (the "Borrower"), the Lenders (as defined in the Credit
Agreement), The First National Bank of Chicago, as Administrative
Agent (in such capacity, the "Administrative Agent"), The First
National Bank of Chicago, Royal Bank of Canada and Bank of
America, as Syndication Agents (in such capacity "Syndication
Agents") and collectively, with the Administrative Agent, (the
"Agents") and First Chicago Capital Markets, Inc., Royal Bank of
Canada and BancAmerica Securities, Inc., as Joint Arrangers (in
such capacity, collectively the "Joint Arrangers"). All
capitalized terms used but not defined herein shall have the
meaning assigned to them in the Credit Agreement. Reference is
made to the Credit Agreement for, inter alia, provisions for the
prepayment hereof, the acceleration of the maturity hereof and to
the effect that no provision of the Credit Agreement or this
Facility Note shall require the payment or permit the charging or
collection of interest in an amount in excess of the highest non-
usurious or non-criminal amount permitted by applicable law.
All Loans made by the Lender pursuant to the Credit
Agreement and all payments of the principal thereof shall be
endorsed by the holder of this Facility Note on the schedule
annexed hereto (including any additional pages such holder may
add to such schedule), which endorsement shall constitute prima
facie evidence of the accuracy of the information so endorsed;
provided, however, that the failure of the holder of this
Facility Note to insert any date or amount or other information
on such schedule shall not in any manner affect the obligation of
the Borrower or any other Borrowers to repay any Loans in
accordance with the terms of the Credit Agreement.
The Borrower and any and all sureties, guarantors and
endorsers of this Facility Note and all other parties now or
hereafter liable hereon, severally waive, except as otherwise
provided in the Credit Agreement or in any other of the Loan
Documents, grace, demand, presentment for payment, protest,
notice of any kind (including, but not limited to, notice of
dishonor, notice of protest, notice of intention to accelerate
and notice of acceleration) and diligence in collecting and
bringing suit against any party hereto, and agree (i) to all
extensions and partial payments, with or without notice, before
or after maturity, (ii) to any substitution, exchange or release
of any security now or hereafter given for this Facility Note,
(iii) to the release of any party primarily or secondarily liable
hereon and (iv) that it will not be necessary for the Lender, in
order to enforce payment of this Facility Note, to first
institute or exhaust the Lender's remedies against the Borrower
or any other party liable therefor or against any security for
this Facility Note.
This Facility Note may not be changed, modified, or
terminated orally, but only by an agreement in writing signed by
the party to be charged. If any term or provision of this
Facility Note shall be held invalid, illegal or unenforceable,
the validity of all other terms and provisions herein shall in no
way be affected thereby.
IN THE EVENT OF ANY LITIGATION WITH RESPECT TO THIS FACILITY
NOTE, THE BORROWER WAIVES THE DEFENSES OF FORUM NON CONVENIENS
AND IMPROPER VENUE. THIS FACILITY NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
AND SHALL BE BINDING UPON THE SUCCESSORS AND ASSIGNS OF BORROWERS
AND INURE TO THE BENEFIT OF THE LENDER AND ITS SUCCESSORS AND
ASSIGNS (INCLUDING PARTICIPANTS IN ACCORDANCE WITH THE TERMS OF
THE CREDIT AGREEMENT).
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Facility Note on the date first above written.
NORTHERN BORDER PIPELINE COMPANY
By: Northern Plains Natural Gas
Company, Operator
By:
Name:
Title:
GRID SCHEDULE
Attached to and made part of the Facility Note, dated
______________, 1997, issued pursuant to that certain Credit
Agreement, dated as of June 16, 1997, among Northern Border
Pipeline Company, a Texas general partnership, as Borrower (the
"Borrower"), the Lenders (hereinafter defined), The First
National Bank of Chicago, as Administrative Agent (in such
capacity, the "Administrative Agent"), The First National Bank of
Chicago, Royal Bank of Canada and Bank of America, as Syndication
Agents (in such capacity "Syndication Agents") and collectively,
with the Administrative Agent, (the "Agents") and First Chicago
Capital Markets, Inc., Royal Bank of Canada and BancAmerica
Securities, Inc., as Joint Arrangers (in such capacity,
collectively the "Joint Arrangers").
FACILITY A
Amount of Name of
Principal Unpaid Principal Person
Principal Amount Paid or Balance Making
Date of Loan of Loan Prepaid (Balance continued) Notation
FACILITY B
Amount of Name of
Principal Unpaid Principal Person
Principal Amount Paid or Balance Making
Date of Loan of Loan Prepaid (Balance continued) Notation
EXHIBIT "A-2"
COMPETITIVE BID NOTE
$_________________ ___________________, 1997
FOR VALUE RECEIVED, the undersigned, NORTHERN BORDER
PIPELINE COMPANY, a Texas general partnership (the "Borrower"),
promises to pay to the order of _________________________ (the
"Lender"), the aggregate unpaid principal amount of all
Competitive Bid Loans made by the Lender to the Borrower pursuant
to Section 2.3 of the Credit Agreement hereinafter referred to
(as the same may be amended or modified, the "Agreement"), in
lawful money of the United States in immediately available funds
at the main office of The First National Bank of Chicago, as
Agent, in Chicago, Illinois or as otherwise directed by the
Administrative Agent pursuant to the terms of the Agreement,
together with interest, in like money and funds, on the unpaid
principal amount hereof at the rates and on the dates determined
in accordance with the Agreement. The Borrower shall pay each
Competitive Bid Loan in full on the earlier of (A) the last day
of such Competitive Bid Loan's applicable Interest Period, (B)
the Termination Date of the applicable Facility.
This note is the Competitive Bid Note issued pursuant to,
and is entitled to the benefits of, that certain Credit
Agreement, dated as of______________, 1997 (as the same may be
amended, modified or restated from time to time, the "Credit
Agreement"), among Northern Border Pipeline Company, a Texas
general partnership, as Borrower (the "Borrower"), the Lenders
(as defined in the Credit Agreement), The First National Bank of
Chicago, as Administrative Agent (in such capacity, the
"Administrative Agent"), The First National Bank of Chicago,
Royal Bank of Canada and Bank of America, as Syndication Agents
(in such capacity "Syndication Agents") and collectively, with
the Administrative Agent, (the "Agents") and First Chicago
Capital Markets, Inc., Royal Bank of Canada and BancAmerica
Securities, Inc., as Joint Arrangers (in such capacity,
collectively the "Joint Arrangers"). All capitalized terms used
but not defined herein shall have the meaning assigned to them in
the Credit Agreement. Reference is made to the Credit Agreement
for, inter alia, provisions for the prepayment hereof, the
acceleration of the maturity hereof and to the effect that no
provision of the Credit Agreement or this Note shall require the
payment or permit the charging or collection of interest in an
amount in excess of the highest non-usurious or non-criminal
amount permitted by applicable law.
All Competitive Bid Loans made by the Lender pursuant to the
Credit Agreement and all payments of the principal thereof shall
be endorsed by the holder of this Competitive Bid Note on the
schedule annexed hereto (including any additional pages such
holder may add to such schedule), which endorsement shall
constitute prima facie evidence of the accuracy of the
information so endorsed; provided, however, that the failure of
the holder of this Competitive Bid Note to insert any date or
amount or other information on such schedule shall not in any
manner affect the obligation of the Borrower or any other
Borrowers to repay any Competitive Bid Loans in accordance with
the terms of the Credit Agreement.
The Borrower and any and all sureties, guarantors and
endorsers of this Competitive Bid Note and all other parties now
or hereafter liable hereon, severally waive, except as otherwise
provided in the Credit Agreement or in any other of the Loan
Documents, grace, demand, presentment for payment, protest,
notice of any kind (including, but not limited to, notice of
dishonor, notice of protest, notice of intention to accelerate
and notice of acceleration) and diligence in collecting and
bringing suit against any party hereto, and agree (i) to all
extensions and partial payments, with or without notice, before
or after maturity, (ii) to any substitution, exchange or release
of any security now or hereafter given for this Competitive Bid
Note, (iii) to the release of any party primarily or secondarily
liable hereon and (iv) that it will not be necessary for the
Lender, in order to enforce payment of this Competitive Bid Note,
to first institute or exhaust the Lender's remedies against the
Borrower or any other party liable therefor or against any
security for this Competitive Bid Note.
This Competitive Bid Note may not be changed, modified, or
terminated orally, but only by an agreement in writing signed by
the party to be charged. If any term or provision of this
Competitive Bid Note shall be held invalid, illegal or
unenforceable, the validity of all other terms and provisions
herein shall in no way be affected thereby.
IN THE EVENT OF ANY LITIGATION WITH RESPECT TO THIS
COMPETITIVE BID NOTE, THE BORROWER WAIVES THE DEFENSES OF FORUM
NON CONVENIENS AND IMPROPER VENUE. THIS COMPETITIVE BID NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK AND SHALL BE BINDING UPON THE SUCCESSORS
AND ASSIGNS OF BORROWERS AND INURE TO THE BENEFIT OF THE LENDER
AND ITS SUCCESSORS AND ASSIGNS (INCLUDING PARTICIPANTS IN
ACCORDANCE WITH THE TERMS OF THE CREDIT AGREEMENT).
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Competitive Bid Note on the date first above written.
NORTHERN BORDER PIPELINE COMPANY
By: Northern Plains Natural Gas
Company, Operator
By:
Name:
Title:
GRID SCHEDULE
Attached to and made part of the Competitive Bid Note, dated
______________, 1997, issued pursuant to that certain Credit
Agreement, dated as of June 16, 1997, among Northern Border
Pipeline Company, a Texas general partnership, as Borrower (the
"Borrower"), the Lenders (hereinafter defined), The First
National Bank of Chicago, as Administrative Agent (in such
capacity, the "Administrative Agent"), The First National Bank of
Chicago, Royal Bank of Canada and Bank of America, as Syndication
Agents (in such capacity "Syndication Agents") and collectively,
with the Administrative Agent, (the "Agents") and First Chicago
Capital Markets, Inc., Royal Bank of Canada and BancAmerica
Securities, Inc., as Joint Arrangers (in such capacity,
collectively the "Joint Arrangers").
Amount of Name of
Principal Unpaid Principal Person
Principal Amount Paid or Balance Making
Date of Loan of Loan Prepaid (Balance continued) Notation
EXHIBIT "A-3"
SWING LOAN NOTE
$15,000,000.00 ___________________, 1997
FOR VALUE RECEIVED, the undersigned, NORTHERN BORDER
PIPELINE COMPANY, a Texas general partnership (the "Borrower"),
promises to pay to the order of THE FIRST NATIONAL BANK OF
CHICAGO (the "Bank"), for the account of its Lending
Installation, on or before the Facility A Termination Date the
lesser of (i) the principal amount of FIFTEEN MILLION DOLLARS
($15,000,000.00) or (ii) the aggregate unpaid principal amount of
all Swing Loans made by the Bank to the Borrower pursuant to
Section 2.1.3 of the Credit Agreement (hereinafter defined),
whichever is less, in immediately available funds at THE FIRST
NATIONAL BANK OF CHICAGO, at the times and in the amounts as set
forth in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal balance of the Swing Loans, from
time to time outstanding, at the rates and on the dates set forth
in the Credit Agreement. The aggregate unpaid principal amount
of all Swing Loans shall be due and payable on the Facility A
Termination Date.
This note is the Swing Loan Note issued pursuant to, and is
entitled to the benefits of, that certain Credit Agreement, dated
as of______________, 1997 (as the same may be amended, modified
or restated from time to time, the "Credit Agreement"), among
Northern Border Pipeline Company, a Texas general partnership, as
Borrower (the "Borrower"), the Lenders (as defined in the Credit
Agreement), The First National Bank of Chicago, as Administrative
Agent (in such capacity, the "Administrative Agent"), The First
National Bank of Chicago, Royal Bank of Canada and Bank of
America, as Syndication Agents (in such capacity "Syndication
Agents") and collectively, with the Administrative Agent, (the
"Agents") and First Chicago Capital Markets, Inc., Royal Bank of
Canada and BancAmerica Securities, Inc., as Joint Arrangers (in
such capacity, collectively the "Joint Arrangers"). All
capitalized terms used but not defined herein shall have the
meaning assigned to them in the Credit Agreement. Reference is
made to the Credit Agreement for, inter alia, provisions for the
prepayment hereof, the acceleration of the maturity hereof and to
the effect that no provision of the Credit Agreement or this Note
shall require the payment or permit the charging or collection of
interest in an amount in excess of the highest non-usurious or
non-criminal amount permitted by applicable law.
All Swing Loans made by the Administrative Agent pursuant to
the Credit Agreement and all payments of the principal thereof
shall be endorsed by the holder of this Swing Loan Note on the
schedule annexed hereto (including any additional pages such
holder may add to such schedule), which endorsement shall
constitute prima facie evidence of the accuracy of the
information so endorsed; provided, however, that the failure of
the holder of this Swing Loan Note to insert any date or amount
or other information on such schedule shall not in any manner
affect the obligation of the Borrower or any other Borrowers to
repay any Swing Loans in accordance with the terms of the Credit
Agreement.
The Borrower and any and all sureties, guarantors and
endorsers of this Swing Loan Note and all other parties now or
hereafter liable hereon, severally waive, except as otherwise
provided in the Credit Agreement or in any other of the Loan
Documents, grace, demand, presentment for payment, protest,
notice of any kind (including, but not limited to, notice of
dishonor, notice of protest, notice of intention to accelerate
and notice of acceleration) and diligence in collecting and
bringing suit against any party hereto, and agree (i) to all
extensions and partial payments, with or without notice, before
or after maturity, (ii) to any substitution, exchange or release
of any security now or hereafter given for this Swing Loan Note,
(iii) to the release of any party primarily or secondarily liable
hereon and (iv) that it will not be necessary for the Bank, in
order to enforce payment of this Swing Loan Note, to first
institute or exhaust the Bank's remedies against the Borrower or
any other party liable therefor or against any security for this
Swing Loan Note.
This Swing Loan Note may not be changed, modified, or
terminated orally, but only by an agreement in writing signed by
the party to be charged. If any term or provision of this Swing
Loan Note shall be held invalid, illegal or unenforceable, the
validity of all other terms and provisions herein shall in no way
be affected thereby.
IN THE EVENT OF ANY LITIGATION WITH RESPECT TO THIS SWING
LOAN NOTE, THE BORROWER WAIVES THE DEFENSES OF FORUM NON
CONVENIENS AND IMPROPER VENUE. THIS NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND SHALL BE BINDING UPON THE SUCCESSORS AND ASSIGNS OF
BORROWERS AND INURE TO THE BENEFIT OF THE BANK AND ITS SUCCESSORS
AND ASSIGNS (INCLUDING PARTICIPANTS IN ACCORDANCE WITH THE TERMS
OF THE CREDIT AGREEMENT).
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Swing Loan Note on the date first above written.
NORTHERN BORDER PIPELINE COMPANY
By: Northern Plains Natural Gas
Company, Operator
By
Name:
Title:
GRID SCHEDULE
Attached to and made part of the Swing Loan Note, dated
______________, 1997, issued pursuant to that certain Credit
Agreement, dated as of _____________, 1997, among Northern Border
Pipeline Company, a Texas general partnership, as Borrower (the
"Borrower"), the Lenders (hereinafter defined), The First
National Bank of Chicago, as Administrative Agent (in such
capacity, the "Administrative Agent"), The First National Bank of
Chicago, Royal Bank of Canada and Bank of America, as Syndication
Agents (in such capacity "Syndication Agents") and collectively,
with the Administrative Agent, (the "Agents") and First Chicago
Capital Markets, Inc., Royal Bank of Canada and BancAmerica
Securities, Inc., as Joint Arrangers (in such capacity,
collectively the "Joint Arrangers").
Amount of Name of
Principal Unpaid Principal Person
Principal Amount Paid or Balance Making
Date of Loan of Loan Prepaid (Balance continued) Notation
EXHIBIT "B-1"
Opinion of Xxxxx Place
EXHIBIT "B-2"
Form of Opinion of Xxxxxxx and Xxxxxx
EXHIBIT "C"
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that
certain Credit Agreement dated as of June , 1997, among the
Borrower, the Lenders party thereto, The First National Bank of
Chicago as Administrative Agent for the Lenders, The First
National Bank of Chicago, Royal Bank of Canada and Bank of
America , as Syndication Agents and First Chicago Capital
Markets, Inc., Royal Bank of Canada and BancAmerica Securities,
Inc., as Joint Arrangers (in such capacity, collectively the
"Joint Arrangers" (the "Agreement"). Unless otherwise defined
herein, the terms used in this Compliance Certificate have the
meanings ascribed thereto in the Agreement.
UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ________________ of the
Operator;
2. I have reviewed the terms of the Agreement and I have
made, or have caused to be made under my supervision, a detailed
review of the transactions and conditions of the Borrower and its
Subsidiaries during the accounting period covered by the attached
financial statements;
3. The examinations described in paragraph 2 did not
disclose, and I have no knowledge of, the existence of any
condition or event which constitutes a Default or Event of
Default during or at the end of the accounting period covered by
the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain
covenants of the Agreement, all of which data and computations
are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3
by listing, in detail, the nature of the condition or event, the
period during which it has existed and the action which the
Borrower has taken, is taking, or proposes to take with respect
to each such condition or event:
The foregoing certifications, together with the computations
set forth in Schedule I hereto and the financial statements
delivered with this Certificate in support hereof, are made and
delivered this day of , 19 .
NORTHERN BORDER PIPELINE COMPANY
By: Northern Plains Natural Gas
Company, Operator
By:
Name:
Title:
[SAMPLE]
SCHEDULE I TO COMPLIANCE REPORT
EXHIBIT "D"
NOTICE OF ASSIGNMENT
To: NORTHERN BORDER PIPELINE COMPANY
0000 Xxxxx 000xx Xxxxxx
Xxxxx, XX 00000-0000
THE FIRST NATIONAL BANK OF CHICAGO
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
From: [NAME OF ASSIGNOR]
[NAME OF ASSIGNEE]
______________, 19
1. We refer to that Credit Agreement, dated as of June ,
1997 (which, as it may be amended, modified, renewed or
extended from time to time, is herein called the "Credit
Agreement") among Northern Border Pipeline Company (the
"Borrower"), certain Lenders party thereto (each a "Lender"),
including (the "Assignor") and The First
National Bank of Chicago, as Administrative Agent for the Lenders
(as such, the "Administrative Agent"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and
delivered to Northern Border Pipeline Company and the
Administrative Agent pursuant to Section 12.3.2 of the Credit
Agreement.
3. The Assignor and (the "Assignee")
have entered into an Assignment Agreement, dated as of ,
19 , pursuant to which, among other things, the Assignor has
sold, assigned, delegated and transferred to the Assignee, and
the Assignee has purchased, accepted and assumed from the
Assignor, an undivided interest in and to all of the Assignor's
rights and obligations under the Credit Agreement such that
Assignee's percentage of the Aggregate Commitment shall equal
%, effective as of the Effective Date. The Effective Date shall
be the later of , 19 or two Business Days (or such
shorter period agreed to by the Administrative Agent) after this
Notice of Assignment and any consents and fees required by
Sections 12.3.1 and 12.3.2 of the Credit Agreement have been
delivered to the Administrative Agent, provided that the
Effective Date shall not occur if any condition precedent agreed
to by the Assignor and the Assignee has not been satisfied.
4. As of this date, the percentage of the Assignor in the
Aggregate Commitment and Loans is %. As of the Effective
Date, the percentage of the Assignor in the Aggregate Commitment
and Loans will be % (as such percentage may be reduced or
increased by assignments which become effective prior to the
assignment to the Assignee becoming effective) and the percentage
of the Assignee in the Aggregate Commitment and Loans will be
%.
5. The Assignor and the Assignee hereby give to the
Borrower and the Administrative Agent notice of the assignment
and delegation referred to herein. The Assignor will confer with
the Administrative Agent before , 19
to determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the
Administrative Agent to determine the Effective Date pursuant to
Section 3 hereof if it occurs thereafter. The Assignor shall
notify the Administrative Agent if the Assignment Agreement does
not become effective on any proposed Effective Date as a result
of the failure to satisfy the conditions precedent agreed to by
the Assignor and the Assignee. At the request of the
Administrative Agent, the Assignor will give the Administrative
Agent written confirmation of the occurrence of the Effective
Date.
6. The Assignee hereby accepts and assumes the assignment
and delegation referred to herein and agrees as of the Effective
Date (i) to perform fully all of the obligations under the Credit
Agreement which it has hereby assumed and (ii) to be bound by the
terms and conditions of the Credit Agreement as if it were a
"Lender".
7. The Assignor and the Assignee request and agree that
any payments to be made by the Administrative Agent to the
Assignor on and after the Effective Date shall, to the extent of
the assignment referred to herein, be made entirely to the
Assignee, it being understood that the Assignor and the Assignee
shall make between themselves any desired allocations.
8. The Assignor or the Assignee shall pay to the
Administrative Agent on or before the Effective Date the
processing fee of $2,500 required by Section 12.3.2 of the Credit
Agreement.
9. The Assignor and the Assignee request and direct that
the Administrative Agent prepare and cause the Borrower to
execute and deliver (i) to the Assignor, a replacement Facility
Note[s] and a Competitive Bid Note[s] payable to the Assignor and
(ii) to the Assignee, [a] [new] [replacement] Facility Note[s]
and a Competitive Bid Note[s] payable to the Assignee in
accordance with Section 12.3.2 of the Credit Agreement. The
Assignor and the Assignee each agrees to deliver to the
Administrative Agent the original Note received by it from the
Borrower upon its receipt of [a] new Facility Note[s] and a
Competitive Bid Note[s] in accordance with Section 12.3.2 of the
Credit Agreement.
10. The Assignee advises the Administrative Agent that the
address listed below is its address for notices under the Credit
Agreement:
ASSIGNOR ASSIGNEE
By: By:
Title: Title:
EXHIBIT "1"
TO
EXHIBIT "D"
CONSENT AND RELEASE
TO: [NAME OF ASSIGNOR]
[NAME OF ASSIGNEE]
, 19
1. The undersigned acknowledge receipt from (the
"Assignor") and (the "Assignee") of the
Notice of Assignment, dated as of , 19 (the
"Notice"). Capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed to them in the
Notice.
2. In consideration of the assumption by the Assignee of
the obligations of the Assignor as referred to in the Notice, the
Administrative Agent hereby (i) irrevocably consents, as required
by Section 12.3.1 of the Credit Agreement, to the assignment and
delegation referred to in the Notice, (ii) as of the Effective
Date, irrevocably releases the Assignor from its obligations to
the Administrative Agent under the Loan Documents to the extent
that such obligations have been assumed by the Assignee, and
(iii) agrees that, as of the Effective Date, the Administrative
Agent shall consider the Assignee as a "Lender" for all purposes
under the Loan Documents to the extent of the assignment and
delegation referred to in the Notice.
NORTHERN BORDER PIPELINE THE FIRST NATIONAL BANK
COMPANY OF CHICAGO
By: Northern Plains Natural
Gas Company, Operator
By: By:
Title: Title:
EXHIBIT "E"
COMPETITIVE BID QUOTE REQUEST
(Section 2.3.2)
_______________, 19____
To: The First National Bank of Chicago,
as administrative agent (the "Administrative Agent")
From: Northern Border Pipeline Company (the "Borrower")
Re: Credit Agreement (the "Agreement") dated as of ,
among the Borrower, The First National Bank of Chicago,
individually and as Administrative Agent, the Lenders, The
First National Bank of Chicago, Royal Bank of Canada and
Bank of America, as Syndication Agents and First Chicago
Capital Markets, Inc., Royal Bank of Canada and BancAmerica
Securities, Inc., as Joint Arrangers.
We hereby give notice pursuant to Section 2.3.2 of the
Agreement that we request Competitive Bid Quotes for the
following proposed Competitive Bid Advance(s):
Borrowing Date: _________________, 19___
Principal Amount 1 Interest Period 2
$
Such Competitive Bid Quotes should offer [a Competitive Bid
Margin] [an Absolute Rate].
Such Competitive Bid Advances are [not] to be subject to
prepayment.
Such Competitive Bid Advances are being requested under
Facility [A] [B].
Upon acceptance by the undersigned of any or all of the
Competitive Bid Advances offered by Lenders in response to this
request, the undersigned shall be deemed to affirm as of the
Borrowing Date thereof the representations and warranties made
in the Agreement to the extent required in Section 4.2(b)
thereof. Capitalized terms used herein have the meanings
assigned to them in the Agreement.
NORTHERN BORDER PIPELINE COMPANY
By: Northern Plains Natural Gas
Company, Operator
By:
Title:
1 Amount must be at least $5,000,000 and an integral multiple
of $1,000,000.
2 One, two, three, six, nine or twelve months (Eurodollar
Auction) or up to 360 days (Absolute Rate Auction), subject
to the provisions of the definitions of Eurodollar Interest
Period and Absolute Rate Interest Period.
EXHIBIT "F"
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.3.3)
_____________________, 19___
To: [Name of Lender]
Re: Invitation for Competitive Bid Quotes to
Northern Border Pipeline Company (the "Borrower")
Pursuant to Section 2.3.3 of the Credit Agreement dated as
of _________, 1997 (the "Agreement") among the Borrower, the
Lenders parties thereto and the undersigned, as Administrative
Agent, we are pleased on behalf of the Borrower to invite you to
submit Competitive Bid Quotes to the Borrower for the following
proposed Competitive Bid Advance(s):
Borrowing Date: ______________, 19___
Principal Amount Interest Period
$
Such Competitive Bid Quotes should offer [a Competitive Bid
Margin] [an Absolute Rate]. Such Competitive Bid Advances are
[not] to be subject to prepayment. Your Competitive Bid Quote
must comply with Section 2.3.4 of the Agreement and the
foregoing. Capitalized terms used herein have the meanings
assigned to them in the Agreement.
Please respond to this invitation by no later than [9:00
a.m.] [1:00 p.m,.] Chicago time on _________, 19____.
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
By:
Authorized Officer
EXHIBIT "G"
COMPETITIVE BID QUOTE
(Section 2.3.4)
__________________, 19___
To: The First National Bank of Chicago, as Agent
Attn:
Re: Competitive Bid Quote to Northern Border Pipeline Company
(the "Borrower")
In response to your invitation on behalf of the Borrower
dated , 199 , we hereby make the following Competitive
Bid Quote pursuant to Section 2.3.4 of the Credit Agreement
hereinafter referred to and on the following terms:
1. Quoting Lender:
2. Person to contact at Quoting Lender:
3. Borrowing Date: , 19 1
4. We hereby offer to make Competitive Bid Loan(s) in the
following principal amounts, for the following Interest
Periods and at the following rates:
Principal Interest [Competitive [Absolute Minimum Facility
Amount 2 Period 3 Bid Margin] Rate 5] Amount 6
$
1 As specified in the related Invitation For Competitive Bid
Quotes.
2 Principal amount bid for each Interest Period may not exceed
the principal amount requested. Bids must be made for at
least $5,000,000 and an integral multiple of $1,000,000.
3 One, two, three, six, nine or twelve months or up to 360
days, as specified in the related Invitation For Competitive
Bid Quotes.
4 Competitive Bid Margin over or under the Eurodollar ABR
determined for the applicable Interest Period. Specify
percentage (rounded to the nearest 1/100 of 1%) and specify
whether "PLUS" or "MINUS".
5 Specify rate of interest per annum (rounded to the nearest
1/100 of 1%).
6 Specify minimum or maximum amount, if any, which the
Borrower may accept and/or the limit, if any, as to the
aggregate principal amount of the Competitive Bid Loans of
the quoting Lender which the Borrower may accept (see
Section 2.3.4(ii)(d)).
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set
forth in the Credit Agreement dated as of __________, 1997 among
the Borrower, the Lenders party thereto, The First National Bank
of Chicago as Administrative Agent for the lenders, The First
National Bank of Chicago, Royal Bank of Canada and BancAmerica
Securities, Inc., as Joint Arrangers (in such capacity,
collectively the "Joint Arrangers") (the "Agreement"),
irrevocably obligates us to make the Competitive Bid Loan(s) for
which any offer(s) are accepted, in whole or in part.
Capitalized terms used herein and not otherwise defined herein
shall have their meanings as defined in the Credit Agreement.
Very truly yours,
[NAME OF BANK]
Dated: _________________, 19___ By:
Authorized Officer
EXHIBIT "H"
FORM OF OPINION OF XXXXX, XXXXX & XXXXX
(to be provided)
EXHIBIT "I"
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement")
between (the "Assignor") and
(the "Assignee") is dated as of , 19 . The parties
hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a
Credit Agreement, dated as of , 19 (which, as it may
be amended, modified, renewed or extended from time to time, is
herein called the "Credit Agreement"), among Northern Border
Pipeline Company, a Texas general partnership, as Borrower (the
"Borrower"), the Lenders (hereinafter defined), The First
National Bank of Chicago, as Administrative Agent (in such
capacity, the "Administrative Agent"), The First National Bank of
Chicago, Royal Bank of Canada and Bank of America as Syndication
Agents (in such capacity "Syndication Agents") and collectively,
with the Administrative Agent, (the "Agents") and First Chicago
Capital Markets, Inc., Royal Bank of Canada and BancAmerica
Securities, Inc., as Joint Arrangers (in such capacity,
collectively the "Joint Arrangers"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement. The Assignor desires
to assign to the Assignee, and the Assignee desires to assume
from the Assignor, an undivided interest (the "Purchased
Percentage") in the Assignor's Commitment such that after giving
effect to the assignment and assumption hereinafter provided, the
Assignee's Commitment shall equal $ and its
Percentage of the Aggregate Commitment shall equal %.
2. ASSIGNMENT. For and in consideration of the assumption
of obligations by the Assignee set forth in Section 3 hereof and
the other consideration set forth herein, and effective as of the
Effective Date (as hereinafter defined), the Assignor does hereby
sell, assign, transfer and convey all of its right, title and
interest in and to the Purchased Percentage of (i) the Commitment
of the Assignor (as in effect on the Effective Date), (ii) any
Loan outstanding on the Effective Date and (iii) the Credit
Agreement and the other Loan Documents. Pursuant to Section
12.3.2 of the Credit Agreement, on and after the Effective Date
the Assignee shall have the same rights, benefits and obligations
as the Assignor had under the Loan Documents with respect to the
Purchased Percentage of the Loan Documents, all determined as if
the Assignee were a "Lender" under the Credit Agreement with %
of the Aggregate Commitment. The Effective Date shall be the
later of or two Business Days (or such shorter period
agreed to by the Administrative Agent) after a Notice of
Assignment substantially in the form of Exhibit "D" to the Credit
Agreement and any consents required to be delivered to the
Administrative Agent by Section 12.3.1 of the Credit Agreement
have been delivered to the Administrative Agent. In no event
will the Effective Date occur if the payments required to be made
by the Assignee to the Assignor on the Effective Date under
Section 4 and 5 hereof are not made on the proposed Effective
Date. The Assignor will notify the Assignee of the proposed
Effective Date on the Business Day prior to the proposed
Effective Date.
3. ASSUMPTION. For and in consideration of the assignment
of rights by the Assignor set forth in Section 2 hereof and the
other consideration set forth herein, and effective as of the
Effective Date, the Assignee does hereby accept that assignment,
and assume and covenant and agree fully, completely and timely to
perform, comply with and discharge, each and all of the
obligations, duties and liabilities of the Assignor under the
Credit Agreement which are assigned to the Assignee hereunder,
which assumption includes, without limitation, the obligation to
fund the unfunded portion of the Aggregate Commitment in
accordance with the provisions set forth in the Credit Agreement
as if the Assignee were a "Lender" under the Credit Agreement
with ____% of the Aggregate Commitment. The Assignee agrees to
be bound by all provisions relating to "Lenders" under and as
defined in the Credit Agreement, including, without limitation,
provisions relating to the dissemination of information and the
payment of indemnification.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date,
the Assignee shall be entitled to receive from the Administrative
Agent all payments of principal, interest and fees with respect
to the Purchased Percentage of the Assignor's Commitment and
Loans. The Assignee shall advance funds directly to the
Administrative Agent with respect to all Loans and reimbursement
payments made on or after the Effective Date. In consideration
for the sale and assignment of Loans hereunder, (i) on the
Effective Date, the Assignee shall pay the Assignor an amount
equal to the Purchased Percentage of all ABR Loans made by the
Assignor outstanding on the Effective Date and (ii) with respect
to each Fixed Rate Loan made by the Assignor outstanding on the
Effective Date, on the last day of the Interest Period therefor
or on such earlier date agreed to by the Assignor and the
Assignee or on the date on which any such Loan either becomes due
(by acceleration or otherwise) or is prepaid, the Assignee shall
pay the Assignor an amount equal to the Purchased Percentage of
such Loan, together with interest on such Loan, at the applicable
rate provided by the Credit Agreement and paid by the Borrower,
for the period from the Effective Date through and including the
date of payment to the Assignor. On and after the Effective
Date, the Assignee will also remit to the Assignor any amounts of
interest on Loans and fees received from the Administrative Agent
which relate to the Purchased Percentage of Loans made by the
Assignor accrued for periods prior to the Effective Date. The
Assignor and the Assignee may agree to adjust the interest rate
payable to the Assignee with respect to a Fixed Rate Loan if the
Assignee elects to pay the Assignor an amount equal to its
Purchased Percentage of a Fixed Rate Loan prior to the last day
of the Interest Period for such Fixed Rate Loan. In the event
that either party hereto receives any payment to which the other
party hereto is entitled under this Assignment Agreement, then
the party receiving such amount shall promptly remit it to the
other party hereto.
5. FEES PAYABLE BY ASSIGNEE.
On each day on which the Assignee receives a payment of
interest or commitment fees under the Credit Agreement (other
than a payment of interest or commitment fees which the Assignee
is obligated to deliver to the Assignor pursuant to Section 4
hereof), the Assignee shall pay to the Assignor a fee. The
amount of such fee shall be the difference between (i) the amount
of the interest or fee, as applicable, received and retained by
the Assignee and (ii) the amount of the interest or fee, as
applicable, which would have been received by the Assignee if
each interest rate was of 1% less than the interest rate
paid by the Borrower or if the commitment fee was of 1% less
than the commitment fee paid by the Borrower, as applicable. In
addition, the Assignee agrees to pay % of the fee required to
be paid to the Administrative Agent pursuant to Section 12.3.2 of
the Credit Agreement.
6. CREDIT DETERMINATION; LIMITATIONS ON ASSIGNOR'S
LIABILITY. It is understood and agreed the Assignee has made and
shall continue to make its own credit determinations and analysis
based upon such information as the Assignee deemed sufficient to
enter into the transaction contemplated hereby and not based on
any statements or representations by the Assignor. It is
understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the
Assignor makes no representation or warranty of any kind to the
Assignee and shall not be responsible for (i) the due execution,
legality, validity, enforceability, genuineness, sufficiency or
collectibility of the Credit Agreement or any other Loan
Document, including without limitation, documents granting the
Assignor and the other Lenders a security interest in assets of
the Borrower or any guarantor, (ii) any representation, warranty
or statement made in or in connection with any of the Loan
Documents, (iii) the financial condition or creditworthiness of
the Borrower or any guarantor, (iv) the performance of or
compliance with any of the terms or provisions of any of the Loan
Documents, (v) inspecting any of the property, books or records
of the Borrower or (vi) the validity, enforceability, perfection,
priority, condition, value or sufficiency of any collateral
securing or purporting to secure the Loans. Neither the Assignor
nor any of its officers, directors, employees, Administrative
Agents or attorneys shall be liable for any mistake, error of
judgment, or action taken or omitted to be taken in connection
with the Loans or the Loan Documents, except for its or their own
bad faith or willful misconduct.
7. INDEMNITY. The Assignee agrees to indemnify and hold
the Assignor harmless against any and all losses, costs and
expenses (including, without limitation, reasonable attorneys'
fees) and liabilities incurred by the Assignor in connection with
or arising in any manner from the Assignee's performance or
non-performance of obligations assumed under this Assignment
Agreement.
8. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the
Assignee shall have the right pursuant to Section 12.3.1 of the
Credit Agreement to assign the rights which are assigned to the
Assignee hereunder to any entity or person, provided that (i) any
such subsequent assignment does not violate any of the terms and
conditions of the Loan Documents or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent
required under the terms of the Loan Documents has been obtained,
(ii) the assignee under such assignment from the Assignee shall
agree to assume all of the Assignee's obligations hereunder in a
manner satisfactory to the Assignor and (iii) the Assignee is not
thereby released from any of its obligations to the Assignor
hereunder.
9. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in
the Aggregate Commitment occurs between the date of this
Assignment Agreement and the Effective Date, the Assignee's
Percentage of the Aggregate Commitment shall remain the
percentage specified in Section 1 hereof and the dollar amount of
Assignee's Commitment shall be recalculated based on the reduced
Aggregate Commitment.
10. ENTIRE AGREEMENT. This Assignment Agreement [and the
attached consent] embody the entire agreement and understanding
between the parties hereto and supersede all prior agreements and
understandings between the parties hereto relating to the subject
matter hereof.
11. GOVERNING LAW. This Assignment Agreement shall be
governed by the internal law, and not the law of conflicts, of
the State of New York.
12. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For
the purpose hereof, the addresses of the parties hereto (until
notice of a change is delivered) shall be the address set forth
under each party's name on the signature pages hereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement by their duly authorized officers as of the
date first above written.
[NAME OF ASSIGNOR]
Title:
[NAME OF ASSIGNEE]
By:
Title:
SCHEDULE "1-a"
SERVICE AGREEMENTS
SCHEDULE "1-b"
PRECEDENT AGREEMENTS
SCHEDULE "2"
LITIGATION AND CONTINGENT LIABILITIES
(See Section 5.7)
SCHEDULE "3"
INDEBTEDNESS AND LIENS
(See Sections 5.14 and 6.2.7)
Indebtedness Property Encumbered and Amount of
(If Any) Indebtedness
Senior Notes N/A 250,000,000
Loan Agreement N/A 127,500,000
Credit Agreement N/A 10,000,000
SCHEDULE "4"
OTHER INVESTMENTS
(See Section 6.2.5)
Investment Owned Amount of Percent Jurisdiction of
In By Investment Ownership Organization
None
SCHEDULE "5"
SUPPORT AGREEMENTS
(See Section 1.1)
(i) Escrow Agreement, dated as of October 6,
1989, among the Borrower, Pan-Alberta (U.S.) and
Xxxxxx Trust and Savings Bank, together with any
standby letter of credit issued in favor of the
escrow agent under Paragraph 2(d) of the Escrow
Agreement, which letter of credit is currently
issued by Bank of Montreal International
Operations under IMDC/0666/S/000000;
(ii) Guaranty, dated November 27, 1989, by Pan-
Alberta in favor of the Borrower;
(iii) Capacity Transfer Agreement, made as of
October 6, 1989, between Pan-Alberta and the
Borrower;
(iv) Undertaking of NOVA Corporation of Alberta,
dated October 10, 1989, in favor of the Borrower
and First Amending Agreement to the Undertaking of
NOVA Corporation of Alberta dated as of April 5,
1991, and Second Amending Agreement to the
Undertaking of NOVA Corporation of Alberta dated
March 31, 1994;
(v) Collateral Assignment of Certain Revenues and
Related Rights, dated as of October 6, 1989,
between Pan-Alberta (U.S.) and the Borrower and
Amendment to Collateral Assignment of Certain
Revenues and Related Rights, dated as of October
1, 1993;
(vi) Alternative Credit Support Arrangement for
the U.S. Shippers Service Agreement with Natgas
U.S. Inc. (now known as Pan-Alberta Gas (U.S.)
Inc.), dated September 30, 1989, among Pan-Alberta
(U.S.), the Borrower and Pan-Alberta, attached as
Appendix A to the Northern Border Pipeline Company
U.S. Shippers Service Agreement, dated as of
October 6, 1989, between Pan-Alberta (U.S.) and
the Borrower and First Amendment to Appendix A to
the U.S. Shippers Service Agreement between Natgas
U.S. Inc. (now known as Pan-Alberta Gas (U.S.)
Inc.), Pan-Alberta and the Borrower dated as of
October 2, 1991, and Second Amendment to Appendix
A to the U.S. Shippers Service Agreement between
Pan-Alberta Gas (U.S.) Inc., Pan-Alberta and the
Borrower dated October 1, 1993;
(vii) Commitment from Foothills Pipe Lines Ltd. in
Favor of Northern Border Pipeline Company, dated
as of October 6, 1989, between Foothills and the
Borrower; (ix) Commitment from NOVA Corporation of
Alberta in Favor of Northern Border Pipeline
Company, dated October 6, 1989, between NOVA and
the Borrower;
(viii) Guaranty, dated May 25, 1988, of North
Canadian Oils Limited in favor of the Borrower;
(ix) Guaranty, dated August 24, 1989, of Enron
Corp. in favor of the Borrower;
(x) Guaranty, dated June 11, 1997, of Coral
Energy, L.P. in favor of the Borrower;
(xi) Guaranty, dated August 7, 1991, of Husky Oil
Ltd. in favor of the Borrower;
(xii) Guaranty, dated June 1, 1992, of Mobil Oil
Canada in favor of the Borrower;
(xiii) Guaranty, dated October 12, 1994, of Numac
Energy Inc. in favor of the Borrower;
(xiv) Guaranty, dated October 25, 1995, of Numac
Energy Inc. in favor of the Borrower;
(xv) Guaranty, dated October 7, 1993, of Northern
Natural Gas Company in favor of the Borrower;
(xvi) Guaranty, dated October 7, 1993, of Northern
Natural Gas Company in favor of the Borrower;
(xvii) Guaranty, dated October 31, 1992, of
Panhandle Eastern Corporation in favor of the
Borrower;
(xviii) Guaranty, dated October 18, 1994, of
PanCanadian Petroleum Limited in favor of the
Borrower;
(xix) Guaranty, dated June 21, 1996, of Poco
Petroleums Ltd. in favor of the Borrower;
(xx) Guaranty, dated June 21, 1996, of Poco
Petroleums Ltd. in favor of the Borrower;
(xxi) Guaranty, dated April 27, 1995, of
Renaissance Energy Ltd. in favor of the Borrower;
(xxii) Guaranty, dated November 23, 1994, of
Renaissance Energy Ltd. in favor of the Borrower;
(xxiii) Guaranty, dated December 9, 1993, of Wascana
Energy Inc. in favor of the Borrower;
(xxiv) Guaranty dated August 1, 1993, of Union
Energy Inc. in favor of the Borrower;
(xxv) First Amended Appendix A to Alternative
Credit Support Arrangement for the U.S. Shippers
Service Agreement with ProGas U.S.A. Inc., dated
June 20, 1996, between ProGas U.S.A., Borrower and
ProGas Limited, attached to the Northern Border
Pipeline Company U.S. Shippers Service Agreement,
dated November 1, 1994 between ProGas U.S.A. and
Borrower;
(xxvi) Standby Letter of Credit issued by Bank of
Montreal International Operations under
IMDC/0666/S/214702 in favor of Borrower;
(xxvii) Supply Report Agreement, dated as of July 10,
1996, of ProGas U.S.A. Inc. in favor of Borrower;
(xxviii) ProGas - Northern Border - Natural Gas
Clearinghouse Assignment Agreement, dated June 1,
1996, between ProGas U.S.A. and Borrower, and
Natural Gas Clearinghouse Acknowledgment of
Assignment by ProGas U.S.A., Inc. to Northern
Border Pipeline Company, dated August 5, 1996;
(xxviv) ProGas - Northern Border - Tenaska Marketing
Ventures Assignment Agreement, dated June 1, 1996,
between ProGas U.S.A. and Borrower, and Tenaska
Marketing Ventures Acknowledgment of Assignment by
ProGas U.S.A. Inc. to Northern Border Pipeline
Company, dated June 26, 1996;
(xxx) Capacity Transfer Agreement, made as of
November 1, 1994, between ProGas U.S.A. and
Borrower; and
(xxxi) Commitment from NOVA Gas Transmission Ltd. in
favor of Northern Border Pipeline Company, dated
November 25, 1994.
SCHEDULE "5.14"
OWNERSHIP OF PROPERTIES; LIENS
(See Section 5.14)
None
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.1. Defined Terms. 1
ARTICLE II THE FACILITIES 16
SECTION 2.1. Facility A. 16
SECTION 2.1.1 Description of Facility A 16
SECTION 2.1.2 Availability of Facility A 16
SECTION 2.1.3 Swing Loan 16
SECTION 2.1.4 Facility A Advances 16
SECTION 2.2. Facility B 17
SECTION 2.2.1 Description of Facility B 17
SECTION 2.2.2 Availability of Facility B 17
SECTION 2.2.3 Facility B Advances 17
SECTION 2.3. Competitive Bid Advances 17
SECTION 2.3.1 Competitive Bid Option 17
SECTION 2.3.2 Competitive Bid Quote Request 17
SECTION 2.3.3 Invitation for Competitive Bid
Quotes 18
SECTION 2.3.4 Submission and Contents of
Competitive Bid Quotes 18
SECTION 2.3.5 Notice to the Borrower 20
SECTION 2.3.6 Acceptance and Notice by the
Borrower 20
SECTION 2.3.7 Allocation by the Administrative
Agent 21
SECTION 2.3.8 Administration Fees 21
SECTION 2.4. Types of Advances 21
SECTION 2.5. Facility Fees 21
SECTION 2.6. Reduction or Cancellation 21
SECTION 2.7. Method of Borrowing 22
SECTION 2.8. Method of Borrowing Swing Loan 22
SECTION 2.9. Method of Selecting Rate Options and
Interest Periods 22
SECTION 2.10. Minimum Amount of Each Advance 23
SECTION 2.11. Rate after Maturity 23
SECTION 2.12. Method of Payment 23
SECTION 2.13. Notes; Telephonic Notices 23
SECTION 2.14. Interest Payment Dates; Interest
Basis 23
SECTION 2.15. Notification of Advances, Interest
Rates, Prepayments and Commitment
Reductions 24
SECTION 2.16. Lending Installations 24
SECTION 2.17. Non-Receipt of Funds by the
Administrative Agent 24
SECTION 2.18. Voluntary Prepayments 25
SECTION 2.19. Conversion and Continuation of
Outstanding Advances 25
SECTION 2.20. Rates 25
SECTION 2.21. Withholding Tax Exemption 26
SECTION 2.22. Agent's Fees 28
SECTION 2.23. Extension of Facility A
Termination Date 28
ARTICLE III CHANGE IN CIRCUMSTANCES 30
SECTION 3.1. Yield Protection 30
SECTION 3.2. Changes in Capital Adequacy
Regulations 31
SECTION 3.3. Availability of Types of Advances 31
SECTION 3.4. Funding Indemnification 32
SECTION 3.5. Lender Statements; Survival of
Indemnity 32
SECTION 3.6. Replacement of Lenders 32
ARTICLE IV CONDITIONS PRECEDENT 33
SECTION 4.1. Initial Advance 33
SECTION 4.2. Each Loan and Conversion Date 34
SECTION 4.3. Conversion Date 35
ARTICLE V REPRESENTATIONS AND WARRANTIES 35
SECTION 5.1. General Partnership Existence and
Standing 35
SECTION 5.2. Authorization and Validity 35
SECTION 5.3. No Conflict; Government Consent 36
SECTION 5.4. Financial Statements 36
SECTION 5.5. Material Adverse Change 36
SECTION 5.6. Taxes 36
SECTION 5.7. Litigation and Contingent Obligations 36
SECTION 5.8. Subsidiaries 37
SECTION 5.9. ERISA 37
SECTION 5.10. Accuracy of Information 37
SECTION 5.11. Representation with Respect to
Regulations G, T, U and X 37
SECTION 5.12. Compliance With Laws, Approvals, etc 37
SECTION 5.13. Environmental Matters 37
SECTION 5.14. Ownership of Properties; Liens 38
SECTION 5.15. Investment Company Act 38
SECTION 5.16. Public Utility Holding Company Act 38
SECTION 5.17. Insurance 38
SECTION 5.18. Default 38
SECTION 5.19. Service Agreements and Support
Agreements 38
SECTION 5.20. Partnership Agreement 39
ARTICLE VI COVENANTS 39
SECTION 6.1. Affirmative Covenants 39
SECTION 6.1.1 Financial Reporting 39
SECTION 6.1.2 Use of Proceeds 41
SECTION 6.1.3 [INTENTIONALLY OMITTED] 41
SECTION 6.1.4 Taxes and Other Charges 41
SECTION 6.1.5 Insurance 41
SECTION 6.1.6 Compliance with Laws 41
SECTION 6.1.7 Maintenance of Properties 41
SECTION 6.1.8 Inspection 42
SECTION 6.1.9 Maintenance of Books and Records 42
SECTION 6.1.10 Pari Passu Status 42
SECTION 6.1.11 Tariff 42
SECTION 6.1.12 Preservation of Rights, Etc 42
SECTION 6.1.13 Service Agreements and Support
Agreements 42
SECTION 6.1.14 Shipper Credit Quality 43
SECTION 6.2. Negative Covenants 43
SECTION 6.2.1 Limitation on Negative Pledges 43
SECTION 6.2.2 Limitation on Other Business 43
SECTION 6.2.3 Merger; etc. 43
SECTION 6.2.4 Sale of Assets 43
SECTION 6.2.5 Investments and Acquisitions 44
SECTION 6.2.6 Guaranty 45
SECTION 6.2.7 Liens 45
SECTION 6.2.8 Affiliates 46
SECTION 6.2.9 Judgments. 46
SECTION 6.3. Ratio of Debt 46
ARTICLE VII DEFAULTS 47
SECTION 7.1. False Representation or Warranty 47
SECTION 7.2. Nonpayment of Principal 47
SECTION 7.3. Breach of Other Terms 47
SECTION 7.4. Indebtedness 47
SECTION 7.5. Bankruptcy 47
SECTION 7.6. Appointment of Receiver 48
SECTION 7.7. Condemnation 48
SECTION 7.8. Judgment 48
SECTION 7.9. Action to Change Tariff 48
SECTION 7.10. Regulatory Action to Change Tariff 48
SECTION 7.11. Voting Interest 49
SECTION 7.12. Partnership Agreement 49
SECTION 7.13. Abandonment of the Project 49
SECTION 7.14. Change in Operator 49
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES 49
SECTION 8.1. Acceleration 49
SECTION 8.2. Amendments 49
SECTION 8.3. Preservation of Rights 50
ARTICLE IX GENERAL PROVISIONS 50
SECTION 9.1. Survival of Representations 50
SECTION 9.2. Governmental Regulation 51
SECTION 9.3. Taxes 51
SECTION 9.4. Headings 51
SECTION 9.5. Entire Agreement 51
SECTION 9.6. Several Obligations 51
SECTION 9.7. Expenses; Indemnification 51
SECTION 9.8. Numbers of Documents 52
SECTION 9.9. Accounting 52
SECTION 9.10. Severability of Provisions 52
SECTION 9.11. Nonliability of Lender 52
SECTION 9.12. CHOICE OF LAW 53
SECTION 9.13. CONSENT TO JURISDICTION 53
SECTION 9.14. [INTENTIONALLY OMITTED.] 53
SECTION 9.15. Confidentiality 53
SECTION 9.16. Limitation on Agent and Lender
Liability 53
SECTION 9.17. No Partners' Liability 54
ARTICLE X THE ADMINISTRATIVE AGENT 54
SECTION 10.1. Appointment and Authority of
Administrative Agent 54
SECTION 10.2. Capacity of the Agents 55
SECTION 10.3. No Liability of the Administrative
Agent and Indemnity 55
SECTION 10.4. Employees of Administrative Agent 56
SECTION 10.5. Reliance 56
SECTION 10.6. Several Commitments 56
SECTION 10.7. Notice of Default 56
SECTION 10.8. Lender Credit Decision 57
SECTION 10.9. Successor Administrative Agent 57
SECTION 10.10 Syndication Agents; Joint Arrangers 58
ARTICLE XI SETOFF; RATABLE PAYMENTS 58
SECTION 11.1. Setoff 58
SECTION 11.2. Ratable Payments 58
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS 58
SECTION 12.1. Successors and Assigns 58
SECTION 12.2. Participations 59
SECTION 12.2.1 Permitted Participants; Effect 59
SECTION 12.2.2 Voting Rights 59
SECTION 12.2.3 Benefit of Setoff and
Indemnities 59
SECTION 12.3. Assignments 60
SECTION 12.3.1 Permitted Assignments 60
SECTION 12.3.2 Effect; Effective Date 60
SECTION 12.4. Dissemination of Information 61
SECTION 12.5. Tax Treatment 61
ARTICLE XIII NOTICES 61
SECTION 13.1. Giving Notice 61
SECTION 13.2. Change of Address 61
ARTICLE XIV COUNTERPARTS 62
Exhibit A-1 - Form of Facility Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit A-3 - Form of Swing Loan Note
Exhibit B-1 - Form of Opinion of Xxxxx Place
Exhibit B-2 - Form of Opinion of Xxxxxxx & Xxxxxx
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Notice of Assignment
Exhibit E - Form of Competitive Bid Quote Request
Exhibit F - Form of Invitation for Competitive Bid Quotes
Exhibit G - Form of Competitive Bid Quote
Exhibit H - Opinion of Xxxxx, Xxxxx & Xxxxx
Exhibit I - Assignment Agreement
Schedule 1a - Service Agreements
Schedule 1b - Precedent Agreements
Schedule 2 - Litigation and Contingent Liabilities
Schedule 3 - Indebtedness and Liens
Schedule 4 - Other Investments
Schedule 5 - Support Agreements
Schedule 5.14 - Ownership of Properties; Liens
