SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of July 2, 1998
among
FERRELLGAS, L.P.,
FERRELLGAS, INC.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
NATIONSBANK, N.A.,
as Documentation Agent
Arranged By
BANCAMERICA XXXXXXXXX XXXXXXXX
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of
July 2, 1998, among FERRELLGAS, L.P., a Delaware limited partnership (the
"Borrower"), FERRELLGAS, INC., a Delaware corporation and the sole general
partner of the Borrower (the "General Partner"), the several financial
institutions from time to time party to this Agreement (collectively, the
"Banks"; individually, a "Bank"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION ("BofA"), as agent for the Banks (in such capacity, the
"Administrative Agent"). NATIONSBANK, N.A. is named as documentation agent (the
"Documentation Agent") hereunder.
R E C I T A L S
WHEREAS, the Borrower, the General Partner, the Banks and the
Administrative Agent are parties to the Existing Credit Agreement (as defined
below), pursuant to which the Banks have (a) made revolving credit loans to the
Borrower and have issued or participated in letters of credit for the account of
the Borrower, in each case for working capital, Acquisitions and general
partnership purposes in an aggregate amount of up to $185,000,000, (b) made
additional revolving loans to Borrower solely for working capital purposes in an
aggregate amount of up to $20,000,000 and (c) made term loans to the Borrower to
refinance the $50,000,000 Series B Floating Rate Senior Notes due 2001 issued by
the Borrower and Finance Corp. (as defined below);
WHEREAS, the Borrower has requested that (i) the outstanding Facility A
Revolving Loans and Facility C Revolving Loans under the Existing Credit
Agreement be refinanced and converted into Facility C Revolving Loans under this
Agreement, (ii) the Facility A Commitments under the Existing Credit Agreement
be converted into Facility A Commitments under this Agreement, the proceeds of
which are to be used by the Borrower solely for working capital purposes, (iii)
the Facility C Commitments under the Existing Credit Agreement be converted into
Facility C Commitments under this Agreement, the proceeds of which are to be
used by the Borrower for Acquisitions and general partnership purposes, (iv)
separate and apart from the foregoing credit facilities, the Banks make new
Facility B Commitments and Facility B Revolving Loans to the Borrower in an
aggregate amount of up to $50,000,000, the proceeds of which are to be used by
the Borrower for working capital and general partnership purposes and (v) the
Existing Credit Agreement otherwise be amended and restated in its entirety as
set forth below in this Agreement;
WHEREAS, on or prior to the Restatement Effective Date, the Borrower
will issue pursuant to the 1998 Note Purchase Agreement (as defined below) the
1998 Fixed Rate Senior Notes (as defined below) in an aggregate principal amount
of not greater than $350,000,000, the proceeds of which will be used to redeem
the Fixed Rate Senior Notes (as defined below) and to repay in full the Facility
B Term Loans under (and as defined in) the Existing Credit Agreement; and
WHEREAS, the Banks are willing, on and subject to the terms and
conditions set forth in this Agreement, to amend and restate the terms of the
Existing Credit Agreement and to extend credit under this Agreement as more
particularly hereinafter set forth.
ACCORDINGLY, the parties hereto agree to amend and restate the Existing
Credit Agreement as follows:
ARTICLE I
DEFINITIONS
The following terms have the following meanings:
"1994 Indenture" means the Indenture dated as of July 5, 1994,
among the Borrower, Finance Corp. and Norwest Bank Minnesota, National
Association, pursuant to which the Fixed Rate Senior Notes and the
Floating Rate Senior Notes were issued, as it may be amended, modified
or supplemented from time to time.
"1996 Indenture" means the Indenture dated as of April 26,
1996, among the MLP, Ferrellgas Partners Finance Corp. and American
Bank National Association, pursuant to which the MLP Senior Notes were
issued, as it may be amended, modified or supplemented from time to
time.
"1998 Fixed Rate Senior Notes" means, collectively, (a) the
$109,000,000 6.99% Senior Notes, Series A, due August 1, 2005, (b) the
$37,000,000 7.08% Senior Notes, Series B, due August 1, 2006, (c) the
$52,000,000 7.12% Senior Notes, Series C, due 2008, (d) the $82,000,000
7.24% Senior Notes, Series D, due August 1, 2010 and (e) the
$70,000,000 7.42% Senior Notes, Series E, due August 1, 2013, in each
case issued by the Borrower pursuant to the 1998 Note Purchase
Agreement.
"1998 Note Purchase Agreement" means the Note Purchase
Agreement, dated as of July 1, 1998, among the Borrower and the
Purchasers named therein, pursuant to which the 1998 Fixed Rate Senior
Notes will be issued, as it may be amended, modified or supplemented
from time to time.
"Acquired Debt" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other
Person merged with or into or became a Subsidiary of such specified
Person, including Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person and (ii) Indebtedness encumbering
any asset acquired by such specified Person.
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the capital stock, partnership interests or
equity of any Person or otherwise causing any Person, to become a
Subsidiary, or (c) a merger or consolidation or any other combination
with another Person (other than a Person that is a Subsidiary) provided
that the Borrower or the Subsidiary is the surviving entity.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, by contract, or otherwise.
"Administrative Agent" has the meaning specified in the
introductory clause hereto. References to the "Administrative Agent"
shall include BofA in its capacity as agent for the Banks hereunder,
and any successor agent arising under Section 10.09.
"Agent-Related Persons" means BofA and any successor
Administrative Agent arising under Section 10.09, together with their
respective Affiliates (including, in the case of BofA, the Arranger),
and the officers, directors, employees, agents and attorneys-in-fact of
such Persons and Affiliates.
"Administrative Agent's Payment Office" means the address for
payments set forth on Schedule 11.02 hereto in relation to the
Administrative Agent, or such other address as the Administrative Agent
may from time to time specify.
"Agreement" means this Credit Agreement.
"Applicable Margin" means, for each Type of Loan, effective as
of the first day of each fiscal quarter, the percentage per annum
(expressed in basis points) set forth below opposite the Level of the
Pricing Ratio applicable to such fiscal quarter as set forth herein.
Pricing Ratio Base Rate Loans Eurodollar Loans
------------- --------------- ----------------
Xxxxx 0 0.00 b.p. 42.50 b.p.
Level 2 0.00 b.p. 50.00 b.p.
Level 3 0.00 b.p. 60.00 b.p.
Level 4 0.00 b.p. 80.00 b.p.
Level 5 0.00 b.p. 110.00 b.p.
Level 6 12.50 b.p. 137.50 b.p.
"Arranger" means BancAmerica Xxxxxxxxx Xxxxxxxx, a
Wholly-Owned Subsidiary of BankAmerica Corporation. The Arranger is a
registered broker-dealer and permitted to underwrite and deal in
certain Ineligible Securities.
"Asset Sale" has the meaning specified in Section 8.02.
"Assignee" has the meaning specified in subsection 11.08(a).
"Attorney Costs" means and includes all reasonable and
itemized fees and disbursements of any law firm or other external
counsel, the allocated cost of internal legal services and all
disbursements of internal counsel.
"Attributable Debt" means, in respect of a sale and leaseback
arrangement of any property, as at the time of determination, the
present value (calculated using a discount rate equal to 7.16%) of the
total obligations of the lessee for rental payments during the
remaining term of the lease included in such arrangement (including any
period for which such lease has been extended).
"Available Cash" has the meaning given to such term in the
Partnership Agreement, as amended to July 5, 1994; provided, that (i)
Available Cash shall not include any amount of Net Proceeds of Asset
Sales until the 270-day period following the consummation of the
applicable Asset Sale, (ii) investments, loans and other contributions
to a Non-Recourse Subsidiary are to be treated as "cash disbursements"
when made for purposes of determining the amount of Available Cash and
(iii) cash receipts of a Non-Recourse Subsidiary shall not constitute
cash receipts of the Borrower for purposes of determining the amount of
Available Cash until cash is actually distributed by such Non-Recourse
Subsidiary to the Borrower.
"Bank" has the meaning specified in the introductory clause
hereto. References to the "Banks" shall include BofA and any other Bank
designated by the Administrative Agent as an Issuing Bank from time to
time, including in their respective capacities as Issuing Banks; for
purposes of clarification only, to the extent that an Issuing Bank may
have any rights or obligations in addition to those of a Bank due to
its status as an Issuing Bank, its status as such will be specifically
referenced.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978, as
amended (11 U.S.C. ss.101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the Federal Funds Rate in effect on such day; and (b) the
rate of interest in effect for such day as publicly announced from time
to time by BofA in San Francisco, California, as its "reference rate."
(The "reference rate" is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.)
Any change in the reference rate announced by BofA shall take effect at
the opening of business on the day specified in the public announcement
of such change or if no day is so specified, on the day of the
announcement.
"Base Rate Loan" means a Loan that bears interest based on the
Base Rate.
"BofA" has the meaning specified in the introductory clause hereto.
"Borrowing" means a borrowing hereunder consisting of Loans of
the same Type made to the Borrower on the same day by the Banks (or, in
the case of Swingline Loans, by BofA) and, for Eurodollar Rate Loans,
having the same Interest Period, in either case under Article II.
"Borrowing Date" means any date on which a Borrowing occurs.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York or San Francisco are
authorized or required by law to close and, if the applicable Business
Day relates to any Eurodollar Rate Loan, means such a day on which
dealings are carried on in the London interbank dollar market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Capital Interests" means, with respect to any corporation,
any and all shares, participations, rights or other equivalent
interests in the capital of the corporation, and with respect to any
partnership, any and all partnership interests (whether general or
limited) and other interests or participations that confer on a Person
the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in
respect of a capital lease that would at such time be so required to be
capitalized on the balance sheet in accordance with GAAP.
"Cash Collateralize" means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Banks and the Banks, as collateral
for the L/C Obligations or any outstanding Loan, cash or deposit
account balances pursuant to documentation in form and substance
satisfactory to the Administrative Agent (which documents are hereby
consented to by the Banks). Derivatives of such term shall have
corresponding meaning. The Borrower hereby grants to the Administrative
Agent, for the benefit of the Administrative Agent, the Issuing Banks
and the Banks, a security interest in all such cash and deposit account
balances. Cash collateral shall be maintained in blocked, non-interest
bearing deposit accounts at BofA. Such collateral may be invested from
time to time in short-term money market instruments and other
investments with the consent of the Administrative Agent and the
Majority Banks (which consent may be given or withheld in their sole
and absolute discretion) provided that the Administrative Agent, the
Issuing Banks and the Banks shall at all times have a first priority
perfected security interest in such collateral and the proceeds
thereof.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof
having maturities of not more than eighteen months from the date of
acquisition, (iii) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any Bank or with any other
domestic commercial bank having capital and surplus in excess of $500
million and a Xxxxx Bank Watch Rating of "B" or better, (iv) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered
into with any financial institution meeting the qualifications
specified in clause (iii) above, (v) commercial paper or direct
obligations of a Person, provided such Person has publicly outstanding
debt having the highest short-term rating obtainable from Xxxxx'x
Investors Service, Inc. or Standard & Poor's Corporation and provided
further that such commercial paper or direct obligation matures within
270 days after the date of acquisition, and (vi) investments in money
market funds all of whose assets consist of securities of the types
described in the foregoing clauses (i) through (v).
"Change of Control" means (i) the sale, lease, conveyance or
other disposition of all or substantially all of the Borrower's assets
to any Person or group (as such term is used in Section 13(d)(3) of the
Exchange Act) other than Xxxxx X. Xxxxxxx, the Related Parties and any
Person of which Xxxxx X. Xxxxxxx and the Related Parties beneficially
own in the aggregate 51% or more of the voting Capital Interests (or if
such Person is a partnership, 51% or more of the general partner
interests), (ii) the liquidation or dissolution of the Borrower or the
General Partner, (iii) the occurrence of any transaction, the result of
which is that Xxxxx X. Xxxxxxx and the Related Parties beneficially own
in the aggregate, directly or indirectly, less than 51% of the total
voting power entitled to vote for the election of directors of the
General Partner and (iv) the occurrence of any transaction, the result
of which is that the General Partner is no longer the sole general
partner of the Borrower.
"Class" means, with respect to any Loan, whether such Loan is
a Facility A Revolving Loan, Swingline Loan, Facility B Revolving Loan,
or Facility C Revolving Loan.
"Code" means the Internal Revenue Code of 1986, as amended,
and regulations promulgated thereunder.
"Commercial Letters of Credit" means commercial documentary
letters of credit issued by an Issuing Bank pursuant to Article III.
"Commercial Letter of Credit Risk Participation Percentage"
means, as of any date and based upon the Level of the Pricing Ratio on
such date, the percentage per annum (expressed in basis points) set
forth below opposite such Level:
Commercial Letter of Credit Risk
Pricing Ratio Participation Percentage
------------- ------------------------
Level 1 15.50 b.p.
Level 2 18.50 b.p.
Level 3 22.50 b.p.
Level 4 30.00 b.p.
Level 5 35.00 b.p.
Level 6 45.00 b.p.
"Commitment Fee Rate" means, as of any date and based upon the
Level of the Pricing Ratio on such date, the percentage per annum
(expressed in basis points) set forth below opposite such Level:
Pricing Ratio Commitment Fee Rate
------------- -------------------
Level 1 12.50 b.p.
Level 2 15.00 b.p.
Level 3 20.00 b.p.
Level 4 27.50 b.p.
Level 5 32.50 b.p.
Level 6 37.50 b.p.
"Compliance Certificate" means a certificate signed by a
Responsible Officer of the Borrower substantially in the form of
Exhibit C, demonstrating compliance with the covenants contained
herein, including Sections 7.12, 7.13, 7.16 and 8.12 and the 30 day
clean-up period contained in subsection 2.01(a)(ii).
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period,
plus (a) an amount equal to any extraordinary loss plus any net loss
realized in connection with an asset sale, to the extent such losses
were deducted in computing Consolidated Net Income, plus (b) provision
for taxes based on income or profits of such Person for such period, to
the extent such provision for taxes was deducted in computing
Consolidated Net Income, plus (c) Consolidated Interest Expense of such
Person for such period, whether paid or accrued (including amortization
of original issue discount, non-cash interest payments and the interest
component of any payments associated with Capital Lease Obligations and
net payments (if any) pursuant to Hedging Obligations), to the extent
such expense was deducted in computing Consolidated Net Income, plus
(d) depreciation and amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) of such Person for such
period, to the extent such depreciation and amortization were deducted
in computing Consolidated Net Income, plus (e) non-cash employee
compensation expenses of such Person for such period, plus (f) the
Synthetic Lease Principal Component of such Person for such period; in
each case, for such period without duplication on a consolidated basis
and determined in accordance with GAAP.
"Consolidated Interest Expense" means, as of the last day of
any fiscal period, on a consolidated basis, the sum of (a) all
interest, fees (including Letter of Credit fees), charges and related
expenses paid or payable (without duplication) for that fiscal period
to the Banks hereunder or to any other lender in connection with
borrowed money or the deferred purchase price of assets that are
considered "interest expense" under GAAP, plus (b) the portion of rent
paid or payable (without duplication) for that fiscal period under
Capital Lease Obligations that should be treated as interest in
accordance with Financial Accounting Standards Board Statement No. 13,
on a consolidated basis, plus (c) the Synthetic Lease Interest
Component for that fiscal period.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided, that (i) the Net Income of any Person
that is not a Subsidiary or that is accounted for by the equity method
of accounting shall be included only to the extent of the amount of
dividends or distributions paid to such Person or a Wholly-Owned
Subsidiary thereof, (ii) the Net Income of any Person that is a
Subsidiary (other than a Wholly-Owned Subsidiary) shall be included
only to the extent of the amount of dividends or distributions paid to
such Person or a Wholly-Owned Subsidiary thereof, (iii) the Net Income
of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded except
to the extent otherwise includable under clause (i) above and (iv) the
cumulative effect of a change in accounting principles shall be
excluded.
"Consolidated Net Worth" means, with respect to any Person as
of any date, the sum of (i) the consolidated equity of the common
stockholders or partners of such Person and its consolidated
Subsidiaries as of such date, plus (ii) the respective amounts reported
on such Person's balance sheet as of such date with respect to any
series of preferred stock (other than Disqualified Interests) that by
its terms is not entitled to the payment of dividends unless such
dividends may be declared and paid only out of net earnings in respect
of the year of such declaration and payment, but only to the extent of
any cash received by such Person upon issuance of such preferred stock,
less (x) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going
concern business made within 12 months after the acquisition of such
business) subsequent to the Restatement Effective Date in the book
value of any asset owned by such Person or a consolidated Subsidiary of
such Person, (y) all investments as of such date in unconsolidated
Subsidiaries and in Persons that are not Subsidiaries (except, in each
case, Permitted Investments), and (z) all unamortized debt discount and
expense and unamortized deferred charges as of such date, all of the
foregoing determined in accordance with GAAP.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, (a) with respect to any Indebtedness, lease,
dividend, distribution, letter of credit or other obligation (the
"primary obligations") of another Person (the "primary obligor"),
including any obligation of that Person (i) to purchase, repurchase or
otherwise acquire such primary obligations or any security therefor,
(ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation, or (iv) otherwise to assure or
hold harmless the holder of any such primary obligation against loss in
respect thereof (each, a "Guaranty Obligation"); (b) with respect to
any Surety Instrument (other than any Letter of Credit) issued for the
account of that Person or as to which that Person is otherwise liable
for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related document
or obligation requires that payment for such materials, supplies or
other property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property is ever
made or tendered, or such services are ever performed or tendered; or
(d) in respect of any Hedging Obligation. The amount of any Contingent
Obligation shall, in the case of Guaranty Obligations, be deemed equal
to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated or
if indeterminable, the maximum reasonably anticipated liability in
respect thereof, and in the case of other Contingent Obligations, shall
be equal to the maximum reasonably anticipated liability in respect
thereof.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or by
which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Borrower (a) converts Loans of one Type to another
Type, or (b) continues as Loans of the same Type, but with a new
Interest Period, Loans having Interest Periods expiring on such date.
"Credit Extension" means and includes (a) the making of any
Loans hereunder and (b) the Issuance of any Letters of Credit
hereunder.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"Disqualified Interests" means any Capital Interests which, by
their terms (or by the terms of any security into which they are
convertible or for which they are exchangeable), or upon the happening
of any event, mature or are mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of
the holder thereof, in whole or in part, on or prior to December 31,
2001.
"Documentation Agent" means NationsBank, N.A.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Effective Amount" means (i) with respect to any Loans on any
date, the aggregate outstanding principal amount thereof after giving
effect to any Borrowings and prepayments or repayments of Loans
occurring on such date; and (ii) with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any Issuances of Letters of Credit
occurring on such date and any other changes in the aggregate amount of
the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of
Credit or any reductions in the maximum amount available for drawing
under Letters of Credit taking effect on such date. For purposes of
Section 2.07, the Effective Amount shall be determined without giving
effect to any mandatory prepayments to be made under such Section 2.07.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $500,000,000; (ii) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and
having a combined capital and surplus of at least $500,000,000,
provided that such bank is acting through a branch or agency located in
the United States; and (iii) a Person that is primarily engaged in the
business of commercial banking and that is (A) a Subsidiary of a Bank,
(B) a Subsidiary of a Person of which a Bank is a Subsidiary, or (C) a
Person of which a Bank is a Subsidiary.
"Environmental Claims" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability
or responsibility for violation of any Environmental Law, or for
release or injury to the environment.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental,
health, safety and land use matters.
"Equity Interests" means Capital Interests and all warrants,
options or other rights to acquire Capital Interests (but excluding any
debt security that is convertible into, or exchangeable for, Capital
Interests).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and regulations promulgated thereunder.
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Borrower or the General Partner
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a cessation of operations which is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) the filing of a
notice of intent to terminate, the treatment of a plan amendment as a
termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Pension Plan subject to Title IV
of ERISA; (d) a failure by the Borrower or the General Partner to make
required contributions to a Pension Plan or other Plan subject to
Section 412 of the Code; (e) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (f) the imposition of any liability under
Title IV of ERISA, other than PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Borrower or the General Partner;
or (g) an application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code with respect to
any Pension Plan.
"Eurodollar Rate" shall mean, for each Interest Period in
respect of Eurodollar Rate Loans comprising part of the same Borrowing,
an interest rate per annum (rounded to the nearest 1/16th of 1% or, if
there is no nearest 1/16th of 1%, rounded upward) determined pursuant
to the following formula:
Eurodollar Rate = LIBOR
1.00 - Eurodollar Reserve Percentage
The Eurodollar Rate shall be adjusted automatically as of the effective
date of any change in the Eurodollar Reserve Percentage.
"Eurodollar Rate Loan" means a Loan that bears interest based
on the Eurodollar Rate.
"Eurodollar Reserve Percentage" shall mean the maximum reserve
percentage (expressed as a decimal, rounded to the nearest 1/100th of
1% or, if there is no nearest 1/100th of 1%, rounded upward) in effect
on the date LIBOR for such Interest Period is determined (whether or
not applicable to any Bank) under regulations issued from time to time
by the Federal Reserve Board for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal
reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities") having a term comparable to
such Interest Period. Without limiting the effect of the foregoing, the
Eurodollar Reserve shall include any other reserves required to be
maintained by any Bank with respect to (a) any category of liabilities
that includes deposits by reference to which the Eurodollar Rate is to
be determined as provided in the definition of "Eurodollar Rate" in
this Section 1.01 or (b) any category of extensions of credit or other
assets that includes Eurodollar Rate Loans.
"Event of Default" means any of the events or circumstances
specified in Section 9.01.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"Existing Credit Agreement" means the Amended and Restated
Credit Agreement, dated as of July 31, 1996, as amended prior to the
Restatement Effective Date, among Borrower, the General Partner, the
several financial institutions from time to time party thereto, Bank of
America National Trust and Savings Association, as Agent, with
NationsBank of Texas, N.A. as named Co-Agent thereunder.
"Existing Indebtedness" means Indebtedness of the Borrower and
its Subsidiaries (other than the Obligations) and certain Indebtedness
of the General Partner with respect to which the Borrower has assumed
the General Partner's repayment obligations, in each case in existence
on the Restatement Effective Date and as more fully set forth on
Schedule 8.05.
"Existing Letters of Credit" means the letters of credit
issued and outstanding on the Restatement Effective Date which are
described in Schedule 3.03. Each of the Existing Letters of Credit is
designated on such schedule as a standby letter of credit or a
commercial documentary letter of credit.
"Facility A Commitment" means, as to each Bank, the amount set
forth opposite such Bank's name on Schedule 2.01 hereof under the
caption "Facility A Commitment," as the same may be reduced under
Section 2.05 or 2.07 or as a result of one or more assignments under
Section 11.08; provided, that the maximum aggregate Facility A
Commitment of all Banks shall not exceed $40,000,000 at any time.
"Facility A Revolving Loan" has the meaning specified in
subsection 2.01(a), and may be a Base Rate Loan or a Eurodollar Rate
Loan.
"Facility B Commitment" means, as to each Bank, the amount set
forth opposite such Bank's name on Schedule 2.01 hereof under the
caption "Facility B Commitment," as the same may be reduced under
Section 2.05 or 2.07 or as a result of one or more assignments under
Section 11.08; provided, that the maximum aggregate Facility B
Commitment of all Banks shall not exceed $50,000,000 at any time.
"Facility B Revolving Loan" has the meaning specified in
subsection 2.01(b), and may be a Base Rate Loan or a Eurodollar Rate
Loan.
"Facility C Commitment" means, as to each Bank, the amount set
forth opposite such Bank's name on Schedule 2.01 hereof under the
caption "Facility C Commitment," as the same may be reduced under
Section 2.05 or 2.07 or as a result of one or more assignments under
Section 11.08; provided, that the maximum aggregate Facility C
Commitment of all Banks shall not exceed $55,000,000 at any time.
"Facility C Revolving Loan" has the meaning specified in
subsection 2.01(c), and may be a Base Rate Loan or a Eurodollar Rate
Loan.
"FDIC" means the Federal Deposit Insurance Corporation, and
any Governmental Authority succeeding to any of its principal
functions.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the
Administrative Agent.
"Fee Letter" has the meaning specified in subsection 2.10(a).
"FCI ESOT" means the employee stock ownership trust of Xxxxxxx
Companies, Inc. organized under section 4975(e)(7) of the Code.
"Ferrellgas Partners Finance Corp." means Ferrellgas Partners
Finance Corp., a Delaware corporation and a Wholly-Owned Subsidiary of
the MLP.
"Finance Corp." means Ferrellgas Finance Corp., a Delaware
corporation and a Wholly-Owned Subsidiary of the Borrower.
"Fixed Charge Coverage Ratio" means with respect to any Person
for any period, the ratio of Consolidated Cash Flow of such Person for
such period to the Fixed Charges of such Person for such period. In the
event that such Person or any of its Subsidiaries incurs, assumes,
guarantees, redeems or repays any Indebtedness (other than revolving
credit borrowings including, with respect to the Borrower, Swingline
Loans, Facility A Revolving Loans, Facility B Revolving Loans and
Facility C Revolving Loans) subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated
but prior to the date of the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the
Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
to such incurrence, assumption, guarantee, redemption or repayment of
Indebtedness, as if the same had occurred at the beginning of the
applicable reference period. The foregoing calculation of the Fixed
Charge Coverage Ratio shall also give pro forma effect to Acquisitions
(including all mergers and consolidations), dispositions and
discontinuances of businesses or assets that have been made by such
Person or any of its Subsidiaries during the reference period or
subsequent to such reference period and on or prior to the Calculation
Date assuming that all such Acquisitions, dispositions and
discontinuances of businesses or assets had occurred on the first day
of the reference period; provided, however, that with respect to the
Borrower, (a) Fixed Charges shall be reduced by amounts attributable to
businesses or assets that are so disposed of or discontinued only to
the extent that the obligations giving rise to such Fixed Charges would
no longer be obligations contributing to the Fixed Charges of the
Borrower subsequent to the Calculation Date and (b) Consolidated Cash
Flow generated by an acquired business or asset shall be determined by
the actual gross profit (revenues minus costs of goods sold) of such
acquired business or asset during the immediately preceding number of
full fiscal quarters as are in the reference period minus the pro forma
expenses that would have been incurred by the Borrower in the operation
of such acquired business or asset during such period computed on the
basis of (i) personnel expenses for employees retained by the Borrower
in the operation of the acquired business or asset and (ii)
non-personnel costs and expenses incurred by the Borrower on a per
gallon basis in the operation of the Borrower's business at similarly
situated Borrower facilities.
"Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of (a) consolidated interest
expense of such Person for such period, whether paid or accrued, to the
extent such expense was deducted in computing Consolidated Net Income
(including amortization of original issue discounts, non-cash interest
payments, the interest component of all payments associated with
Capital Lease Obligations and net payments (if any) pursuant to Hedging
Obligations permitted hereunder), (b) commissions, discounts and other
fees and charges incurred with respect to letters of credit, (c) any
interest expense on Indebtedness of another Person that is guaranteed
by such Person or secured by a Lien on assets of such Person, and (d)
the product of (i) all cash dividend payments (and non-cash dividend
payments in the case of a Person that is a Subsidiary) on any series of
preferred stock of such Person, times (ii) a fraction, the numerator of
which is one and the denominator of which is one minus the then current
combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, determined, in each case, on a consolidated
basis and in accordance with GAAP.
"Fixed Rate Senior Notes" means the 10% Series A Fixed Rate
Senior Notes due 2001, as amended or supplemented from time to time,
issued by the Borrower and Finance Corp. pursuant to the 1994
Indenture.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"Funded Debt" means all Indebtedness of the Borrower and its
Subsidiaries excluding all Contingent Obligations of the Borrower and
its Subsidiaries under or in connection with Letters of Credit
outstanding from time to time.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination.
"General Partner" has the meaning specified in the
introductory clause hereto.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Growth-Related Capital Expenditures" means, with respect to
any Person, all capital expenditures by such Person made to improve or
enhance the existing capital assets or to increase the customer base of
such Person or to acquire or construct new capital assets (but
excluding capital expenditures made to maintain, up to the level
thereof that existed at the time of such expenditure, the operating
capacity of the capital assets of such Person as such assets existed at
the time of such expenditure).
"Guarantor" means each Person that executes a Guaranty and its
successors and assigns.
"Guaranty" means a continuing guaranty of the Obligations in
favor of the Administrative Agent on behalf of the Banks, in form and
substance satisfactory to the Administrative Agent.
"Guaranty Obligation" has the meaning specified in the
definition of "Contingent Obligation."
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and
(ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"Honor Date" has the meaning specified in subsection 3.03(c).
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services (other than trade payables entered into in the ordinary course
of business on ordinary terms); (c) all non-contingent reimbursement or
payment obligations with respect to Surety Instruments; (d) all
obligations evidenced by notes, bonds, debentures or similar
instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case
with respect to property acquired by the Person (even though the rights
and remedies of the seller or bank under such agreement in the event of
default are limited to repossession or sale of such property); (f) all
Capital Lease Obligations; (g) all Hedging Obligations; (h) all
indebtedness referred to in clauses (a) through (g) above secured by
(or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including accounts and contracts rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of
such Indebtedness; and (i) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in
clauses (a) through (h) above; provided, however, that "Indebtedness"
shall not include Synthetic Lease Obligations.
"Indemnified Liabilities" has the meaning specified in
Section 11.05.
"Indemnified Person" has the meaning specified in
Section 11.05.
"Independent Auditor" has the meaning specified in subsection
7.01(a).
"Ineligible Securities" means securities which may not be
underwritten or dealt in by member banks of the Federal Reserve System
under Section 16 of the Banking Act of 1933 (12 U.S.C. ss. 24,
Seventh), as amended.
"Insolvency Proceeding" means (a) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors, or (b) any general
assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other similar arrangement in respect of a
Person's creditors generally or any substantial portion of a Person's
creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Interest Coverage Ratio" means with respect to any Person for
any period, the ratio of Consolidated Cash Flow of such Person for such
period to Consolidated Interest Expense of such Person for such period.
The foregoing calculation of the Interest Coverage Ratio shall give pro
forma effect to Acquisitions (including all mergers and
consolidations), Asset Sales and other dispositions and discontinuances
of businesses or assets that have been made by such Person or any of
its Subsidiaries during the reference period or subsequent to such
reference period and on or prior to the date of calculation of the
Interest Coverage Ratio assuming that all such Acquisitions, Asset
Sales and other dispositions and discontinuances of businesses or
assets had occurred on the first day of the reference period; provided,
however, that with respect to the Borrower and its Subsidiaries,
Consolidated Cash Flow generated by an acquired business or asset shall
be determined by the actual gross profit (revenues minus costs of goods
sold) of such acquired business or asset during the immediately
preceding number of full fiscal quarters as in the reference period
minus the pro forma expenses that would have been incurred by the
Borrower and its Subsidiaries in the operation of such acquired
business or asset during such period computed on the basis of (i)
personnel expenses for employees retained by the Borrower and its
Subsidiaries in the operation of the acquired business or asset and
(ii) non-personnel costs and expenses incurred by the Borrower and its
Subsidiaries on a per gallon basis in the operation of the Borrower's
business at similarly situated facilities of the Borrower.
"Interest Payment Date" means, as to any Eurodollar Rate Loan,
the last day of each Interest Period applicable to such Loan and, as to
any Base Rate Loan, the first Business Day of each fiscal quarter of
the Borrower; provided, however, that if any Interest Period for a
Eurodollar Rate Loan exceeds three months, the date that is three
months after the beginning of such Interest Period and after each
Interest Payment Date thereafter is also an Interest Payment Date,
provided, further, that if there is no numerically corresponding day in
the calendar month during which an Interest Payment Date is to occur,
such Interest Payment Date shall occur on the last Business Day of such
calendar month.
"Interest Period" means, as to any Eurodollar Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as a Eurodollar Rate Loan, and ending on the date one, two,
three or six months thereafter as selected by the Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be extended
to the following Business Day unless the result of such extension would
be to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar
month at the end of such Interest Period; and
(iii) no Interest Period for any Revolving
Loan shall extend beyond the Revolving Loan Termination Date.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions.
"Issuance Date" has the meaning specified in
subsection 3.01(a).
"Issue" means, with respect to any Letter of Credit, to issue
or to extend the expiry of, or to renew or increase the amount of, such
Letter of Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
"Issuing Banks" means BofA and Paribas in their respective
capacities as issuers of one or more Letters of Credit hereunder.
"Joint Venture" means a single-purpose corporation,
partnership, joint venture or other similar legal arrangement (whether
created by contract or conducted through a separate legal entity) now
or hereafter formed by the Borrower or any of its Subsidiaries with
another Person in order to conduct a common venture or enterprise with
such Person.
"L/C Advance" means each Bank's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
"L/C Amendment Application" means an application form for
amendment of outstanding Standby Letters of Credit or Commercial
Letters of Credit as shall at any time be in use at the applicable
Issuing Bank, as such Issuing Bank shall request.
"L/C Application" means an application form for issuances of
Standby Letters of Credit or Commercial Letters of Credit as shall at
any time be in use at the applicable Issuing Bank, as such Issuing Bank
shall request.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of Facility B
Revolving Loans under subsection 3.03(c).
"L/C Commitment" means the commitment of the Issuing Banks to
Issue, and the commitment of the Banks severally to participate in,
Letters of Credit from time to time Issued or outstanding under Article
III, in an aggregate amount not to exceed on any date the lesser of
$50,000,000 and the aggregate Facility B Commitment, as such amount may
be reduced as a result of a reduction in the L/C Commitment pursuant to
Section 2.05; provided that the L/C Commitment is a part of the
aggregate Facility B Commitment, rather than a separate, independent
commitment.
"L/C Obligations" means at any time the sum of (a) the
aggregate undrawn amount of all Letters of Credit then outstanding,
plus (b) the amount of all unreimbursed drawings under all Letters of
Credit, including all outstanding L/C Borrowings, plus (c) all other
Obligations of the Borrower under or in connection with the L/C-Related
Documents, to the extent not included within clauses (a) and (b)
hereof.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the Issuing Banks'
standard form reimbursement agreements and other documents for letter
of credit issuances.
"Lending Office" means, as to any Bank, the office or offices
of such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Eurodollar Lending Office", as the case may be, on Schedule
11.02, or such other office or offices as such Bank may from time to
time notify the Borrower and the Administrative Agent.
"Letters of Credit" means, collectively, Standby Letters of
Credit and Commercial Letters of Credit.
"Level" means, at any time, Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx
0, Xxxxx 5 or Level 6 based on the amount of the Pricing Ratio at such
time. For purposes of this Agreement, the following "Levels" of Pricing
Ratio (PR) shall apply:
Level Pricing Ratio
----- -------------
Xxxxx 0 XX XX 0.00
Xxxxx 0 0.00 XX XX LT 2.75
Level 3 2.75 LT PR LT 3.25
Level 4 3.25 LT PR LT 3.75
Xxxxx 0 0.00 XX XX XX 0.00
Xxxxx 0 XX LT 4.25
The Level of the Pricing Ratio for the period from the Restatement
Effective Date to the end of the fiscal quarter of the Borrower during
which the Restatement Effective Date occurs shall be equal to Level 4.
Any change in the Level of the Pricing Ratio shall be determined by the
Administrative Agent based upon the financial information required to
be contained in the Compliance Certificates delivered by the Borrower
to the Administrative Agent with respect to each fiscal quarter of the
Borrower and shall become effective as of the first day of the fiscal
quarter following the fiscal quarter for which such Compliance
Certificate was delivered. Upon any failure of the Borrower to deliver
a Compliance Certificate for any fiscal quarter prior to 10 days after
the date on which such Compliance Certificate is required to be
delivered to the Administrative Agent, and without limiting the other
rights and remedies of the Administrative Agent and the Banks
hereunder, the Pricing Ratio shall be deemed to be Xxxxx 0 as of the
first day of the fiscal quarter beginning after the fiscal quarter for
which such Compliance Certificate was due.
"Leverage Ratio" means, with respect to any Person for any
period, the ratio of Funded Debt plus Synthetic Lease Obligations, in
each case of such Person as of the last day of such period, to
Consolidated Cash Flow of such Person for such period. In the event
that such Person or any of its Subsidiaries incurs, assumes,
guarantees, redeems or repays any Indebtedness (other than revolving
credit borrowings) subsequent to the commencement of the period for
which the Leverage Ratio is being calculated but prior to the date on
which the calculation of the Leverage Ratio is made (the "Leverage
Ratio Calculation Date"), then the Leverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, guarantee,
redemption or repayment of Indebtedness, as if the same had occurred at
the beginning of the applicable reference period. The foregoing
calculation of the Leverage Ratio shall also give pro forma effect to
Acquisitions (including all mergers and consolidations), Asset Sales
and other dispositions and discontinuances of businesses or assets that
have been made by such Person or any of its Subsidiaries during the
reference period or subsequent to such reference period and on or prior
to the Leverage Ratio Calculation Date assuming that all such
Acquisitions, Asset Sales and other dispositions and discontinuances of
businesses or assets had occurred on the first day of the reference
period; provided, however, that with respect to the Borrower and its
Subsidiaries, (a) Funded Debt shall be reduced by amounts attributable
to businesses or assets that are so disposed of or discontinued only to
the extent that the Indebtedness included within such Funded Debt would
no longer be an obligation of the Borrower or its Subsidiaries
subsequent to the Leverage Ratio Calculation Date and (b) Consolidated
Cash Flow generated by an acquired business or asset shall be
determined by the actual gross profit (revenues minus costs of goods
sold) of such acquired business or asset during the immediately
preceding number of full fiscal quarters as in the reference period
minus the pro forma expenses that would have been incurred by the
Borrower and its Subsidiaries in the operation of such acquired
business or asset during such period computed on the basis of (i)
personnel expenses for employees retained by the Borrower and its
Subsidiaries in the operation of the acquired business or asset and
(ii) non-personnel costs and expenses incurred by the Borrower and its
Subsidiaries on a per gallon basis in the operation of the Borrower's
business at similarly situated facilities of the Borrower.
"LIBOR" means the rate of interest per annum determined by the
Administrative Agent to be the arithmetic mean (rounded upward to the
next 1/16th of 1%) of the rates of interest per annum notified to the
Administrative Agent by BofA as the rates of interest at which dollar
deposits in the approximate amount of the amount of the Loan to be made
or continued as, or converted into, a Eurodollar Rate Loan by BofA and
having a maturity comparable to such Interest Period would be offered
to major banks in the London interbank market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"Lien" means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any financing
statement naming the owner of the asset to which such lien relates as
debtor, under the Uniform Commercial Code or any comparable law) and
any contingent or other agreement to provide any of the foregoing, but
not including the interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Bank to the Borrower
under Article II or Article III in the form of a Facility A Revolving
Loan, Facility B Revolving Loan, Facility C Revolving Loan, L/C Advance
or (in the case of BofA) Swingline Loan.
"Loan Documents" means this Agreement, any Notes, the Fee
Letters, the L/C-Related Documents, the Guaranties and all other
documents delivered to the Administrative Agent or any Bank in
connection herewith.
"Majority Banks" means at any time Banks then holding more
than 50% of the then aggregate unpaid principal amount of the Loans
(other than the Swingline Loans), or, if no such principal amount is
then outstanding, Banks then having more than 50% of the aggregate
Revolving Loan Commitments.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U of the FRB.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of the
Borrower or the Borrower and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of the General Partner, the Borrower
or any Subsidiary to perform under any Loan Document or otherwise to
avoid any Event of Default; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against the
Borrower or any Subsidiary of any Loan Document.
"MLP" means Ferrellgas Partners, L.P., a Delaware limited
partnership and the sole limited partner of the Borrower.
"MLP Senior Notes" means the $160,000,000 9-3/8% Senior
Secured Notes issued by the MLP and Ferrellgas Partners Finance Corp.
pursuant to the 1996 Indenture.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before
any reduction in respect of preferred stock dividends, excluding,
however, (a) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection
with (i) any asset sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions), or (ii) the disposition
of any securities or the extinguishment of any Indebtedness of such
Person or any of its Subsidiaries, and (b) any extraordinary gain (but
not loss), together with any related provision for taxes on such
extraordinary gain (but not loss); provided, however, that all costs
and expenses with respect to the redemption of the Fixed Rate Senior
Notes, including, without limitation, cash premiums, tender offer
premiums, consent payments and all fees and expenses in connection
therewith, shall be added back to the Net Income of the Borrower, the
General Partner or their Subsidiaries to the extent that they were
deducted from such Net Income in accordance with GAAP.
"Net Proceeds of Asset Sale" means the aggregate cash proceeds
received by the Borrower or any of its Subsidiaries in respect of any
Asset Sale, net of the direct costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment
banking fees, and sales commissions) and any relocation expenses
incurred as a result thereof, taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions and
any tax sharing arrangements), and amounts required to be applied to
the repayment of Indebtedness secured by a Lien on the asset or assets
the subject of such Asset Sale.
"Non-Recourse Subsidiary" means any Person that would
otherwise be a Subsidiary of the Borrower but is designated as a
Non-Recourse Subsidiary in a resolution of the Board of Directors of
the General Partner, so long as each of the following remains true: (a)
no portion of the Indebtedness or any other obligation (contingent or
otherwise) of such Person (i) is a Contingent Obligation of the
Borrower or any of its Subsidiaries, (ii) is recourse or obligates the
Borrower or any of its Subsidiaries in any way or (iii) subjects any
property or asset of the Borrower or any of its Subsidiaries, directly
or indirectly, contingently or otherwise, to satisfaction thereof, (b)
neither the Borrower nor any of its Subsidiaries has any contract,
agreement, arrangement or understanding or is subject to an obligation
of any kind, written or oral, with such Person other than on terms no
less favorable to the Borrower and its Subsidiaries than those that
might be obtained at the time from persons who are not Affiliates of
the Borrower, (c) neither the Borrower nor any of its Subsidiaries has
any obligation with respect to such Person (i) to subscribe for
additional shares of capital stock, Capital Interests or other Equity
Interests therein or (ii) maintain or preserve such Person's financial
condition or to cause such Person to achieve certain levels of
operating or other financial results, (d) such Person has no more than
$1,000 of assets at the time of such designation, (e) such Person is in
compliance with the restrictions applicable to Affiliates of the MLP
under Section 8.22 hereof and (f) such Person takes steps designed to
assure that neither the Borrower nor any of its Subsidiaries will be
liable for any portion of the Indebtedness or other obligations of such
Person, including maintenance of a corporate or limited partnership
structure and observance of applicable formalities such as regular
meetings and maintenance of minutes, a substantial and meaningful
capitalization and the use of a corporate or partnership name, trade
name or trademark not misleadingly similar to those of the Borrower.
"Note" means a promissory note executed by the Borrower in
favor of a Bank pursuant to subsection 2.02(b), in substantially the
form of Exhibit F-1, F-2 or F-3.
"Notice of Borrowing" means a notice in substantially the form
of Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document,
owing by the Borrower to any Bank, the Administrative Agent, or any
Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising including, without limitation, all
Indebtedness of the Borrower to the Banks for the payment of principal
of and interest on all outstanding Loans and all obligations of the
Borrower to the Issuing Banks for reimbursement of drawings under
Letters of Credit from time to time.
"Organization Documents" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any certificate
of determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation and, for any general or limited
partnership, the partnership agreement of such partnership and all
amendments thereto and any agreements otherwise relating to the rights
of the partners thereof.
"Other Taxes" means any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection 11.08(d).
"Partners' Equity" means the partners' equity as shown on a
balance sheet prepared in accordance with GAAP for any partnership.
"Partnership Agreement" shall mean the Agreement of Limited
Partnership of the Borrower dated July 5, 1994, as amended from time to
time in accordance with the terms of this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"Pension Plan" means a pension plan (as defined in Section
3(2) of ERISA) subject to Title IV of ERISA which the Borrower or the
General Partner sponsors, maintains, or to which it makes, is making,
or is obligated to make contributions, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five (5)
plan years.
"Permitted Acquisitions" means Acquisitions by the Borrower
and its Subsidiaries which comply with the provisions of Section 8.04.
"Permitted Investments" means (a) any Investments in Cash
Equivalents; (b) any Investments in the Borrower or in a Wholly-Owned
Subsidiary of the Borrower that is a Guarantor; (c) Investments by the
Borrower or any Subsidiary of the Borrower in a Person, if as a result
of such Investment (i) such Person becomes a Wholly-Owned Subsidiary of
the Borrower and a Guarantor or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Borrower
or a Wholly-Owned Subsidiary of the Borrower that is a Guarantor; and
(d) other Investments in Non-Recourse Subsidiaries of the Borrower that
do not exceed $30 million in the aggregate.
"Permitted Liens" has the meaning specified in Section 8.01.
"Permitted Refinancing Indebtedness" means any Indebtedness of
the Borrower or any Subsidiary of the Borrower issued in exchange for,
or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund other Indebtedness of the Borrower or any of
its Subsidiaries; provided that (a) the principal amount of such
Indebtedness does not exceed the principal amount of the Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded (the
"Prior Indebtedness") (plus the amount of reasonable expenses incurred
in connection therewith), and the effective interest rate per annum on
such Indebtedness does not or is not likely to exceed the effective
interest rate per annum of the Prior Indebtedness, as determined by the
Administrative Agent in its sole discretion; (b) such Indebtedness has
a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of the Prior Indebtedness; (c) if the
Prior Indebtedness is subordinated to the Obligations, such
Indebtedness is subordinated to the Obligations on the terms and
conditions set forth on part II of Schedule 8.05; and (d) such
Indebtedness is incurred by the Borrower or the Subsidiary who is the
obligor on the Prior Indebtedness.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association,
Joint Venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section
3(3) of ERISA) which the Borrower sponsors or maintains or to which the
Borrower or the General Partner makes, is making, or is obligated to
make contributions and includes any Pension Plan.
"Pricing Ratio" means, as of the last day of each fiscal
quarter of the Borrower, the Leverage Ratio for the fiscal period
consisting of such fiscal quarter of the Borrower and the three
immediately preceding fiscal quarters of the Borrower.
"Pro Rata Share" means, as to any Bank at any time, the
percentage set forth on Schedule 2.01 hereto as its "Pro Rata Share,"
as such amount may be adjusted by assignments under Section 11.08.
"Related Party" means (i) the spouse or any lineal descendant
of Xxxxx X. Xxxxxxx, (ii) any trust for his benefit or for the benefit
of his spouse or any such lineal descendants, (iii) any corporation,
partnership or other entity in which Xxxxx X. Xxxxxxx and/or such other
Persons referred to in the foregoing clauses (i) and (ii) are the
direct record and beneficial owners of all of the voting and nonvoting
Equity Interests, (iv) the FCI ESOT or (v) any participant in the FCI
ESOT whose ESOT account has been allocated shares of Xxxxxxx Companies,
Inc.
"Reportable Event" means any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder, other than any
such event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"Responsible Officer" means the chief executive officer or the
president of the General Partner or any other officer having
substantially the same authority and responsibility to act for the
General Partner on behalf of the Borrower; or, with respect to actions
taken or to be taken under Articles II and III and compliance with
financial covenants, the chief financial officer or the treasurer of
the General Partner or any other officer having substantially the same
authority and responsibility to act for the General Partner on behalf
of the Borrower or any other employee of the General Partner designated
in a certificate of a Responsible Officer to have authority in such
matters.
"Restatement Effective Date" means the later to occur of (a)
the first date on which all conditions precedent set forth in Section
5.01 and Section 5.02 are satisfied or waived by all Banks (or, in the
case of subsection 5.01(f), waived by the Persons entitled to receive
such payments) and (b) August 3, 1998.
"Revolving Loan Commitments" means, as to each Bank, the
Facility A Commitment, the Facility B Commitment and the Facility C
Commitment of such Bank.
"Revolving Loans" means, collectively, the Facility A
Revolving Loans, the Facility B Revolving Loans and the Facility C
Revolving Loans.
"Revolving Loan Termination Date" means the earlier of (a)
July 2, 2001 (or such later date to which the Revolving Loan
Termination Date may be extended pursuant to subsection 2.08(d) of this
Agreement) and (b) the date on which the Revolving Loan Commitments
shall have been terminated pursuant to this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Significant Subsidiary" means any Subsidiary of the Borrower
that would be a "significant subsidiary" as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities Act of
1933, as such Regulation is in effect on the date hereof.
"Solvent" shall mean, with respect to any Person on any date,
that on such date (a) the fair value of the property of such Person is
greater than the fair value of the liabilities (including, without
limitation, contingent liabilities) of such Person, (b) such Person
does not intend to, and does not believe that it will, incur debts and
liabilities beyond such Person's ability to pay as such debts and
liabilities mature and (c) such Person is not engaged in business or a
transaction, and is not about to engage in a business or a transaction,
for which such Person's property would constitute an unreasonably small
capital.
"Standby Letters of Credit" means standby letters of credit
Issued by an Issuing Bank pursuant to Article III.
"Standby Letter of Credit Risk Participation Percentage"
means, as of any date and based upon the Level of the Pricing Ratio on
such date, the percent per annum (expressed in basis points) set forth
below opposite such Level:
Standby Letter of Credit Risk
Pricing Ratio Participation Percentage
------------- ------------------------
Level 1 42.50 b.p.
Level 2 50.00 b.p.
Level 3 60.00 b.p.
Level 4 80.00 b.p.
Level 5 110.00 b.p.
Level 6 137.50 b.p.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than
50% of the total voting power of shares of Capital Interests entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof (or, in the case of
a limited partnership, more than 50% of either the general partners'
Capital Interests or the limited partners' Capital Interests) is at the
time owned or controlled, directly or indirectly, by such Person or one
or more of the other Subsidiaries of that Person or a combination
thereof. Notwithstanding the foregoing, any Subsidiary of the Borrower
that is designated a Non-Recourse Subsidiary pursuant to the definition
thereof shall, for so long as all of the statements in the definition
thereof remain true, not be deemed a Subsidiary of the Borrower.
"Surety Instruments" means all letters of credit (including
standby and commercial), bankers' acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"Swingline Loan" has the meaning specified in Section 2.15.
"Synthetic Lease" means each arrangement, however described,
under which the obligor accounts for its interest in the property
covered thereby under GAAP as lessee of a lease which is not a Capital
Lease and accounts for its interest in the property covered thereby for
Federal income tax purposes as the owner.
"Synthetic Lease Interest Component" means, with respect to
any Person for any period, the portion of rent paid or payable (without
duplication) for such period under Synthetic Leases of such Person that
would be treated as interest in accordance with Financial Accounting
Standards Board Statement No. 13 if such Synthetic Leases were treated
as Capital Leases under GAAP.
"Synthetic Lease Obligation" means, as to any Person with
respect to any Synthetic Lease at any time of determination, the amount
of the liability of such Person in respect of such Synthetic Lease that
would (if such lease was required to be classified and accounted for as
a capital lease on a balance sheet of such Person in accordance with
GAAP) be required to be capitalized on the balance sheet of such Person
at such time.
"Synthetic Lease Principal Component" means, with respect to
any Person for any period, the portion of rent (exclusive of the
Synthetic Lease Interest Component) paid or payable (without
duplication) for such period under Synthetic Leases of such Person that
was deducted in calculating Consolidated Net Income of such Person for
such period.
"Taxes" means any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Bank and the
Administrative Agent, such taxes (including income taxes or franchise
taxes) as are imposed on or measured by each Bank's net income by the
jurisdiction (or any political subdivision thereof) under the laws of
which such Bank or the Administrative Agent, as the case may be, is
organized or maintains a lending office.
"Type" means, with respect to any Loan, whether such Loan is a
Base Rate Loan or a Eurodollar Rate Loan.
"UCP" has the meaning specified in Section 3.09.
"Unfunded Pension Liability" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Plan's assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to Section 412
of the Code for the applicable plan year.
"United States" and "U.S." each means the United States of
America.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a)
the sum of the products obtained by multiplying (x) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect thereof, by (y) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment, by (b) the then outstanding principal amount of such
Indebtedness; provided, however, that with respect to any revolving
Indebtedness, the foregoing calculation of Weighted Average Life to
Maturity shall be determined based upon the total available commitments
and the required reductions of commitments in lieu of the outstanding
principal amount and the required payments of principal, respectively.
"Wholly-Owned Subsidiary" means a Subsidiary of which all of
the outstanding Capital Interests or other ownership interests (other
than directors' qualifying shares) or, in the case of a limited
partnership, all of the partners' Capital Interests (other than up to a
1% general partner interest), is owned, beneficially and of record, by
the Borrower, a Wholly-Owned Subsidiary of the Borrower or both.
1.02 Other Interpretive Provisions
(a) The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar
words refer to this Agreement as a whole and not to any particular provision of
this Agreement; and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and
means "including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references
to agreements (including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments and other modifications thereto,
but only to the extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any statute
or regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting the
statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and shall
each be performed in accordance with their terms.
(g) Unless otherwise expressly provided herein, financial
calculations applicable to the Borrower shall be made on a consolidated basis.
(h) This Agreement and the other Loan Documents are the result
of negotiations among and have been reviewed by counsel to the Administrative
Agent, the Borrower and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Banks or the Administrative
Agent merely because of the Administrative Agent's or Banks' involvement in
their preparation.
1.03 Accounting Principles
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied. In the event that GAAP changes
during the term of this Agreement such that the covenants contained in Section
7.12 would then be calculated in a different manner or with different
components, (i) the Borrower and the Banks agree to amend this Agreement in such
respects as are necessary to conform those covenants as criteria for evaluating
Borrower's financial condition to substantially the same criteria as were
effective prior to such change in GAAP and (ii) the Borrower shall be deemed to
be in compliance with the covenants contained in Section 7.12 during the 90-day
period following any such change in GAAP if and to the extent that the Borrower
would have been in compliance therewith under GAAP as in effect immediately
prior to such change.
(b) Except as otherwise specified, references herein to
"fiscal year" and "fiscal quarter" refer to such fiscal periods of the Borrower.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Revolving Loan Commitments
(a) Facility A Revolving Loans.
(i) Each Bank severally agrees, on the terms and
subject to the conditions set forth herein, to make loans to the
Borrower (each such loan, a "Facility A Revolving Loan") from time to
time on any Business Day during the period from the Restatement
Effective Date to the Revolving Loan Termination Date, in an aggregate
principal amount not to exceed at any time outstanding such Bank's
Facility A Commitment as in effect from time to time; provided,
however, that, after giving effect to any Borrowing of Facility A
Revolving Loans, the Effective Amount of all outstanding Facility A
Revolving Loans shall not at any time exceed the combined Facility A
Commitments, and the Effective Amount of the Facility A Revolving Loans
of any Bank shall not at any time exceed such Bank's Facility A
Commitment.
(ii) Within the limits of each Bank's Facility A
Commitment and on the other terms and subject to the other conditions
hereof, the Borrower may borrow under this subsection 2.01(a), prepay
under Section 2.06 and reborrow under this subsection 2.01(a);
provided, that the Borrower shall cause the aggregate outstanding
principal amount of Facility A Revolving Loans to be reduced to zero
for at least one period of 30 consecutive days during each fiscal year
of the Borrower, commencing with its fiscal year beginning August 1,
1998.
(b) Facility B Revolving Loans and Letters of Credit. (i) Each
Bank severally agrees, on the terms and subject to the conditions set
forth herein, to make loans to the Borrower (each such loan, a
"Facility B Revolving Loan") from time to time on any Business Day
during the period from the Restatement Effective Date to the Revolving
Loan Termination Date, in an aggregate principal amount not to exceed
at any time outstanding such Bank's Facility B Commitment as in effect
from time to time; provided, however, that, after giving effect to any
Borrowing of Facility B Revolving Loans, the sum of the Effective
Amount of all outstanding Facility B Revolving Loans plus the Effective
Amount of all L/C Obligations shall not at any time exceed the combined
Facility B Commitments, and the Effective Amount of the Facility B
Revolving Loans of any Bank plus the participation of such Bank in the
Effective Amount of all L/C Obligations shall not at any time exceed
such Bank's Facility B Commitment.
(ii) Within the limits of each Bank's Facility B
Commitment and on the other terms and subject to the other conditions
hereof, the Borrower may borrow under this subsection 2.01(b), prepay
under Section 2.06 and reborrow under this subsection 2.01(b).
(iii) As a subfacility of the Banks' Facility B
Commitments, the Borrower may request the Issuing Banks to Issue
Letters of Credit from time to time pursuant to Article III. On the
Restatement Effective Date, all Existing Letters of Credit shall be
Letters of Credit hereunder and shall constitute usage of the Facility
B Commitment under this Agreement.
(c) Facility C Revolving Loans and Swingline Loans.
(i) Each Bank severally agrees, on the terms and
subject to the conditions set forth herein, to make loans to the
Borrower (each such loan, a "Facility C Revolving Loan") from time to
time on any Business Day during the period from the Restatement
Effective Date to the Revolving Loan Termination Date, in an aggregate
principal amount not to exceed at any time outstanding such Bank's
Facility C Commitment as in effect from time to time; provided,
however, that, after giving effect to any Borrowing of Facility C
Revolving Loans, the sum of the Effective Amount of all outstanding
Facility C Revolving Loans plus the Effective Amount of all Swingline
Loans shall not at any time exceed the combined Facility C Commitments,
and the Effective Amount of the Facility C Revolving Loans of any Bank
plus such Bank's Pro Rata Share of the Effective Amount of all
outstanding Swingline Loans shall not at any time exceed such Bank's
Facility C Commitment. On the Restatement Effective Date, the aggregate
outstanding principal amount of the Facility A Revolving Loans,
Facility C Revolving Loans and Swingline Loans, in each case under (and
as defined in) the Existing Credit Agreement shall be automatically
deemed to be Facility C Revolving Loans under this Agreement for all
purposes of this Agreement and the other Loan Documents (including for
the purpose of determining usage of the Facility C Commitment under
this Agreement as set forth above).
(ii) Within the limits of each Bank's Facility C
Commitment and on the other terms and subject to the other conditions
hereof, the Borrower may borrow under this subsection 2.01(c), prepay
under Section 2.06 and reborrow under this subsection 2.01(c).
(iii) In addition, the Borrower may request BofA to
make Swingline Loans to the Borrower from time to time pursuant to
Section 2.15.
2.02 Loan Accounts. (a) The Loans made by each Bank and the Letters of
Credit Issued by the Issuing Banks shall be evidenced by one or more accounts or
records maintained by such Bank or Issuing Bank, as the case may be, in the
ordinary course of business. The accounts or records maintained by the
Administrative Agent, the Issuing Banks and each Bank shall be conclusive absent
manifest error of the amount of the Loans made by the Banks to the Borrower and
the Letters of Credit Issued for the account of the Borrower, and the interest
and payments thereon. Any failure so to record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrower hereunder
to pay any amount owing with respect to the Loans or any Letter of Credit.
(b) Upon the request of any Bank made through the
Administrative Agent, the Loans made by such Bank may be evidenced by one or
more Notes, instead of loan accounts. Each such Bank shall endorse on the
schedules annexed to its Note(s) the date, amount and maturity of each Loan made
by it and the amount of each payment of principal made by the Borrower with
respect thereto. Each such Bank is irrevocably authorized by the Borrower to
endorse its Note(s) and each Bank's record shall be conclusive absent manifest
error; provided, however, that the failure of a Bank to make, or an error in
making, a notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any such Note to such
Bank.
2.03 Provedure for Borrowing. (a) Each Borrowing of Loans (other than
Swingline Loans) shall be made upon the Borrower's irrevocable written
notice delivered to the Administrative Agent in the form of a Notice of
Borrowing (which notice must be received by the Administrative Agent prior
to 9:00 a.m. San Francisco time (i) three Business Days prior to the
requested Borrowing Date, in the case of Eurodollar Rate Loans, and (ii)
one Business Day prior to the requested Borrowing Date, in the case of Base
Rate Loans, specifying:
(A) the amount of the Borrowing, which shall
be in an aggregate minimum amount of $3,000,000 or any
multiple of $1,000,000 in excess thereof for Eurodollar Loans,
or $1,000,000 or any multiple of $100,000 in excess thereof
for Base Rate Loans;
(B) the requested Borrowing
Date, which shall be a Business Day;
(C) the Type and Class of
Loans comprising the Borrowing; and
(D) the duration of the Interest Period
applicable to any Eurodollar Rate Loans included in such
notice. If the Notice of Borrowing fails to specify the
duration of the Interest Period for any Borrowing comprised of
Eurodollar Rate Loans, such Interest Period shall be one
month.
(b) The Administrative Agent will promptly notify each Bank of
the Administrative Agent's receipt of any Notice of Borrowing and of the amount
of such Bank's Pro Rata Share of that Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of
each Borrowing available to the Administrative Agent for the account of the
Borrower at the Administrative Agent's Payment Office by 11:00 a.m. San
Francisco time on the Borrowing Date requested by the Borrower in funds
immediately available to the Administrative Agent. The proceeds of all such
Loans will then be made available to the Borrower by the Administrative Agent at
such office by crediting the account of the Borrower on the books of BofA with
the aggregate of the amounts made available to the Administrative Agent by the
Banks and in like funds as received by the Administrative Agent.
(d) After giving effect to any Borrowing, there may not be
more than ten different Interest Periods in effect with respect to Eurodollar
Rate Loans.
. (a) The Borrower may, upon irrevocable written notice to the
Administrative Agent in accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable Interest
Period, in the case of Eurodollar Rate Loans, to convert any such Loans
(or any part thereof in an amount not less than $3,000,000, or that is
in an integral multiple of $1,000,000 in excess thereof) into Loans of
the other Type; or
(ii) elect as of the last day of the applicable
Interest Period, to continue as Eurodollar Rate Loans any Loans having
Interest Periods expiring on such day (or any part thereof in an amount
not less than $3,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof);
provided, that if at any time the aggregate amount of Eurodollar Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $3,000,000, such Eurodollar Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Borrower to continue such Loans as, and convert such Loans into,
Eurodollar Rate Loans shall terminate.
(b) The Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not later
than 9:00 a.m. San Francisco time at least (i) three Business Days in advance of
the Conversion/Continuation Date, if the Loans are to be converted into or
continued as Eurodollar Rate Loans; and (ii) one Business Day in advance of the
Conversion/Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(A) the proposed Conversion/
Continuation Date;
(B) the aggregate amount and
Class of Loans to be converted or renewed;
(C) the Type of Loans resultin
from the proposed conversion or continuation; and
(D) other than in the case of conversions
into Base Rate Loans, the duration of the requested Interest
Period.
(c) If upon the expiration of any Interest Period applicable
to Eurodollar Rate Loans, the Borrower has failed to select a new Interest
Period within the time period specified in subsection 2.04(b) to be applicable
to such Eurodollar Rate Loans, or if any Default or Event of Default then
exists, the Borrower shall be deemed to have elected to convert such Eurodollar
Rate Loans into Base Rate Loans effective as of the expiration date of such
Interest Period.
(d) The Administrative Agent will promptly notify each Bank of
its receipt of a Notice of Conversion/Continuation, or, if no notice is provided
by the Borrower within the time period specified in subsection 2.04(b), the
Administrative Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Loans with
respect to which the notice was given held by each Bank.
(e) Unless the Majority Banks otherwise agree, during the
existence of a Default or Event of Default, the Borrower may not elect to have a
Loan converted into or continued as a Eurodollar Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than ten different Interest Periods in effect.
2.05 Voluntary Termination or Reduction of Revolving Loan
Commitments
(a) The Borrower may, not later than 11:00 a.m. San Francisco
time at least three Business Days prior to its effective date by notice to the
Administrative Agent, terminate or permanently reduce the Facility A Commitments
by an aggregate minimum amount of $5,000,000 or any multiple of $5,000,000 in
excess thereof; unless, after giving effect thereto and to any prepayments of
Loans made on the effective date thereof, the Effective Amount of all Facility A
Revolving Loans would exceed the amount of the combined Facility A Commitments
then in effect.
(b) The Borrower may, not later than 11:00 a.m. San Francisco
time at least three Business Days prior to its effective date by notice to the
Administrative Agent, terminate or permanently reduce the Facility B Commitments
by an aggregate minimum amount of $5,000,000 or any multiple of $5,000,000 in
excess thereof; unless, after giving effect thereto and to any prepayments of
Loans made on the effective date thereof, (i) the Effective Amount of all
Facility B Revolving Loans and L/C Obligations together would exceed the amount
of the combined Facility B Commitments then in effect, or (ii) the Effective
Amount of all L/C Obligations then outstanding would exceed the L/C Commitment.
(c) The Borrower may, not later than 11:00 a.m. San Francisco
time at least three Business Days prior to its effective date by notice to the
Administrative Agent, terminate or permanently reduce the Facility C Commitments
by an aggregate minimum amount of $5,000,000 or any multiple of $5,000,000 in
excess thereof; unless, after giving effect thereto and to any prepayments of
Loans made on the effective date thereof, the Effective Amount of all Facility C
Revolving Loans and Swingline Loans together would exceed the amount of the
combined Facility C Commitments then in effect.
(d) Once reduced in accordance with this Section, the
Commitments may not be increased. Any reduction of the Revolving Loan
Commitments shall be applied to each Bank according to its Pro Rata Share.
. (a) Subject to Section 4.04, the Borrower may, at any time or from
time to time, not later than 9:00 a.m. San Francisco time at least three (3)
Business Days prior to its effective date by irrevocable notice to the
Administrative Agent, in the case of Eurodollar Rate Loans, and not later than
9:00 a.m. San Francisco time at least one (1) Business Day prior to its
effective date by irrevocable notice to the Administrative Agent, in the case of
Base Rate Loans, ratably prepay Loans in whole or in part, in minimum amounts of
$3,000,000 or any multiple of $1,000,000 in excess thereof, for Eurodollar Rate
Loans, and in minimum amounts of $1,000,000 or any multiple of $100,000 in
excess thereof, for Base Rate Loans.
(b) Any such notice of prepayment shall specify the date and
amount of such prepayment and the Type(s) and, with respect to voluntary
prepayments occurring on or prior to the Revolving Loan Termination Date, the
Class(es) of Loans to be prepaid. Prepayments of Base Rate Loans of any Class
may be made hereunder on any Business Day. Prepayments of Eurodollar Rate Loans
of any Class may be made hereunder only on the last day of any applicable
Interest Period; provided, that prepayments of Eurodollar Rate Loans may be made
on a day other than the last day of the applicable Interest Period only with
payment by the Borrower of the aggregate amount of any associated funding losses
of any affected Banks pursuant to Section 4.04. The Administrative Agent will
promptly notify each Bank of its receipt of any such notice, and of such Bank's
Pro Rata Share of such prepayment.
(c) If any such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together, in the case of a
Eurodollar Rate Loan, with accrued interest to each such date on the amount
prepaid and any amounts required pursuant to Section 4.04.
. (a) Subject to Section 4.04, if on any date on or prior to the
Revolving Loan Termination Date the Effective Amount of all Facility A Revolving
Loans then outstanding exceeds the combined Facility A Commitments, the Borrower
shall immediately, and without notice or demand, prepay the outstanding
principal amount of Facility A Revolving Loans by an aggregate amount equal to
the applicable excess.
(b) If on any date the Effective Amount of L/C Obligations
exceeds the L/C Commitment, the Borrower shall Cash Collateralize on such date
the outstanding Letters of Credit in an amount equal to the excess of the
aggregate maximum amount then available to be drawn under the Letters of Credit
over the L/C Commitment. Subject to Section 4.04, if on any date after giving
effect to any Cash Collateralization made on such date pursuant to the preceding
sentence, the Effective Amount of all Facility B Revolving Loans then
outstanding plus the Effective Amount of all L/C Obligations then outstanding
exceeds the combined Facility B Commitments, the Borrower shall immediately, and
without notice or demand, prepay the outstanding principal amount of the
Facility B Revolving Loans and any L/C Advances by an aggregate amount equal to
the applicable excess.
(c) Subject to Section 4.04, if on any date on or prior to the
Revolving Loan Termination Date the Effective Amount of all Facility C Revolving
Loans then outstanding plus the Effective Amount of all Swingline Loans then
outstanding exceeds the combined Facility C Commitments, the Borrower shall
immediately, and without notice or demand, prepay the outstanding principal
amount of the Facility C Revolving Loans and Swingline Loans by an aggregate
amount equal to the applicable excess.
(d) The Borrower shall immediately, and without notice or
demand, prepay the Obligations in full, including, without limitation, the
aggregate principal amount of all outstanding Loans, all accrued and unpaid
interest thereon and all amounts payable under Section 4.04 hereof, and all of
the Revolving Loan Commitments shall be automatically reduced to zero, in each
case on the 30th day after any Change of Control shall have occurred and be
continuing.
(e) If and to the extent that the Revolving Loan Commitments
are not equal to zero on the Revolving Loan Termination Date, such Revolving
Loan Commitments shall be automatically reduced to zero on the Revolving Loan
Termination Date.
. 08 Repayment
(a) Revolving Loans. The Borrower shall repay to the Banks in
full on the Revolving Loan Termination Date the aggregate principal amount of
Revolving Loans outstanding on such date together with all accrued and unpaid
interest thereon.
(b) Swingline Loans. The Borrower shall repay to BofA in full
on the Revolving Loan Termination Date the aggregate principal amount of
Swingline Loans outstanding on such date, together with all accrued and unpaid
interest thereon.
(c) Extension of Revolving Loan Termination Date. Each Bank,
at its sole option and in its sole discretion, upon the written request of
Borrower given to Administrative Agent and each Bank not more than 90 days nor
less than 60 days prior to the Revolving Loan Termination Date at any time in
effect, may elect to extend such Revolving Loan Termination Date by a period of
one year. Within 30 days following receipt of such request, each Bank shall give
notice to Borrower and Administrative Agent of its decision to extend or not to
extend such Revolving Loan Termination Date. If, in accordance with the
immediately preceding sentence, all Banks shall have elected to extend such
Revolving Loan Termination Date, the Revolving Loan Termination Date shall be
extended by a period of one year. In the event that any Bank notifies Borrower
and Administrative Agent that it will not extend the Revolving Loan Termination
Date then in effect, or if any Bank fails to notify Borrower and Administrative
Agent of its decision to extend or not to extend such Revolving Loan Termination
Date, in either case within the applicable 30 day period referred to above, such
Revolving Loan Termination Date shall not be extended and the Revolving Loan
Termination Date then in effect shall be the Revolving Loan Termination Date for
all purposes of this Agreement.
. (a) Each Loan shall bear interest on the outstanding principal amount
thereof from the applicable Borrowing Date at a rate per annum equal to the
Eurodollar Rate (other than with respect to Swingline Loans) or the Base Rate,
as the case may be (and subject to the Borrower's right to convert to other
Types of Loans under Section 2.04), plus the Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on each
applicable Interest Payment Date. Interest in all cases shall also be paid on
the date of any prepayment of Loans under subsection 2.07(d) and interest on
Eurodollar Rate Loans shall also be paid on the date of prepayment of Loans in
all other circumstances under Section 2.06 or 2.07, in each case for the portion
of the Loans so prepaid and upon payment (including prepayment) in full thereof
and, during the existence of any Event of Default, interest shall be paid on
demand of the Administrative Agent at the request or with the consent of the
Majority Banks.
(c) Notwithstanding subsection (a) of this Section, while any
Event of Default exists or after acceleration, the Borrower shall pay interest
(after as well as before entry of judgment thereon to the extent permitted by
law) on the principal amount of all outstanding Obligations, at a rate per annum
which is determined by adding 2% per annum to the Applicable Margin then in
effect for such Loans and, in the case of Obligations not subject to an
Applicable Margin, including, without limitation, all letter of credit and
commitment fees provided herein, at a rate per annum equal to the Base Rate plus
the Applicable Margin plus 2%; provided, however, that, on and after the
expiration of any Interest Period applicable to any Eurodollar Rate Loan
outstanding on the date of occurrence of such Event of Default or acceleration,
the principal amount of such Loan shall, during the continuation of such Event
of Default or after acceleration, bear interest at a rate per annum equal to the
Base Rate plus the Applicable Margin plus 2%.
(d) Anything herein to the contrary notwithstanding, the
obligations of the Borrower to any Bank hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Bank would be contrary to
the provisions of any law applicable to such Bank limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such Bank,
and in such event the Borrower shall pay such Bank interest at the highest rate
permitted by applicable law.
. In addition to certain fees described in Section 3.08:
(a) Arrangement, Agency Fees. The Borrower shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall pay an
agency fee to the Administrative Agent for the Administrative Agent's own
account, as required by the letter agreement (the "Fee Letter") between the
Borrower and the Arranger and Administrative Agent dated May 19, 1998.
(b) Commitment Fees. The Borrower shall pay to the
Administrative Agent for the account of each Bank (a) a commitment fee with
respect to such Bank's Facility A Commitment equal to the Commitment Fee Rate
per annum times the actual daily amount by which such Bank's Facility A
Commitment exceeded the sum of the aggregate Effective Amount of its Facility A
Revolving Loans, (b) a commitment fee with respect to such Bank's Facility B
Commitment equal to the Commitment Fee Rate per annum times the actual daily
amount by which such Bank's Facility B Commitment exceeded the aggregate
Effective Amount of its Facility B Revolving Loans plus its Pro Rata Share of
the Effective Amount of L/C Obligations and (c) a commitment fee with respect to
such Bank's Facility C Commitment equal to the Commitment Fee Rate per annum
times the actual daily amount by which such Bank's Facility C Commitment
exceeded the aggregate Effective Amount of its Facility C Revolving Loans. Such
commitment fees shall accrue from the Restatement Effective Date to the
Revolving Loan Termination Date and shall be due and payable quarterly in
arrears on the first Business Day of each fiscal quarter following the quarter
for which payment is to be made, commencing on the Restatement Effective Date
through the Revolving Loan Termination Date, with the final payment to be made
on the Revolving Loan Termination Date; provided that, in connection with the
full termination of Revolving Loan Commitments under Section 2.05 or Section
2.07, the accrued commitment fees calculated for the period ending on such date
shall also be paid on the date of such termination. The commitment fees provided
in this subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more conditions in
Article V are not met.
(c) Participation Fees. On the Restatement
Effective Date, the Borrower shall pay to the Administrative Agent for the
account of each Bank a participation fee in an amount equal to (i) 0.075 percent
multiplied by (ii) the sum of such Bank's Revolving Loan Commitments.
. (a) All computations of interest for Base Rate Loans when the Base
Rate is determined by BofA's "reference rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue during
each period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) Each determination of an interest rate by the
Administrative Agent shall be conclusive and binding on the Borrower and the
Banks in the absence of manifest error.
. (a) All payments to be made by the Borrower under any Loan Document
shall be made without set-off, recoupment, counterclaim or other defense. Except
as otherwise expressly provided herein, all payments by the Borrower shall be
made to the Administrative Agent for the account of the Banks at the
Administrative Agent's Payment Office, and shall be made in dollars and in
immediately available funds, no later than 10:00 a.m. (San Francisco time) on
the date specified herein. The Administrative Agent will promptly distribute to
each Bank its Pro Rata Share (or other applicable share as expressly provided
herein) of such payment in like funds as received. Any payment received by the
Administrative Agent later than 10:00 a.m. (San Francisco time) shall be deemed
to have been received on the following Business Day and any applicable interest
or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
Borrower prior to the date on which any payment is due to the Banks that the
Borrower will not make such payment in full as and when required, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Borrower has not made such
payment in full to the Administrative Agent, each Bank shall repay to the
Administrative Agent on demand such amount distributed to such Bank, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Bank until the date repaid.
(d) Unless a due date is otherwise specified herein, the due
date for any Obligation shall be 30 days after demand therefor by the Person to
whom the Obligation is owed.
. (a) Unless the Administrative Agent receives notice from a Bank on or
prior to the Restatement Effective Date or, with respect to any Borrowing after
the Restatement Effective Date, by 2:00 p.m. (San Francisco time) on the
Business Day prior to the date of such Borrowing, that such Bank will not make
available as and when required hereunder to the Administrative Agent for the
account of the Borrower the amount of that Bank's Pro Rata Share of the
Borrowing, the Administrative Agent may assume that each Bank has made such
amount available to the Administrative Agent in immediately available funds on
the Borrowing Date and the Administrative Agent may (but shall not be so
required), in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent any Bank shall not have
made its full amount available to the Administrative Agent in immediately
available funds and the Administrative Agent in such circumstances has made
available to the Borrower such amount, that Bank shall on the Business Day
following such Borrowing Date make such amount available to the Administrative
Agent, together with interest at the Federal Funds Rate for each day during such
period. A notice of the Administrative Agent submitted to any Bank with respect
to amounts owing under this subsection (a) shall be conclusive, absent manifest
error. If such amount is so made available, such payment to the Administrative
Agent shall constitute such Bank's Loan on the date of Borrowing for all
purposes of this Agreement. If such amount is not made available to the
Administrative Agent on the Business Day following the Borrowing Date, the
Administrative Agent will notify the Borrower of such failure to fund and, upon
demand by the Administrative Agent, the Borrower shall pay such amount to the
Administrative Agent for the Administrative Agent's account, together with
interest thereon for each day elapsed since the date of such Borrowing, at a
rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing
Date shall not relieve any other Bank of any obligation hereunder to make a Loan
on such Borrowing Date, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on any Borrowing Date.
If, other than as expressly provided elsewhere herein, any Bank shall
obtain on account of the Loans made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its Pro Rata Share, such Bank shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to cause such
purchasing Bank to share the excess payment pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Borrower agrees
that any Bank so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Bank were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Banks following
any such purchases or repayments.
..15 Discretionary Swingline Loans
(a) From time to time, subject to the conditions set forth
below, at the request of the Borrower, made through the Administrative Agent as
set forth below, BofA in its sole and absolute discretion may make short-term
loans to the Borrower not to exceed in the aggregate at any one time outstanding
the principal sum of $20,000,000, to be used by the Borrower to cover
overdrafts, for cash management purposes, or for other general working capital
needs of the Borrower (each, a "Swingline Loan"). The availability of Swingline
Loans is conditioned on the satisfaction of each of the following conditions:
(i) it shall be in the sole and absolute discretion of BofA, on each occasion
that a Swingline Loan is requested, whether to make such Swingline Loan; (ii)
each Swingline Loan shall bear interest from the time made until the time
repaid, or until the time, if any, that such Swingline Loan is converted into a
Base Rate Loan as provided below, at the rate(s) from time to time applicable to
Base Rate Loans hereunder; (iii) at the time of making of any Swingline Loan,
the sum of the Effective Amount of all outstanding Swingline Loans plus the
Effective Amount of all outstanding Facility C Revolving Loans, without
duplication, shall not exceed the aggregate Facility C Commitment; (iv) each
Swingline Loan, when made, all interest accrued thereon, and all reimbursable
costs and expenses incurred or payable in connection therewith, shall constitute
an Obligation of Borrower hereunder; and (v) each request for a Swingline Loan
from BofA pursuant to this Section 2.15 shall be made by the Borrower to the
Administrative Agent, shall be funded by BofA through the Administrative Agent,
and shall be repaid by the Borrower through the Administrative Agent (in order
that the Administrative Agent may keep an accurate record of the outstanding
balance at any time of Swingline Loans so as to monitor compliance with the
terms and provisions hereof), and each such request shall be in writing unless
the Administrative Agent in its sole discretion accepts an oral or telephonic
request. Each Swingline Loan shall be made upon the Borrower's irrevocable
written notice delivered to the Administrative Agent substantially in the form
of a Notice of Borrowing (which notice must be received by the Administrative
Agent prior to 1:00 p.m. (San Francisco time) on the requested date of such
Swingline Loan, specifying:
(i) the amount of the Swingline Loan,
which shall be in a minimum amount of $200,000 or any multiple of $100,000 in
excess thereof; and
(ii) the requested date of such Swingline
Loan, which shall be a Business Day;
(b) If any Swingline Loan made pursuant to this Section 2.15,
and in compliance with the conditions set forth in the immediately preceding
paragraph of this Section 2.15, is not repaid by the Borrower on or before the
seventh calendar day following the day that it was funded by BofA, BofA shall
have the right in BofA's sole and absolute discretion, by giving notice to the
Borrower and the Banks, to cause such Swingline Loan automatically upon the
giving of such notice to be converted into a Facility C Revolving Loan which is
a Base Rate Loan, and upon receipt of such notice each Bank shall fund to the
Administrative Agent, for the account of BofA, such Bank's ratable share of such
Facility C Revolving Loan, based on such Bank's Pro Rata Share; provided, that
if any Insolvency Proceeding has been commenced with respect to the Borrower on
or prior to the date on which such Swingline Loan is due, and in lieu of funding
its Pro Rata Share of a Facility C Revolving Loan, each Bank shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from BofA a
participation in such Swingline Loan equal to the product of such Bank's Pro
Rata Share times the amount of such Swingline Loan.
(c) Each Bank's obligation in accordance with this Agreement
to make Facility C Revolving Loans upon the failure of a Swingline Loan to be
repaid in full when due, or to purchase participations in such Swingline Loans,
shall, in each case, be absolute and unconditional and without recourse to BofA
and shall not be affected by any circumstance, including (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against BofA, the Borrower or any other Person for any reason whatsoever; (ii)
the occurrence or continuance of a Default, an Event of Default or a Material
Adverse Effect; or (iii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
ARTICLE III
THE LETTERS OF CREDIT
. (a) On the terms and subject to the conditions set forth herein and
as a subfacility of the Facility B Commitment, (i) the Issuing Banks agree, from
time to time on any Business Day during the period from the Restatement
Effective Date to the date that is 30 days prior to the Revolving Loan
Termination Date to issue Letters of Credit for the account of the Borrower and
to amend or renew Letters of Credit previously issued by them, in each case in
accordance with subsections 3.02(c) and 3.02(d); and (ii) the Banks severally
agree to participate in Letters of Credit Issued for the account of the
Borrower; provided, that the Issuing Banks shall not be obligated to Issue, and
no Bank shall be obligated to participate in, any Letter of Credit if, as of the
date of Issuance of such Letter of Credit (the "Issuance Date"), (1) the
Effective Amount of all L/C Obligations plus the Effective Amount of all
Facility B Revolving Loans exceeds the combined Facility B Commitments, or (2)
the Effective Amount of L/C Obligations exceeds the L/C Commitment. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
ability of the Borrower to obtain Letters of Credit shall be fully revolving,
and, accordingly, the Borrower may, during the foregoing period, obtain Letters
of Credit to replace Letters of Credit which have expired or which have been
drawn upon and reimbursed.
(b) No Issuing Bank is under any obligation to Issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Bank from Issuing such Letter of Credit, or any
Requirement of Law applicable to such Issuing Bank or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuing Bank shall
prohibit, or request that such Issuing Bank refrain from, the Issuance
of letters of credit generally or such Letter of Credit in particular
or shall impose upon such Issuing Bank with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which such
Issuing Bank is not otherwise compensated hereunder) not in effect on
the Restatement Effective Date, or shall impose upon such Issuing Bank
any unreimbursed loss, cost or expense which was not applicable on the
Restatement Effective Date and which such Issuing Bank in good xxxxx
xxxxx material to it;
(ii) such Issuing Bank has received written notice
from any Bank, the Administrative Agent or the Borrower, on or prior to
the Business Day prior to the requested date of Issuance of such Letter
of Credit, that one or more of the applicable conditions contained in
Article V is not then satisfied;
(iii) the expiry date of any requested Letter of
Credit is (A) with respect to Commercial Letters of Credit supporting
the purchase of inventory by the Borrower, more than (1) 180 days after
the date of Issuance or (2) 30 days prior to the Revolving Loan
Termination Date, unless the Majority Banks have approved such expiry
date in writing, (B) with respect to Standby Letters of Credit, more
than (1) 364 days after the date of Issuance or (2) 30 days prior to
the Revolving Loan Termination Date, unless the Majority Banks have
approved such expiry date in writing; or (C) with respect to any other
Letter of Credit, 30 days prior to the Revolving Loan Termination Date,
unless all of the Banks have approved such expiry date in writing;
(iv) the expiry date of any requested
Letter of Credit is prior to the maturity date of any financial obligation to be
supported by the requested Letter of Credit;
(v) any requested Letter of Credit does not provide
for drafts (unless there is a demand for payment in the documentation
required to be delivered in connection with any drawing), or is not
otherwise in form and substance acceptable to such Issuing Bank, or the
Issuance of a Letter of Credit shall violate any applicable policies of
such Issuing Bank;
(vi) any Standby Letter of Credit is for the purpose
of supporting the issuance of any letter of credit by any other Person
other than with respect to any Existing Letter of Credit so designated
in Schedule 3.03; or
(vii) such Letter of Credit is to be used for a
purpose other than any permitted use of the proceeds of Facility B
Revolving Loans as set forth in Section 7.11.
. (a) Each Letter of Credit shall be issued upon the irrevocable
written request of the Borrower received by the Issuing Bank (with a copy sent
by the Borrower to the Administrative Agent) prior to 10:00 a.m. (San Francisco
time) on the proposed date of Issuance for Letters of Credit in the form of
Exhibit H, I or J hereto and at least four days prior to the proposed date of
Issuance for other forms of Letters of Credit. Each such request for issuance of
a Letter of Credit shall be by facsimile, confirmed by telephone, in the form of
an L/C Application, and shall specify in form and detail satisfactory to the
applicable Issuing Bank: (i) the proposed date of issuance of the Letter of
Credit (which shall be a Business Day); (ii) the face amount of the Letter of
Credit; (iii) the expiry date of the Letter of Credit; (iv) the name and address
of the beneficiary thereof; (v) the documents to be presented by the beneficiary
of the Letter of Credit in case of any drawing thereunder; (vi) the full text of
any certificate to be presented by the beneficiary in case of any drawing
thereunder; and (vii) such other matters as the Issuing Bank may require.
(b) Prior to the Issuance of any Letter of Credit, the
applicable Issuing Bank will confirm with the Administrative Agent (by telephone
or in writing) that the Administrative Agent has received a copy of the L/C
Application or L/C Amendment Application from the Borrower and, if not, such
Issuing Bank will provide the Administrative Agent with a copy thereof. Unless
such Issuing Bank has received notice on or before 11:00 a.m. (San Francisco
time) on the date such Issuing Bank is to issue a requested Letter of Credit
from the Administrative Agent (A) directing such Issuing Bank not to issue such
Letter of Credit because such issuance is not then permitted under subsection
3.01(a) as a result of the limitations set forth in clauses (1) or (2) thereof
or subsection 3.01(b)(ii); or (B) that one or more conditions specified in
Article V are not then satisfied; then, subject to the terms and conditions
hereof, such Issuing Bank shall, on the requested date, issue a Letter of Credit
in accordance with such Issuing Bank's usual and customary business practices.
(c) From time to time while a Letter of Credit is outstanding
and prior to the Revolving Loan Termination Date, any Issuing Bank will, upon
the written request of the Borrower received by such Issuing Bank (with a copy
sent by the Borrower to the Administrative Agent) at least four days (or such
shorter time as such Issuing Bank may agree in a particular instance in its sole
discretion) prior to the proposed date of amendment, amend any Letter of Credit
issued by it. Each such request for amendment of a Letter of Credit shall be
made by facsimile, confirmed by telephone, made in the form of an L/C Amendment
Application and shall specify in form and detail satisfactory to such Issuing
Bank: (i) the Letter of Credit to be amended; (ii) the proposed date of
amendment of the Letter of Credit (which shall be a Business Day); (iii) the
nature of the proposed amendment; and (iv) such other matters as such Issuing
Bank may require. The applicable Issuing Bank shall be under no obligation to
amend any Letter of Credit if: (A) such Issuing Bank would have no obligation at
such time to issue such Letter of Credit in its amended form under the terms of
this Agreement; or (B) the beneficiary of any such Letter of Credit does not
accept the proposed amendment to the Letter of Credit. The Administrative Agent
will promptly notify the Banks of the receipt by it of any L/C Application or
L/C Amendment Application.
(d) The Issuing Banks and the Banks agree that, while a Letter
of Credit is outstanding and prior to the Revolving Loan Termination Date, at
the option of the Borrower and upon the written request of the Borrower received
by the applicable Issuing Bank (with a copy sent by the Borrower to the
Administrative Agent) at least four days (or such shorter time as such Issuing
Bank may agree in a particular instance in its sole discretion) prior to the
proposed date of notification of renewal, such Issuing Bank shall be entitled to
authorize the automatic renewal of any Letter of Credit issued by it. Each such
request for renewal of a Letter of Credit shall be made by facsimile, confirmed
by telephone, in the form of an L/C Amendment Application, and shall specify in
form and detail satisfactory to such Issuing Bank: (i) the Letter of Credit to
be renewed; (ii) the proposed date of notification of renewal of the Letter of
Credit (which shall be a Business Day); (iii) the revised expiry date of the
Letter of Credit; and (iv) such other matters as such Issuing Bank may require.
The applicable Issuing Bank shall be under no obligation to so renew any Letter
of Credit if: (A) such Issuing Bank would have no obligation at such time to
issue or amend such Letter of Credit in its renewed form under the terms of this
Agreement; or (B) the beneficiary of any such Letter of Credit does not accept
the proposed renewal of the Letter of Credit. If any outstanding Letter of
Credit shall provide that it shall be automatically renewed unless the
beneficiary thereof receives notice from the applicable Issuing Bank that such
Letter of Credit shall not be renewed, and if at the time of renewal such
Issuing Bank would be entitled to authorize the automatic renewal of such Letter
of Credit in accordance with this subsection 3.02(d) upon the request of the
Borrower, but such Issuing Bank shall not have received any L/C Amendment
Application with respect to such renewal or other written direction by the
Borrower with respect thereto, such Issuing Bank shall nonetheless be permitted
to allow such Letter of Credit to renew, and the Borrower and the Banks hereby
authorize such renewal, and, accordingly, such Issuing Bank shall be deemed to
have received an L/C Amendment Application from the Borrower requesting such
renewal.
(e) The Issuing Banks may, at their election (or as required
by the Administrative Agent at the direction of the Majority Banks), deliver any
notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry
date of such Letter of Credit to be a date not later than the Revolving Loan
Termination Date.
(f) This Agreement shall control in the event of any conflict
with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Banks will also deliver to the Administrative
Agent, concurrently or promptly following delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or amendment
to or renewal of a Letter of Credit.
. (a) On and after the Restatement Effective Date, the Existing Letters
of Credit shall be deemed for all purposes, including for purposes of the fees
to be collected pursuant to subsections 3.08(a) and 3.08(c), and reimbursement
costs and expenses to the extent provided herein, Letters of Credit outstanding
under this Agreement and entitled to the benefits of this Agreement and the
other Loan Documents, and shall be governed by the applications and agreements
pertaining thereto and by this Agreement. Each Existing Letter of Credit
designated as a "standby letter of credit" on Schedule 3.03 shall be deemed to
be a Standby Letter of Credit, and each Existing Letter of Credit designated as
a "commercial documentary letter of credit" on Schedule 3.03 shall be deemed to
be a Commercial Letter of Credit. Each Bank shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing Banks on
the Restatement Effective Date a participation in each such Letter of Credit and
each drawing thereunder in an amount equal to the product of (i) such Bank's Pro
Rata Share times (ii) the maximum amount available to be drawn under such Letter
of Credit and the amount of such drawing, respectively. For purposes of
subsection 2.01(a) and subsection 2.10(b), the Existing Letters of Credit shall
be deemed to utilize the Pro Rata Share of each Bank.
(b) Immediately upon the Issuance of each Letter of Credit in
addition to those described in subsection 3.03(a), each Bank shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from the
applicable Issuing Bank a participation in such Letter of Credit and each
drawing thereunder in an amount equal to the product of (i) the Pro Rata Share
of such Bank, times (ii) the maximum amount available to be drawn under such
Letter of Credit and the amount of such drawing, respectively. For purposes of
subsection 2.01(a), each Issuance of a Letter of Credit shall be deemed to
utilize the Facility B Commitment of each Bank by an amount equal to the amount
of such participation.
(c) In the event of any request for a drawing under a Letter
of Credit by the beneficiary or transferee thereof, the applicable Issuing Bank
will promptly notify the Borrower. The Borrower shall reimburse such Issuing
Bank prior to 10:00 a.m. (San Francisco time), on each date that any amount is
paid by such Issuing Bank under any Letter of Credit (each such date, an "Honor
Date"), in an amount equal to the amount so paid by such Issuing Bank. In the
event the Borrower fails to reimburse such Issuing Bank of any Letter of Credit
for the full amount of any drawing under such Letter of Credit by 10:00 a.m.
(San Francisco time) on the Honor Date, such Issuing Bank will promptly notify
the Administrative Agent and the Administrative Agent will promptly notify each
Bank thereof, and the Borrower shall be deemed to have requested that Base Rate
Loans be made by the Banks to be disbursed on the Honor Date under such Letter
of Credit, subject to the conditions set forth in Section 5.02 (including,
without limitation, the condition that no Insolvency Proceeding shall have been
commenced by or against the Borrower on the Honor Date). Any notice given by an
Issuing Bank or the Administrative Agent pursuant to this subsection 3.03(c) may
be oral if immediately confirmed in writing (including by facsimile); provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(d) Each Bank shall upon any notice pursuant to subsection
3.03(c) make available to the Administrative Agent for the account of the
applicable Issuing Bank an amount in Dollars and in immediately available funds
equal to its Pro Rata Share of the amount of the drawing, whereupon the
participating Banks shall (subject to subsection 3.03(e)) each be deemed to have
made a Facility B Revolving Loan consisting of a Base Rate Loan to the Borrower
in that amount. If any Bank so notified fails to make available to the
Administrative Agent for the account of the applicable Issuing Bank the amount
of such Bank's Pro Rata Share of the amount of the drawing by no later than
11:00 a.m. (San Francisco time) on the Honor Date, then interest shall accrue on
such Bank's obligation to make such payment, from the Honor Date to the date
such Bank makes such payment, at a rate per annum equal to the Federal Funds
Rate in effect from time to time during such period. The Administrative Agent
will promptly give notice of the occurrence of the Honor Date, but failure of
the Administrative Agent to give any such notice on the Honor Date or in
sufficient time to enable any Bank to effect such payment on such date shall not
relieve such Bank from its obligations under this Section 3.03.
(e) With respect to any unreimbursed drawing that is not
converted into Facility B Revolving Loans consisting of Base Rate Loans to the
Borrower in whole or in part, because of the Borrower's failure to satisfy the
conditions set forth in Section 5.02 or for any other reason, the Borrower shall
be deemed to have incurred from an Issuing Bank an L/C Borrowing in the amount
of such drawing, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at a rate per annum equal to
the Base Rate plus the Applicable Margin plus 2% per annum, and each Bank's
payment to such Issuing Bank pursuant to subsection 3.03(d) shall be deemed
payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Bank in satisfaction of its participation
obligation under this Section 3.03.
(f) Each Bank's obligation in accordance with this Agreement
to make the Facility B Revolving Loans or L/C Advances, as contemplated by this
Section 3.03, as a result of a drawing under a Letter of Credit, shall be
absolute and unconditional and without recourse to the Issuing Banks (except in
circumstances arising solely as a result of willful misconduct or gross
negligence by the Issuing Banks) and shall not be affected by any circumstance,
including (i) any set-off, counterclaim, recoupment, defense or other right
which such Bank may have against any Issuing Bank, the Borrower or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default, an Event of Default or a Material Adverse Effect; or (iii) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
. (a) Upon (and only upon) receipt by the Administrative Agent for the
account of an Issuing Bank of immediately available funds from the Borrower (i)
in reimbursement of any payment made by such Issuing Bank under the Letter of
Credit with respect to which any Bank has paid the Administrative Agent for the
account of such Issuing Bank for such Bank's participation in the Letter of
Credit pursuant to Section 3.03 or (ii) in payment of interest thereon, the
Administrative Agent will pay to each Bank, in the same funds as those received
by the Administrative Agent for the account of such Issuing Bank, the amount of
such Bank's Pro Rata Share of such funds, and such Issuing Bank shall receive
the amount of the Pro Rata Share of such funds of any Bank that did not so pay
the Administrative Agent for the account of such Issuing Bank.
(b) If the Administrative Agent or any Issuing Bank is
required at any time to return to the Borrower, or to a trustee, receiver,
liquidator, custodian, or any official in any Insolvency Proceeding, any portion
of the payments made by the Borrower to the Administrative Agent for the account
of such Issuing Bank pursuant to subsection 3.04(a) in reimbursement of a
payment made under the Letter of Credit or interest or fee thereon, each Bank
shall, on demand of the Administrative Agent, forthwith return to the
Administrative Agent or such Issuing Bank the amount of its Pro Rata Share of
any amounts so returned by the Administrative Agent or such Issuing Bank plus
interest thereon from the date such demand is made to the date such amounts are
returned by such Bank to the Administrative Agent or such Issuing Bank, at a
rate per annum equal to the Federal Funds Rate in effect from time to time.
. (a) Each Bank and the Borrower agree that, in paying any drawing
under a Letter of Credit, the applicable Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft and
certificates expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of an Issuing Bank shall be liable to
any Bank for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the Banks (including the Majority Banks, as
applicable); (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any L/C-Related Document.
(c) The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. No
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of any Issuing Bank, shall be liable or responsible for any of the
matters described in clauses (i) through (vii) of Section 3.06; provided,
however, anything in such clauses to the contrary notwithstanding, that the
Borrower may have a claim against an Issuing Bank, and an Issuing Bank may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by an Issuing Bank's willful misconduct or gross
negligence or an Issuing Bank's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing: (i) an Issuing
Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) an Issuing Bank shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
. The obligations of the Borrower under this Agreement and any
L/C-Related Document to reimburse the Issuing Banks for drawings under Letters
of Credit, and to repay any L/C Borrowing and any drawings under Letters of
Credit converted into Facility B Revolving Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement and each such other L/C-Related Document under all circumstances,
including the following:
(i) any lack of validity or
enforceability of this Agreement or any L/C-Related Document;
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the obligations of
the Borrower in respect of any Letter of Credit or any other amendment
or waiver of or any consent to departure from all or any of the
L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or
other right that the Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting), an
Issuing Bank or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any Letter of Credit;
(v) any payment by an Issuing Bank under any Letter
of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any payment
made by an Issuing Bank under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Borrower in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Borrower or a guarantor.
. Upon (i) the request of the Administrative Agent, (A) if an Issuing
Bank has honored any full or partial drawing request on any Letter of Credit and
such drawing has resulted in an L/C Borrowing hereunder, or (B) if, as of the
Revolving Loan Termination Date, any Letters of Credit may for any reason remain
outstanding and partially or wholly undrawn, or (ii) the occurrence of the
circumstances described in subsection 2.07(b) requiring the Borrower to Cash
Collateralize Letters of Credit, then, the Borrower shall immediately Cash
Collateralize the L/C Obligations in an amount equal to the L/C Obligations.
. (a) The Borrower agrees to pay to the Administrative Agent for the
account of each of the Banks based on their respective Pro Rata Shares a letter
of credit fee (i) with respect to the Standby Letters of Credit equal to the
Standby Letter of Credit Risk Participation Percentage of the average daily
maximum amount available to be drawn of the outstanding Standby Letters of
Credit and (ii) with respect to the Commercial Letters of Credit equal to the
Commercial Letter of Credit Risk Participation Percentage of the average daily
maximum amount available to be drawn of the outstanding Commercial Letters of
Credit, in each case computed on a quarterly basis in arrears on the last
Business Day of each fiscal quarter based upon Letters of Credit outstanding for
that quarter as calculated by the Administrative Agent. Such letter of credit
fees shall be due and payable quarterly in arrears on the first Business Day
following each fiscal quarter during which Standby Letters of Credit or
Commercial Letters of Credit, as the case may be, are outstanding, commencing on
the first such quarterly date to occur after the Restatement Effective Date,
through the Revolving Loan Termination Date, with the final payment to be made
on the Revolving Loan Termination Date.
(b) The Borrower agrees to pay to the applicable Issuing Bank
for its sole account a letter of credit fronting fee (i) for each Standby Letter
of Credit Issued by such Issuing Bank, equal to 0.125% per annum of the face
amount (or increased face amount, as the case may be) of such Standby Letter of
Credit and (ii) for each Commercial Letter of Credit Issued by such Issuing
Bank, equal to 0.10% per annum of the face amount (or increased face amount, as
the case may be) of such Commercial Letter of Credit. Such Letter of Credit
fronting fee shall be due and payable quarterly in arrears on the first Business
Day following each fiscal quarter during which such Letter of Credit is
outstanding, commencing on the first such quarterly date to occur after the
Restatement Effective Date, with the final payment to be made on the Revolving
Loan Termination Date.
(c) The Borrower agrees to pay to the Issuing Banks from time
to time on demand the normal issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the Issuing Banks
relating to Standby Letters of Credit and Commercial Letters of Credit as from
time to time in effect.
. The Uniform Customs and Practice for Documentary Credits as published
by the International Chamber of Commerce ("UCP") most recently at the time of
issuance of any Letter of Credit shall (unless otherwise expressly provided in
the Letters of Credit) apply to such Letter of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
. (a) Any and all payments by the Borrower to each Bank or the
Administrative Agent under this Agreement and any other Loan Document shall be
made free and clear of, and without deduction or withholding for any Taxes. In
addition, the Borrower shall pay all Other Taxes.
(b) The Borrower agrees to indemnify and hold harmless each
Bank and the Administrative Agent for the full amount of Taxes or Other Taxes
(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section) paid by the Bank or the Administrative Agent and any
liability (including interest, additions to tax and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. Payment under this indemnification shall be made within 30
days after the date the Bank or the Administrative Agent makes written demand
therefor.
(c) If the Borrower shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any sum payable
hereunder to any Bank or the Administrative Agent, then:
(i) the sum payable shall be increased as necessary
so that after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this Section) such Bank or the Administrative Agent, as
the case may be, receives an amount equal to the sum it would have
received had no such deductions or withholdings been made;
(ii) the Borrower shall make such deductions and
withholdings;
(iii) the Borrower shall pay the full amount deducted
or withheld to the relevant taxing authority or other authority in
accordance with applicable law; and
(iv) the Borrower shall also pay to each Bank or the
Administrative Agent for the account of such Bank, at the time interest
is paid, all additional amounts which the respective Bank specifies as
necessary to preserve the after-tax yield the Bank would have received
if such Taxes or Other Taxes had not been imposed.
(d) Within 30 days after the date of any payment by the
Borrower of Taxes or Other Taxes, the Borrower shall furnish the Administrative
Agent the original or a certified copy of a receipt evidencing payment thereof,
or other evidence of payment satisfactory to the Administrative Agent.
(e) If the Borrower is required to pay additional amounts to
any Bank or the Administrative Agent pursuant to subsection (c) of this Section,
then such Bank shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending Office so as
to eliminate any such additional payment by the Borrower which may thereafter
accrue, if such change in the judgment of such Bank is not otherwise
disadvantageous to such Bank.
. (a) If any Bank determines that the introduction of any Requirement
of Law, or any change in any Requirement of Law, or in the interpretation or
administration of any Requirement of Law, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is unlawful,
for any Bank or its applicable Lending Office to make Eurodollar Rate Loans,
then, on notice thereof by the Bank to the Borrower through the Administrative
Agent, any obligation of that Bank to make Eurodollar Rate Loans shall be
suspended until the Bank notifies the Administrative Agent and the Borrower that
the circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain any
Eurodollar Rate Loan, the Borrower shall, upon its receipt of notice of such
fact and demand from such Bank (with a copy to the Administrative Agent), prepay
in full such Eurodollar Rate Loans of that Bank then outstanding, together with
interest accrued thereon and amounts required under Section 4.04, either on the
last day of the Interest Period thereof, if the Bank may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if the Bank may
not lawfully continue to maintain such Eurodollar Rate Loan. If the Borrower is
required to so prepay any Eurodollar Rate Loan, then concurrently with such
prepayment, the Borrower shall borrow from the affected Bank, in the amount of
such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain
Eurodollar Rate Loans has been so terminated or suspended, the Borrower may
elect, by giving notice to the Bank through the Administrative Agent that all
Loans which would otherwise be made by the Bank as Eurodollar Rate Loans shall
be instead Base Rate Loans.
(d) Before giving any notice to the Administrative Agent under
this Section, the affected Bank shall designate a different Lending Office with
respect to its Eurodollar Rate Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the judgment of the
Bank, be illegal or otherwise disadvantageous to the Bank.
. (a) If any Bank determines that, due to either (i) the introduction
of or any change (other than any change by way of imposition of or increase in
reserve requirements included in the calculation of the Eurodollar Rate or in
respect of the assessment rate payable by any Bank to the FDIC for insuring U.S.
deposits) in or in the interpretation of any law or regulation or (ii) the
compliance by that Bank with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any Eurodollar Rate Loans or participating in Letters of
Credit, or, in the case of any Issuing Bank, any increase in the cost to such
Issuing Bank of agreeing to issue, issuing or maintaining any Letter of Credit
or of agreeing to make or making, funding or maintaining any unpaid drawing
under any Letter of Credit, then the Borrower shall be liable for, and shall
from time to time, upon demand (with a copy of such demand to be sent to the
Administrative Agent), pay to the Administrative Agent for the account of such
Bank, additional amounts as are sufficient to compensate such Bank for such
increased costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by the Bank (or its Lending Office) or any corporation controlling
the Bank with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by the Bank or any
corporation controlling the Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy and such Bank's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Revolving Loan Commitments, Loans, credits or
obligations under this Agreement, then, upon demand of such Bank to the Borrower
through the Administrative Agent, the Borrower shall pay to the Bank, from time
to time as specified by the Bank, additional amounts sufficient to compensate
the Bank for such increase.
. The Borrower shall reimburse each Bank and hold each Bank harmless
from any loss or expense which the Bank may sustain or incur as a consequence
of:
(a) the failure of the Borrower to make on a
timely basis any payment of principal of any Eurodollar Rate Loan;
(b) the failure of the Borrower to borrow, continue or convert
a Loan after the Borrower has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Borrower to make any
prepayment in accordance with any notice delivered under Section 2.06;
(d) the prepayment (including pursuant to Section 2.07) or
other payment (including after acceleration thereof) of a Eurodollar Rate Loan
on a day that is not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.04
of any Eurodollar Rate Loan to a Base Rate Loan on a day that is not the last
day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Eurodollar Rate Loans or from fees
payable to terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by the Borrower to the Banks under this
Section and under subsection 4.03(a), each Eurodollar Rate Loan made by a Bank
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the LIBOR used in determining the
Eurodollar Rate for such Eurodollar Rate Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan is in fact so
funded.
. If the Administrative Agent determines that for any reason adequate
and reasonable means do not exist for determining the Eurodollar Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan or
that the Eurodollar Rate applicable pursuant to subsection 2.09(a) for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Banks of funding such Loan,
the Administrative Agent will promptly so notify the Borrower and each Bank.
Thereafter, the obligation of the Banks to make or maintain Eurodollar Rate
Loans, hereunder shall be suspended until the Administrative Agent upon the
instruction of the Majority Banks revokes such notice in writing. Upon receipt
of such notice, the Borrower may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Borrower does not revoke
such Notice, the Banks shall make, convert or continue the Loans, as proposed by
the Borrower, in the amount specified in the applicable notice submitted by the
Borrower, but such Loans shall be made, converted or continued as Base Rate
Loans instead of Eurodollar Rate Loans.
. The agreements and obligations of the Borrower in this Article IV
shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
. The effectiveness of the amendment and restatement of the Existing
Credit Agreement is subject to the condition that the Administrative Agent have
received on or before August 4, 1998 all of the following, in form and substance
satisfactory to the Administrative Agent and, where provided below, each Bank,
and in sufficient copies for each Bank:
(a) Credit Agreement and any Notes. This
Agreement and any Notes requested by the Banks, executed by each party thereto.
(b) [Intentionally Omitted.]
(c) Resolutions; Incumbency.
(i) Copies of partnership authorizations for the
Borrower and resolutions of the board of directors of the General
Partner authorizing the transactions contemplated hereby, certified as
of the Restatement Effective Date by the Secretary or an Assistant
Secretary of the General Partner; and
(ii) A certificate of the Secretary or Assistant
Secretary of the General Partner certifying the names and true
signatures of the officers of the General Partner authorized to
execute, deliver and perform, as applicable, on behalf of the Borrower
and the General Partner, this Agreement and all other Loan Documents to
be delivered by the Borrower and the General Partner hereunder.
(d) Organization Documents; Good Standing. Each
of the following documents:
(i) the articles or certificate of incorporation and
the bylaws of the General Partner and the Certificate of Limited
Partnership and the Partnership Agreement of the Borrower, in each case
as in effect on the Restatement Effective Date, certified by the
Secretary or Assistant Secretary of the General Partner as of the
Restatement Effective Date;
(ii) a good standing and tax good standing
certificate for the General Partner and the Borrower from the Secretary
of State (or similar, applicable Governmental Authority) of its state
of incorporation or organization, as applicable, and each other state
designated by Administrative Agent where the General Partner or the
Borrower conducts significant business, in each case as of a recent
date.
(e) Legal Opinions.
(i) opinion of Xxxxx Xxxx LLP, counsel to the
Borrower, the General Partner and the Guarantor, or of such other
counsel as are acceptable to the Administrative Agent and the Banks,
addressed to the Administrative Agent and the Banks, substantially in
the form of Exhibit D; and
(ii) a favorable opinion of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel to the Administrative Agent.
(f) Payment of Fees. Evidence of payment by the Borrower of
all accrued and unpaid fees, costs and expenses to the extent then due and
payable on the Restatement Effective Date, together with Attorney Costs of the
Administrative Agent to the extent invoiced prior to or on the Restatement
Effective Date, plus such additional amounts of Attorney Costs as shall
constitute the Administrative Agent's reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude final settling of accounts between
the Borrower and the Administrative Agent); including any such costs, fees and
expenses arising under or referenced in the Fee Letter or otherwise in Sections
2.10 and 11.04.
(g) Certificate. A certificate signed by a
Responsible Officer, dated as of the Restatement Effective Date, stating that:
(i) the representations and warranties
contained in Article VI are true and correct on and as of such date, as though
made on and as of such date;
(ii) no Default or Event of Default
exists or would result from the Credit Extension; and
(iii) there has occurred since April 30, 1998, no
event or circumstance that has resulted or could reasonably be expected
to result in a Material Adverse Effect.
(h) Redemption of Fixed Rate Senior Notes.
Evidence that the Fixed Rate Senior Notes will be redeemed in full on the
Restatement Effective Date in accordance with the terms of the 1994
Indenture.
(i) No Material Change. There shall have been no
Material AdverseEffect between April 30, 1998 and the Restatement Effective Date
(j) Trading Policies. The trading position policy and the
supply inventory position policy as in effect on the Restatement Effective Date,
as evidenced by the written policies delivered to the Administrative Agent,
shall be satisfactory to the Administrative Agent and the Majority Banks.
(k) Payments under Existing Credit Agreement. Evidence that
all interest and fees accrued under the Existing Credit Agreement through and
including the Restatement Effective Date shall have been paid by the Borrower.
(l) Issuance of 1998 Fixed Rate Senior Notes. Evidence that
the 1998 Fixed Rate Senior Notes shall have been issued by the Borrower, on
terms and conditions satisfactory to the Administrative Agent, Arranger and the
Banks, in an aggregate amount of $350,000,000.
(m) Repayment of Existing Facility B Term Loans.
Evidence that the existing Facility B Term Loans under the Existing Credit
Agreement shall have been repaid in full by the Borrower.
(n) Other Documents. Such other approvals,
opinions, documents or materials as
the Administrative Agent or any Bank may request.
. The obligation of each Bank to make any Loan to be made by it
(including its initial Loan) or to continue or convert any Loan under Section
2.04 and the obligation of the Issuing Banks to Issue any Letters of Credit
(including any initial Letters of Credit) is subject to the satisfaction of the
following conditions precedent on the relevant Borrowing Date,
Conversion/Continuation Date or Issuance Date:
(a) Notice, Application. The Administrative Agent shall have
received (with, in the case of the initial Loans only, a copy for each Bank) a
Notice of Borrowing or a Notice of Conversion/Continuation, as applicable, or in
the case of any Issuance of any Letter of Credit, the applicable Issuing Bank
and the Administrative Agent shall have received an L/C Application or L/C
Amendment Application, as required under Section 3.02;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article VI shall be true and correct in all
material respects on and as of such Borrowing Date, Conversion/Continuation Date
or Issuance Date with the same effect as if made on and as of such Borrowing
Date, Conversion/Continuation Date or Issuance Date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct in all material respects as of such earlier date
and other than Section 6.22, which shall be true and correct in all material
respects on the Restatement Effective Date); and
(c) No Existing Default. No Default or Event of
Default shall exist or shall result from such Borrowing, continuation or
conversion or Issuance.
(d) 1998 Note Purchase Agreement. The incurrence and
maintenance of such Loan or Letter of Credit, as the case may be, shall be
permitted under Section 10.1 or Section 10.3, as applicable, of the 1998 Note
Purchase Agreement and the Borrower shall have delivered to the Administrative
Agent (1) an officer's certificate demonstrating compliance with such sections
and (2) in the case of a Loan or Letter of Credit (other than a Loan for working
capital purposes), an opinion of counsel to the Borrower and its Subsidiaries,
which counsel shall be satisfactory to the Administrative Agent, to the effect
that the incurrence and maintenance of such Loan or Letter of Credit, as
applicable, does not violate any indenture, note purchase agreement or other
credit arrangement of the Borrower or any of its Subsidiaries, and covering such
other matters as may be reasonably requested by the Administrative Agent.
Each Notice of Borrowing, Notice of Conversion/Continuation
and L/C Application or L/C Amendment Application submitted by the Borrower
hereunder shall constitute a representation and warranty by the Borrower
hereunder, as of the date of each such notice and as of each Borrowing Date,
Conversion/Continuation Date or Issuance Date, as applicable, that the
conditions in Section 5.02 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Each of the Borrower and the General Partner represents and
warrants to the Administrative Agent and each Bank that:
. The General Partner, the MLP, the Borrower and each of its
Subsidiaries: (a) is a corporation or
partnership duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
as now being or as proposed to be conducted and to execute, deliver, and perform
its obligations under the Loan Documents;
(c) is duly qualified as a foreign corporation or partnership
and is licensed and in good standing under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification or license or where the failure so to qualify would
have a Material Adverse Effect; and
(d) is in compliance with all material
Requirements of Law.
. The execution, delivery and performance by the Borrower and the
General Partner of this Agreement and each other Loan Document to which the
General Partner, the Borrower or any Subsidiary is party, have been duly
authorized by all necessary partnership action on behalf of the Borrower and all
necessary corporate action on behalf of the General Partner and any Subsidiary,
and do not and will not:
(a) contravene the terms of any of the General
Partner's, the MLP's, the Borrower's or any Subsidiary's Organization Documents;
(b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, any document evidencing any Contractual
Obligation to which the General Partner, the MLP, the Borrower or any Subsidiary
is a party or any order, injunction, writ or decree of any Governmental
Authority to which such Person or its property is subject where such conflict,
breach, contravention or Lien could reasonably be expected to have a Material
Adverse Effect; or
(c) violate any material Requirement of Law.
. No approval, consent, exemption, authorization, or other action by,
or notice to, or filing with, any Governmental Authority is necessary or
required in connection with (a) the execution, delivery or performance by, or
enforcement against, the General Partner, the Borrower or any Subsidiary of this
Agreement or any other Loan Document, or (b) the continued operation of
Borrower's business as contemplated to be conducted after the date hereof by the
Loan Documents, except in each case such approvals, consents, exemptions,
authorizations or other actions, notices or filings (i) as have been obtained,
(ii) as may be required under state securities or Blue Sky laws, (iii) as are of
a routine or administrative nature and are either (A) not customarily obtained
or made prior to the consummation of transactions such as the transactions
described in clauses (a) or (b) or (B) expected in the judgment of the Borrower
to be obtained in the ordinary course of business subsequent to the consummation
of the transactions described in clauses (a) or (b), or (iv) that, if not
obtained, could not reasonably be expected to have a Material Adverse Effect.
. This Agreement and each other Loan Document to which the General
Partner, the Borrower or any Subsidiary is a party constitute the legal, valid
and binding obligations of such Person, enforceable against such Person in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the enforcement
of creditors' rights generally or by equitable principles relating to
enforceability.
. There are no actions, suits, proceedings, claims or disputes pending,
or to the best knowledge of the Borrower, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against the General
Partner, the MLP, the Borrower or any of its Subsidiaries or any of their
respective properties which:
(a) purport to affect or pertain to this
Agreement or any other Loan Document or any of the transactions contemplated
hereby or thereby; or
(b) if determined adversely to the Borrower or its
Subsidiaries, would reasonably be expected to have a Material Adverse Effect. No
injunction, writ, temporary restraining order or any order of any nature has
been issued by any court or other Governmental Authority purporting to enjoin or
restrain the execution, delivery or performance of this Agreement or any other
Loan Document, or directing that the transactions provided for herein or therein
not be consummated as herein or therein provided.
. No Default or Event of Default exists or would result from the
incurring, continuing or converting of any Obligations by the Borrower. As of
the Restatement Effective Date, neither the Borrower nor any Affiliate of the
Borrower is in default under or with respect to any Contractual Obligation in
any respect which, individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect, or that would, if such
default had occurred after the Restatement Effective Date, create an Event of
Default under subsection 9.01(e).
. (a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and to the best knowledge of the
Borrower and the General Partner, nothing has occurred which would cause the
loss of such qualification.
(b) There are no pending, or to the best knowledge of Borrower
and the General Partner, threatened claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan which has resulted or could
reasonably be expected to result in a Material Adverse Effect. There has been no
prohibited transaction or other violation of the fiduciary responsibility rule
with respect to any Plan which could reasonably result in a Material Adverse
Effect.
(c) No ERISA Event has occurred or is reasonably expected
to occur with respect to any Pension Plan.
(d) No Pension Plan has any Unfunded Pension Liability,
except that the Ferrellgas, Inc. Retirement Income Plan has an Unfunded Pension
Liability in the amount of $921,304, however, the Ferrellgas, Inc.
Retirement Income Plan is not underfunded.
(e) The Borrower has not incurred, nor does it reasonably
expect to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA).
(f) The Borrower has not transferred any Unfunded Pension
Liability to any Person or otherwise engaged in a transaction that could be
subject to Section 4069 of ERISA.
(g) Except as specifically disclosed in Schedule 6.07, no
trade or business (whether or not incorporated under common control with the
Borrower within the meaning of Section 414(b), (c), (m) or (o) of the Code)
maintains or contributes to any Pension Plan or other Plan subject to Section
412 of the Code. Except as specifically disclosed in Schedule 6.07, neither the
Borrower nor any Person under common control with the Borrower (as defined in
the preceding sentence) has ever contributed to any multiemployer plan within
the meaning of Section 4001(a)(3) of ERISA.
. The proceeds of the Loans are to be used solely for the purposes set
forth in and permitted by Section 7.11 and Section 8.07. Neither the Borrower
nor any Affiliate of the Borrower is generally engaged in the business of
purchasing or selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.
. The Borrower and each Subsidiary have good record and marketable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of their respective businesses, except
for such defects in title as could not, individually or in the aggregate, have a
Material Adverse Effect. As of the Restatement Effective Date and subject to the
preceding sentence, the property of the Borrower and its Subsidiaries is subject
to no Liens other than Permitted Liens.
. The General Partner has filed all Federal and other material tax
returns and reports required to be filed, for itself and for the Borrower, and
has paid all Federal and other material taxes, assessments, fees and other
governmental charges levied or imposed upon it or its properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower that would, if made, have a Material Adverse Effect.
. (a) The audited consolidated financial statements of the General
Partner, the Borrower, the MLP and their respective Subsidiaries dated July 31,
1997 and the unaudited consolidated financial statements of the General Partner,
the Borrower, the MLP and their respective Subsidiaries dated April 30, 1998, in
each case together with the related consolidated statements of income or
operations, shareholders' equity and cash flows for the fiscal periods ended on
those respective dates:
(i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, subject to ordinary, good faith year
end audit adjustments;
(ii) fairly present the financial
condition of the Borrower and its Subsidiaries as of the date thereof and
results of operations for the period covered thereby; and
(iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the date thereof, including liabilities for taxes,
material commitments and Contingent Obligations.
(b) Since April 30, 1998, there has been no Material
Adverse Effect.
(c) The General Partner, the MLP, the Borrower and each of the
other Subsidiaries of the Borrower are each Solvent, both before and after
giving effect to the consummation of each of the transactions contemplated by
the Loan Documents.
. The Borrower conducts in the ordinary course of business a review of
the effect of existing Environmental Laws and existing Environmental Claims on
its business, operations and properties, and as a result thereof the Borrower
has reasonably concluded that such Environmental Laws and Environmental Claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
. None of the Borrower or any Affiliate of the Borrower, is an
"Investment Company" within the meaning of the Investment Company Act of 1940.
The Borrower is not subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, any
state public utilities code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
. Neither the Borrower nor any Subsidiary is a party to or bound by any
Contractual Obligation, or subject to any restriction in any Organization
Document, or any Requirement of Law, which could reasonably be expected to have
a Material Adverse Effect.
The Borrower and its Subsidiaries own or are licensed or otherwise
have the right to use all of the patents, trademarks, service marks, trade
names, copyrights, contractual franchises, authorizations and other rights that
are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person. To the best knowledge of
the Borrower, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be
employed, by the Borrower or any Subsidiary infringes upon any rights held by
any other Person. No claim or litigation regarding any of the foregoing is
pending or, to the best knowledge of the Borrower, threatened, and no patent,
invention, device, application, principle or any statute, law, rule, regulation,
standard or code is pending or, to the knowledge of the Borrower, proposed,
which, in either case, could reasonably be expected to have a Material Adverse
Effect.
. The Borrower has no Subsidiaries or other Affiliates other than those
specifically disclosed in part (a) of Schedule 6.16 hereto and has no equity
investments in any other corporation or entity other than those Permitted
Investments specifically disclosed in part (b) of Schedule 6.16.
. The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or such Subsidiary operates.
. The Borrower is subject to taxation under the Code only as a
partnership and not as a corporation.
. None of the representations or warranties made by the Borrower or any
Affiliate of the Borrower in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Borrower or any Affiliate of the Borrower in connection
with the Loan Documents contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they are
made, not misleading as of the time when made or delivered.
. None of the Borrower and its Subsidiaries is a party to any contract
for the supply of propane or other product except where (a) the purchase price
is set with reference to a spot index or indices substantially contemporaneously
with the delivery of such product or (b) delivery of such propane or other
product is to be made no more than one year after the purchase price is agreed
to.
. The Borrower has provided to the Administrative Agent an accurate and
complete summary of its trading position policy and supply inventory position
policy and the Borrower has complied in all respects with such policies.
As of the Restatement Effective Date, all actions, notices and
consents required for the redemption in full of the Fixed Rate Senior Notes in
compliance with the 1994 Indenture and the Fixed Rate Senior Notes have been
made, taken and obtained.
. The Borrower and its Subsidiaries have reviewed the areas within
their business and operations which could be adversely affected by, and have
developed or are developing a program to address on a timely basis, the "Year
2000 Problem" (that is, the risk that computer applications used by the Borrower
and its Subsidiaries may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date on or
after December 31, 1999), and have made related appropriate inquiry of material
suppliers and vendors. Based on such review and program, the Borrower believes
that the "Year 2000 Problem" will not have a Material Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Revolving Loan Commitment
hereunder, or any Loan or other Obligation shall remain unpaid or unsatisfied,
or any Letter of Credit shall remain outstanding, unless the Majority Banks
waive compliance in writing:
. The Borrower shall deliver to the Administrative Agent, in form and
detail satisfactory to the Administrative Agent and the Majority Banks and
consistent with the form and detail of financial statements and projections
provided to the Administrative Agent by the Borrower and its Affiliates prior to
the Restatement Effective Date, with sufficient copies for each Bank:
(a) as soon as available, but not later than 100 days after
the end of each fiscal year (commencing with the fiscal year ended July 31,
1998), a copy of the audited consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such year and the related consolidated statements
of income or operations, partners' or shareholders' equity and cash flows for
such year, setting forth in each case in comparative form the figures for the
previous fiscal year, and accompanied by the opinion of a nationally-recognized
independent public accounting firm ("Independent Auditor") which report shall
state that such consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years. Such opinion shall not be qualified or limited in
any manner, including on account of any limitation on it because of a restricted
or limited examination by the Independent Auditor of any material portion of the
Borrower's or any Subsidiary's records;
(b) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year (commencing
with the fiscal quarter ended October 31, 1998), a copy of the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income, partners' or
shareholders' equity and cash flows for the period commencing on the first day
and ending on the last day of such quarter, and certified by a Responsible
Officer as fairly presenting, in accordance with GAAP (subject to ordinary, good
faith year-end audit adjustments), the financial position and the results of
operations of the Borrower and the Subsidiaries;
(c) as soon as available, but not later than 100 days after
the end of each fiscal year (commencing with the first fiscal year during all or
any part of which the Borrower had one or more Significant Subsidiaries), a copy
of an unaudited consolidating balance sheet of the Borrower and its Subsidiaries
as at the end of such year and the related consolidating statement of income,
partners' or shareholders' equity and cash flows for such year, certified by a
Responsible Officer as having been developed and used in connection with the
preparation of the financial statements referred to in subsection 7.01(a);
(d) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year (commencing
with the first fiscal quarter during all or any part of which the Borrower had
one or more Significant Subsidiaries), a copy of the unaudited consolidating
balance sheets of the Borrower and its Subsidiaries, and the related
consolidating statements of income, partners' or shareholders' equity and cash
flows for such quarter, all certified by a Responsible Officer as having been
developed and used in connection with the preparation of the financial
statements referred to in subsection 7.01(b);
(e) as soon as available, but not later than 60 days after the
end of each fiscal year (commencing with the fiscal year beginning August 1,
1998), projected consolidated balance sheets of the Borrower and its
Subsidiaries as at the end of each of the current and following two fiscal years
and related projected consolidated statements of income, partners' or
shareholders' equity and cash flows for each such fiscal year, including therein
a budget for the current fiscal year, certified by a Responsible Officer as
having been developed and prepared by the Borrower in good faith and based upon
the Borrower's best estimates and best available information;
(f) as soon as available, but not later than 100 days after
the end of each fiscal year of the General Partner, commencing with the fiscal
year ended July 31, 1998, a copy of the unaudited (or audited, if available)
consolidated balance sheets of the General Partner as of the end of such fiscal
year and the related consolidated statements of income, shareholders' equity and
cash flows for such fiscal year, certified by a Responsible Officer as fairly
presenting, in accordance with GAAP, the financial position and the results of
operations of the General Partner and its Subsidiaries (or, if available,
accompanied by an opinion of an Independent Auditor as described in subsection
7.01(a)); and
(g) as soon as available, but not later than 45 days after the
end of each of the first three fiscal quarters of each fiscal year and, with
respect to the final fiscal quarter, concurrently with the financial statements
referred to in subsection 7.01(a), a trading position report as of the last day
of each fiscal quarter, certified by a Responsible Officer.
. The Borrower shall furnish to the Administrative Agent, with
sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.01(a), a certificate of the Independent Auditor
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.01(a) and (b), a Compliance Certificate executed by
a Responsible Officer with respect to the periods covered by such financial
statements together with supporting calculations and such other supporting
detail as the Administrative Agent and Majority Banks shall require;
(c) promptly, copies of all financial statements and reports
that the Borrower, the General Partner, the MLP or any Subsidiary sends to its
partners or shareholders, and copies of all financial statements and regular,
periodic or special reports (including Forms 10-K, 10-Q and 8-K) that the
Borrower or any Affiliate of the Borrower, the General Partner, the MLP or any
Subsidiary may make to, or file with, the SEC; and
(d) promptly, such additional information regarding the
business, financial or corporate affairs of the Borrower, the General Partner,
the MLP or any Subsidiary as the Administrative Agent, at the request of any
Bank, may from time to time request.
. The Borrower shall promptly notify the Administrative Agent and eac
Bank:
(a) of the occurrence of any Default or Event o
Default, and of the occurrence or existence of any event or circumstance that
foreseeably will become a Default or Event of Default;
(b) of any matter that has resulted or may reasonably be
expected to result in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of the
Borrower, the General Partner, the MLP or any Subsidiary; (ii) any dispute,
litigation, investigation, proceeding or suspension between the Borrower, the
General Partner, the MLP or any Subsidiary and any Governmental Authority; or
(iii) the commencement of, or any material development in, any litigation or
proceeding affecting the Borrower, the General Partner, the MLP or any
Subsidiary, including pursuant to any applicable Environmental Laws;
(c) of any of the following events affecting the Borrower, the
General Partner, the MLP or any Subsidiary, together with a copy of any notice
with respect to such event that may be required to be filed with a Governmental
Authority and any notice delivered by a Governmental Authority to such Person
with respect to such event:
(i) an ERISA Event;
(ii) if any of the representations and
warranties in Section 6.07 ceases to be true and correct;
(iii) the adoption of any new Pension Plan
or other Plan subject to Section 412 of the Code;
(iv) the adoption of any amendment to a Pension Plan
or other Plan subject to Section 412 of the Code, if such amendment
results in a material increase in contributions or Unfunded Pension
Liability; or
(v) the commencement of contributions
to any Pension Plan or other Plan subject to Section 412 of the Code;
(d) of any material change in accounting
policies or financial reporting practices
by the Borrower or any of its consolidated Subsidiaries; and
(e) not later than five Business Days after the effective date
of a change in the Borrower's trading position policy or inventory supply
position policy, of any change in either policy.
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer setting forth details of the
occurrence referred to therein, and stating what action the Borrower or any
affected Affiliate proposes to take with respect thereto and at what time. Each
notice under subsection 7.03(a) shall describe with particularity any and all
clauses or provisions of this Agreement or other Loan Document that have been
(or foreseeably will be) breached or violated.
The General Partner and the Borrower shall, and the Borrower shall
cause each Subsidiary to:
(a) preserve and maintain in full force and effect its
partnership or corporate existence and good standing under the laws of its state
or jurisdiction of organization or incorporation except in connection with
transactions permitted by Section 8.03;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business except
in connection with transactions permitted by Section 8.03 and sales of assets
permitted by Section 8.02;
(c) use reasonable efforts, in the ordinary
course of business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.
. The Borrower shall maintain, and shall cause each Subsidiary to
maintain, and preserve all its property which is used or useful in its business
in good working order and condition, ordinary wear and tear excepted. The
Borrower and each Subsidiary shall use the standard of care typical in the
industry in the operation and maintenance of its facilities.
. The Borrower shall maintain, and shall cause each Subsidiary to
maintain, with financially sound and reputable independent insurers, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
. The Borrower and the General Partner shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable
(except to the extent the failure to so pay and discharge could not reasonably
be expected to have a Material Adverse Effect), all their respective obligations
and liabilities, including:
(a) all tax liabilities, assessments and governmental charges
or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Borrower, the General Partner
or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a
Lien upon its property, unless such claims are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Borrower, the General Partner or such Subsidiary; and
(c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument
or agreement evidencing such Indebtedness.
. The Borrower shall comply, and shall cause each Subsidiary to comply,
in all material respects with all Requirements of Law of any Governmental
Authority having jurisdiction over it or its business (including the Federal
Fair Labor Standards Act), except such as may be contested in good faith or as
to which a bona fide dispute may exist.
. The Borrower shall maintain and shall cause each Subsidiary to
maintain proper books of record and account, in which full, true and correct
entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the
Borrower and such Subsidiary. The Borrower shall permit, and shall cause each
Subsidiary to permit, representatives and independent contractors of the
Administrative Agent or any Bank to visit and inspect any of their respective
properties, to examine their respective corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective directors,
officers, and independent public accountants, all at the expense of the Borrower
and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, when an Event of Default exists the Administrative Agent or any Bank
may do any of the foregoing at the expense of the Borrower at any time during
normal business hours and without advance notice.
. The Borrower shall, and shall cause each Subsidiary to, conduct its
operations and keep and maintain its property in material compliance with all
Environmental Laws.
. The Borrower shall use the proceeds of (a) the Facility A Revolving
Loans for working capital purposes only, (b) the Facility B Revolving Loans for
working capital and other general partnership purposes and (c) the Facility C
Revolving Loans for Acquisitions and other general partnership purposes, in each
case not in contravention of any Requirement of Law or of any Loan Document.
..12 Financial Covenants
(a) Leverage Ratio. The Borrower shall maintain as of the last
day of each fiscal quarter a Leverage Ratio equal to or less than 4.50 to 1.00;
provided, that to the extent the Borrower borrows Loans to make Restricted
Payments within 45 days after the end of any fiscal quarter, the aggregate
amount of Loans so borrowed shall be added to the amount of Funded Debt
outstanding at the end of such quarter for purposes of determining the Leverage
Ratio at the end of such quarter. For purposes of this Section 7.12(a), (x)
Funded Debt and Synthetic Lease Obligations shall be calculated as of the last
day of such fiscal quarter and (y) Consolidated Cash Flow shall be calculated
for the most recently ended four consecutive fiscal quarters; provided, however,
that prior to or concurrently with each delivery of a Compliance Certificate
pursuant to Section 7.02(b), the Borrower may elect to calculate Consolidated
Cash Flow for the most recently ended eight consecutive fiscal quarters (in
which case Consolidated Cash Flow shall be divided by two).
(b) Interest Coverage Ratio. The Borrower shall maintain, as
of the last day of each fiscal quarter of the Borrower, an Interest Coverage
Ratio for the fiscal period consisting of such fiscal quarter and the three
immediately preceding fiscal quarters of at least 2.50 to 1.00.
. The Borrower and its Affiliates shall comply with the Borrower's
trading position policy and supply inventory position policy as in effect on
January 31, 1998, copies of which have been provided to the Administrative Agent
on or prior to the Restatement Effective Date; provided, however, that the
Borrower and its Affiliates may, during any period of four consecutive fiscal
quarters, (a) increase the stop loss limit specified in either the trading
position or supply inventory position policy by up to 100% of the amount of such
limit as in effect on July 5, 1994 and (b) increase the volume limit specified
in either of such policies on the number of barrels of a single product or of
all products in the aggregate by up to 100% of each such number as in effect on
July 5, 1994.
..14 Other General Partner Obligations
(a) The General Partner shall cause the Borrower to pay and
perform each of its Obligations when due. The General Partner acknowledges and
agrees that it is executing this Agreement as a principal as well as the general
partner on behalf of the Borrower, and that its obligations hereunder as general
partner are full recourse obligations to the same extent as those of the
Borrower.
(b) The General Partner represents, warrants and covenants
that it is Solvent, both before and after giving effect to the consummation of
the transactions contemplated by the Loan Documents, and that it will remain
Solvent until all Obligations hereunder shall have been repaid in full and all
commitments shall have terminated.
(c) The General Partner, for so long as it is the general
partner of the Borrower, (i) agrees that its sole business will be to act as the
general partner of the Borrower, the MLP and any further limited partnership of
which the Borrower or the MLP is, directly or indirectly, a limited partner and
to undertake activities that are ancillary or related thereto (including being a
limited partner in the Borrower), (ii) shall not enter into or conduct any
business or incur any debts or liabilities except in connection with or
incidental to (A) its performance of the activities required or authorized by
the partnership agreement of the MLP or the Partnership Agreement or described
in or contemplated by the MLP Registration Statement, and (B) the acquisition,
ownership or disposition of Partnership Interests in the Borrower or partnership
interests in the MLP or any further limited partnership of which the Borrower or
the MLP is, directly or indirectly, a limited partner, except that,
notwithstanding the foregoing, employees of the General Partner may perform
services for Xxxxxxx Companies, Inc. and its Affiliates.
(d) The General Partner agrees that, until all Obligations
hereunder shall have been repaid in full and all commitments shall have
terminated, it will not exercise any rights it may have (at law, in equity, by
contract or otherwise) to terminate, limit or otherwise restrict (whether
through repurchase or otherwise and whether or not the General Partner shall
remain a general partner in the Borrower) the ability of the Borrower to use the
name "Ferrellgas".
(e) The General Partner shall not take any action or refuse to
take any reasonable action the effect of which, if taken or not taken, as the
case may be, would be to cause the Borrower to be treated as an association
taxable as a corporation or otherwise to be taxed as an entity other than a
partnership for federal income tax purposes.
. If one or more judgments, orders, decrees or arbitration awards is
entered against the Borrower or any Subsidiary involving in the aggregate a
liability (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage other than through a standard
reservation of rights letter) as to any single or related series of
transactions, incidents or conditions, of more than $10 million, then the
Borrower shall reserve for such amount in excess of $10 million, on a quarterly
basis, with each quarterly reserve being at least equal to one-twelfth of such
amount in excess of $10 million. Such amount so reserved shall be treated as
establishment of a reserve for purposes of calculating Available Cash hereunder.
. The Borrower shall ensure that all of the computer software, computer
firmware, computer hardware (whether general or special purpose), and other
similar or related items of automated, computerized, and/or software system(s)
that are used or relied on by the Borrower or any Subsidiary in the conduct of
its business will not malfunction, will not cease to function, will not generate
incorrect data, and will not produce material incorrect results when processing,
providing and/or receiving date-related data in connection with any valid date
in the twentieth and twenty-first centuries. From time to time, at the request
of any Bank, the Borrower and its Subsidiaries shall provide to such Bank such
updated information or documentation as is requested regarding the status of
their efforts to address the Year 2000 Problem (as defined in Section 6.23).
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Bank shall have any Revolving Loan Commitment
hereunder, or any Loan or other Obligation shall remain unpaid or unsatisfied,
or any Letter of Credit shall remain outstanding, unless the Majority Banks
waive compliance in writing:
. The Borrower shall not, and shall not suffer or permit any Subsidiary
to, directly or indirectly, make, create, incur, assume or suffer to exist any
Lien upon or with respect to any part of its property or sell any of its
accounts receivable, whether now owned or hereafter acquired, other than the
following ("Permitted Liens"):
(a) Liens existing on the Restatement Effective
Date set forth in Schedule 8.01 of the Existing Credit Agreement;
(b) Liens in favor of the Borrower or Liens to
secure Indebtedness of a Subsidiary
to the Borrower or a Wholly-Owned Subsidiary;
(c) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Borrower or any Subsidiary,
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Borrower;
(d) Liens on property existing at the time acquired by the
Borrower or any Subsidiary, provided that such Liens were in existence prior to
the contemplation of such acquisition and do not extend to any assets other than
those of the Person acquired;
(e) Liens on any property or asset acquired by the Borrower or
any Subsidiary in favor of the seller of such property or asset and construction
mortgages on property, in each case, created within six months after the date of
acquisition, construction or improvement of such property or asset by the
Borrower or such Subsidiary to secure the purchase price or other obligation of
the Borrower or such Subsidiary to the seller of such property or asset or the
construction or improvement cost of such property in an amount up to 80% of the
total cost of the acquisition, construction or improvement of such property or
asset; provided that in each case such Lien does not extend to any other
property or asset of the Borrower and its Subsidiaries;
(f) Liens incurred or pledges and deposits made in connection
with worker's compensation, unemployment insurance and other social security
benefits and Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature, in each
case, incurred in the ordinary course of business;
(g) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(h) Liens imposed by law, such as mechanics', carriers',
warehousemen's, materialmen's, and vendors' Liens, incurred in good faith in the
ordinary course of business with respect to amounts not yet delinquent or being
contested in good faith by appropriate proceedings if a reserve or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made therefor;
(i) zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property or minor irregularities
of title incident thereto that do not, in the aggregate, materially detract from
the value of the property or the assets of the Borrower or any of its
Subsidiaries or impair the use of such property in the operation of the business
of the Borrower or any of its Subsidiaries;
(j) Liens of landlords or mortgages of landlords, arising
solely by operation of law, on fixtures and movable property located on premises
leased by the Borrower or any of its Subsidiaries in the ordinary course of
business;
(k) Liens incurred and financing statements filed or recorded,
in each case with respect to personal property leased by the Borrower and its
Subsidiaries in the ordinary course of business to the owners of such personal
property which are either (i) operating leases (including, without limitation,
Synthetic Leases) or (ii) Capital Leases to the extent (but only to the extent)
permitted by Section 8.05; provided, that in each case such Lien does not extend
to any other property or asset of the Borrower and its Subsidiaries;
(l) judgment Liens to the extent that such
judgments do not cause or constitute a
Default or an Event of Default;
(m) Liens incurred in the ordinary course of business of the
Borrower or any Subsidiary with respect to obligations that do not exceed
$5,000,000 in the aggregate at any one time outstanding and that (i) are not
incurred in connection with the borrowing of money or the obtaining of advances
or credit (other than trade credit in the ordinary course of business) and (ii)
do not in the aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by the Borrower
or such Subsidiary;
(n) Liens securing Indebtedness incurred to refinance
Indebtedness that has been secured by a Lien otherwise permitted under this
Agreement, provided that (i) any such Lien shall not extend to or cover any
assets or property not securing the Indebtedness so refinanced and (ii) the
refinancing Indebtedness secured by such Lien shall have been permitted to be
incurred under Section 8.05 hereof and shall not have a principal amount in
excess of the Indebtedness so refinanced;
(o) any extension or renewal, or successive extensions or
renewals, in whole or in part, of Liens permitted pursuant to the foregoing
clauses (a) through (n); provided that no such extension or renewal Lien shall
(i) secure more than the amount of Indebtedness or other obligations secured by
the Lien being so extended or renewed or (ii) extend to any property or assets
not subject to the Lien being so extended or renewed; and
(p) Liens in favor of the Administrative Agent,
any Issuing Bank and the Banks
relating to the Cash Collateralization of the Borrower's Obligations.
. The Borrower shall not, and shall not permit any of its Subsidiaries
to, (i) sell, lease, convey or otherwise dispose of any assets (including by way
of a sale-and-leaseback) other than sales of inventory in the ordinary course of
business consistent with past practice (provided that the sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Borrower shall be governed by the provisions of Section 8.03 hereof and not by
the provisions of this Section 8.02), or (ii) issue or sell Equity Interests of
any of its Subsidiaries, in the case of either clause (i) or (ii) above, whether
in a single transaction or a series of related transactions, (A) that have a
fair market value in excess of $5,000,000, or (B) for net proceeds in excess of
$5,000,000 (each of the foregoing, an "Asset Sale"), unless (X) the Borrower (or
the Subsidiary, as the case may be) receives consideration at the time of such
Asset Sale at least equal to the fair market value (evidenced by a resolution of
the board of directors of the General Partner (and, if applicable, the audit
committee of such board of directors) set forth in a certificate signed by a
Responsible Officer and delivered to the Administrative Agent) of the assets
sold or otherwise disposed of and (Y) at least 80% of the consideration therefor
received by the Borrower or such Subsidiary is in the form of cash; provided,
however, that the amount of (1) any liabilities (as shown on the Borrower's or
such Subsidiary's most recent balance sheet or in the notes thereto), of the
Borrower or any Subsidiary (other than liabilities that are by their terms
subordinated in right of payment to the Obligations hereunder) that are assumed
by the transferee of any such assets and (2) any notes or other obligations
received by the Borrower or any such Subsidiary from such transferee that are
immediately converted by the Borrower or such Subsidiary into cash (to the
extent of the cash received), shall be deemed to be cash for purposes of this
provision; and provided, further, that the 80% limitation referred to in this
clause (Y) shall not apply to any Asset Sale in which the cash portion of the
consideration received therefrom, determined in accordance with the foregoing
proviso, is equal to or greater than what the after-tax proceeds would have been
had such Asset Sale complied with the aforementioned 80% limitation.
Notwithstanding the foregoing, Asset Sales shall not be deemed to include (x)
any transfer of assets by the Borrower or any of its Subsidiaries to a
Subsidiary of the Borrower that is a Guarantor, (y) any transfer of assets by
the Borrower or any of its Subsidiaries to any Person in exchange for other
assets used in a line of business permitted under Section 8.15 hereof and having
a fair market value not less than that of the assets so transferred and (z) any
transfer of assets pursuant to a Permitted Investment.
..03 Consolidations and Mergers
(a) The Borrower shall not consolidate or merge with or into
(whether or not the Borrower is the surviving Person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another Person
unless (i) the Borrower is the surviving Person, or the Person formed by or
surviving any such consolidation or merger (if other than the Borrower) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made is a corporation or partnership organized or existing under
the laws of the United States, any state thereof or the District of Columbia;
and (ii) the Person formed by or surviving any such consolidation or merger (if
other than the Borrower) or Person to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made assumes all the
Obligations of the Borrower pursuant to an assumption agreement in a form
reasonably satisfactory to the Administrative Agent, under this Agreement; (iii)
immediately after such transaction no Default or Event of Default exists; and
(iv) the Borrower or any Person formed by or surviving any such consolidation or
merger, or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made (A) shall have Consolidated Net Worth
(immediately after the transaction but prior to any purchase accounting
adjustments resulting from the transaction) equal to or greater than the
Consolidated Net Worth of the Borrower immediately preceding the transaction and
(B) shall, at the time of such transaction and after giving effect thereto, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Leverage Ratio test set forth in Section 7.12(a).
(b) Within five days after the Restatement
Effective Date, Finance Corp. shall be
either dissolved or merged with or into the Borrower (in which case the Borrower
shall be the surviving Person).
(c) The Borrower shall deliver to the Administrative Agent
prior to the consummation of the proposed transaction pursuant to the foregoing
paragraphs (a) and (b) an officers' certificate to the foregoing effect signed
by a Responsible Officer and an opinion of counsel satisfactory to the
Administrative Agent stating that the proposed transaction complies with this
Agreement. The Administrative Agent and the Banks shall be entitled to
conclusively rely upon such officer's certificate and opinion of counsel.
(d) Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Borrower in accordance with this Section 8.03, the successor
Person formed by such consolidation or into or with which the Borrower is merged
or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Agreement referring to the "Borrower" shall
refer to or include instead the successor Person and not the Borrower), and may
exercise every right and power of the Borrower under this Agreement with the
same effect as if such successor Person had been named as the Borrower herein;
provided, however, that the predecessor Borrower shall not be relieved from the
obligation to pay the principal of, premium, if any, and interest on the
Obligations except in the case of a sale of all of such Borrower's assets that
meets the requirements of Section 8.03 hereof.
. Without limiting the generality of any other provision of this
Agreement, neither the Borrower nor any Subsidiary shall consummate any
Acquisition unless (i) the acquiree is primarily a retail propane distribution
business; (ii) such Acquisition is undertaken in accordance with all applicable
Requirements of Law; (iii) the prior, effective written consent or approval to
such Acquisition of the board of directors or equivalent governing body of the
acquiree is obtained; and (iv) immediately after giving effect thereto, no
Default or Event of Default will occur or be continuing and each of the
representations and warranties of the Borrower herein is true on and as of the
date of such Acquisition, both before and after giving effect thereto. Nothing
in Section 8.22 shall prohibit (x) the making by the Borrower of a Permitted
Acquisition indirectly through the General Partner, the MLP or any of its or
their Affiliates in a series of substantially contemporaneous transactions in
which the Borrower shall ultimately own the assets that are the subject of such
Permitted Acquisition or (y) the assumption of Acquired Debt in connection
therewith to the extent such Acquired Debt is provided by a Bank and, upon such
assumption, is (to the extent such Acquired Debt is not otherwise permitted to
be incurred by the Borrower pursuant to this Agreement) immediately repaid (with
the proceeds of Revolving Loans or otherwise).
. The Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, issue, assume, suffer to exist,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness (including Acquired Debt) or any Synthetic Leases and the Borrower
shall not issue any Disqualified Interests and shall not permit any of its
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Borrower and any Subsidiary of the Borrower may create, incur, issue, assume,
suffer to exist, guarantee or otherwise become directly or indirectly liable
with respect to any Indebtedness or any Synthetic Lease to the extent that the
Leverage Ratio is maintained in accordance with Section 7.12(a), both before and
after giving effect to the incurrence of such Indebtedness or such Synthetic
Lease, as the case may be, and, provided, further, that (x) the aggregate
principal amount of (1) all Capitalized Lease Obligations and all Synthetic
Lease Obligations (other than Capitalized Lease Obligations and Synthetic Lease
Obligations in respect of Growth-Related Capital Expenditures) of the Borrower
and its Subsidiaries and (2) all Indebtedness for which the Borrower and any
Subsidiary of the Borrower become liable in connection with Acquisitions of
retail propane businesses in favor of the sellers of such businesses and secured
by any Lien on any property of the Borrower or any of its Subsidiaries, shall
not exceed $65,000,000 at any one time outstanding and (y) the principal amount
of any Indebtedness for which the Borrower or any Subsidiary of the Borrower
becomes liable in connection with Acquisitions of retail propane businesses in
favor of the sellers of such businesses shall not exceed the fair market value
of the assets so acquired.
. The Borrower shall not, and shall not permit any of its Subsidiaries
to, sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into any contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate, including any Non-Recourse Subsidiary (each of the foregoing,
an "Affiliate Transaction"), unless (a) such Affiliate Transaction is on terms
that are no less favorable to the Borrower or the relevant Subsidiary than those
that would have been obtained in a comparable transaction by the Borrower or
such Subsidiary with an unrelated Person and (b) with respect to (i) any
Affiliate Transaction with an aggregate value in excess of $500,000, a majority
of the directors of the General Partner having no direct or indirect economic
interest in such Affiliate Transaction determines by resolution that such
Affiliate Transaction complies with clause (a) above and approves such Affiliate
Transaction and (ii) any Affiliate Transaction involving the purchase or other
acquisition or sale, lease, transfer or other disposition of properties or
assets other than in the ordinary course of business, in each case, having a
fair market value or for net proceeds in excess of $15,000,000, the Borrower
delivers to the Administrative Agent an opinion as to the fairness to the
Borrower or such Subsidiary from a financial point of view issued by an
investment banking firm of national standing; provided, however, that (i) any
employment agreement or stock option agreement entered into by the Borrower or
any of its Subsidiaries in the ordinary course of business and consistent with
the past practice of the Borrower (or the General Partner) or such Subsidiary,
Restricted Payments permitted by the provisions of Section 8.12, and
transactions entered into by the Borrower in the ordinary course of business in
connection with reinsuring the self-insurance programs or other similar forms of
retained insurable risks of the retail propane businesses operated by the
Borrower, its Subsidiaries and its Affiliates, in each case, shall not be deemed
Affiliate Transactions, and (ii) nothing herein shall authorize the payments by
the Borrower to the General Partner or any other Affiliate of the Borrower for
administrative expenses incurred by such Person other than such out-of-pocket
administrative expenses as such Person shall incur and the Borrower shall pay in
the ordinary course of business.
. The Borrower shall not, and shall not suffer or permit any Subsidiary
to, use any portion of the Loan proceeds or any Letter of Credit, directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Borrower or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
. The Borrower shall not, directly or indirectly, use any portion of
the Loan proceeds or any Letter of Credit (i) knowingly to purchase Ineligible
Securities from the Arranger or the Documentation Agent during any period in
which the Arranger or the Documentation Agent makes a market in such Ineligible
Securities, (ii) knowingly to purchase during the underwriting or placement
period Ineligible Securities being underwritten or privately placed by the
Arranger or the Documentation Agent, or (iii) to make payments of principal or
interest on Ineligible Securities underwritten or privately placed by the
Arranger or the Documentation Agent and issued by or for the benefit of the
Borrower or any Affiliate of the Borrower.
. The Borrower shall not, and shall not suffer or permit any Subsidiary
to, create, incur, assume or suffer to exist any Contingent Obligations except:
(a) endorsements for collection or deposit in
the ordinary course of business;
(b) subject to compliance with the trading policies in effect
from time to time as submitted to the Administrative Agent, Hedging Obligations
entered into in the ordinary course of business as bona fide hedging
transactions;
(c) the Guaranties hereunder; and
(d) Guaranty Obligations to the extent not
prohibited by Section 8.05.
. The Borrower shall not, and shall not suffer or permit any
Subsidiary to enter into any Joint Venture.
. The aggregate obligations of the Borrower and its Subsidiaries for
the payment of rent for any property under lease or agreement to lease
(excluding obligations of the Borrower and its Subsidiaries under or with
respect to Synthetic Leases) for any fiscal year shall not exceed the greater of
(a) $25,000,000 or (b) 20% of (i) Consolidated Cash Flow of the Borrower for the
most recently ended eight consecutive fiscal quarters divided by (ii) two;
provided, however, that any payment of rent for any property under lease or
agreement to lease for a term of less than one year (after giving effect to all
automatic renewals) shall not be subject to this Section 8.11. For purposes of
this Section 8.11, the calculation of Consolidated Cash Flow shall give pro
forma effect to Acquisitions (including all mergers and consolidations), Asset
Sales and other dispositions and discontinuances of businesses or assets that
have been made by the Borrower or any of its Subsidiaries during the reference
period or subsequent to such reference period and on or prior to the date of
calculation of Consolidated Cash Flow assuming that all such Acquisitions, Asset
Sales and other dispositions and discontinuances of businesses or assets had
occurred on the first day of the reference period.
. The Borrower shall not and shall not permit any of its Subsidiaries
to, directly or indirectly (i) declare or pay any dividend or make any
distribution on account of the Borrower's or any Subsidiary's Equity Interests
(other than (x) dividends or distributions payable in Equity Interests (other
than Disqualified Interests) of the Borrower, (y) dividends or distributions
payable to the Borrower or a Wholly-Owned Subsidiary of the Borrower that is a
Guarantor or (z) distributions or dividends payable pro rata to all holders of
Capital Interests of any such Subsidiary); (ii) purchase, redeem, call or
otherwise acquire or retire for value any Equity Interests of the Borrower or
any Subsidiary or other Affiliate of the Borrower (other than, subject to
compliance with Section 8.21, any such Equity Interests owned by a Wholly-Owned
Subsidiary of the Borrower that is a Guarantor); (iii) make any Investment other
than a Permitted Investment; or (iv) prepay, purchase, redeem, retire, defease
or refinance the 1998 Fixed Rate Senior Notes (all payments and other actions
set forth in clauses (i) through (iv) above being collectively referred to as
"Restricted Payments"), except to the extent that, at the time of such
Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof and each of the
representations and warranties of the Borrower set forth herein is true on and
as of the date of such Restricted Payment both before and after giving effect
thereto; and
(b) the Fixed Charge Coverage Ratio of the Borrower for the
Borrower's most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
Restricted Payment is made, calculated on a pro forma basis as if such
Restricted Payment had been made at the beginning of such four-quarter period,
would have been more than 2.25 to 1; and
(c) such Restricted Payment (the amount of any such payment,
if other than cash, to be determined by the Board of Directors, whose
determination shall be conclusive and evidenced by a resolution in an officer's
certificate signed by a Responsible Officer and delivered to the Administrative
Agent), together with the aggregate of all other Restricted Payments (other than
any Restricted Payments permitted by the provisions of clause (ii) of the
penultimate paragraph of this Section 8.12) made by the Borrower and its
Subsidiaries in the fiscal quarter during which such Restricted Payment is made
shall not exceed an amount equal to (x) Available Cash of the Borrower for the
immediately preceding fiscal quarter plus (y) the lesser of (i) the amount of
any Available Cash of the Borrower during the first 45 days of such fiscal
quarter and (ii) the excess of the aggregate amount of Loans that the Borrower
could have borrowed over the actual amount of Loans outstanding, in each case as
of the last day of the immediately preceding fiscal quarter; and
(d) such Restricted Payment (other than any Restricted
Payments described in clauses (iii) or (iv) of the first paragraph of this
Section 8.12) the amount of which, if made other than with cash, to be
determined in accordance with clause (c) of this Section 8.12, shall not exceed
an amount equal to (1) Consolidated Cash Flow of the Borrower and its
Subsidiaries for the period from and after October 31, 1996 through and
including the last day of the fiscal quarter ending immediately preceding the
date of the proposed Restricted Payment (the "Determination Period"), minus (2)
the sum of Consolidated Interest Expense of the Borrower and its Subsidiaries
for the Determination Period plus all capital expenditures (other than
Growth-Related Capital Expenditures and net of capital asset sales in the
ordinary course of business) made by the Borrower and its Subsidiaries during
the Determination Period plus the aggregate of all other Restricted Payments
(other than any Restricted Payments described in clauses (iii) or (iv) of the
first paragraph of this Section 8.12) made by the Borrower and its Subsidiaries
during the period from and after October 31, 1996 through and including the date
of the proposed Restricted Payment, plus (3) $30,000,000, plus (4) the excess,
if any, of consolidated working capital of the Borrower and its Subsidiaries at
July 31, 1996 over consolidated working capital of the Borrower and its
Subsidiaries at the end of the fiscal year immediately preceding the date of the
proposed Restricted Payment, minus (5) the excess, if any, of consolidated
working capital of the Borrower and its Subsidiaries at the end of the fiscal
year immediately preceding the date of the proposed Restricted Payment over
consolidated working capital of the Borrower and its Subsidiaries at July 31,
1996. For purposes of this subsection 8.12(d), the calculation of Consolidated
Cash Flow shall give pro forma effect to Acquisitions (including all mergers and
consolidations), Asset Sales and other dispositions and discontinuances of
businesses or assets that have been made by such Person or any of its
Subsidiaries during the reference period or subsequent to such reference period
and on or prior to the date of calculation of Consolidated Cash Flow assuming
that all such Acquisitions, Asset Sales and other dispositions and
discontinuances of businesses or assets had occurred on the first day of the
reference period.
The foregoing provisions will not prohibit (i) the payment of
any distribution within 60 days after the date on which the Borrower becomes
committed to make such distribution, if at said date of commitment such payment
would have complied with the provisions of this Agreement; and (ii) the
redemption, repurchase, retirement or other acquisition of any Equity Interests
of the Borrower in exchange for, or out of the proceeds of, the substantially
concurrent sale (other than to a Subsidiary of the Borrower) of other Equity
Interests of the Borrower (other than any Disqualified Interests).
Not later than the date of making any Restricted Payment, the
General Partner shall deliver to the Administrative Agent an officer's
certificate signed by a Responsible Officer stating that such Restricted Payment
is permitted and setting forth the basis upon which the calculations required by
this Section 8.12 were computed, which calculations may be based upon the
Borrower's latest available financial statements.
. The Borrower shall not, and shall not permit any of its Subsidiaries
to, (a) purchase, redeem, retire or otherwise acquire for value, or set apart
any money for a sinking, defeasance or other analogous fund for, the purchase,
redemption, retirement or other acquisition of, or make any payment or
prepayment of the principal of or interest on, or any other amount owing in
respect of, any Indebtedness that is subordinated to the Obligations, except for
regularly scheduled payments of interest in respect of such Indebtedness
required pursuant to the instruments evidencing such Indebtedness that are not
made in contravention of the terms and conditions of subordination set forth on
part II of Schedule 8.05 or (b) directly or indirectly, make any payment in
respect of, or set apart any money for a sinking, defeasance or other analogous
fund on account of, Guaranty Obligations subordinated to the Obligations. The
foregoing provisions will not prohibit the defeasance, redemption or repurchase
of subordinated Indebtedness with the proceeds of Permitted Refinancing
Indebtedness.
. The Borrower shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
to (a) pay dividends or make any other distributions to the Borrower or any of
its Subsidiaries (1) on its Capital Interests or (2) with respect to any other
interest or participation in, or interest measured by, its profits, (b) pay any
indebtedness owed to the Borrower or any of its Subsidiaries, (c) make loans or
advances to the Borrower or any of its Subsidiaries or (d) transfer any of its
properties or assets to the Borrower or any of its Subsidiaries, except for such
encumbrances or restrictions existing under or by reason of (i) Existing
Indebtedness, (ii) this Agreement, the 1998 Note Purchase Agreement and the 1998
Fixed Rate Senior Notes, (iii) applicable law, (iv) any instrument governing
Indebtedness or Capital Interests of a Person acquired by the Borrower or any of
its Subsidiaries as in effect at the time of such Acquisition (except to the
extent such Indebtedness was incurred in connection with or in contemplation of
such Acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that the Consolidated
Cash Flow of such Person to the extent that dividends, distributions, loans,
advances or transfers thereof is limited by such encumbrance or restriction on
the date of acquisition is not taken into account in determining whether such
acquisition was permitted by the terms of this Agreement, (v) customary
non-assignment provisions in leases entered into in the ordinary course of
business and consistent with past practices, (vi) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (d) above on the property so acquired, (vii)
Permitted Refinancing Indebtedness of any Existing Indebtedness, provided that
the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced or (viii) other
Indebtedness permitted to be incurred subsequent to the Restatement Effective
Date pursuant to the provisions of Section 8.05 hereof, provided that such
restrictions are no more restrictive than those contained in this Agreement.
. The Borrower shall not, and shall not suffer or permit any Subsidiary
to, engage in any material line of business substantially different from those
lines of business carried on by the Borrower and its Subsidiaries on the date
hereof.
. The Borrower shall not, and shall not suffer or permit any Subsidiary
to, make any significant change in accounting treatment or reporting practices,
except as required by GAAP, or change the fiscal year of the Borrower or of any
Subsidiary except as required by the Code.
. The Borrower will not, and will not permit any of its Subsidiaries
to, enter into any arrangement with any Person providing for the leasing by the
Borrower or such Subsidiary of any property that has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person in contemplation
of such leasing; provided, however, that the Borrower or such Subsidiary may
enter into such sale and leaseback transaction if (i) the Borrower could have
(A) incurred Indebtedness in an amount equal to the Attributable Debt relating
to such sale and leaseback transaction pursuant to the Leverage Ratio test set
forth in Section 7.12(a) and (B) secured a Lien on such Indebtedness pursuant to
Section 8.01 or (ii) the lease in such sale and leaseback transaction is for a
term not in excess of the lesser of (A) three years and (B) 60% of the remaining
useful life of such property.
8.18 [Intentionally Omitted]
. The Borrower shall not modify, amend, supplement or replace, nor
permit any modification, amendment, supplement or replacement of the
Organization Documents of the General Partner, the Borrower or any Subsidiary of
the Borrower, the MLP Senior Notes, the 1996 Indenture, the 1998 Fixed Rate
Senior Notes or the 1998 Note Purchase Agreement or any document executed and
delivered in connection with any of the foregoing, in any respect that would
adversely affect the Banks, the Borrower's ability to perform the Obligations,
or the Guarantor's ability to perform its obligations under the Guaranty, in
each such case without the prior written consent of the Administrative Agent and
the Majority Banks. Furthermore, the Borrower shall not permit any modification,
amendment, supplement or replacement of the Organization Documents of the MLP
that would have a material effect on the Borrower without the prior written
consent of the Administrative Agent and the Majority Banks.
. None of the Borrower and its Subsidiaries shall at any time be a
party or subject to any contract for the supply of propane or other product
except where (a) the purchase price is set with reference to a spot index or
indices substantially contemporaneously with the delivery of such product or (b)
delivery of such propane or other product is to be made no more than one year
after the purchase price is agreed to.
. The Borrower shall not conduct any of its operations through
Subsidiaries unless: (a) such Subsidiary executes a Guaranty substantially in
the form of Exhibit G guaranteeing payment of the Obligations, accompanied by an
opinion of counsel to the Subsidiary addressed to the Administrative Agent and
the Banks as to the due authorization, execution, delivery and enforceability of
the Guaranty; (b) such Subsidiary agrees not to incur any Indebtedness other
than (i) trade debt and (ii) Acquired Debt permitted by Section 8.05; (c) the
Consolidated Cash Flow of such Subsidiary, when added to Consolidated Cash Flow
of all other Subsidiaries for any fiscal year, shall not exceed 10% of the
Consolidated Cash Flow of the Borrower and its Subsidiaries for such fiscal
year; and (d) the value of the assets of such Subsidiary, when added to the
value of the assets of all other Subsidiaries for any fiscal year, shall not
exceed 10% of the consolidated value of the assets of the Borrower and its
Subsidiaries for such fiscal year, as determined in accordance with GAAP.
. Except in connection with an indirect Acquisition permitted by
Section 8.04, the General Partner and the Borrower shall not permit the MLP or
any of its Affiliates (including any Non-Recourse Subsidiary) to operate or
conduct any business substantially similar to that conducted by the Borrower and
its Subsidiaries within a 25 mile radius of any business conducted by the
Borrower and its Subsidiaries. In order to comply with this Section 8.22, the
Borrower may enter into one or more transactions by which its assets and
properties are "swapped" or "exchanged" for assets and properties of another
Person prior to or concurrently with another transaction which, but for such
swap or exchange would violate this Section; provided, that (i) if the value of
the MLP's assets or units to be so swapped or exchanged exceeds $15 million, as
determined by the audit committee of the Board of Directors of the General
Partner, the Borrower shall have first obtained at its expense an opinion from a
nationally recognized investment banking firm, addressed to it, the
Administrative Agent and the Banks and opining without material qualification
and based on assumptions that are realistic at the time, that the exchange or
swap transactions are fair to the Borrower and its Subsidiaries, and (ii) if the
value of the MLP's assets or units to be so swapped or exchanged exceeds $50
million, as determined by the audit committee of the Board of Directors of the
General Partner, at the option of the Majority Banks, the Administrative Agent
shall have first retained, at the Borrower's expense, an investment banking firm
on behalf of the Banks who shall also have rendered an opinion containing the
statements and content referred to in clause (i).
ARTICLE IX
EVENTS OF DEFAULT
. Any of the following shall constitute an "Event of Default":
(a) Non-Payment. The Borrower or the General Partner fails to
pay, (i) when and as required to be paid herein, any amount of principal of any
Loan or of any L/C Obligation, or (ii) within 5 days after the same becomes due,
any interest, fee or any other amount payable hereunder or under any other Loan
Document; or
(b) Representation or Warranty. Any representation or warranty
by the Borrower, the General Partner or any Subsidiary made or deemed made
herein, in any other Loan Document, or which is contained in any certificate,
document or financial or other statement by the Borrower, the General Partner,
any Subsidiary, or any Responsible Officer, furnished at any time under this
Agreement, or in or under any other Loan Document, is incorrect in any material
respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Borrower fails to
perform or observe any term,
covenant or agreement contained in any of Sections 2.01(a)(ii), 7.01, 7.02,
7.03, 7.04, 7.06, 7.09, 7.12, 7.13,
7.15, 7.16 or in any Section in Article VIII; or
(d) Other Defaults. The Borrower, the General Partner or any
Subsidiary fails to perform or observe any other term or covenant contained in
this Agreement or any other Loan Document, and such default shall continue
unremedied for a period of 20 days after the earlier of (i) the date upon which
a Responsible Officer knew or reasonably should have known of such failure or
(ii) the date upon which written notice thereof is given to the Borrower by the
Administrative Agent or any Bank; or
(e) Cross-Default. The Borrower, the General Partner or any
Subsidiary (i) fails to make any payment in respect of any Indebtedness or
Contingent Obligation having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than $10,000,000
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable grace or
notice period, if any, specified in the relevant document on the date of such
failure; or (ii) fails to perform or observe any other condition or covenant, or
any other event shall occur or condition exist, under any agreement or
instrument relating to any such Indebtedness or Contingent Obligation, and such
failure continues after the applicable grace or notice period, if any, specified
in the relevant document on the date of such failure if the effect of such
failure, event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity or to cause such Indebtedness or Contingent
Obligation to be prepaid, purchased or redeemed by the Borrower, the MLP, the
General Partner or any Subsidiary, or such Contingent Obligation to become
payable or cash collateral in respect thereof to be demanded; or
(f) Insolvency; Voluntary Proceedings. The General Partner,
the MLP, the Borrower or any Subsidiary (i) ceases or fails to be solvent, or
generally fails to pay, or admits in writing its inability to pay, its debts as
they become due, subject to applicable grace periods, if any, whether at stated
maturity or otherwise; (ii) voluntarily ceases to conduct its business in the
ordinary course; (iii) commences any Insolvency Proceeding with respect to
itself; or (iv) takes any action to effectuate or authorize any of the
foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
Proceeding is commenced or filed against the General Partner, the MLP, the
Borrower or any Subsidiary, or any writ, judgment, warrant of attachment,
execution or similar process, is issued or levied against a substantial part of
any such Person's properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded within 60 days after
commencement, filing or levy; (ii) the General Partner, the MLP, the Borrower or
any Subsidiary admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-U.S.
law) is ordered in any Insolvency Proceeding; or (iii) the General Partner, the
MLP, the Borrower or any Subsidiary acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan which has resulted or could reasonably be expected to result in liability
of the Borrower or the General Partner under Title IV of ERISA to the Pension
Plan or the PBGC in an aggregate amount in excess of $5 million; or (ii) the
commencement or increase of contributions to, or the adoption of or the
amendment of a Pension Plan by the Borrower, the General Partner or any of their
Affiliates which has resulted or could reasonably be expected to result in an
increase in Unfunded Pension Liability among all Pension Plans in an aggregate
amount in excess of $5 million.
(i) Monetary Judgments. One or more judgments, orders, decrees
or arbitration awards is entered against the Borrower, the General Partner or
any Subsidiary involving in the aggregate a liability (to the extent not covered
by independent third-party insurance as to which the insurer does not dispute
coverage) as to any single or related series of transactions, incidents or
conditions, of more than $40,000,000; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order
or decree is entered against the Borrower, the General Partner or any Subsidiary
which does or would reasonably be expected to have a Material Adverse Effect,
and there shall be any period of 60 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(k) Loss of Licenses. Any Governmental Authority revokes or
fails to renew any material license, permit or franchise of the Borrower or any
Subsidiary, or the Borrower or any Subsidiary for any reason loses any material
license, permit or franchise, or the Borrower or any Subsidiary suffers the
imposition of any restraining order, escrow, suspension or impound of funds in
connection with any proceeding (judicial or administrative) with respect to any
material license, permit or franchise; or
(l) Adverse Change. There occurs a Material
Adverse Effect; or
(m) Certain Indenture Defaults, Etc. (i) To the extent not
otherwise within the scope of subsection 9.01(e) above, any "Event of Default"
shall occur and be continuing under and as defined in the 1998 Note Purchase
Agreement or (ii) any of the following shall occur under or with respect to the
1996 Indenture or any other Indebtedness guaranteed by the Borrower or its
Subsidiaries (collectively, the "Guaranteed Indebtedness"): (A) any demand for
payment shall be made under any such Guaranty Obligation with respect to the
Guaranteed Indebtedness or (B) so long as any such Guaranty Obligation shall be
in effect (x) the Borrower or any such Subsidiary shall fail to pay principal of
or premium, if any, or interest on such Guaranteed Indebtedness after the
expiration of any applicable notice or cure periods or (y) any "Event of
Default" (however defined) shall occur and be continuing under such Guaranteed
Indebtedness which results in the acceleration of such Guaranteed Indebtedness;
or
(n) Guarantor Defaults. Any Guarantor fails in any material
respect to perform or observe any term, covenant or agreement in its Guaranty;
or any Guaranty is for any reason partially (including with respect to future
advances) or wholly revoked or invalidated, or otherwise ceases to be in full
force and effect, or any Guarantor or any other Person contests in any manner
the validity or enforceability thereof or denies that it has any further
liability or obligation thereunder; or any event described at subsections (f) or
(g) of this Section occurs with respect to the Guarantor.
. If any Event of Default occurs, the Administrative Agent shall, at
the request of, or may, with the
consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Loans and any
obligation of an Issuing Bank to Issue Letters of Credit to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable;
(c) declare the unpaid principal amount of all outstanding
Loans, all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and
payable (including, without limitation, amounts due under Section 4.04), without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; and
(d) exercise on behalf of itself and the Banks
all rights and remedies available
to it and the Banks under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 9.01 (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), the obligation of each Bank
to make Loans and any obligation of the Issuing Banks to Issue Letters of Credit
shall automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically become
due and payable without further act of the Administrative Agent, any Issuing
Bank or any Bank.
. The rights provided for in this Agreement and the other Loan
Documents are cumulative and are not exclusive of any other rights, powers,
privileges or remedies provided by law or in equity, or under any other
instrument, document or agreement now existing or hereafter arising.
. In the event that, after taking into account any extraordinary charge
to earnings taken or to be taken as of the end of any fiscal period of the
Borrower (a "Charge"), and if solely by virtue of such Charge, there would exist
an Event of Default due to the breach of any of subsections 7.12(a) or 7.12(b)
as of such fiscal period end date, such Event of Default shall be deemed to
arise upon the earlier of (a) the date after such fiscal period end date on
which the Borrower announces publicly it will take, is taking or has taken such
Charge (including an announcement in the form of a statement in a report filed
with the SEC) or, if such announcement is made prior to such fiscal period end
date, the date that is such fiscal period end date, and (b) the date the
Borrower delivers to the Administrative Agent its audited annual or unaudited
quarterly financial statements in respect of such fiscal period reflecting such
Charge as taken.
ARTICLE X
THE ADMINISTRATIVE AGENT
. (a) Each of the Banks and each Issuing Bank hereby irrevocably
appoints, designates and authorizes the Administrative Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary contained elsewhere in this Agreement or in any
other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Bank or any Issuing Bank, 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. The Documentation Agent shall have no duties or
responsibilities in such capacity under this Agreement.
(b) Each Issuing Bank shall act on behalf of the Banks with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Majority Lenders to act for such Issuing Bank with
respect thereto; provided, however, that such Issuing Bank shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this Article
X with respect to any acts taken or omissions suffered by such Issuing Bank in
connection with Letters of Credit Issued by it or proposed to be Issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as if the term "Administrative Agent", as used in
this Article X, included such Issuing Bank with respect to such acts or
omissions, and (ii) as additionally provided in this Agreement with respect to
such Issuing Bank.
. The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
. None of the Agent-Related Persons and Issuing Banks shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by the Borrower or any Subsidiary or
Affiliate of the Borrower, or any officer thereof, contained in this Agreement
or in any other 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, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the Borrower or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower or any
of the Borrower's Subsidiaries or Affiliates.
. (a) The Administrative Agent and each Issuing Bank shall be entitled
to rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel to the Borrower), independent accountants and other experts selected by
the Administrative Agent or applicable Issuing Bank. The Administrative Agent
and each Issuing Bank shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent
and each Issuing Bank shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Majority Banks and such request and
any action taken or failure to act pursuant thereto shall be binding upon all of
the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the Administrative Agent or an Issuing
Bank to such Bank for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Bank.
. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Administrative Agent for the account of the Banks, unless the
Administrative Agent shall have received written notice from a Bank or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The
Administrative Agent will notify the Banks of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be requested by the Majority Banks in accordance with
Article IX; provided, however, that unless and until the Administrative Agent
has received any such request, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Banks.
. Each Bank acknowledges that none of the Agent-Related Persons or any
Issuing Bank has made any representation or warranty to it, and that no act by
the Administrative Agent or any Issuing Bank hereinafter taken, including any
review of the affairs of the Borrower and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Agent-Related Person or any
Issuing Bank to any Bank. Each Bank represents to the Administrative Agent and
the Issuing Banks that it has, independently and without reliance upon any
Agent-Related Person or any Issuing Bank and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower and its Subsidiaries, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Borrower hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person or any Issuing
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents to be furnished to the Banks by the Administrative Agent or any
Issuing Bank as specified on Schedule 10.06, neither the Administrative Agent
nor any Issuing Bank shall have any duty or responsibility to provide any Bank
with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Borrower which may come into the possession of any of the Agent-Related Persons
or any Issuing Bank. The Administrative Agent shall promptly deliver to the
Banks the items specified on Schedule 10.06 that are required to be provided by
the Borrower only to the extent such items are actually provided by the
Borrower.
. Whether or not the transactions contemplated hereby are consummated,
the Banks shall indemnify upon demand the Agent-Related Persons and the Issuing
Banks (to the extent not reimbursed by or on behalf of the Borrower and without
limiting the obligation of the Borrower to do so), pro rata in accordance with
its Pro Rata Share on the date the Borrower's reimbursement obligation arises,
from and against any and all Indemnified Liabilities; provided, however, that no
Bank shall be liable for the payment to the Agent-Related Persons or the Issuing
Banks of any portion of such Indemnified Liabilities resulting solely from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank shall reimburse the Administrative Agent and the Issuing
Banks upon demand for their ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by them in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Administrative Agent or the applicable Issuing Bank is not
reimbursed for such expenses by or on behalf of the Borrower. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Administrative Agent or any Issuing Bank.
. BofA and its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with the Borrower and its Subsidiaries and Affiliates as
though BofA were not the Administrative Agent or an Issuing Bank hereunder and
without notice to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, BofA or its Affiliates may receive information regarding the
Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Subsidiary) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them. With respect to its Loans and participations
in Letters of Credit, BofA shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not the
Administrative Agent or an Issuing Bank.
. The Administrative Agent may, and at the request of the Majority
Banks shall, resign as Administrative Agent upon 30 days' notice to the Banks.
If the Administrative Agent resigns under this Agreement, the Majority Banks
shall appoint from among the Banks a successor agent for the Banks. If no
successor agent is appointed prior to the effective date of the resignation of
the Administrative Agent, the Administrative Agent may appoint, after consulting
with the Banks and the Borrower, a successor agent from among the Banks. Upon
the acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring
Administrative Agent and the term "Administrative Agent" shall mean such
successor agent and the retiring Administrative Agent's appointment, powers and
duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article X and Sections 11.04 and 11.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor agent has accepted
appointment as Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Majority Banks appoint a successor
agent as provided for above. Notwithstanding the foregoing, however, BofA may
not be removed as the Administrative Agent at the request of the Majority Banks
unless BofA shall also simultaneously be replaced as an "Issuing Bank" hereunder
pursuant to documentation in form and substance reasonably satisfactory to BofA.
. (a) If any Bank is a "foreign corporation, partnership or trust"
within the meaning of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
Bank agrees with and in favor of the Administrative Agent, to deliver to the
Administrative Agent:
(i) if such Bank claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty,
properly completed IRS Forms 1001 and W-8 (or any successor forms)
before the payment of any interest in the first calendar year and
before the payment of any interest in each third succeeding calendar
year during which interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid under
this Agreement is exempt from United States withholding tax because it
is effectively connected with a United States trade or business of such
Bank, two properly completed and executed copies of IRS Form 4224 (or
any successor form) before the payment of any interest is due in the
first taxable year of such Bank and in each succeeding taxable year of
such Bank during which interest may be paid under this Agreement, and
IRS Form W-9 (or any successor form); and
(iii) such other form or forms as may be required
under the Code or other laws of the United States as a condition to
exemption from, or reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001 and
such Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Borrower to such Bank, such Bank agrees to
notify the Administrative Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of the Borrower to such Bank. To the
extent of such percentage amount, the Administrative Agent will treat such
Bank's IRS Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Administrative Agent sells,
assigns, grants a participation in, or otherwise transfers all or part of the
Obligations of the Borrower to such Bank, such Bank agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by
Sections 1441 and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such Bank an amount equivalent to the applicable withholding tax after taking
into account such reduction. If the forms or other documentation required by
subsection (a) of this Section are not delivered to the Administrative Agent,
then the Administrative Agent may withhold from any interest payment to such
Bank not providing such forms or other documentation an amount equivalent to the
applicable withholding tax.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Administrative
Agent did not properly withhold tax from amounts paid to or for the account of
any Bank (because the appropriate form was not delivered, was not properly
executed, or because such Bank failed to notify the Administrative Agent of a
change in circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank shall indemnify
the Administrative Agent fully for all amounts paid, directly or indirectly, by
the Administrative Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
the Administrative Agent under this Section, together with all costs and
expenses (including Attorney Costs). The obligation of the Banks under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of the Administrative Agent.
ARTICLE XI
MISCELLANEOUS
. No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent with respect to any departure by the
Borrower or the General Partner therefrom, shall be effective unless the same
shall be in writing and signed by the Majority Banks (or by the Administrative
Agent at the written request of the Majority Banks) and the Borrower and
acknowledged by the Administrative Agent, and then any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such waiver, amendment, or consent
shall, unless in writing and signed by all the Banks, the Borrower and the
General Partner and acknowledged by the Administrative Agent, do any of the
following:
(a) increase or extend the Revolving Loan
Commitment of any Bank (or reinstate any
Revolving Loan Commitment terminated pursuant to Section 9.02);
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to the Banks (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (ii) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Revolving Loan Commitments or
of the aggregate unpaid principal amount of the Loans which is required for the
Banks or any of them to take any action hereunder;
(e) amend this Section, or Section 2.14, or any
provision herein providing for
consent or other action by all Banks; or
(f) release any of the Guaranties;
and, provided, further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Issuing Banks in addition to the Majority Banks or
all the Banks, as the case may be, affect the rights or duties of the Issuing
Banks under this Agreement or any L/C-Related Document relating to any Letter of
Credit Issued or to be Issued by any such Issuing Bank, (ii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Majority Banks or all the Banks, as the case may be,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document, and (iii) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed solely by the parties
thereto.
. (a) Except as otherwise specifically provided in Section 3.02, all
notices, requests and other communications shall be in writing (including,
unless the context expressly otherwise provides, by facsimile transmission;
provided, that any matter transmitted by the Borrower by facsimile (i) shall be
immediately confirmed by a telephone call to the recipient at the number
specified on Schedule 11.02, and (ii) shall be followed promptly by delivery of
a hard copy original thereof) and mailed, faxed or delivered, to the address or
facsimile number specified for notices on Schedule 11.02; or, as directed to the
Borrower or the Administrative Agent, to such other address as shall be
designated by such party in a written notice to the other parties, and as
directed to any other party, at such other address as shall be designated by
such party in a written notice to the Borrower and the Administrative Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the U.S. mail, or if delivered, upon delivery; except that
notices pursuant to Article II, III or X shall not be effective until actually
received by the Administrative Agent, and notices pursuant to Article III to any
Issuing Bank shall not be effective until actually received by such Issuing Bank
at the address specified for the "Issuing Banks" on the applicable signature
page hereof.
(c) Any agreement of the Administrative Agent and the Banks
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and the
Banks shall be entitled to rely on the authority of any Person purporting to be
a Person authorized by the Borrower to give such notice and the Administrative
Agent and the Banks shall not have any liability to the Borrower or other Person
on account of any action taken or not taken by the Administrative Agent or the
Banks in reliance upon such telephonic or facsimile notice. The obligation of
the Borrower to repay the Loans and L/C Obligations shall not be affected in any
way or to any extent by any failure by the Administrative Agent and the Banks to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent and the Banks of a confirmation which is at
variance with the terms understood by the Administrative Agent and the Banks to
be contained in the telephonic or facsimile notice.
. No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Bank, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege.
. The Borrower shall:s and Expenses
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Administrative
Agent and an Issuing Bank) and the Arranger within five Business Days after
demand (subject to subsection 5.01(f)) for all costs and expenses incurred by
BofA (including in its capacity as Administrative Agent and an Issuing Bank) and
the Arranger in connection with the development, preparation, delivery,
administration, syndication and execution of, and any amendment, supplement,
waiver or modification to (in each case, whether or not consummated), this
Agreement, any Loan Document, the Existing Credit Agreement and any other
documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, including reasonable (giving
due regard to the prevailing circumstances) Attorney Costs incurred by BofA
(including in its capacity as Administrative Agent and an Issuing Bank) and the
Arranger with respect thereto; and
(b) pay or reimburse the Administrative Agent, the Arranger,
each Issuing Bank and each Bank within five Business Days after demand for all
costs and expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or any other Loan Document during the existence of
an Event of Default or after acceleration of the Loans (including in connection
with any "workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding).
. Whether or not the transactions contemplated hereby are consummated,
the Borrower shall indemnify and hold the Agent-Related Persons, the Issuing
Banks, the Arranger and each Bank and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits and
reasonable (giving due regard to the prevailing circumstances) costs, charges,
expenses and disbursements (including Attorney Costs) of any kind or nature
whatsoever which may at any time (including at any time following repayment of
the Loans, the termination of the Letters of Credit and the termination,
resignation or replacement of the Administrative Agent or replacement of any
Bank or Issuing Bank) be imposed on, incurred by or asserted against any such
Person in any way relating to or arising out of this Agreement or any document
contemplated by or referred to herein, or the transactions contemplated hereby,
or any action taken or omitted by any such Person under or in connection with
any of the foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding) related
to or arising out of this Agreement or the Loans or Letters of Credit or the
actual or proposed use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided, that the Borrower shall have no obligation hereunder to
any Indemnified Person with respect to Indemnified Liabilities resulting solely
from the gross negligence or willful misconduct of such Indemnified Person. The
agreements in this Section shall survive payment of all other Obligations.
. To the extent that the Borrower makes a payment to the Administrative
Agent or the Banks, or the Administrative Agent or the Banks exercise their
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent or such Bank in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any Insolvency Proceeding or
otherwise, then (a) to the extent of such recovery the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Bank severally agrees to pay to the Administrative
Agent upon demand its pro rata share of any amount so recovered from or repaid
by the Administrative Agent.
. The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent and each Bank. Any attempted or purported assignment in
contravention of the preceding sentence shall be null and void.
(a) Any Bank may, with the written consent of the Borrower (at all
times other than during the existence of an Event of Default), the
Administrative Agent and the applicable Issuing Bank(s), which consents shall
not be unreasonably withheld, at any time assign and delegate to one or more
Eligible Assignees (provided that no written consent of the Borrower, the
Administrative Agent or an Issuing Bank shall be required in connection with any
assignment and delegation by a Bank to an Eligible Assignee that is an Affiliate
of such Bank) (each an "Assignee") all, or any ratable part of all, of the
Loans, the Revolving Loan Commitments, the L/C Obligations and the other rights
and obligations of such Bank hereunder in an aggregate minimum amount of
$10,000,000, pro-rated in accordance with the respective amounts of the Facility
A Commitment, the Facility B Commitment and the Facility C Commitment of such
Bank; provided that such Bank shall retain an aggregate amount of not less than
$10,000,000 in respect thereof, unless such Bank assigns and delegates all of
its rights and obligations hereunder to one or more Eligible Assignees on the
time and subject to the conditions set forth herein; and provided, further,
however, that the Borrower and the Administrative Agent may continue to deal
solely and directly with such Bank in connection with the interest so assigned
to an Assignee until (i) written notice of such assignment, together with
payment instructions, addresses and related information with respect to the
Assignee, shall have been given to the Borrower and the Administrative Agent by
such Bank and the Assignee; (ii) such Bank and its Assignee shall have delivered
to the Borrower and the Administrative Agent an Assignment and Acceptance in the
form of Exhibit E ("Assignment and Acceptance"), together with any Note or Notes
subject to such assignment; and (iii) the assignor Bank has paid to the
Administrative Agent a processing fee in the amount of $3,500.
(b) From and after the date that the Administrative Agent
notifies the assignor Bank that it has received (and provided its consent with
respect to) an executed Assignment and Acceptance and payment of the
above-referenced processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Bank under the Loan Documents, and (ii) the assignor Bank
shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Within five Business Days after its receipt of notice by
the Administrative Agent that it has received an executed Assignment and
Acceptance and payment of the processing fee (and provided that it consents to
such assignment in accordance with subsection 11.08(a)), if the Assignee so
requests, the Borrower shall execute and deliver to the Administrative Agent,
new Notes evidencing such Assignee's assigned Loans and Revolving Loan
Commitments and, if the assignor Bank has retained a portion of its Loans and
its Revolving Loan Commitments and so requests, replacement Notes in the
principal amount or amounts of the Loans retained by the assignor Bank (such
Notes to be in exchange for, but not in payment of, the Notes held by such
Bank). Immediately upon each Assignee's making its processing fee payment under
the Assignment and Acceptance, this Agreement shall be deemed to be amended to
the extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Revolving Loan Commitments arising
therefrom. The Revolving Loan Commitments allocated to each Assignee shall
reduce such Revolving Loan Commitments of the assigning Bank pro tanto and the
Administrative Agent shall promptly prepare and distribute a new Schedule 2.01
reflecting the new commitments.
(d) Any Bank may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Borrower (a "Participant")
participating interests in any Loans, the Revolving Loan Commitments of that
Bank and the other interests of that Bank (the "originating Bank") hereunder and
under the other Loan Documents; provided, however, that (i) the originating
Bank's obligations under this Agreement shall remain unchanged, (ii) the
originating Bank shall remain solely responsible for the performance of such
obligations, (iii) the Borrower, the Issuing Banks and the Administrative Agent
shall continue to deal solely and directly with the originating Bank in
connection with the originating Bank's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no Bank shall transfer or grant
any participating interest under which the Participant has rights to approve any
amendment to, or any consent or waiver with respect to, this Agreement or any
other Loan Document, except to the extent such amendment, consent or waiver
would require unanimous consent of the Banks as described in the first proviso
to Section 11.01. In the case of any such participation, the Participant shall
be entitled to the benefit of Sections 4.01, 4.03 and 11.05 as though it were
also a Bank hereunder, and if amounts outstanding under this Agreement are due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all information
identified as "confidential" or "secret" by the Borrower and provided to it by
the Borrower or any Subsidiary, or by the Administrative Agent on such
Borrower's or Subsidiary's behalf, under this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Loan Documents; except to the extent such information (i) was or
becomes generally available to the public other than as a result of disclosure
by the Bank, or (ii) was or becomes available on a non-confidential basis from a
source other than the Borrower, provided that such source is not bound by a
confidentiality agreement with the Borrower known to the Bank; provided,
however, that any Bank may disclose such information (A) at the request or
pursuant to any requirement of any Governmental Authority to which the Bank is
subject or in connection with an examination of such Bank by any such authority;
(B) pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to the
extent reasonably required in connection with any litigation or proceeding to
which the Administrative Agent, any Bank or their respective Affiliates may be
party; (E) to the extent reasonably required in connection with the exercise of
any remedy hereunder or under any other Loan Document; (F) to such Bank's
independent auditors and other professional advisors; (G) to any Affiliate of
such Bank, or to any Participant or Assignee, actual or potential, provided that
such Affiliate, Participant or Assignee agrees to keep such information
confidential to the same extent required of the Banks hereunder, and (H) as to
any Bank, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Borrower is party or is deemed
party with such Bank.
(f) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and any Note held by
it in favor of any Federal Reserve Bank in accordance with Regulation A of the
FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank
may enforce such pledge or security interest in any manner permitted under
applicable law.
. In addition to any rights and remedies of the Banks provided by law,
if an Event of Default exists or the Loans have been accelerated, each Bank is
authorized at any time and from time to time, without prior notice to the
Borrower, any such notice being waived by the Borrower to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Bank to or for the credit or the account
of the Borrower against any and all Obligations owing to such Bank, now or
hereafter existing, irrespective of whether or not the Administrative Agent or
such Bank shall have made demand under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Bank agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Bank; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application.
Each Bank shall notify the Administrative Agent in writing of any
changes in the address to which notices to the Bank should be directed, of
addresses of any Lending Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative information
as the Administrative Agent shall reasonably request.
. (a) On or prior to the Restatement Effective Date, the Administrative
Agent shall notify each Bank of the amount required to be paid by or to such
Bank so that the Facility C Revolving Loans held by the Banks on the Restatement
Effective Date (before giving effect to any new Facility C Revolving Loans made
on such date) shall be held by each Bank pro rata in accordance with the
Facility C Commitments of the Banks set forth on Schedule 2.01. Each Bank which
is required to reduce the amount of Facility C Revolving Loans held by it (each
such Bank, a "Decreasing Bank") shall irrevocably assign, without recourse or
warranty of any kind whatsoever (except that each Decreasing Bank warrants that
it is the legal and beneficial owner of the Loans assigned by it under this
Section 11.11 and that such Loans are held by such Decreasing Bank free and
clear of adverse claims), to each Bank which is required to increase the amount
of Facility C Loans held by it (each such Bank, an "Increasing Bank"), and each
Increasing Bank shall irrevocably acquire from the Decreasing Banks, a portion
of the principal amount of the Facility C Revolving Loans of each Decreasing
Bank (collectively, the "Acquired Portion") outstanding on the Restatement
Effective Date (before giving effect to any new Facility C Revolving Loans made
on such date) in an amount such that the principal amount of the Facility C
Revolving Loans held by each Increasing Bank and each Decreasing Bank as of the
Restatement Effective Date shall be held in accordance with each such Bank's
Facility C Commitment Percentage (if any) as of such date. Such assignment and
acquisition shall be effective on the Restatement Effective Date automatically
and without any action required on the part of any party other than the payment
by the Increasing Banks to the Administrative Agent for the account of the
Decreasing Banks of an aggregate amount equal to the Acquired Portion, which
amount shall be allocated and paid by the Administrative Agent at or before
12:00 p.m. San Francisco time on the Restatement Effective Date to the
Decreasing Banks pro rata based upon the respective reductions in the principal
amount of the Facility C Revolving Loans held by such Banks on the Restatement
Effective Date (before giving effect to any new Facility C Revolving Loans made
on such date). Each of the Administrative Agent and the Banks shall adjust its
records accordingly to reflect the payment of the Acquired Portion. The payment
to be made in respect of the Acquired Portion shall be made by the Increasing
Banks to the Administrative Agent in Dollars in immediately available funds at
or before 11:00 a.m. San Francisco time on the Restatement Effective Date, such
payment to be made by the Increasing Banks pro rata based upon the respective
increases in the principal amount of the Facility C Revolving Loans held by such
Banks on the Restatement Effective Date (before giving effect to any new
Facility C Revolving Loans made on such date). For purposes of this subsection
11.11(a), "Facility C Commitment Percentage" means, with respect to any Bank,
the ratio of (i) the amount of the Facility C Commitment of such Bank to (ii)
the aggregate amount of the Facility C Commitments of all of the Banks.
(b) To the extent any of the Facility C Revolving Loans
acquired by the Increasing Banks from the Decreasing Banks pursuant to
subsection 11(a) above are Eurodollar Rate Loans and the Restatement Effective
Date is not the last day of an Interest Period for such Loans, the Decreasing
Banks shall be entitled to compensation from the Borrower as provided in Section
4.04 of the Existing Credit Agreement (as if the Borrower had prepaid such Loans
in an amount equal to the Acquired Portion on the Restatement Effective Date).
The payment made by the Increasing Banks in respect of the Acquired Portion
shall constitute a Loan made by the Increasing Banks on the Restatement
Effective Date, and to the extent any Loan acquired by the Increasing Banks on
the Restatement Effective Date is a Eurodollar Rate Loan and such date is not
the last day of an Interest Period for such Loan, such Loan shall accrue
interest at the rate then applicable to such Loan until such last day; provided
however that the Borrower shall compensate the Increasing Banks for an amount
equal to the amount, if any, by which the cost to the Increasing Banks of
funding the amount of each such Loan in the respective market for the period
from such date to the last day of the then Interest Period for such Loan exceeds
such applicable rate.
. This Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and
all of said counterparts taken together shall be deemed to constitute but one
and the same instrument. Transmission by telecopier of an executed counterpart
of this Agreement shall be deemed to constitute due and sufficient delivery of
such counterpart. The parties hereto shall deliver to each other an original
counterpart of this Agreement promptly after the delivery by telecopier;
provided, however, that the failure by any party to so deliver an original
counterpart shall not affect the sufficiency of a telecopy of such counterpart
(and the fact that such telecopy constitutes the due and sufficient delivery of
such counterpart), as provided above.
. The illegality or unenforceability of any provision of this Agreement
or any instrument or agreement required hereunder shall not in any way affect or
impair the legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.
. This Agreement is made and entered into for the sole protection and
legal benefit of the Borrower, the Banks, the Administrative Agent and the
Agent-Related Persons, the Arranger and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
. (a) THIS AGREEMENT AND ALL NOTES ISSUED HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED
THAT THE ADMINISTRATIVE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE GENERAL
PARTNER, THE ADMINISTRATIVE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
OF THE BORROWER, THE GENERAL PARTNER, THE ADMINISTRATIVE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE BORROWER, THE GENERAL
PARTNER, THE ADMINISTRATIVE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NEW YORK LAW.
. THE BORROWER, THE GENERAL PARTNER, THE BANKS AND THE ADMINISTRATIVE
AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE
BORROWER, THE GENERAL PARTNER, THE BANKS AND THE ADMINISTRATIVE AGENT EACH AGREE
THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A
JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR
RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO
ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART,
TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
. From and after the Restatement Effective Date (if it shall occur),
this Agreement, together with the other Loan Documents, embodies the entire
agreement and understanding between and among the Borrower, the General Partner,
the Banks and the Administrative Agent, and supersedes the Existing Credit
Agreement and all other understandings of such Persons, verbal or written,
relating to the subject matter hereof and thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
FERRELLGAS, L.P.
By: Ferrellgas, Inc.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
FERRELLGAS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
Address for Notices for each of the Borrower and the General Partner:
Xxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
NATIONSBANK, N.A.,
as a Bank
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
XXXXX FARGO BANK, N.A.,
as a Bank
B: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
THE BANK OF NOVA SCOTIA,
as a Bank
By: /s/ F. C. H. Xxxxx
Name: F. C. H. Xxxxx
Title: Senior Manager Loan Operations
[SIGNATURES CONTINUED ON NEXT PAGE]
PARIBAS, as a Bank
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
UNION BANK OF CALIFORNIA, N.A.,
as a Bank
By:/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
THE BANK OF NEW YORK, as a Bank
By: /s/ Xxxxxxx X'Xxxx
Name: Xxxxxxx X'Xxxx
Title: Vice President
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 2
1.01 Certain Defined Terms 2
1.02 Other Interpretive Provisions 26
1.03 Accounting Principles 27
ARTICLE II THE CREDITS 27
2.01 Amounts and Terms of Revolving Loan Commitments 27
2.02 Loan Accounts 29
2.03 Procedure for Borrowing 29
2.04 Conversion and Continuation Elections 30
2.05 Voluntary Termination or Reduction of Revolving Loan Commitments 31
2.06 Optional Prepayments 32
2.07 Mandatory Prepayments of Loans; Mandatory Commitment Reductions 32
2.08 Repayment 33
2.09 Interest 34
2.10 Fees 34
2.11 Computation of Fees and Interest 35
2.12 Payments by the Borrower 35
2.13 Payments by the Banks to the Administrative Agent 36
2.14 Sharing of Payments, Etc. 37
2.15 Discretionary Swingline Loans 37
ARTICLE III THE LETTERS OF CREDIT 38
3.01 The Letter of Credit Subfacility 38
3.02 Issuance, Amendment and Renewal of Letters of Credit 40
3.03 Existing Letters of Credit; Risk Participations, Drawings and 42
Reimbursements
3.04 Repayment of Participations 43
3.05 Role of the Issuing Banks 44
3.06 Obligations Absolute 44
3.07 Cash Collateral Pledge 45
3.08 Letter of Credit Fees 46
3.09 Uniform Customs and Practice 46
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY 46
4.01 Taxes 46
4.02 Illegality 47
4.03 Increased Costs and Reduction of Return 48
4.04 Funding Losses 49
4.05 Inability to Determine Rates 49
4.06 Survival 49
ARTICLE V CONDITIONS PRECEDENT 50
5.01 Conditions to Effectiveness 50
5.02 Conditions to All Credit Extensions 52
ARTICLE VI REPRESENTATIONS AND WARRANTIES 53
6.01 Corporate or Partnership Existence and Power 53
6.02 Corporate or Partnership Authorization; No Contravention 53
6.03 Governmental Authorization 53
6.04 Binding Effect 54
6.05 Litigation 54
6.06 No Default 54
6.07 ERISA Compliance 54
6.08 Use of Proceeds; Margin Regulations 55
6.09 Title to Properties 55
6.10 Taxes 55
6.11 Financial Condition 56
6.12 Environmental Matters 56
6.13 Regulated Entities 56
6.14 No Burdensome Restrictions 56
6.15 Copyrights, Patents, Trademarks and Licenses, etc. 56
6.16 Subsidiaries and Affiliates 57
6.17 Insurance 57
6.18 Tax Status 57
6.19 Full Disclosure 57
6.20 Fixed Price Supply Contracts 57
6.21 Trading Policies 57
6.22 Redemption of Fixed Rate Senior Notes. 57
6.23 Year 2000 57
ARTICLE VII AFFIRMATIVE COVENANTS 58
7.01 Financial Statements 58
7.02 Certificates; Other Information 59
7.03 Notices 60
7.04 Preservation of Corporate or Partnership Existence, Etc. 61
7.05 Maintenance of Property 61
7.06 Insurance 61
7.07 Payment of Obligations 61
7.08 Compliance with Laws 62
7.09 Inspection of Property and Books and Records 62
7.10 Environmental Laws 62
7.11 Use of Proceeds 62
7.12 Financial Covenants 62
7.13 Trading Policies 63
7.14 Other General Partner Obligations 63
7.15 Monetary Judgments 64
7.16 Year 2000 Compliance 64
ARTICLE VIII NEGATIVE COVENANTS 64
8.01 Limitation on Liens 65
8.02 Asset Sales 66
8.03 Consolidations and Mergers 67
8.04 Acquisitions 68
8.05 Limitation on Indebtedness 68
8.06 Transactions with Affiliates 69
8.07 Use of Proceeds 69
8.08 Use of Proceeds - Ineligible Securities 70
8.09 Contingent Obligations 70
8.10 Joint Ventures 70
8.11 Lease Obligations 70
8.12 Restricted Payments 70
8.13 Prepayments of Subordinated Indebtedness 72
8.14 Dividend and Other Payment Restrictions Affecting Subsidiaries 73
8.15 Change in Business 73
8.16 Accounting Changes 73
8.17 Limitation on Sale and Leaseback Transactions 73
8.19 Amendments of Organization Documents or 1996 Indenture or 1998 Note 74
Purchase Agreement
8.20 Fixed Price Supply Contracts 74
8.21 Operations through Subsidiaries 74
8.22 Operations of MLP 74
ARTICLE IX EVENTS OF DEFAULT 75
9.01 Event of Default 75
9.02 Remedies 77
9.03 Rights Not Exclusive 78
9.04 Certain Financial Covenant Defaults 78
ARTICLE X THE ADMINISTRATIVE AGENT 78
10.01 Appointment and Authorization 78
10.02 Delegation of Duties 79
10.03 Liability of Administrative Agent and Issuing Banks 79
10.04 Reliance by Administrative Agent and Issuing Banks 79
10.05 Notice of Default 80
10.06 Credit Decision 80
10.07 Indemnification 81
10.08 Administrative Agent in Individual Capacity 81
10.09 Successor Administrative Agent 81
10.10 Withholding Tax 82
ARTICLE XI MISCELLANEOUS 83
11.01 Amendments and Waivers 83
11.02 Notices 84
11.03 No Waiver; Cumulative Remedies 85
11.04 Costs and Expenses 85
11.05 Indemnity 85
11.06 Payments Set Aside 86
11.07 Successors and Assigns 86
11.08 Assignments, Participations, Etc. 86
11.09 Set-off 88
11.10 Notification of Addresses, Lending Offices, Etc. 89
11.11 Assignment of Facility C Revolving Loans 89
11.12 Counterparts 90
11.13 Severability 90
11.14 No Third Parties Benefited 90
11.15 Governing Law and Jurisdiction 90
11.16 Waiver of Jury Trial 91
11.17 Entire Agreement 91
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