Execution Copy
--------------------------------------------------------------------------------
CREDIT AGREEMENT
dated as of
SEPTEMBER 29, 1999
AMONG
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company,
THE LENDERS PARTY HERETO,
FIRST UNION NATIONAL BANK,
as the Administrative Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
and
SOCIETE GENERALE,
as Documentation Agent
----------------------------
FIRST UNION CAPITAL MARKETS CORP.
and
BANC OF AMERICA SECURITIES LLC,
as Co-Arrangers and Co-Bookrunners
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS..........................................1
SECTION 1.01 Defined Terms..................................1
SECTION 1.02 Classification of Loans and Borrowings........20
SECTION 1.03 Accounting Terms; Changes in GAAP.............20
SECTION 1.04 Interpretation................................20
ARTICLE II. THE CREDITS.........................................21
SECTION 2.01 Commitments...................................21
SECTION 2.02 Loans and Borrowings..........................21
SECTION 2.03 Requests for Revolving Borrowings.............22
SECTION 2.04 Competitive Bid Procedure.....................23
SECTION 2.06 Telephonic Notices............................25
SECTION 2.07 Funding of Borrowings.........................25
SECTION 2.08 Interest Elections............................26
SECTION 2.09 Termination and Reduction of Commitments......27
SECTION 2.10 Repayment of Loans; Evidence of Debt..........27
SECTION 2.11 Prepayment of Loans...........................28
SECTION 2.12 Fees..........................................29
SECTION 2.13 Interest......................................30
SECTION 2.14 Alternate Rate of Interest....................31
SECTION 2.15 Increased Costs...............................31
SECTION 2.16 Break Funding Payments........................32
SECTION 2.17 Taxes.........................................33
SECTION 2.18 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs...........................34
SECTION 2.19 Mitigation Obligations; Replacement of
Lenders.......................................35
SECTION 2.20 Extensions of Termination Date; Removal of
Lenders.......................................35
ARTICLE III. CONDITIONS PRECEDENT................................37
SECTION 3.01 Conditions Precedent to the Initial Borrowing.37
SECTION 3.02 Conditions Precedent to All Borrowings........39
SECTION 3.03 Conditions Precedent to Conversions...........39
SECTION 3.04 Delivery of Documents.........................40
ARTICLE IV. REPRESENTATIONS AND WARRANTIES......................40
SECTION 4.01 Organization and Qualification................40
SECTION 4.02 Authorization, Validity, Etc..................40
SECTION 4.03 Governmental Consents, Etc....................41
SECTION 4.04 Conflicting or Adverse Agreements or
Restrictions..................................41
364-Day Facility
i
SECTION 4.05 Properties....................................41
SECTION 4.06 Litigation and Environmental Matters..........41
SECTION 4.07 Financial Statements..........................42
SECTION 4.08 Disclosure....................................42
SECTION 4.09 Investment Company Act........................42
SECTION 4.10 Public Utility Holding Company Act............42
SECTION 4.11 ERISA.........................................43
SECTION 4.12 Tax Returns and Payments......................43
SECTION 4.13 Compliance with Laws and Agreements...........43
SECTION 4.14 Purpose of Loans..............................43
SECTION 4.15 Year 2000.....................................44
ARTICLE V. AFFIRMATIVE COVENANTS...............................44
SECTION 5.01 Financial Statements and Other Information....44
SECTION 5.02 Litigation....................................46
SECTION 5.03 Existence, Conduct of Business................46
SECTION 5.04 Payment of Obligations........................47
SECTION 5.05 Maintenance of Properties; Insurance..........47
SECTION 5.06 Books and Records; Inspection Rights..........47
SECTION 5.07 Compliance with Laws..........................47
SECTION 5.08 Use of Proceeds...............................47
SECTION 5.09 Further Assurances............................47
SECTION 5.10 Performance of Obligations....................48
SECTION 5.11 Lines of Business.............................48
SECTION 5.12 Intercompany Notes............................48
ARTICLE VI. NEGATIVE COVENANTS..................................48
SECTION 6.01 Indebtedness..................................48
SECTION 6.02 Liens.........................................49
SECTION 6.03 Fundamental Changes...........................50
SECTION 6.04 Restricted Payments...........................50
SECTION 6.05 Transactions with Affiliates..................50
SECTION 6.06 Restrictive Agreements........................51
SECTION 6.07 Financial Covenants...........................51
SECTION 6.08 Amendments to Certain Agreements..............51
ARTICLE VII. EVENTS OF DEFAULT...................................52
SECTION 7.01 Events of Default and Remedies................52
SECTION 7.02 Other Remedies................................54
SECTION 7.03 Application of Moneys During Continuation
of Event of Default...........................54
ARTICLE VIII. THE ADMINISTRATIVE AGENT...........................55
SECTION 8.01 Appointment, Powers and Immunities............55
SECTION 8.02 Reliance by Administrative Agent..............55
SECTION 8.03 Defaults; Events of Default...................56
SECTION 8.04 Rights as a Lender............................56
SECTION 8.05 Indemnification...............................56
364-Day Facility
ii
SECTION 8.06 Non-Reliance on Agents and other Lenders......57
SECTION 8.07 Action by Administrative Agent................57
SECTION 8.08 Resignation or Removal of Administrative
Agent.........................................58
SECTION 8.09 Duties of Syndication Agent and
Documentation Agent...........................58
ARTICLE IX. MISCELLANEOUS.......................................58
SECTION 9.01 Notices, Etc..................................58
SECTION 9.02 Waivers; Amendments...........................59
SECTION 9.03 Payment of Expenses, Indemnities, etc.........60
SECTION 9.04 Successors and Assigns........................62
SECTION 9.05 Assignments and Participations................63
SECTION 9.06 Survival; Reinstatement.......................65
SECTION 9.07 Counterparts; Integration; Effectiveness......65
SECTION 9.08 Severability..................................65
SECTION 9.09 Right of Setoff...............................66
SECTION 9.10 Governing Law; Jurisdiction; Consent to
Service of Process............................66
SECTION 9.11 Waiver of Jury Trial..........................67
SECTION 9.12 Confidentiality...............................67
SECTION 9.13 Interest Rate Limitation......................68
SECTION 9.14 Exculpation Provisions........................68
364-Day Facility
iii
SCHEDULES:
Schedule 4.01 Existing Subsidiaries
Schedule 4.06 Disclosed Matters
Schedule 6.02 Existing Liens
Schedule 6.06 Existing Restrictions
EXHIBITS:
Exhibit 1.01A Form of Administrative Questionnaire
Exhibit 1.01B Form of Assignment and Acceptance
Exhibit 1.01-C Form of Competitive Note
Exhibit 1.01-D Form of Revolving Note
Exhibit 2.03 Form of Borrowing Request
Exhibit 2.04-A Form of Competitive Bid Request
Exhibit 2.04-B Form of Notice to Lenders of Competitive Bid Request
Exhibit 2.04-C Form of Competitive Bid
Exhibit 2.07 Form of Notice of Account Designation
Exhibit 2.08 Form of Interest Election Request
Exhibit 2.11 Form of Notice of Prepayment
Exhibit 5.01 Form of Compliance Certificate
364-Day Facility
iv
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of September 29, 1999 (this
"Agreement") is among:
(a) Xxxxxx Xxxxxx Energy Partners, L.P., a Delaware limited
partnership (the "Company");
(b) the banks and other financial institutions listed on the
signature pages hereof under the caption "Lenders" (the "Lenders" and together
with each other Person that becomes a Lender pursuant to Section 9.05,
collectively, the "Lenders");
(c) First Union National Bank, a national banking association,
individually as a Lender and as administrative agent for the Lenders (in such
latter capacity together with any other Person that becomes Administrative Agent
pursuant to Section 8.08, the "Administrative Agent");
(d) Bank of America, N.A., as the Syndication Agent (the "Syndication
Agent"); and
(e) Societe Generale, as the Documentation Agent (the "Documentation
Agent").
PRELIMINARY STATEMENTS
The Company has requested that a credit facility be extended to it
pursuant to which: the Company may borrow from the Lenders (a) to repay in full
the principal and accrued interest on all loans and other amounts outstanding
under that certain Second Amended and Restated Credit Agreement dated as of
December 1, 1998 among the Company, OLP "B", the subsidiary guarantors parties
thereto, the lenders party thereto and First Union National Bank, as the
arranger, the syndication agent, the administrative agent, the issuing bank and
the swingline lender (as amended to date, the "Existing Credit Agreement"), (b)
to refinance indebtedness of SFPP, and (c) for general working capital and other
partnership purposes.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
364-Day Facility
"Administrative Agent" has the meaning specified in the introduction to
this Agreement.
"Administrative Questionnaire" means an Administrative Questionnaire in the
form of Exhibit 1.01A.
"Affiliate" of any Person shall mean (i) any Person directly or indirectly
controlled by, controlling or under common control with such first Person, (ii)
any director or officer of such first Person or of any Person referred to in
clause (i) above and (iii) if any Person in clause (i) above is an individual,
any member of the immediate family (including parents, siblings, spouse and
children) of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any Person who is
controlled by any such member or trust. For purposes of this definition, any
Person that owns directly or indirectly 25% or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation or 25% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to "control" (including, with its correlative meanings, "controlled by"
and "under common control with") such corporation or other Person.
"Agreement" has the meaning specified in the introduction to this
Agreement.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Federal Funds Effective Rate in effect on such day plus 2 of
1% and (b) the Prime Rate in effect for such day. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" means at any time and from time to time, a percentage
per annum equal to the applicable percentage set forth below for the
corresponding Performance Level set forth below:
Performance LIBOR Borrowings
Level Margin Percentage
I .415%
II .525%
III .625%
IV .825%
V 1.050%
The Applicable Margin shall be determined by reference to the Performance Level
in effect from time to time.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the Total Commitment represented by such Lender's Commitment. If the Total
Commitment has terminated or expired, the Applicable Percentages shall be
determined based upon the Total Commitment most recently in effect, giving
effect to any assignments.
364-Day Facility
2
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.05), and accepted by the Administrative Agent, in the form
of Exhibit 1.01B or any other form approved by the Administrative Agent.
"Available Cash" means, with respect to any fiscal quarter of the Company
(a "Test Quarter"), an amount equal to the algebraic sum of (a) the aggregate of
all cash distributions actually made to and received by the Company from the
Subsidiaries in respect of their Capital Stock during such fiscal quarter minus
(b) the aggregate amount of all cash disbursements, including disbursements for
operating expenses, payments of principal of and interest on Indebtedness and
taxes (net of amounts received or to be received by the Company from the
Subsidiaries as reimbursement for such amounts), and capital expenditures (net
of any borrowings to fund such capital expenditures permitted pursuant to this
Agreement), actually paid by the Company during such Test Quarter, plus, in the
case of a decrease, or minus, in the case of an increase (c) the amount by
which, as at the end of such Test Quarter, cash reserves necessary in the
reasonable discretion of the Company's management for the proper conduct of the
business of the Company and the Subsidiaries subsequent to such Test Quarter,
decreased or increased from the amount of such reserves as at the end of the
immediately preceding fiscal quarter.
"Availability Period" means the period from and including the Effective
Date, to but excluding the earlier of the Termination Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized to act on behalf of the Board of Directors of such
Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Administrative Agent.
"Bonds" means the Port Facility Refunding Revenue Bonds (Enron
Transportation Services, L.P. Project) Series 1994 in the aggregate principal
amount of $23,700,000, as issued by the Xxxxxxx-Union Counties Regional Port
District.
"Borrowing" means (a) a Revolving Borrowing or (b) a Competitive Borrowing.
"Borrowing Date" means the Business Day upon which any Loan is to be made
available to the Company.
"Borrowing Request" has the meaning specified in Section 2.03.
364-Day Facility
3
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in Houston, Texas, New York, New York, or Charlotte,
North Carolina, are authorized or required by law to remain closed; provided
that, when used in connection with a Eurodollar Loan, the term "Business Day"
shall also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents (however designated) of such Person's equity, including all common
stock and preferred stock, any limited or general partnership interest and any
limited liability company membership.
"Change in Control" means either (a) the acquisition through beneficial
ownership or otherwise after the date hereof by any person (as such term is used
in section 13(d) and section 14(d)(2) of the Exchange Act as in effect on the
date hereof) or related persons constituting a group (as such term is used in
Rule 13d-5 under the Exchange Act as in effect on the date hereof) of 30% of the
Voting Stock of the General Partner; or (b) individuals who, at the beginning of
any period of 12 consecutive months, constitute the General Partner's board of
directors cease for any reason (other than death or disability) to constitute a
majority of the General Partner's board of directors then in office; provided,
however, that the acquisition of Xxxxxx Xxxxxx, Inc., the sole shareholder of
the General Partner, by KN Energy, Inc. in a transaction in which the executive
management of the General Partner becomes the executive management of KN Energy,
Inc., shall not constitute a Change in Control.
"Change in Control Event" means the execution of any definitive agreement
which, when fully performed by the parties thereto, would result in a Change in
Control.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Charges" has the meaning specified in Section 9.13.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
364-Day Facility
4
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans hereunder, expressed as an amount representing
the maximum aggregate amount of such Lender's Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.05. The initial amount of
each Lender's Commitment is set forth on its signature page hereto, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable.
"Communications" has the meaning specified in Section 9.01.
"Companion Credit Agreement" means the Credit Agreement dated as of
September 29, 1999 among the Company, OLP "B", the lenders party thereto, First
Union National Bank, as Administrative Agent, Bank of America, N.A., as
Syndication Agent and Societe Generale, as Documentation Agent.
"Company" has the meaning specified in the introduction to this
Agreement.
"Company Debt Rating" means, with respect to the Company as of any date of
determination, the rating that has been most recently announced by either S&P or
Xxxxx'x, as the case may be, for any non-credit enhanced, unsecured long-term
senior debt issued or to be issued by the Company. For purposes of the
foregoing:
(a) if only one of S&P and Xxxxx'x shall have in effect a Company
Debt Rating, the Applicable Margin or the Facility Fee Rate, as the case may be,
shall be determined by reference to the available rating;
(b) if, at any time, neither S&P nor Xxxxx'x shall have in effect a
Company Debt Rating, the Applicable Margin or the Facility Fee Rate, as the case
may be, shall be set in accordance with Performance Level V under the definition
of "Applicable Margin"or "Facility Fee Rate," as the case may be;
(c) if the ratings established by S&P and Xxxxx'x shall fall within
different Performance Levels, the Applicable Margin or the Facility Fee Rate, as
the case may be, shall be based upon the higher rating; provided, however, that,
if the lower of such ratings is two or more Performance Levels below the higher
of such ratings, the Applicable Margin or the Facility Fee Rate, as the case may
be, shall be based upon the rating that is one Performance Level above the lower
rating;
(d) if any rating established by S&P or Xxxxx'x shall be changed,
such change shall be effective as of the date on which such change is announced
publicly by the rating agency making such change; and
(e) if S&P or Xxxxx'x shall change the basis on which ratings are
established by it, each reference to the Company Debt Rating announced by S&P or
Xxxxx'x shall refer to the then equivalent rating by S&P or Xxxxx'x, as the case
may be.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
substantially in the form of Exhibit 2.04-C.
364-Day Facility
5
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Company for Competitive
Bids in accordance with Section 2.04 substantially in the form of Exhibit
2.04-A.
"Competitive Borrowing" means a borrowing consisting of a Competitive Loan
or concurrent Competitive Loans of the same Type, as to which a single Interest
Period is in effect and made on the same date by the Lender or Lenders whose
Competitive Bid(s) as all or as a part of such borrowing, as the case may be,
has (or have) been accepted by the Company under the bidding procedure described
in Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Competitive Note" means a promissory note of the Company payable to the
order of a Lender, in substantially the form of Exhibit 1.01-C, together with
all modifications, extensions, renewals and rearrangements thereof.
"Consenting Lenders" has the meaning specified in Section 2.20.
"Consolidated EBITDA" means, for any period, the EBITDA of the Company and
the Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP.
"Consolidated Indebtedness" means, at the date of any determination
thereof, Indebtedness of the Company and the Subsidiaries determined on a
consolidated basis in accordance with GAAP; excluding, however, Guarantees by
the Company of Indebtedness of employees of the Company and the Subsidiaries in
an aggregate amount at any time outstanding for all such Indebtedness not
exceeding $7,500,000.
"Consolidated Interest Expense" means, for any period, the Interest
Expense of the Company and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Income" means, for any period, the Interest Income
of the Company and the Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the Net Income of the
Company and the Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP.
"Default" means any event or condition which upon notice, lapse of time or
both would, unless cured or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 4.06.
"Distribution Date" has the meaning specified in Section 7.03.
364-Day Facility
6
"Documentation Agent" has the meaning specified in the introduction to
this Agreement.
"dollars" or "$" refers to lawful money of the United States of America.
"EBITDA" means (without duplication), with respect to any period for any
Person, the Net Income of such Person for such period determined in accordance
with GAAP, increased (to the extent deducted in determining Net Income for such
period) by the sum of (a) all income taxes (including state franchise taxes
based upon income) of such Person paid or accrued according to GAAP for such
period; (b) Consolidated Interest Expense of such Person for such period; and
(c) depreciation and amortization of such Person for such period determined in
accordance with GAAP.
"Effective Date" means the date occurring on or before October 31, 1999 on
which the conditions specified in Section 3.01 are satisfied (or waived in
accordance with Section 9.02).
"Eligible Assignee" means (a) any Lender; (b) any Affiliate of any Lender;
(c) a commercial bank organized or licensed under the laws of the United States,
or a state thereof, and having total assets in excess of $1,000,000,000; (d) a
commercial bank organized under the laws of any other country which is a member
of the OECD, or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; and (e) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and having a combined capital and surplus or total assets of at least
$100,000,000.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release of any Hazardous Materials into the environment, or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
364-Day Facility
7
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Company or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company or any ERISA Affiliate of any liability with respect to the withdrawal
or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
the Company or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bear interest at a
rate determined by reference to the LIBOR Rate.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
Obligation, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Company is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Company under Section 2.19(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or is attributable to such Foreign
Lender's failure or inability to comply with Section 2.17(e), except to the
extent that such Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Company with respect to such
withholding tax pursuant to Section 2.17(a).
"Execution Date" means the earliest date upon which all of the following
shall have occurred: counterparts of this Agreement shall have been executed by
the Company and each Lender listed on the signature pages hereof and the
Administrative Agent shall have received counterparts hereof which taken
together, bear the signature of the Company and each Lender and the
Administrative Agent.
"Existing Credit Agreement" has the meaning specified in the Preliminary
Statements.
364-Day Facility
8
"Existing Termination Date" has the meaning specified in Section 2.20.
"Extended Termination Date" means, as at any date, the date to which the
Termination Date has then most recently been extended pursuant to Section 2.20.
"Facility Fee Rate" means at any time and from time to time, a
percentage per annum equal to the applicable percentage set forth below for the
corresponding Performance Level set forth below:
Performance
Level Facility Fee Rate
I .085%
II .100%
III .125%
IV .175%
V .200%
The Facility Fee Rate shall be determined by reference to the Performance Level
in effect from time to time.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" has the meaning specified in Section 2.12.
"Fixed Rate" means, with respect to any Competitive Loan (or Competitive
Borrowing) (other than a Eurodollar Competitive Loan or Competitive Borrowing),
the fixed rate of interest per annum specified by the Lender(s) making such
Competitive Loan (or the Competitive Loans comprising such Competitive
Borrowing) in its (or their) related Competitive Bid(s).
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Company is located. For purposes of
this definition, the United States of America, each state thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United States
of America from time to time, including as set forth in the opinions, statements
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and the Financing
Accounting Standards Board.
364-Day Facility
9
"General Partner" means Kinder Xxxxxx X.X., Inc., a Delaware corporation.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services or any other similar obligation
upon which interest charges are customarily paid (excluding trade accounts
payable incurred in the ordinary course of business), (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others
(provided that in the event that any Indebtedness of the Company or any
Subsidiary shall be the subject of a Guarantee by one or more Subsidiaries or by
the Company, as the case may be, the aggregate amount of the outstanding
Indebtedness of the Company and the Subsidiaries in respect thereof shall be
determined by reference to the primary Indebtedness so guaranteed, and without
duplication by reason of the existence of any such Guarantee), (g) all Capital
Lease Obligations of such Person, (h) all obligations, contingent or otherwise,
of such Person as an
364-Day Facility
10
account party in respect of letters of credit and letters of guaranty and (i)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other Person (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential Information Memorandum
dated September 1999 (Xxxxxx Xxxxxx Energy Partners, L.P. $600,000,000 Senior
Credit Facilities).
"Intercompany Notes" has the meaning specified in Section 5.12.
"Interest Election Request" has the meaning specified in Section 2.08.
"Interest Expense" means (without duplication), with respect to any period
for any Person (a) the aggregate amount of interest, whether expensed or
capitalized, paid, accrued or scheduled to be paid during such period in respect
of the Indebtedness of such Person including (i) the interest portion of any
deferred payment obligation; (ii) the portion of any rental obligation in
respect of Capital Lease Obligations allocable to interest expenses; and (iii)
any non-cash interest payments or accruals, all determined in accordance with
GAAP, less (b) Interest Income of such Person for such period.
"Interest Income" means, with respect to any period for any Person,
interest actually received by such Person during such period.
"Interest Payment Date" means (a) with respect to any ABR Loan, the last
Business Day of each January, April, July and October, (b) with respect to any
Eurodollar Loan, the last Business Day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period and (c) with
respect to any Fixed Rate Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Company may elect and (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than 7 days or more than 180
days) commencing on the date of such Borrowing and ending on the date specified
in the applicable Competitive Bid Request; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business
364-Day Facility
11
Day unless such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day, (ii) any Interest Period that commences on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period and (iii) no
Interest Period for any Competitive Borrowing shall end after the Termination
Date and no Interest Period for any Revolving Borrowing shall end after the
Maturity Date. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Lender" has the meaning specified in the introduction to this Agreement.
"Lenders" has the meaning specified in the introduction to this
Agreement.
"LIBOR" shall mean the rate of interest determined on the basis of the
rate for deposits in dollars in an amount substantially equal to the amount of
the applicable Loan for a period equal to the applicable Interest Period
commencing on the first day of such Interest Period appearing on Telerate Page
3750 as of 11:00 a.m. (London time) two Business Days prior to the first day of
the applicable Interest Period. In the event that such rate does not appear on
Telerate Page 3750, "LIBOR" shall be determined by the Administrative Agent to
be the rate per annum at which deposits in dollars are offered by leading
reference banks in the London interbank market to First Union at approximately
11:00 a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period and in an
amount substantially equal to the amount of the applicable Loan.
"LIBOR Rate" shall mean, with respect to any LIBOR Loan for any Interest
Period for such Loan, a rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by the Administrative Agent to be equal to the
quotient of (i) LIBOR for such Loan for such Interest Period divided by (ii) 1
minus the Reserve Requirement for such Loan for such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset and (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset.
"Loan Documents" mean, collectively, this Agreement, the Notes, if any,
the Intercompany Notes, the Fee Letter and all other instruments and documents
from time to time executed and delivered by the Company in connection herewith
and therewith.
"Loans" means advances made by the Lenders to the Company pursuant to
this Agreement.
"Margin" means, with respect to any Competitive Loan bearing interest at a
rate based on the LIBOR Rate, the marginal rate of interest, if any, to be added
to or subtracted from the LIBOR Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
364-Day Facility
12
"Material Adverse Effect" means, relative to any occurrence of whatever
nature (including any adverse determination in any litigation, arbitration or
governmental investigation or proceeding) and after taking into account actual
insurance coverage and effective indemnification with respect to such
occurrence, (a) a material adverse effect on the financial condition, business
or operations of the Company and the Subsidiaries taken as a whole, (b) the
impairment of (i) the ability of the Company to collectively perform the payment
or other material obligations hereunder or under the other Loan Documents or
(ii) the ability of the Administrative Agent or the Lenders to realize the
material benefits intended to be provided by the Company under the Loan
Documents or (c) the subjection of any of the Administrative Agent or any Lender
to any civil or criminal liability.
"Maturity Date" means the earlier of (a) the first anniversary of the
Existing Termination Date and (b) the acceleration of the Obligations pursuant
to Section 7.01.
"Maximum Rate" has the meaning specified in Section 9.13.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Income" means for any Person for any period, the net income or (net
loss) of such Person for such period (taken as a cumulative whole), as
determined in accordance with GAAP, provided that there shall be excluded,
without duplication, from such net income (to the extent otherwise included
therein):
(a) net extraordinary gains and losses (other than, in the case of
losses, losses resulting from charges against net income to establish or
increase reserves for potential environmental liabilities and reserves for
exposure of such Person under rate cases);
(b) net gains or losses in respect of dispositions of assets other
than in the ordinary course of business;
(c) any gains or losses attributable to write-ups or write-downs of
assets; and
(d) proceeds of any key man insurance, or any insurance on property,
plant or equipment.
"Nominee" has the meaning specified in Section 2.20.
"Non-Consenting Lenders" has the meaning specified in Section 2.20.
"Note"means a Revolving Note or a Competitive Note.
"Notice of Account Designation" has the meaning specified in Section
2.07.
"Notice of Default" has the meaning specified in Section 7.01.
364-Day Facility
13
"Notice of Extension" has the meaning specified in Section 2.20.
"Notice of Prepayment" has the meaning specified in Section 2.11.
"Notice of Revocation" has the meaning specified in Section 2.20.
"Obligations" means collectively:
(a) the payment of all indebtedness and liabilities by, and
performance of all other obligations of, the Company in respect of the Loans;
(b) the payment of all other indebtedness and liabilities by and
performance of all other obligations of, the Company to the Administrative Agent
and the Lenders under, with respect to, and arising in connection with, the Loan
Documents, and the payment of all indebtedness and liabilities of the Company to
the Administrative Agent and the Lenders for fees, costs, indemnification and
expenses (including reasonable attorneys' fees and expenses) under the Loan
Documents;
(c) the reimbursement of all sums advanced and costs and expenses
incurred by the Administrative Agent under any Loan Document (whether directly
or indirectly) in connection with the Obligations or any part thereof or any
renewal, extension or change of or substitution for the Obligations or, any part
thereof, whether such advances, costs and expenses were made or incurred at the
request of the Company or the Administrative Agent; and
(d) all renewals, extensions, amendments and changes of, or
substitutions or replacements for, all or any part of the items described under
clauses (a) through (c) above.
"OECD" means the Organization for Economic Cooperation and Development
(or any successor).
"OLP 'A'" means Xxxxxx Xxxxxx Operating L.P. "A", a Delaware limited
partnership.
"OLP 'B'" means Xxxxxx Xxxxxx Operating L.P. "B", a Delaware limited
partnership.
"OLP 'C'" means Xxxxxx Xxxxxx Operating L.P. "C", a Delaware limited
partnership.
"OLP 'D'" means Xxxxxx Xxxxxx Operating L.P. "D", a Delaware limited
partnership.
"Original Termination Date" means September 27, 2000.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
364-Day Facility
14
"Participant" has the meaning specified in Section 9.05(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Performance Level" means a reference to one of Performance Level I,
Performance Level II, Performance Level III, Performance Level IV or Performance
Level V.
"Performance Level I" means, at any date of determination, the Company
shall have a Company Debt Rating in effect on such date of at least A- by S&P
and at least A3 by Moody's.
"Performance Level II" means, at any date of determination, (a) the
Performance Level does not meet the requirements of Performance Level I and (b)
the Company shall have a Company Debt Rating in effect on such date of at least
BBB+ by S&P and at least Baa1 by Moody's.
"Performance Level III" means, at any date of determination, (a) the
Performance Level does not meet the requirements of Performance Level I or
Performance Level II and (b) the Company shall have a Company Debt Rating in
effect on such date of at least BBB by S&P and at least Baa2 by Moody's.
"Performance Level IV" means, at any date of determination, (a) the
Performance Level does not meet the requirements of Performance Level I,
Performance Level II or Performance Level III and (b) the Company shall have a
Company Debt Rating in effect on such date of at least BBB- by S&P and at least
Baa3 by Moody's.
"Performance Level V" means, at any date of determination, the Performance
Level does not meet the requirements of Performance Level I, Performance Level
II, Performance Level III or Performance Level IV.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any
364-Day Facility
15
monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business of the
Company or any Subsidiary;
(f) judgment and attachment Liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal proceeding
that are currently being contested in good faith by appropriate proceedings,
promptly instituted and diligently conducted, and for which adequate reserves
have been made to the extent required by GAAP;
(g) any interest or title of a lessor in property subject to any
Capital Lease Obligation or operating lease which, in each case, is permitted
under this Agreement; and
(h) Liens in favor of collecting or payor banks having a right of
setoff, revocation, refund or chargeback with respect to money or instruments of
the Company or any Subsidiary on deposit with or in possession of such bank;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Company or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Plantation Pipe Line" means Plantation Pipe Line Company, a Delaware
and Virginia corporation.
"Prime Rate" shall mean the rate of interest from time to time announced
publicly by the Administrative Agent at the Principal Office as its prime
commercial lending rate. Such rate is set by the Administrative Agent as a
general reference rate of interest, taking into account such factors as the
Administrative Agent may deem appropriate, it being understood that many of the
Administrative Agent's commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate actually charged to any
customer and that the Administrative Agent may make various commercial or other
loans at rates of interest having no relationship to such rate.
"Principal Office" shall mean the principal office of the Administrative
Agent, presently located at 000 Xxxxx Xxxxxxx Xxxxxx, XX-00, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000 or such other location as designated by the Administrative
Agent from time to time.
"Register" has the meaning specified in Section 9.05.
"Regulation A" means Regulation A of the Board, as the same is from time
to time in effect, and all official rulings and interpretations thereunder or
thereof.
364-Day Facility
16
"Regulation D" means Regulation D of the Board, as the same is from time
to time in effect, and all official rulings and interpretations thereunder or
thereof.
"Regulation T" means Regulation T of the Board, as the same is from time
to time in effect, and all official rulings and interpretations thereunder or
thereof.
"Regulation U" means Regulation U of the Board, as the same is from time
to time in effect, and all official rulings and interpretations thereunder or
thereof.
"Regulation X" means Regulation X of the Board, as the same is from time
to time in effect, and all official rulings and interpretations thereunder or
thereof.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing 66b% of the sum of the total
Revolving Credit Exposures and unused Commitments at such time.
"Requirement of Law" shall mean any law, statute, code, ordinance, order,
determination, rule, regulation, judgment, decree, injunction, franchise,
permit, certificate, license, authorization or other directive or requirement
(whether or not having the force of law), including Environmental Laws, energy
regulations and occupational, safety and health standards or controls, of any
Governmental Authority.
"Reserve Requirement" means, for any day as applied to a Eurodollar Loan,
the aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including basic,
supplemental, marginal and emergency reserves under any regulations of the Board
or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D) maintained by a
member bank of the Federal Reserve System. Eurodollar Loans shall be deemed to
constitute Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to any Lender under Regulation D.
"Responsible Officer" of the Company means the Chairman, Vice Chairman,
President, any Vice President, Chief Financial Officer, Controller or Chief
Accounting Officer of the General Partner.
"Restricted Payment" means any distribution (whether in cash, securities
or other property) with respect to any partnership interest in the Company, or
any payment (whether in cash, securities or other property), including any
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such partnership interest or any option or
other right to acquire any such partnership interest; provided, however, (A)
that distributions with respect to the partnership interests in the Company that
do not exceed, with respect to any fiscal quarter of the Company, the amount of
Available Cash for such quarter shall not constitute Restricted Payments
364-Day Facility
17
so long as in each case, both before and after the making of such distribution,
no Event of Default or Default shall have occurred and be continuing, (B) that
any partnership interest split, partnership interest reverse split, dividend of
Company partnership interests or similar transaction will not constitute a
Restricted Payment, (C) that the application by the Company of an aggregate
amount not in excess of $50,000,000.00 after the Effective Date to the purchase,
redemption, retirement, cancellation, or termination of partnership interests in
the Company will not constitute a Restricted Payment, so long as, both before
and after any such purchase, redemption, retirement, cancellation, or
termination, no Event of Default or Default shall have occurred and be
continuing, and (D) acquisitions by officers, directors and employees of the
Company of partnership interests in the Company through cash less exercise of
options pursuant to the Company's Common Unit Option Plan shall not constitute
Restricted Payments.
"Revolving Borrowing" means a borrowing comprised of Revolving Loans of
the same Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"Revolving Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Revolving Loans at
such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Revolving Note" means a promissory note of the Company payable to the
order of each Lender, in substantially the form of Exhibit 1.01-D, together with
all modifications, extensions, renewals and rearrangements thereof.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SFPP" means SFPP, L.P., a Delaware limited partnership.
"SFPP First Mortgage Notes" means those certain First Mortgage Notes
issued by SFPP (under its prior name Southern Pacific Pipe Lines Partnership,
L.P.) pursuant to a Note Agreement dated December 8, 1988 between SFPP and the
purchasers named therein, which on the Execution Date are outstanding in the
aggregate principal amount of $244,000,000.
"SFPP Revolving Credit Facility" means that certain Amended and Restated
Credit Agreement dated as of August 11, 1997 among SFPP, the lenders party
thereto, Bank of America National Trust and Savings Association, as agent, Chase
Bank of Texas, National Association (formerly Texas Commerce Bank National
Association), as syndication agent, Bank of Montreal, as documentation agent and
BancAmerica Securities, Inc., as arranger, providing for revolving loans to be
made to SFPP in an aggregate principal amount not exceeding $175,000,000 at any
time outstanding.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
364-Day Facility
18
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent. Unless the context otherwise
clearly requires, references in this Agreement to a "Subsidiary" or the
"Subsidiaries" refer to a Subsidiary or the Subsidiaries of the Company.
Notwithstanding the foregoing Plantation Pipe Line shall not be a Subsidiary of
the Company until such time as its assets and liabilities, profit or loss and
cash flow are required under GAAP to be consolidated with those of the Company.
"Syndication Agent" has the meaning specified in the introduction to
this Agreement.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Termination Date" means, except as expressly provided in Section 2.20(d)
and Section 2.20(e), at any time, the Original Termination Date or an Extended
Termination Date, as the case may be or, in either case, the earlier date of
termination in whole of the Total Commitment pursuant to Section 2.09 or Section
7.01.
"Total Commitment" means the sum of the Commitments of the Lenders,
which on the Execution Date is $300,000,000.
"Transactions" means the execution, delivery and performance by the
Company of this Agreement and the other Loan Documents, the borrowing of Loans
and the use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the LIBOR Rate or the Alternate Base Rate.
"United States" and "U.S."each means United States of America.
"Utilization Fee" has the meaning specified in Section 2.12.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling holders thereof (whether at
all times or only so long as no senior class of stock has voting power by reason
of any contingency) to vote in the election of members of the Board of Directors
or other governing body of such Person or its managing member or its general
partner (or its managing general partner if there is more than one general
partner).
"Wholly-owned Subsidiary" means a Subsidiary of which all issued and
outstanding Capital Stock (excluding (a) in the case of a corporation,
directors' qualifying shares, (b) in the case of a limited partnership, a 2%
general partner interest and (c) in the case of a limited liability company, a
2% member interest) is directly or indirectly owned by the Company.
364-Day Facility
19
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan" or a "Competitive Loan")or by Type (e.g., a "Eurodollar Loan")
or by Class and Type (e.g., a "Eurodollar Revolving Loan" or a "Fixed Rate
Loan"). Borrowings also may be classified and referred to by Class (e.g., a
"Revolving Borrowing" or a "Competitive Borrowing") or by Type (e.g., a
"Eurodollar Borrowing" or a "Fixed Rate Borrowing") or by Class and Type
(e.g., a "Eurodollar Revolving Borrowing" or a "Fixed Rate Competitive
Borrowing").
SECTION 1.03 Accounting Terms; Changes in GAAP. All accounting and
financial terms used herein and not otherwise defined herein and the compliance
with each covenant contained herein which relates to financial matters shall
be determined in accordance with GAAP applied by the Company on a consistent
basis, except to the extent that a deviation therefrom is expressly stated.
Should there be a change in GAAP from that in effect on the Execution Date,
such that the defined terms set forth in Section 1.01 or the covenants set forth
in Article VI would then be calculated in a different manner or with different
components or would render the same not meaningful criteria for evaluating the
matters contemplated to be evidenced by such covenants, (a) the Company and the
Required Lenders agree, within the 60-day period following any such change,
to negotiate in good faith and enter into an amendment to this Agreement in
order to conform the defined terms set forth in Section 1.01 or the covenants
set forth in Article VI, or both, in such respects as shall reasonably be deemed
necessary by the Required Lenders so that the criteria for evaluating the
matters contemplated to be evidenced by such covenants are substantially the
same criteria as were effective prior to any such change in GAAP, and (b) the
Company shall be deemed to be in compliance with such covenants during the 60-
day period following any such change, or until the earlier date of execution of
such amendment, if and to the extent that the Company would have been in
compliance therewith under GAAP as in effect immediately prior to such change.
SECTION 1.04 Interpretation. (a) In this Agreement, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any gender includes each other gender;
(iii)the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(iv) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity or individually;
provided that nothing in this clause (iv) is intended to authorize any
assignment not otherwise permitted by this Agreement;
364-Day Facility
20
(v) except as expressly provided to the contrary herein, reference to
any agreement, document or instrument (including this Agreement) means such
agreement, document or instrument as amended, supplemented or modified and
in effect from time to time in accordance with the terms thereof and, if
applicable, the terms hereof, and reference to any Note or other note
includes any note issued pursuant hereto in extension or renewal thereof
and in substitution or replacement therefor;
(vi) unless the context indicates otherwise, reference to any Article,
Section, Schedule or Exhibit means such Article or Section hereof or such
Schedule or Exhibit hereto;
(vii)the word "including" (and with correlative meaning "include")
means including, without limiting the generality of any description
preceding such term;
(viii) with respect to the determination of any period of time, except
as expressly provided to the contrary, the word "from" means "from and
including" and the word "to" means "to but excluding";
(ix) reference to any law, rule or regulation means such as amended,
modified, codified or reenacted, in whole or in part, and in effect from
time to time; and
(x) the words "asset" and "property" shall be construed to have the
same meaning and effect and refer to any and all tangible and intangible
assets and properties.
ARTICLE II.
THE CREDITS
SECTION 2.01 Commitments. Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Company from
time to time during the Availability Period in an aggregate principal amount
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment or (b) the sum of the total Revolving Credit Exposures,
plus the aggregate principal amount of outstanding Competitive Loans, exceeding
the Total Commitment. In furtherance of the foregoing, the aggregate amount of
the Total Commitment shall be deemed used from time to time to the extent of the
aggregate amount of the Competitive Loans then outstanding, and such deemed use
of the Total Commitment shall be applied to the Lenders ratably according to
their respective Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Company may borrow, prepay and
reborrow Revolving Loans.
SECTION 2.02 Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Company may request
in accordance herewith,
364-Day Facility
21
and (ii) each Competitive Borrowing shall be comprised entirely of Eurodollar
Loans or Fixed Rate Loans as the Company may request in accordance herewith.
Each Lender at its option may make any Eurodollar Loan by causing any domestic
or foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of the Company to
repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $3,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the Total Commitment. Each Competitive Bid
Request shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $25,000,000. Borrowings of more than one Type and
Class may be outstanding at the same time; provided that there shall not at any
time be more than a total of six Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Company shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03 Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Company shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
10:00 a.m., Charlotte, North Carolina, time, three Business Days before the date
of the proposed Borrowing (provided, however, no such request may be given prior
to the third Business Day after the Effective Date) and (b) in the case of an
ABR Borrowing, not later than 10:00 a.m., Charlotte, North Carolina, time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
of Exhibit 2.03 (a "Borrowing Request") and signed by the Company. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii)whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Company's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.07.
364-Day Facility
22
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Company shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section 2.03, the Administrative Agent shall advise each Lender of the
details thereof and of the amount of such Lender's Loan to be made as part of
the requested Borrowing.
SECTION 2.04 Competitive Bid Procedure. (a) Subject to the terms and
conditions set forth herein, from time to time during the Availability Period
the Company may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans, at any time shall not exceed
the Total Commitment. To request Competitive Bids, the Company shall notify the
Administrative Agent of such request by telephone, in the case of a Eurodollar
Borrowing, not later than 10:00 a.m., Charlotte, North Carolina, time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., Charlotte, North Carolina,
time, one Business Day before the date of the proposed Borrowing; provided
that the Company may submit up to (but not more than) three Competitive Bid
Requests on the same day, but a Competitive Bid Request shall not be made on
any of the five Business Days next succeeding the date of any previous
Competitive Bid Request, unless any and all such previous Competitive Bid
Requests shall have been withdrawn or all Competitive Bidsreceived in response
thereto rejected. Each such telephonic Competitive Bid Request shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Competitive Bid Request signed by the Company. Each such telephonic
and written Competitive Bid Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii)whether such Borrowing is to be a Eurodollar Borrowing or a Fixed
Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Company's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy (in substantially the form set forth in Exhibit 2.04-B),
inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to the Company in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be substantially the form of
Exhibit 2.04-C and must be received by the Administrative Agent by telecopy, in
the case of a Eurodollar Competitive Borrowing, not later than
364-Day Facility
23
10:00 a.m., Charlotte, North Carolina, time, three Business Days before the
proposed date of such Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., Charlotte, North Carolina, time, on the
proposed date of such Competitive Borrowing. Competitive Bids that do not
conform substantially to the form of Exhibit 2.04-C may be rejected by the
Administrative Agent, and the Administrative Agent shall notify the applicable
Lender as promptly as practicable. Each Competitive Bid shall specify (i) the
principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competitive Borrowing requested by the Company) of the Competitive Loan or Loans
that the Lender is willing to make, (ii) the Competitive Bid Rate or Rates at
which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof (which shall conform to that specified in the Company's related
Competitive Bid Request).
(c) The Administrative Agent shall promptly notify the Company by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Company may
accept or reject any Competitive Bid in whole or (to the extent herein below
provided) in part. The Company shall notify the Administrative Agent by
telephone, confirmed by telecopy in a form approved by the Administrative Agent,
whether and to what extent it has decided to accept or reject each Competitive
Bid, in the case of a Eurodollar Competitive Borrowing, not later than 11:30
a.m., Charlotte, North Carolina, time, three Business Days before the date of
the proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing,
not later than 11:30 a.m., Charlotte, North Carolina, time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of the Company to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Company shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Company rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Company shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Company may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Company. A notice given by the Company pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound,
364-Day Facility
24
subject to the terms and conditions hereof, to make the Competitive Loan in
respect of which its Competitive Bid has been accepted. After completing the
notifications referred to in the immediately preceding sentence, the
Administrative Agent shall notify each Lender of the aggregate principal amount
of all Competitive Bids accepted.
(f) Upon determination by the Administrative Agent of the LIBOR Rate
applicable to any Eurodollar Competitive Loan to be made by any Lender pursuant
to a Competitive Bid that has been accepted by a Company pursuant to Section
2.04(d), the Administrative Agent shall notify such Lender of (i) the applicable
LIBOR Rate and (ii) the sum of the applicable LIBOR Rate plus the Margin bid by
such Lender.
(g) If the Administrative Agent or any of its Affiliates shall at any
time have a Commitment hereunder and shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
Company at least one quarter of an hour earlier than the time by which the other
Lenders are required to submit their Competitive Bids to the Administrative
Agent pursuant to paragraph (b) of this Section.
SECTION 2.05 THIS SECTION IS INTENTIONALLY OMITTED.
SECTION 2.06 Telephonic Notices. Without in any way limiting the
obligation of the Company to confirm in writing any telephonic notice it is
entitled to give under this Agreement or any other Loan Document, the
Administrative Agent may act without liability upon the basis of a telephonic
notice believed in good faith by the Administrative Agent to be from the Company
prior to receipt of written confirmation. In each such case, the Company hereby
waives the right to dispute the Administrative Agent's record of the terms of
such telephonic notice.
SECTION 2.07 Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer
of immediately available funds by 2:00 p.m., Charlotte, North Carolina, time,
to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders. Not later than 2:00 p.m. (Charlotte,
North Carolina, time) on the proposed Borrowing Date, each Lender will make
available to the Administrative Agent, for the account of the Company, at the
office of the Administrative Agent in funds immediately available to the
Administrative Agent, such Lender's Loans to be made on such Borrowing Date.
The Company hereby irrevocably authorizes the Administrative Agent to disburse
the proceeds of each Borrowing requested pursuant to this Section 2.07 in
immediately available funds by crediting or wiring such proceeds to the deposit
account of the Company identified in the most recent Notice of Account
Designation substantially in the form of Exhibit 2.07 hereto (a "Notice of
Account Designation") delivered by the Company to the Administrative Agent or
may be otherwise agreed upon by the Company and the Administrative Agent from
time to time.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing (or prior to 12:00 noon,
Charlotte, North Carolina, time, on such date in the case of an ABR Borrowing)
that such Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with Section
2.07(a) and may, in reliance upon such assumption, make available to the Company
a corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the
364-Day Facility
25
Administrative Agent, then the applicable Lender and the Company severally agree
to pay to the Administrative Agent forthwith on demand such corresponding amount
with interest thereon, for each day from the date such amount is made available
to the Company to the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the Federal Funds Effective Rate or (ii) in the case of the
Company, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.08 Interest Elections. (a) Subject to Section 2.14, each
Revolving Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Revolving Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, subject to Section 2.14, the Company may elect to convert such
Borrowing to a different Type or to continue such Borrowing and, in the case of
a Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all
as provided in this Section 2.08. The Company may elect different options with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing. This Section 2.08 shall not apply to
Competitive Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section 2.08, the Company
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Company
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in the form of Exhibit 2.08 (an "Interest Election Request").
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii)whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
364-Day Facility
26
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Company shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Company fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
and so long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.09 Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Termination Date.
(b) The Company may at any time terminate, or from time to time
reduce, the Total Commitment, in whole or in part; provided that (i) each
partial reduction of the Total Commitment shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Company shall not terminate or reduce the Commitments if, after giving effect to
any concurrent prepayment of the Loans in accordance with Section 2.11, the sum
of the total Revolving Credit Exposures would, plus the aggregate principal
amount of outstanding Competitive Loans, exceed the Total Commitment.
(c) The Company shall notify the Administrative Agent of any election
to terminate or reduce the Total Commitment under Section 2.09(b) at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Company pursuant to this Section
2.09 shall be irrevocable; provided that a notice of termination of the Total
Commitment delivered by the Company may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may
be revoked by the Company (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Total Commitment shall be permanent. Each
reduction of the Total Commitment shall be made ratably among the Lenders in
accordance with their respective Commitments.
(d) The Total Commitment shall automatically terminate on the date a
Change in Control occurs.
SECTION 2.10 Repayment of Loans; Evidence of Debt. (a) The
Company hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date and (ii) to the Administrative Agent
for the account of each Lender having a Competitive Loan outstanding the
364-Day Facility
27
then unpaid principal amount of each Competitive Loan on the last day of the
Interest Period applicable to such Loan. In addition, if prior to the
Termination Date the sum of the total Revolving Credit Exposures, plus the
aggregate principal amount of the outstanding Competitive Loans, exceeds the
Total Commitment, the Company shall pay to the Administrative Agent for the
account of each Lender an aggregate principal amount of Revolving Loans
sufficient to cause the sum of the total Revolving Credit Exposures, plus the
aggregate principal amount of the outstanding Competitive Loans, not to exceed
the Total Commitment.
(b) On the date that a Change in Control occurs, the Company shall
repay the outstanding principal amount of the Loans and all other amounts
outstanding hereunder and under the other Loan Documents.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(d) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Company to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof.
(e) The entries made in the accounts maintained pursuant to Section
2.10(c) or (d) shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error or conflict therein
shall not in any manner affect the obligation of the Company to repay the Loans
in accordance with the terms of this Agreement.
(f) Any Lender may request that Loans made by it be evidenced by a
Revolving Note or a Competitive Note, as the case may be. In such event, the
Company shall prepare, execute and deliver to such Lender a Revolving Note or a
Competitive Note, as the case may be. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.05) be represented by one or more promissory
notes in such forms payable to the order of the payee named therein.
SECTION 2.11 Prepayment of Loans. (a) The Company shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with Section 2.11(b); provided
that the Company shall not have the right to prepay any Competitive Loan without
the prior consent of the Lender thereof.
(b) The Company shall notify the Administrative Agent by telephone
(confirmed by telecopy in the form of Exhibit 2.11 (a "Notice of Prepayment"))
of any prepayment hereunder (i) in the case of prepayment of a Eurodollar
Revolving Borrowing, not later than 11:00 a.m., Charlotte, North Carolina, time,
three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., Charlotte,
North Carolina, time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify
364-Day Facility
28
the prepayment date, Type and the principal amount of each Borrowing or portion
thereof to be prepaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.09, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.09. Each
partial prepayment shall be in an aggregate amount not less than, and shall be
an integral multiple of, the amounts shown below with respect to the applicable
Type of Loan or Borrowing:
Type of Integral Minimum
Loan/Borrowing Multiple of Aggregate Amount
Eurodollar Revolving Borrowing $ 1,000,000 $ 3,000,000
ABR Revolving Borrowing 1,000,000 1,000,000
Promptly following receipt of any such notice relating to a Revolving Borrowing,
the Administrative Agent shall advise the Lenders of the contents thereof. If
the Company fails to designate the Type of Borrowings to be prepaid, partial
prepayments shall be applied first to the outstanding ABR Borrowings until all
such outstanding principal of ABR Borrowings are repaid in full, and then to the
outstanding principal amount of Eurodollar Borrowings. Each partial prepayment
of any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.02. Each prepayment of a Revolving Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.13.
SECTION 2.12 Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the applicable Facility Fee Rate on the daily amount of the Commitment
of such Lender, whether used or unused, during the period from and including the
date of this Agreement to but excluding the date on which such Commitment
terminates. Accrued facility fees shall be payable in arrears on the last
Business Day of January, April, July and October of each year and on the date
on which the Commitments terminate, commencing on the first such date to occur
after the date hereof. All facility fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) The Company agrees to pay to each of the Administrative Agent,
the Syndication Agent, First Union Capital Markets Corp. and Banc of America
Securities LLC, for its own account, fees payable in the amounts and at the
times specified in that letter agreement dated August 26, 1999 among the
Company, the Administrative Agent, the Syndication Agent, First Union Capital
Markets Corp. and Banc of America Securities LLC (as from time to time amended,
the "Fee Letter").
(c) The Company agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee (the "Utilization Fee"), which shall
accrue at a rate per annum equal to .125% on each Lender's Commitment (whether
used or unused) for each day from and after the Effective Date to but excluding
the Maturity Date on which the sum of the total Revolving Credit Exposures, plus
the aggregate principal amount of outstanding Competitive Loans plus the
aggregate loans and letters of credit outstanding under the Companion Credit
Agreement, exceeds 50% of the
364-Day Facility
29
sum of Total Commitment plus the Total Commitment (as defined in the Companion
Credit Agreement) and for each day on and after the Maturity Date until the
Revolving Credit Exposures of all Lenders, all Competitive Loans and all loans
outstanding under the Companion Credit Agreement are paid in full or reduced to
zero, if the sum of the Total Revolving Credit Exposures, plus the aggregate
principal amount of outstanding Competitive Loans plus the aggregate loans and
letters of credit outstanding under the Companion Credit Agreement, exceeded 50%
of the sum of Total Commitment plus the Total Commitment (as defined in the
Companion Credit Agreement) on the day immediately preceding the Maturity Date.
All Utilization Fees shall be payable in arrears on the last day of January,
April, July and October of each year and on the date the Revolving Credit
Exposures of all Lenders and all Competitive Loans and all loans outstanding
under the Companion Credit Agreement are paid in full or reduced to zero, as the
case may be, commencing on the first of such dates to occur after the Effective
Date. All Utilization Fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees and participation fees, to the Lenders. Except as
required by law, fees paid shall not be refundable under any circumstances.
SECTION 2.13 Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at a rate per annum equal to the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest (i) in the case of a Eurodollar Revolving Loan, at the LIBOR Rate for
the Interest Period in effect for such Borrowing plus the Applicable Margin or
(ii) in the case of a Eurodollar Competitive Loan, at the LIBOR Rate for the
Interest Period in effect for such Borrowing plus (or minus, as applicable) the
Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Company hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the Alternate Base Rate.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to Section 2.13(d) shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving
Loan prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any Eurodollar
Revolving Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective
364-Day Facility
30
date of such conversion and (iv) all accrued interest shall be payable upon
termination of the Total Commitment.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
LIBOR Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14 Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the LIBOR Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, by the Lender that is required to
make such Loan) that the LIBOR Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Company for a Eurodollar Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Company for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.15 Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the LIBOR Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any
364-Day Facility
31
such Loan) or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise), then the Company
will pay to such Lender such additional amount or amounts as will compensate
such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section 2.15 shall be delivered to
the Company and shall be conclusive absent manifest error. The Company shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section 2.15 shall not constitute a waiver of such Lender's
right to demand such compensation; provided that the Company shall not be
required to compensate a Lender pursuant to this Section 2.15 for any increased
costs or reductions incurred more than six months prior to the date that such
Lender notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.16 Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan or Fixed Rate Loan other than on the
last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto, (c) the failure
to borrow (unless such failure was caused by the failure of a Lender to make
such Loan), convert, continue or prepay any Eurodollar Loan, or the failure
to convert an ABR Loan to a Eurodollar Loan, on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted
to be revocable under Section 2.09 and is revoked in accordance herewith), (d)
the failure to borrow any Competitive Loan after accepting the Competitive Bid
to make such Loan (unless such failure was caused by the failure of a Lender to
make such Loan), or (e) the assignment of any Eurodollar Loan or Fixed Rate
Loan other than on the last day of the Interest Period applicable thereto
as a result of a request by the Company pursuant to Section 2.19, then, in any
such event, the Company shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, the loss
to any Lender attributable to any such event shall be deemed to include an
amount determined by such Lender to be equal to the excess, if any, of (i) the
amount of interest that such Lender would pay for a deposit equal to the
principal amount of such Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or
continue, the duration of the
364-Day Facility
32
Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the
LIBOR Rate for such Interest Period, over (ii) the amount of interest that such
Lender would earn on such principal amount for such period if such Lender were
to invest such principal amount for such period at the interest rate that would
be bid by such Lender (or an affiliate of such Lender) for dollar deposits from
other banks in the Eurodollar market at the commencement of such period. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section 2.16 shall be delivered to the
Company and shall be conclusive absent manifest error. The Company shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.17 Taxes. (a) Any and all payments by or on account of any
obligation of the Company hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Company shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.17) the Administrative Agent or
a Lender (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Company shall make such
deductions and (iii) the Company shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Company shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Company shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section
2.17(c)) paid by the Administrative Agent or such Lender, as the case may be,
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Company by a Lender, or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Company to a Governmental Authority, the Company shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Company is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Company, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
364-Day Facility
33
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Company shall make each payment required to be made by the
Company hereunder (whether of principal, interest or fees, or under Section
2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, Charlotte, North
Carolina, time, on the date when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date may,
in the discretion of the Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent at its
Principal Office, except that payments pursuant to Sections 2.15, 2.16, 2.17 and
9.03 shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Company pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee,
other than to the Company or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Company consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Company rights of set-off and counterclaim
with respect to such participation as fully as if such Lender were a direct
creditor of the Company in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Company prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Company will not make
such payment, the Administrative Agent may assume that the Company has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if
364-Day Facility
34
the Company has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender with interest thereon, for each day from
and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the Federal Funds Effective
Rate.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.07(b) or 2.18(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.19 Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.15, or if the Company is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.15 or 2.17, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Company hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with
any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Company is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.05), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent, which
consent shall not be unreasonably withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Company to require such assignment and delegation cease to apply.
SECTION 2.20 Extensions of Termination Date; Removal of
Lenders. (a) The Company may, by written notice to the Administrative Agent
(a "Notice of Extension") given not less than 60 nor more than 90 days prior to
the then effective Termination Date, advise the Lenders that it requests an
extension of the then effective Termination Date (such then effective
Termination Date being the "Existing Termination Date") by 364 calendar days,
effective on the Existing Termination
364-Day Facility
35
Date. The Administrative Agent will promptly, and in any event within five
Business Days of the receipt of such Notice of Extension, notify the Lenders of
the contents of each such Notice of Extension.
(b) Each Notice of Extension shall (i) be irrevocable and (ii)
constitute a representation by the Company that (A) neither any Event of Default
nor any Default has occurred and is continuing, and (B) the representations and
warranties contained in Article IV are correct on and as of the then effective
Termination Date, as though made on and as of such date (unless any
representation and maturity expressly relates to an earlier date).
(c) In the event a Notice of Extension is given to the Administrative
Agent as provided in Section 2.20(a) and the Administrative Agent notifies a
Lender of the contents thereof, such Lender shall on or before the 30th day next
preceding the Existing Termination Date advise the Administrative Agent in
writing whether or not such Lender consents to the extension requested thereby
and if any Lender fails so to advise the Administrative Agent, such Lender shall
be deemed to have not consented to such extension. If Lenders holding 80% or
more of the Total Commitment so consent (the "Consenting Lenders") to such
extension and any and all Lenders who have not consented (the "Non-Consenting
Lenders") are replaced, the Termination Date, and the Commitments of the
Consenting Lenders and the Nominees (as defined below) shall be automatically
extended 364 calendar days past the Existing Termination Date, effective on the
Existing Termination Date. The Administrative Agent shall promptly notify the
Company and all of the Lenders of each written notice of consent given pursuant
to this Section 2.20(c).
(d) Notwithstanding any provision of this Section 2.20 to the
contrary, each Bank that has expressly consented to an extension of the
Termination Date, may in its sole and absolute discretion at any time prior to
the Existing Termination Date give the Administrative Agent written notice that
such Lender has revoked its consent to such extension of the Existing
Termination Date (a "Notice of Revocation"). Each Notice of Revocation shall be
irrevocable. Upon receipt of any Notice of Revocation, the Administrative Agent
will promptly notify the Company and the Lender of the content of each Notice of
Revocation and the Termination Date for such Lender shall be the Existing
Termination Date.
(e) In the event the Consenting Lenders hold less than 100% of the
Total Commitment, the Consenting Lenders, or any of them, shall have the right
(but not the obligation) to assume all or any portion of the Non-Consenting
Lenders' Commitments by giving written notice to the Company and the
Administrative Agent of their election to do so on or before the 20th day next
preceding the Existing Termination Date, which notice shall be irrevocable and
shall constitute an undertaking to (i) assume, as of the close of business on
the Existing Termination Date, all or such portion of the Commitments of the
Non-Consenting Lenders, as the case may be, as may be specified in such written
notice, and (ii) purchase (without recourse) from the Non-Consenting Lenders, at
the close of business on the Existing Termination Date, the Revolving Credit
Exposures outstanding on the Existing Termination Date that correspond to the
portion of the Commitments to be so assumed at a price equal to the sum of (x)
the unpaid principal amount of all Loans so purchased, plus (y) the aggregate
amount, if any, previously funded by the transferor or any participations so
purchased, plus (z) all accrued and unpaid interest thereon. Such Commitments
and Revolving Credit Exposures, or portion thereof, to be assumed and purchased
by Consenting Lenders shall be allocated among those Consenting Lenders who have
so elected to assume the same
364-Day Facility
36
pro rata in accordance with the respective Commitments of such Consenting
Lenders as of the Existing Termination Date (provided, however, in no event
shall a Consenting Lender be required to assume and purchase an amount or
portion of the Commitments and Revolving Credit Exposures of the Non-Consenting
Lenders in excess of the amount which such Consenting Lender agreed to assume
and purchase pursuant to the immediately preceding sentence) or on such other
basis as such Consenting Lender shall agree. The Administrative Agent shall
promptly notify the Company and the other Consenting Lenders in the event it
receives any notice from a Consenting Lender pursuant to this Section 2.20(e).
(f) In the event that the Consenting Lenders shall not elect as
provided in Section 2.20(e) to assume and purchase all of the Non-Consenting
Lenders' Commitments and Revolving Credit Exposures, the Company may designate,
by written notice to the Administrative Agent and the Consenting Lenders given
on or before the tenth day next preceding the Existing Termination Date, one or
more Eligible Assignees not a party to this Agreement (individually, a "Nominee"
and collectively, the "Nominees") to assume all or any portion of the
Non-Consenting Lenders' Commitments not to be assumed by the Consenting Lenders
and to purchase (without recourse) from the Non-Consenting Lenders all Revolving
Credit Exposures outstanding at the close of business on the Existing
Termination Date that corresponds to the portion of the Commitments so to be
assumed at the price specified in Section 2.20(e). Each assumption and purchase
under this Section 2.20(f) shall be effective as of the close of business on the
Existing Termination Date when each of the following conditions has been
satisfied in a manner satisfactory to the Administrative Agent:
(i) each Nominee and the Non-Consenting Lenders have executed an
Assignment and Acceptance pursuant to which such Nominee shall (A) assume
in writing its share of the obligations of the Non-Consenting Lenders
hereunder, including its share of the Commitments of the Non-Consenting
Lenders and (B) agree to be bound as a Lender by the terms of this
Agreement; and
(ii) each Nominee shall have completed and delivered to the
Administrative Agent an Administrative Questionnaire.
(g) In the event that the Consenting Lenders shall not elect as
provided in Section 2.20(e) to assume all of the Non-Consenting Lenders'
Commitments and the Company shall not have effectively designated one or more
Nominees to assume the Commitments of and purchase the Revolving Credit
Exposures of the Non-Consenting Lenders as contemplated by Section 2.20(f),
there shall be no extension of the Existing Termination Date.
ARTICLE III.
CONDITIONS PRECEDENT
SECTION 3.01 Conditions Precedent to the Initial Borrowing. The
obligation of each Lender to make its initial Loan is subject to the following
conditions:
(a) The Administrative Agent shall have received the following, each
dated the initial Borrowing Date, except for the Loan Documents described in
clauses (i) through (v) below which shall be dated the Execution Date:
364-Day Facility
37
(i) this Agreement executed by each party hereto;
(ii) if requested by any Lender, a Revolving Note and a Competitive
Note executed by the Company and payable to the order of such Lender;
(iii)a certificate of an officer and of the secretary or an assistant
secretary of the General Partner, certifying, inter alia, (A) true and
complete copies of each of the certificate of incorporation, as amended and
in effect, of the General Partner, the partnership agreement, as amended
and in effect, of the Company, the bylaws, as amended and in effect, of the
General Partner and the resolutions adopted by the Board of Directors of
the General Partner (1) authorizing the execution, delivery and performance
by the Company of this Agreement and the other Loan Documents to which it
is or will be a party and the Borrowings to be made hereunder, (2)
approving the forms of the Loan Documents to which it is a party and which
will be delivered at or prior to the initial Borrowing Date and (3)
authorizing officers of the General Partner to execute and deliver the Loan
Documents to which the Company is or will be a party and any related
documents, including any agreement contemplated by this Agreement, (B) the
incumbency and specimen signatures of the officers of the General Partner
executing any documents on its behalf and (C) (1) that the representations
and warranties made by the Company in each Loan Document to which the
Company is a party and which will be delivered at or prior to the initial
Borrowing Date are true and correct in all material respects, (2) the
absence of any proceedings for the dissolution or liquidation of the
Company and (3) the absence of the occurrence and continuance of any
Default or Event of Default;
(iv) a letter from CT Corporation System, Inc. in form and substance
satisfactory to the Administrative Agent evidencing the obligation of CT
Corporation System, Inc. to accept service of process in the State of New
York on behalf of the Company;
(v) a favorable, signed opinion addressed to the Administrative Agent
and the Lenders from Xxxxxxxx & Xxxxxx L.L.P., counsel to the Company,
given upon the express instruction of the Company; and
(vi) certificates of appropriate public officials as to the existence,
good standing and qualification to do business as a foreign partnership of
the Company in each jurisdiction in which the ownership of its properties
or the conduct of its business requires such qualification and where the
failure so to qualify would, individually or collectively, have a Material
Adverse Effect.
(b) The Administrative Agent shall be reasonably satisfied that all
required consents and approvals of any applicable Governmental Authority and any
other Person in connection with the transactions contemplated by this Section
3.01 shall have been obtained and remain in effect (except where the failure to
obtain such approvals would not have a Material Adverse Effect), and all
applicable waiting periods shall have expired (or been waived) without any
action being taken by any Governmental Authority.
364-Day Facility
38
(c) All agreements relating to, and the organizational structure of,
the Company and the Subsidiaries, and all organic documents of the Company and
the Subsidiaries, shall be reasonably satisfactory to the Administrative Agent
and the Syndication Agent.
(d) The Company shall have paid to First Union Capital Markets Corp.,
Banc of America Securities LLC, the Administrative Agent and the Syndication
Agent all fees and expenses pursuant to the Fee Letter agreed upon by such
parties to be paid on or prior to the Execution Date.
(e) The Existing Credit Agreement shall have been terminated and all
amounts outstanding thereunder paid in full.
(f) The Company shall have paid to Xxxxxxx & Xxxxx L.L.P. pursuant to
Section 9.03 all reasonable fees and disbursements invoiced to the Company on or
prior to the Execution Date.
SECTION 3.02 Conditions Precedent to All Borrowings. The
obligation of the Lenders to make any Loan (including any Loan on the initial
Borrowing Date) is subject to the further conditions precedent that on the date
of such Borrowing:
(a) The conditions precedent set forth in Section 3.01 shall have
theretofore been satisfied;
(b) The representations and warranties set forth in Article IV and in
the other Loan Documents shall be true and correct in all material respects as
of, and as if such representations and warranties were made on, the date of the
proposed Loan (unless such representation and warranty expressly relates to an
earlier date), and the Company shall be deemed to have certified to the
Administrative Agent and the Lenders that such representations and warranties
are true and correct in all material respects by the Company's delivery of a
Borrowing Request;
(c) The Company shall have complied with the provisions of Section
2.03 or Section 2.04, as the case may be;
(d) No Default or Event of Default shall have occurred and be
continuing or would result from such Borrowing; and
(e) The Administrative Agent and the Lenders shall have received such
other approvals, opinions or documents as the Administrative Agent or the
Required Lenders may reasonably request.
The acceptance of the benefits of each Borrowing shall constitute a
representation and warranty by the Company to each of the Lenders that all of
the conditions specified in this Section 3.02 above exist as of that time.
SECTION 3.03 Conditions Precedent to Conversions. The obligation
of the Lenders to convert or continue any existing Borrowing as or into a
Eurodollar Borrowing is subject to the condition precedent that on the date of
such conversion or continuation no Default or Event of Default shall have
occurred and be continuing or would result from the making of such
364-Day Facility
39
conversion. The acceptance of the benefits of each such conversion or
continuation shall constitute a representation and warranty by the Company to
each of the Lenders that no Default or Event of Default shall have occurred and
be continuing or would result from the making of such conversion or
continuation.
SECTION 3.04 Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for any
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
satisfactory in form and substance to the Lenders.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and to
make the Loans provided for herein, the Company makes, on or as of the Effective
Date and the occurrence of each Borrowing, the following representations and
warranties to the Administrative Agent and the Lenders:
SECTION 4.01 Organization and Qualification. The Company and each
of the Subsidiaries (a) is a corporation, partnership or limited liability
company duly organized or formed, validly existing and in good standing under
the laws of the state of its incorporation, organization or formation, (b)
has all requisite corporate, partnership, limited liability company or other
power to own its property and to carry on its business as now conducted and (c)
is duly qualified to do business and is in good standing in every jurisdiction
in which the failure to be so qualified would, individually or together with
all such other failures of the Company and the Subsidiaries, have a Material
Adverse Effect. As of the Execution Date, the Persons and other entities named
in Schedule 4.01 are all of the Subsidiaries of the Company, and such Schedule
4.01 (x) accurately reflects (i) the direct owner of the Capital Stock of each
such Subsidiary and (ii) the percentage of the issued and outstanding Capital
Stock of each such Subsidiary owned by such direct owner, (y) accurately
identifies such Subsidiaries and (z) accurately sets forth the jurisdictions
of their respective incorporation, organization or formation, as the case may
be, and jurisdictions in which they are qualified as foreign corporations,
foreign partnerships, foreign limited liability companies or other foreign
entities to do business.
SECTION 4.02 Authorization, Validity, Etc. The Company has all
requisite partnership or other power and authority to execute, deliver and
perform its obligations hereunder and under the other Loan Documents to which
it is a party and to make the Borrowings hereunder, and all such action has
been duly authorized by all necessary partnership proceedings on its part. This
Agreement and the other Loan Documents have been duly and validly executed and
delivered by or on behalf of the Company and constitute valid and legally
binding agreements of the Company enforceable against the Company in accordance
with the respective terms thereof, except (a) as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer,
fraudulent conveyance or other similar laws relating to or affecting the
enforcement of creditors' rights generally, and by general principles of
equity (including principles of good faith, reasonableness, materiality and
fair dealing) which may, among other things, limit the right to obtain equitable
remedies (regardless of whether considered in a proceeding in equity or at law)
and (b) as to the
364-Day Facility
40
enforceability of provisions for indemnification for violation of applicable
securities laws, limitations thereon arising as a matter of law or public
policy.
SECTION 4.03 Governmental Consents, Etc. No authorization, consent,
approval, license or exemption of or registration, declaration or filing
with any Governmental Authority, is necessary for the valid execution, delivery
or performance by the Company of any Loan Document to which it is a party,
except those that have been obtained and such matters relating to performance as
would ordinarily be done in the ordinary course of business after the Execution
Date.
SECTION 4.04 Conflicting or Adverse Agreements or Restrictions.
Neither the Company nor any of the Subsidiaries is a party to any contract or
agreement or subject to any restriction that would reasonably be expected to
have a Material Adverse Effect. Neither the execution, delivery and performance
by the Company of the Loan Documents to which it is a party, nor compliance
with the terms and provisions thereof, nor the extensions of credit contemplated
by the Loan Documents, (a) will breach or violate any applicable Requirement
of Law, (b) will result in any breach or violation of, any of the terms,
covenants, conditions or provisions of, or constitute a default under, or result
in the creation or imposition of (or the obligation to create or impose) any
Lien upon any of its property or assets (other than Liens created or
contemplated by this Agreement) pursuant to the terms of any indenture,
mortgage, deed of trust, agreement or other instrument to which it or any of the
Subsidiaries is party or by which any property or asset of it or any of
the Subsidiaries is bound or to which it is subject, except for breaches,
violations and defaults under clauses (a) and (b) that neither individually nor
in the aggregate for the Company could reasonably be expected to result in a
Material Adverse Effect or (c) will violate any provision of the organic
documents of the Company.
SECTION 4.05 Properties. (a) Each of the Company and the
Subsidiaries has good title to, or valid leasehold or other interests in, all
its real and personal property material to its business, except for minor
defects in title that do not materially interfere with its ability to conduct
its business as currently conducted or to utilize such properties for their
intended purposes.
(b) Each of the Company and the Subsidiaries owns, or is licensed to
use, all trademarks, trade names, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Company and the
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, neither individually nor in the aggregate for the
Company and such Subsidiaries, could reasonably be expected to result in a
Material Adverse Effect.
SECTION 4.06 Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Company,
threatened against or affecting the Company or any of the Subsidiaries (i) as
to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in
the aggregate for the Company and such Subsidiaries, to result in a Material
Adverse Effect (other than the Disclosed Matters) or (ii) that involve this
Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate for the Company and the
Subsidiaries, could not reasonably be expected to result in a Material Adverse
Effect, neither the Company nor any of the Subsidiaries
364-Day Facility
41
(i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
(c) Since the Execution Date, there has been no change in the status
of the Disclosed Matters that, individually or in the aggregate, has resulted
in, or materially increased the likelihood of, a Material Adverse Effect.
SECTION 4.07 Financial Statements. (a) The consolidated and
consolidating balance sheets of the Company and its consolidated Subsidiaries
as at December 31, 1998 and the related consolidated and consolidating
statements of income, partners', shareholders' or members' equity and cash flow
of the Company and its consolidated Subsidiaries for the fiscal year ended on
said date, with (in the case of such consolidated financial statements)
the opinion thereon of PricewaterhouseCoopers LLP heretofore furnished to
the Lenders and the unaudited consolidated and consolidating balance sheets
of the Company and its consolidated Subsidiaries as at June 30, 1999 and their
related consolidated and consolidating statements of income, partners',
shareholders' or members' equity and cash flow of the Company and its
consolidated Subsidiaries for the six-month period ended on such date heretofore
furnished to the Lenders, are complete and correct in all material respects and
fairly present the consolidated financial condition of the Company and its
consolidated Subsidiaries as at said dates and the results of their operations
for the fiscal year and the six-month period ended on said dates, all in
accordance with GAAP, as applied on a consistent basis (subject, in the case of
the interim financial statements, to the absence of footnotes and to normal
year-end and audit adjustments).
(b) Since December 31, 1998, there has been no material adverse
change in the business, assets, operations or condition, financial or otherwise,
of the Company and the Subsidiaries, taken as a whole.
SECTION 4.08 Disclosure. The Company has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which it
or any of the Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate for the Company and such Subsidiaries, could
reasonably be expected to result in a Material Adverse Effect. None of the
reports, financial statements, certificates or other information furnished
by or on behalf of the Company to the Administrative Agent or any Lender in
connection with the syndication or negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
SECTION 4.09 Investment Company Act. Neither the Company nor any of
the Subsidiaries is, or is regulated as, an "investment company," as such term
is defined in the Investment Company Act of 1940, as amended.
SECTION 4.10 Public Utility Holding Company Act. Neither
the Company nor any of the Subsidiaries is a non-exempt "holding company," or
subject to regulation as such, or an
364-Day Facility
42
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company,"within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 4.11 ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably
be expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not,
as of the date of the most recent financial statements reflecting such amounts,
exceed by more than $5,000,000 the fair market value of the assets of such Plan,
and the present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $5,000,000
the fair market value of the assets of all such underfunded Plans.
SECTION 4.12 Tax Returns and Payments. (a) The Company and the
Subsidiaries have caused to be filed all federal income tax returns and other
material tax returns, statements and reports (or obtained extensions with
respect thereto) which are required to be filed and have paid or deposited or
made adequate provision in accordance with GAAP for the payment of all taxes
(including estimated taxes shown on such returns, statements and reports)
which are shown to be due pursuant to such returns, except where the failure
to pay such taxes (individually or in the aggregate for the Company and the
Subsidiaries) would not have a Material Adverse Effect. No material income
tax liability of the Company or the Subsidiaries has been asserted by the
Internal Revenue Service of the United States or any other Governmental
Authority for any taxes in excess of those already paid, except for taxes
which are being contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP have been created on the books
of the Company and the Subsidiaries.
(b) The federal income tax liabilities, if any, of the Company and
the Subsidiaries (and of the General Partner) have been finally determined by
the Internal Revenue Service and satisfied for all taxable years through the
fiscal year ending in 1994.
SECTION 4.13 Compliance with Laws and Agreements. Each of the
Company and the Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate
for the Company and the Subsidiaries, could not reasonably be expected to
result in a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
SECTION 4.14 Purpose of Loans. (a) All proceeds of the Loans will be
used for the purposes set forth in Section 5.08.
(b) None of the proceeds of the loans under the Existing Credit
Agreement or this Agreement or any portion of the letters of credit issued or
outstanding under the Existing Credit Agreement were or will be used directly or
indirectly for the purpose of buying or carrying any "margin stock" within the
meaning of Regulation U (herein called "margin stock") or for the purpose of
reducing or retiring any indebtedness which was originally incurred to buy or
carry a margin stock,
364-Day Facility
43
or for any other purpose which might constitute this transaction a "purpose"
credit within the meaning of Regulation T, U or X. Neither the Company nor any
agent acting on its behalf has taken or will take any action which might cause
this Agreement or any other Loan Document to violate Regulation T, Regulation U,
Regulation X, or any other regulation of the Board or to violate the Securities
Exchange Act of 1934. Margin stock does not constitute more than 25% of the
assets of the Company and the Company does not intend or foresee that it will
ever do so.
SECTION 4.15 Year 2000. The Company will use reasonable best efforts
to ensure that any reprogramming required to permit the proper functioning, in
and following the year 2000, of (a) the computer systems of the Company and the
Subsidiaries and (b) equipment of the Company and the Subsidiaries containing
embedded microchips and the testing of all such systems and equipment, as
reprogrammed, will be completed by December 31, 1999. The cost to the Company
and the Subsidiaries of such reprogramming and, to the knowledge of the Company,
of the reasonably foreseeable consequences of year 2000 to the Company and the
Subsidiaries, taken as a whole (including reprogramming errors) will not result
in an Event of Default or a Material Adverse Effect.
ARTICLE V.
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Company covenants and agrees with the Lenders that:
SECTION 5.01 Financial Statements and Other Information. The Company
will furnish to the Administrative Agent, in each case with sufficient copies
for each Lender:
(a) As soon as available and in any event within 120 days after the
end of each fiscal year of the Company: (i) the audited consolidated statements
of income, partners' equity and cash flows of the Company for such fiscal year,
and the related consolidated balance sheet of the Company as at the end of such
fiscal year, setting forth in each case in comparative form the figures for (or
in the case of the balance sheet, as of the end of) the previous fiscal year,
accompanied by the related opinion of independent public accountants of
recognized national standing reasonably acceptable to the Administrative Agent,
which opinion shall (x) state that said financial statements of the Company
fairly present the consolidated financial condition and results of operations of
the Company as at the end of, and for, such fiscal year and that such financial
statements have been prepared in accordance with GAAP except for such changes in
such principles with which the independent public accountants shall have
concurred, and (y) not contain a "going concern" or other adverse qualification
or exception unacceptable to the Required Lenders; and (ii) a certificate of
such accountants stating that, in making the examination necessary for their
opinion, they obtained no knowledge, except as specifically stated, of any Event
of Default or Default, and stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 4.07(b) and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate.
(b)(i) As soon as available and in any event within 60 days after the
end of each of the first three fiscal quarterly periods of each fiscal
year of the Company, unaudited
364-Day Facility
44
consolidated statements of income, partners' equity and cash flows of the
Company for such period and for the period from the beginning of the
respective fiscal year to the end of such period, and the related
unaudited consolidated balance sheet as at the end of such period, setting
forth in each case in comparative form the figures for (or in the case of
balance sheets, as of the end of) the corresponding periods in the
previous fiscal year, accompanied by the certificate of a Responsible
Officer of the Company, which certificate shall state that said financial
statements fairly present the consolidated financial condition and results
of operations of the Company in accordance with GAAP, as at the end of,
and for, such period (subject to the absence of footnotes and changes
resulting from normal year-end audit adjustments).
(ii) As soon as available and in any event within 60 days after the
end of each of the first three fiscal quarterly periods of each fiscal
year, and within 120 days after the end of each fiscal year of OLP "A",
OLP "B", OLP "C", OLP "D" and each other Wholly-owned Subsidiary the
Capital Stock of which is owned directly by the Company, unaudited
consolidated statements of income, partners', shareholders' or members'
equity, as the case may be, and cash flows of such Person and the
Subsidiaries for such period and for the period from the beginning of the
respective fiscal year to the end of such period, and the related
unaudited consolidated balance sheet as at the end of such period, setting
forth in each case in comparative form the figures for (or in the case of
balance sheets, as of the end of) the corresponding periods in the
previous fiscal year, accompanied by the certificate of a Responsible
Officer of such Person, which certificate shall state that said financial
statements fairly present the consolidated and consolidating financial
condition and results of operations of such Person in accordance with
GAAP, as at the end of, and for, such period (subject to the absence of
footnotes and changes resulting from normal year-end audit adjustments).
(c) Promptly upon receipt thereof, and in the form received, all
audited and unaudited financial statements (whether quarterly or annual)
received by the Company from any Person (other than an individual) whose income
is accounted for through any of the Persons referenced in Section 5.01(b)(ii)
and whose EBITDA or distributions, as the case may be, exceed 25% of
Consolidated EBITDA.
(d) Prompt written notice of the following:
(i) the occurrence of any Default or Event of Default or Change in
Control Event;
(ii) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Company and the Subsidiaries in an aggregate
amount exceeding $5,000,000; and
(iii)any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 5.01 shall be accompanied by a
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
364-Day Facility
45
(e) Promptly upon receipt thereof, a copy of each other report or
letter submitted to the Company by independent accountants in connection with
any annual, interim or special audit made by them of the books of the Company,
and a copy of any response by the Company, or the Board of Directors of the
general partner of the Company, to such letter or report.
(f) Promptly upon its becoming available, each financial statement,
report, notice or proxy statement sent by the Company to stockholders generally
and each regular or periodic report and any registration statement or prospectus
filed by the Company with any securities exchange or the Securities and Exchange
Commission or any successor agency.
(g) Promptly after the furnishing thereof, copies of any statement,
report or notice furnished to any Person pursuant to the terms of any indenture,
loan or credit or other similar agreement, other than this Agreement and not
otherwise required to be furnished to the Administrative Agent pursuant to any
other provision of this Section 5.01.
(h) From time to time such other information regarding the business,
affairs or financial condition of the Company or any Subsidiary (including any
Plan or Multiemployer Plan and any reports or other information required to be
filed under ERISA) as the Required Lenders or the Administrative Agent may
reasonably request.
The Company will furnish to the Administrative Agent, at the time it furnishes
each set of financial statements pursuant to paragraph (a) or (b) above, a
certificate substantially in the form of Exhibit 5.01 executed by a Responsible
Officer of the Company (i) certifying as to the matters set forth therein and
stating that no Event of Default or Default has occurred and is continuing (or,
if any Event of Default or Default has occurred and is continuing, describing
the same in reasonable detail), (ii) setting forth in reasonable detail the
computations necessary to determine whether the Company is in compliance with
Sections 6.07(a) and (b), and (iii) a statement, with respect to each
Intercompany Note, of (A) the actual outstanding principal amount thereof, and
the amount of any accrued and unpaid interest thereon, as at the end of the
respective quarter or fiscal year, as the case may be, and (B) the highest and
lowest principal amount thereof at any time outstanding during such quarter or
fiscal year and the periods during such quarter or fiscal year during which the
principal of such Intercompany Note was outstanding in each such amount.
SECTION 5.02 Litigation. The Company shall promptly give to the
Administrative Agent notice of all legal or arbitral proceedings, and of
all proceedings before any Governmental Authority affecting the Company or any
Subsidiary, except proceedings which, if adversely determined, would not
have a Material Adverse Effect. The Company will, and will cause each of the
Subsidiaries to, promptly notify the Administrative Agent of any claim,
judgment, Lien or other encumbrance affecting any property or assets of the
Company or any such Subsidiary if the value of the claim, judgment, Lien, or
other encumbrance affecting such property or assets shall exceed $10,000,000.
SECTION 5.03 Existence, Conduct of Business. The Company will, and
will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and
364-Day Facility
46
franchises material to the conduct of its business; provided that the foregoing
shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03.
SECTION 5.04 Payment of Obligations. The Company will, and will
cause each of the Subsidiaries to, pay its obligations, including tax
liabilities, that, if not paid, could result in a Material Adverse Effect before
the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Company or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05 Maintenance of Properties; Insurance. The Company
will, and will cause each of the Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06 Books and Records; Inspection Rights. The Company will,
and will cause each of the Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings
and transactions in relation to its business and activities. The Company
will, and will cause each of the Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.
SECTION 5.07 Compliance with Laws. The Company will, and will cause
each of the Subsidiaries to, comply with all Requirements of Law applicable to
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.08 Use of Proceeds. The proceeds of the Loans will
be used only for (a) refinancing (i) amounts outstanding under the Existing
Credit Agreement, (ii) the SFPP First Mortgage Notes and/or the SFPP Revolving
Credit Facility, commercial paper back-up, and (b) working capital and other
partnership purposes. No part of the proceeds of any Loan has been or will be
used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U
and X.
SECTION 5.09 Further Assurances. The Company will cure promptly any
defects in the creation and issuance of any Notes and the execution and delivery
of this Agreement. The Company at its expense will promptly execute and deliver
to the Administrative Agent upon request all such other documents, agreements
and instruments to comply with or accomplish the covenants and agreements of the
Company in this Agreement and the other Loan Documents to which the Company is a
party.
364-Day Facility
47
SECTION 5.10 Performance of Obligations. The Company will pay the
Loans according to the reading, tenor and effect thereof; and the Company will
do and perform every act and discharge all of the Obligations to be performed
and discharged by it under this Agreement, at the time or times and in the
manner specified.
SECTION 5.11 Lines of Business. The Company will, and will cause
each Subsidiary to, be and remain engaged in only those lines of business in
which the Company and such Subsidiaries are engaged on the date of this
Agreement, any additional lines of business reasonably related thereto, and
no others.
SECTION 5.12 Intercompany Notes. The Company will cause each
Subsidiary or each other Affiliate to execute a promissory note in favor of
the Company in an original principal amount equal to the actual amount from
time to time outstanding of Indebtedness of such Subsidiary or other Affiliate
to the Company (being the sum of the amounts specified pursuant to clause (i)
of the next sentence), and dated the Execution Date in the case of the
Subsidiaries (other than Subsidiaries which conduct no business, have minimal
assets and have no Indebtedness owing to the Company) on such date, in the case
of any other Subsidiary, the date such Person becomes a Subsidiary and in the
case of any other Affiliate, the first date on which any such Indebtedness
is incurred by such other Affiliate (collectively, the "Intercompany Notes").
The Company will maintain accounts in which it shall record (i) the amount of
the proceeds of each Loan, and each other amount, from time to time advanced to
such Subsidiary or such Affiliate; (ii) the interest rate applicable to such
advance or payment; and (iii) each payment of principal or interest made by such
Subsidiary or other Affiliate.
ARTICLE VI.
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Company covenants and agrees with the Lenders that:
SECTION 6.01 Indebtedness. The Company will not permit any Subsidiary
to create, incur, assume or permit to exist any Indebtedness, except:
(a) in the case of OLP "B", Indebtedness under the Companion
Credit Agreement;
(b) in the case of OLP "B", Indebtedness in respect of the Bonds;
(c) in the case of SFPP, Indebtedness in respect of the SFPP First
Mortgage Notes and Indebtedness under the SFPP Revolving Credit Facility not in
excess of $380,000,000 aggregate principal amount for all such Indebtedness at
any one time outstanding, but not any extension, refinancing, renewal or
refunding thereof, except (i) (x) with Indebtedness of SFPP owing solely to the
Company or (y) a refinancing of SFPP First Mortgage Notes solely with
Indebtedness incurred under the SFPP Revolving Credit Facility, or (ii) if the
Company shall furnish to the Administrative Agent an opinion of the Company's
independent public accountants to the effect that any such extension,
refinancing, renewal or refunding thereof solely with Indebtedness of SFPP
364-Day Facility
48
owing to the Company as contemplated by clause (i) (x) above would cause an
acceleration of any tax liabilities of Burlington Northern Santa Fe Corporation
or any of its Affiliates under applicable federal tax law, then SFPP may
refinance, renew or refund not more than $190,000,000 of such Indebtedness with
unsecured Indebtedness owing to one or more Persons other than the Company;
(d) not in excess of $120,000,000 aggregate principal amount of
Indebtedness of Plantation Pipe Line at any time outstanding, if it becomes a
Subsidiary;
(e) in the case of any Person (other than Plantation Pipe Line) that
becomes a Subsidiary, Indebtedness existing at the time such Person becomes a
Subsidiary and not incurred in contemplation thereof (which for purposes of this
Agreement shall be deemed to be incurred at the time such Person becomes a
Subsidiary), Indebtedness assumed by any Subsidiary in connection with its
acquisition (whether by merger, consolidation or acquisition of all or
substantially all of the assets) of another Person and Indebtedness refinancing
(but not increasing) such Indebtedness, provided that at the time of and after
giving effect to the incurrence or assumption of such Indebtedness or
refinancing Indebtedness and the application of the proceeds thereof, as the
case may be, the aggregate principal amount of all such Indebtedness, and of all
Indebtedness previously incurred or assumed pursuant to this Section 6.01(e),
and then outstanding, shall not exceed 50% of Consolidated EBITDA for the period
of four full fiscal quarters of the Company and the Subsidiaries (and such
Person on a pro forma basis) then most recently ended in respect of which
financial statements shall have been delivered pursuant to Section 5.01(a) or
(b), as the case may be;
(f) Indebtedness of any Subsidiary to the Company; and
(g) in the case of any Subsidiary, Indebtedness not otherwise
permitted by Section 6.01(a), (b), (c), (d), (e) or (f), provided that at the
time of and after giving effect to the incurrence of such Indebtedness and the
application of the proceeds thereof the aggregate principal amount of all such
Indebtedness, and of all Indebtedness previously incurred pursuant to this
Section 6.01(g), and then outstanding, shall not exceed 25% of Consolidated
EBITDA for the period of four full fiscal quarters of the Company and the
Subsidiaries then most recently ended in respect of which financial statements
shall have been delivered pursuant to Section 5.01(a) or (b), as the case may
be;
provided, however, that no Subsidiary shall create, incur or assume any
indebtedness pursuant to any provision of this Section 6.01 if an Event of
Default shall have occurred and be continuing or would result from such
creation, incurrence or assumption.
SECTION 6.02 Liens. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any
Subsidiary (i) existing on the date hereof and set forth in Schedule 6.02;
provided that (A) such Lien shall not extend to any other property or asset of
the Company or such Subsidiary and (B) such Lien shall
364-Day Facility
49
secure only those obligations which it secures on the date hereof and (ii) any
Lien required to be created pursuant to Section 2.06(a), 2.06(k), 2.10 or 7.01
of the Companion Credit Agreement;
(c) Liens on properties or assets of SFPP securing the SFPP First
Mortgage Notes and the SFPP Revolving Credit Facility; and
(d) Liens existing on any property or asset prior to the acquisition
thereof by the Company or any Subsidiary or existing on any property or asset of
any Person that becomes a Subsidiary after the date hereof prior to the time
such Person becomes a Subsidiary and securing Indebtedness permitted by Sections
6.01(d) and/or (e) in an aggregate principal amount at any one time outstanding
not in excess of $100,000,000; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary , as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary, (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary, as the case may be, and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof, and (iv) after giving effect to such
acquisition or such Person becoming a Subsidiary, the Indebtedness secured by
such Lien would be permitted by Section 6.01(e).
SECTION 6.03 Fundamental Changes. The Company will not, and will
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all (or substantially all) of its assets, or all or substantially
all of the stock of or other equity interest in any of the Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve,
unless: (a) at the time thereof and immediately after giving effect thereto no
Event of Default or Default shall have occurred and be continuing and (b) if the
Company is involved in any such transaction the Company is the surviving entity
or the recipient of any such sale, transfer, lease or other disposition of
assets; provided, however, that in no event shall any such merger,
consolidation, sale, transfer, lease or other disposition whether or not
otherwise permitted by this Section 6.03, have the effect of releasing the
Company from any of its obligations and liabilities under this Agreement.
SECTION 6.04 Restricted Payments. The Company will not, and will not
permit any of the Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment.
SECTION 6.05 Transactions with Affiliates. The Company will not,
and will not permit any of the Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Company or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the Company and the Subsidiaries
not involving any other Affiliate, (c) any payment which would constitute a
Restricted Payment but for the proviso to the definition of said term in Section
1.01 and (d) loans and advances by the Company to the General Partner to enable
the General Partner to pay general and administrative costs and expenses
pursuant to the partnership agreement of the Company and in accordance with past
practices.
364-Day Facility
50
SECTION 6.06 Restrictive Agreements. The Company will not, and
will not permit any of the Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon the ability of (a) any Subsidiary to
pay dividends or other distributions with respect to any shares of its Capital
Stock or to make or repay loans or advances to the Company or any other such
Subsidiary or to Guarantee Indebtedness of the Company or any other such
Subsidiary or (b) the Company or any Subsidiary to grant Liens to secure the
Obligations (except for any agreement or arrangement with respect to the assets
subject to the Liens permitted by Section 6.02(d) and except for Indebtedness
issued by the Company pursuant to an Indenture dated as of January 29, 1999
among the Company, as Issuer, the Guarantors named therein and X.X.Xxxxx
Company of Texas, N.A., as Trustee thereunder); provided that the foregoing
shall not apply to (i) restrictions and conditions imposed by law or by this
Agreement or the Companion Credit Agreement, (ii) customary restrictions and
conditions contained in agreements relating to the sale of a Subsidiary pending
such sale, provided such restrictions and conditions apply only to the
Subsidiary that is to be sold and such sale is permitted hereunder, or (iii)
restrictions and conditions existing on the date hereof identified on Schedule
6.06 (but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition) and (iv)
restrictions and conditions contained in the agreement pursuant to which the
SFPP First Mortgage Notes were issued and in the SFPP Revolving Credit Facility.
SECTION 6.07 Financial Covenants. The Company will observe each of
the following requirements:
(a) Ratio of Consolidated Indebtedness to Consolidated EBITDA. The
Company will not at any time permit the ratio of Consolidated Indebtedness to
Consolidated EBITDA for the four full fiscal quarters ended in respect of which
financial statements shall have been delivered pursuant to Section 5.01(a) or
(b), as the case may be, to exceed 4.00 to 1.0. For purposes of this Section
6.07(a), if during any period the Company acquires any Person (or any interest
in any Person) or all or substantially all of the assets of any Person, the
EBITDA attributable to such assets or an amount equal to the percentage of
ownership of the Company in such Person times the EBITDA of such Person, for
such period determined on a pro forma basis (which determination, in each case,
shall be subject to approval of the Required Lenders, not to be unreasonably
withheld) may be included as Consolidated EBITDA for such period, if on the date
of such acquisition no Indebtedness (other than Indebtedness permitted pursuant
to Section 6.01) is incurred by reason of and giving effect to such acquisition
and such Person, or the entity acquiring such assets, as the case may be, is a
Subsidiary.
(b) Ratio of Consolidated EBITDA to Consolidated Interest Expense.
The Company will not at any time permit the ratio of Consolidated EBITDA for the
four full fiscal quarters then most recently ended in respect of which financial
statements shall have been delivered pursuant to Section 5.01(a) or (b), as the
case may be, to Consolidated Interest Expense for such four full fiscal quarters
to be less than 3.50 to 1.0.
SECTION 6.08 Amendments to Certain Agreements. The Company will not
and will not permit any Subsidiary to amend its partnership agreement or
operating agreement or in the case of SFPP, the SFPP Revolving Credit Facility,
the SFPP First Mortgage Notes or the Note
364-Day Facility
51
Agreement pursuant to which such First Mortgage Notes were issued, in each case,
in any manner that could reasonably be expected to be adverse to the Lenders.
ARTICLE VII.
EVENTS OF DEFAULT
SECTION 7.01 Events of Default and Remedies. If any of the
following events ("Events of Default") shall occur and be continuing:
(a) the principal of any Loan shall not be paid when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other
than an amount referred to in clause (a) of this Article) payable under this
Agreement or any other Loan Document shall not be paid, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of three days;
(c) any representation or warranty made or, for purposes of Article
III, deemed made by or on behalf of the Company herein, at the direction of the
Company or by the Company in any other Loan Document or in any document,
certificate or financial statement delivered in connection with this Agreement
or any other Loan Document shall prove to have been incorrect in any material
respect when made or deemed made or reaffirmed, as the case may be;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.01(d)(iii), 5.03 (with respect to
the Company's existence) or 5.08 or in Article VI;
(e) the Company shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement (other than those specified in
Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document
to which it is a party and, in any event, such failure shall remain unremedied
for 30 calendar days after the earlier of (i) written notice of such failure
shall have been given to the Company by the Administrative Agent or any Lender
or, (ii) an officer of the Company becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the
Company or any Subsidiary fails to make (whether as primary obligor or as
guarantor or other surety) any payment of principal of, or interest or premium,
if any, on any item or items of Indebtedness (other than as specified in Section
7.01(a) or Section 7.01(b)) or any payment in respect of any Hedging Agreement
beyond any period of grace provided with respect thereto (not to exceed 30
days); provided that the aggregate outstanding principal amount of all
Indebtedness or payment obligations in respect of all Hedging Agreements as to
which such a payment default shall occur and be continuing is equal to or
exceeds $5,000,000, or (ii) the Company or any Subsidiary fails to duly observe,
perform or comply with any agreement with any Person or any term or condition of
any instrument, if such failure, either individually or in the aggregate, shall
have caused or shall have the ability to cause the acceleration of the payment
of Indebtedness with an aggregate face amount which is equal to or exceeds
$5,000,000; provided that this Section 7.01(f) shall not apply to secured
Indebtedness that
364-Day Facility
52
becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness so long as such Indebtedness is paid in full
when due;
(g) an involuntary case shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Company or any Subsidiary or its debts, or of a substantial part
of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Company or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(h) the Company, or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, winding-up, reorganization
or other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in Section 7.01(g), (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Company or any Subsidiary or for a substantial part
of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(i) the Company or any Subsidiary shall become unable, admit in
writing or fail generally to pay its debts as they become due;
(j) the General Partner fails to make (whether as primary obligator
or as guarantor or other surety) any payment of principal of, or interest or
premium, if any, on any item or items of Indebtedness beyond any period of grace
provided with respect thereto (not to exceed 30 days); provided that the
aggregate outstanding principal amount of all such Indebtedness as to which such
a payment default shall occur and be continuing is equal to or exceeds
$10,000,000;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Company or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Company and
the Subsidiaries in an aggregate amount exceeding (i) $5,000,000 in any year or
(ii) $10,000,000 for all periods;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, may, and upon the written
request of the Required Lenders shall, by written notice (including notice sent
by telecopy) to the Company (a "Notice of Default") take any or all of the
following actions, without prejudice to the rights of the Administrative Agent,
any Lender or other holder of any of the Obligations to enforce its claims
against the Company
364-Day Facility
53
(provided that, if an Event of Default specified in Section 7.01(g) or Section
7.01(h) shall occur with respect to the Company or any Subsidiary, the result of
which would occur upon the giving of a Notice of Default as specified in clauses
(i) and (ii) below, shall occur automatically without the giving of any Notice
of Default): (i) declare the Total Commitment terminated, whereupon the
Commitments of the Lenders shall forthwith terminate immediately and any accrued
facility fees shall forthwith become due and payable without any other notice of
any kind; (ii) declare the principal of and any accrued interest in respect of
all Loans, and all the other Obligations owing hereunder and under the other
Loan Documents, to be, whereupon the same shall become, forthwith due and
payable without presentment, demand, notice of demand or of dishonor and
nonpayment, protest, notice of protest, notice of intent to accelerate,
declaration or notice of acceleration or any other notice of any kind, all of
which are hereby waived by the Company; and (iii) exercise any rights or
remedies under the Loan Documents.
SECTION 7.02 Other Remedies. Upon the occurrence and during the
continuance of any Event of Default, the Administrative Agent, acting at
the request of the Required Lenders, may proceed to protect and enforce its
rights, either by suit in equity or by action at law or both, whether for the
specific performance of any covenant or agreement contained in this Agreement
or in any other Loan Document or in aid of the exercise of any power granted in
this Agreement or in any other Loan Document; or may proceed to enforce the
payment of all amounts owing to the Administrative Agent and the Lenders under
the Loan Documents and interest thereon in the manner set forth herein or
therein; it being intended that no remedy conferred herein or in any of the
other Loan Documents is to be exclusive of any other remedy, and each and every
remedy contained herein or in any other Loan Document shall be cumulative and
shall be in addition to every other remedy given hereunder and under the other
Loan Documents now or hereafter existing at law or in equity or by statute or
otherwise.
SECTION 7.03 Application of Moneys During Continuation of Event of
Default. (a) So long as an Event of Default of which the Administrative Agent
shall have given notice to the Lenders shall continue, all moneys received by
the Administrative Agent from the Company under the Loan Documents shall, except
as otherwise required by law, be distributed by the Administrative Agent on the
dates selected by the Administrative Agent (individually, a "Distribution Date"
and collectively, the "Distribution Dates") as follows:
first, to payment of the unreimbursed expenses for which the
Administrative Agent or any Lender is to be reimbursed pursuant to
Section 9.03 and unpaid fees owing to the Administrative Agent
pursuant to the Fee Letter;
second, to the ratable payment of accrued but unpaid interest on
the Obligations;
third, to the ratable payment of unpaid principal of the
Obligations;
fourth, to the ratable payment of all other amounts payable by the
Company hereunder;
fifth, to the ratable payment of all other Obligations, until all
Obligations shall have been paid in full; and
364-Day Facility
54
finally, to payment to the Company, or its successors or assigns, or
as a court of competent jurisdiction may direct, of any surplus then
remaining from such proceeds.
(b) The term "unpaid" as used in this Section 7.03 shall mean all
Obligations outstanding as of a Distribution Date as to which prior
distributions have not been made, after giving effect to any adjustments which
are made pursuant to Section 9.09 of which the Administrative Agent shall have
been notified.
ARTICLE VIII.
THE ADMINISTRATIVE AGENT
SECTION 8.01 Appointment, Powers and Immunities. Each Lender
hereby irrevocably appoints and authorizes the Administrative Agent to act as
its agent hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Administrative Agent by the terms of this
Agreement and such other Loan Documents, together with such other powers as are
reasonably incidental thereto. The Administrative Agent (which term as used in
this sentence and in Section 8.05 and the first sentence of Section 8.06 shall
include reference to its Affiliates and its Affiliates' officers, directors,
employees, attorneys, accountants, experts and agents): (a) shall have no duties
or responsibilities except those expressly set forth in the Loan Documents, and
shall not by reason of the Loan Documents be a trustee or fiduciary for any
Lender; (b) makes no representation or warranty to any Lender and shall not be
responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement, or for the value, validity, effectiveness, genuineness, execution,
legality, enforceability or sufficiency of this Agreement, any other Loan
Document or any other document referred to or provided for herein or therein
or for any failure by the Company or any other Person (other than the
Administrative Agent) to perform any of its obligations hereunder or thereunder
or for the existence or value of, or the perfection or priority of any Lien
upon, any collateral security or the financial or other condition of the
Company, the Subsidiaries or any other obligor or guarantor; (c) except pursuant
to Section 8.07 shall not be required to initiate or conduct any litigation or
collection proceedings hereunder; and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other document
or instrument referred to or provided for herein or in connection herewith
including its own ordinary negligence, except for its own gross negligence,
willful misconduct or unlawful conduct. The Administrative Agent may employ
agents, accountants, attorneys and experts and shall not be responsible for
the negligence or misconduct of any such agents, accountants, attorneys or
experts selected by it in good faith or any action taken or omitted to be taken
in good faith by it in accordance with the advice of such agents, accountants,
attorneys or experts. The Administrative Agent may deem and treat the payee
named in any Note as the holder thereof for all purposes hereof unless and
until a written notice of the assignment or transfer thereof permitted hereunder
shall have been filed with the Administrative Agent. The Administrative Agent
is authorized to release any cash collateral that is permitted to be released
pursuant to the terms of this Agreement.
SECTION 8.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telex, telecopier, telegram
or cable) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons, and upon advice and
364-Day Facility
55
statements of legal counsel, independent accountants and other experts selected
by the Administrative Agent in good faith.
SECTION 8.03 Defaults; Events of Default. The Administrative Agent
shall not be deemed to have knowledge of the occurrence of a Default or an Event
of Default (other than the non-payment of principal of or interest on Loans or
of fees) unless the Administrative Agent has received notice from a Lender or
the Company specifying such Default or Event of Default and stating that such
notice is a "Notice of Default." In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. In the
event of a payment Default or Event of Default, the Administrative Agent shall
give each Lender prompt notice of each such payment Default or Event of Default.
SECTION 8.04 Rights as a Lender. With respect to its Commitments
and the Loans made by it, First Union National Bank (and any successor acting as
Administrative Agent) in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Administrative Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. First Union National Bank (and
any successor acting as Administrative Agent) and its Affiliates may (without
having to account therefor to any Lender) accept deposits from, lend money
to and generally engage in any kind of banking, trust or other business with the
Company (and any of its Affiliates) as if it were not acting as the
Administrative Agent. First Union National Bank and its Affiliates may accept
fees and other consideration from the Company for services in connection
with this Agreement or otherwise without having to account for the same to the
Lenders.
SECTION 8.05 INDEMNIFICATION. THE LENDERS AGREE TO INDEMNIFY THE
ADMINISTRATIVE AGENT, THE SYNDICATION AGENT AND THE DOCUMENTATION AGENT
RATABLY IN ACCORDANCE WITH THEIR APPLICABLE PERCENTAGES FOR THE INDEMNITY
MATTERS AS DESCRIBED IN SECTION 9.03 TO THE EXTENT NOT INDEMNIFIED OR REIMBURSED
BY THE COMPANY UNDER SECTION 9.03, BUT WITHOUT LIMITING THE OBLIGATIONS OF THE
COMPANY UNDER SAID SECTION 9.03 AND FOR ANY AND ALL OTHER LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS OF ANY KIND AND NATURE WHATSOEVER WHICH MAY BE IMPOSED
ON, INCURRED BY OR ASSERTED AGAINST THE ADMINISTRATIVE AGENT, THE SYNDICATION
AGENT OR THE DOCUMENTATION AGENT IN ANY WAY RELATING TO OR ARISING OUT OF: (A)
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED BY OR REFERRED TO
HEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY, BUT EXCLUDING, UNLESS A DEFAULT
OR AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, NORMAL ADMINISTRATIVE
COSTS AND EXPENSES INCIDENT TO THE PERFORMANCE OF ITS AGENCY DUTIES, IF ANY,
HEREUNDER OR (B) THE ENFORCEMENT OF ANY OF THE TERMS OF THIS AGREEMENT OR OF
ANY OTHER LOAN DOCUMENT; WHETHER OR NOT ANY OF THE FOREGOING SPECIFIED IN THIS
SECTION 8.05 ARISES FROM THE SOLE OR CONCURRENT NEGLIGENCE OF THE ADMINISTRATIVE
AGENT, THE SYNDICATION AGENT OR
364-Day Facility
56
THE DOCUMENTATION AGENT, AS THE CASE MAY BE; PROVIDED THAT NO LENDER SHALL BE
LIABLE FOR ANY OF THE FOREGOING TO THE EXTENT THEY ARISE FROM THE GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT OF THE ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT OR THE DOCUMENTATION AGENT.
SECTION 8.06 Non-Reliance on Agents and other Lenders. Each Lender
acknowledges and agrees that it has, independently and without reliance on the
Administrative Agent, the Syndication Agent, the Documentation Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Company and the Subsidiaries
and its decision to enter into this Agreement, and that it will, independently
and without reliance upon the Administrative Agent, the Syndication Agent,
the Documentation Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement.
Neither the Administrative Agent, the Syndication Agent nor the Documentation
Agent shall be required to keep itself informed as to the performance or
observance by the Company of this Agreement, the other Loan Documents or any
other document referred to or provided for herein or to inspect the properties
or books of the Company. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, neither the Administrative Agent, the
Syndication Agent nor the Documentation Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Company (or
any of its Affiliates) which may come into the possession of the Administrative
Agent, the Syndication Agent, the Documentation Agent or any of its respective
Affiliates. In this regard, each Lender acknowledges that Xxxxxxx & Xxxxx L.L.P.
is acting in this transaction as special counsel to the Administrative
Agent only. Each Lender will consult with its own legal counsel to the
extent that it deems necessary in connection with this Agreement and other
Loan Documents and the matters contemplated herein and therein.
SECTION 8.07 Action by Administrative Agent. Except for action or
other matters expressly required of the Administrative Agent hereunder,
the Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall (a) receive written instructions from
the Required Lenders (or all of the Lenders as expressly required by Section
9.02) specifying the action to be taken, and (b) be indemnified to its
satisfaction by the Lenders against any and all liability and expenses which may
be incurred by it by reason of taking or continuing to take any such action.
The instructions of the Required Lenders (or all of the Lenders as expressly
required by Section 9.02) and any action taken or failure to act pursuant
thereto by the Administrative Agent shall be binding on all of the Lenders. If
a Default or Event of Default has occurred and is continuing, the Administrative
Agent shall take such action with respect to such Default or Event of Default as
shall be directed by the Required Lenders (or all of the Lenders as
required by Section 9.02) in the written instructions (with indemnities)
described in this Section 8.07; provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders. In no event, however, shall
the Administrative Agent be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this
Agreement or applicable law.
364-Day Facility
57
SECTION 8.08 Resignation or Removal of Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Company, and the Administrative Agent may
be removed at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty (30) days after the retiring Administrative
Agent's giving of notice of resignation or the Required Lenders' removal
of the retiring Administrative Agent, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent. Upon
the acceptance of such appointment hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent, the provisions
of this Article VIII and Section 9.03 shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was
acting as the Administrative Agent.
SECTION 8.09 Duties of Syndication Agent and Documentation
Agent. Notwithstanding the indemnity of the Syndication Agent and the
Documentation Agent contained in Section 8.05 and in Section 9.03, neither the
Syndication Agent nor the Documentation Agent shall have any duty,
responsibility or liability in such capacity with respect to the administration
or enforcement of this Agreement or any other Loan Document.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01 Notices, Etc. The Administrative Agent, any Lender
or the holder of any of the Obligations, giving consent or notice or making any
request of the Company provided for hereunder, shall notify each Lender
(in the case of the Administrative Agent) and the Administrative Agent (in the
case of a Lender) thereof. In the event that the holder of any Note or any of
the Obligations (including any Lender) shall transfer such Note or Obligations,
it shall promptly so advise the Administrative Agent which shall be entitled
to assume conclusively that no transfer of any Note or any of the Obligations
has been made by any holder (including any Lender) unless and until the
Administrative Agent receives written notice to the contrary. Except with
respect to notices and other communications expressly permitted to be given
by telephone, all notices, consents, requests, approvals, demands and other
communications (collectively "Communications") provided for herein shall be in
writing (including facsimile Communications) and mailed, telecopied or
delivered:
(a) if to the Company, to it at:
0000 XxXxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention:Xxxxx X. Xxxxxxxxx, Xx.
Telecopy No: (000) 000-0000;
364-Day Facility
58
(b) if to the Administrative Agent, to it at:
c/o First Union Securities, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention:Xxxxxxx Xxxxxxxx
Telecopy No.: (000)-000-0000;
(c) If to any other Lender, as specified on the signature page for
such Lender hereto or, in the case of any Person who becomes a Lender after the
date hereof, as specified on the Assignment and Acceptance executed by such
Person or in the Administrative Questionnaire delivered by such Person or, in
the case of any party hereto, such other address or telecopy number as such
party may hereafter specify for such purpose by notice to the other parties.
All Communications shall, when mailed, telecopied or delivered, be
effective when mailed by certified mail, return receipt requested to any party
at its address specified above, on the signature page hereof or on the signature
page of such Assignment and Acceptance (or other address designated by such
party in a Communication to the other parties hereto), or telecopied to any
party to the telecopy number set forth above, on the signature page hereof or on
the signature page of such Assignment and Acceptance (or other telecopy number
designated by such party in a Communication to the other parties hereto), or
delivered personally to any party at its address specified above, on the
signature page hereof or on the signature page of such Assignment and Acceptance
(or other address designated by such party in a Communication to the other
parties hereto); provided, however, Communications to the Administrative Agent
pursuant to Article II or Article VIII shall not be effective until received by
the Administrative Agent and Communications to the Administrative Agent pursuant
to Article II shall be at the Principal Office.
SECTION 9.02 Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, or any Lender in exercising, and no course of dealing
with respect to, any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No notice to or demand on the Company in any case shall entitle
the Company to any other or further notice or demand in similar or other
circumstances. No waiver of any provision of this Agreement or consent to
any departure therefrom shall in any event be effective unless the same shall
be permitted by Section 9.02(b), and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default or Event of Default, regardless
of whether the Administrative Agent or any Lender may have had notice or
knowledge of such Default at the time.
(b) No provision of this Agreement or any other Loan Document
provision may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Company and the Required Lenders or by
the Company and the Administrative Agent with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment of
any Lender without the written consent of such Lender, (ii) reduce the principal
364-Day Facility
59
amount of any Loan or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, or (v) change any of the provisions of this Section
9.02(b), Section 9.05 or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender (it being
understood that, with the consent of Required Lenders, additional extensions of
credit pursuant to this Agreement may be included in the determination of
"Required Lenders" and provisions relating to the pro rata sharing of payments
on substantially the same basis as the Revolving Loans and Commitments are
included on the Execution Date); provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent hereunder without the prior written consent of the Administrative Agent.
SECTION 9.03 Payment of Expenses, Indemnities, etc. The Company
agrees:
(a) whether or not the transactions hereby contemplated are
consummated, pay all reasonable expenses of the Administrative Agent in the
administration (both before and after the execution hereof and including advice
of counsel as to the rights and duties of the Administrative Agent and the
Lenders with respect thereto) of, and in connection with the negotiation,
syndication, investigation, preparation, execution and delivery of, recording or
filing of, preservation of rights under, enforcement of, and refinancing,
renegotiation or restructuring of, the Loan Documents and any amendment, waiver
or consent relating thereto (including, without limitation, travel, photocopy,
mailing, courier, telephone and other similar expenses of the Administrative
Agent, the cost of environmental audits, surveys and appraisals at reasonable
intervals, the reasonable fees and disbursements of counsel and other outside
consultants for the Administrative Agent and, in the case of enforcement of this
Agreement and the other Loan Documents, the reasonable fees and disbursements of
counsel, including the allocated costs of inside counsel for the Administrative
Agent and each Lender); and promptly reimburse the Administrative Agent for all
amounts expended, advanced or incurred by the Administrative Agent or the
Lenders to satisfy any obligation of the Company under this Agreement.
(b) TO INDEMNIFY THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE
DOCUMENTATION AGENT AND EACH LENDER AND EACH OF THEIR AFFILIATES AND EACH OF
THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, ATTORNEYS,
ACCOUNTANTS AND EXPERTS ("INDEMNIFIED PARTIES") FROM, HOLD EACH OF THEM HARMLESS
AGAINST AND PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR, THE
INDEMNITY MATTERS WHICH MAY BE REASONABLY INCURRED BY OR ASSERTED AGAINST OR
INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A PARTY THERETO)
AS A RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY ACTUAL OR
PROPOSED USE BY THE COMPANY OF THE PROCEEDS OF ANY OF THE LOANS, (II) THE
EXECUTION, DELIVERY AND PERFORMANCE OF THE LOAN DOCUMENTS, (III) THE OPERATIONS
OF THE
364-Day Facility
60
BUSINESS OF THE COMPANY AND THE SUBSIDIARIES, (IV) THE FAILURE OF THE COMPANY OR
ANY SUBSIDIARY TO COMPLY WITH THE TERMS OF THIS AGREEMENT, OR WITH ANY
REQUIREMENT OF LAW, (V) ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF
ANY WARRANTY OF THE COMPANY SET FORTH IN ANY OF THE LOAN DOCUMENTS OR (VI) ANY
OTHER ASPECT OF THE LOAN DOCUMENTS, INCLUDING THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL AND ALL OTHER EXPENSES INCURRED IN CONNECTION WITH
INVESTIGATING, DEFENDING OR PREPARING TO DEFEND ANY SUCH ACTION, SUIT,
PROCEEDING (INCLUDING ANY INVESTIGATIONS, LITIGATION OR INQUIRIES) OR CLAIM AND
INCLUDING ALL INDEMNITY MATTERS ARISING BY REASON OF THE ORDINARY NEGLIGENCE OF
ANY INDEMNIFIED PARTY, BUT EXCLUDING ALL INDEMNITY MATTERS ARISING SOLELY BY
REASON OF CLAIMS BETWEEN THE LENDERS OR ANY LENDER AND THE ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT, OR THE DOCUMENTATION AGENT OR A LENDER'S SHAREHOLDERS
AGAINST THE ADMINISTRATIVE AGENT OR LENDER OR BY REASON OF THE GROSS NEGLIGENCE,
WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT ON THE PART OF THE INDEMNIFIED PARTY
SEEKING INDEMNIFICATION.
(c) TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE INDEMNIFIED
PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COST RECOVERY ACTIONS,
ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND LIABILITIES TO WHICH ANY SUCH
PERSON MAY BECOME SUBJECT (I) UNDER ANY ENVIRONMENTAL LAW APPLICABLE TO THE
COMPANY OR ANY SUBSIDIARY OR ANY OF THEIR PROPERTIES OR ASSETS, INCLUDING THE
TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON ANY OF THEIR PROPERTIES OR
ASSETS, (II) AS A RESULT OF THE BREACH OR NON-COMPLIANCE BY THE COMPANY OR ANY
SUBSIDIARY WITH ANY ENVIRONMENTAL LAW APPLICABLE TO THE COMPANY OR ANY
SUBSIDIARY, (III) DUE TO PAST OWNERSHIP BY THE COMPANY OR ANY SUBSIDIARY OF ANY
OF THEIR PROPERTIES OR ASSETS OR PAST ACTIVITY ON ANY OF THEIR PROPERTIES OR
ASSETS WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME, COULD RESULT IN
PRESENT LIABILITY, (IV) THE PRESENCE, USE, RELEASE, STORAGE, TREATMENT OR
DISPOSAL OF HAZARDOUS SUBSTANCES ON OR AT ANY OF THE PROPERTIES OWNED OR
OPERATED BY THE COMPANY OR ANY SUBSIDIARY, OR (V) ANY OTHER ENVIRONMENTAL,
HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS, PROVIDED,
HOWEVER, THAT NO INDEMNITY SHALL BE AFFORDED UNDER THIS SECTION 9.03(c) IN
RESPECT OF ANY PROPERTY OR ASSET FOR ANY OCCURRENCE ARISING FROM THE ACTS OR
OMISSIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER DURING THE PERIOD AFTER
WHICH SUCH PERSON, ITS SUCCESSORS OR ASSIGNS SHALL HAVE OBTAINED POSSESSION OF
SUCH PROPERTY OR ASSET (WHETHER BY FORECLOSURE OR DEED IN LIEU OF FORECLOSURE,
AS MORTGAGEE IN POSSESSION OR OTHERWISE).
(d) No Indemnified Party may settle any claim to be indemnified
without the consent of the indemnitor, such consent not to be unreasonably
withheld; provided, that the indemnitor may not reasonably withhold consent to
any settlement that an Indemnified Party
364-Day Facility
61
proposes, if the indemnitor does not have the financial ability to pay all its
obligations outstanding and asserted against the indemnitor at that time,
including the maximum potential claims against the Indemnified Party to be
indemnified pursuant to this Section 9.03.
(e) In the case of any indemnification hereunder, the Administrative
Agent or Lender, as appropriate shall give notice to the Company of any such
claim or demand being made against the Indemnified Party and the Company shall
have the non-exclusive right to join in the defense against any such claim or
demand; provided that if the Company provides a defense, the Indemnified Party
shall bear its own cost of defense unless there is a conflict between the
Company and such Indemnified Party.
(f) THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED PARTIES
NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER
WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN
OMISSION, INCLUDING, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE
RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNIFIED PARTIES OR BY
REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE
INDEMNIFIED PARTIES. TO THE EXTENT THAT AN INDEMNIFIED PARTY IS FOUND TO HAVE
COMMITTED AN ACT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR ENGAGED IN
UNLAWFUL CONDUCT, THIS CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL CONTINUE
BUT SHALL ONLY EXTEND TO THE PORTION OF THE CLAIM THAT IS DEEMED TO HAVE
OCCURRED BY REASON OF EVENTS OTHER THAN THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT
OR UNLAWFUL CONDUCT OF THE INDEMNIFIED PARTY.
(g) The Company's obligations under this Section 9.03 shall survive
any termination of this Agreement and the payment of the Loans and shall
continue thereafter in full force and effect, for a period of six years.
(h) To the extent that the Company fails to pay any amount required
to be paid by it to the Administrative Agent under this Section 9.03, each
Lender severally agrees to pay to the Administrative Agent such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such.
(i) The Company shall pay any amounts due under this Section 9.03
within thirty (30) days of the receipt by the Company of notice of the amount
due.
SECTION 9.04 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the
364-Day Facility
62
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
SECTION 9.05 Assignments and Participations.
(a) The Company may not assign its rights or obligations hereunder or
under the Notes without the prior consent of all of the Lenders and the
Administrative Agent.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Company and the Administrative Agent must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $10,000,000 unless each of the Company and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 for each such assignment (provided
that the processing and recordation fee for each assignment made by any Lender
party to this Agreement on the Execution Date shall be $2,000), and (v) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire; provided further that any consent of the
Company otherwise required under this Section 9.05(b) shall not be required if
an Event of Default under Section 7.01(g) or Section 7.01(h) has occurred and is
continuing. Upon acceptance and recording pursuant to Section 9.05(d), from and
after the effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Section 9.05(e).
(c) The Administrative Agent, acting for this purpose as an agent of
the Company, shall maintain at one of its offices in Charlotte, North Carolina a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Company, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available
364-Day Facility
63
for inspection by the Company and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in Section 9.05(b)
and any written consent to such assignment required by Section 9.05(b), the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the consent of the Company or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Company, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to Section 9.05(f), the Company agrees that each Participant shall be
entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
Section 9.05(b), and be indemnified under Section 9.03 as if it were a Lender.
In addition, each agreement creating any participation must include an agreement
by the Participant to be bound by the provisions of Section 9.12.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Company's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.17 unless
the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Company, to comply with Section
2.17(e) as though it were a Lender.
(g) The Lenders may furnish any information concerning the Company in
the possession of the Lenders from time to time to assignees and Participants
(including prospective assignees and participants); provided that, such Persons
agree to be bound by the provisions of Section 9.12 hereof.
(h) Notwithstanding anything in this Section 9.05 to the contrary,
any Lender may assign and pledge its Notes to any Federal Reserve Bank or the
United States Treasury as collateral security pursuant to Regulation A and any
operating circular issued by such Federal Reserve System
364-Day Facility
64
and/or such Federal Reserve Bank. No such assignment and/or pledge shall
release the assigning and/or pledging Lender from its obligations hereunder.
(i) Notwithstanding any other provisions of this Section 9.05, no
transfer or assignment of the interests or obligations of any Lender or any
grant of participations therein shall be permitted if such transfer, assignment
or grant would require the Company to file a registration statement with the SEC
or to qualify the Loans under the "Blue Sky" laws of any state.
SECTION 9.06 Survival; Reinstatement. (a) All covenants,
agreements, representations and warranties made by the Company herein and
in the certificates or other instruments delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this
Agreement and the making of any Loans, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent or any Lender may have had notice or knowledge of any
Default or Event of Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee
or any other amount payable under this Agreement is outstanding and unpaid so
long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Commitments or the termination of this Agreement or any provision hereof.
(b) To the extent that any payments on the Obligations are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, debtor in possession, receiver or other
Person under any bankruptcy law, common law or equitable cause, then to such
extent, the Obligations so satisfied shall be revived and continue as if such
payment or proceeds had not been received.
SECTION 9.07 Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement, the other Loan Documents and the Fee Letter constitute the entire
contract among the parties hereto relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof (including the Information Memorandum).
Except as provided in Section 3.01, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.08 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and
364-Day Facility
65
enforceability of the remaining provisions hereof; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such
provision in any other jurisdiction.
SECTION 9.09 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, 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 and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Company against any of and all the
Obligations now or hereafter existing under this Agreement and the other Loan
Documents held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such Obligations may be
unmatured. The rights of each Lender under this Section 9.09 are in addition to
other rights and remedies (including other rights of setoff) which such Lender
may have.
SECTION 9.10 Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and governed by the laws of the State of New York.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS 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 PARTIES HERETO HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY AND ASSETS, UNCONDITIONALLY,
THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH
ACTION OR PROCEEDING. THE COMPANY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND
EMPOWERS CT CORPORATION SYSTEM, INC., WITH OFFICES ON THE DATE HEREOF AT 000 0XX
XXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS DESIGNEE, APPOINTEE AND AGENT TO
RECEIVE AND ACCEPT FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY,
SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY
BE SERVED IN ANY SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE,
APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE COMPANY
AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK, NEW YORK ON
THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE
ADMINISTRATIVE AGENT. THE COMPANY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO IT AT ITS ADDRESS PROVIDED IN SECTION 9.01, SUCH SERVICE TO BECOME
EFFECTIVE THIRTY DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
364-Day Facility
66
(c) THE COMPANY HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE
COURTS REFERRED TO IN CLAUSE (b) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES, TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND AGREES NOT TO PLEAD OR CLAIM
IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(d) EACH PARTY HERETO HEREBY (I) IRREVOCABLY WAIVES, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (II) CERTIFIES THAT NO PARTY
HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (III)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 9.10.
SECTION 9.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.11.
SECTION 9.12 Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates,
directors, officers and employees and to its agents, including accountants,
legal counsel and other advisors who have been informed of the confidential
nature of the information provided, (b) to the extent requested by any
regulatory authority, including the National Association of Insurance
Commissioners or any similar organization, or any nationally recognized
rating agency that requires access to information about a Lender's investment
portfolio, (c) to the extent a Lender reasonably believes it is required by
applicable laws or regulations or by any subpoena or similar legal process (and
such Lender will provide prompt notice thereof to the
364-Day Facility
67
Company), (d) to any other party to this Agreement, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (f) subject to an understanding with such Person that such Person
will comply with this Section 9.12, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Company or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section 9.12 or (ii) becomes available to the Administrative
Agent or any Lender from a source other than the Company (unless such source is
actually known by the individual providing the information to be bound by a
confidentiality agreement or other legal or contractual obligation of
confidentiality with respect to such information). For the purposes of this
Section 9.12, "Information" means all information received from the Company
relating to the Company or its business, other than any such information that is
known to a Lender, publicly known or otherwise available to the Administrative
Agent or any Lender other than through disclosure (a) by the Company, or (b)
from a source actually known to a Lender to be bound by a confidentiality
agreement or other legal or contractual obligation of confidentiality with
respect to such information. Any Person required to maintain the confidentiality
of Information as provided in this Section 9.12 shall be considered to have
complied with its obligation to do so if such Person maintains the
confidentiality of such Information in accordance with procedures adopted in
good faith to protect confidential Information of third parties delivered to a
lender.
SECTION 9.13 Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section 9.13 shall be cumulated and the interest
and Charges payable to such Lender in respect of other Loans or periods shall
be increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.
SECTION 9.14 EXCULPATION PROVISIONS. EACH OF THE PARTIES HERETO
SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT, THE NOTES AND
(IN THE CASE OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE SYNDICATION
AGENT) THE FEE LETTER AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF
THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS IN FACT
READ THIS AGREEMENT AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF
THE TERMS, CONDITIONS AND EFFECTS OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS
CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN
ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND THAT IT
RECOGNIZES THAT CERTAIN OF THE
364-Day Facility
68
TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS RESULT IN ONE PARTY
ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING
THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO
AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF
ANY EXCULPATORY PROVISION OF THIS AGREEMENT ON THE BASIS THAT THE PARTY HAD NO
NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT
"CONSPICUOUS."
364-Day Facility
69
The parties hereto have caused this Agreement to be duly executed as
of the date and year first above written.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
______________________________________
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
Address for Notices:
0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Xx.
Chief Executive Office and Principal Place
of Business:
0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
364-Day Facility
LENDER:
Commitment: $31,250,000 FIRST UNION NATIONAL BANK, as the
Administrative Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
________________________________________
Xxxxxxx X. Xxxxxxxx
Vice President
Address for Notices:
First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Syndication Agency Services
With copy to:
First Union Capital Markets Corp.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
364-Day Facility
LENDER:
Commitment: $31,250,000 BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Address for Notices:
Bank of America , N.A.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
With copy to:
Bank of America, N.A.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
364-Day Facility
LENDER:
Commitment: $20,000,000 BANK OF MONTREAL
By: /s/ Cahal X. Xxxxxxx
________________________________________
Name: Cahal X. Xxxxxxx
Title: Director
Address for Notices:
Bank of Montreal
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Cahal X. Xxxxxxx
364-Day Facility
LENDER:
Commitment: $25,000,000 BANK ONE, NA
(Main Office - Chicago)
By: /s/ Xxxxxx X. Xxxxxxxxxxx
_______________________________________
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
Address for Notices:
Bank One, NA
1 Bank Xxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxx
With copy to:
BancOne Capital Markets
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxxxx
364-Day Facility
LENDER:
Commitment: $20,000,000 BANKBOSTON, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
_______________________________________
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Managing Director
Address for Notices:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
XX BOS 01-0804
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxxx Xxxxx
With copy to:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
00-00-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxx
364-Day Facility
LENDER:
Commitment: $25,000,000 BARCLAYS BANK PLC
By: /s/ Xxxxxxxx X. Xxxx
________________________________________
Name: Xxxxxxxx X. Xxxx
Title: Director-Loan Transactions Management
Address for Notices:
Barclays Bank PLC
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: X. Xxxxxxxx
With a copy to:
Barclays Bank PLC
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx Xxxxxxx
364-Day Facility
LENDER:
Commitment: $17,500,000 THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxx
________________________________________
Name: Xxxxx X. Xxxx
Title: Vice President
Address for Notices:
The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxx
With copy to:
The Chase Manhattan Bank
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx-Xxxxxx
364-Day Facility
LENDER:
Commitment: $17,500,000 CITIBANK, N.A.
By: /s/ J. Xxxxxxxxxxx Xxxxx
________________________________________
Name: J. Xxxxxxxxxxx Xxxxx
Title: Attorney-In-Fact
Address for Notices:
Citibank, N.A.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
With copy to:
Citibank, N.A.
0 Xxxx'x Xxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxx
364-Day Facility
LENDER:
Commitment: $20,000,000 COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxx
________________________________________
Name: Xxxxx X. Xxxxxx
Title: SVP and Manager
By: /s/ W. Xxxxx Xxxxxxx
________________________________________
Name: W. Xxxxx Xxxxxxx
Title: Vice President
Address for Notices:
Commerzbank AG, Atlanta Agency
Prominade 2, Suite 3500
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No. (000) 000-0000
Attention: Xxxxx Xxxxxxx
With a copy to:
Commerzbank AG, New York Branch
2 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx
364-Day Facility
LENDER:
Commitment: $17,500,000 CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Phillippe Soustra
_________________________________________
Name: Phillippe Soustra
Title: Senior Vice President
Address for Notices:
Credit Lyonnais Houston Representative Xxxxxx
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
With a copy to:
Credit Lyonnais Houston Representative Xxxxxx
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxxxxx Xxxxxx
364-Day Facility
LENDER:
Commitment: $17,500,000 PARIBAS
By: /s/ Xxxxxx Livingnston
_______________________________________
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
_______________________________________
Name: Xxxxx Xxxxxx
Title: Vice President
Address for Notices:
Paribas
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxxx
364-Day Facility
LENDER:
Commitment: $27,500,000 SOCIETE GENERALE
By: /s/ Xxxxxxx X. Xxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxx
Title: Director
Address for Notices:
Societe Generale
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxx Xxxxxx
With copy to:
Societe Generale
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
364-Day Facility
LENDER:
Commitment: $12,500,000 SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxxx X. Xxxxxxxxx
_______________________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address for Notices:
SunTrust Bank, Atlanta
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxx
With copy to:
SunTrust Bank, Atlanta
00 Xxxx Xxxxx, 21st Floor M/C 1941
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx
364-Day Facility
LENDER:
Commitment: $17,500,000 XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: /s/ J. Xxxx Xxxxxxxxx
___________________________________________
Name: J. Xxxx Xxxxxxxxx
Title: Vice President
Address for Notices:
Xxxxx Fargo Bank (Texas), National Association
Energy Department
0000 Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: J. Xxxx Xxxxxxxxx
With copy to:
Xxxxx Fargo Bank
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx
364-Day Facility
EXHIBIT 1.01A
FORM OF ADMINISTRATIVE QUESTIONNAIRE
Transaction: Xxxxxx Xxxxxx Energy Partners, L.P.
To: Xxxxxx Xxx, Syndications Agency Services
Fax No.: (000) 000-0000
1) Name of entity to appear on
Signature Page: __________________________________________
2) Name of person to receive Draft
Credit Agreement: __________________________________________
CREDIT OPERATIONS LEGAL
CONTACT CONTACT COUNSEL
_________________________________________________
Name: _________________________________________________
Title: _________________________________________________
Street Address:
(for courier): _________________________________________________
Telephone No.: _________________________________________________
Fax No.: _________________________________________________
PAYMENT INSTRUCTIONS
Via Fed Wire: _________________________________________________
(Name of Bank) (ABA #)
______
(Further Credit) (Attention) (Reference)
Ref.:________________________________________________
FIRST UNION PAYMENT INSTRUCTIONS
-------------------------------------------------------------------------------
Pay to: First Union National Bank of North Carolina
ABA # 053 000 219
Charlotte, NC
Attention: Syndication Agency Services
R/C 5007 G/L #465906
Ref.: Xxxxxx Xxxxxx Energy Partners, L.P.
-------------------------------------------------------------------------------
364-Day Facility
EXHIBIT 1.01B
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated: ________________
Reference is made to the Credit Agreement dated as of September 29, 1999
(as restated, amended, modified, supplemented and in effect from time to time,
the "Credit Agreement"), among Xxxxxx Xxxxxx Energy Partners, L.P., a Delaware
limited partnership (the "Company"), the Lenders named therein, First Union
National Bank, as the Administrative Agent (the "Administrative Agent"), Bank of
America, N.A., as the Syndication Agent (the "Syndication Agent") and Societe
Generale, as Documentation Agent (the "Documentation Agent"). Capitalized terms
used herein and not otherwise defined shall have the meanings assigned to such
terms in the Credit Agreement.
This Assignment and Acceptance, between the Assignor (as defined and set
forth in Schedule I hereto and made a part hereof) and the Assignee (as defined
and set forth on Schedule I hereto and made a part hereof) is dated as of the
Effective Date of Assignment (as set forth on Schedule I hereto and made a part
hereof).
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date of Assignment, an undivided interest (the "Assigned Interest") in
and to all the Assignor's rights and obligations under the Credit Agreement
respecting those, and only those, credit facilities contained in the Credit
Agreement as set forth on Schedule I (collectively, the "Assigned Facilities",
individually, an "Assigned Facility"), in a principal amount for each Assigned
Facility as set forth on Schedule I.
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument
or document furnished pursuant thereto, other than that it is the legal and
beneficial owner of the Assigned Interest and that the Assigned Interest is free
and clear of any adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Company
or the Subsidiaries or the performance or observance by the Company or the
Subsidiaries of any of its obligations under the Credit Agreement, any other
Loan Document or any other instrument or document furnished pursuant thereto;
and (iii) attaches the Note if any, held by it evidencing the Assigned Facility
or Facilities, as the case may be, and requests that the Administrative Agent
exchange such Note(s) for a new Note payable to the Assignor (if the Assignor
has retained any interest in the Assigned Facility or Facilities) and a new Note
payable to the Assignee in the amount which reflects the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Effective Date of Assignment).
364-Day Facility
3. The Assignee (i) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (ii) confirms that it has received
a copy of the Credit Agreement, together with copies of the financial statements
referred to in Section 4.07 thereof, or if later, the most recent financial
statements delivered pursuant to Section 5.01 thereof, and such other documents
and information as it has deemed appropriate to make its own credit analysis;
(iii) agrees that it will independently and without reliance upon the
Administrative Agent, the Assignor or any other Lender and based on such other
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iv) appoints and authorizes the Administrative Agent to take such
action as such agent on its behalf and to exercise such powers as are reasonably
incidental thereto; (v) agrees that it will be bound by the provisions of the
Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender; (vi) confirms that it is an Eligible Assignee;
(vii) if the Assignee is organized under the laws of a jurisdiction outside the
United States, attaches the forms prescribed by the Internal Revenue Services of
the United States certifying as to the Assignee's exemption from United States
withholding taxes with respect to all payments to be made to the Assignee under
the Credit Agreement or such other documents as are necessary to indicate that
all such payments are subject to such tax at a rate by an applicable tax treaty,
and (viii) has supplied the information requested on the administrative
questionnaire provided by the Administrative Agent.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and the Company and
recording by the Administrative Agent pursuant to Section 9.05 of the Credit
Agreement, effective as of the Effective Date of Assignment (which Effective
Date of Assignment shall, unless otherwise agreed to by the Administrative
Agent, be at least five Business Days after the execution of this Assignment and
Acceptance).
5. Upon such acceptance and recording, from and after the Effective Date
of Assignment, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee, whether such amounts have accrued prior to the
Effective Date of Assignment or accrue subsequent to the Effective Date of
Assignment. The Assignor and Assignee shall make all appropriate adjustments in
payments for periods prior to the Effective Date of Assignment by the
Administrative Agent or with respect to the making of this assignment directly
between themselves.
6. From and after the Effective Date of Assignment, (i) the Assignee shall
be party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder, and (ii)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective duly authorized officers on
Schedule I hereto.
364-Day Facility
Schedule I to Assignment and Acceptance
Legal Name of Assignor:________________________________________________
Legal Name of Assignee:________________________________________________
Effective Date of Assignment:__________________________________________
Percentage Assigned of Each
Facility (to at least 8
Principal decimals) (Shown as a
Assigned Facilities Amount of percentage of aggregate
Assigned held by all applicable
Interest Lenders)
Commitment $_________ _________%
Revolving Loans $_________ _________%
Competitive Loans $_________ _________%
Total $_________
364-Day Facility
EXHIBIT 1.01-C
FORM OF COMPETITIVE NOTE
$300,000,000.00 _____________, _____
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXX ENERGY PARTNERS,
L.P., a Delaware limited partnership, (the "Company"), HEREBY PROMISES TO PAY to
the order of ________________________________ (the "Lender"), the lesser of (i)
$300,000,000 and (ii) the aggregate amount of Competitive Loans made by the
Lender and outstanding on the Termination Date. The principal amount of the
Competitive Loans made by the Lender to the Company shall be due and payable on
the dates and in the amounts as are specified in that certain Credit Agreement
dated as of September 29, 1999 (as restated, amended, modified, supplemented and
in effect from time to time, the "Credit Agreement") among the Company, the
Lender, certain other lenders that are party thereto, the Syndication Agent, the
Documentation Agent and First Union National Bank, as the Administrative Agent
for the Lender and such other lenders. All capitalized terms used herein and not
otherwise defined shall have the meanings as defined in the Credit Agreement.
The Company promises to pay interest on the unpaid principal amount of
each Competitive Loan outstanding from time to time from the date thereof until
such principal amount is paid in full, at such interest rates and payable on
such dates as are specified in the Credit Agreement. Both principal and interest
are payable in same day funds in lawful money of the United States of America to
the Administrative Agent at the Principal Office, or at such other place as the
Administrative Agent shall designate in writing to the Company.
This Note is one of the Competitive Notes referred to in, and this Note
and all provisions herein are entitled to the benefits of, the Credit Agreement.
The Credit Agreement, among other things (a) provides for the making of
Competitive Loans by the Lender and the other lenders to the Company from time
to time, and (b) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events, for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified, and for limitations on the amount of interest paid such that
no provision of the Credit Agreement or this Note shall require the payment or
permit the collection of interest in excess of the Maximum Rate.
This Note may be held by the Lender for the account of its applicable
lending office and may be transferred from one lending office to another lending
office from time to time as the Lender may determine.
The Company and any and all endorsers, guarantors and sureties
severally waive grace, demand, presentment for payment, notice of dishonor,
default or intent to accelerate, protest and notice of protest and diligence in
collecting and bringing of suit against any party hereto, and agree to all
renewals, extensions or partial payments hereon and to any release or
substitution of security herefor, in whole or in part, with or without notice,
before or after maturity.
364-Day Facility
This Note shall be governed by and construed under the laws of the
State of New York and the applicable laws of the United States of America.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By:_________________________________________
Name:
Title
364-Day Facility
EXHIBIT 1.01-D
FORM OF REVOLVING NOTE
[$________________] _______________, ______
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXXX ENERGY PARTNERS,
L.P., a Delaware limited partnership, (the "Company"), HEREBY PROMISES TO PAY to
the order of _______________________________________________________ (the
"Lender"), the lesser of (i) such Lender's Commitment and (ii) the aggregate
amount of Revolving Loans made by the Lender and outstanding on the Maturity
Date. The principal amount of the Revolving Loans made by the Lender to the
Company shall be due and payable on the dates and in the amounts as are
specified in that certain Credit Agreement dated as of September 29, 1999 (as
restated, amended, modified, supplemented and in effect from time to time, the
"Credit Agreement") among the Company, the Lender, certain other lenders that
are party thereto, the Syndication Agent, the Documentation Agent and First
Union National Bank, as Administrative Agent for the Lender and such other
lenders. All capitalized terms used herein and not otherwise defined shall have
the meanings as defined in the Credit Agreement.
The Company promises to pay interest on the unpaid principal amount of
each Revolving Loan outstanding from time to time from the date thereof until
such principal amount is paid in full, at such interest rates and payable on
such dates as are specified in the Credit Agreement. Both principal and interest
are payable in same day funds in lawful money of the United States of America to
the Administrative Agent at its Principal Office, or at such other place as the
Administrative Agent shall designate in writing to the Company.
This Note is one of the Revolving Notes referred to in, and this Note
and all provisions herein are entitled to the benefits of, the Credit Agreement.
The Credit Agreement, among other things (a) provides for the making of
Revolving Loans by the Lender and the other lenders to the Company from time to
time, and (b) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events, for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified, and for limitations on the amount of interest paid such that no
provision of the Credit Agreement or this Note shall require the payment or
permit the collection of interest in excess of the Maximum Rate.
This Note may be held by the Lender for the account of its applicable
lending office and may be transferred from one lending office to another lending
office from time to time as the Lender may determine.
The Company and any and all endorsers, guarantors and sureties
severally waive grace, demand, presentment for payment, notice of dishonor,
default or intent to accelerate, protest and notice of protest and diligence in
collecting and bringing of suit against any party hereto, and agree to all
renewals, extensions or partial payments hereon and to any release or
substitution of security herefor, in whole or in part, with or without notice,
before or after maturity.
364-Day Facility
This Note shall be governed by and construed under the laws of the
State of New York and the applicable laws of the United States of America.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By:________________________________________
Name:
Title:
364-Day Facility
EXHIBIT 2.03
FORM OF BORROWING REQUEST
Dated __________
First Union National Bank,
as Administrative Agent
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
This Borrowing Request is delivered to you by Xxxxxx Xxxxxx Energy
Partners, L.P. (the "Company"), a Delaware limited partnership, under Section
2.03 of the Credit Agreement dated as of September 29, 1999, (as restated,
amended, modified, supplemented and in effect, the "Credit Agreement") by and
among the Company, the Lenders party thereto, First Union National Bank, as
Administrative Agent, Bank of America, N.A., as Syndication Agent, and Societe
Generale, as Documentation Agent.
1. The Company hereby requests that the Lenders make a Loan or Loans in
the aggregate principal amount of $______________ (the "Revolving Loan" or the
"Revolving Loans").1/
2. The Company hereby requests that the Revolving Loan or Revolving
Loans be made on the following Business Day:_____________________.2/
3. The Company hereby requests that the Revolving Loan or Revolving Loans
bear interest at the following interest rate, plus the Applicable Margin, as set
forth below:
Principal Maturity
Component Interest Date for
Type of of Interest Period Interest
Revolving Loan Revolving Rate (if Period (if
-------------- Loan ---- applicable) applicable)
---- ----------- -----------
__________________
1 Complete with an amount in accordance with Section 2.03 of the Credit
Agreement.
2 Complete with a Business Day in accordance with Section 2.03 of the Credit
Agreement.
364-Day Facility
4. The Company hereby requests that the funds from the Revolving Loan or
Revolving Loans be disbursed to the following bank account:
___________________________.
5. After giving effect to the requested Revolving Loan, the sum of the
Revolving Credit Exposures, plus the aggregate principal amount of Competitive
Loans outstanding as of the date hereof (including the requested Loans) does not
exceed the maximum amount permitted to be outstanding pursuant to the terms of
the Credit Agreement.
6. All of the conditions applicable to the Revolving Loans requested
herein as set forth in the Credit Agreement have been satisfied as of the date
hereof and will remain satisfied to the date of such Loans.
7. All capitalized undefined terms used herein have the meanings assigned
thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Borrowing
Request this _____ day of _______________, ______.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: __________________________________________
Name:
Title:
364-Day Facility
EXHIBIT 2.04-A
FORM OF COMPETITIVE BID REQUEST
First Union National Bank,
as Administrative Agent
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of September 29,
1999 (as restated, amended, modified, supplemented and in effect from time to
time, the "Credit Agreement"), among the undersigned, the Lenders party thereto,
the Syndication Agent, the Documentation Agent and First Union National Bank, as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby gives you notice pursuant to Section 2.04 of the Credit
Agreement that it requests a Competitive Borrowing under the Credit Agreement,
and in that connection sets forth below the terms on which such Competitive
Borrowing is requested to be made:
(A) Borrowing Date of Competitive
Borrowing (which is a Business Day) ________
(B) Aggregate Principal Amount of
Competitive Borrowing1/ _______________________
(C) Interest rate basis2/ _______________________
___________________
1 Not less than $25,000,000 or greater than the unused Total Commitment and
in integral multiples of $1,000,000.
2 Eurodollar Competitive Borrowing or Fixed Rate Borrowing.
364-Day Facility
(D) Interest Period and the last
day thereof 3/ _________________________________
(E) Location and number of Company's account
to which funds are to be deposited
_________________________________
By the delivery of this Competitive Bid Request and the acceptance of
any or all of the Competitive Loans offered by the Lenders in response to this
Competitive Bid Request, the undersigned shall be deemed to have represented and
warranted that the applicable conditions to lending specified in Article III of
the Credit Agreement have been satisfied with respect to the Competitive
Borrowing requested hereby.
Very truly yours,
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By:______________________________________
Name:
Title:
_____________________
3 Which shall have a duration (i) in the case of a Eurodollar Loan, of one,
two, three or six months and (ii) in the case of Fixed Rate Loan, not less
than seven days nor more than 180 days, and which, in either case, shall
end not later than the Termination Date.
364-Day Facility
EXHIBIT 2.04-B
FORM OF NOTICE TO LENDERS OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address of Lender]
[Date]
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of September 29,
1999 (as restated, amended, modified, supplemented and in effect from time to
time, the "Credit Agreement"), among Xxxxxx Xxxxxx Energy Partners, L.P. (the
"Company"), the Lenders party thereto, the Syndication Agent, the Documentation
Agent, and First Union National Bank, as Administrative Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement. The Company delivered a Competitive Bid
Request requesting a Competitive Bid on __________, , pursuant to Section
2.04(a) of the Credit Agreement, and in that connection you are invited to
submit a Competitive Bid by _________[Date]/[Time]________.1/ Your Competitive
Bid must comply with Section 2.04(b) of the Credit Agreement and the terms
set forth below on which the Competitive Bid Request was made:
(A) Date of Competitive Borrowing _________________________________
(B) Principal amount of
Competitive Borrowing _________________________________
(C) Interest rate basis
(i.e., Eurodollar or Fixed Rate) _________________________________
_____________________
1 The Competitive Bid must be receved by the Administrative Agent (i) in
the case of Eurodollar Loans, not later than 10:00 a.m. Charlotte, North
Carolina, time, three Business Days before the Borrowing Date of a proosed
Competitive Borrowing, and (ii) in the case of Fixed Rate Loans, not later
than 10:00 a.m., Charlotte, North Carolina, time on the Borrowing Date of a
proposed Competitive Borrowing.
364-Day Facility
(D) Interest Period and the last
day thereof2/ _____________________________________
Very truly yours,
FIRST UNION NATIONAL BANK,
as Administrative Agent
By: _________________________________
Name: _______________________________
Title:_______________________________
___________________________
2
Which may not be a date later than the Termination Date.
364-Day Facility
2
EXHIBIT 2.04-C
FORM OF COMPETITIVE BID
First Union National Bank,
as Administrative Agent
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 [Date]
Attention: Syndication Agency Services
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the Credit Agreement
dated as of [September 28], 1999 (as restated, amended, modified, supplemented
and in effect from time to time, the "Credit Agreement"), among Xxxxxx Xxxxxx
Energy Partners, L.P. (the "Company"), the Lenders party thereto, the
Syndication Agent, the Documentation Agent and First Union National Bank, as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section 2.04(b) of
the Credit Agreement, in response to the Competitive Bid Request made by the
Company on ________________,____, and in that connection sets forth below the
terms on which such Competitive Bid is made:
(A) Principal Amount 1/ ________________________________
(B) Competitive Bid Rate 2/ ________________________________
(C) Interest Period and
the last day thereof 3/ ________________________________
The undersigned hereby confirms that it is prepared to extend credit
to the Company upon acceptance by the Company of this bid in accordance with
Section 2.04(d) of the Credit Agreement.
Very truly yours,
[NAME OF BANK]
By: ________________________________________
Name:
Title:
______________________
1
Not less than $5,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of $1,000,000 above said
$5,000,000. Multiple bids will be accepted by the Administrative
Agent.
2 i.e. LIBOR Rate + or - ______%, in the case of Eurodollar Loans,
or ____%, in the case of Fixed Rate Loan (in each case, expressed
in the form of a decimal to no more than four decimal places).
3 The Interest Period must be the Interest Period specified in the
Competitive Bid Request.
364-Day Facility
EXHIBIT 2.07
FORM OF NOTICE OF ACCOUNT DESIGNATION
Dated ___________
First Union National Bank,
as Administrative Agent
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you by Xxxxxx Xxxxxx
Energy Partners, L.P. (the "Company"), a Delaware limited partnership, under
Section 2.07 of the Credit Agreement dated as of September 29, 1999 (as
restated, amended, modified, supplemented and in effect from time to time, the
"Credit Agreement") by and among the Company, the Lenders party thereto, First
Union National Bank, as Administrative Agent, Bank of America, N.A., as
Syndication Agent, and Societe Generale, as Documentation Agent.
The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
[Insert name of bank/
ABA Routing Number/
and Account Number]
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this _____ day of ___________________, ____.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By: ___________________________________
Name:
Title:
364-Day Facility
EXHIBIT 2.08
FORM OF INTEREST ELECTION REQUEST
Dated _____________
First Union National Bank,
as Administrative Agent
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Interest Election Request (the "Request") is delivered to
you under Section 2.08 of the Credit Agreement dated as of September 29, 1999
(as restated, amended, modified, supplemented and in effect from time to time,
the "Credit Agreement"), by and among Xxxxxx Xxxxxx Energy Partners, L.P., a
Delaware limited partnership (the "Company"), the Lenders party thereto (the
"Lenders"), First Union National Bank, as Administrative Agent, Bank of America,
N.A., as Syndication Agent, and Societe Generale, as Documentation Agent.
1. This Interest Election Request is submitted for the purpose of:
(a) [Converting] [Continuing] a ____________ Revolving Loan [into]
[as] a ____________ Loan.1/
(b) The aggregate outstanding principal balance of such Revolving
Loan is $______________.
(c) The last day of the current Interest Period for such Revolving
Loan is _____________.2/
(d) The principal amount of such Revolving Loan to be [converted]
[continued] is $_____________.3/
___________________________
1
Delete the bracketed language and insert "Alternate Base Rate" or
"LIBOR Rate", as applicable, in each blank.
2
Insert applicable date for any Eurodollar Loan being converted or
continued.
3 Complete with an amount in compliance with Section 2.08 of the
Credit Agreement.
364-Day Facility
(e) The requested effective date of the [conversion] [continuation]
of such Revolving Loan is _______________.4/
(f) The requested Interest Period applicable to the [converted]
[continued] Revolving Loan is ____________________.5/
2. No Default or Event of Default exists, and none will exist upon the
conversion or continuation of the Revolving Loan requested herein.
3. All capitalized undefined terms used herein have the meanings assigned
thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Interest Election
Request this _____ day of ___________________, ____.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By:________________________________
Name:
Title:
____________________
4
Complete with a Business Day in compliance with Section 2.08 of
the Credit Agreement.
5
Complete for each Eurodollar Loan in compliance with the definition
of the term "Interest Period" specified in Section 1.01.
364-Day Facility
2
EXHIBIT 2.11
FORM OF NOTICE OF PREPAYMENT
First Union National Bank,
as Administrative Agent
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you by Xxxxxx Xxxxxx
Energy Partners, L.P. (the "Company"), a Delaware limited partnership, under
Section 2.11 of the Credit Agreement dated as of September 29, 1999 (as
restated, amended, modified, supplemented and in effect from time to time, the
"Credit Agreement"), by and among the Company, the Lenders party thereto, the
Syndication Agent, the Documentation Agent, and First Union National Bank, as
the Administrative Agent.
1. The Company hereby provides notice to the Administrative Agent that the
Company shall repay the following ABR Loans and/or Eurodollar Loans in the
amount of $_____________.1/
2. The Company shall repay the above-referenced Loans on the following
Business Day: ___________________.2/
3. All capitalized undefined terms used herein have the meanings assigned
thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Borrowing Request
this _____ day of _______________, _____.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By:__________________________________
Name:
Title:
_______________________
1
Complete with an amount in accordance with Section 2.11(b) of the
Credit Agreement.
2
Complete with a Business Day in accordance with Section 2.11(b) of
the Credit Agreement.
364-Day Facility
EXHIBIT 5.01
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that he is the
____________________________ of the KINDER XXXXXX X.X., INC., a Delaware
corporation, general partner of XXXXXX XXXXXX ENERGY PARTNERS, L.P., a Delaware
limited partnership (the "Company"), and that as such he is authorized to
execute this certificate on behalf of the Company. With reference to the Credit
Agreement dated as of September 29, 1999 (as restated, amended, modified,
supplemented and in effect from time to time, the "Agreement") among the
Company, the Syndication Agent, the Documentation Agent and First Union National
Bank, as Administrative Agent, for the lenders (the "Lenders"), which are or
become a party thereto, and such Lenders, the undersigned represents and
warrants as follows (each capitalized term used herein having the same meaning
given to it in the Agreement unless otherwise specified);
(a) The representations and warranties of the Company contained in
Article IV of the Agreement and otherwise made in writing by or on behalf
of the Company pursuant to the Agreement were true and correct when made,
and are repeated at and as of the time of delivery hereof and are true and
correct at and as of the time of delivery hereof, except to the extent
such representations and warranties are expressly limited to an earlier
date or the Required Lenders have expressly consented in writing to the
contrary.
(b) The Company has performed and complied with all agreements and
conditions contained in the Agreement to which it is a party required to
be performed or complied with by it prior to or at the time of delivery
hereof.
(c) Since ________________, no change as occurred, either in any case
or in the aggregate, in the condition, financial or otherwise, of the
Company or any Subsidiary which would have a Material Adverse Effect.
(d) There currently does not exist, and, after giving effect to the
loan or loans with respect to which this certificate is being delivered,
there will not exist, any Default or Event of Default under the Agreement
or any event or circumstance which constitutes, or with notice or lapse of
time (or both) would constitute, an event of default under any loan or
credit agreement, indenture, deed of trust, security agreement or other
agreement or instrument evidencing or pertaining to any Indebtedness of
the Company or any Subsidiary, or under any material agreement or
instrument to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary is bound.
(e) Attached hereto are the detailed computations necessary to
determine whether the Company is in compliance with Sections 6.07(a) and
(b) of the Agreement as of the end of the [fiscal quarter][fiscal year]
ending ________________.
(f) Attached hereto with respect to each Intercompany Note are the
matters required by clause (iii) of the last sentence of Section 5.01 of
the Agreement.
364-Day Facility
EXECUTED AND DELIVERED this _____ day of ________________, ______.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.
By: KINDER XXXXXX X.X., INC.,
its General Partner
By:_________________________________
Name:
Title:
364-Day Facility
