EXHIBIT 10.15
EXECUTION COPY
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 4, 2002
AMONG
BUCKEYE PARTNERS, L.P.
AS BORROWER,
SUNTRUST BANK,
AS ADMINISTRATIVE AGENT,
AND
THE LENDERS SIGNATORY HERETO
$85,000,000 364-DAY REVOLVING CREDIT FACILITY
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SUNTRUST XXXXXXXX XXXXXXXX CAPITAL MARKETS,
A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.,
AS SOLE LEAD ARRANGER,
BNP PARIBAS,
AS SYNDICATION AGENT
NATIONAL AUSTRALIA BANK LIMITED
AND
KEYBANK NATIONAL ASSOCIATION
AS CO-DOCUMENTATION AGENTS
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING MATTERS......................................................................1
SECTION 1.01. Certain Defined Terms......................................................................1
SECTION 1.02. Accounting Terms and Determinations.......................................................18
ARTICLE II COMMITMENTS...........................................................................................18
SECTION 2.01. Loans. ...................................................................................18
SECTION 2.02. Borrowings, Continuations and Conversions of Loans........................................19
SECTION 2.03. Changes of Commitments; Commitment Increase...............................................20
SECTION 2.04. Renewal of Commitments....................................................................22
SECTION 2.05. Fees. ....................................................................................22
SECTION 2.06. Several Obligations.......................................................................23
SECTION 2.07. Noteless Agreement; Evidence of Indebtedness..............................................23
SECTION 2.08. Prepayments...............................................................................24
SECTION 2.09. Lending Offices...........................................................................24
ARTICLE III PAYMENTS OF PRINCIPAL AND INTEREST...................................................................25
SECTION 3.01. Repayment of Loans........................................................................25
SECTION 3.02. Interest..................................................................................25
ARTICLE IV PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.......................................................26
SECTION 4.01. Payments..................................................................................26
SECTION 4.02. Pro Rata Treatment........................................................................26
SECTION 4.03. Computations..............................................................................26
SECTION 4.04. Non-receipt of Funds by the Agent.........................................................27
SECTION 4.05. Set-off, Sharing of Payments, Etc.........................................................27
SECTION 4.06. Taxes. ...................................................................................28
ARTICLE V YIELD PROTECTION.......................................................................................30
SECTION 5.01. Additional Costs..........................................................................30
SECTION 5.02. Basis Unavailable or Inadequate for LIBOR Rate............................................31
SECTION 5.03. Illegality................................................................................31
SECTION 5.04. Base Rate Loans...........................................................................31
SECTION 5.05. Compensation..............................................................................32
SECTION 5.06. Replacement Lenders.......................................................................32
ARTICLE VI CONDITIONS PRECEDENT..................................................................................33
SECTION 6.01. Initial Funding...........................................................................33
SECTION 6.02. Initial and Subsequent Loans..............................................................34
SECTION 6.03. Conditions Precedent to Each Extension of Termination Date................................35
SECTION 6.04. Conditions Precedent for the Benefit of Lenders...........................................35
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SECTION 6.05. No Waiver.................................................................................35
ARTICLE VII REPRESENTATIONS AND WARRANTIES.......................................................................36
SECTION 7.01. Existence.................................................................................36
SECTION 7.02. Financial Condition.......................................................................36
SECTION 7.03. Litigation................................................................................37
SECTION 7.04. No Breach.................................................................................37
SECTION 7.05. Authority.................................................................................37
SECTION 7.06. Approvals.................................................................................37
SECTION 7.07. Use of Loans..............................................................................38
SECTION 7.08. ERISA. ...................................................................................38
SECTION 7.09. Taxes. ...................................................................................39
SECTION 7.10. Titles, etc...............................................................................39
SECTION 7.11. No Material Misstatements.................................................................40
SECTION 7.12. Investment Company Act....................................................................40
SECTION 7.13. Public Utility Holding Company Act........................................................40
SECTION 7.14. Subsidiaries..............................................................................40
SECTION 7.15. Location of Business and Offices..........................................................40
SECTION 7.16. Defaults..................................................................................41
SECTION 7.17. Environmental Matters.....................................................................41
SECTION 7.18. Compliance with the Law...................................................................42
SECTION 7.19. Insurance.................................................................................42
SECTION 7.20. Material Agreements.......................................................................42
SECTION 7.21. Partnership Agreement.....................................................................43
SECTION 7.22. Ownership of Parties......................................................................43
ARTICLE VIII AFFIRMATIVE COVENANTS...............................................................................43
SECTION 8.01. Reporting Requirements....................................................................43
SECTION 8.02. Litigation................................................................................45
SECTION 8.03. Maintenance, Etc..........................................................................45
SECTION 8.04. Environmental Matters.....................................................................46
SECTION 8.05. Further Assurances........................................................................46
SECTION 8.06. Performance of Obligations................................................................47
SECTION 8.07. ERISA Information and Compliance..........................................................47
ARTICLE IX NEGATIVE COVENANTS....................................................................................47
SECTION 9.01. Debt. ....................................................................................47
SECTION 9.02. Liens. ...................................................................................48
SECTION 9.03. Investments, Loans and Advances...........................................................49
SECTION 9.04. Distributions and Redemptions.............................................................49
SECTION 9.05. Sales and Leasebacks......................................................................50
SECTION 9.06. Nature of Business........................................................................50
SECTION 9.07. Restrictive Agreements....................................................................50
SECTION 9.08. Mergers, Etc..............................................................................50
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SECTION 9.09. Proceeds of the Loans.....................................................................51
SECTION 9.10. ERISA Compliance..........................................................................51
SECTION 9.11. Sale or Discount of Receivables...........................................................52
SECTION 9.12. Funded Debt Ratio.........................................................................52
SECTION 9.13. Fixed Charge Coverage Ratio...............................................................52
SECTION 9.14. Sale of Properties........................................................................53
SECTION 9.15. Environmental Matters.....................................................................53
SECTION 9.16. Transactions with Affiliates..............................................................53
SECTION 9.17. Partnership Agreements....................................................................53
SECTION 9.18. Senior Notes..............................................................................53
ARTICLE X EVENTS OF DEFAULT; REMEDIES............................................................................53
SECTION 10.01. Events of Default........................................................................53
SECTION 10.02. Remedies.................................................................................55
ARTICLE XI THE AGENT.............................................................................................56
SECTION 11.01. The Agent................................................................................56
SECTION 11.02. Expenses.................................................................................58
SECTION 11.03. Proportionate Absorption of Losses.......................................................58
SECTION 11.04. Delegation of Duties; Reliance...........................................................58
SECTION 11.05. Limitation of the Agent's Liability......................................................58
SECTION 11.06. Event of Default.........................................................................60
SECTION 11.07. Limitation of Liability..................................................................60
SECTION 11.08. Other Agents.............................................................................60
SECTION 11.09. Relationship of Lenders..................................................................60
SECTION 11.10. Benefits of Agreement....................................................................60
ARTICLE XII MISCELLANEOUS........................................................................................60
SECTION 12.01. Waiver...................................................................................60
SECTION 12.02. Notices..................................................................................61
SECTION 12.03. Payment of Expenses, Indemnities, etc....................................................61
SECTION 12.04. Amendments, Etc..........................................................................63
SECTION 12.05. Successors and Assigns...................................................................64
SECTION 12.06. Assignments and Participations...........................................................64
SECTION 12.07. Invalidity...............................................................................66
SECTION 12.08. Counterparts.............................................................................66
SECTION 12.09. References...............................................................................67
SECTION 12.10. Survival.................................................................................67
SECTION 12.11. Captions.................................................................................67
SECTION 12.12. NO ORAL AGREEMENTS.......................................................................67
SECTION 12.13. GOVERNING LAW; SUBMISSION TO JURISDICTION................................................67
SECTION 12.14. Interest.................................................................................69
SECTION 12.15. Confidentiality..........................................................................70
SECTION 12.16. EXCULPATION PROVISIONS...................................................................70
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ANNEXES, EXHIBITS AND SCHEDULES
Annex I - List of Percentage Shares and Revolving Credit Commitments
Exhibit A - Form of Borrowing, Continuation and Conversion Request
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Assignment Agreement
Exhibit D-1 - Restricted Subsidiaries as of the Date Hereof
Exhibit D-2 - Unrestricted Subsidiaries as of the Date Hereof
Exhibit E - Form of Guaranty
Schedule 7.02 - Liabilities
Schedule 7.03 - Litigation
Schedule 7.10 - Titles, etc.
Schedule 7.14 - Subsidiaries and Partnerships
Schedule 7.17 - Environmental Matters
Schedule 7.22 - Structure and Ownership of Subsidiaries
Schedule 9.01 - Debt
Schedule 9.02 - Liens
Schedule 9.03 - Investments, Loans and Advances
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THIS CREDIT AGREEMENT (as amended , supplemented and modified from time
to time, this "AGREEMENT") is entered into as of September 4, 2002, among
BUCKEYE PARTNERS, L.P., a limited partnership formed under the laws of the State
of Delaware (the "BORROWER"); each of the lenders that is a signatory hereto or
that becomes a signatory hereto as provided in Section 12.06 (together with
their successors and assigns, the "LENDERS"); SUNTRUST BANK ("SUNTRUST"), as
administrative agent for the Lenders (in such, capacity, together with its
successors in such capacity, the "AGENT").
R E C I T A L S
A. The Borrower has requested that the Lenders provide certain loans to
and extensions of credit on behalf of the Borrower.
B. The Lenders have agreed to make such loans and extensions of credit
subject to the terms and conditions of this Agreement.
C. In consideration of the mutual covenants and agreements herein
contained and of the loans, extensions of credit and commitments hereinafter
referred to, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
SECTION 1.01. CERTAIN DEFINED TERMS.
As used herein, the following terms shall have the following meanings
(all terms defined in this Article I or in other provisions of this Agreement in
the singular to have equivalent meanings when used in the plural and vice
versa):
"ADDITIONAL COSTS" shall have the meaning assigned such term
in Section 5.01(a).
"ADDITIONAL LENDER" shall have the meaning assigned such term
in Section 2.03(c).
"AFFECTED LOANS" shall have the meaning assigned such term in
Section 5.04.
"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, 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
which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other governing
body of a corporation or 10% 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
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"control" (including, with its correlative meanings, "controlled by"
and "under common control with") such corporation or other Person.
"AGENT" shall have the meaning assigned such term in the
preamble to this Agreement.
"AGREEMENT" shall have the meaning assigned such term in the
preamble to this Agreement.
"AGGREGATE REVOLVING CREDIT COMMITMENTS" at any time shall
equal the sum of the Revolving Credit Commitments of the Lenders, as
the same may be reduced pursuant to Section 2.03(a) or increased
pursuant to Section 2.03(c).
"APPLICABLE LENDING OFFICE" shall mean, for each Lender and
for each Type of Loan, the lending office of such Lender (or an
Affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other offices of such Lender (or of an
Affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.
"APPLICABLE MARGIN" shall mean, for any LIBOR Loan or any Base
Rate Loan, (i) on any date the Utilization Percentage equals or is less
than 50%, the LIBOR Margin or Base Rate Margin interest rate per annum
set forth below in the columns identified as Xxxxx 0, Xxxxx 0, Xxxxx 0,
Xxxxx 4 and Level 5, and (ii) on any date the Utilization Percentage
exceeds 50%, the Utilized LIBOR Margin or Utilized Base Rate Margin
interest rate per annum set forth below in the columns identified as
Xxxxx 0, Xxxxx 0, Xxxxx 0, Xxxxx 4 and Level 5, in each case,
determined by reference to the Reference Rating.
XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5
===================================================================================================================
S&P Reference Rating Reference Rating Reference Rating
Reference Less than Level 1 Less than Less than Level 3 Reference
Rating but at least Level 2 but at but at least Rating
Xxxxx'x at least A-/A3 BBB+/Baa1 least BBB/Baa2 BBB-/Baa3 below Level 4*
===================================================================================================================
Interest Rate Per Annum
LIBOR Margin 0.650% 0.750% 0.875% 1.025% 1.400%
Base Rate Margin 0.000% 0.000% 0.000% 0.000% 0.000%
Utilized LIBOR Margin 0.750% 0.875% 1.000% 1.150% 1.575%
Utilized Base Rate Margin 0.100% 0.125% 0.125% 0.125% 0.175%
*or unrated
Any change in the Applicable Margin will be effective as of
the date on which S&P or Xxxxx'x, as the case may be, announces any
change in the ratings used to determine the Reference Rating.
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"ASSIGNMENT AGREEMENT" shall have the meaning assigned such
term in Section 12.06(b).
"BASE RATE" shall mean, with respect to any Base Rate Loan,
for any day, the higher of (i) the Federal Funds Rate for any such day
plus 1/2 of 1% and (ii) the Prime Rate for such day. Each change in any
interest rate provided for herein based upon the Base Rate resulting
from a change in the Base Rate shall take effect at the time of such
change in the Base Rate.
"BASE RATE LOANS" shall mean Loans that bear interest at rates
based upon the Base Rate.
"BMC" shall mean Buckeye Management Company, a Delaware
corporation.
"BPLC" shall mean Buckeye Pipe Line Company, a Delaware
corporation.
"BORROWER" shall have the meaning assigned such term in the
preamble to this Agreement.
"BORROWER PARTNERSHIP AGREEMENT" shall mean the Amended and
Restated Agreement of Limited Partnership of the Borrower, dated as of
December 31, 1998, as amended from time to time.
"BUCKEYE PIPE LINE PARTNERSHIP AGREEMENT" shall mean the
Amended and Restated Agreement of Limited Partnership of Buckeye Pipe
Line Company, L.P., dated as of December 23, 1986, as amended on August
12, 1997, as amended and restated on March 25, 1998, and as it may be
amended from time to time.
"BUSINESS DAY" shall mean any day other than a day on which
commercial banks are authorized or required to close in Georgia or New
York and, if such day relates to a borrowing or continuation of, a
payment or prepayment of principal of or interest on, or a conversion
of or into, or the Interest Period for, a LIBOR Loan or a notice by the
Borrower with respect to any such borrowing or continuation, payment,
prepayment, conversion or Interest Period, any day that is also a day
on which dealings in Dollar deposits are carried out in the London
interbank market.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
"CHANGE OF CONTROL" shall mean either (i) a change resulting
when any Unrelated Person or any Unrelated Persons acting together that
would constitute a Group together with any Affiliates thereof (in each
case also constituting Unrelated Persons) shall at any time
Beneficially Own more than 50% of the aggregate voting power of all
classes of Voting Stock of BMC, (ii) BMC or Glenmoor, Ltd. shall cease
to own 100% of the outstanding stock of BPLC on a fully diluted basis
or (iii) BPLC shall cease to own 100% of the general partnership
interest of the Borrower. As used herein (A) "Beneficially Own" means
"beneficially own" as defined in Rule 13d-3 of the Securities Exchange
Act of 1934, as amended, or any successor provision thereto; provided,
however, that, for
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purposes of this definition, a Person shall not be deemed to
Beneficially Own securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person's
Affiliates until such tendered securities are accepted for purchase or
exchange; (B) "Group" means a "group" for purposes of Section 13(d) of
the Securities Exchange Act of 1934, as amended; (C) "Unrelated Person"
means at any time any Person other than (1) Glenmoor, Ltd. and the
stockholders thereof as of the date hereof, (2) their respective
spouses, lineal descendants, and spouses of their lineal descendants,
(3) the estates of the Persons described in clauses (1) and (2), and
(4) trusts established solely for the benefit of any Person or Persons
described in clauses (1) and (2); and (D) "Voting Stock" of any Person
shall mean capital stock of such Person that ordinarily has voting
power for the election of directors (or persons performing similar
functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any
contingency.
"CLOSING DATE" shall mean the date on which the conditions
precedent described in Section 6.01 to the Initial Funding shall be
satisfied or waived.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time and any successor statute.
"COMMITMENT" shall mean, for any Lender, its obligation to
make Loans up to such Lender's Revolving Credit Commitment in each case
as such amount may be (i) reduced from time to time pursuant to Section
2.03(a), or (ii) increased pursuant to Section 2.03(c).
"COMMITMENT INCREASE" shall have the meaning assigned such
term in Section 2.03(c).
"COMMITMENT INCREASE APPROVALS" means any Governmental
Requirement, resolution of the Board of Directors of the Borrower or
resolution of the Board of Directors of any Restricted Subsidiary not
obtained by or on behalf of the Borrower or such Restricted Subsidiary,
as applicable, and in full force and effect on the date hereof, which
Governmental Requirement or resolution is required to be obtained in
order to authorize the Commitment Increase and the performance by the
Borrower and the Restricted Subsidiaries of their respective
obligations under the Loan Documents after giving effect to the
Commitment Increase.
"COMPLIANCE CERTIFICATE" shall mean a certificate from the
Borrower substantially in the form of Exhibit B.
"CONSOLIDATED NET INCOME" shall mean, with respect to any
Person for any period, the aggregate of the net income (or loss) of
such Person and its Consolidated Subsidiaries after allowances for
taxes for such period, determined on a consolidated basis in accordance
with GAAP; provided that there shall be excluded from such net income
(to the extent otherwise included therein) the following: (i) the net
income of any other Person in which such Person or any of its
Consolidated Subsidiaries has an interest (which interest does not
cause the net income of such other Person to be consolidated
5
with the net income of such Person and its Consolidated Subsidiaries in
accordance with GAAP), except to the extent of the amount of dividends
or distributions actually paid in such period by such other Person to
such Person or to a Consolidated Subsidiary of such Person, as the case
may be; (ii) the net income (but not loss) of any Consolidated
Subsidiary of such Person to the extent that the declaration or payment
of dividends or similar distributions or transfers or loans by that
Consolidated Subsidiary is not at the time permitted by operation of
the terms of its charter or any agreement, instrument or Governmental
Requirement applicable to such Consolidated Subsidiary, or is otherwise
restricted or prohibited in each case determined in accordance with
GAAP; (iii) the net income (or loss) of any other Person acquired in a
pooling-of-interests transaction for any period prior to the date of
such transaction; (iv) any extraordinary gains or losses, including
gains or losses attributable to Property sales not in the ordinary
course of business; and (v) the cumulative effect of a change in
accounting principles resulting in any gains or losses attributable to
write-ups or write-downs of assets or liabilities.
"CONSOLIDATED SUBSIDIARIES" shall mean each Subsidiary of any
Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance
with GAAP.
"DEBT" shall mean, for any Person the sum of the following
(without duplication): (i) all obligations of such Person for borrowed
money or evidenced by bonds, debentures, notes or other similar
instruments (including principal, interest, fees and charges); (ii) all
obligations of such Person (whether contingent or otherwise) in respect
of bankers' acceptances, letters of credit, surety or other bonds and
similar instruments; (iii) all obligations of such Person to pay the
deferred purchase price of Property or services (other than for
borrowed money); (iv) all obligations under leases which shall have
been, or should have been, in accordance with GAAP, recorded as capital
leases in respect of which such Person is liable (whether contingent or
otherwise); (v) all obligations under operating leases which require
such Person or its Affiliate to make rental payments over the term of
such lease, based on the purchase price or appraised value of the
Property subject to such lease plus a marginal interest rate, and used
primarily as a financing vehicle for, or to monetize, such Property;
(vi) all Debt (as described in the other clauses of this definition) of
others secured by a Lien on any asset of such Person, whether or not
such Debt is assumed by such Person; (vii) all Debt (as described in
the other clauses of this definition) of others guaranteed by such
Person or in which such Person otherwise assures a creditor against
loss of the debtor, provided that such obligations would be recorded as
a liability under GAAP; (viii) all obligations or undertakings of such
Person to maintain or cause to be maintained the financial position or
financial covenants of others or to purchase the Debt of others; (ix)
obligations to deliver goods or services not in the ordinary course of
business in consideration of advance payments; (x) obligations to pay
for goods or services not in the ordinary course of business whether or
not such goods or services are actually received or utilized by such
Person; (xi) any capital stock of such Person in which such Person has
a mandatory obligation to redeem such stock; (xii) any Debt of a
Special Entity for which such Person is liable either by agreement or
because of a Governmental Requirement; and (xiii) all obligations of
such Person under Hedging Agreements.
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"DEFAULT" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"DOLLARS" and "$" shall mean lawful money of the United States
of America.
"EBITDA" shall mean for any Person for any period, the sum of
Consolidated Net Income for such period plus the following expenses or
charges to the extent deducted from Consolidated Net Income for such
period: interest, taxes, depreciation, depletion and amortization;
provided, however, with respect to the Borrower, if during any period
the Borrower acquires any Person and such Person becomes a Restricted
Subsidiary or the Borrower acquires all or substantially all of the
assets of any Person, the EBITDA attributable to such Person or assets
for such period determined on a pro forma basis (which determination,
in each case, shall be subject to the approval of the Required Lenders,
not to be unreasonably withheld) may be included in EBITDA for the
calculation of the Funded Debt Ratio.
"ENVIRONMENTAL LAW" shall mean any and all Governmental
Requirements pertaining to health or the environment in effect in any
and all jurisdictions in which the Borrower or any Subsidiary is
conducting or at any time has conducted business, or where any Property
of the Borrower or any Subsidiary is located, including without
limitation, the Oil Pollution Act of 1990 ("OPA"), the Clean Air Act,
as amended, the Comprehensive Environmental, Response, Compensation,
and Liability Act of 1980 ("CERCLA"), as amended, the Federal Water
Pollution Control Act, as amended, the Occupational Safety and Health
Act of 1970, as amended, the Resource Conservation and Recovery Act of
1976 ("RCRA"), as amended, the Safe Drinking Water Act, as amended, The
Toxic Substances Control Act, as amended, the Superfund Amendments and
Reauthorization Act of 1986, as amended, the Hazardous Materials
Transportation Act, as amended, the Federal Insecticide, Fungicide, and
Rodenticide Act, the Emergency Planning and Community Right-to-Know
Act, the Rivers and Harbors Act, analogous state and local Governmental
Requirements, and any analogous future enacted or adopted Governmental
Requirement. The term "oil" shall have the meaning specified in OPA,
the terms "hazardous substance" and "release" (or "threatened release")
have the meanings specified in CERCLA, and the terms "solid waste,"
"hazardous waste" and "disposal" (or "disposed") have the meanings
specified in RCRA; provided, however, that (i) in the event either OPA,
CERCLA or RCRA is amended so as to broaden the meaning of any term
defined thereby, such broader meaning shall apply subsequent to the
effective date of such amendment and (ii) to the extent the laws of the
state in which any Property of the Borrower or any Subsidiary is
located establish a meaning for "oil," "hazardous substance,"
"release," "solid waste," "hazardous waste," or "disposal" which is
broader than that specified in either OPA, CERCLA or RCRA, such broader
meaning shall apply.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time and any successor statute.
"ERISA AFFILIATE" shall mean each trade or business (whether
or not incorporated) which together with the Borrower or any Subsidiary
would be deemed to
7
be a "single employer" within the meaning of section 4001(b)(1) of
ERISA or subsection (b), (c), (m) or (o) of section 414 of the Code.
"ERISA EVENT" shall mean (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder, (ii) the
withdrawal of the Borrower, any Subsidiary or any ERISA Affiliate from
a Plan during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA or the withdrawal of the
Borrower, any Subsidiary or any ERISA Affiliate from a Multiemployer
Plan, (iii) the filing of a notice of intent to terminate a Plan or the
treatment of a Plan amendment as a termination under Section 4041 of
ERISA, (iv) the institution of proceedings to terminate a Plan by the
PBGC, (v) any other event or condition that might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, (vi) the cessation of operations
at a facility in the circumstances described in Section 4062(e) of
ERISA, (vii) the failure by the Borrower, any Subsidiary or any ERISA
Affiliate to make a payment to a Plan required under Section 302(f)(1)
of ERISA, which failure results in the imposition of a lien for failure
to make required payments, and (viii) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA.
"EVENT OF DEFAULT" shall have the meaning assigned such term
in Section 10.01.
"EXCEPTED LIENS" shall mean:
(i) Prior Liens;
(ii) statutory Liens incidental to the conduct of
business or the ownership of Properties of the Borrower and
the Restricted Subsidiaries (including Liens in connection
with worker's compensation, unemployment insurance and other
like laws (other than ERISA Liens), warehousemen's and
mechanics' and materialmen's liens and statutory landlord's
liens) that in each case are incurred in the ordinary course
of business and not in connection with the borrowing of money,
the obtaining of advances or credit or the payment of the
deferred purchase price of Property and that do not in any
event materially impair the value or use of the Property
encumbered thereby in the operation of the businesses of the
Borrower and the Restricted Subsidiaries; provided in each
case, that the obligation secured is not overdue or, if
overdue, (A) is being contested by the Borrower or a
Restricted Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Borrower or a Restricted
Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of the Borrower or such
Restricted Subsidiary or (B) such Liens in the aggregate do
not secure obligations in the aggregate in excess of
$1,000,000;
(iii) the right reserved to, or vested in, any
municipality or public authority or in any other Person by the
terms of any right, power, franchise, privilege, grant,
license, permit, easement or lease or by any provision of law,
to terminate such right, power, franchise, privilege, grant,
license, permit, easement
8
or lease or to purchase or recapture, or to designate a
purchaser of, any of the Properties or assets of the Borrower
and the Restricted Subsidiaries;
(iv) the Lien of any tax or assessment that is not at
the time delinquent;
(v) the Lien of any tax or assessment that is
delinquent, but the validity of which is being diligently
contested at the time by the Borrower or any Restricted
Subsidiary in good faith, provided that the Borrower or such
Restricted Subsidiary shall have established such reserves in
such amounts as may be required under GAAP;
(vi) any Lien or privilege vested in any grantor,
lessor or licenser or permittor for rent or other charges due
or for any other obligations or acts to be performed, the
payment of which rent or other charges or performance of which
other obligations or acts is required under leases, easements,
rights-of-way, leases, licenses, franchises, privileges,
grants or permits, so long as payment of such rent or the
performance of such other obligations or acts is not
delinquent or the requirement for such payment or performance
is being contested in good faith by appropriate proceedings;
(vii) defects and irregularities in the title to the
Property of the Borrower or any Restricted Subsidiary that do
not in the aggregate have a Material Adverse Effect;
(viii) easements, exceptions or reservations in any
Property of the Borrower or any Restricted Subsidiary granted
or reserved for the purpose of pipelines, roads, the removal
of oil, gas, coal or other minerals, and other like purposes
or for the joint or common use of real Property, facilities
and equipment, that do not in the aggregate have a Material
Adverse Effect;
(ix) rights reserved to, or vested in any grantor,
lessor, licenser, municipality or public authority to control
or regulate any Property of the Borrower or any Restricted
Subsidiary or to use any such Property, provided, that the
Borrower or such Restricted Subsidiary shall not be in default
in respect of any material obligation (except that the
Borrower or such Restricted Subsidiary may be contesting any
such obligation in good faith) to such grantor, lessor,
licenser, municipality or public authority; and provided,
further, that all such controls, Regulations and uses will not
have a Material Adverse Effect;
(x) any obligation or duty to any municipality or
public authority with respect to any lease, easement,
right-of-way, license, franchise, privilege, permit or grant;
(xi) the Liens of any judgments in an aggregate
amount not in excess of $500,000, or the Lien of any judgment
the execution of which has been stayed, or which has been
appealed and secured, if necessary, by the filing of an appeal
bond;
9
(xii) Liens or burdens imposed by any law or
governmental regulation, including, without limitation, those
imposed by environmental and zoning laws, ordinances, and
regulations; provided, in each case, the Borrower or any
Restricted Subsidiary is not in default in any material
obligation (except that the Borrower or such Restricted
Subsidiary may be contesting any such obligation in good
faith) in respect of such Property; provided, further, that
the existence of all such Liens and burdens does not have a
Material Adverse Effect;
(xiii) any pledge or deposit by the Borrower or any
Restricted Subsidiary to secure payment of workers'
compensation or insurance premiums, or in connection with
tenders, bids, contracts or leases; or any deposits to secure
public or statutory obligations; any pledge or deposit in
connection with contracts with or made at the request of the
United States of America or any state or agency or political
subdivision thereof or for any purposes similar to any of
those referred to in this clause (xiii); provided, in each
case, the Borrower or such Restricted Subsidiary is not in
default in any material obligation (except that the Borrower
or such Restricted Subsidiary may be contesting any such
obligation in good faith) in respect thereof;
(xiv) the making of a deposit with or the giving of
any form of security to any governmental agency or any body
created or approved by law or Governmental Requirement in
order to entitle the Borrower or any Restricted Subsidiary to
maintain self-insurance;
(xv) Liens securing Debt of the Borrower or any
Restricted Subsidiary incurred or assumed in connection with
the construction or acquisition of capital Improvements;
provided that such Debt would be permitted under Section
9.01(e) hereof, and provided, further, that any such Lien
shall not extend to any Property other than Property the
construction or acquisition of which is financed by such Debt;
(xvi) Liens securing all or any part of the purchase
price, or securing Debt of the Borrower or any Restricted
Subsidiary incurred or assumed to pay all or any part of the
purchase price of Property acquired by the Borrower or any
Restricted Subsidiary, or Liens existing on such Property
immediately prior to its acquisition, including, without
limitation, the Liens described in clause (xv) of this
definition, provided, that (i) that any such Lien shall extend
solely to the Property so acquired, (ii) the principal amount
of Debt secured by any such Lien shall not exceed 100% of the
fair market value of such Property (as reasonably determined
by the Board of Directors of the General Partner) at the time
of acquisition, (iii) any such Lien not existing on such
Property immediately prior to its acquisition shall be created
at the time of acquisition of such Property or within 60 days
thereafter and (iv) the aggregate amount of all outstanding
Debt secured by such Liens shall be permitted under Section
9.01(e);
10
(xvii) Liens arising in connection with
Sale-Leaseback Transactions permitted under Section 9.05;
provided that any such Lien shall not extend to any Property
other than Property being leased; and
(xviii) any Lien of the Trustee encumbering the
Defeasance Trust (as defined in that certain Defeasance Trust
Agreement, dated as of December 16, 1997 (the "DEFEASANCE
TRUST AGREEMENT"), among Buckeye Pipe Line Company, L.P., PNC
Bank, National Association, and Xxxxxxx X. Xxxxxx) and all
funds and securities therein for the benefit of the holders of
the Defeased Notes (as such term is defined in the Defeasance
Trust Agreement).
"EXISTING CREDIT AGREEMENT" shall mean the 364-Day Credit
Agreement, dated September 5, 2001, as amended, modified or
supplemented from time to time, among the Borrower, the lenders from
time to time parties thereto and SunTrust Bank, as agent for such
lenders.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest l/100 of 1%) equal
to the weighted average of the rates on overnight federal funds
transactions with a member of the Federal Reserve System arranged by
federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day, provided
that (i) if the date for which such rate is to be determined is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the
average rate charged to the Agent on such day on such transactions as
determined by the Agent.
"FEE LETTER" shall mean that certain letter agreement from
SunTrust Xxxxxxxx Xxxxxxxx Capital Markets, a division of SunTrust
Capital Markets, Inc. and SunTrust to the Borrower, dated August 12,
2002, as the same may be amended or replaced from time to time,
concerning certain fees in connection with this Agreement and any
agreements or instruments executed in connection herewith.
"FINANCIAL STATEMENTS" shall mean the financial statement or
statements of the Borrower and its Consolidated Subsidiaries described
or referred to in Section 7.02.
"FIXED CHARGE COVERAGE RATIO" shall mean the ratio (calculated
quarterly as of the last day of each fiscal quarter) of (i)
consolidated EBITDA of the Borrower (excluding EBITDA attributable to
Unrestricted Subsidiaries) for the four fiscal quarters ending on such
date (the "BASE PERIOD") to (ii) the sum of (A) all payments of
principal (including the principal component of all payments in respect
of lease obligations described in clause (v) of the definition of
"Debt", but excluding payments of principal to be made with the
proceeds of other Debt (i.e., refinancings)) payable by the Borrower
and its consolidated Subsidiaries (other than the Unrestricted
Subsidiaries) during the four fiscal quarter period immediately
succeeding the Base Period (the "REFERENCE PERIOD"), plus (B) interest
expense payable by the Borrower and its consolidated Subsidiaries
(other than the Unrestricted Subsidiaries) during the Reference Period,
plus
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(C) capital expenditures reasonably necessary to maintain the Property
of the Borrower and its consolidated Subsidiaries (other than the
Unrestricted Subsidiaries) in good working order during the Reference
Period.
"FUNDED DEBT" shall mean for any Person, Debt of such Person
(other than the type described in subsection (xiii) of the definition
of Debt), less all obligations of such Person to pay the deferred
purchase price of Property or services obtained in the ordinary course
of business.
"FUNDED DEBT RATIO" shall mean the ratio (calculated quarterly
at the end of each fiscal quarter) of (i) the consolidated Funded Debt
of the Borrower (excluding Funded Debt of Unrestricted Subsidiaries)
for the four fiscal quarters ending on such date to (ii) the
consolidated EBITDA of the Borrower (excluding EBITDA attributable to
Unrestricted Subsidiaries) for such four fiscal quarters.
"GAAP" shall mean generally accepted accounting principles in
the United States of America in effect from time to time.
"GENERAL PARTNER" shall mean BPLC.
"GOVERNMENTAL AUTHORITY" shall mean the country, the state,
county, city and political subdivisions in which any Person or such
Person's Property is located or that exercises valid jurisdiction over
any such Person or such Person's Property, and any court, agency,
department, commission, board, bureau or instrumentality of any of them
including monetary authorities that exercises valid jurisdiction over
any such Person or such Person's Property. Unless otherwise specified,
all references to Governmental Authority herein shall mean a
Governmental Authority having jurisdiction over, where applicable, the
Borrower, its Subsidiaries or any of their Property or the Agent, any
Lender or any Applicable Lending Office.
"GOVERNMENTAL REQUIREMENT" 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, without limitation, Environmental Laws, energy
regulations and occupational, safety and health standards or controls,
of any Governmental Authority.
"GRANTING LENDER" shall have the meaning assigned such term in
Section 12.06(e).
"GUARANTOR" shall mean each Restricted Subsidiary that has
executed a Guaranty.
"GUARANTY" shall mean an agreement executed by each Guarantor
substantially in the form of Exhibit E.
"HEDGING AGREEMENTS" shall mean any commodity, interest rate
or currency swap, cap, floor, collar, forward agreement or other
exchange or protection agreements or any option with respect to any
such transaction.
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"HIGHEST LAWFUL RATE" shall mean, with respect to any Lender,
the maximum nonusurious interest rate, if any, that at any time or from
time to time may be contracted for, taken, reserved, charged or
received on the Debt hereunder under laws applicable to such Lender
that are presently in effect or, to the extent allowed by law, under
such applicable laws that may hereafter be in effect and that allow a
higher maximum nonusurious interest rate than applicable laws now
allow.
"INCREASING LENDER" shall have the meaning assigned such term
in Section 2.03(c).
"INDEMNIFIED PARTIES" shall have the meaning assigned such
term in Section 12.03(a)(ii).
"INDEMNITY MATTERS" shall mean any and all actions, suits,
proceedings (including any investigations, litigation or inquiries),
claims, demands and causes of action made or threatened against a
Person and, in connection therewith, all losses, liabilities, damages
(excluding, however, indirect and consequential damages and lost
profits) or reasonable costs and expenses of any kind or nature
whatsoever incurred by such Person whether caused by the sole or
concurrent negligence of such Person seeking indemnification.
"INDENTURE" shall mean that certain Amended and Restated
Indenture, dated as of December 16, 1997, between the Buckeye Pipe Line
Company, L.P. and PNC Bank, National Association, as Trustee, as
amended and supplemented from time to time.
"INITIAL FUNDING" shall mean the funding of the initial Loans
upon satisfaction of the conditions set forth in Sections 6.01 and
6.02.
"INTEREST PERIOD" shall mean, with respect to any LIBOR Loan,
the period commencing on the date such LIBOR Loan is made and ending on
the numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as the Borrower may select as provided in
Section 2.02 (or such longer period as may be requested by the Borrower
and agreed to by the Required Lenders), except that each Interest
Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business
Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period may end
after the Termination Date; (ii) each Interest Period that would
otherwise end on a day that is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls
in the next succeeding calendar month, on the next preceding Business
Day); and (iii) no Interest Period shall have a duration of less than
one month and, if the Interest Period for any LIBOR Loans would
otherwise be for a shorter period, such Loans shall not be available
hereunder.
"LENDERS" shall have the meaning assigned such term in the
preamble to this Agreement.
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"LIBOR" shall mean, for any Interest Period for any LIBOR
Loan, the rate per annum for deposits in Dollars for a period equal to
such Interest Period appearing on Dow Xxxxx Market Service Page 3750
(or such other page as may replace Dow Xxxxx Market Service Page 3750
or that service or another service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of
displaying British Bankers' Association Interest Settlement Rates for
Dollars) as of 11:00 a.m. (London, England time) two Business Days
prior to the first day of such Interest Period. In the event that such
rate does not appear on Dow Xxxxx Market Service Page 3750, or such
other page as referenced above, LIBOR shall be determined by the Agent
to be the rate per annum at which deposits in Dollars are offered by
leading reference banks in the London interbank market to SunTrust 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 to be made by the Agent (or any Affiliate of the
Agent).
"LIBOR LOANS" shall mean Loans that bear interest at rates
based upon the LIBOR Rate.
"LIBOR RATE" shall mean, with respect to any LIBOR Loan, a
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined by the Agent to be equal to the quotient of (i) LIBOR
for the Interest Period for such Loan divided by (ii) 1 minus the
Reserve Requirement for such Loan for such Interest Period.
"LIEN" shall mean any interest in Property securing an
obligation owed to, or a claim by, a Person other than the owner of the
Property, whether such interest is based on the common law, statute or
contract, and whether such obligation or claim is fixed or contingent,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights of way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances
affecting Property. Any Person shall be deemed to be the owner of any
Property that it has acquired or holds subject to a conditional sale
agreement, or leases under a financing lease or other arrangement,
pursuant to which title to the Property has been retained by or vested
in some other Person in a transaction intended to create a financing.
"LOAN DOCUMENTS" shall mean this Agreement, the Guaranties,
the Fee Letter, and any and all other agreements or instruments now or
hereafter executed and delivered by the Borrower or any other Person
(other than participation or similar agreements between any Lender and
any other lender or creditor with respect to any Debt hereunder) in
connection with, or as security for or guaranty of the payment or
performance of this Agreement, as such agreements may be amended,
supplemented or restated from time to time.
"LOANS" shall mean Loans made pursuant to Section 2.01(a).
14
"MATERIAL ADVERSE EFFECT" shall mean any material and adverse
effect on (i) the financial condition or results of operations of the
Borrower and the Restricted Subsidiaries, taken as a whole, different
from those reflected in the Financial Statements or from the facts
represented or warranted in any Loan Document, or (ii) the ability of
the Borrower and the Restricted Subsidiaries, taken as a whole, to
carry out their business as of the date hereof or as proposed as of the
date hereof to be conducted or to meet their obligations under the Loan
Documents on a timely basis.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc., or any
successor thereto.
"MULTIEMPLOYER PLAN" shall mean a Plan defined as such in
Section 3(37) or 4001(a)(3) of ERISA.
"NOTE AGREEMENT" shall mean the Note Agreement, dated as of
December 16, 1997, between Buckeye Pipe Line Company, L.P. and The
Prudential Insurance Company of America.
"OTHER CREDIT AGREEMENT" shall mean the 5-Year Credit
Agreement, dated as of September 5, 2001, as amended, modified or
supplemented from time to time, among the Borrower, the lenders from
time to time parties thereto and SunTrust Bank, as agent for such
lenders.
"OTHER TAXES" shall have the meaning assigned such term in
Section 4.06(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions.
"PERCENTAGE SHARE" shall mean, for each Lender, the percentage
obtained by dividing such Lender's Commitment by the Aggregate
Revolving Credit Commitments.
"PERSON" shall mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust,
unincorporated organization or government or any agency,
instrumentality or political subdivision thereof, or any other form of
entity.
"PLAN" shall mean any employee pension benefit plan, as
defined in Section 3(2) of ERISA, that (i) is currently or hereafter
sponsored, maintained or contributed to by the Borrower, any Subsidiary
of the Borrower or an ERISA Affiliate or (ii) was at any time during
the preceding six calendar years sponsored, maintained or contributed
to, by the Borrower, any Subsidiary of the Borrower or an ERISA
Affiliate.
"POST-DEFAULT RATE" shall mean, in respect of any principal of
any Loan or any other amount payable by the Borrower under this
Agreement or any other Loan Document, a rate per annum equal to 2% per
annum above the rate of interest applicable from time to time to Base
Rate Loans, but in no event to exceed the Highest Lawful Rate; provided
however, for any LIBOR Loan, the Post-Default Rate shall be 2% per
annum above the interest rate for such Loan as provided in Section
3.02(a)(ii), but in no event to exceed the Highest Lawful Rate.
15
"PRIME RATE" shall mean the rate of interest from time to time
announced publicly by the Agent at the Principal Office as its prime
commercial lending rate. Such rate is set by the Agent as a general
reference rate of interest, taking into account such factors as the
Agent may deem appropriate, it being understood that many of the
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 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
Agent, presently located at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000.
"PRIOR LIEN" shall mean any Lien not created by the Borrower
or any Restricted Subsidiary, which at any time is a lien upon the
lands over which the Borrower or any Restricted Subsidiary holds
easements or rights-of-way for pipeline purposes, or upon Properties
with respect to which the Borrower's or such Restricted Subsidiary's
interest is subordinate to such Lien, and that does not secure bonds,
notes, other indebtedness, taxes, assessments or other charges that
have been assumed or guaranteed by the Borrower or any Restricted
Subsidiary or for which the Borrower or any Restricted Subsidiary has
otherwise become liable or on which the Borrower or any Restricted
Subsidiary customarily pays interest charges.
"PROPERTY" shall mean any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"QUARTERLY DATES" shall mean the last day of each March, June,
September and December, in each year, the first of which shall be
September 30, 2002.
"REFERENCE RATING" shall mean the ratings assigned by S&P and
Moody's to the senior unsecured non-credit enhanced long-term debt of
the Borrower. If such ratings assigned by S&P and Moody's are not
comparable (i.e., a "split rating"), and (i) the ratings differential
is less than two levels, then the higher of such two ratings shall
control or (ii) the ratings differential is two levels or more, then
the ratings one below the higher of such two ratings shall control,
unless either rating is below BBB- (in the case of S&P) or Baa3 (in the
case of Moody's), in which case the lower of the two ratings shall
control.
"REGULATION D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System (or any successor), as the same
may be amended or supplemented from time to time.
"REGULATORY CHANGE" shall mean, with respect to any Lender,
any change after the date hereof in any Governmental Requirement
(including Regulation D) or the adoption or making after such date of
any interpretations, directives or requests applying to a class of
lenders (including such Lender or its Applicable Lending Office) of or
under any Governmental Requirement (whether or not having the force of
law) by any Governmental Authority charged with the interpretation or
administration thereof.
"REQUIRED LENDERS" shall mean, at any time while no Loans are
outstanding, Lenders having more than 50% of the Aggregate Revolving
Credit Commitments and, at
16
any time Loans are outstanding, Lenders holding more than 50% of the
outstanding aggregate principal amount of the Loans (without regard to
any sale by a Lender of a participation in any Loan under Section
12.06(c)).
"REQUIRED PAYMENT" shall have the meaning assigned such term
in Section 4.04.
"RESERVE REQUIREMENT" shall mean, for any Interest Period for
any LIBOR Loan, the average maximum rate at which reserves (including
any marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) for the Lenders with respect to liabilities or assets
consisting of or including "eurocurrency liabilities" (as defined in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time) having a term equal to such Interest
Period.
Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained
by such member banks by reason of any Regulatory Change against (i) any
category of liabilities that includes deposits by reference to which
LIBOR is to be determined as provided in the definition of "LIBOR" or
(ii) any category of extensions of credit or other assets which include
a LIBOR Loan.
"RESPONSIBLE OFFICER" shall mean, as to any Person, the Chief
Executive Officer, the President or any Vice President of such Person
and, with respect to financial matters, the term "Responsible Officer"
shall include the Chief Financial Officer of such Person. Unless
otherwise specified, all references to a Responsible Officer herein
shall mean a Responsible Officer of the Borrower.
"RESTRICTED SUBSIDIARY" shall mean those Persons listed on
Exhibit D-1 and any Subsidiary of the Borrower or of any Restricted
Subsidiary that has not been designated by the Board of Directors of
the General Partner, at its creation or acquisition, as an Unrestricted
Subsidiary. The Borrower may thereafter redesignate an Unrestricted
Subsidiary as a Restricted Subsidiary, and it will thereafter be a
Restricted Subsidiary; provided, that such Restricted Subsidiary may
not thereafter be redesignated as an Unrestricted Subsidiary, and
provided, further, that no Subsidiary may be designated as an
Unrestricted Subsidiary at any time other than at its creation or
acquisition. To qualify as a Restricted Subsidiary, such Subsidiary
shall be in a line of business as is permitted for the Borrower under
the Borrower Partnership Agreement and shall have executed a Guaranty,
and at the time such Subsidiary is designated as a Restricted
Subsidiary no Default shall exist or result from such designation.
"REVOLVING CREDIT COMMITMENT" shall mean, as to each Lender,
the amount set forth opposite such Lender's name on Annex I under the
caption "Revolving Credit Commitment" (as the same may be reduced
pursuant to Section 2.03(a) pro rata to each Lender based on its
Percentage Share), as modified from time to time to reflect any
assignments permitted by Section 12.06(b).
17
"S&P" shall mean Standard & Poor's Ratings Services, a
division of the XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"SALE-LEASEBACK ATTRIBUTABLE DEBT" shall mean, as to any
particular lease relating to a Sale-Leaseback Transaction, the amount
of the net sale proceeds derived from the sale or transfer to the
Borrower or any Restricted Subsidiary of the Property involved.
"SALE-LEASEBACK TRANSACTION" shall mean a transaction or
series of transactions pursuant to which the Borrower or any Restricted
Subsidiary shall sell or transfer to any Person any Property, whether
now owned or hereafter acquired, and as part of the same transaction or
series of transactions, the Borrower or any Restricted Subsidiary shall
rent or lease as lessee, or similarly acquire the right to possession
or use of, such property or one or more Properties which it intends to
use for the same purpose or purposes as such Property.
"SEC" shall mean the Securities and Exchange Commission or any
successor Governmental Authority.
"SENIOR NOTES" shall mean the 6.98% Series 1997A notes in the
aggregate principal amount of $125,000,000, the 6.89% Series 1997B
notes in the aggregate principal amount of $100,000,000, the 6.95%
Series 1997C notes in the aggregate principal amount of $10,000,000,
and the 6.96% Series 1997D notes in the aggregate principal amount of
$5,000,000, each due December 16, 2024 and issued pursuant to the
Indenture.
"SPC" shall have the meaning assigned such term in Section
12.06(e)
"SPECIAL ENTITY" of any Person shall mean any joint venture,
limited liability company or partnership, general or limited
partnership or any other type of partnership or company other than a
corporation in which such Person or one or more of its Subsidiaries is
a member, owner, partner or joint venturer and either (a) owns,
directly or indirectly, at least a majority of the equity or interests
of such entity, or (b) controls such entity, but excluding any tax
partnerships that are not classified as partnerships under state law.
For purposes of this definition, any Person that owns directly or
indirectly an equity investment in another Person that allows the first
Person to manage or elect managers who manage the normal activities of
such second Person will be deemed to "control" such second Person
(e.g., a sole general partner controls a limited partnership).
"SUBSIDIARY" shall mean (i) any corporation of which at least
a majority of the outstanding shares of stock having by the terms
thereof ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall have
or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or controlled
by the Borrower or one or more of its Subsidiaries or by the Borrower
and one or more of its Subsidiaries and (ii) any Special Entity.
"SUNTRUST" shall have the meaning assigned such term in the
preamble to this Agreement.
18
"TAXES" shall have the meaning assigned such term in Section
4.06(a).
"TERMINATION DATE" shall mean the earlier to occur of (i)
September 3, 2003, as such date may be extended pursuant to Section
2.04 and (ii) the date that the Commitments are terminated pursuant to
Section 2.03(a) or 10.02.
"TYPE" shall mean, with respect to any Loan, a Base Rate Loan
or a LIBOR Loan.
"UNRESTRICTED SUBSIDIARY" shall mean those Persons listed on
Exhibit D-2 and any Subsidiary of the Borrower or any Restricted
Subsidiary that has been designated by the Board of Directors of the
General Partner as an "Unrestricted Subsidiary" at the time of its
creation or acquisition; provided that no Debt or other obligation of
such Unrestricted Subsidiary may be assumed or guaranteed by the
Borrower or any Restricted Subsidiary except to the extent otherwise
permitted under Section 9.01(e), nor may any asset of the Borrower or
any Restricted Subsidiary, directly or indirectly, contingently or
otherwise, become encumbered or otherwise subject to the satisfaction
thereof except to the extent otherwise permitted under Section 9.02(d).
"UTILIZATION PERCENTAGE" shall mean, as of any time for the
determination thereof, the percentage obtained by dividing the
aggregate principal amount of Loans outstanding by the Aggregate
Revolving Credit Commitments then in effect.
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS.
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all determinations with respect to accounting matters
hereunder shall be made, and all financial statements and certificates and
reports as to financial matters required to be furnished to the Agent or the
Lenders hereunder shall be prepared, in accordance with GAAP, applied on a basis
consistent with the audited financial statements of the Borrower referred to in
Section 7.02 (except for changes concurred with by the Borrower's independent
public accountants).
ARTICLE II
COMMITMENTS
SECTION 2.01. LOANS.
(a) LOANS. Each Lender severally agrees, on the terms and conditions of
this Agreement, to make loans to the Borrower during the period from and
including (i) the date hereof or (ii) such later date that such Lender becomes a
party to this Agreement as provided in Section 12.06(b), to and up to, but
excluding, the Termination Date in an aggregate principal amount at any one time
outstanding up to, but not exceeding, the amount of such Lender's Revolving
Credit Commitment as then in effect; provided, however, that the aggregate
principal amount of all such Loans by all Lenders hereunder at any one time
outstanding shall not exceed the Aggregate Revolving Credit Commitments. Subject
to the terms of this Agreement, during the period from the date hereof to and up
to, but excluding, the Termination Date, the Borrower may borrow, repay and
reborrow the amount described in this Section 2.01(a).
19
(b) LIMITATION ON TYPES OF LOANS. Subject to the other terms and
provisions of this Agreement, at the option of the Borrower, the Loans may be
Base Rate Loans or LIBOR Loans; provided that, without the prior written consent
of the Required Lenders, no more than eight LIBOR Loans may be outstanding at
any time.
SECTION 2.02. BORROWINGS, CONTINUATIONS AND CONVERSIONS OF LOANS.
(a) BORROWINGS. The Borrower shall give the Agent (which shall promptly
notify the Lenders) advance notice as hereinafter provided of each borrowing
under Section 2.01(a), which shall specify (i) the aggregate amount of such
borrowing, (ii) the Type and (iii) the date (which shall be a Business Day) of
the Loans to be borrowed, and (iv) in the case of LIBOR Loans, the duration of
the Interest Period therefor.
(b) MINIMUM AMOUNTS. All Base Rate Loan borrowings shall be in amounts
of at least $1,000,000 or the remaining balance of the Aggregate Revolving
Credit Commitments, if less, or any whole multiple of $1,000,000 in excess
thereof, and all LIBOR Loans shall be in amounts of at least $3,000,000 or any
whole multiple of $1,000,000 in excess thereof.
(c) NOTICES. All borrowings, continuations and conversions shall
require advance written notice to the Agent (which shall promptly notify the
Lenders) in the form of Exhibit A (or telephonic notice promptly confirmed by
such a written notice), which in each case shall be irrevocable, from the
Borrower to be received by the Agent not later than 11:00 a.m. Atlanta time on
the date of each Base Rate Loan borrowing and not later than 11:00 a.m. Atlanta
time at least three Business Days prior to the date of each LIBOR Loan
borrowing, continuation or conversion. Without in any way limiting the
Borrower's obligation to confirm in writing any telephonic notice, the Agent may
act without liability upon the basis of telephonic notice believed by the Agent
in good faith to be from the Borrower prior to receipt of written confirmation.
In each such case, the Borrower hereby waives the right to dispute the Agent's
record of the terms of such telephonic notice except in the case of gross
negligence or willful misconduct by the Agent.
(d) CONTINUATION OPTIONS. Subject to the provisions made in this
Section 2.02(d), the Borrower may elect to continue all or any part of any LIBOR
Loan beyond the expiration of the then current Interest Period relating thereto
by giving advance notice as provided in Section 2.02(c) to the Agent (which
shall promptly notify the Lenders) of such election, specifying the amount of
such Loan to be continued and the Interest Period therefor. In the absence of
such a timely and proper election, the Borrower shall be deemed to have elected
to convert such LIBOR Loan to a Base Rate Loan pursuant to Section 2.02(e). All
or any part of any LIBOR Loan may be continued as provided herein, provided that
(i) any continuation of any such Loan shall be (as to each Loan as continued for
an applicable Interest Period) in amounts of at least $5,000,000 or any whole
multiple of $1,000,000 in excess thereof and (ii) no Default shall have occurred
and be continuing. If a Default shall have occurred and be continuing, each
LIBOR Loan shall be converted to a Base Rate Loan on the last day of the
Interest Period applicable thereto.
(e) CONVERSION OPTIONS. The Borrower may elect to convert all or any
part of any LIBOR Loan on the last day of the then current Interest Period
relating thereto to a Base Rate
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Loan by giving advance notice to the Agent (which shall promptly notify the
Lenders) of such election. Subject to the provisions made in this Section
2.02(e), the Borrower may elect to convert all or any part of any Base Rate Loan
at any time and from time to time to a LIBOR Loan by giving advance notice as
provided in Section 2.02(c) to the Agent (which shall promptly notify the
Lenders) of such election. All or any part of any outstanding Loan may be
converted as provided herein, provided that (i) any conversion of any Base Rate
Loan into a LIBOR Loan shall be (as to each such Loan into which there is a
conversion for an applicable Interest Period) in amounts of at least $5,000,000
or any whole multiple of $1,000,000 in excess thereof and (ii) no Default shall
have occurred and be continuing. If a Default shall have occurred and be
continuing, no Base Rate Loan may be converted into a LIBOR Loan.
(f) ADVANCES. Not later than 11:00 a.m. Atlanta time for LIBOR Loans
and 1:00 p.m. Atlanta time for Base Rate Loans on the date specified for each
borrowing hereunder, each Lender shall make available the amount of the Loan to
be made by it on such date to the Agent, to an account which the Agent shall
specify, in immediately available funds, for the account of the Borrower. The
amounts so received by the Agent shall, subject to the terms and conditions of
this Agreement, be made available to the Borrower by depositing the same, in
immediately available funds, in an account of the Borrower, designated by the
Borrower and maintained at the Principal Office.
SECTION 2.03. CHANGES OF COMMITMENTS; COMMITMENT INCREASE.
(a) The Borrower shall have the right to terminate or to reduce the
amount of the Aggregate Revolving Credit Commitments at any time, or from time
to time, upon not less than three Business Days' prior notice to the Agent
(which shall promptly notify the Lenders) of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any such
reduction (which shall not be less than $2,000,000 or any whole multiple of
$2,000,000 in excess thereof) and shall be irrevocable and effective only upon
receipt by the Agent.
(b) The Aggregate Revolving Credit Commitments once terminated or
reduced may not be reinstated.
(c) (i) At any time prior to the Termination Date, the Borrower may
increase the aggregate amount of the Commitments by an amount not greater than
$15,000,000 and to an amount not greater than $100,000,000 (any such increase, a
"COMMITMENT INCREASE") by designating either one or more of the existing Lenders
(each of which, in its sole discretion, may determine whether and to what degree
to offer to participate in such Commitment Increase) or one or more other banks
or other financial institutions reasonably acceptable to the Agent that at the
time agree, in the case of any such bank or financial institution that is an
existing Lender to increase its Commitment (an "INCREASING LENDER") and, in the
case of any other such bank or financial institution (an "ADDITIONAL LENDER"),
to become a party to this Agreement; provided that the effectiveness of that
portion of a Commitment Increase that increases the aggregate amount of the
Commitments to an amount greater than $92,500,000 is subject to a simultaneous
"Commitment Increase" (as such term is defined in the Other Credit Agreement) by
each Increasing Lender and/or Additional Lender, as the case may be, under the
Other Credit Agreement on a pro-rata basis based upon the "Aggregate Revolving
Credit Commitments" (as such term is defined in the Other Credit Agreement)
under the Other Credit Agreement. The
21
sum of the increases in the Commitments of the Increasing Lenders pursuant to
this subsection (c) plus the Commitments of the Additional Lenders upon giving
effect to the Commitment Increase shall not in the aggregate exceed the amount
of the Commitment Increase. The Borrower shall provide prompt notice of any
proposed Commitment Increase pursuant to this Section 2.03(c) to the Agent,
which shall promptly provide a copy of such notice to the Lenders.
(ii) Any Commitment Increase shall become effective upon (A)
the receipt by the Agent of (1) an agreement in form and substance
satisfactory to the Agent signed by the Borrower, each Increasing
Lender and each Additional Lender, setting forth the new Commitment of
each such Lender and setting forth the agreement of each Additional
Lender to become a party to this Agreement and to be bound by all the
terms and provisions hereof binding upon each Lender, (2) certified
copies of the Commitment Increase Approvals and such opinions of
counsel for the Borrower and the Guarantors with respect to the
Commitment Increase as the Agent may reasonably request, and (3) a
certificate (the statements contained in which shall be true) of a duly
authorized officer of the Borrower stating that both before and after
giving effect to such Commitment Increase (x) no Event of Default has
occurred and is continuing, (y) all representations and warranties made
by the Borrower in this Agreement and by the Guarantors in the
Guaranties are true and correct in all material respects, and (z) all
Commitment Increase Approvals have been obtained and are in full force
and effect, and (B) the funding by each Increasing Lender and
Additional Lender of the Loan(s) to be made by each such Lender
described in paragraph (iii) below.
(iii) Upon the effective date of any Commitment Increase, each
Increasing Lender and each Additional Lender shall provide funds to the
Agent in the manner described in Section 2.01 in an amount equal to the
product of (x) the aggregate principal amount of Loans outstanding
hereunder, expressed as a percentage of the Commitments (calculated, in
each case, immediately prior to such Commitment Increase) and (y) such
Lender's pro rata share of the Commitments (calculated, in each case,
after giving effect to such Commitment Increase). The funds so provided
by any Lender shall be deemed to be a Loan or Loans made by such Lender
on the date of such Commitment Increase, with such Loan(s) being (A) in
an amount equal to the product of (x) the aggregate outstanding
principal amount of each Loan expressed as a percentage of the
Commitments (calculated, in each case, immediately prior to such
Commitment Increase) and (y) such Lender's pro rata share of the
Commitments (calculated, in each case, after giving effect to such
Commitment Increase) and (B) of the same Type(s) and having the same
Interest Period(s) as each Loan described in the preceding clause (A),
such that after giving effect to such Commitment Increase and the
Loan(s) made on the date of such Commitment Increase, each Loan
outstanding hereunder shall consist of Loans made by the Lenders
ratably in accordance with their pro rata shares of the Commitments.
(iv) Notwithstanding any provision contained herein to the
contrary, from and after the date of any Commitment Increase and the
making of any Loans on such date pursuant to paragraph (iii) above, all
calculations and payments of interest on the Loan comprising any Loans
shall take into account the actual Commitment of each Lender and
22
the principal amount outstanding of each Loan made by such Lender
during the relevant period of time.
SECTION 2.04. RENEWAL OF COMMITMENTS.
(a) At least 45 but not more than 60 days prior to the then-current
Termination Date, the Borrower may, by delivering a written request to the Agent
(each such request being irrevocable), request that the then-current Termination
Date be extended for an additional period of 364 days, commencing on the
then-current Termination Date. Upon receipt of such notice, the Agent shall
promptly communicate such request to the Lenders.
(b) No earlier than 45 days prior, and no later than 30 days prior, to
the then-current Termination Date, the Lenders shall indicate to the Agent
whether the Borrower's request to so extend the then-current Termination Date is
acceptable to the Lenders, it being understood that the determination by each
Lender will be in its sole and absolute discretion and that the failure of any
Lender to so respond within such period shall be deemed to constitute a refusal
by such Lender to consent to such request, with the result being that such
request is denied (any Lender refusing or deemed to refuse any such request, a
"NON-CONSENTING LENDER"). The Agent shall notify the Borrower, in writing, of
the Lenders' decisions no later than 15 days prior to the end of the
then-current Termination Date.
(c) Subject to the satisfaction of the conditions set forth in Section
6.03, in the event that the sum of the Commitments of the Lenders that have
consented to the Borrower's request to extend the then-current Termination Date
(the "CONSENTING LENDERS") plus the Commitments of Non-Consenting Lenders with
respect to such request that have been assigned pursuant to Section 12.06(b)
hereof shall constitute at least 80% of the Aggregate Revolving Credit
Commitments, the then-current Termination Date shall be extended for an
additional period of 364 days with respect to the Commitments of such Consenting
Lenders. The Commitments of Non-Consenting Lenders with respect to such request
shall automatically terminate on the last day of the then-current Termination
Date (and the principal amount of all Loans made by such Non-Consenting Lenders,
together with accrued interest and fees to such date, shall be repaid), unless
assigned pursuant to Section 12.06(b) hereof; provided that, before the Borrower
may solicit any institution other than the Consenting Lenders, the Consenting
Lenders shall, at least five days before the end of the then-current Termination
Date, determine whether to purchase by assignment the Commitments of such
Non-Consenting Lenders.
(d) The Agent shall prepare and deliver to the Borrower and each Lender
(including each new bank and other financial institution to which a
Non-Consenting Lender's Commitment has been assigned pursuant to Section
12.06(b)) a revised Annex I that reflects the Commitments of each Lender.
SECTION 2.05. FEES.
(a) FACILITY FEE. The Borrower shall pay to the Agent for the account
of each Lender a facility fee equal to the product of (i) the daily average
amount of such Lender's Commitment (regardless of usage) and (ii) the rate per
annum set forth below in the columns identified as Xxxxx 0, Xxxxx 0, Xxxxx 0,
Xxxxx 4, and Level 5, determined by reference to the Reference Rating
23
from the date hereof in the case of each Lender, and from the effective date
specified in the Assignment Agreement pursuant to which it became a Lender, in
the case of each other Lender, until the earlier to occur of the Termination
Date and, in the case of the termination in whole of a Lender's Commitment
pursuant to Section 2.03, the date of such termination, payable on each
Quarterly Date during such period, and on the Termination Date.
XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 5
===================================================================================================================
S&P Reference Rating Reference Rating Reference Rating
Reference Less than Level 1 Less than Less than Level 3 Reference
Rating but at least Level 2 but at but at least Rating
Xxxxx'x at least A-/A3 BBB+/Baa1 least BBB/Baa2 BBB-/Baa3 below Level 4*
===================================================================================================================
Rate Per Annum
Facility Fee 0.100% 0.125% 0.150% 0.225% 0.350%
*or unrated
Any change in the facility fee will be effective as of the date on which S&P or
Xxxxx'x, as the case may be, announces any change in the ratings used to
determine the Reference Rating.
(b) FEE LETTER. The Borrower shall pay to SunTrust and SunTrust
Xxxxxxxx Xxxxxxxx Capital Markets, a division of SunTrust Capital Markets, Inc.
for their respective accounts such other fees as are set forth in the Fee Letter
on the dates specified therein.
SECTION 2.06. SEVERAL OBLIGATIONS.
The failure of any Lender to make any Loan to be made by it on the date
specified therefor shall not relieve any other Lender of its obligation to make
its Loan or provide funds on such date, but no Lender shall be responsible for
the failure of any other Lender to make a Loan to be made by such other Lender
or to provide funds to be provided by such other Lender.
SECTION 2.07. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(b) The Agent shall also maintain accounts in which it will record (i)
the amount of each Loan made hereunder, the Type thereof and the Interest Period
(if any) with respect thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender
hereunder, and (iii) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant to
subsections (a) and (b) above shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that the failure
of the Agent or any Lender to maintain such
24
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay such obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by one or more
promissory notes. In such event, the Borrower shall prepare, execute and deliver
to such Lender one or more promissory notes payable to the order of such Lender
and in a form acceptable to the Borrower and the Agent. Thereafter, the Loans
evidenced by such note(s) and interest thereon shall at all times (including
after any assignment pursuant to Section 12.06(b)) be represented by notes from
the Borrower, payable to the order of the payee named therein or any assignee
pursuant to Section 12.06(b), except to the extent that any such Lender or
assignee subsequently returns any such note for cancellation and requests that
the related Loans once again be evidenced as in subsections (a) and (b) above.
SECTION 2.08. PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS. The Borrower may prepay the Base Rate Loans
upon not less than one (1) Business Day's prior notice to the Agent (which shall
promptly notify the Lenders), which notice shall specify the prepayment date
(which shall be a Business Day) and the amount of the prepayment (which shall be
at least $1,000,000 or whole multiples of $500,000 in excess thereof for Loans
that are Base Rate Loans, or the remaining aggregate principal balance
outstanding) and shall be irrevocable and effective only upon receipt by the
Agent, provided that interest on the principal prepaid, accrued to the
prepayment date, shall be paid on the prepayment date. The Borrower may prepay
LIBOR Loans on the same conditions as for Base Rate Loans (except that prior
notice to the Agent shall be not less than three Business Days for LIBOR Loans
and such payment shall be at least $5,000,000 or whole multiples of $1,000,000
in excess thereof) and in addition such prepayments of LIBOR Loans shall be
subject to the terms of Section 5.05 and shall be in an amount equal to all of
the LIBOR Loans for the Interest Period prepaid.
(b) MANDATORY PREPAYMENTS. If, after giving effect to any termination
or reduction of the Aggregate Revolving Credit Commitments pursuant to Section
2.03(a), the outstanding aggregate principal amount of the Loans exceeds the
Aggregate Revolving Credit Commitments, the Borrower shall prepay the Loans on
the date of such termination or reduction in an aggregate principal amount equal
to the excess, together with interest on the principal amount paid accrued to
the date of such prepayment.
(c) GENERALLY. Prepayments permitted or required under this Section
2.08 shall be without premium or penalty, except as required under Section 5.05
for prepayment of LIBOR Loans. Any prepayments on the Loans may be reborrowed
subject to the then effective Aggregate Revolving Credit Commitments.
SECTION 2.09. LENDING OFFICES.
The Loans of each Type made by each Lender shall be made and maintained
at such Lender's Applicable Lending Office for Loans of such Type.
25
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
SECTION 3.01. REPAYMENT OF LOANS.
(a) LOANS. On the Termination Date the Borrower shall repay the
outstanding aggregate principal amount of the Loans and all accrued and unpaid
interest thereon.
(b) GENERALLY. The Borrower will pay to the Agent, for the account of each
Lender, the principal payments required by this Section 3.01.
SECTION 3.02. INTEREST.
(a) INTEREST RATES. The Borrower will pay to the Agent, for the account of
each Lender, as appropriate, interest on the unpaid principal amount of each
Loan made by such Lender for the period commencing on the date such Loan is made
to, but excluding, the date such Loan shall be paid in full, at the following
rates per annum:
(i) if such a Loan is a Base Rate Loan, the Base Rate (as in effect
from time to time) plus the Applicable Margin, but in no event to exceed
the Highest Lawful Rate; and
(ii) if such a Loan is a LIBOR Loan, for each Interest Period
relating thereto, the LIBOR Rate for such Loan plus the Applicable Margin
(as in effect from time to time), but in no event to exceed the Highest
Lawful Rate.
(b) POST-DEFAULT RATE. Notwithstanding the foregoing, the Borrower will
pay to the Agent, for the account of each Lender interest at the applicable
Post-Default Rate on any principal of any Loan made by such Lender, and (to the
fullest extent permitted by law) on any other amount payable by the Borrower
hereunder or under any Loan Document for the period commencing on the date of an
Event of Default until the same is paid in full or all Events of Default are
cured or waived.
(c) DUE DATES. Accrued interest on Base Rate Loans shall be payable on
each Quarterly Date, and accrued interest on each LIBOR Loan shall be payable on
the last day of the Interest Period therefor and, if such Interest Period is
longer than three months, at three-month intervals following the first day of
such Interest Period, except that interest payable at the Post-Default Rate
shall be payable from time to time on demand and interest on any LIBOR Loan that
is converted into a Base Rate Loan pursuant to Section 5.04 shall be payable on
the date of conversion (but only to the extent so converted). All accrued and
unpaid interest on the Loans shall be paid on the Termination Date.
(d) DETERMINATION OF RATES. Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall notify
the Lenders and the Borrower thereof. Each determination by the Agent of an
interest rate or fee hereunder shall, except in cases of manifest error, be
final, conclusive and binding on the parties.
26
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
SECTION 4.01. PAYMENTS.
Except to the extent otherwise provided herein, all payments of principal,
interest and other amounts to be made by the Borrower under this Agreement shall
be made in Dollars, in immediately available funds, to the Agent at such account
as the Agent shall specify by notice to the Borrower from time to time, not
later than 11:00 a.m. Atlanta time on the date on which such payments shall
become due (each such payment made after such time on such due date to be deemed
to have been made on the next succeeding Business Day). Such payments shall be
made without (to the fullest extent permitted by applicable law) defense,
set-off or counterclaim. Each payment received by the Agent under this Agreement
for account of a Lender shall be paid promptly to such Lender in immediately
available funds. Except as otherwise provided in the definition of "Interest
Period", if the due date of any payment under this Agreement would otherwise
fall on a day which is not a Business Day such date shall be extended to the
next succeeding Business Day and interest shall be payable for any principal so
extended for the period of such extension. At the time of each payment to the
Agent of any principal of or interest on any borrowing, the Borrower shall
notify the Agent of the Loans to which such payment shall apply. In the absence
of such notice the Agent may specify the Loans to which such payment shall
apply, but to the extent possible such payment or prepayment will be applied
first to Base Rate Loans.
SECTION 4.02. PRO RATA TREATMENT.
Except to the extent otherwise provided herein, each Lender agrees that:
(i) each borrowing from the Lenders under Section 2.01 and each continuation and
conversion under Section 2.02 shall be made from the Lenders pro rata in
accordance with their Percentage Share, each payment of fees under Section
2.05(a) shall be made for account of the Lenders pro rata in accordance with
their Percentage Share, and each termination or reduction of the amount of the
Aggregate Revolving Credit Commitments under Section 2.03(a) shall be applied to
the Commitments of all Lenders, pro rata according to the amounts of their
respective Commitments; (ii) each payment of principal of Loans by the Borrower
shall be made for account of the Lenders pro rata in accordance with the
respective unpaid principal amount of the Loans held by the Lenders; and (iii)
each payment of interest on Loans by the Borrower shall be made for account of
the Lenders pro rata in accordance with the amounts of interest due and payable
to the respective Lenders.
SECTION 4.03. COMPUTATIONS.
Interest on LIBOR Loans, interest determined by reference to the Federal
Funds Rate and fees shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding the last day)
occurring in the period for which such interest is payable, unless such
calculation would exceed the Highest Lawful Rate, in which case interest shall
be calculated on the per annum basis of a year of 365 or 366 days, as the case
may be. Interest on Base Rate Loans determined by reference to the Prime Rate
shall be computed on the basis of a
27
year of 365 or 366 days, as the case may be, and actual days elapsed (including
the first day but excluding the last day) occurring in the period for which such
interest is payable.
SECTION 4.04. NON-RECEIPT OF FUNDS BY THE AGENT.
Unless the Agent shall have been notified by a Lender or the Borrower
prior to the date on which such notifying party is scheduled to make payment to
the Agent (in the case of a Lender) of the proceeds of a Loan to be made by it
hereunder or (in the case of the Borrower) a payment to the Agent for account of
one or more of the Lenders hereunder (such payment being herein called the
"REQUIRED PAYMENT"), which notice shall be effective upon receipt, that it does
not intend to make the Required Payment to the Agent, the Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient(s) on such date and, if such Lender or the Borrower (as the
case may be) has not in fact made the Required Payment to the Agent, the
recipient(s) of such payment shall, on demand, repay to the Agent the amount so
made available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the Agent
until, but excluding, the date the Agent recovers such amount at a rate per
annum which, for any Lender as recipient, will be equal to the Federal Funds
Rate, and for the Borrower as recipient, will be equal to the Base Rate plus the
Applicable Margin.
SECTION 4.05. SET-OFF, SHARING OF PAYMENTS, ETC.
(a) The Borrower agrees that, in addition to (and without limitation of)
any right of set-off, bankers' lien or counterclaim a Lender may otherwise have,
each Lender shall have the right and be entitled (after consultation with the
Agent), at its option, to offset balances held by it or by any of its Affiliates
for account of the Borrower, any Guarantor or any Restricted Subsidiary at any
of its offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans, or any other amount payable to such
Lender hereunder, which is not paid when due (regardless of whether such
balances are then due to the Borrower), in which case it shall promptly notify
the Borrower and the Agent thereof, provided that such Lender's failure to give
such notice shall not affect the validity thereof.
(b) If any Lender shall obtain payment of any principal of or interest on
any Loan made by it to the Borrower under this Agreement through the exercise of
any right of set-off, banker's lien or counterclaim or similar right or
otherwise, and, as a result of such payment, such Lender shall have received a
greater percentage of the principal or interest (or reimbursement) then due
hereunder by the Borrower to such Lender than the percentage received by any
other Lenders, it shall promptly (i) notify the Agent and each other Lender
thereof and (ii) purchase from such other Lenders participations in (or, if and
to the extent specified by such Lender, direct interests in) the Loans made by
such other Lenders (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses which may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal and/or interest on the Loans held by each of the Lenders. To
such end all the Lenders shall make appropriate adjustments among themselves (by
the resale of participations sold or otherwise) if such payment is rescinded or
must otherwise be restored.
28
The Borrower agrees that any Lender so purchasing a participation (or direct
interest) in the Loans made by other Lenders (or in interest due thereon, as the
case may be) may exercise all rights of set-off, banker's lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans in the amount of such participation. Nothing
contained herein shall require any Lender to exercise any such right or shall
affect the right of any Lender to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the Borrower. If under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a set-off to which this
Section 4.05 applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section 4.05 to share the benefits of any
recovery on such secured claim.
SECTION 4.06. TAXES.
(a) PAYMENTS FREE AND CLEAR. Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 4.01, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes imposed on its
income, and franchise or similar taxes imposed on it, by (i) any jurisdiction
(or political subdivision thereof) of which the Agent or such Lender, as the
case may be, is a citizen or resident or in which such Lender has an Applicable
Lending Office, (ii) the jurisdiction (or any political subdivision thereof) in
which the Agent or such Lender is organized, or (iii) any jurisdiction (or
political subdivision thereof) in which such Lender or the Agent is presently
doing business which taxes are imposed solely as a result of doing business in
such jurisdiction (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "TAXES").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder to the Lenders or the Agent (i) the sum payable
shall be increased by the amount necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 4.06) such Lender or the Agent (as the case may be) shall receive
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxing authority or other
Governmental Authority in accordance with applicable law.
(b) OTHER TAXES. In addition, to the fullest extent permitted by
applicable law, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, any
Assignment Agreement or any other Loan Document (hereinafter referred to as
"OTHER TAXES").
(c) INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE BORROWER WILL INDEMNIFY EACH LENDER AND THE AGENT FOR THE FULL AMOUNT OF
TAXES (AS DEFINED ABOVE) AND OTHER TAXES (INCLUDING, BUT NOT LIMITED TO, ANY
TAXES OR OTHER TAXES IMPOSED BY ANY GOVERNMENTAL AUTHORITY ON AMOUNTS PAYABLE
UNDER THIS SECTION 4.06) PAID BY SUCH LENDER OR THE AGENT (ON THEIR BEHALF OR ON
BEHALF OF ANY LENDER), AS THE CASE MAY BE, AND ANY LIABILITY
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(INCLUDING PENALTIES, INTEREST AND EXPENSES) ARISING THEREFROM OR WITH RESPECT
THERETO, WHETHER OR NOT SUCH TAXES OR OTHER TAXES WERE CORRECTLY OR LEGALLY
ASSERTED UNLESS THE PAYMENT OF SUCH TAXES WAS NOT CORRECTLY OR LEGALLY ASSERTED
AND SUCH LENDER'S PAYMENT OF SUCH TAXES OR OTHER TAXES WAS THE RESULT OF ITS
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ANY PAYMENT PURSUANT TO SUCH
INDEMNIFICATION SHALL BE MADE WITHIN THIRTY (30) DAYS AFTER THE DATE ANY LENDER
OR THE AGENT, AS THE CASE MAY BE, MAKES WRITTEN DEMAND THEREFOR. IF ANY LENDER
OR THE AGENT RECEIVES A REFUND OR CREDIT IN RESPECT OF ANY TAXES OR OTHER TAXES
FOR WHICH SUCH LENDER OR THE AGENT HAS RECEIVED PAYMENT FROM THE BORROWER IT
SHALL PROMPTLY NOTIFY THE BORROWER OF SUCH REFUND OR CREDIT AND SHALL, IF NO
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, WITHIN THIRTY (30) DAYS AFTER
RECEIPT OF A REQUEST BY THE BORROWER (OR PROMPTLY UPON RECEIPT, IF THE BORROWER
HAS REQUESTED APPLICATION FOR SUCH REFUND OR CREDIT PURSUANT HERETO), PAY AN
AMOUNT EQUAL TO SUCH REFUND OR CREDIT TO THE BORROWER WITHOUT INTEREST (BUT WITH
ANY INTEREST SO REFUNDED OR CREDITED), PROVIDED THAT THE BORROWER, UPON THE
REQUEST OF SUCH LENDER OR THE AGENT, AGREES TO RETURN SUCH REFUND OR CREDIT
(PLUS PENALTIES, INTEREST OR OTHER CHARGES) TO SUCH LENDER OR THE AGENT IN THE
EVENT SUCH LENDER OR THE AGENT IS REQUIRED TO REPAY SUCH REFUND OR CREDIT.
(d) FOREIGN LENDERS, PARTICIPANTS AND ASSIGNEES.
Each Lender, participant (by accepting a participation interest under this
Agreement) and assignee (by executing an Assignment Agreement) that is not
organized under the laws of the United States of America or one of its states
(1) represents to the Agent and the Borrower that (A) no taxes are required to
be withheld by the Agent or the Borrower with respect to any payments to be made
to it hereunder and (B) it has furnished to the Agent and the Borrower two duly
completed copies of either U.S. Internal Revenue Service Form W-8BEN or W-8ECI
or any other form acceptable to the Agent and the Borrower that entitles it to a
complete exemption from U.S. federal withholding tax on all interest or fee
payments under the Loan Documents, and (2) covenants to (A) provide the Agent
and the Borrower a new Form W-8BEN or W-8ECI or other form acceptable to the
Agent and the Borrower upon the expiration or obsolescence according to
Governmental Requirement of any previously delivered form, duly executed and
completed by it, entitling it to a complete exemption from U.S. federal
withholding tax on all interest and fee payments under the Loan Documents, and
(B) comply from time to time with all Governmental Requirements with regard to
the withholding tax exemption. If any of the foregoing is not true at any time
or the applicable forms are not provided, then the Borrower and the Agent
(without duplication), notwithstanding any other provision of this Section 4.06,
may deduct and withhold from interest and fee payments under the Loan Documents
any tax at the maximum rate under the Code or other applicable Governmental
Requirement, and amounts so deducted and withheld shall be treated as paid to
that Lender, participant or assignee, as the case may be, for all purposes under
the Loan Documents.
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ARTICLE V
YIELD PROTECTION
SECTION 5.01. ADDITIONAL COSTS.
(a) LIBOR REGULATIONS, ETC. The Borrower shall pay directly to each Lender
from time to time such amounts as such Lender may reasonably determine to be
necessary to compensate such Lender for any costs that it determines are
attributable to its making or maintaining of any LIBOR Loans or its obligation
to make any LIBOR Loans, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such LIBOR Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"ADDITIONAL COSTS"), resulting from any Regulatory Change that: (i) changes the
basis of taxation of any amounts payable to such Lender under this Agreement in
respect of any of such LIBOR Loans (other than taxes imposed on the overall net
income of such Lender or of its Applicable Lending Office for any of such LIBOR
Loans by the jurisdiction in which such Lender has its principal office or
Applicable Lending Office); or (ii) imposes or modifies any reserve, special
deposit, minimum capital, capital ratio or similar requirements relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of such Lender, or the Commitment or Loans of such Lender or the
London interbank market; or (iii) imposes any other condition affecting this
Agreement (or any of such extensions of credit or liabilities) or such Lender's
Commitment or Loans. Each Lender will notify the Agent and the Borrower of any
event occurring after the date hereof that will entitle such Lender to
compensation pursuant to this Section 5.01(a) as promptly as practicable after
it obtains knowledge thereof and determines to request such compensation, and
will designate a different Applicable Lending Office for the Loans of such
Lender affected by such event if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole opinion of
such Lender, be disadvantageous to such Lender, provided that such Lender shall
have no obligation to so designate an Applicable Lending Office located in the
United States. If any Lender requests compensation from the Borrower under this
Section 5.01(a), the Borrower may, by notice to such Lender, suspend the
obligation of such Lender to make additional Loans of the Type with respect to
which such compensation is requested until the Regulatory Change giving rise to
such request ceases to be in effect (in which case the provisions of Section
5.04 shall be applicable).
(b) CAPITAL ADEQUACY. Without limiting the effect of the foregoing
provisions of this Section 5.01 (but without duplication), the Borrower shall
pay directly to any Lender from time to time on request such amounts as such
Lender may reasonably determine to be necessary to compensate such Lender or its
parent or holding company for any costs which it determines are attributable to
the maintenance by such Lender or its parent or holding company (or any
Applicable Lending Office), pursuant to any Governmental Requirement following
any Regulatory Change, of capital in respect of its Commitment, or its Loans,
such compensation to include, without limitation, an amount equal to any
reduction of the rate of return on assets or equity of such Lender or its parent
or holding company (or any Applicable Lending Office) to a level below that
which such Lender or its parent or holding company (or any Applicable Lending
Office) could have achieved but for such Governmental Requirement. Such Lender
will notify the Borrower that it is entitled to compensation pursuant to this
Section 5.01(b) as promptly as practicable after it determines to request such
compensation.
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(c) COMPENSATION PROCEDURE. Any Lender notifying the Borrower of the
incurrence of additional costs under this Section 5.01 shall in such notice to
the Borrower and the Agent set forth in reasonable detail the basis and amount
of its request for compensation. Determinations and allocations by each Lender
for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to Section 5.01(a), or of the effect of capital maintained pursuant to
Section 5.01(b), on its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it in respect of Loans,
and of the amounts required to compensate such Lender under this Section 5.01,
shall be conclusive and binding for all purposes, provided that such
determinations and allocations are made on a reasonable basis. Any request for
additional compensation under this Section 5.01 shall be paid by the Borrower
within 30 days of the receipt by the Borrower of the notice described in this
Section 5.01(c).
(d) The Lenders shall determine the applicability of, and the amount due
under, this Section 5.01 consistent with the manner in which they apply similar
provisions and calculate similar amounts payable to them by other borrowers
having in their credit agreements provisions comparable to this Section.
SECTION 5.02. BASIS UNAVAILABLE OR INADEQUATE FOR LIBOR RATE.
If, on or before any date when a LIBOR Rate is to be determined, the
Agent reasonably determines that the basis for determining the applicable rate
is not available or any Lender reasonably determines that the resulting rate
does not accurately reflect the cost to that Lender of making or converting
Loans at that rate for the applicable Interest Period, then the Agent shall
promptly notify the Borrower and the Lenders of that determination (which is
conclusive and binding on the Borrower absent manifest error) and the applicable
Loans shall bear interest at the sum of the Base Rate plus the Applicable
Margin. Until the Agent notifies the Borrower that those circumstances no longer
exist, the Lenders' commitments under this Agreement to make, or to convert to,
LIBOR Rate Loans, as the case may be, are suspended.
SECTION 5.03. ILLEGALITY.
Notwithstanding any other provision of this Agreement, in the event that
it becomes unlawful for any Lender or its Applicable Lending Office to honor its
obligation to make or maintain LIBOR Loans hereunder, then such Lender shall
promptly notify the Borrower thereof and such Lender's obligation to make LIBOR
Loans shall be suspended until such time as such Lender may again make and
maintain LIBOR Loans (in which case the provisions of Section 5.04 shall be
applicable).
SECTION 5.04. BASE RATE LOANS
If the obligation of any Lender to make LIBOR Loans shall be suspended
pursuant to Sections 5.01, 5.02 or 5.03 ("AFFECTED LOANS"), all Affected Loans
that would otherwise be made by such Lender shall be made instead as Base Rate
Loans (and, if an event referred to in Section 5.01(b) or Section 5.03 has
occurred and such Lender so requests by notice to the Borrower, all Affected
Loans of such Lender then outstanding shall be automatically converted into Base
Rate Loans on the date specified by such Lender in such notice) and, to the
extent that Affected Loans are so made as (or converted into) Base Rate Loans,
all payments of principal
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that would otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans.
SECTION 5.05. COMPENSATION.
The Borrower shall pay to each Lender within 30 days of receipt of written
request of such Lender (which request shall set forth, in reasonable detail, the
basis for requesting such amounts and which shall be conclusive and binding for
all purposes provided that such determinations are made on a reasonable basis),
such amounts as shall compensate it for any loss, cost, expense or liability
which such Lender reasonably determines are attributable to:
(i) any payment, prepayment or conversion of a LIBOR Loan properly
made by such Lender or the Borrower for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 10.01) on a
date other than the last day of the Interest Period for such Loan; or
(ii) any failure by the Borrower for any reason (including but not
limited to, the failure of any of the conditions precedent specified in
Article VI to be satisfied) to borrow, continue or convert a LIBOR Loan
from such Lender on the date for such borrowing, continuation or
conversion specified in the relevant notice given pursuant to Section
2.02(c).
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (A) the amount of interest
which would have accrued on the principal amount so paid, prepaid or converted
or not borrowed for the period from the date of such payment, prepayment or
conversion or failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for such Loan
which would have commenced on the date specified for such borrowing) at the
applicable rate of interest for such Loan provided for herein over (B) the
interest component of the amount such Lender would have bid in the London
interbank market for Dollar deposits of leading banks in amounts comparable to
such principal amount and with maturities comparable to such period (as
reasonably determined by such Lender).
SECTION 5.06. REPLACEMENT LENDERS.
(a) If any Lender has notified the Borrower and the Agent of its incurring
additional costs under Section 5.01 or has required the Borrower to make
payments for Taxes under Section 4.06, then the Borrower may, unless such Lender
has notified the Borrower and the Agent that the circumstances giving rise to
such notice no longer apply, terminate, in whole but not in part, the Commitment
of any Lender (other than the Agent) (the "TERMINATED LENDER") at any time upon
five Business Days' prior written notice to the Terminated Lender and the Agent
(such notice referred to herein as a "NOTICE OF TERMINATION").
(b) In order to effect the termination of the Commitment of the Terminated
Lender, the Borrower shall: (i) obtain an agreement with one or more Lenders to
increase their Commitment or Commitments and/or (ii) request any one or more
other banking institutions to become parties to this Agreement in place and
instead of such Terminated Lender and agree to accept a Commitment or
Commitments; provided, however, that such one or more other banking
33
institutions are reasonably acceptable to the Agent and become parties by
executing an Assignment Agreement (the Lenders or other banking institutions
that agree to accept in whole or in part the Commitment of the Terminated Lender
being referred to herein as the "REPLACEMENT LENDERS"), such that the aggregate
increased and/or accepted Commitments of the Replacement Lenders under clauses
(i) and (ii) above equal the Commitment of the Terminated Lender.
(c) The Notice of Termination shall include the name of the Terminated
Lender, the date the termination will occur (the "LENDER TERMINATION DATE"), and
the Replacement Lender or Replacement Lenders to which the Terminated Lender
will assign its Commitment and, if there will be more than one Replacement
Lender, the portion of the Terminated Lender's Commitment to be assigned to each
Replacement Lender.
(d) On the Lender Termination Date, (i) the Terminated Lender shall by
execution and delivery of an Assignment Agreement assign its Commitment to the
Replacement Lender or Replacement Lenders (pro rata, if there is more than one
Replacement Lender, in proportion to the portion of the Terminated Lender's
Commitment to be assigned to each Replacement Lender) indicated in the Notice of
Termination and shall assign to the Replacement Lender or Replacement Lenders
each of its Loans (if any) then outstanding pro rata as aforesaid) and (ii) the
Replacement Lender or Replacement Lenders will thereupon (pro rata as aforesaid)
succeed to and be substituted in all respects for the Terminated Lender with
like effect as if becoming a Lender pursuant to the terms of Section 12.06(b),
and the Terminated Lender will have the rights and benefits of an assignor under
Section 12.06(b). To the extent not in conflict, the terms of Section 12.06(b)
shall supplement the provisions of this Section 5.06(d). For each assignment
made under this Section 5.06, the Replacement Lender shall pay to the Agent the
processing fee provided for in Section 12.06(b). The Borrower will be
responsible for the payment of any breakage costs associated with termination
and Replacement Lenders, as set forth in Section 5.05.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01. INITIAL FUNDING.
The obligation of the Lenders to make the Initial Funding is subject to,
on or before the date of the Initial Funding, (i) the Agent's having completed a
review satisfactory to it of the environmental files of the Borrower and the
Restricted Subsidiaries, and (ii) the receipt by the Lenders and Agent of all
fees due and payable as of such date and the following documents, each of which
shall be satisfactory to the Agent in form and substance:
(a) A certificate of the Secretary or an Assistant Secretary of the
General Partner and each Guarantor setting forth (i) resolutions of its board of
directors with respect to the authorization of the Borrower and each Guarantor
to execute and deliver the Loan Documents to which such Person is a party and to
enter into the transactions contemplated in those documents, (ii) the officers
of the General Partner and each Guarantor (y) who are authorized to sign the
Loan Documents to which such Person is a party and (z) who will, until replaced
by another officer or officers duly authorized for that purpose, act as its
representatives for the purposes of
34
signing documents and giving notices and other communications in connection with
this Agreement and the transactions contemplated hereby, (iii) specimen
signatures of the authorized officers of the Borrower and each Guarantor, (iv)
the articles or certificate of incorporation and bylaws or the partnership
agreement, as applicable, of the General Partner and each Guarantor and the
Borrower Partnership Agreement, each certified as being true and complete. The
Agent and the Lenders may conclusively rely on such certificates until the Agent
receives notice in writing from the Borrower or such Guarantor, as the case may
be, to the contrary, and (iv) copies of all governmental approvals required in
connection with the execution, delivery and performance of the Loan Documents by
each party thereto, other than the Agent and the Lenders.
(b) Certificates of the appropriate state agencies with respect to the
existence, qualification and good standing, as appropriate, of the Borrower,
each Guarantor and the General Partner.
(c) A Compliance Certificate for the fiscal quarter ending June 30, 2002
duly and properly executed by a Responsible Officer and dated as of the date of
the Initial Funding.
(d) A promissory note payable to the order of each Lender that requests
one pursuant to Section 2.07.
(e) The Loan Documents, duly completed and executed in sufficient number
of counterparts as reasonably requested by the Agent.
(f) Opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Borrower and
the Guarantors and certain local counsel to the Borrower and the Guarantors,
each in form and substance satisfactory to the Agent, as to such matters
incident to the transactions herein contemplated as the Agent may reasonably
request.
(g) A certificate of insurance coverage of the Borrower evidencing that
the Borrower is carrying insurance in accordance with Section 7.19.
(h) Evidence that, upon the application of the proceeds of the Initial
Funding, the commitments of the lenders under the Existing Credit Agreement
shall be terminated and the obligations of the Borrower and the Restricted
Subsidiaries under the Existing Credit Agreement shall be paid in full.
(i) Such other documents as the Agent or any Lender or special counsel to
the Agent may reasonably request.
SECTION 6.02. INITIAL AND SUBSEQUENT LOANS.
The obligation of the Lenders to make Loans to the Borrower upon the
occasion of each borrowing hereunder (including the Initial Funding) is subject
to the further conditions precedent that, as of the date of such Loans and after
giving effect thereto:
(a) no Default shall have occurred and be continuing; and
35
(b) the representations and warranties made by the Borrower in Article VII
and by the Borrower and each Guarantor in any other Loan Document shall be true
on and as of the date of the making of such Loans with the same force and effect
as if made on and as of such date and following such new borrowing, except to
the extent such representations and warranties are expressly limited to an
earlier date or the Required Lenders may expressly consent in writing to the
contrary.
Each request for a borrowing by the Borrower hereunder shall constitute a
certification by the Borrower to the effect set forth in Section 6.02(b) (both
as of the date of such notice and immediately following such borrowing).
SECTION 6.03. CONDITIONS PRECEDENT TO EACH EXTENSION OF TERMINATION DATE.
In the event that the Borrower shall request an extension of the
Termination Date pursuant to Section 2.04, such extension shall take effect only
upon the satisfaction of the following conditions precedent:
(a) the Borrower shall have paid all fees payable hereunder, to the extent
then due and payable;
(b) the Agent shall have received such other documents and legal opinions
in respect of any aspect or consequence of the transactions contemplated by
Section 2.04 as the Agent shall reasonably request, including, without
limitation, copies of the resolutions, in form and substance satisfactory to the
Agent, of the directors of the Borrower's general partner authorizing the
extension of the Termination Date; and
(c) the following statements shall be true on and as of the last day of
the then-current Termination Date:
(i) The representations and warranties contained in Article VII are
correct in all material respects on and as of such date as though made on
and as of such date (unless they speak to a specified date or are based on
facts that have changed by transactions contemplated or expressly
permitted by this Agreement); and
(ii) No event has occurred and is continuing, or would result from
such extension of the Termination Date, that constitutes an Event of
Default or a Default.
SECTION 6.04. CONDITIONS PRECEDENT FOR THE BENEFIT OF LENDERS.
All conditions precedent to the obligations of the Lenders to make any
Loan are imposed hereby solely for the benefit of the Lenders, and no other
Person may require satisfaction of any such condition precedent or be entitled
to assume that the Lenders will refuse to make any Loan in the absence of strict
compliance with such conditions precedent.
SECTION 6.05. NO WAIVER.
No waiver of any condition precedent shall preclude the Agent or the
Lenders
36
from requiring such condition to be met prior to making any subsequent Loan or
preclude the Lenders from thereafter declaring that the failure of the Borrower
to satisfy such condition precedent constitutes a Default.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and the Lenders that
(each representation and warranty herein is given as of the date hereof and
shall be deemed repeated and reaffirmed on the dates of each borrowing):
SECTION 7.01. EXISTENCE.
Each of the Borrower, the General Partner, each Guarantor, and each
Restricted Subsidiary: (i) is duly organized, legally existing and in good
standing under the laws of the jurisdiction of its formation; (ii) has all
requisite power, and has all material governmental licenses, authorizations,
consents and approvals necessary to own its assets and carry on its business as
now being or as proposed to be conducted and, with respect to Restricted
Subsidiaries, where a failure to have such items would have a Material Adverse
Effect; and (iii) is qualified to do business in all jurisdictions in which the
nature of the business conducted by it makes such qualification necessary and
where failure so to qualify would have a Material Adverse Effect.
SECTION 7.02. FINANCIAL CONDITION.
The audited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at December 31, 2001 and the related consolidated
statement of income, equity and cash flow of the Borrower and its Consolidated
Subsidiaries for the fiscal year ended on said date, with the opinion thereon of
Deloitte & Touche LLP heretofore furnished to each of the Lenders and the
unaudited consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at June 30, 2002 and the related consolidated statements of
income, equity and cash flow of the Borrower and its Consolidated Subsidiaries
for the six month period ended on such date heretofore furnished to the Agent,
are complete and correct and fairly present in all material respects the
consolidated financial condition of the Borrower and its Consolidated
Subsidiaries as at said dates and the results of its operations for the fiscal
year and the six month period ending on said dates, all in accordance with GAAP,
as applied on a consistent basis (subject, in the case of the interim financial
statements, to normal year-end adjustments and, the lack of footnotes). Neither
the Borrower nor any Subsidiary of the Borrower has on the date hereof any
material Debt, contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in the Financial
Statements or in Schedule 7.02. Since December 31, 2001, there has been no
change or event having a Material Adverse Effect that is continuing. Since the
date of the Financial Statements, neither the business nor the Properties (taken
as a whole) of the Borrower, any Guarantor or any Restricted Subsidiary have
been materially and adversely affected as a result of any fire, explosion,
earthquake, flood, drought, windstorm, accident, strike or other labor
disturbance, embargo, requisition or taking of Property or cancellation of
contracts, permits or concessions by any Governmental Authority, riot,
activities of armed forces or acts of God or of any public enemy which is
continuing.
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SECTION 7.03. LITIGATION.
Except as disclosed to the Lenders in Schedule 7.03 hereto or as disclosed
in the Borrower's Form 10-K for the year ended December 31, 2001 filed with the
SEC (a true and complete copy of which has been delivered to the Agent), as of
the date hereof there is no litigation, legal, administrative or arbitral
proceeding, investigation or other action of any nature pending or, to the
knowledge of the Borrower threatened against or affecting the Borrower, the
General Partner or any Restricted Subsidiary that involves the possibility of
any judgment or liability against the Borrower, the Guarantor, the General
Partner or any Restricted Subsidiary not fully covered by insurance (except for
normal deductibles), and which, if determined adversely, would have a Material
Adverse Effect.
SECTION 7.04. NO BREACH.
Neither the execution and delivery of the Loan Documents, nor compliance
with the terms and provisions hereof will conflict with or result in a breach
of, or require any consent which has not been obtained as of the date hereof
under, the respective partnership agreements or other organizational documents
of the Borrower, the General Partner or any Restricted Subsidiary, or any
Governmental Requirement or any agreement or instrument to which the Borrower,
the Guarantor, the General Partner or any Restricted Subsidiary is a party or by
which it is bound or to which it or its Properties are subject, or constitute a
default under any such agreement or instrument, or result in the creation or
imposition of any Lien upon any of the revenues or assets of the Borrower, the
Guarantor, the General Partner or any Restricted Subsidiary pursuant to the
terms of any such agreement or instrument, other than the Liens created by the
Loan Documents.
SECTION 7.05. AUTHORITY.
Each of the Borrower, each Guarantor, the General Partner and each
Restricted Subsidiary has all necessary power and authority to execute, deliver
and perform its obligations under the Loan Documents to which it is a party; and
the execution, delivery and performance by each of the Borrower, each Guarantor,
the General Partner and each Restricted Subsidiary of the Loan Documents to
which it is a party, have been duly authorized by all necessary action on its
part; and each Loan Document to which the Borrower, any Guarantor, the General
Partner or any Restricted Subsidiary is a party, constitutes the legal, valid
and binding obligation of the Borrower, such Guarantor, the General Partner or
such Restricted Subsidiary, as the case may be, and is enforceable in accordance
with its terms, except as limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws of general application
relating to or affecting creditors' rights and general principles of equity.
SECTION 7.06. APPROVALS.
No authorizations, approvals or consents of, and no filings or
registrations with, any Governmental Authority are necessary for the execution,
delivery or performance by the Borrower, the Guarantors, the General Partner or
the Restricted Subsidiaries of the Loan Documents or for the validity or
enforceability thereof, except for the order of the Pennsylvania Public Utility
Commission, in Docket No. S-00010868, registering an Abbreviated Securities
38
Certificate authorizing Buckeye Pipe Line Company, L.P. to enter into the
Guaranty, which has been duly filed or obtained, and is final and in full force
and effect.
SECTION 7.07. USE OF LOANS.
The proceeds of the Loans shall be used to pay-off certain outstanding
Debt and for working capital, capital expenditures, acquisitions and general
partnership purposes. The Borrower is not engaged principally, or as one of its
important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying margin stock
(within the meaning of Regulation T, U or X of the Board of Governors of the
Federal Reserve System) and no part of the proceeds of any Loan hereunder will
be used to buy or carry any margin stock.
SECTION 7.08. ERISA.
(a) The Borrower, each Subsidiary of the Borrower and each ERISA Affiliate
have complied in all material respects with ERISA and, where applicable, the
Code regarding each Plan.
(b) Each Plan is, and has been, maintained in substantial compliance with
ERISA and, where applicable, the Code.
(c) To the knowledge of the Borrower, no act, omission or transaction has
occurred that could result in imposition on the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate (whether directly or indirectly) of (i) either a
civil penalty assessed pursuant to Section 502(c), (i) or (l) of ERISA or a tax
imposed pursuant to Chapter 43 of Subtitle D of the Code or (ii) breach of
fiduciary duty liability damages under section 409 of ERISA.
(d) No Plan (other than a defined contribution plan) or any trust created
under any such Plan has been terminated since December 31, 1985, other than the
Pension Plan for Buckeye Pipe Line Company, which was terminated on December 31,
1985. Upon the termination of the Pension Plan for Buckeye Pipe Line Company,
distributions were made or annuities purchased for each participant under such
plan and Borrower received a favorable determination letter from the Internal
Revenue Service with respect to the termination. No material liability to the
PBGC (other than for the payment of current premiums which are not past due) by
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate has been or
is expected by the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate to be incurred with respect to any Plan. No ERISA Event with respect
to any Plan has occurred or is reasonably expected to be incurred.
(e) Full payment when due has been made of all amounts which the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate is required under the
terms of each Plan or applicable law to have paid as contributions to such Plan,
and no accumulated funding deficiency (as defined in section 302 of ERISA and
section 412 of the Code), whether or not waived, exists with respect to any
Plan.
(f) The actuarial present value of the benefit liabilities under all Plans
that are subject to Title IV of ERISA do not, as of the end of the Borrower's
most recently ended fiscal year,
39
exceed the current value of the assets (computed on a plan termination basis in
accordance with Title IV of ERISA) of such Plans allocable to such benefit
liabilities by more than $2,000,000 in the aggregate. The term "actuarial
present value of the benefit liabilities" shall have the meaning specified in
section 4041 of ERISA.
(g) None of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate sponsors, maintains, or contributes to an employee welfare benefit
plan, as defined in section 3(l) of ERISA, including, without limitation, any
such plan maintained to provide benefits to former employees of such entities,
that may not be terminated by the Borrower, such Subsidiary or such ERISA
Affiliate in its sole discretion at any time without any material liability.
(h) None of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate sponsors, maintains or contributes to, or has at any time in the
preceding six calendar years, sponsored, maintained or contributed to, any
Multiemployer Plan.
(i) Neither the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate is required to provide security under section 401(a)(29) of the Code
due to a Plan amendment that results in an increase in current liability for the
Plan.
SECTION 7.09. TAXES.
Each of the Borrower, the Guarantors, the General Partner and the
Restricted Subsidiaries has filed all United States Federal income tax returns
and all other tax returns which are required to be filed by them and have paid
all material taxes due pursuant to such returns or pursuant to any assessment
received by the Borrower, any Guarantor, the General Partner or any Restricted
Subsidiary. The charges, accruals and reserves on the books of the Borrower, the
Guarantors, the General Partner and the Restricted Subsidiaries in respect of
taxes and other governmental charges are, in the opinion of the Borrower,
adequate. No tax lien has been filed and, to the knowledge of the Borrower, no
claim is being asserted with respect to any such tax, fee or other charge.
SECTION 7.10. TITLES, ETC.
(a) Except as set out in Schedule 7.10, each of the Borrower, the
Guarantors and the Restricted Subsidiaries has good and defensible title to its
material (individually or in the aggregate) Properties, free and clear of all
Liens, except Liens permitted by Section 9.02.
(b) All leases and agreements necessary for the conduct of the business of
the Borrower, the Guarantors and the Restricted Subsidiaries are valid and
subsisting, in full force and effect, except as could not reasonably be expected
to have a Material Adverse Effect, and there exists no default or event or
circumstance which with the giving of notice or the passage of time or both
would give rise to a default under any such lease or leases, which would affect
in any material respect the conduct of the business of the Borrower, the
Guarantors or the Restricted Subsidiaries.
(c) The rights, Properties and other assets presently owned, leased or
licensed by the Borrower, the Guarantors and the Restricted Subsidiaries
including, without limitation, all easements and rights of way, include all
rights, Properties and other assets necessary to permit
40
the Borrower, each Guarantor and each Restricted Subsidiary to conduct its
business in all material respects in the same manner as its business has been
conducted prior to the date hereof.
(d) All of the assets and Properties of the Borrower, the Guarantors and
the Restricted Subsidiaries that are reasonably necessary for the operation of
their business are in all material respects in good working condition and are
maintained in accordance with prudent business standards.
SECTION 7.11. NO MATERIAL MISSTATEMENTS.
No written information, statement, exhibit, certificate, document or
report furnished to the Agent and the Lenders (or any of them) by the Borrower,
any Guarantor or any Restricted Subsidiary in connection with the negotiation of
this Agreement contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statement contained therein not
materially misleading in the light of the circumstances in which made. There is
no fact peculiar to the Borrower or any Restricted Subsidiary that has a
Material Adverse Effect or in the future is reasonably likely to have (so far as
the Borrower can now foresee) a Material Adverse Effect and that has not been
set forth in this Agreement or the other documents, certificates and statements
furnished to the Agent by or on behalf of the Borrower or any Restricted
Subsidiary prior to, as of, the date hereof in connection with the transactions
contemplated hereby.
SECTION 7.12. INVESTMENT COMPANY ACT.
None of the Borrower, any Guarantor or any Restricted Subsidiary is an
"investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
SECTION 7.13. PUBLIC UTILITY HOLDING COMPANY ACT.
None of the Borrower, any Guarantor or any Restricted Subsidiary is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
SECTION 7.14. SUBSIDIARIES.
Except as set forth on Schedule 7.14 or otherwise as disclosed to the
Agent in writing, the Borrower does not have any Subsidiaries.
SECTION 7.15. LOCATION OF BUSINESS AND OFFICES.
The Borrower's principal place of business and chief executive office is
located at the address stated on the signature page of this Agreement or as
otherwise disclosed in writing to the Agent. The principal place of business and
chief executive office of each Restricted Subsidiary are located at the
addresses stated on Schedule 7.14 or as otherwise disclosed in writing to the
Agent.
41
SECTION 7.16. DEFAULTS.
None of the Borrower, any Guarantor or any Restricted Subsidiary is in
default nor has any event or circumstance occurred which, but for the expiration
of any applicable grace period or the giving of notice, or both, would
constitute a default under any material agreement or instrument to which it is a
party or by which it is bound which default would have a Material Adverse
Effect. No Default hereunder has occurred and is continuing.
SECTION 7.17. ENVIRONMENTAL MATTERS.
Except (i) as provided in Schedule 7.17, (ii) as disclosed in the Form
10-K for the year ended December 31, 2001 filed by the Borrower with the SEC, or
(iii) as would not have a Material Adverse Effect (or with respect to (c), (d)
and (e) below, where the failure to take such actions would not have a Material
Adverse Effect):
(a) Neither any Property of the Borrower, any Guarantor or any Restricted
Subsidiary nor the operations conducted thereon violate any order or requirement
of any court or Governmental Authority or any Environmental Laws;
(b) Without limitation of clause (a) above, no Property of the Borrower,
any Guarantor or any Restricted Subsidiary nor the operations currently
conducted thereon or, to the best knowledge of the Borrower, by any prior owner
or operator of such Property or operation, are in violation of or subject to any
existing, pending or threatened action, suit, investigation, inquiry or
proceeding by or before any court or Governmental Authority or to any remedial
obligations under Environmental Laws;
(c) All notices, permits, licenses or similar authorizations, if any,
required to be obtained or filed in connection with the operation or use of any
and all Property of the Borrower, each Guarantor and each Restricted Subsidiary,
including without limitation past or present treatment, storage, disposal or
release of a hazardous substance, hazardous waste or solid waste into the
environment, have been duly obtained or filed, and each of the Borrower, the
Guarantors and the Restricted Subsidiaries are in compliance with the terms and
conditions of all such notices, permits, licenses and similar authorizations;
(d) All hazardous substances, hazardous waste, solid waste, and oil and
gas exploration and production wastes, if any, generated at any and all Property
of the Borrower, any Guarantor or any Restricted Subsidiary have in the past
been transported, treated and disposed of in accordance with Environmental Laws
and so as not to pose an endangerment to public health or welfare or the
environment, and, to the best knowledge of the Borrower, all such transport
carriers and treatment and disposal facilities have been and are operating in
compliance with Environmental Laws and so as not to pose an imminent and
substantial endangerment to public health or welfare or the environment, and are
not the subject of any existing, pending or threatened action, investigation or
inquiry by any Governmental Authority in connection with any Environmental Laws;
(e) The Borrower, the Guarantors and the Restricted Subsidiaries have
taken all steps reasonably necessary to determine and have determined that no
hazardous substances, hazardous waste, solid waste, or oil and gas exploration
and production wastes, have been disposed of or
42
otherwise released and there has been no threatened release of any hazardous
substances on or to any Property of the Borrower, any Guarantor, or any
Restricted Subsidiary;
(f) To the extent applicable, all Property of the Borrower, each Guarantor
and each Restricted Subsidiary currently satisfies all design, operation, and
equipment requirements imposed by the Environmental Laws or scheduled as of the
date hereof to be imposed by the Environmental Laws during the term of this
Agreement, and the Borrower does not have any reason to believe that such
Property, to the extent subject to the Environmental Laws, will not be able to
maintain compliance with the Environmental Laws requirements during the term of
this Agreement; and
(g) None of the Borrower, any Guarantor or any Restricted Subsidiary has
any known contingent liability in connection with any release or threatened
release of any oil, hazardous substance, hazardous waste or solid waste into the
environment.
SECTION 7.18. COMPLIANCE WITH THE LAW.
None of the Borrower, any Guarantor or any Restricted Subsidiary has
violated any Governmental Requirement or failed to obtain any license, permit,
franchise or other governmental authorization necessary for the ownership of any
of its Properties or the conduct of its business, which violation or failure
would have (in the event such violation or failure were asserted by any Person
through appropriate action) a Material Adverse Effect.
SECTION 7.19. INSURANCE.
The Borrower and each of the Restricted Subsidiaries maintains, with
financially sound and reputable insurers, insurance with respect to their
respective Properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
All such policies are in full force and effect, all premiums with respect
thereto covering all periods up to and including the date of the closing have
been paid, and no notice of cancellation or termination has been received with
respect to any such policy. Such policies are sufficient for compliance with all
requirements of law and of all agreements to which the Borrower, any Guarantor,
or any Restricted Subsidiary is a party; are valid, outstanding and enforceable
policies; provide adequate insurance coverage in at least such amounts and
against at least such risks (but including in any event public liability) as are
usually insured against in the same general area by companies engaged in the
same or a similar business for the assets and operations of the Borrower, each
Guarantor and each Restricted Subsidiary.
SECTION 7.20. MATERIAL AGREEMENTS.
The Borrower has heretofore delivered to the Agent a complete and correct
copy of the Indenture and the Note Agreement relating to the Senior Notes, each
as amended and in effect on the date hereof.
43
SECTION 7.21. PARTNERSHIP AGREEMENT.
The Borrower Partnership Agreement has not been terminated, and is in full
force and effect as of the date hereof and no default has occurred and is
continuing thereunder which would have a Material Adverse Effect.
SECTION 7.22. OWNERSHIP OF PARTIES.
(a) The Borrower is a limited partnership formed under the laws of the
State of Delaware and owned 1% (general partnership interest) by the General
Partner and 99% (limited partnership interests) by public holders of limited
partnership units.
(b) The form of organization and equity ownership of each Restricted
Subsidiary and each Unrestricted Subsidiary as of the date hereof is set forth
on Schedule 7.22.
(c) BMC owns 100% of the capital stock of the General Partner as of the
date hereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, so long as any of the Commitments
are in effect and until payment in full of all Loans hereunder, all interest
thereon and all other amounts payable by the Borrower hereunder and the
Guarantors under the Guaranty:
SECTION 8.01. REPORTING REQUIREMENTS.
The Borrower shall deliver, or shall cause to be delivered, to the Agent
with sufficient copies of each for the Lenders:
(a) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
within 120 days after the end of each fiscal year of the Borrower, the audited
consolidated and, within 120 days after the end of each fiscal year of the
Borrower, unaudited consolidating statements of income, equity, changes in
financial position and cash flow of the Borrower and its Consolidated
Subsidiaries for such fiscal year, and the related consolidated and
consolidating balance sheets of the Borrower and its Consolidated Subsidiaries
as at the end of such fiscal year, and setting forth in each case in comparative
form the corresponding figures for the preceding fiscal year, and, in the case
of the audited statements, accompanied by the related opinion of independent
public accountants of recognized national standing acceptable to the Agent which
opinion shall state that said financial statements fairly present in all
material respects the consolidated and consolidating financial condition and
results of operations of the Borrower and its Consolidated Subsidiaries 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 such opinion shall not contain a "going concern" or like qualification or
exception, and 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 Default.
44
(b) QUARTERLY FINANCIAL STATEMENTS. 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 Borrower, consolidated and consolidating statements
of income, equity, changes in financial position and cash flow of the Borrower
and its Consolidated 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 consolidated and consolidating balance sheets as at the end of such
period, and setting forth in each case in comparative form the corresponding
figures for the corresponding period in the preceding fiscal year, accompanied
by the certificate of a Responsible Officer of BMC, which certificate shall
state that said financial statements fairly present in all material respects the
consolidated and consolidating financial condition and results of operations of
the Borrower and its Consolidated Subsidiaries in accordance with GAAP, as at
the end of, and for, such period (subject to normal year-end audit adjustments
and the lack of footnotes).
(c) CHANGE IN REFERENCE RATING. Promptly and in any event within seven
Business Days after Xxxxx'x or S&P has changed any relevant Reference Rating,
notice of such change.
(d) NOTICE OF DEFAULT, ETC. Promptly after a Responsible officer of the
Borrower knows that any Default or any Material Adverse Effect has occurred, a
notice of such Default or Material Adverse Effect, describing the same in
reasonable detail and the action the Borrower proposes to take with respect
thereto.
(e) OTHER ACCOUNTING REPORTS. Promptly upon receipt thereof, a copy of
each other report or letter submitted to the Borrower or any Subsidiary of the
Borrower by independent accountants in connection with any annual, interim or
special audit made by them of the books of the Borrower and its Subsidiaries,
and a copy of any response by any Guarantor or any Subsidiary of the Borrower,
to such letter or report.
(f) GOVERNMENTAL AUTHORITIES. Promptly upon receipt thereof, a copy of any
notice from any Governmental Authority (except where involving a routine or
ordinary course matter, which in any case is immaterial), and promptly upon a
Responsible Officer of the Borrower's knowledge thereof, notice of any material
dispute with any Governmental Authority involving the Borrower, any Guarantor or
any Restricted Subsidiary.
(g) NOTICES UNDER OTHER LOAN AGREEMENTS. Promptly after the furnishing
thereof, copies of any statement, report or notice furnished by the Borrower 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 Lenders pursuant to any other provision of this Section 8.01.
(h) OTHER MATTERS. From time to time such other information regarding the
business, affairs or financial condition of the Borrower, any Guarantor, any
Restricted Subsidiary or any Subsidiary of the Borrower (including, without
limitation, any Plan or Multiemployer Plan and any reports or other information
required to be filed under ERISA) as the Agent may reasonably request.
The Borrower will each furnish to the Agent, at the time each set of financial
statements is furnished to the Agent pursuant to paragraph (a) or (b) above, a
Compliance Certificate executed
45
by a Responsible Officer of the General Partner and BMC, respectively, (i)
certifying as to the matters set forth therein and stating that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail), and (ii) setting forth in reasonable
detail the computations necessary to determine whether the Borrower is in
compliance with Sections 9.12 and 9.13 as of the end of the respective fiscal
quarter or fiscal year.
SECTION 8.02. LITIGATION.
The Borrower shall promptly give, and shall cause any Restricted
Subsidiary to give to the Agent notice of: (i) all legal or arbitral
proceedings, and of all proceedings before any Governmental Authority affecting
the Borrower, the Guarantor or any Restricted Subsidiary, except proceedings
which, if adversely determined, would not have a Material Adverse Effect, and
(ii) any litigation or proceeding against or adversely affecting the Borrower,
the Guarantor or any Restricted Subsidiary in which the amount involved exceeds
$5,000,000 and is not covered in full by insurance (subject to normal and
customary deductibles and for which the insurer has not assumed the defense), or
in which injunctive or similar relief is sought.
The Borrower will promptly notify the Agent and each of the Lenders of any
claim, judgment, Lien or other encumbrance affecting any Property of the
Borrower, the Guarantor or any Restricted Subsidiary if the value of the claim,
judgment, Lien, or other encumbrance affecting such Property shall exceed
$5,000,000.
SECTION 8.03. MAINTENANCE, ETC.
(a) GENERALLY. The Borrower shall: preserve and maintain its partnership
or corporate existence and all of its material rights, privileges and franchises
and shall cause the Restricted Subsidiaries to do so; keep books of record and
account in which full, true and correct entries will be made of all dealings or
transactions in relation to its business and activities; comply with all
Governmental Requirements if failure to comply with such requirements will have
a Material Adverse Effect; pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or on
any of its Property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained; upon reasonable notice, permit representatives of
the Agent or any Lender, during normal business hours, to examine, copy and make
extracts from its books and records, to inspect its Properties, and to discuss
its business and affairs with its officers, all to-the extent reasonably
requested by such Lender or the Agent (as the case may be); and keep, or cause
to be kept, insured by financially sound and reputable insurers all Property of
a character usually insured by Persons engaged in the same or similar business
similarly situated against loss or damage of the kinds and in the amounts
customarily insured against by such Persons and carry such other insurance as is
usually carried by such Persons including, without limitation, environmental
risk insurance to the extent reasonably available.
(b) PROOF OF INSURANCE. Contemporaneously with the delivery of the
financial statements required by Section 8.01(a) to be delivered for each year,
the Borrower will furnish or cause to be furnished, and will cause to be
furnished for the Restricted Subsidiaries, to the Agent
46
certificates of insurance coverage from an insurer in form and substance
reasonably satisfactory to the Agent and, if requested, will furnish the Agent
copies of the applicable policies.
(c) OPERATION OF PROPERTIES. The Borrower will and will cause each
Restricted Subsidiary to, operate its Properties or cause such Properties to be
operated in a careful and efficient manner in accordance with the practices of
the industry and in compliance with all applicable contracts and agreements and
in compliance in all material respects with all Governmental Requirements.
SECTION 8.04. ENVIRONMENTAL MATTERS.
(a) ESTABLISHMENT OF PROCEDURES. The Borrower will and will cause each
Restricted Subsidiary to, establish and implement such procedures as may be
reasonably necessary to determine and assure that any failure of the following
does not have a Material Adverse Effect: (i) all Property of the Borrower, the
Guarantors and the Restricted Subsidiaries, and the operations conducted thereon
and other activities of the Borrower, the Guarantors and the Restricted
Subsidiaries, are in compliance with and do not violate the requirements of any
Environmental Laws, (ii) no oil, hazardous substances or solid wastes are
disposed of or otherwise released on or to any Property owned by the Borrower,
any Guarantor or any Restricted Subsidiary except in compliance with
Environmental Laws, (iii) no hazardous substance will be released on or to any
such Property in a quantity equal to or exceeding that quantity which requires
reporting pursuant to Section 103 of CERCLA, and (iv) no oil, oil and gas
exploration and production wastes or hazardous substance is released on or to
any such Property so as to pose an imminent and substantial endangerment to
public health or welfare or the environment.
(b) NOTICE OF ACTION. The Borrower will, and will cause each Restricted
Subsidiary to, promptly notify the Agent and the Lenders in writing of any
threatened action or investigation by any Governmental Authority of which a
Responsible Officer of the Borrower, any Guarantor or any Restricted Subsidiary
has knowledge in connection with any Environmental Laws, excluding routine
testing and corrective action.
(c) FUTURE ACQUISITIONS. The Borrower will, and will cause each Restricted
Subsidiary to, provide environmental audits and tests in accordance with
American Society for Testing and Materials standards as reasonably requested by
the Agent or any Lender through the Agent (or as otherwise required to be
obtained by the Agent or the Lenders by any Governmental Authority) in
connection with any future acquisitions of any material Properties by the
Borrower, any Guarantor or any Restricted Subsidiary.
SECTION 8.05. FURTHER ASSURANCES.
The Borrower will promptly cure any defects in the execution and delivery
of the other Loan Documents. The Borrower, at its expense, will promptly execute
and deliver (or cause to be promptly executed and delivered) to the Agent upon
reasonable request all such other documents, agreements and instruments to
comply with or accomplish the covenants and agreements of the Borrower in the
Loan Documents, or to, correct any omissions in the Loan Documents, or to state
more fully the obligations set out herein or in any of the other Loan
47
Documents, or to make any recordings, to file any notices or obtain any
consents, all as may be necessary or appropriate in connection therewith.
SECTION 8.06. PERFORMANCE OF OBLIGATIONS.
The Borrower 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 8.07. ERISA INFORMATION AND COMPLIANCE.
The Borrower will promptly furnish and will cause any ERISA Affiliate to
promptly furnish to the Agent with sufficient copies to the Lenders (i) promptly
after the filing thereof with the United States Secretary of Labor, the Internal
Revenue Service or the PBGC, copies of each annual and other material report
with respect to each Plan or any trust created thereunder, (ii) as soon as
possible and in any event within 30 days after the occurrence of any ERISA Event
in clause (i) of the definition of ERISA Event or any "prohibited transaction,"
as described in section 406 of ERISA or in section 4975 of the Code, and in any
event within 10 days after any other ERISA Event, in connection with any Plan or
any trust created thereunder, a written notice signed by a Responsible Officer
specifying the nature thereof, what action the Borrower or the ERISA Affiliate
is taking or proposes to take with respect thereto, and, when known, any action
taken or proposed by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto, and (iii) immediately upon receipt thereof,
copies of any notice of the PBGC's intention to terminate, or to have a trustee
appointed to administer, any Plan. With respect to each Plan (other than a
Multiemployer Plan), the Borrower will, and will cause each ERISA Affiliate to,
(i) satisfy in full and in a timely manner, without incurring any late payment
or underpayment charge or penalty and without giving rise to any lien, all of
the contribution and funding requirements of section 412 of the Code (determined
without regard to subsections (d), (e), (f) and (k) thereof) and of section 302
of ERISA (determined without regard to sections 303, 304 and 306 of ERISA), and
(ii) pay, or cause to be paid, to the PBGC in a timely manner, without incurring
any late payment or underpayment charge or penalty, all premiums required
pursuant to sections 4006 and 4007 of ERISA.
ARTICLE IX
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any of the Commitments
are in effect and until payment in full of Loans hereunder, all interest thereon
and all other amounts payable by the Borrower hereunder and the Guarantors under
the Guaranties, without the prior written consent of the Required Lenders:
SECTION 9.01. DEBT.
The Borrower will not and will not cause or permit any Guarantor or any
Restricted Subsidiary to incur, create, assume or permit to exist any Debt,
except:
48
(a) the Debt hereunder or any guaranty of or suretyship arrangement for
the Debt hereunder;
(b) Debt of the Borrower and the Restricted Subsidiaries existing on the
date hereof that is reflected in the Financial Statements or is disclosed in
Schedule 9.01, and any renewals or extensions (but not increases) thereof;
(c) accounts payable (for the deferred purchase price of Property or
services) from time to time incurred in the ordinary course of business which,
if material and greater than 90 days past the invoice or billing date, are being
contested in good faith by appropriate proceedings if reserves adequate under
GAAP shall have been established therefor;
(d) Debt of the Borrower and the Restricted Subsidiaries requiring no
principal payments (whether at stated maturity or by virtue of scheduled
amortization, required prepayment or redemption) due until at least one year
after the Termination Date and issued under the Indenture or otherwise on terms
and conditions (excluding interest rates) no less favorable to the Borrower or
the Restricted Subsidiary, as the case may be, than this Agreement;
(e) Debt not otherwise permitted by this Section 9.01 that in the
aggregate shall not exceed $100,000,000 outstanding at any one time;
(f) Debt of the Borrower and the Restricted Subsidiaries under Hedging
Agreements entered into as a part of its normal business operations as a risk
management strategy and/or hedge against changes resulting from market
conditions related to the Borrower's operations;
(g) Debt as a result of (and to the extent permitted by) Sections 9.03(g),
(h)and (i); and
(h) Debt under the Other Credit Agreement.
SECTION 9.02. LIENS.
The Borrower will not and will not cause or permit any Guarantor or any
Restricted Subsidiary to create, incur, assume or permit to exist any Lien on
any of its Properties (now owned or hereafter acquired), except:
(a) Liens securing the payment of any Debt hereunder;
(b) Excepted Liens;
(c) Liens disclosed on Schedule 9.02; and
(d) Liens originally created to secure purchase money Debt permitted under
Section 9.01(e), which in each case shall not exceed 100% of the lesser of the
total purchase price and the fair market value of the Property acquired as
determined at the time of acquisition; provided, that, (i) the Property to be
purchased with the proceeds of such Debt shall be purchased not more than 60
days prior to the date of the creation of such Lien and (ii) such Lien encumbers
only the Property so acquired.
49
SECTION 9.03. INVESTMENTS, LOANS AND ADVANCES.
The Borrower will not and will not cause or permit any Guarantor or any
Restricted Subsidiary to make or permit to remain outstanding any loans or
advances to or investments in any Person, except that the foregoing restriction
shall not apply to:
(a) investments, loans or advances reflected in the Financial Statements
or which are disclosed to the Lenders in Schedule 9.03;
(b) accounts receivable arising in the ordinary course of business;
(c) direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof, in each case
maturing within one year from the date of creation thereof;
(d) commercial paper maturing within one year from the date of creation
thereof rated in the highest grade by S&P or Xxxxx'x;
(e) deposits maturing within one year from the date of creation thereof
with, including certificates of deposit issued by, any Lender or any office
located in the United States of any other bank or trust company which is
organized under the laws of the United States or any state thereof, has capital,
surplus and undivided profits aggregating at least $100,000,000.00 (as of the
date of such Lender's or bank or trust company's most recent financial reports)
and has a short term deposit rating of no lower than A2 or P2, as such rating is
set forth from time to time, by S&P or Xxxxx'x, respectively;
(f) deposits in money market funds investing exclusively in investments
described in Section 9.03(c), 9.03(d) or 9.03(e);
(g) investments, loans or advances made in or to the Borrower or any
Restricted Subsidiary that has executed a Guaranty;
(h) investments, loans or advances in or to any Person (other than the
Borrower or any Restricted Subsidiary that has executed a Guaranty) not to
exceed $75,000,000 in the aggregate at any time outstanding; and
(i) other investments, loans and advances in or to any Person made with
equity of the Borrower or with other consideration, including cash, not to
exceed the amount of net proceeds received by the Borrower from an equity
offering occurring substantially concurrent therewith.
SECTION 9.04. DISTRIBUTIONS AND REDEMPTIONS.
If an Event of Default has occurred and is continuing or would result
therefrom, the Borrower will not purchase, redeem or otherwise acquire for value
any of its equity interests now or hereafter outstanding, return any capital or
make any distribution of its assets to its equity owners.
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SECTION 9.05. SALES AND LEASEBACKS.
The Borrower will not, and will not cause or permit any Restricted
Subsidiary to, enter into any Sale-Leaseback Transaction, unless:
(a) such Sale-Leaseback Transaction occurs within one year after the later
of (i) completion of the acquisition of the applicable Property by the Borrower
or such Restricted Subsidiary or (ii) commencement of full operation with
respect to such Property; or
(b) such Sale-Leaseback Transaction involves a lease for a term of not
more than three years; or
(c) the net sale proceeds derived from the sale or transfer by the
Borrower or such Restricted Subsidiary of the Property involved are used solely
(i) to prepay or retire Funded Debt of the Borrower ranking pari passu with the
Debt hereunder or (ii) for capital improvements with respect to the pipeline
systems of the Borrower or any Restricted Subsidiary made in the ordinary course
of business of the Borrower or such Restricted Subsidiary; or
(d) the Sale-Leaseback Attributable Debt attributable to such
Sale-Leaseback Transaction would be permitted under Section 9.01(e).
SECTION 9.06. NATURE OF BUSINESS.
The Borrower will not, and will not permit any Restricted Subsidiary to,
make any material change in the nature of its business as it exists on the date
hereof or, in the case of a Restricted Subsidiary, acquired or established after
the date hereof, as the nature of the business existed on the date of such
acquisition or establishment.
SECTION 9.07. RESTRICTIVE AGREEMENTS.
The Borrower will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, enter into, incur or permit to exist any agreement that
prohibits, restricts or imposes any condition upon the ability of any such
Restricted Subsidiary to declare or pay dividends or distributions to its equity
holders, to make or repay loans or advances to the Borrower or any other
Restricted Subsidiary, to guarantee Indebtedness of the Borrower or any other
such Restricted Subsidiary or to transfer any of its property or assets to the
Borrower or any such Restricted Subsidiary; provided, that (A) the foregoing
shall not apply to restrictions or conditions imposed by law, this Agreement or
any other Loan Document, the Note Agreement or the Indenture (in the case of the
Note Agreement and the Indenture, as in effect on the date hereof), and (B) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of any Restricted Subsidiary of the Borrower
pending such sale, provided such restrictions and conditions apply only to the
Restricted Subsidiary that is sold and such sale is permitted hereunder.
SECTION 9.08. MERGERS, ETC.
None of the Borrower, any Guarantor or any Restricted Subsidiary will
merge into or with or consolidate with any other Person unless such former
entity is the survivor, or sell, lease
51
or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its Property or assets to any other
Person; provided, however, that any Restricted Subsidiary may merge with or into
the Borrower, any Guarantor or any other Restricted Subsidiary, even if it is
not the surviving entity of such merger.
SECTION 9.09. PROCEEDS OF THE LOANS.
The Borrower will not permit the proceeds of the Loans to be used for any
purpose other than those permitted by Section 7.07. Neither the Borrower nor any
Person acting on behalf of the Borrower has taken or will take any action which
might cause any of the Loan Documents to violate Regulation T, U or X or any
other Regulation of the Board of Governors of the Federal Reserve System or to
violate Section 7 of the Securities Exchange Act of 1934 or any rule or
regulation thereunder, in each case as now in effect or as the same may
hereinafter be in effect.
SECTION 9.10. ERISA COMPLIANCE.
The Borrower will not at any time take any of the following actions that
could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect:
(a) Engage in, or permit any Subsidiary of the Borrower or ERISA Affiliate
to engage in, any transaction in connection with which the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate could be subjected to either a
civil penalty assessed pursuant to section 502(c), (i) or (l) of ERISA or a tax
imposed by Chapter 43 of Subtitle D of the Code;
(b) Terminate, or permit any Subsidiary of the Borrower or ERISA Affiliate
to terminate, any Plan in a manner, or take any other action with respect to any
Plan, that could result in any liability to the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate to the PBGC;
(c) Fail to make, or permit any Subsidiary of the Borrower or ERISA
Affiliate to fail to make, full payment when due of all amounts that, under the
provisions of any Plan, agreement relating thereto or applicable law, the
Borrower, a Subsidiary or any ERISA Affiliate is required to pay as
contributions thereto;
(d) Permit to exist, or allow any Subsidiary of the Borrower or ERISA
Affiliate to permit to exist, any accumulated funding deficiency within the
meaning of section 302 of ERISA or section 412 of the Code, whether or not
waived, with respect to any Plan;
(e) Permit, or allow any Subsidiary of the Borrower or ERISA Affiliate to
permit, the actuarial present value of the benefit liabilities under any Plan
that is regulated under Title IV of ERISA to exceed the current value of the
assets (computed on a plan termination basis in accordance with Title IV of
ERISA) of such Plan allocable to such benefit liabilities. The term "actuarial
present value of the benefit liabilities" shall have the meaning specified in
section 4041 of ERISA;
(f) Contribute to or assume an obligation to contribute to, or permit any
Subsidiary of the Borrower or ERISA Affiliate to contribute to or assume an
obligation to contribute to, any Multiemployer Plan;
52
(g) Acquire, or permit any Subsidiary of the Borrower or ERISA Affiliate
to acquire, an interest in any Person that causes such Person to become an ERISA
Affiliate with respect to the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate if such Person sponsors, maintains or contributes to, or at any
time in the six-year period preceding such acquisition has sponsored,
maintained, or contributed to, (1) any Multiemployer Plan, or (2) any other Plan
that is subject to Title IV of ERISA under which the actuarial present value of
the benefit liabilities under such Plan exceeds the current value of the assets
(computed on a plan termination basis in accordance with Title IV of ERISA) of
such Plan allocable to such benefit liabilities;
(h) Incur, or permit any Subsidiary of the Borrower or ERISA Affiliate to
incur, a liability to or on account of a Plan under sections 515, 4062, 4063,
4064, 4201 or 4204 of ERISA;
(i) Contribute to or assume an obligation to contribute to, or permit any
Subsidiary of the Borrower or ERISA Affiliate to contribute to or assume an
obligation to contribute to, any employee welfare benefit plan, as defined in
section 3(1) of ERISA, including, without limitation, any such plan maintained
to provide benefits to former employees of such entities, that may not be
terminated by such entities in their sole discretion at any time without any
material liability;
(j) Amend or permit any Subsidiary of the Borrower or ERISA Affiliate to
amend, a Plan resulting in an increase in current liability such that the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is required to
provide security to such Plan under section 401(a)(29) of the Code; or
(k) Permit to exist any occurrence of a "Reportable Event" described in
Section 4043 of ERISA and the regulations thereunder.
SECTION 9.11. SALE OR DISCOUNT OF RECEIVABLES.
None of the Borrower, any Guarantor or any Restricted Subsidiary will
discount or sell (with or without recourse) any of its notes receivable or
accounts receivable.
SECTION 9.12. FUNDED DEBT RATIO.
The Borrower will not permit the Funded Debt Ratio as of the end of any
fiscal quarter to be greater than 4.75 to 1.00; provided, however, that for a
period of up to two consecutive fiscal quarters (an "INCREASED FUNDED DEBT
PERIOD") within any twelve-month period commencing on the date hereof, the
Funded Debt Ratio may exceed 4.75 to 1.00 but shall in no event exceed 5.00 to
1.00; provided, further, that no Increased Funded Debt Period shall occur sooner
than two fiscal quarters following any other Increased Funded Debt Period.
SECTION 9.13. FIXED CHARGE COVERAGE RATIO.
The Borrower will not permit the Fixed Charge Coverage Ratio as of the end
of any fiscal quarter (calculated quarterly at the end of each fiscal quarter)
to be less than 1.25 to 1.00.
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SECTION 9.14. SALE OF PROPERTIES.
The Borrower will not, and will not cause or permit any Guarantor or any
Restricted Subsidiary to sell, assign, convey or otherwise transfer any Property
or any interest in any Property, unless such Property is not material to the
ability of the Borrower or any Restricted Subsidiary to generate EBITDA.
SECTION 9.15. ENVIRONMENTAL MATTERS.
The Borrower shall not, and shall not cause or permit any Guarantor or any
Restricted Subsidiary to cause or permit any of its Property to be in violation
of, or do anything or permit anything to be done which will subject any such
Property to any remedial obligations under any Environmental Laws. If necessary,
the Borrower shall timely disclose to the applicable Governmental Authority all
relevant facts, conditions and circumstances, if any, pertaining to such
Property where such violations or remedial obligations exist.
SECTION 9.16. TRANSACTIONS WITH AFFILIATES.
The Borrower will not, and will not cause or permit any Guarantor or any
Restricted Subsidiary to enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of Property or the rendering
of any service, with any Affiliate unless such transactions are otherwise
permitted under this Agreement, are in the ordinary course of its business and
are upon fair and reasonable terms no less favorable to it than it would obtain
in a comparable arm's length transaction with a Person not an Affiliate;
provided, however, that the foregoing shall not prohibit or prevent the
Borrower, any Guarantor or any Restricted Subsidiary from performing under any
agreement in effect on the date hereof.
SECTION 9.17. PARTNERSHIP AGREEMENTS.
Without the prior consent of the Required Lenders, which shall not be
unreasonably withheld, the Borrower will not amend or permit to be amended in
any material respect the Borrower Partnership Agreement or the Buckeye Pipe Line
Partnership Agreement.
SECTION 9.18. SENIOR NOTES.
Without the prior consent of the Required Lenders, which shall not be
unreasonably withheld, the Borrower will not amend or permit to be amended in
any material respect the Senior Notes or the Indenture, except that the Borrower
may issue additional indebtedness under supplemental indentures issued under the
Indenture if otherwise permitted hereunder and thereunder.
ARTICLE X
EVENTS OF DEFAULT; REMEDIES
SECTION 10.01. EVENTS OF DEFAULT.
One or more of the following events shall constitute an "EVENT OF
DEFAULT":
54
(a) the Borrower shall default in the payment or prepayment when due of
any principal of or interest on any Loan, or any fees or other amount payable by
it hereunder or under any other Loan Document and such default, other than a
default of a payment or prepayment of principal (which shall have no cure
period) shall continue unremedied for a period of three Business Days; or
(b) the Borrower or any Restricted Subsidiary shall default in the payment
when due of any principal of or interest on any of its other Debt aggregating
$15,000,000 or more, or any event specified in any note, agreement, indenture or
other document evidencing or relating to any such Debt shall occur if the effect
of such event (after the giving of notice or lapse of time or both, if
applicable) is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, such Debt to
become due prior to its stated maturity; or
(c) any representation, warranty or certification made or deemed made
herein or in any other Loan Document by the Borrower, any Guarantor or any
Person on behalf of any Restricted Subsidiary, or any certificate furnished to
any Lender or the Agent pursuant to the provisions hereof or any other Loan
Document, shall prove to have been false or misleading as of the time made or
furnished in any material respect; or
(d) the Borrower or any Restricted Subsidiary (despite the fact that such
Restricted Subsidiary is not a party to this Agreement) shall default in the
performance of any of its obligations under Article IX; or the Borrower or any
Restricted Subsidiary (despite the fact that such Restricted Subsidiary is not a
party to this Agreement) shall default in the performance of any of its
obligations under Article VIII, any other Article of this Agreement (other than
under Article IX) or any other Loan Document (other than the payment of amounts
due which shall be governed by Section 10.01(a)) and such default shall continue
unremedied for a period of 30 days after the earlier to occur of (i) notice
thereof to the Borrower by the Agent or any Lender (through the Agent), or (ii)
a Responsible Officer of the Borrower otherwise obtaining actual knowledge of
such default; or
(e) the Borrower shall admit in writing its inability to, or be generally
unable to, pay its debts as such debts become due; or
(f) the Borrower shall (i) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property, (ii) make a general
assignment of all or substantially all of its assets for the benefit of its
creditors, (iii) commence a voluntary case under the Federal Bankruptcy Code (as
now or hereafter in effect), (iv) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization, winding-up,
liquidation or composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Federal Bankruptcy Code, or (vi)
take any corporate action for the purpose of effecting any of the foregoing; or
(g) a proceeding or case shall be commenced, without the application or
consent of the Borrower, in any court of competent jurisdiction, seeking (i) its
liquidation, reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of
55
a trustee, receiver, custodian, liquidator or the like of the Borrower of all or
any substantial part of its assets, or (iii) similar relief in respect of the
Borrower under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed and in
effect, for a period of 60 days; or (iv) an order for relief against the
Borrower shall be entered in an involuntary case under the Federal Bankruptcy
Code; or
(h) a judgment or judgments for the payment of money in excess of
$5,000,000 in the aggregate shall be rendered by a court against the Borrower or
any Subsidiary of the Borrower and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution thereof
shall not be procured, within 30 days from the date of entry thereof and the
Borrower or such Subsidiary shall not, within said period of 30 days, or such
longer period during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal; or
(i) any Guaranty after delivery thereof shall for any reason, except to
the extent permitted by the terms thereof, cease to be in full force and effect
and valid, binding and enforceable in accordance with its terms, or the Borrower
or any Guarantor shall so state in writing; or
(j) a Change of Control shall occur; or
(k) any Guarantor shall take, suffer or permit to exist any of the events
or conditions referred to in subsection (f), (g), (h) or (i) or any provision of
any Guaranty related thereto shall for any reason cease to be valid and binding
on the relevant Guarantor or if such Guarantor shall so state in writing;
(l) any Restricted Subsidiary shall take, suffer or permit to exist any of
the events or conditions referred to in subsection (f), (g), (h) or (i); or
(m) any ERISA Event shall have occurred that could reasonably be expected
to result in a Material Adverse Effect, and 30 days after notice shall have been
given to the Borrower, such ERISA Event shall still exist.
SECTION 10.02. REMEDIES.
(a) In the case of an Event of Default other than one referred to in
subsection (f), (g) or (h) of Section 10.01 or in either of subsection (l) or
(m) to the extent it relates to subsection (f), (g) or (h), the Agent, upon
request of the Required Lenders, shall, by notice to the Borrower, cancel the
Commitments and/or declare the principal amount then outstanding of, and the
accrued interest on, the Loans and all other amounts payable by the Borrower
hereunder to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest, notice of
intent to accelerate, notice of acceleration or other formalities of any kind,
all of which are hereby expressly waived by the Borrower.
(b) In the case of the occurrence of an Event of Default referred to in
subsection (f), (g) or (h) of Section 10.01 or in either of subsection (l) and
(m) to the extent it relates to
56
subsection (f), (g) or (h), the Commitments shall be automatically canceled and
the principal amount then outstanding of, and the accrued interest on, the Loans
and all other amounts payable by the Borrower hereunder shall become
automatically immediately due and payable without presentment, demand, protest,
notice of intent to accelerate, notice of acceleration or other formalities of
any kind, all of which are hereby expressly waived by the Borrower.
(c) All proceeds received after the Termination Date, whether by
acceleration or otherwise shall be applied first to reimbursement of expenses
and indemnities provided for in this Agreement and the other Loan Documents;
second to accrued interest hereunder; third to fees; fourth pro rata to
principal outstanding hereunder and other Debt hereunder; and any excess shall
be paid to the Borrower or as otherwise required by any Governmental
Requirement.
ARTICLE XI
THE AGENT
SECTION 11.01. THE AGENT.
(a) APPOINTMENT. Each Lender appoints the Agent (including, without
limitation, each successor Agent in accordance with this Section 11.01) as its
nominee and agent to act in its name and on its behalf (and the Agent and each
such successor accepts that appointment): (i) to act as its nominee and on its
behalf in and under all Loan Documents; (ii) to arrange the means whereby its
funds are to be made available to the Borrower under the Loan Documents; (iii)
to take any action that it properly requests under the Loan Documents (subject
to the concurrence of other Lenders as may be required under the Loan
Documents); (iv) to receive all documents and items to be furnished to it under
the Loan Documents; (v) to be the secured party, mortgagee, beneficiary,
recipient and similar party in respect of the cash collateral under Section
2.09(b) and any other collateral for the benefit of the Lenders (at any time an
Event of Default or Default has occurred and is continuing); (vi) to promptly
distribute to it all material information, requests, documents and items
received from the Borrower, any of its Subsidiaries or any Restricted Subsidiary
under the Loan Documents; (vii) to promptly distribute to it its ratable part of
each payment or prepayment (whether voluntary, as proceeds of collateral upon or
after foreclosure, as proceeds of insurance thereon or otherwise) in accordance
with the terms of the Loan Documents; and (viii) to deliver to the appropriate
Persons requests, demands, approvals and consents received from it. The Agent,
however, may not be required to take any action that exposes it to personal
liability or that is contrary to any Loan Document or applicable Governmental
Requirement. The Agent may execute any of its duties hereunder or under the
other Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel (including Borrower's counsel) concerning all
matters pertaining to such duties. The Agent shall not be responsible to the
Lenders for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
(b) SUCCESSOR. The Agent may, subject (at any time no Event of Default or
Default has occurred and is continuing) to the Borrower's prior written consent
that may not be unreasonably withheld, assign all of its rights and obligations
as the Agent under the Loan Documents to any of its Affiliates, which Affiliate
shall then be the successor Agent under the Loan Documents. The Agent may also,
upon 30 days' prior notice to the Borrower, voluntarily resign. If the initial
or any successor Agent ever ceases to be a party to this Agreement or if the
57
initial or any successor Agent ever resigns, then the Required Lenders shall
(which, if no Event of Default or Default has occurred and is continuing, is
subject to the Borrower's approval that may not be unreasonably withheld)
appoint the successor Agent from among the Lenders (other than the resigning
Agent). If the Required Lenders fail to appoint a successor Agent within 30 days
after the resigning Agent has given notice of resignation, then the resigning
Agent may, on behalf of the Lenders, upon thirty (30) days prior notice to the
Borrower, appoint a successor Agent, subject (at any time no Event of Default or
Default has occurred and is continuing) to the Borrower's prior written consent
that may not be unreasonably withheld, which must be a commercial bank having a
combined capital and surplus of at least $1,000,000,000 (as shown on its most
recently published statement of condition). Upon its acceptance of appointment
as successor Agent, the successor Agent shall succeed to and become vested with
all of the rights of the prior Agent, and the prior Agent shall be discharged
from its duties and obligations as Agent under the Loan Documents, and each
Lender shall execute the documents that any Lender, the resigning Agent or the
successor Agent reasonably requests to reflect the change. After any Agent's
resignation as the Agent under the Loan Documents, the provisions of this
section inure to its benefit as to any actions taken or not taken by it while it
was the Agent under the Loan Documents.
(c) RIGHTS AS LENDER. The Agent, in its capacity as a Lender, has the same
rights under the Loan Documents as any other Lender and may exercise those
rights as if it were not acting as the Agent. The Agent's resignation or removal
does not impair or otherwise affect any rights that it has or may have in its
capacity as an individual Lender. Each Lender and the Borrower agree that the
Agent is not a fiduciary for the Lenders or the Borrower but is simply acting in
the capacity described in this Agreement to alleviate administrative burdens for
the Borrower and the Lenders, that the Agent has no duties or responsibilities
to the Lenders or the Borrower except those expressly set forth in the Loan
Documents, and that the Agent in its capacity as a Lender has the same rights as
any other Lender.
(d) OTHER ACTIVITIES. The Agent or any Lender may now or in the future be
engaged in one or more loan, letter of Loan, leasing or other financing
transactions with the Borrower, act as trustee or depositary for the Borrower or
otherwise be engaged in other transactions with the Borrower (collectively, the
"other activities") not the subject of the Loan Documents. Without limiting the
rights of the Lenders specifically set forth in the Loan Documents, neither the
Agent nor any Lender is responsible to account to the other Lenders for those
other activities, and no Lender shall have any interest in any other Lender's
activities, any present or future guaranties by or for the account of the
Borrower that are not contemplated by or included in the Loan Documents, any
present or future offset exercised by the Agent or any Lender in respect of
those other activities, any present or future property taken as security for any
of those other activities or any property now or hereafter in the Agent's or any
other Lender's possession or control that may be or become security for the
obligations of the Borrower arising under the Loan Documents by reason of the
general description of indebtedness secured or of property contained in any
other agreements, documents or instruments related to any of those other
activities (but, if any payments in respect of those guaranties or that property
or the proceeds thereof is applied by the Agent or any Lender to reduce the
obligations hereunder, then each Lender is entitled to share in the application
as provided in the Loan Documents).
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SECTION 11.02. EXPENSES.
Each Lender shall pay its Percentage Share of any expenses (including
court costs, reasonable attorneys' fees and other costs of collection) incurred
by the Agent or in connection with any of the Loan Documents if the Agent is not
reimbursed from other sources within 30 days after incurrence. Each Lender is
entitled to receive its Percentage Share of any reimbursement that it makes to
the Agent if the Agent is subsequently reimbursed from other sources.
SECTION 11.03. PROPORTIONATE ABSORPTION OF LOSSES.
Except as otherwise provided in the Loan Documents, nothing in the Loan
Documents gives any Lender any advantage over any other Lender insofar as the
obligations hereunder are concerned or relieves any Lender from ratably
absorbing any losses sustained with respect to the obligations hereunder (except
to the extent unilateral actions or inactions by any Lender result in the
Borrower or any other obligor on the obligations hereunder having any credit,
allowance, setoff, defense or counterclaim solely with respect to all or any
part of that Lender's part of the obligations hereunder).
SECTION 11.04. DELEGATION OF DUTIES; RELIANCE.
The Lenders may perform any of their duties or exercise any of their
rights under the Loan Documents by or through the Agent, the Lenders and the
Agent may perform any of their duties or exercise any of their rights under the
Loan Documents by or through their respective representatives. The Agent, the
Lenders and their respective representatives (a) are entitled to rely upon (and
shall be protected in relying upon) any written or oral statement believed by it
or them to be genuine and correct and to have been signed or made by the proper
Person and, with respect to legal matters, upon opinion of counsel selected by
the Agent or that Lender (but nothing in this clause (a) permits the Agent to
rely on (i) oral statements if a writing is required by this Agreement or (ii)
any other writing if a specific writing is required by this Agreement), (b) are
entitled to deem and treat each Lender as the owner and holder of its portion of
the Obligations hereunder for all purposes until written notice of the
assignment or transfer is given to and received by the Agent (and any request,
authorization, consent or approval of any Lender is conclusive and binding on
each subsequent holder, assignee or transferee of or Participant in that
Lender's portion of the obligations hereunder until that notice is given and
received), (c) are not deemed to have notice of the occurrence of an Default
unless a responsible officer of the Agent, who handles matters associated with
the Loan Documents and transactions thereunder, has actual knowledge or the
Agent has been notified by a Lender or the Borrower, and (d) are entitled to
consult with legal counsel (including counsel for the Borrower), independent
accountants, and other experts selected by the Agent and are not liable for any
action taken or not taken in good faith by it in accordance with the advice of
counsel, accountants or experts.
SECTION 11.05. LIMITATION OF THE AGENT'S LIABILITY.
(a) EXCULPATION. Neither the Agent nor any of its Affiliates or representatives
will be liable to any Lender for any action taken or omitted to be taken by it
or them under the Loan Documents in good faith and believed by it to be within
the discretion or power conferred upon it
59
or them by the Loan Documents or be responsible for the consequences of any
error of judgment (except for gross negligence or willful misconduct), and
neither the Agent nor any of its Affiliates or representatives has a fiduciary
relationship with any Lender by virtue of the Loan Documents (but nothing in
this Agreement negates the obligation of the Agent to account for funds received
by it for the account of any Lender).
(b) INDEMNITY. Unless indemnified to its satisfaction against loss, cost,
liability and expense, the Agent may not be compelled to do any act under the
Loan Documents or to take any action toward the execution or enforcement of the
powers thereby created or to prosecute or defend any suit in respect of the Loan
Documents. If the Agent requests instructions from the Lenders or the Required
Lenders, as the case may be, with respect to any act or action in connection
with any Loan Document, the Agent is entitled to refrain (without incurring any
liability to any Person by so refraining) from that act or action unless and
until it has received instructions. In no event, however, may the Agent or any
of its representatives be required to take any action that it or they determine
could incur for it or them criminal or onerous civil liability. Without limiting
the generality of the foregoing, no Lender has any right of action against the
Agent as a result of the Agent's acting or refraining from acting under this
Agreement in accordance with instructions of the Required Lenders.
(c) RELIANCE. The Agent is not responsible to any Lender, and each Lender
represents and warrants that it has not relied upon the Agent in respect of, (i)
the creditworthiness of the Borrower or any Guarantor and the risks involved to
such Lender, as the case may be, (ii) the effectiveness, enforceability,
genuineness, validity or the due execution of any Loan Document, (iii) any
representation, warranty, document, certificate, report or statement made
therein or furnished thereunder or in connection therewith, (iv) the adequacy of
any collateral now or hereafter securing the obligations hereunder or the
existence, priority or perfection of any Lien now or hereafter granted or
purported to be granted on the collateral under any Loan Document, or (v)
observation of or compliance with any of the terms, covenants or conditions of
any Loan Document on the part of the General Partner, the Borrower or any
Guarantor . EACH LENDER AGREES TO INDEMNIFY THE AGENT AND ITS REPRESENTATIVES
AND HOLD THEM HARMLESS FROM AND AGAINST (BUT LIMITED TO SUCH LENDER'S PERCENTAGE
SHARE OF) ANY AND ALL LIABILITIES, OBLIGATIONS HEREUNDER, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, REASONABLE EXPENSES AND REASONABLE
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER THAT MAY BE IMPOSED ON, ASSERTED
AGAINST OR INCURRED BY THEM IN ANY WAY RELATING TO OR ARISING OUT OF THE LOAN
DOCUMENTS OR ANY ACTION TAKEN OR OMITTED BY THEM UNDER THE LOAN DOCUMENTS IF THE
AGENT AND ITS REPRESENTATIVES ARE NOT REIMBURSED FOR SUCH AMOUNTS BY THE
BORROWER OR ANY GUARANTOR. ALTHOUGH THE AGENT AND ITS REPRESENTATIVES HAVE THE
RIGHT TO BE INDEMNIFIED UNDER THIS AGREEMENT BY THE LENDERS FOR ITS OR THEIR OWN
ORDINARY NEGLIGENCE, THE AGENT AND ITS REPRESENTATIVES DO NOT HAVE THE RIGHT TO
BE INDEMNIFIED UNDER THIS AGREEMENT FOR ITS OR THEIR OWN GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
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SECTION 11.06. EVENT OF DEFAULT.
If an Event of Default has occurred and is continuing, the Lenders agree
to promptly confer in order that the Required Lenders or the Lenders, as the
case may be, may agree upon a course of action for the enforcement of the rights
of the Lenders hereunder. The Agent is entitled to act or refrain from taking
any action (without incurring any liability to any Person for so acting or
refraining) unless and until it has received instructions from the Required
Lenders. In actions with respect to any property of the Borrower or any of its
Subsidiaries, the Agent is acting for the ratable benefit of each Lender.
SECTION 11.07. LIMITATION OF LIABILITY.
No Lender will incur any liability to any other Lender except for acts or
omissions in bad faith, and neither the Agent nor any Lender or Participant will
incur any liability to any other Person for any act or omission of any other
Lender.
SECTION 11.08. OTHER AGENTS.
On the cover page SunTrust Xxxxxxxx Xxxxxxxx Capital Markets, a division
of SunTrust Capital Markets, Inc., is named as "Sole Lead Arranger," BNP Paribas
is named as "Syndication Agent" and National Australia Bank Limited and KeyBank
National Association are named as "Co-Documentation Agents" but do not, in such
capacities, assume any responsibility or obligation under this Agreement for
syndication, documentation, servicing, enforcement or collection of any part of
the obligations hereunder, nor any other duties, as agent for the Lenders.
SECTION 11.09. RELATIONSHIP OF LENDERS.
The Loan Documents do not create a partnership or joint venture among the
Agent and the Lenders or among the Lenders.
SECTION 11.10. BENEFITS OF AGREEMENT.
None of the provisions of this Article XI inures to the benefit of the
Borrower or any Guarantor or any other Person except the Agent and the Lenders.
Therefore, neither the Borrower nor any Guarantor nor any other Person is
responsible or liable for, entitled to rely upon or entitled to raise as a
defense, in any manner whatsoever, the failure of the Agent or any Lender to
comply with these provisions.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. WAIVER.
No failure on the part of the Agent or any Lender to exercise and no delay
in exercising and no course of dealing with respect to, any right, power or
privilege under any of the Loan Documents shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege under any
of the Loan Documents preclude any other or further exercise
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thereof or the exercise of any other right, power or privilege. The remedies
provided herein are cumulative and not exclusive of any remedies provided by
law.
SECTION 12.02. NOTICES.
All notices and other communications provided for herein and in the other
Loan Documents (including, without limitation, any modifications of, or waivers
or consents under, this Agreement or the other Loan Documents) shall be given or
made by telex, telecopy, courier or U.S. Mail or in writing and telexed,
telecopied, mailed or delivered to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof or in the Loan
Documents, except that for notices and other communications to the Agent other
than payment of money, the Borrower need only send such notices and
communications to the Agent care of the Atlanta address of SunTrust; or, as to
any party, at such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this Agreement or in
the other Loan Documents, all such communications shall be deemed to have been
duly given when transmitted, if transmitted before 1:00 p.m. local time on a
Business Day (otherwise on the next succeeding Business Day) by telex or
telecopier and evidence or confirmation of receipt is obtained, or personally
delivered or, in the case of a mailed notice, four Business Days after the date
deposited in the mails, postage prepaid, in each case given or addressed as
aforesaid.
SECTION 12.03. PAYMENT OF EXPENSES, INDEMNITIES, ETC.
(a) The Borrower agrees:
(i) whether or not the transactions hereby contemplated are
consummated, to pay to the extent set forth in the Fee Letter all
reasonable expenses of the Agent in the administration (both before and
after the execution hereof and including advice of counsel as to the
rights and duties of the 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
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 Agent and, in the case of enforcement,
the reasonable fees and disbursements of counsel for the Agent and any of
the Lenders); and promptly reimburse the Agent for all amounts expended,
advanced or incurred by the Agent or the Lenders to satisfy any obligation
of the Borrower or the Guarantors under this Agreement or any other Loan
Document, including without limitation, all costs and expenses of
foreclosure;
(ii) TO INDEMNIFY THE 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 INCURRED
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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 BORROWER OF THE
PROCEEDS OF ANY OF THE LOANS, (II) THE EXECUTION, DELIVERY AND PERFORMANCE
OF THE LOAN DOCUMENTS BY THE BORROWER, (III) THE OPERATIONS OF THE
BUSINESS OF THE BORROWER, ANY GUARANTOR AND THE RESTRICTED SUBSIDIARIES,
(IV) THE FAILURE OF THE BORROWER, ANY GUARANTOR OR ANY RESTRICTED
SUBSIDIARY TO COMPLY WITH THE TERMS OF ANY LOAN DOCUMENT, OR WITH ANY
GOVERNMENTAL REQUIREMENT, (V) ANY INACCURACY OF ANY REPRESENTATION OR ANY
BREACH OF ANY WARRANTY OF THE BORROWER OR THE GUARANTOR SET FORTH IN ANY
OF THE LOAN DOCUMENTS, (VI) ANY ASSERTION THAT THE LENDERS WERE NOT
ENTITLED TO RECEIVE THE PROCEEDS RECEIVED PURSUANT TO THE LOAN DOCUMENTS
OR (VII) ANY OTHER ASPECT OF THE LOAN DOCUMENTS, INCLUDING, WITHOUT
LIMITATION, 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 AGENT OR A LENDER'S SHAREHOLDERS AGAINST
THE AGENT OR LENDER OR BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF THE INDEMNIFIED PARTY; AND
(iii) 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 BORROWER, ANY GUARANTOR OR ANY
RESTRICTED SUBSIDIARY OR ANY OF THEIR PROPERTIES, INCLUDING WITHOUT
LIMITATION, THE TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES OR HAZARDOUS
WASTES ON ANY OF SUCH PROPERTIES, (II) AS A RESULT OF THE BREACH OR
NON-COMPLIANCE BY THE BORROWER OR ANY RESTRICTED SUBSIDIARY WITH ANY
ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER, ANY GUARANTOR OR ANY
RESTRICTED SUBSIDIARY, (III) DUE TO PAST OWNERSHIP BY THE BORROWER, ANY
GUARANTOR OR ANY RESTRICTED SUBSIDIARY OF ANY OF THEIR PROPERTIES OR PAST
ACTIVITY ON ANY OF THEIR PROPERTIES 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 OR HAZARDOUS WASTES ON OR AT ANY OF THE PROPERTIES OWNED OR
OPERATED BY THE BORROWER, ANY
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GUARANTOR OR ANY RESTRICTED SUBSIDIARY, OR (V) ANY OTHER ENVIRONMENTAL,
HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS.
(b) 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 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 12.03.
(c) In the case of any indemnification hereunder, the Agent or Lender, as
appropriate shall give notice to the Borrower of any such claim or demand being
made against the Indemnified Party and the Borrower shall have the non-exclusive
right to join in the defense against any such claim or demand provided that if
the Borrower provides a defense, the Indemnified Party shall bear its own cost
of defense unless there is a conflict between the Borrower and such Indemnified
Party.
(d) 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 WITHOUT LIMITATION, 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, 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 OR WILLFUL MISCONDUCT OF THE
INDEMNIFIED PARTY.
(e) The Borrower's obligations under this Section 12.03 shall survive any
termination of this Agreement and the payment of all amounts outstanding
hereunder and shall continue thereafter in full force and effect.
(f) The Borrower shall pay any amounts due under this Section 12.03 within
30 days of the receipt by the Borrower of notice of the amount due.
SECTION 12.04. AMENDMENTS, ETC.
Any provision of this Agreement or any other Loan Document may be amended,
modified or waived with the Borrower's and the Required Lenders' prior written
consent; provided that (i) no amendment, modification or waiver that extends the
final maturity of the Loans, postpones any date fixed for any payment of
principal of, or interest on, the Loans or any fees or other amounts payable
hereunder, increases the Aggregate Revolving Credit
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Commitments (other than pursuant to Section 2.03(c)), forgives the principal
amount of any Debt outstanding under this Agreement, releases any Guarantor of
its obligations under the Guaranty, reduces the interest rate applicable to the
Loans or the fees payable to the Lenders generally, affects this Section 12.04
or Section 12.06(a) or modifies the definition of "Required Lenders" shall be
effective without consent of all Lenders; (ii) no amendment, modification or
waiver which increases the Revolving Credit Commitment of any Lender shall be
effective without the consent of such Lender; and (iii) no amendment,
modification or waiver which modifies the rights, duties or obligations of the
Agent shall be effective without the consent of the Agent; provided, further,
that this Agreement may be amended and restated without the consent of any
Lender or the Agent if, upon giving effect to such amendment and restatement,
such Lender or the Agent, as the case may be, shall no longer be a party to this
Agreement (as so amended and restated) or have any Commitment or other
obligation hereunder and shall have been paid in full all amounts payable
hereunder to such Lender or the Agent, as the case may be.
SECTION 12.05. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
SECTION 12.06. ASSIGNMENTS AND PARTICIPATIONS.
(a) The Borrower may not assign its rights or obligations hereunder
without the prior consent of all of the Lenders and the Agent.
(b) Any Lender may upon the written consent of the Agent (which consent
will not be unreasonably withheld) and, if no Event of Default has occurred and
is continuing, the Borrower (which consent will not be unreasonably withheld),
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement pursuant to an Assignment Agreement substantially in the
form of Exhibit C (an "ASSIGNMENT AGREEMENT"); provided, however, that (i) any
such assignment shall be in the amount of at least $5,000,000 or such lesser
amount to which the Borrower has consented, (ii) the assignee or assignor shall
pay to the Agent a processing and recordation fee of $1,500 for each assignment
and (iii) any assignment to an Affiliate of such Lender will not require the
consent of the Agent or the Borrower. Any such assignment will become effective
upon the execution and delivery to the Agent of the Assignment Agreement and the
consent of the Agent, if required. Promptly after receipt of an executed
Assignment Agreement, the Agent shall send to the Borrower a copy of such
executed Assignment Agreement. Upon the effectiveness of any assignment pursuant
to this Section 12.06(b), the assignee will become a "Lender," if not already a
"Lender," for all purposes of this Agreement and the other Loan Documents. The
assignor shall be relieved of its obligations hereunder to the extent of such
assignment (and if the assigning Lender no longer holds any rights or
obligations under this Agreement, such assigning Lender shall cease to be a
"Lender" hereunder except that its rights under Sections 4.06, 5.01, 5.05 and
12.03 shall not be affected). The Agent will prepare on the last Business Day of
each month during which an assignment has become effective pursuant to this
Section 12.06(b), a new Annex I giving effect to all such assignments effected
during such month, and will promptly provide the same to the Borrower and each
of the Lenders.
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(c) Each Lender may transfer, grant or assign participations in all or any
part of such Lender's interests hereunder pursuant to this Section 12.06(c) to
any Person, provided that: (i) such Lender shall remain a "Lender" for all
purposes of this Agreement and the transferee of such participation shall not
constitute a "Lender" hereunder; and (ii) no participant under any such
participation shall have rights to approve any amendment to or waiver of any of
the Loan Documents except to the extent such amendment or waiver would (x)
forgive any principal owing on any Debt hereunder or extend the final maturity
of the Loans, (y) reduce the interest rate (other than as a result of waiving
the applicability of any post-default increases in interest rates) or fees
applicable to any of the Commitments or Loans in which such participant is
participating, or postpone the payment of any thereof, or (z) release any
guarantor of its obligations under its Guaranty or release all or substantially
all of the collateral (except as provided in the Loan Documents) supporting any
of the Commitments or Loans in which such participant is participating. In the
case of any such participation, the participant shall not have any rights under
this Agreement or any of the other Loan Documents (the participant's rights
against the granting Lender in respect of such participation to be those set
forth in the agreement with such Lender creating such participation), and all
amounts payable by the Borrower hereunder shall be determined as if such Lender
had not sold such participation, provided that such participant shall be
entitled to receive additional amounts under Article V on the same basis as if
it were a Lender and be indemnified under Section 12.03 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 12.15.
(d) The Lenders may furnish any information concerning the Borrower, the
Guarantors and the Restricted Subsidiaries 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 12.15.
(e) Notwithstanding anything to the contrary contained herein, any Lender
(a "GRANTING LENDER") may grant to a special purpose funding vehicle (an "SPC")
of such Granting Lender identified as such in writing from time to time by the
Granting Lender to the Agent and the Borrower, the option to provide to the
Borrower all or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower pursuant to this Agreement; provided that
(i) nothing herein shall constitute a commitment by any such SPC to make any
Loan, (ii) if such SPC elects not to exercise such option or otherwise fails to
provide all or any part of such Loan, the Granting Lender shall be obligated to
make such Loan pursuant to the terms hereof and (iii) no SPC or Granting Lender
shall be entitled to receive any greater amount pursuant to Article V than the
Granting Lender would have been entitled to receive had the Granting Lender not
otherwise granted such SPC the option to provide any Loan to the Borrower. The
making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement for which a
Lender would otherwise be liable so long as, and to the extent that, the related
Granting Lender provides such indemnity or makes such payment. In furtherance of
the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against or join any other
person in instituting against such SPC any bankruptcy,
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reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. Notwithstanding the foregoing,
the Granting Lender unconditionally agrees to indemnify the Borrower, the Agent
and each Lender against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be incurred by or asserted against the
Borrower, the Agent or such Lender, as the case may be, in any way relating to
or arising as a consequence of any such forbearance or delay in the initiation
of any such proceeding against its SPC. Each party hereto hereby acknowledges
and agrees that no SPC shall have the rights of a Lender hereunder, such rights
being retained by the applicable Granting Lender. Accordingly, and without
limiting the foregoing, each party hereby further acknowledges and agrees that
no SPC shall have any voting rights hereunder and that the voting rights
attributable to any Loan made by an SPC shall be exercised only by the relevant
Granting Lender and that each Granting Lender shall serve as the administrative
agent and attorney-in-fact for its SPC and shall on behalf of its SPC receive
any and all payments made for the benefit of such SPC and take all actions
hereunder to the extent, if any, such SPC shall have any rights hereunder. In
addition, notwithstanding anything to the contrary contained in this Agreement
any SPC may (i) with notice to, but without the prior written consent of any
other party hereto, assign all or a portion of its interest in any Loans to the
Granting Lender and (ii) disclose on a confidential basis any information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC. This
Section may not be amended without the prior written consent of each Granting
Lender, all or any part of whose Loan is being funded by an SPC at the time of
such amendment.
(f) Notwithstanding anything in this Section 12.06 to the contrary, any
Lender may assign and pledge its note issued pursuant to Section 2.07 to any
Federal Reserve Bank. No such assignment and/or pledge shall release the
assigning and/or pledging Lender from its obligations hereunder.
(g) Notwithstanding any other provisions of this Section 12.06, 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 Borrower to file a registration statement with the
SEC or to qualify the Loans under the "Blue Sky" laws of any state.
SECTION 12.07. INVALIDITY.
In the event that any one or more of the provisions contained in any of
the Loan Documents shall, for any reason, be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement or any other Loan
Document.
SECTION 12.08. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Agreement by signing any such counterpart.
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SECTION 12.09. REFERENCES.
The words "herein", "hereof", "hereunder" and other words of similar
import when used in this Agreement refer to this Agreement as a whole, and not
to any particular Article, Section or Subsection. Any reference herein to a
Section shall be deemed to refer to the applicable Section of this Agreement
unless otherwise stated herein. Any reference herein to an Exhibit or Schedule
shall be deemed to refer to the applicable Exhibit or Schedule attached hereto
unless otherwise stated herein.
SECTION 12.10. SURVIVAL.
The obligations of the parties under Section 4.06, Article V, and Sections
11.05 and 12.03 shall survive the repayment of the Loans and the termination of
the Commitments. To the extent that any payments on the Debt hereunder or
proceeds of any collateral 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 Debt so satisfied shall be
revived and continue as if such payment or proceeds had not been received and
the Agent's and the Lenders' rights, powers and remedies under this Agreement
and each other Loan Document shall continue in full force and effect. In such
event, each Loan Document shall be automatically reinstated and the Borrower
shall take such action as may be reasonably requested by the Agent and the
Lenders to effect such reinstatement.
SECTION 12.11. CAPTIONS.
Captions and Section headings appearing herein are included solely for
convenience of reference and are not intended to affect the interpretation of
any provision of this Agreement.
SECTION 12.12. NO ORAL AGREEMENTS.
THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN
THE PARTIES AND SUPERSEDE ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH
PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF. THE LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 12.13. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND
ENFORCEABILITY HEREOF AND THEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, OTHER THAN THE CONFLICT OF
LAWS RULES THEREOF.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE LOAN DOCUMENTS
SHALL BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
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OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND,
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE AGENT,
THE GENERAL PARTNER AND EACH LENDER HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT
PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE BORROWER, THE AGENT, THE
GENERAL PARTNER AND EACH LENDER HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. THIS
SUBMISSION TO JURISDICTION IS NON-EXCLUSIVE AND DOES NOT PRECLUDE THE PARTIES
FROM OBTAINING JURISDICTION OVER OTHER PARTIES IN ANY COURT OTHERWISE HAVING
JURISDICTION.
(c) THE BORROWER AND THE GENERAL PARTNER HEREBY IRREVOCABLY DESIGNATE CT
CORPORATION LOCATED AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS THE DESIGNEE,
APPOINTEE AND AGENT OF ITSELF TO RECEIVE, FOR AND ON BEHALF OF ITSELF, SERVICE
OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THE LOAN DOCUMENTS. IT IS UNDERSTOOD THAT A COPY OF SUCH PROCESS
SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY OVERNIGHT COURIER TO THE
BORROWER AT ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW, BUT THE FAILURE OF
ANY OF THE BORROWER OR THE GENERAL PARTNER TO RECEIVE SUCH COPY SHALL NOT AFFECT
IN ANY WAY THE SERVICE OF SUCH PROCESS. THE BORROWER AND THE GENERAL PARTNER
FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS 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 SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER OR ANY GUARANTOR IN ANY
OTHER JURISDICTION.
(e) THE BORROWER, THE GENERAL PARTNER AND EACH LENDER HEREBY (i)
IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (ii) IRREVOCABLY
WAIVE, TO THE MAXIMUM EXTENT NOT PROHIBITED 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;
(iii) CERTIFY THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OF COUNSEL
FOR ANY PARTY HERETO HAS
69
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (iv)
ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION
12.13.
SECTION 12.14. INTEREST.
It is the intention of the parties hereto that each Lender shall conform
strictly to usury laws applicable to it. Accordingly, if the transactions
contemplated hereby would be usurious as to any Lender under laws applicable to
it (including the laws of the United States of America and the State of New York
or any other jurisdiction whose laws may be mandatorily applicable to such
Lender notwithstanding the other provisions of this Agreement), then, in that
event, notwithstanding anything to the contrary in any of the Loan Documents or
any agreement entered into in connection with or as security for the Loans, it
is agreed as follows: (i) the aggregate of all consideration which constitutes
interest under law applicable to any Lender that is contracted for, taken,
reserved, charged or received by such Lender under any of the Loan Documents or
agreements or otherwise in connection with the Loans shall under no
circumstances exceed the maximum amount allowed by such applicable law, and any
excess shall be canceled automatically and if theretofore paid shall be credited
by such Lender on the principal amount of the Debt (or, to the extent that the
principal amount of the Debt shall have been or would thereby be paid in full,
refunded by such Lender to the Borrower); and (ii) in the event that the
maturity of the Loans is accelerated by reason of an election of the holder
thereof resulting from any Event of Default under this Agreement or otherwise,
or in the event of any required or permitted prepayment, then such consideration
that constitutes interest under law applicable to any Lender may never include
more than the maximum amount allowed by such applicable law, and excess
interest, if any, provided for in this Agreement or otherwise shall be canceled
automatically by such Lender as of the date of such acceleration or prepayment
and, if theretofore paid, shall be credited by such Lender on the principal
amount of the Debt (or, to the extent that the principal amount of the Debt
shall have been or would thereby be paid in full, refunded by such Lender to the
Borrower). All sums paid or agreed to be paid to any Lender for the use,
forbearance or detention of sums due hereunder shall, to the extent permitted by
law applicable to such Lender, be amortized, prorated, allocated and spread
throughout the full term of the Loans until payment in full so that the rate or
amount of interest on account of any Loans hereunder does not exceed the maximum
amount allowed by such applicable law. If at any time and from time to time (i)
the amount of interest payable to any Lender on any date shall be computed at
the Highest Lawful Rate applicable to such Lender pursuant to this Section 12.14
and (ii) in respect of any subsequent interest computation period the amount of
interest otherwise payable to such Lender would be less than the amount of
interest payable to such Lender computed at the Highest Lawful Rate applicable
to such Lender, then the amount of interest payable to such Lender in respect of
such subsequent interest computation period shall continue to be computed at the
Highest Lawful Rate applicable to such Lender until the total amount of interest
payable to such Lender shall equal the total amount of interest which would have
been payable to such Lender if the total amount of interest had been computed
without giving effect to this Section 12.14.
70
SECTION 12.15. CONFIDENTIALITY.
In the event that the Borrower or any Guarantor provides to the Agent or
the Lenders written confidential information belonging to the Borrower or such
Guarantor, if the Borrower or such Guarantor shall denominate such information
in writing as "confidential", the Agent and the Lenders shall thereafter
maintain such information in confidence in accordance with the standards of care
and diligence that each utilizes in maintaining its own confidential
information. This obligation of confidence shall not apply to such portions of
the information which (i) are in the public domain, (ii) hereafter become part
of the public domain without the Agent or the Lenders breaching their obligation
of confidence to the Borrower and such Guarantor, (iii) are previously known by
the Agent or the Lenders from some source other than the Borrower or such
Guarantor, (iv) are hereafter developed by the Agent or the Lenders without
using the Borrower's or such Guarantor's information, (v) are hereafter obtained
by or available to the Agent or the Lenders from a third party who owes no
obligation of confidence to the Borrower or such Guarantor with respect to such
information or through any other means other than through disclosure by the
Borrower or such Guarantor, (vi) are disclosed with the Borrower's or the
Guarantor's consent, (vii) must be disclosed either pursuant to any Governmental
Requirement or to Persons regulating the activities of the Agent or the Lenders,
or (viii) as may be required by law or regulation or order of any Governmental
Authority in any judicial, arbitration or governmental proceeding. Further,
except where prohibited by applicable law, the Agent or a Lender may disclose
any such information to any other Lender, any independent petroleum engineers or
consultants, any independent certified public accountants, any legal counsel
employed by such Person in connection with this Agreement or any other Loan
Document, including without limitation, the enforcement or exercise of all
rights and remedies thereunder, or any assignee or participant (including
prospective assignees and participants) in the Loans; provided, however, that
the Agent or the Lenders shall receive a confidentiality agreement from the
Person to whom such information is disclosed such that said Person shall have
the same obligation to maintain the confidentiality of such information as is
imposed upon the Agent or the Lenders hereunder. Notwithstanding anything to the
contrary provided herein, this obligation of confidence shall cease three years
from the date the information was furnished, unless the Borrower and the
Guarantors request in writing at least 30 days prior to the expiration of such
three year period, to maintain the confidentiality of such information for an
additional three year period. Each of the Borrower and the Guarantors waives any
and all other rights it may have to confidentiality as against the Agent and the
Lenders arising by contract, agreement, statute or law except as expressly
stated in this Section 12.15.
SECTION 12.16. EXCULPATION PROVISIONS.
EACH OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS 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; 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
71
ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF THE 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 AND THE OTHER LOAN DOCUMENTS ON THE BASIS THAT THE PARTY HAD
NO NOTICE OR KNOWLEDGE OF SUCH PROVISION.
[Signatures Begin on Next Page]
S-1
The parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
BORROWER: BUCKEYE PARTNERS, L.P.
By Buckeye Pipe Line Company, its general
partner
By /s/ Xxxxxx x. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title:Senior Vice President-Finance
and Chief Financial Officer
Address for Notices:
5 Radnor Corporate Center
Xxxxx 000
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Telecopier No.:
Telephone No.:
Attention:
BUCKEYE PARTNERS, L.P. 364-DAY CREDIT AGREEMENT
SIGNATURE PAGE
S-2
SUNTRUST BANK
By /s/ Xxxxx X.Edge
---------------------------------
Name: Xxxxx X. Edge
Title: Director
Lending Office for Base Rate Loans and
LIBOR Loans:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Telecopier No.:
Telephone No.:
Attention:
Address for Notices:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Telecopier No.:
Telephone No.:
Attention:
BUCKEYE PARTNERS, L.P. 364-DAY CREDIT AGREEMENT
SIGNATURE PAGE
S-3
NATIONAL AUSTRALIA BANK LTD.
By /s/ Xxxx Xxxxxxx
---------------------------------
Name:Xxxx Xxxxxxx
Title:Head of Project Finance-Americas
Addresses for Notices:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.:
Telephone No.:
Attention:
BUCKEYE PARTNERS, L.P. 364-DAY CREDIT AGREEMENT
SIGNATURE PAGE
S-4
BNP PARIBAS
By /s/ X. Xxxxxxxx
---------------------------------
Name: X. Xxxxxxxx
Title: Director
By /s/ Xxxx Xxxxxxxx
---------------------------------
Name:Xxxx Xxxxxxxx
Title:Vice President
Addresses for Notices:
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.:
Telephone No.:
Attention:
BUCKEYE PARTNERS, L.P. 364-DAY CREDIT AGREEMENT
SIGNATURE PAGE
S-5
FLEET NATIONAL BANK
By /s/ Xxxx X. Xxxxxxxxx Bain
---------------------------------
Name: Xxxx X. Xxxxxxxxx Bain
Title:Vice President
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.:
Telephone No.:
Attention:
BUCKEYE PARTNERS, L.P. 364-DAY CREDIT AGREEMENT
SIGNATURE PAGE
S-6
CITIBANK, N.A.
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name:Doulas X. Xxxxxxx
Title:Attorney-In-Fact
Address for Notices:
Xxx Xxxx'x Xxx
Xxxxx 000
Xxx Xxxxxx, Xxxxxxxx 00000
Telecopier No.:
With a copy to:
Xxxxxxx X. Xxxxxxx
-----------------------
c/o Citicorp USA, Inc.
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.:
Telephone No.:
BUCKEYE PARTNERS, L.P. 364-DAY CREDIT AGREEMENT
SIGNATURE PAGE
S-7
[Intentionally Omitted]
BUCKEYE PARTNERS, L.P. 364-DAY CREDIT AGREEMENT
SIGNATURE PAGE
S-8
JPMORGAN CHASE BANK
By /s/ Xxxxxx X.Xxxxxxxx
---------------------------------
Name:Xxxxxx X.Xxxxxxxx
Title:Vice President
Address for Notices:
BUCKEYE PARTNERS, L.P. 364-DAY CREDIT AGREEMENT
SIGNATURE PAGE
S-9
[Intentionally Omitted]
BUCKEYE PARTNERS, L.P. 364-DAY CREDIT AGREEMENT
SIGNATURE PAGE
S-10
KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
BUCKEYE PARTNERS, L.P. 364-DAY CREDIT AGREEMENT
SIGNATURE PAGE
ANNEX I
364-DAY FACILITY
LIST OF PERCENTAGE SHARES AND REVOLVING CREDIT COMMITMENTS
Name of Lender Percentage Share Revolving Credit
Commitments
-------------- ---------------- ----------------
SunTrust Bank 22.1% $18,750,000
BNP Paribas 20.6% $17,500,000
National Australia Bank LTD. 17.6% $15,000,000
KeyBank National Association 17.6% $15,000,000
Fleet National Bank 10.3% $ 8,750,000
Citibank, N.A. 5.9% $ 5,000,000
JPMorgan Chase Bank 5.9% $ 5,000,000
I-1
EXHIBIT A
FORM OF BORROWING, CONTINUATION AND CONVERSION REQUEST
_____________, 200_
BUCKEYE PARTNERS, L.P., a Delaware limited partnership (the
"BORROWER"), pursuant to the Credit Agreement dated as of September 4, 2002,
among the Borrower, SunTrust Bank, as agent for the lenders (the "LENDERS")
which are or become parties thereto, and such Lenders (together with all
amendments or supplements thereto, the "CREDIT AGREEMENT"), hereby makes the
requests indicated below (unless otherwise defined herein, capitalized terms are
defined in the Credit Agreement):
[ ] 1. Loans:
(a) Aggregate amount of new Loans to be $_____________________;
(b) Requested funding date is _____________, 200__;
(c) $____________________ of such borrowings are to be LIBOR
Loans; $____________________ of such borrowings are to be Base
Rate Loans; and
(d) Length of Interest Period for LIBOR Loans is:
____________________.
[ ] 2. LIBOR Loan Continuation for LIBOR Loans maturing on
________________.
(a) Aggregate amount to be continued as LIBOR Loans is
$_________________;
(b) Aggregate amount to be converted to Base Rate Loans is
$_________________;
(c) Length of Interest Period for continued LIBOR Loans is
____________________.
[ ] 3. Conversion of Outstanding Base Rate Loans to LIBOR Loans:
Convert $____________ of the outstanding Base Rate Loans to
LIBOR Loans on ____________ with an Interest Period of
____________.
[ ] 4. Conversion of outstanding LIBOR Loans to Base Rate Loans:
Convert $_______________ of the outstanding LIBOR Loans with
Interest Period maturing on _____________, 200__, to Base Rate
Loans.
A-1
The undersigned certifies that he is the __________ of the general
partner of Borrower, and that as such he is authorized to execute this
certificate on behalf of the Borrower. The undersigned further certifies,
represents and warrants on behalf of the Borrower that the Borrower is entitled
to receive the requested borrowing, continuation or conversion under the terms
and conditions of the Credit Agreement.
BUCKEYE PARTNERS, L.P.
By Buckeye Pipe Line Company, its
general partner
By
---------------------------
Name:
Title:
A-2
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that it is the general partner of
BUCKEYE PARTNERS, L.P., a Delaware limited partnership (the "BORROWER") and
that, as such, it is authorized to execute this certificate on behalf of the
Borrower. With reference to the Credit Agreement, dated as of September 4, 2002,
among the Borrower, SunTrust Bank, as agent for the lenders (the "LENDERS")
which are or become a party thereto, and such Lenders (together with all
amendments or supplements thereto being the "CREDIT AGREEMENT"), the
undersigned, on behalf of the Borrower, represents and warrants as follows (each
capitalized term used herein having the same meaning given to it in the Credit
Agreement unless otherwise specified):
(a) The representations and warranties of the Borrower
contained in Article VII of the Credit Agreement and in the other Loan
Documents and otherwise made in writing by or on behalf of the Borrower
pursuant to the Credit Agreement and the other Loan Documents 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 as such representations and warranties are
modified to give effect to the transactions expressly permitted by the
Credit Agreement.
(b) The Borrower has performed and complied with all
agreements and conditions contained in the Credit Agreement and in the
other Loan Documents required to be performed or complied with by it
prior to or at the time of delivery hereof.
(c) None of the Borrower or any Restricted Subsidiary of the
Borrower has incurred any material liabilities, direct or contingent,
since [date of last audited financial statements delivered] except
those set forth in Schedule 9.01 to the Credit Agreement and except
those not prohibited by the terms of the Credit Agreement or consented
to by the Lenders in writing.
(d) Since [date of last audited financial statements
delivered], no change has occurred, either in any case or in the
aggregate, in the condition, financial or otherwise, of the Borrower or
any Subsidiary of the Borrower which would have a Material Adverse
Effect.
(e) There exists, and, after giving effect to the Loan or
Loans with respect to which this certificate is being delivered, will
exist, no Default under the Credit Agreement.
(f) The financial statements furnished to the Agent with this
certificate fairly present, in all material respects, the consolidated
financial condition and results of operations of the Borrower and its
Consolidated Subsidiaries as at the end of, and for, the [fiscal
quarter][fiscal year] ending and such financial statement have been
prepared in accordance with the accounting requirements specified in
the Credit Agreement.
B-1
(g) Attached hereto are the detailed computations necessary to
determine whether the Borrower is in compliance with Sections 9.12 and
9.13 of the Credit Agreement as of the end of the [fiscal quarter]
[fiscal year] ending ________________.
The officer signing this Certificate on behalf of the General Partner
hereby certifies that he/she holds the office set forth under his/her signature
and is authorized to execute this Certificate on behalf of the General Partner.
EXECUTED AND DELIVERED this ____ day of ________________.
BUCKEYE PARTNERS, L.P.
By: Buckeye Pipe Line Company, its
general partner
By
--------------------------
Name:
Title:
B-2
EXHIBIT C
FORM OF ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT ("AGREEMENT") dated as of _____________, 200__
between: _________________________ (the "ASSIGNOR") and
_________________________ (the "ASSIGNEE").
RECITALS
A. The Assignor is a party to the Credit Agreement dated as of
September 4, 2002 (as amended and supplemented and in effect from time to time,
the "CREDIT AGREEMENT") among Buckeye Partners, L.P., a limited partnership (the
"BORROWER"), each of the lenders that is or becomes a party thereto as provided
in Section 12.06 of the Credit Agreement (individually, together with its
successors and assigns, a "LENDER", and collectively, together with their
successors and assigns, the "LENDERS"), and SunTrust Bank, in its individual
capacity, ("SUNTRUST") and as agent for the Lenders (in such capacity, together
with its successors in such capacity, the "AGENT").
B. The Assignor proposes to sell, assign and transfer to the Assignee,
and the Assignee proposes to purchase and assume from the Assignor, [all][a
portion] of the Assignor's Commitment and outstanding Loans, all on the terms
and conditions of this Agreement.
C. In consideration of the foregoing and the mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS.
All capitalized terms used but not defined herein have the respective
meanings given to such terms in the Credit Agreement.
SECTION 1.02. OTHER DEFINITIONS.
As used herein, the following terms have the following respective
meanings:
"ASSIGNED INTEREST" shall mean all of Assignor's rights and
obligations (i) under the Credit Agreement and the other Loan Documents
in respect of the Commitment of the Assignor in the principal amount
equal to $______________, and (ii) to make Loans under the Commitment
and any right to receive payments for the Loans outstanding under the
Commitment assigned hereby of $_______________ (the "LOAN BALANCE"),
plus the interest and fees which will accrue from and after the
Assignment Date.
"ASSIGNMENT DATE" shall mean _____________, 200__.
C-1
ARTICLE II
SALE AND ASSIGNMENT
SECTION 2.01. SALE AND ASSIGNMENT.
On the terms and conditions set forth herein, effective on and as of
the Assignment Date, the Assignor hereby sells, assigns and transfers to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, all
of the right, title and interest of the Assignor in and to, and all of the
obligations of the Assignor in respect of, the Assigned Interest. Such sale,
assignment and transfer is without recourse and, except as expressly provided in
this Agreement, without representation or warranty.
SECTION 2.02. ASSUMPTION OF OBLIGATIONS.
The Assignee agrees with the Assignor (for the express benefit of the
Assignor and the Borrower) that the Assignee will, from and after the Assignment
Date, perform all of the obligations of the Assignor in respect of the Assigned
Interest. From and after the Assignment Date: (a) the Assignor shall be released
from the Assignor's obligations in respect of the Assigned Interest, and (b) the
Assignee shall be entitled to all of the Assignor's rights, powers and
privileges under the Credit Agreement and the other Loan Documents in respect of
the Assigned Interest.
SECTION 2.03. CONSENT BY AGENT.
By executing this Agreement as provided below, in accordance with
Section 12.06(b)of the Credit Agreement, the Agent hereby acknowledges notice of
the transactions contemplated by this Agreement and consents to such
transactions.
ARTICLE III
PAYMENTS
SECTION 3.01. PAYMENTS.
As consideration for the sale, assignment and transfer contemplated by
Section 2.01 hereof, the Assignee shall, on the Assignment Date, assume
Assignor's obligations in respect of the Assigned Interest and pay to the
Assignor an amount equal to the [Loan Balance], if any. An amount equal to all
accrued and unpaid interest and fees shall be paid to the Assignor as provided
in Section 3.02(iii) below. Except as otherwise provided in this Agreement, all
payments hereunder shall be made in Dollars and in immediately available funds,
without setoff, deduction or counterclaim.
SECTION 3.02. ALLOCATION OF PAYMENTS.
The Assignor and the Assignee agree that (i) the Assignor shall be
entitled to any payments of principal with respect to the Assigned Interest made
prior to the Assignment Date, together with any interest and fees with respect
to the Assigned Interest accrued prior to the Assignment Date, (ii) the Assignee
shall be entitled to any payments of principal with respect to
C-2
the Assigned Interest made from and after the Assignment Date, together with any
and all interest and fees with respect to the Assigned Interest accruing from
and after the Assignment Date, and (iii) the Agent is authorized and instructed
to allocate payments received by it for account of the Assignor and the Assignee
as provided in the foregoing clauses. Each party hereto agrees that it will hold
any interest, fees or other amounts that it may receive to which the other party
hereto shall be entitled pursuant to the preceding sentence for account of such
other party and pay, in like money and funds, any such amounts that it may
receive to such other party promptly upon receipt.
SECTION 3.03. FURTHER ASSURANCES.
The Assignor and the Assignee hereby agree to execute and deliver such
other instruments, and take such other actions, as either party may reasonably
request in connection with the transactions contemplated by this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01. CONDITIONS PRECEDENT.
The effectiveness of the sale, assignment and transfer contemplated
hereby is subject to the satisfaction of each of the following conditions
precedent:
(a) the execution and delivery of this Agreement by the
Assignor and the Assignee;
(b) the receipt by the Assignor of the payment required to be
made by the Assignee under Section 3.01 hereof; and
(c) the acknowledgment and consent by the Agent contemplated
by Section 2.03 hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNOR.
The Assignor represents and warrants to the Assignee as follows:
(a) it has all requisite power and authority, and has taken
all action necessary to execute and deliver this Agreement and to
fulfill its obligations under, and consummate the transactions
contemplated by, this Agreement;
(b) the execution, delivery and compliance with the terms
hereof by Assignor and the delivery of all instruments required to be
delivered by it hereunder do not and will not violate any Governmental
Requirement applicable to it;
C-3
(c) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligation of the
Assignor, enforceable against it in accordance with its terms;
(d) all approvals and authorizations of, all filings with and
all actions by any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been
obtained;
(e) the Assignor has good title to, and is the sole legal and
beneficial owner of, the Assigned Interest, free and clear of all
Liens, claims, participations or other charges of any nature
whatsoever; and
(f) the transactions contemplated by this Agreement are
commercial banking transactions entered into in the ordinary course of
the banking business of the Assignor.
SECTION 5.02. DISCLAIMER.
Except as expressly provided in Section 5.01 hereof, the Assignor does
not make any representation or warranty, nor shall it have any responsibility to
the Assignee, with respect to the accuracy of any recitals, statements,
representations or warranties contained in the Credit Agreement or in any
certificate or other document referred to or provided for in, or received by any
Lender under, the Credit Agreement, or for the value, validity, effectiveness,
genuineness, execution, effectiveness, legality, enforceability or sufficiency
of the Credit Agreement or any other document referred to or provided for
therein or for any failure by the Borrower or any other Person (other than
Assignor) to perform any of its obligations thereunder prior or for the
existence, value, perfection or priority of any collateral security or the
financial or other condition of the Borrower or the Subsidiaries [or any other
obligor or guarantor], or any other matter relating to the Credit Agreement or
any other Loan Document or any extension of credit thereunder.
SECTION 5.03. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE.
The Assignee represents and warrants to the Assignor as follows:
(a) it has all requisite power and authority, and has taken
all action necessary to execute and deliver this Agreement and to
fulfill its obligations under, and consummate the transactions
contemplated by, this Agreement;
(b) the execution, delivery and compliance with the terms
hereof by Assignee and the delivery of all instruments required to be
delivered by it hereunder do not and will not violate any Governmental
Requirement applicable to it;
(c) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against it in accordance with its terms;
C-4
(d) all approvals and authorizations of, all filings with and
all actions by any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been
obtained;
(e) the Assignee has fully reviewed the terms of the Credit
Agreement and the other Loan Documents and has independently and
without reliance upon the Assignor, and based on such information as
the Assignee has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement;
(f) the Assignee hereby affirms that the representations
contained in Section 4.06(d) of the Credit Agreement, if applicable,
are true and accurate as to it and the Assignee has contemporaneously
herewith delivered to the Agent and the Borrower such certifications as
are required thereby to avoid the withholding taxes referred to in
Section 4.06(d); and
(g) the transactions contemplated by this Agreement are
commercial banking transactions entered into in the ordinary course of
the banking business of the Assignee.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. NOTICES.
All notices and other communications provided for herein (including,
without limitation, any modifications of, or waivers, requests or consents
under, this Agreement) shall be given or made in writing (including, without
limitation, by telex or telecopy) to the intended recipient at its "ADDRESS FOR
NOTICES" specified below its name on the signature pages hereof or, as to either
party, at such other address as shall be designated by such party in a notice to
the other party.
SECTION 6.02. AMENDMENT, MODIFICATION OR WAIVER.
No provision of this Agreement may be amended, modified or waived
except by an instrument in writing signed by the Assignor and the Assignee, and
consented to by the Agent.
SECTION 6.03. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. The
representations and warranties made herein by the Assignee are also made for the
benefit of the Agent and the Borrower, and the Assignee agrees that the Agent
and the Borrower are entitled to rely upon such representations and warranties.
SECTION 6.04. ASSIGNMENTS.
Neither party hereto may assign any of its rights or obligations
hereunder except in accordance with the terms of the Credit Agreement.
SECTION 6.05. CAPTIONS.
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The captions and section headings appearing herein are included solely
for convenience of reference and are not intended to affect the interpretation
of any provision of this Agreement.
SECTION 6.06. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be identical and all of which, taken together, shall constitute one
and the same instrument, and each of the parties hereto may execute this
Agreement by signing any such counterpart.
SECTION 6.07. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the law of the State of New York.
SECTION 6.08. EXPENSES.
To the extent not paid by the Borrower pursuant to the terms of the
Credit Agreement, each party hereto shall bear its own expenses in connection
with the execution, delivery and performance of this Agreement.
SECTION 6.09. WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed and delivered as of the date first above written.
ASSIGNOR:
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By
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Name:
Title:
Address for Notices:
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----------------------------------------
----------------------------------------
Telecopier No.:
-------------------------
Telephone No.:
--------------------------
Attention:
------------------------------
ASSIGNEE:
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By
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Name:
Title:
Address for Notices:
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----------------------------------------
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Telecopier No.:
-------------------------
Telephone No.:
--------------------------
Attention:
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ACKNOWLEDGED AND CONSENTED TO:
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as Agent
By
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Name:
Title:
X-0
XXXXXXX X-0
RESTRICTED SUBSIDIARIES
AS OF THE DATE HEREOF
Buckeye Pipe Line Company, L.P.
Buckeye Pipe Line Holdings Company, L.P.
Buckeye Gulf Coast Holdings I, LLC
Buckeye Gulf Coast Holdings II, LLC
Buckeye Gulf Coast Pipe Lines, L.P.
Buckeye Terminals, LLC
Norco Pipe Line Company, LLC
Everglades Pipe Line Company, L.P.
Buckeye Pipe Line Company of Michigan
Laurel Pipe Line Company, L.P.
D-1
EXHIBIT D-2
UNRESTRICTED SUBSIDIARIES
AS OF THE DATE HEREOF
WesPac Pipelines Ltd.
WesPac Pipelines - Austin Ltd.
WesPac Pipelines - Memphis LLC
WesPac Pipelines - Reno Ltd.
WesPac Pipelines - San Diego Ltd.
WesPac Pipelines - San Xxxx Ltd.
WesPac Pipelines - Tucson Ltd.
Buckeye Telecom, L.P.
Buckeye Products Pipe Line, L.P.
Gulf Coast Pipe Line, L.P.
D-2
EXHIBIT E
FORM OF GUARANTY
THIS GUARANTY, dated as of ____________ __, 200__, by [NAME OF
GUARANTOR] (the "GUARANTOR"), is in favor of SUNTRUST BANK, as agent (the
"AGENT") for the lenders (the "LENDERS") that are or become parties to the
Credit Agreement defined below.
W I T N E S S E T H:
WHEREAS, on even date herewith, BUCKEYE PARTNERS, L.P., a Delaware
limited partnership (the "BORROWER"), the Agent and the Lenders have entered
into that certain 364-Day Credit Agreement (as the same may be amended,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT");
and
WHEREAS, one of the terms and conditions stated in the Credit Agreement
for the making of the loans described therein is the execution and delivery to
the Agent for the benefit of the Lenders of this Guaranty;
NOW, THEREFORE, (i) in order to comply with the terms and conditions of
the Credit Agreement, (ii) to induce the Lenders, at any time or from time to
time, to loan monies, with or without security to or for the account of Borrower
in accordance with the terms of the Credit Agreement, (iii) at the special
insistence and request of the Lenders, and (iv) for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Guarantor hereby agrees as follows:
ARTICLE I
GENERAL TERMS
SECTION 1.01. CERTAIN DEFINITIONS.
As used in this Guaranty, the following terms shall have the following
meanings, unless the context otherwise requires:
"AGENT" shall have the meaning assigned such term in the
preamble to this Guaranty.
"BORROWER" shall have the meaning assigned such term in the
preamble to this Guaranty.
"CONTRIBUTION OBLIGATION" shall mean an amount equal, at any
time and from time to time and for each respective Subsidiary
Guarantor, to the product of (i) its Contribution Percentage times (ii)
the sum of all payments made previous to or at the time of calculation
by all Subsidiary Guarantors in respect of the Liabilities, as a
Subsidiary Guarantor (less the amount of any such payments previously
returned to any Subsidiary Guarantor by operation of law or otherwise,
but not including payments received by any Subsidiary Guarantor by way
of its rights of subrogation and contribution under Section 2.09 of the
other Guaranty), provided, however, such
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Contribution Obligation for any Subsidiary Guarantor shall in no event
exceed such Subsidiary Guarantor's Maximum Guaranteed Amount, as
defined in the respective Guaranty of such Subsidiary Guarantor.
"CONTRIBUTION PERCENTAGE" shall mean for any Subsidiary
Guarantor for any applicable date as of which such percentage is being
determined, an amount equal to the quotient of (i) the Net Worth of
such Subsidiary Guarantor as of such date, divided by (ii) the sum of
the Net Worth of all the Subsidiary Guarantors as of such date.
"CREDIT AGREEMENT" shall have the meaning assigned such term
in the preamble to this Guaranty.
"GUARANTOR" shall have the meaning assigned such term in the
preamble to this Guaranty.
"GUARANTOR CLAIMS" shall have the meaning indicated in Section
4.01 hereof.
"GUARANTY" shall mean this Guaranty, and where the context
indicates, the Guaranty of any other Subsidiary Guarantor, as the same
may from time to time be amended, supplemented, or otherwise modified.
"LENDERS" shall have the meaning assigned such term in the
preamble to this Guaranty.
"LIABILITIES" shall mean (a) any and all indebtedness,
obligations and liabilities of the Borrower pursuant to the Credit
Agreement, including without limitation, (i) the unpaid principal of
and interest under the Credit Agreement, including without limitation,
interest accruing subsequent to the filing of a petition or other
action concerning bankruptcy or other similar proceeding, (ii) payment
of and performance of any and all Hedging Agreements between the
Borrower and any of the Lenders or their Affiliates, and (iii) any
additional Loans made by the Lenders to the Borrower; (b) any and all
other indebtedness, obligations and liabilities of any kind of the
Borrower to the Lenders, now or hereafter existing, arising directly
between the Borrower and the Lenders or acquired outright, as a
participation, conditionally or as collateral security from another by
the Lenders, absolute or contingent, joint and/or several, secured or
unsecured, due or not due, arising by operation of law or otherwise, or
direct or indirect, including indebtedness, obligations and liabilities
to the Lenders of the Borrower as a member of any partnership,
syndicate, association or other group, and whether incurred by the
Borrower as principal, surety, endorser, guarantor, accommodation party
or otherwise and (c) all renewals, rearrangements, substitutions,
increases, extensions for any period, amendments or supplements in
whole or in part of the Credit Agreement or any documents evidencing
the above.
"MAXIMUM GUARANTEED AMOUNT" shall mean, for the Guarantor, the
greater of (i) the "reasonably equivalent value" or "fair
consideration" (or equivalent concept) received by the Guarantor in
exchange for the obligation incurred hereunder, within the meaning of
any applicable state or federal fraudulent conveyance or transfer laws;
or (ii) the lesser of (a) the maximum amount that will not render the
Guarantor insolvent, or
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(b) the maximum amount that will not leave the Guarantor with any
property deemed an unreasonably small capital. Clauses (a) and (b) are
and shall be determined pursuant to and as of the appropriate date
mandated by such applicable state or federal fraudulent conveyance or
transfer laws and to the extent allowed by law take into account the
rights to contribution and subrogation under Section 2.08 in each
Guaranty so as to provide for the largest Maximum Guaranteed Amount
possible.
"NET PAYMENTS" shall mean an amount equal, at any time and
from time to time and for each respective Subsidiary Guarantor, to the
difference of (i) the sum of all payments made previous to or at the
time of calculation by such Subsidiary Guarantor in respect to the
Liabilities, as a Subsidiary Guarantor, and in respect of its
obligations contained in this Guaranty, less (ii) the sum of all such
payments previously returned to such Subsidiary Guarantor by operation
of law or otherwise and including payments received by such Subsidiary
Guarantor by way of its rights of subrogation and contribution under
Section 2.08 of the other Guaranty.
"NET WORTH" shall mean for any Subsidiary Guarantor,
calculated on and as of any applicable date on which such amount is
being determined, the difference between (i) the sum of all such
Subsidiary Guarantor's property, at a fair valuation and as of such
date, minus (ii) the sum of all such Subsidiary Guarantor's debts, at a
fair valuation and as of such date, excluding the Liabilities.
"SUBSIDIARY GUARANTORS" shall mean the Guarantor and any other
Affiliate of the Borrower which executes a guaranty securing the
Liabilities.
SECTION 1.02. CREDIT AGREEMENT DEFINITIONS.
Unless otherwise defined herein, all terms beginning with a capital
letter which are defined in the Credit Agreement shall have the same meanings
herein as therein.
ARTICLE II
THE GUARANTY
SECTION 2.01. LIABILITIES GUARANTEED.
Guarantor hereby irrevocably and unconditionally guarantees in favor of
the Agent for the benefit of the Lenders the prompt payment of the Liabilities
when due, whether at maturity or otherwise, provided, however, that,
notwithstanding anything herein or in any other Loan Document to the contrary,
the maximum liability of Guarantor hereunder shall in no event exceed the
Maximum Guaranteed Amount.
SECTION 2.02. NATURE OF GUARANTY.
This Guaranty is an absolute, irrevocable, completed and continuing
guaranty of payment and not a guaranty of collection, and no notice of the
Liabilities or any extension of credit already or hereafter contracted by or
extended to Borrower need be given to Guarantor. This Guaranty may not be
revoked by Guarantor and shall continue to be effective with respect to debt
under the Liabilities arising or created after any attempted revocation by
Guarantor and
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shall remain in full force and effect until the Liabilities are paid in full and
the Commitments are terminated, notwithstanding that from time to time prior
thereto no Liabilities may be outstanding. The Borrower and the Lenders may
modify, alter, rearrange, extend for any period and/or renew from time to time,
the Liabilities, and the Lenders may waive any Default or Event of Default
without notice to the Guarantor and in such event Guarantor will remain fully
bound hereunder on the Liabilities. This Guaranty shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of the
Liabilities is rescinded or must otherwise be returned by any of the Lenders
upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, all
as though such payment had not been made. This Guaranty may be enforced by the
Agent and any subsequent holder of any of the Liabilities and shall not be
discharged by the assignment or negotiation of all or part of the Liabilities.
Except as otherwise expressly provided herein, Guarantor hereby expressly waives
presentment, demand, notice of non-payment, protest and notice of protest and
dishonor, notice of Default or Event of Default, notice of intent to accelerate
the maturity and notice of acceleration of the maturity and any other notice in
connection with the Liabilities, and also notice of acceptance of this Guaranty,
acceptance on the part of the Lenders being conclusively presumed by the
Lenders' request for this Guaranty and delivery of the same to the Agent.
SECTION 2.03. GUARANTOR'S WAIVERS.
Guarantor waives any right to require any of the Lenders to (i) proceed
against Borrower or any other person liable on the Liabilities, (ii) enforce any
of their rights against any other guarantor of the Liabilities, (iii) proceed or
enforce any of their rights against or exhaust any security given to secure the
Liabilities, (iv) have Borrower joined with Guarantor in any suit arising out of
this Guaranty and/or the Liabilities, or (v) pursue any other remedy in the
Lenders' powers whatsoever. The Lenders shall not be required to mitigate
damages or take any action to reduce, collect or enforce the Liabilities.
Guarantor waives any defense arising by reason of any disability, lack of
corporate authority or power, or other defense of Borrower or any other
guarantor of the Liabilities, and shall remain liable hereon regardless of
whether Borrower or any other guarantor be found not liable thereon for any
reason. Whether and when to exercise any of the remedies of the Lenders under
any of the Loan Documents shall be in the sole and absolute discretion of the
Agent, and no delay by the Agent in enforcing any remedy, including delay in
conducting a foreclosure sale, shall be a defense to the Guarantor's liability
under this Guaranty.
SECTION 2.04. MATURITY OF LIABILITIES; PAYMENT.
Guarantor agrees that if the maturity of any of the Liabilities is
accelerated by bankruptcy or otherwise, such maturity shall also be deemed
accelerated for the purpose of this Guaranty without demand or notice to
Guarantor. Guarantor will, forthwith upon notice from the Agent, pay to the
Agent the amount due and unpaid by Borrower and guaranteed hereby. The failure
of the Agent to give this notice shall not in any way release Guarantor
hereunder.
SECTION 2.05. AGENT'S EXPENSES.
If Guarantor fails to pay the Liabilities after notice from the Agent
of Borrower's failure to pay any Liabilities at maturity, and if the Agent
obtains the services of an attorney for collection of amounts owing by Guarantor
hereunder, or obtaining advice of counsel in respect
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of any of their rights under this Guaranty, or if suit is filed to enforce this
Guaranty, or if proceedings are had in any bankruptcy, probate, receivership or
other judicial proceedings for the establishment or collection of any amount
owing by Guarantor hereunder, or if any amount owing by Guarantor hereunder is
collected through such proceedings, Guarantor agrees to pay to the Agent the
Agent's reasonable attorneys' fees.
SECTION 2.06. LIABILITY.
It is expressly agreed that the liability of the Guarantor for the
payment of the Liabilities guaranteed hereby shall be primary and not secondary.
SECTION 2.07. EVENTS AND CIRCUMSTANCES NOT REDUCING OR DISCHARGING
GUARANTOR'S OBLIGATIONS.
Guarantor hereby consents and agrees to each of the following to the
fullest extent permitted by law, and agrees that Guarantor's obligations under
this Guaranty shall not be released, diminished, impaired, reduced or adversely
affected by any of the following, and waives any rights (including without
limitation rights to notice) which Guarantor might otherwise have as a result of
or in connection with any of the following:
(a) Modifications, etc. Any renewal, extension, modification,
increase, decrease, alteration or rearrangement of all or any part of
the Liabilities or the Credit Agreement or any instrument executed in
connection therewith, or any contract or understanding between Borrower
and any of the Lenders, or any other Person, pertaining to the
Liabilities;
(b) Adjustment, etc. Any adjustment, indulgence, forbearance
or compromise that might be granted or given by any of the Lenders to
Borrower or Guarantor or any Person liable on the Liabilities;
(c) Condition of Borrower or Guarantor. The insolvency,
bankruptcy arrangement, adjustment, composition, liquidation,
disability, dissolution, death or lack of power of Borrower or
Guarantor or any other Person at any time liable for the payment of all
or part of the Liabilities; or any dissolution of Borrower or
Guarantor, or any sale, lease or transfer of any or all of the assets
of Borrower or Guarantor, or any changes in the shareholders, partners,
or members of Borrower or Guarantor; or any reorganization of Borrower
or Guarantor;
(d) Invalidity of Liabilities. The invalidity, illegality or
unenforceability of all or any part of the Liabilities, or any document
or agreement executed in connection with the Liabilities, for any
reason whatsoever, including without limitation the fact that the
Liabilities, or any part thereof, exceed the amount permitted by law,
the act of creating the Liabilities or any part thereof is ultra xxxxx,
the officers or representatives executing the documents or otherwise
creating the Liabilities acted in excess of their authority, the
Liabilities violate applicable usury laws, the Borrower has valid
defenses, claims or offsets (whether at law, in equity or by agreement)
which render the Liabilities wholly or partially uncollectible from
Borrower, the creation, performance or repayment of the Liabilities (or
the execution, delivery and performance of any document or instrument
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representing part of the Liabilities or executed in connection with the
Liabilities, or given to secure the repayment of the Liabilities) is
illegal, uncollectible, legally impossible or unenforceable, or the
Credit Agreement or other documents or instruments pertaining to the
Liabilities have been forged or otherwise are irregular or not genuine
or authentic;
(e) Release of Obligors. Any full or partial release of the
liability of Borrower on the Liabilities or any part thereof, of any
co-guarantors, or any other Person now or hereafter liable, whether
directly or indirectly, jointly, severally, or jointly and severally,
to pay, perform, guarantee or assure the payment of the Liabilities or
any part thereof, it being recognized, acknowledged and agreed by
Guarantor that Guarantor may be required to pay the Liabilities in full
without assistance or support of any other Person, and Guarantor has
not been induced to enter into this Guaranty on the basis of a
contemplation, belief, understanding or agreement that other parties
other than the Borrower will be liable to perform the Liabilities, or
the Lenders will look to other parties to perform the Liabilities.
(f) Other Security. The taking or accepting of any other
security, collateral or guaranty, or other assurance of payment, for
all or any part of the Liabilities;
(g) Release of Collateral, etc. Any release, surrender,
exchange, subordination, deterioration, waste, loss or impairment
(including without limitation negligent, willful, unreasonable or
unjustifiable impairment) of any collateral, property or security, at
any time existing in connection with, or assuring or securing payment
of, all or any part of the Liabilities;
(h) Care and Diligence. The failure of the Lenders or any
other Person to exercise diligence or reasonable care in the
preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral, property or security;
(i) Status of Liens. The fact that any collateral, security,
security interest or lien contemplated or intended to be given, created
or granted as security for the repayment of the Liabilities shall not
be properly perfected or created, or shall prove to be unenforceable or
subordinate to any other security interest or lien, it being recognized
and agreed by Guarantor that Guarantor is not entering into this
Guaranty in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the
collateral for the Liabilities;
(j) Payments Rescinded. Any payment by Borrower to the Lenders
is held to constitute a preference under the bankruptcy laws, or for
any reason the Lenders are required to refund such payment or pay such
amount to Borrower or someone else; or
(k) Other Actions Taken or Omitted. Any other action taken or
omitted to be taken with respect to the Credit Agreement, the
Liabilities, or the security and collateral therefor, whether or not
such action or omission prejudices Guarantor or increases the
likelihood that Guarantor will be required to pay the Liabilities
pursuant to the terms hereof; it being the unambiguous and unequivocal
intention of Guarantor that Guarantor shall be obligated to pay the
Liabilities when due, notwithstanding any occurrence,
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circumstance, event, action, or omission whatsoever, whether
contemplated or uncontemplated, and whether or not otherwise or
particularly described herein, except for the full and final payment
and satisfaction of the Liabilities.
SECTION 2.08. RIGHT OF SUBROGATION AND CONTRIBUTION.
If Guarantor makes a payment in respect of the Liabilities, it shall be
subrogated to the rights of the Lenders against the Borrower with respect to
such payment and shall have the rights of contribution against the other
Subsidiary Guarantors set forth in Section 2.08 of the Subsidiary Guarantors'
Guaranty; provided that Guarantor shall not enforce its rights to any payment by
way of subrogation or by exercising its rights of contribution or reimbursement
or the right to participate in any security now or hereafter held by or for the
benefit of the Lenders until the Liabilities have been paid in full. The
Guarantor agrees that after all the Liabilities have been paid in full that if
its then current Net Payments are less than the amount of its then current
Contribution Obligation, Guarantor shall pay to the other Subsidiary Guarantors
an amount (together with any payments required of the other Subsidiary
Guarantors by Section 2.08 of each other Guaranty) such that the Net Payments
made by all Subsidiary Guarantors in respect of the Liabilities shall be shared
among all of the Subsidiary Guarantors in proportion to their respective
Contribution Percentage.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. BY GUARANTOR.
In order to induce the Lenders to accept this Guaranty, Guarantor
represents and warrants to the Lenders (which representations and warranties
will survive the creation of the Liabilities and any extension of credit
thereunder) that:
(a) Benefit to Guarantor. Guarantor's guaranty pursuant to
this Guaranty reasonably may be expected to benefit, directly or
indirectly, Guarantor.
(b) Existence. Guarantor is a [limited partnership] duly
organized, legally existing and in good standing under the laws of [the
State of Delaware] and is duly qualified in all jurisdictions wherein
the property owned or the business transacted by it makes such
qualification necessary, except where the failure to be so qualified
would not have a Material Adverse Effect.
(c) Partnership Power and Authorization. Guarantor is duly
authorized and empowered to execute, deliver and perform this Guaranty
and all action on Guarantor's part requisite for the due execution,
delivery and performance of this Guaranty has been duly and effectively
taken.
(d) Binding Obligations. This Guaranty constitutes valid and
binding obligations of Guarantor, enforceable in accordance with its
terms (except that enforcement may be subject to any applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium, or similar
laws generally affecting the enforcement of creditors' rights).
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(e) No Legal Bar or Resultant Lien. This Guaranty will not
violate any provisions of Guarantor's [agreement of limited
partnership], or any contract, agreement, law, regulation, order,
injunction, judgment, decree or writ to which Guarantor is subject, or
result in the creation or imposition of any Lien upon any Properties of
Guarantor.
(f) No Consent. Guarantor's execution, delivery and
performance of this Guaranty does not require the consent or approval
of any other Person, including without limitation any regulatory
authority or governmental body of the United States or any state
thereof or any political subdivision of the United States or any state
thereof.
(g) Solvency. The Guarantor hereby represents that (i) it is
not insolvent as of the date hereof and will not be rendered insolvent
as a result of this Guaranty, (ii) it is not engaged in business or a
transaction, or about to engage in a business or a transaction, for
which any property or assets remaining with such Guarantor is
unreasonably small capital, and (iii) it does not intend to incur, or
believe it will incur, debts that will be beyond its ability to pay as
such debts mature.
SECTION 3.02. NO REPRESENTATION BY LENDERS.
Neither the Lenders nor any other Person has made any representation,
warranty or statement to the Guarantor in order to induce the Guarantor to
execute this Guaranty.
ARTICLE IV
SUBORDINATION OF INDEBTEDNESS
SECTION 4.01. SUBORDINATION OF ALL GUARANTOR CLAIMS.
As used herein, the term "Guarantor Claims" shall mean all debts and
liabilities of Borrower to Guarantor, whether such debts and liabilities now
exist or are hereafter incurred or arise, or whether the obligation of Borrower
thereon be direct, contingent, primary, secondary, several, joint and several,
or otherwise, and irrespective of whether such debts or liabilities be evidenced
by note, contract, open account, or otherwise, and irrespective of the person or
persons in whose favor such debts or liabilities may, at their inception, have
been, or may hereafter be created, or the manner in which they have been or may
hereafter be acquired by Guarantor. The Guarantor Claims shall include without
limitation all rights and claims of Guarantor against Borrower arising as a
result of subrogation or otherwise as a result of Guarantor's payment of all or
a portion of the Liabilities. Until the Liabilities shall be paid and satisfied
in full and Guarantor shall have performed all of its obligations hereunder,
except as otherwise not prohibited by the Credit Agreement, Guarantor shall not
receive or collect, directly or indirectly, from Borrower or any other party any
amount upon the Guarantor Claims.
SECTION 4.02. CLAIMS IN BANKRUPTCY.
In the event of receivership, bankruptcy, reorganization, arrangement,
debtor's relief, or other insolvency proceedings involving Borrower as debtor,
the Lenders shall have the right to prove their claim in any proceeding, so as
to establish its rights hereunder and receive directly from the receiver,
trustee or other court custodian, dividends and payments which would otherwise
be payable upon Guarantor Claims. Guarantor hereby assigns such dividends and
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payments to the Lenders. Should the Agent or any Lender receive, for application
upon the Liabilities, any such dividend or payment which is otherwise payable to
Guarantor, and which, as between Borrower and Guarantor, shall constitute a
credit upon the Guarantor Claims, then upon payment in full of the Liabilities,
Guarantor shall become subrogated to the rights of the Lenders to the extent
that such payments to the Lenders on the Guarantor Claims have contributed
toward the liquidation of the Liabilities, and such subrogation shall be with
respect to that proportion of the Liabilities which would have been unpaid if
the Agent or a Lender had not received dividends or payments upon the Guarantor
Claims.
SECTION 4.03. PAYMENTS HELD IN TRUST.
In the event that notwithstanding Sections 4.01 and 4.02 above,
Guarantor should receive any funds, payments, claims or distributions which is
prohibited by such Sections, Guarantor agrees to hold in trust for the Lenders
an amount equal to the amount of all funds, payments, claims or distributions so
received, and agrees that it shall have absolutely no dominion over the amount
of such funds, payments, claims or distributions except to pay them promptly to
the Agent, and Guarantor covenants promptly to pay the same to the Agent.
SECTION 4.04. LIENS SUBORDINATE.
Guarantor agrees that any liens, security interests, judgment liens,
charges or other encumbrances upon Borrower's assets securing payment of the
Guarantor Claims shall be and remain inferior and subordinate to any liens,
security interests, judgment liens, charges or other encumbrances upon
Borrower's assets securing payment of the Liabilities, regardless of whether
such encumbrances in favor of Guarantor, the Agent or the Lenders presently
exist or are hereafter created or attach. Without the prior written consent of
the Lenders, Guarantor shall not (a) exercise or enforce any creditor's right it
may have against the Borrower, or (b) foreclose, repossess, sequester or
otherwise take steps or institute any action or proceeding (judicial or
otherwise, including without limitation the commencement of or joinder in any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any lien, mortgages, deeds of trust, security interest,
collateral rights, judgments or other encumbrances on assets of Borrower held by
Guarantor.
SECTION 4.05. NOTATION OF RECORDS.
All promissory notes, accounts receivable ledgers or other evidence of
the Guarantor Claims accepted by or held by Guarantor shall contain a specific
written notice thereon that the indebtedness evidenced thereby is subordinated
under the terms of this Guaranty.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. SUCCESSORS AND ASSIGNS.
This Guaranty is and shall be in every particular available to the
successors and assigns of the Lenders and is and shall always be fully binding
upon the legal representatives, heirs, successors and assigns of Guarantor,
notwithstanding that some or all of the monies, the
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repayment of which this Guaranty applies, may be actually advanced after any
bankruptcy, receivership, reorganization, death, disability or other event
affecting Guarantor.
SECTION 5.02. NOTICES.
Any notice or demand to Guarantor under or in connection with this
Guaranty may be given and shall conclusively be deemed and considered to have
been given and received in accordance with Section 12.02 of the Credit
Agreement, addressed to Guarantor at the address on the signature page hereof or
at such other address provided to the Agent in writing.
SECTION 5.03. BUSINESS AND FINANCIAL INFORMATION.
The Guarantor will promptly furnish to the Agent and the Lenders from
time to time upon request such information regarding the business and affairs
and financial condition of the Guarantor and its subsidiaries as the Agent and
the Lenders may reasonably request.
SECTION 5.04. CONSTRUCTION.
This Guaranty is a contract made under and shall be construed in
accordance with and governed by the law of the State of New York.
SECTION 5.05. INVALIDITY.
In the event that any one or more of the provisions contained in this
Guaranty shall, for any reason, be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Guaranty.
SECTION 5.06. ENTIRE AGREEMENT.
THIS WRITTEN GUARANTY EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING
BETWEEN THE LENDERS AND THE GUARANTOR AND SUPERSEDES ALL OTHER AGREEMENTS AND
UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND
THEREOF. THIS WRITTEN GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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WITNESS THE EXECUTION HEREOF, as of the date first above written.
[NAME OF GUARANTOR]
By ,
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its General Partner
By
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Name:
Title:
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[NOTARY IF REQUIRED]
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