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EXHIBIT 10.14
EXECUTION COPY
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THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
among
LEVIATHAN GAS PIPELINE PARTNERS, L.P.,
LEVIATHAN FINANCE CORPORATION,
The Several Lenders
from Time to Time Parties Hereto,
CREDIT LYONNAIS,
as Syndication Agent
BANKBOSTON, N.A.
as Documentation Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of March 23, 1995,
as amended and restated
through May 27, 1999
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CHASE SECURITIES INC., as Lead Arranger
and Book Manager
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS...........................................................................................1
1.1 Defined Terms........................................................................................1
1.2 Other Definitional Provisions.......................................................................22
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS.....................................................22
2.1 Revolving Credit Commitments........................................................................22
2.2 Repayment of Loans; Evidence of Debt................................................................22
2.3 Procedure for Revolving Credit Borrowing............................................................23
2.4 Limitations on Revolving Credit Loans...............................................................24
2.5 Commitment Fee......................................................................................24
2.6 Termination or Reduction of Revolving Credit Commitments............................................24
2.7 Extensions of Revolving Credit Termination Date.....................................................25
SECTION 3. LETTERS OF CREDIT....................................................................................25
3.1 Issuance of Letters of Credit.......................................................................25
3.2 Procedure for Issuance of Letters of Credit.........................................................26
3.3 Participations and Payments in Respect of the Letters of Credit.....................................26
3.4 Fees, Commissions and Other Charges.................................................................27
3.5 Reimbursement Obligation of the Borrower............................................................28
3.6 Obligations Absolute................................................................................28
3.7 Letter of Credit Payments...........................................................................29
3.8 Applications........................................................................................29
SECTION 4. GENERAL PROVISIONS...................................................................................29
4.1 Optional and Mandatory Prepayments..................................................................29
4.2 Conversion and Continuation Options.................................................................30
4.3 Minimum Amounts of Tranches.........................................................................30
4.4 Interest Rates and Payment Dates....................................................................31
4.5 Computation of Interest and Fees....................................................................31
4.6 Inability to Determine Interest Rate................................................................31
4.7 Pro Rata Treatment and Payments.....................................................................32
4.8 Illegality..........................................................................................33
4.9 Requirements of Law.................................................................................33
4.10 Taxes..............................................................................................34
4.11 Indemnity..........................................................................................35
4.12 Lenders Obligation to Mitigate.....................................................................36
4.13 Certain Permitted Transactions.....................................................................36
4.14 Certain Adjustments................................................................................37
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4.15 Redesignated Senior Indebtedness...................................................................37
SECTION 5. REPRESENTATIONS AND WARRANTIES.......................................................................37
5.1 Financial Condition.................................................................................37
5.2 No Change...........................................................................................38
5.3 Existence; Compliance with Law......................................................................38
5.4 Power; Authorization; Enforceable Obligations.......................................................38
5.5 No Legal Bar........................................................................................39
5.6 No Material Litigation..............................................................................39
5.7 No Default..........................................................................................40
5.8 Ownership of Property; Liens........................................................................40
5.9 Intellectual Property...............................................................................40
5.10 No Burdensome Restrictions.........................................................................40
5.11 Taxes..............................................................................................40
5.12 Federal Regulations................................................................................40
5.13 ERISA..............................................................................................41
5.14 Investment Company Act; Other Regulations..........................................................41
5.15 Subsidiaries.......................................................................................41
5.16 Purpose of Revolving Credit Loans, Letters of Credit...............................................41
5.17 Environmental Matters..............................................................................41
5.18 Accuracy and Completeness of Information...........................................................42
5.19 Security Documents.................................................................................43
5.20 Joint Venture Charters, Management Agreement, etc. ................................................43
5.21 Senior Indebtedness................................................................................44
5.22 Year 2000 Matters..................................................................................44
SECTION 6. CONDITIONS PRECEDENT.................................................................................44
6.1 Conditions to Initial Extensions of Credit..........................................................44
6.2 Conditions to Each Extension of Credit..............................................................49
SECTION 7. AFFIRMATIVE COVENANTS................................................................................50
7.1 Financial Statements................................................................................50
7.2 Certificates; Other Information.....................................................................51
7.3 Payment of Obligations..............................................................................53
7.4 Conduct of Business and Maintenance of Existence....................................................53
7.5 Maintenance of Property; Insurance..................................................................53
7.6 Inspection of Property; Books and Records; Discussions..............................................54
7.7 Notices.............................................................................................54
7.8 Environmental Laws..................................................................................54
7.9 Maintenance of Liens of the Security Documents......................................................55
7.10 Pledge of After-Acquired Property..................................................................55
7.11 Agreements Respecting Unrestricted Subsidiaries....................................................56
7.12 Commodity Hedging Programs.........................................................................57
7.13 Joint Venture Charters, Management Agreement, etc. ................................................57
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SECTION 8. NEGATIVE COVENANTS...................................................................................57
8.1 Financial Condition Covenants.......................................................................57
8.2 Limitation on Indebtedness..........................................................................57
8.3 Limitation on Liens.................................................................................58
8.4 Limitation on Guarantee Obligations.................................................................59
8.5 Limitations on Fundamental Changes..................................................................60
8.6 Limitation on Sale of Assets........................................................................60
8.7 Limitation on Dividends.............................................................................61
8.8 Limitation on Investments, Loans and Advances.......................................................61
8.9 Limitation on Optional Payments and Modifications of Debt Instruments and Other
Agreements.........................................................................................62
8.10 Limitation on Transactions with Affiliates.........................................................63
8.11 Limitation on Sales and Leasebacks.................................................................63
8.12 Limitation on Changes in Fiscal Year...............................................................63
8.13 Limitation on Lines of Business....................................................................63
8.14 Corporate Documents................................................................................63
8.15 Compliance with ERISA..............................................................................63
8.16 Limitation on Restrictions Affecting Subsidiaries..................................................63
8.17 Creation of Restricted Subsidiaries................................................................64
8.18 Hazardous Materials................................................................................64
8.19 Holding Companies..................................................................................64
8.20 No Voluntary Termination of Joint Venture Charters.................................................65
8.21 Actions by Joint Ventures..........................................................................65
8.22 Hedging Transactions...............................................................................65
SECTION 9. EVENTS OF DEFAULT....................................................................................65
SECTION 10. THE ADMINISTRATIVE AGENT............................................................................69
10.1 Appointment........................................................................................69
10.2 Delegation of Duties...............................................................................69
10.3 Exculpatory Provisions.............................................................................69
10.4 Reliance by Administrative Agent...................................................................70
10.5 Notice of Default..................................................................................70
10.6 Non-Reliance on Administrative Agent and Other Lenders.............................................70
10.7 Indemnification....................................................................................71
10.8 Administrative Agent in Its Individual Capacity....................................................71
10.9 Successor Administrative Agent.....................................................................71
10.10 Other Agents......................................................................................72
SECTION 11. MISCELLANEOUS.......................................................................................72
11.1 Amendments and Waivers.............................................................................72
11.2 Notices............................................................................................73
11.3 No Waiver; Cumulative Remedies.....................................................................74
11.4 Survival of Representations and Warranties.........................................................74
11.5 Payment of Expenses and Taxes......................................................................74
11.6 Successors and Assigns; Participations; Purchasing Lenders.........................................75
11.7 Adjustments; Set-off...............................................................................77
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11.8 Counterparts.......................................................................................78
11.9 Severability.......................................................................................78
11.10 Integration.......................................................................................78
11.11 Usury Savings Clause..............................................................................78
11.12 GOVERNING LAW.....................................................................................79
11.13 Submission To Jurisdiction; Waivers...............................................................79
11.14 Acknowledgements..................................................................................80
11.15 Confidentiality...................................................................................80
11.16 WAIVERS OF JURY TRIAL.............................................................................80
11.17 ACKNOWLEDGEMENT OF NO CLAIMS, OFFSETS OR DEFENSES;
RELEASE BY THE LOAN PARTIES.......................................................................81
11.18 Releases..........................................................................................81
11.19 Co-Borrower's Obligations.........................................................................82
Schedules
Schedule I Lenders, Commitments and Commitment Percentages
Schedule 5.1 Guarantee Obligations, Contingent Liabilities and Dispositions
Schedule 5.6 Litigation
Schedule 5.15 Subsidiaries and Joint Ventures
Schedule 5.17 Environmental Matters
Exhibits
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Guarantee and Security Documents Confirmation
Exhibit C Form of Borrower Pledge Agreement
Exhibit D Form of Borrower Security Agreement
Exhibit E Form of Leviathan Guarantee
Exhibit F Form of Leviathan Pledge Agreement (Limited Liability Companies)
Exhibit G Form of Leviathan Pledge Agreement (General Partner Interest)
Exhibit H Form of Leviathan Security Agreement (Management Agreement)
Exhibit I [Reserved]
Exhibit J Form of Subsidiaries Guarantee
Exhibit K Form of Subsidiary Security Agreement
Exhibit L Form of Borrowing Certificate
Exhibit M Form of Assignment and Acceptance
Exhibit N Form of Environmental Compliance Certificate
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March
23, 1995, as amended and restated through May 27, 1999 (this "Agreement"), among
LEVIATHAN GAS PIPELINE PARTNERS, L.P., a Delaware limited partnership (the
"Borrower"), LEVIATHAN FINANCE CORPORATION, a Delaware corporation (the
"Co-Borrower"), the several banks and other financial institutions from time to
time parties to this Agreement (the "Lenders"), CREDIT LYONNAIS, as syndication
agent for the Lenders hereunder (in such capacity, the "Syndication Agent"),
BANKBOSTON, N.A., as documentation agent for the Lenders hereunder (in such
capacity, the "Documentation Agent"), and THE CHASE MANHATTAN BANK, a New York
banking corporation, as administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, certain of the Lenders, the
Administrative Agent and ING (U.S.) Capital Corporation, as co-arranger, are
parties to the Amended and Restated Credit Agreement, dated as of March 23,
1995, as amended and restated through December 20, 1996 (and as further amended
prior to the date hereof, the "Existing Credit Agreement");
WHEREAS, the Borrower has requested that the Existing Credit
Agreement be amended and restated (a) to provide for additional financial
institutions as lenders (the "New Lenders"), (b) to extend the Revolving Credit
Termination Date, (c) to amend certain covenants, (d) to add the Co-Borrower as
a co-borrower under this Agreement on a joint and several basis with the
Borrower, and (e) otherwise to amend the Existing Credit Agreement and restate
it in its entirety as more fully set forth herein;
WHEREAS, the Lenders and the Administrative Agent are willing
to so amend and restate the Existing Credit Agreement, and the New Lenders are
willing to become parties hereto, but only on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto hereby agree that on the
Closing Date (as hereinafter defined) the Existing Credit Agreement shall be
amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Acquired Business": as defined in subsection 8.8(e).
"Administrative Agent": as defined in the introductory
paragraph of this Agreement.
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"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (i) vote 10% or more of the
securities having ordinary voting power for the election of directors
of such Person or (ii) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise;
provided, that any third Person which also beneficially owns 10% or
more of the securities having ordinary voting power for the election of
directors (or similar authority) of a Joint Venture or Subsidiary shall
not be deemed to be an affiliate of the Borrower and its Subsidiaries
or Joint Ventures merely because of such common ownership..
"Aggregate Outstanding Revolving Credit Extensions of Credit":
as to any Lender at any time, an amount equal to the sum of (a) the
aggregate principal amount of all Revolving Credit Loans made by such
Lender then outstanding and (b) such Lender's Commitment Percentage of
the L/C Obligations then outstanding.
"Agreement": the Existing Credit Agreement, as amended and
restated by this Agreement, as further amended, supplemented or
otherwise modified from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate"
shall mean the rate of interest per annum publicly announced from time
to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City (each change in the Prime Rate to be
effective on the date such change is publicly announced); "Base CD
Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the C/D Reserve Percentage
and (b) the C/D Assessment Rate; "Three-Month Secondary CD Rate" shall
mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day)
by the Board of Governors of the Federal Reserve System (the "Board")
through the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so
reported on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at
approximately 10:00 A.M., New York City time, on such day (or, if such
day shall not be a Business Day, on the next preceding Business Day) by
the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it;
"C/D Assessment Rate" means for any day as applied to any Revolving
Credit Loan, the net annual assessment rate (rounded upward to the
nearest 1/100th of 1%) determined by Chase to be payable on such day to
the Federal Deposit Insurance Corporation or any successor ("FDIC") for
FDIC's insuring time deposits made in Dollars at offices of Chase in
the United States; and "Federal Funds
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Effective Rate" shall mean, for any day, the weighted average of the
rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate, or
both, for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the Alternate Base Rate shall be determined without
regard to clause (b) or (c), or both, of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective on the effective day of
such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loans": Revolving Credit Loans the rate
of interest applicable to which is based upon the Alternate Base Rate.
"Applicable Margin": for each Type of Revolving Credit Loan,
the Commitment Fee payable pursuant to subsection 2.5(a) and the
Incremental Commitment Fee payable pursuant to subsection 2.5(b) at any
time, the rate per annum based on the ratio of Consolidated Total
Indebtedness of the Borrower at such time to Consolidated EBITDA for
the most recently ended Calculation Period (the "Leverage Ratio") as
set forth under the relevant column heading below:
Alternate Incremental
Eurodollar Base Commitment Commitment
Leverage Ratio Loans Rate Loans Fee Fee
---------------------------- ---------- ---------- ---------- ----------
Less than or equal to 2.0 1.50% 0.50% .300% .1500%
Greater than 2.0 but less 1.75% 0.75% .375% .1875%
than or equal to 3.0
Greater than 3.0 but less 2.25% 1.25% .500% .2500%
than 4.0
Greater than or equal to 4.0 2.50% 1.50% .500% .2500%
The Applicable Margin, Commitment Fee and Incremental Commitment Fee
for any date shall be determined by reference to the Leverage Ratio as
of the last day of the fiscal quarter most recently ended as of such
date and for the Calculation Period ended on such last day, and any
change (x) shall become effective upon the delivery to the
Administrative Agent of a certificate of a Responsible Officer of the
Borrower (which
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certificate may be delivered prior to delivery of the relevant
financial statements or may be incorporated in the certificate
delivered pursuant to subsection 7.2(b)) with respect to the financial
statements to be delivered pursuant to subsection 7.1 for the most
recently ended fiscal quarter (a) setting forth in reasonable detail
the calculation of the Leverage Ratio at the end of such fiscal quarter
and (b) stating that the signer has reviewed the terms of this
Agreement and other Loan Documents and has made, or caused to be made
under his or her supervision, a review in reasonable detail of the
transactions and condition of the Borrower and the Restricted
Subsidiaries during the accounting period, and that the signer does not
have knowledge of the existence as at the date of such officers'
certificate of any Event of Default or Default, and (y) shall apply (i)
in the case of the Alternate Base Rate Loans, to Alternate Base Rate
Loans outstanding on such delivery date or made on and after such
delivery date and (ii) in the case of the Eurodollar Loans, to
Eurodollar Loans made on and after such delivery date. It is understood
that the foregoing certificate of a Responsible Officer shall be
permitted to be delivered prior to, but in no event later than, the
time of the actual delivery of the financial statements required to be
delivered pursuant to subsection 7.1. Notwithstanding the foregoing, at
any time prior to which the first certificate is required to be
delivered under subsection 7.2(b) (or prior to the time a certificate
as described in this definition is first delivered to the
Administrative Agent) and at any time during which the Borrower has
failed to deliver the certificate required under subsection 7.2(b) with
respect to a fiscal quarter following the date the delivery thereof is
due, the Leverage Ratio shall be deemed, solely for the purposes of
this definition, to be greater than 4.0 until such time as Borrower
shall deliver such compliance certificate.
"Application": an application, in such form as the Issuing
Bank may specify, requesting the Issuing Bank to open a Letter of
Credit.
"Available Revolving Credit Commitment": as to any Lender at
any time, an amount equal to the excess, if any, of (a) the amount of
such Lender's Revolving Credit Commitment over (b) such Lender's
Aggregate Outstanding Revolving Credit Extensions of Credit.
"Borrower": as defined in the introductory paragraph of this
Agreement.
"Borrower Pledge Agreement": the Amended and Restated Pledge
and Security Agreement made by the Borrower in favor of the
Administrative Agent for the benefit of the Lenders, substantially in
the form of Exhibit C hereto, as the same may be amended, supplemented
or otherwise modified from time to time.
"Borrower Security Agreement": the Amended and Restated
Security Agreement made by the Borrower in favor of the Administrative
Agent for the benefit of the Lenders, substantially in the form of
Exhibit D hereto, as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.3 or 3.2 as a date on which the Borrower
requests the Lenders to make Loans or the Issuing Bank to issue a
Letter of Credit hereunder.
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"Business": as defined in subsection 5.17.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"Calculation Period": each period of four consecutive fiscal
quarters of the Borrower.
"Capital Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing. In addition, with respect to the
Borrower, "Capital Stock" shall include the Preference Units, the
Common Units and the General Partnership Interest.
"Cash Equivalents": (i) marketable direct obligations issued
or unconditionally guaranteed by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any
state of the United States of America or any political subdivision of
any such state or any public instrumentality thereof maturing within
one year from the date of acquisition thereof and, at the time of
acquisition, having the highest rating obtainable from either Standard
& Poor's Ratings Services (or any successor statistical rating
organization) ("S&P"), or Xxxxx'x Investors Service, Inc. (or any
successor statistical rating organization) ("Moody's"); (iii)
commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having the highest
rating obtainable from either S&P or Moody's; (iv) certificates of
deposit or banker's acceptances maturing within one year from the date
of acquisition thereof issued by (x) any Lender, (y) any commercial
bank organized under the laws of the United States of America or any
state thereof or the District of Columbia having combined capital and
surplus of not less than $250,000,000 or (z) any bank which has a
short-term commercial paper rating meeting the requirements of clause
(iii) above (any such Lender or bank, a "Qualifying Lender"); (v)
eurodollar time deposits having a maturity of less than one year
purchased directly from any Lender (whether such deposit is with such
Lender or any other Lender hereunder) or issued by any Qualifying
Lender; and (vi) repurchase agreements and reverse repurchase
agreements with a term of not more than 14 days with any Qualifying
Lender relating to marketable direct obligations issued or
unconditionally guaranteed by the United States.
"C/D Reserve Percentage": for any day as applied to any
Alternate Base Rate Loan, that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) (the "Board"), for
determining the maximum reserve requirement for a Depositary
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Institution (as defined in Regulation D of the Board) in respect of new
non-personal time deposits in Dollars having a maturity of 30 days or
more.
"Change in Control": (a) the acquisition by any Person or two
or more Persons acting in concert (other than the management of El Paso
Energy as of the Closing Date and the shareholders of El Paso Energy as
of the Closing Date) of beneficial ownership (within the meaning of
Rule 13d-3, promulgated by the Securities and Exchange Commission and
now in effect under the Securities Exchange Act of 1934, as amended) of
50% or more of the issued and outstanding shares of voting stock of El
Paso Energy; (b) the occurrence of a "change in control" under the
Senior Subordinated Note Indenture; or (c) the occurrence of any of the
following:
(1) the sale, transfer, lease, conveyance or other
disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or
substantially all of the assets of Borrower and its Restricted
Subsidiaries taken as a whole to any "person" (as such term is
used in Section 13(d)(3) of the Securities Exchange Act of
1934, as amended) other than the El Paso Energy Group;
(2) the adoption of a plan relating to the
liquidation or dissolution of the Borrower or the General
Partner;
(3) such time as the El Paso Energy Group ceases to
own, directly or indirectly, all of the general partner
interests of the Borrower or members of the El Paso Energy
Group cease to serve as the only general partners of the
Borrower; or
(4) such time as the El Paso Energy Group ceases to
own a limited partnership interest in the Borrower
representing at least 10% of all general, limited, common and
other interests in the Borrower; or
(5) all of the general partner interests of the
Borrower are not pledged to the Lenders pursuant to the Loan
Documents.
Notwithstanding the foregoing, a conversion of the Borrower
from a limited partnership to a corporation, limited liability company
or other form of entity or an exchange of all of the outstanding
limited partnership interests for Capital Stock in a corporation, for
member interests in a limited liability company or for any other equity
interests in such other form of entity shall not constitute a Change of
Control, so long as following such conversion or exchange the El Paso
Energy Group beneficially owns, directly or indirectly, in the
aggregate more than 50% of the securities having ordinary voting power
for the election of directors of such entity, or any combination
thereof, and continues to own a sufficient number of the outstanding
voting securities of such entity to elect a majority of its directors,
managers, trustees or other persons serving in a similar capacity for
such entity.
"Chase": The Chase Manhattan Bank.
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"Closing Date": the date on which the conditions set forth in
subsection 6.1 are first satisfied or waived, which shall occur on or
prior to May 28, 1999.
"Co-Borrower": as defined in the introductory paragraph to
this Agreement.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": the "Collateral" as defined in the several
Security Documents.
"Commitment Fee": the commitment fee payable pursuant to
subsection 2.5(a).
"Commitment Percentage": as to any Lender at any time, with
respect to any credit to be extended under, payment or prepayment to be
made under, conversion or continuation under, participation in a Letter
of Credit issued under, or other matter with respect to, the Revolving
Credit Commitments, a percentage, the numerator of which is such
Lender's Revolving Credit Commitment and the denominator of which is
the aggregate Revolving Credit Commitments then in effect (or, if the
Revolving Credit Commitments have been terminated, as to any Lender at
any time, a percentage, the numerator of which is such Lender's
Aggregate Outstanding Revolving Extensions of Credit and the
denominator of which is the Aggregate Outstanding Revolving Extensions
of Credit of all Lenders at such time).
"Commodity Hedging Program: any hedge agreement designed to
protect the Borrower or any of its Subsidiaries against fluctuations in
Petroleum prices.
"Common Unit": a partnership interest of a limited partner of
the Borrower representing a fractional part of the partnership
interests of all limited partners of the Borrower and having the rights
and obligations specified with respect to Common Units in the
Partnership Agreement.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated EBITDA": for any period and in accordance with
subsection 4.14, the Consolidated Net Income ((i) including earnings
and losses from discontinued operations, except to the extent that any
such losses represent reserves for losses attributable to the planned
disposition of material assets, (ii) excluding extraordinary gains, and
gains and losses arising from the sale of material assets, and (iii)
including other non-recurring losses) for such period, plus (x) the
aggregate amount of cash distributions received by the Borrower and its
consolidated Subsidiaries (excluding Unrestricted Subsidiaries and
Joint Ventures) from Unrestricted Subsidiaries and Joint Ventures, and
(y) to the extent reflected as a charge in the statement of
Consolidated Net Income for such period, the sum of (a) interest
expense, amortization of debt discount and debt issuance costs
(including the write-off of such costs in connection with prepayments
of debt) and commissions, discounts and other fees and charges
associated with standby
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letters of credit, (b) taxes measured by income accrued as an expense
during such period, (c) depreciation, depletion, and amortization
expense, and (d) non-cash compensation expense resulting from the
accounting treatment applied, in accordance with GAAP, to management's
equity interest minus the equity of the Borrower and its consolidated
Subsidiaries (excluding Unrestricted Subsidiaries and Joint Ventures)
in the earnings of Unrestricted Subsidiaries and Joint Ventures.
"Consolidated Interest Expense": for any period, and in
accordance with subsection 4.14, total cash interest expense (including
that attributable to Capital Leases) of the Borrower and its
Subsidiaries (excluding Unrestricted Subsidiaries and Joint Ventures)
for such period with respect to all outstanding Indebtedness of the
Borrower and such Subsidiaries (including all commissions, discounts
and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Hedge Agreements in
respect of interest rates to the extent such net costs are allocable to
such period in accordance with GAAP).
"Consolidated Net Income": for any period, and in accordance
with subsection 4.14, the net income or net loss of the Borrower and
its consolidated Subsidiaries (excluding Unrestricted Subsidiaries and
Joint Ventures) for such period determined in accordance with GAAP on a
consolidated basis.
"Consolidated Net Worth": as of the date of determination, all
items which in conformity with GAAP would be included under
shareholders' equity on a consolidated balance sheet of the Borrower
and its consolidated Subsidiaries (excluding Unrestricted Subsidiaries)
at such date.
"Consolidated Tangible Net Worth": as of the date of
determination, Consolidated Net Worth after deducting therefrom the
following:
(a) goodwill, including any amounts (however designated on the
balance sheet) representing the cost of acquisitions of Subsidiaries in
excess of underlying tangible assets;
(b) patents, trademarks, copyrights;
(c) leasehold improvements not recoverable at the expiration
of a lease; and
(d) deferred charges (including, but not limited to,
unamortized debt discount and expense, organization expenses and
experimental and development expenses, but excluding prepaid expenses).
"Consolidated Total Indebtedness": at any time, all
Indebtedness of the Borrower and its consolidated Subsidiaries
(excluding Unrestricted Subsidiaries) at such time.
"Consolidated Total Senior Indebtedness": at any time,
Consolidated Total Indebtedness less the aggregate outstanding
principal amount of the Senior Subordinated Notes at such time.
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"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Default": any of the events specified in Section 9, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Delos": Delos Offshore Company, L.L.C., a Delaware limited
liability company.
"Documents": as defined in subsection 5.20(b).
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"East Breaks": East Breaks Gathering Company, L.L.C., a
Delaware limited liability company.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct concerning
protection of human health or the environment or to emissions,
discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances
or wastes into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes, as
now or may at any time hereafter be in effect.
"El Paso Energy": El Paso Energy Corporation, a Delaware
corporation.
"El Paso Energy Group": collectively, (1) El Paso Energy, and
(2) each Person which is a direct or indirect Subsidiary of El Paso
Energy.
"Equity Adjustment Date": the date on which an Equity
Adjustment Event occurs.
"Equity Adjustment Event": the receipt by the Borrower of at
least $75,000,000 in Net Equity Proceeds from the issuance of Common
Units and Preference Units after the Closing Date.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental,
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marginal and emergency reserves under any regulations of the Board of
Governors of the Federal Reserve System or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained
by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the rate at which Chase is offered Dollar deposits at or about
10:00 A.M., New York City time, two Working Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of
its Eurodollar Loans are then being conducted for delivery on the first
day of such Interest Period for the number of days comprised therein
and in an amount comparable to the amount of its Eurodollar Loan to be
outstanding during such Interest Period.
"Eurodollar Loans": Revolving Credit Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Xxxxx Bank": Xxxxx Bank Gathering Company, L.L.C., a Delaware
limited liability company.
"Existing Credit Agreement": as defined in the recitals
hereto.
"Expiry Date": with respect to any Letter of Credit at any
time, the then stated expiration date of such Letter of Credit as set
forth in such Letter of Credit.
"FASB 121": Statement of Financial Accounting Standards No.
121 of the Financial Accounting Standards Board, as the same may be
amended and interpreted by the Financial Accounting Standards Board.
"FERC": the Federal Energy Regulatory Commission and any
successor thereto.
"Flextrend": Flextrend Development Company, L.L.C., a Delaware
limited liability company.
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"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"General Partner": Leviathan in its capacity as the general
partner of the Borrower or any other Person acting as general partner
of the Borrower.
"General Partnership Interest": all general partnership
interests in the Borrower.
"Governmental Approval": any authorization, consent, approval,
license, lease, ruling, permit, tariff, rate, certification, exemption,
filing, variance, claim, order, judgment, decree, publication, notice
to, declaration of or with or registration by or with any Governmental
Authority.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Green Canyon": Green Canyon Pipe Line Company, L.L.C., a
Delaware limited liability company.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
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"Guarantees": collectively, the Leviathan Guarantee and the
Subsidiaries Guarantee.
"Hazardous Materials": any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances,
petroleum products (including crude oil or any fraction thereof),
defined or regulated as such in or under any Environmental Law.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or
currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Incurrence Limitation": on any date of determination, the
product of (x) 5.35 (or, from and after the Equity Adjustment Date,
5.00) multiplied by (y) the Consolidated EBITDA for the most recently
ended Calculation Period for which financial statements have been
delivered pursuant to subsection 7.1. Notwithstanding the foregoing,
from the Closing Date to the date on which the certificate of a
Responsible Officer of the Borrower is delivered pursuant to subsection
7.2(b) for the Borrower's fiscal quarter ending June 30, 1999 (or, if
earlier, the date on which a Responsible Officer of the Borrower
delivers a certificate pursuant to clause (x) of the definition of
"Applicable Margin" for the fiscal quarter ending June 30, 1999), the
Incurrence Limitation shall be the product of (i) 5.35 multipled by
(ii) Consolidated EBITDA for the Calculation Period ended March 31,
1999, it being agreed that for such purposes Consolidated EBITDA for
each of the second, third and fourth quarters of fiscal year 1998 and
the first quarter of fiscal year 1999 shall be deemed to be $23,500,000
and Consolidated EBITDA for the second quarter of fiscal year 1999
shall be calculated in accordance with the definiton thereof.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices and which in any event are no more
than 120 days past due or, if more than 120 days past due, are being
contested in good faith and adequate reserves with respect thereto have
been made on the books, of such Person), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Capital Leases,
(d) all obligations of such Person in respect of outstanding letters of
credit (other than commercial letters of credit with an initial
maturity date of less than 90 days), acceptances and similar
obligations issued or created for the account of such Person, (e) all
liabilities secured by any Lien on any property owned by such Person
even though such Person has not assumed or otherwise become liable for
the payment thereof and (f) for purposes of the covenants set forth in
subsection 8.1, the net obligations of such Person under Hedge
Agreements.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
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"Interest Payment Date": (a) as to any Alternate Base Rate
Loan, the last day of each March, June, September and December,
commencing June 30, 1999, (b) as to any Eurodollar Loan having an
Interest Period of three months or less, the last day of such Interest
Period, and (c) as to any Eurodollar Loan having an Interest Period
longer than three months, each day which is three months or a whole
multiple thereof, after the first day of such Interest Period and the
last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given
with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice
to the Administrative Agent not less than three Working Days
prior to the last day of the then current Interest Period with
respect thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Working Day,
such Interest Period shall be extended to the next succeeding
Working Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Working Day;
(2) any Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date shall end on the
Revolving Credit Termination Date;
(3) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Working Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Working Day of a calendar month; and
(4) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Revolving Credit Loan.
"Issuing Bank": Chase, in its capacity as issuer of any Letter
of Credit.
"Joint Venture": any Person in which the Borrower and/or its
Subsidiaries hold more than 5% but less than a majority of the equity
interests, and which does not constitute a Subsidiary of the Borrower,
whether direct or indirect; provided that each of
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Western Gulf, UTOS and their respective Subsidiaries shall be deemed to
be a Joint Venture for purposes of the Loan Documents until the
Borrower designates such Person as a Subsidiary.
"Joint Venture Charter": with respect to each Joint Venture,
the partnership agreement, certificate of incorporation, by-laws,
limited liability company agreement or other constitutive documents of
such Joint Venture, as each of the same may be further amended,
supplemented or otherwise modified in accordance with subsection 8.9.
"L/C Commitment Amount": $25,000,000.
"L/C Commitment Percentage": as to any L/C Participant at any
time, the percentage determined under paragraph (a) of the definition
of "Commitment Percentage" in this subsection 1.1.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the Letters of
Credit and (b) the aggregate amount of drawings under the Letters of
Credit which have not then been reimbursed pursuant to subsection
3.5(a).
"L/C Participants": the collective reference to all Lenders
with Revolving Credit Commitments (other than the Issuing Bank).
"Lenders": as defined in the preamble to this Agreement.
"Letters of Credit": as defined in subsection 3.1(a).
"Leverage Ratio": as defined in the definition of "Applicable
Margin".
"Leviathan": Leviathan Gas Pipeline Company, a Delaware
corporation.
"Leviathan Guarantee": the Amended and Restated Guarantee made
by Leviathan in favor of the Administrative Agent, for the benefit of
the Lenders, substantially in the form of Exhibit E hereto, as the same
may be amended, supplemented or otherwise modified from time to time.
"Leviathan Pledge Agreement (LLC)": the Amended and Restated
Pledge and Security Agreement made by Leviathan in favor of the
Administrative Agent for the benefit of the Lenders, substantially in
the form of Exhibit F hereto, with respect to Leviathan's limited
liability company interests in the Subsidiaries, as the same may be
amended, supplemented or otherwise modified from time to time.
"Leviathan Pledge Agreement (GP)": the Amended and Restated
Pledge Agreement made by Leviathan in favor of the Administrative Agent
for the benefit of the Lenders, substantially in the form of Exhibit G
hereto, with respect to Leviathan's General Partnership Interest, as
the same may be amended, supplemented or otherwise modified from time
to time.
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"Leviathan Pledge Agreements": collectively, the Leviathan
Pledge Agreement (LLC) and the Leviathan Pledge Agreement (GP).
"Leviathan Security Agreement": the Amended and Restated
Security Agreement, made by Leviathan in favor of the Administrative
Agent for the benefit of the Lenders, substantially in the form of
Exhibit H hereto, as the same may be amended, supplemented or otherwise
modified from time to time.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest or any preference, priority, preferential
arrangement or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or
other title retention agreement and any Capital Lease having
substantially the same economic effect as any of the foregoing).
"Loan Documents": this Agreement, the Revolving Credit Notes,
the Guarantees, the Security Documents and the Applications.
"Loan Parties": the Borrower, the Co-Borrower, Leviathan, the
Subsidiary Guarantors and each other Affiliate of the Borrower or
Leviathan that from time to time is party to a Loan Document.
"LOTS: Leviathan Oil Transport Systems, L.L.C., a Delaware
limited liability company.
"Management Agreement": (i) the First Amended and Restated
Management Agreement, dated as of June 27, 1994, between DeepTech
International Inc. and the General Partner, as amended and in effect on
the Closing Date, and as further amended, modified or supplemented from
time to time in accordance with subsection 8.9, or (ii) any other
agreement or arrangement, reasonably acceptable to the Administrative
Agent, providing management, administrative, operational and other
functions to the Borrower adequate to allow the Borrower to conduct
operations consistent with prior practices.
"Manta Ray": Manta Ray Gathering Company, L.L.C., a Delaware
limited liability company.
"Material Adverse Effect": a material adverse effect on (a)
the business, operations, property, condition (financial or otherwise)
or prospects of the Borrower and its Restricted Subsidiaries taken as a
whole, (b) the ability of any Loan Party to perform its obligations
under this Agreement or any of the Revolving Credit Notes or any of the
other Loan Documents or (c) the validity or enforceability of this
Agreement or any of the Revolving Credit Notes or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder.
"Material Environmental Amount": an amount payable by the
Borrower and/or its Subsidiaries in excess of $5,000,000 for remedial
costs, compliance costs, compensatory damages, punitive damages, fines,
penalties or any combination thereof.
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"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum
products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Law,
including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Equity Proceeds": 100% of the cash proceeds from the
issuance or sale by the Borrower or any of its Restricted Subsidiaries
of any equity securities, net of all reasonable out-of-pocket fees
(including investment banking fees), commissions, costs and other
reasonable out-of-pocket expenses incurred in connection with such
issuance or sale. For purposes of calculating "Net Equity Proceeds",
fees, commissions and other costs and expenses payable to the Borrower
or any of its Affiliates shall be disregarded.
"NGPL": as defined in subsection 4.13(b).
"Non-Recourse Obligations": Indebtedness, Guarantee
Obligations and other obligations of any type (a) as to which neither
the Borrower nor any Restricted Subsidiary (i) is obligated to provide
credit support in any form, or (ii) is directly or indirectly liable,
in each case except for clawbacks permitted pursuant to subsections
8.4(e) and (f), and (b) no default with respect to which (including any
rights which the holders thereof may have to take enforcement action
against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any Indebtedness or Guarantee Obligation of
the Borrower or any Restricted Subsidiary to declare a default on such
Indebtedness or Guarantee Obligation of the Borrower or any Restricted
Subsidiary or cause the payment of any such Indebtedness to be
accelerated or payable prior to its stated maturity or cause any such
Guarantee Obligation to become payable.
"Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and
reimbursement obligations in respect of Letters of Credit and interest
accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans and all
other obligations and liabilities of the Borrower to the Administrative
Agent or to any Lender (or, in the case of Hedge Agreements, any
affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any Hedge
Agreement entered into with any Lender or any affiliate of any Lender
or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees,
charges and disbursements of counsel to the Administrative Agent or to
any Lender that are required to be paid by the Borrower pursuant
hereto) or otherwise.
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"Participants": as defined in subsection 11.6(b).
"Partnership Agreement": the Amended and Restated Agreement of
Limited Partnership of the Borrower among the partners of the Borrower
dated as of February 19, 1993 and as in effect on the Closing Date, as
amended, modified and supplemented from time to time in accordance with
subsection 8.9.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Petroleum": oil, gas and other liquid or gaseous
hydrocarbons, including, without limitation, all liquefiable
hydrocarbons and other products which may be extracted from gas and gas
condensate by the processing thereof in a gas processing plant.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreements": collectively, the Borrower Pledge
Agreement, the Leviathan Pledge Agreements and any other pledge
agreement executed and delivered pursuant to subsection 8.17.
"Poseidon": Poseidon Pipeline Company, L.L.C., a Delaware
limited liability company.
"Poseidon Venture": Poseidon Oil Pipeline Company, L.L.C., a
Delaware limited liability company.
"Preference Unit": a partnership interest in the Borrower
representing a fractional part of the partnership interests of all
limited partners of the Borrower and having the rights and obligations
specified with respect to Preference Units in the Partnership
Agreement.
"Properties": the facilities and properties owned, leased or
operated by the Borrower or any of its Subsidiaries or any Joint
Venture.
"Purchasing Lenders": as defined in subsection 11.6(c).
"Redesignation": any designation of a Restricted Subsidiary as
an Unrestricted Subsidiary in accordance with the last sentence of the
definition of "Unrestricted Subsidiary"; and any designation of an
Unrestricted Subsidiary or a Joint Venture as a
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Restricted Subsidiary in accordance with the last sentence of the
definition of "Restricted Subsidiary".
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Bank pursuant to subsection 3.5(a) for amounts
drawn under the Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"Required Lenders": at any time, the holders of at least 51%
of the aggregate Revolving Credit Commitments then in effect (or, if
the Revolving Credit Commitments have been terminated, the holders of
at least 51% of the Aggregate Outstanding Revolving Credit Extentions
of Credit of all Lenders).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Reserve Report": a report in form and substance reasonably
satisfactory to the Administrative Agent certified by Netherland
Xxxxxx, Xxxxx Xxxxx, X.X. Xxxx or another independent petroleum
engineer acceptable to the Administrative Agent setting forth (a) the
amount of and projected production of Petroleum from the proven
Petroleum reserves attributable to the Subject Properties and (b) the
projected future net income taking into account sales revenues, lease
operating expenses, associated production taxes and capital costs, and
setting forth the net present value attributable to such reserves
attributable to the Subject Properties as of the date of such report
(in each case determined using pricing assumptions reasonably
satisfactory to the Administrative Agent).
"Responsible Officer": the Chief Executive Officer, the Chief
Operating Officer, the President, the Chief Financial Officer, the
Treasurer or any vice president of the General Partner or the Borrower.
"Restricted Payment": as defined in subsection 8.7.
"Restricted Subsidiary": any Subsidiary of the Borrower other
than an Unrestricted Subsidiary. Subject to the right to redesignate
certain Restricted Subsidiaries as Unrestricted Subsidiaries in
accordance with the definition of "Unrestricted Subsidiary", all of the
Subsidiaries of the Borrower as of the date hereof are
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Restricted Subsidiaries. Notwithstanding the foregoing, any Subsidiary
which guarantees the Senior Subordinated Notes shall be a Restricted
Subsidiary. Any Subsidiary designated as an Unrestricted Subsidiary may
be redesignated as a Restricted Subsidiary with the consent of the
Required Lenders as long as, after giving effect thereto, no Default or
Event of Default has occurred and is continuing and the Borrower would
be in pro forma compliance with the covenants set forth in subsection
8.1 after giving effect thereto.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to and/or
issue or participate in Letters of Credit issued on behalf of the
Borrower hereunder in an aggregate principal and/or face amount at any
one time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule I under the heading "Revolving Credit
Commitment", as such amount may be reduced from time to time in
accordance with the provisions of this Agreement.
"Revolving Credit Commitment Period": the period from and
including the date hereof to but not including the Revolving Credit
Termination Date or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
"Revolving Credit Termination Date": the third anniversary of
the Closing Date, as such termination date may from time to time be
extended pursuant to subsection 2.7, and any other date on which the
Revolving Credit Commitments are terminated.
"Security Agreements": collectively, the Borrower Security
Agreement, the Leviathan Security Agreement and the Subsidiary Security
Agreements.
"Security Documents": collectively, the Pledge Agreements and
the Security Agreements.
"Senior Subordinated Note Indenture": the Indenture entered
into by the Borrower, the Co-Borrower and certain of their respective
Subsidiaries in connection with the issuance of the Senior Subordinated
Notes, together with all instruments and other agreements entered into
by the Borrower, the Co-Borrower or such Subsidiaries in connection
therewith, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 8.9.
"Senior Subordinated Notes": the subordinated notes of the
Borrower and the Co-Borrower issued on the Closing Date pursuant to the
Senior Subordinated Note Indenture.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
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"Stingray Holding": Stingray Holding, L.L.C., a Delaware
limited liability company.
"Subject Properties": the Properties containing Petroleum in
which Borrower or any Restricted Subsidiary owns an interest,
including, but not limited to, those known as Viosca Xxxxx 817, Garden
Banks 72 and Garden Banks 117 in the Gulf of Mexico.
"Subsidiaries Guarantee": the Amended and Restated
Subsidiaries Guarantee made by the Subsidiary Guarantors in favor of
the Administrative Agent, for the benefit of the Lenders, substantially
in the form of Exhibit J hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower. Notwithstanding the
foregoing, each of Western Gulf, UTOS, and their respective
Subsidiaries shall be deemed not to be a Subsidiary of the Borrower
unless, and to the extent, any of Western Gulf and its Subsidiaries or
UTOS and its Subsidiaries, as the case may be, is designated as a
Subsidiary of the Borrower in a writing delivered by the Borrower to
the Administrative Agent.
"Subsidiary Guarantors": collectively, Delos, Ewing Bank,
Flextrend, Green Canyon, LOTS, Manta Ray, Poseidon, Stingray Holding,
Tarpon, THC, TOGT, TOPC, VK Deepwater, VK Main Pass, Sailfish, Viosca
Xxxxx (on and after the date Viosca Xxxxx becomes a Subsidiary), each
other Restricted Subsidiary and any other Subsidiary of the Borrower
which, from time to time, may become party to the Subsidiaries
Guarantee. Notwithstanding anything to the contrary in the Loan
Documents, Leviathan Finance Corporation shall be the Co-Borrower and
not a Subsidiary Guarantor.
"Subsidiary Security Agreement": each Security Agreement made
by each of the Subsidiary Guarantors (including any security agreement
executed and delivered pursuant to subsection 8.17) in favor of the
Administrative Agent for the benefit of the Lenders, substantially in
the form of Exhibit K hereto, as the same may be amended, supplemented
or otherwise modified from time to time.
"Tarpon": Tarpon Transmission Company, a Texas corporation.
"THC": Transco Hydrocarbons Company, L.L.C., a Delaware
limited liability company.
"TOGT": Texam Offshore Gas Transmission, L.L.C., a Delaware
limited liability company.
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"TOPC": Transco Offshore Pipeline Company, L.L.C., a Delaware
limited liability company.
"Tranche": the collective reference to Eurodollar Loans the
Interest Periods with respect to all of which begin on the same date
and end on the same later date (whether or not such Revolving Credit
Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Revolving Credit Loan, its nature as an
Alternate Base Rate Loan or a Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Unrestricted Subsidiary": any Subsidiary of the Borrower (a)
which becomes a Subsidiary of the Borrower after the date hereof and,
at the time it becomes a Subsidiary, is designated as an Unrestricted
Subsidiary, in each case (a) pursuant to a written notice from the
Borrower to the Administrative Agent, (b) which has not acquired any
assets (other than cash made available pursuant to this Agreement) from
the Borrower or any Restricted Subsidiary, (c) which has no
Indebtedness, Guarantee Obligations or other obligations other than
Non-Recourse Obligations to the extent the applicable guarantor has
guaranteed payment of the obligations of the Borrower under this
Agreement and (d) which has not guaranteed the Senior Subordinated
Notes. Any Subsidiary designated as a Restricted Subsidiary may be
redesignated as an Unrestricted Subsidiary with the consent of the
Required Lenders as long as, after giving effect thereto, no Default or
Event of Default has occurred and is continuing and the Borrower would
be in pro forma compliance with the financial covenants after giving
effect thereto.
"UTOS": U-T Offshore System, a Delaware general partnership.
"Viosca Xxxxx": Xxxxxx Xxxxx Gathering Company, a Delaware
joint venture.
"VK Deepwater": VK Deepwater Gathering Company, L.L.C., a
Delaware limited liability company.
"VK Main Pass": VK-Main Pass Gathering Company, L.L.C., a
Delaware limited liability company.
"West Cameron": West Cameron Dehydration Company, L.L.C., a
Delaware limited liability company.
"Western Gulf": Western Gulf Holdings, L.L.C., a Delaware
limited liability company, which owns all of High Island Offshore
System, L.L.C. and East Breaks Gathering Company, L.L.C. on the Closing
Date.
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"Working Day": any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London,
England.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Revolving Credit Notes or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in the Revolving Credit Notes, and any
certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Borrower and its Subsidiaries not defined in subsection
1.1 and accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") to the Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to such Lender's Commitment Percentage of the
then outstanding L/C Obligations, does not exceed the amount of such Lender's
Revolving Credit Commitment, provided that no such Revolving Credit Loan shall
be made if, after giving effect thereto, subsection 2.4 would be contravened.
During the Revolving Credit Commitment Period the Borrower may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) Alternate Base Rate Loans or (iii) a combination thereof,
as determined by the Borrower and notified to the Administrative Agent in
accordance with subsections 2.3 and 4.2, provided that no Revolving Credit Loan
shall be made as a Eurodollar Loan after the day that is one month prior to the
Revolving Credit Termination Date.
(c) The revolving credit loans outstanding on the Closing Date
under the Existing Credit Agreement shall continue to be outstanding and shall
be continued under this Agreement.
2.2 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay Revolving Credit Loans to the
Administrative Agent for the
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account of each Lender the then unpaid principal amount of each Revolving Credit
Loan on the Revolving Credit Termination Date.
(b) 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 Revolving Credit Loan made by such Lender,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Revolving Credit Loan made hereunder, the
Type thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this subsection shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Revolving Credit Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Revolving Credit Loans made by
it be evidenced by a promissory note substantially in the form of Exhibit A
hereto (a "Revolving Credit Note"). In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent and the Borrower.
Thereafter, the Revolving Credit Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 9.04) be represented by one or more promissory notes in such form
payable to the order of the payee named therein (or, if such promissory note is
a registered note, to such payee and its registered assigns).
2.3 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Working Day, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans, or on any Business
Day, otherwise, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, (a) three Working Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially Eurodollar Loans, or (b) one Business Day prior to the
requested Borrowing Date, otherwise), specifying (i) the amount to be borrowed,
(ii) the requested Borrowing Date, (iii) whether the borrowing is to be of
Eurodollar Loans, Alternate Base Rate Loans or a combination thereof, and (iv)
if the borrowing is to be entirely or partly of Eurodollar Loans, the respective
amounts of such Type of Revolving Credit Loan and the respective lengths of the
initial Interest Periods therefor. Each borrowing under the Revolving Credit
Commitments shall be in an amount equal to (x) in the case of Alternate Base
Rate Loans, $500,000 or a whole multiple thereof (or, if the then Available
Revolving Credit Commitments are less than $500,000, such lesser amount) and (y)
in the case of Eurodollar Loans, $1,000,000 or a whole multiple of $100,000 in
excess
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thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the office of the Administrative Agent
specified in subsection 11.2 prior to 11:00 A.M., New York City time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the account of the Borrower on the books
of such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
2.4 Limitations on Revolving Credit Loans. No requested
Revolving Credit Loan shall be made if the sum of the Aggregate Outstanding
Revolving Credit Extensions of Credit (after giving effect to such requested
Revolving Credit Loan) would exceed the lesser of (a) the then aggregate
Revolving Credit Commitments or (b) the Incurrence Limitation then in effect.
2.5 Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee for the
period from and including the date hereof to the Revolving Credit Termination
Date, computed at the rate per annum equal to:
(a) the then Applicable Margin for the Commitment Fee as set
forth under the column heading "Commitment Fee" on the average daily amount of
the lesser of: (i) the Available Revolving Credit Commitment of such Lender or
(ii) an amount equal to such Lender's Commitment Percentage of (x) the
Incurrence Limitation then in effect minus (y) the Aggregate Outstanding
Revolving Credit Extensions of Credit, plus
(b) the then Applicable Margin for the Incremental Commitment
Fee as set forth under the column heading "Incremental Commitment Fee" on the
average daily amount equal to such Lender's Commitment Percentage of (i) the
Revolving Credit Commitments minus (ii) the Incurrence Limitation then in
effect,
during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December, commencing June 30, 1999
and on the Revolving Credit Termination Date or such earlier date as the
Revolving Credit Commitments shall terminate as provided herein, commencing on
the first of such dates to occur after the date hereof.
2.6 Termination or Reduction of Revolving Credit Commitments.
(a) The Borrower shall have the right, upon not less than five Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments, provided that no such termination or reduction shall be permitted
if, after giving effect thereto and to any prepayments of the Revolving Credit
Loans made on the effective date thereof, the aggregate principal amount of the
Revolving Credit Loans then outstanding, when added to the then outstanding L/C
Obligations, would exceed the Revolving Credit Commitments then in effect. Any
such reduction shall be in an amount equal to $5,000,000 or a whole multiple
thereof.
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(b) Any reduction of Revolving Credit Commitments pursuant to
subsection 2.6(a) above or 4.1(b) shall reduce permanently the Revolving Credit
Commitments then in effect.
2.7 Extensions of Revolving Credit Termination Date. The
Borrower may, by irrevocable written notice to the Administrative Agent received
no later than 120 days prior to the Revolving Credit Termination Date then in
effect, request the Lenders to change such Revolving Credit Termination Date to
the date 364 days following such then scheduled Revolving Credit Termination
Date. Upon receipt of any such notice, the Administrative Agent shall promptly
notify each Lender thereof. Each Lender may consent or refuse to consent to such
change, in its sole discretion, at any time on or prior to the date which is 60
days prior to the Revolving Credit Termination Date then in effect. Upon the
receipt by the Administrative Agent of the written consent of each of the
Lenders to such change in the Revolving Credit Termination Date on or prior to
2:00 p.m., New York time, on the date which is 60 days prior to the Revolving
Credit Termination Date then in effect, the Revolving Credit Termination Date
shall be changed to such subsequent date 364 days following the Revolving Credit
Termination Date then in effect, and the term "Revolving Credit Termination
Date" for all purposes of this Agreement and the other Loan Documents shall
thereupon be deemed to refer to such subsequent date. Any failure of a Lender to
provide any such consent shall be deemed to be a refusal to consent to such
change.
SECTION 3. LETTERS OF CREDIT
3.1 Issuance of Letters of Credit. (a) Subject to the terms
and conditions hereof, the Issuing Bank, in reliance on the agreements of the
other Lenders set forth in subsection 3.3(a), agrees to issue letters of credit
(the "Letters of Credit") for the account of the Borrower on any Business Day
during the Revolving Credit Commitment Period in such form as may be approved
from time to time by the Issuing Bank; provided that the Issuing Bank shall have
no obligation to issue any Letter of Credit if, after giving effect to such
issuance, (1) the L/C Obligations would exceed the L/C Commitment or (2) the
Available Revolving Credit Commitment would be less than zero or (3) the
Aggregate Outstanding Revolving Credit Extensions of Credit would exceed the
lesser of (i) the then aggregate Revolving Credit Commitments or (ii) the
Incurrence Limitation then in effect.
(b) Each Letter of Credit shall:
(1) be denominated in Dollars and shall be either (A) a
standby letter of credit issued to support obligations of the Borrower
or any Restricted Subsidiary, contingent or otherwise, in connection
with the working capital and business needs of the Borrower or such
Restricted Subsidiary, as the case may be, in the ordinary course of
business, or (B) a commercial letter of credit issued in respect of the
purchase of goods or services by the Borrower or any Restricted
Subsidiary in the ordinary course of business; and
(2) expire no later than the earlier of (A) one year after the
date of issuance or renewal thereof in accordance with the term of such
Letter of Credit; provided that any
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Letter of Credit with a one-year tenure may be renewed for additional
one-year periods and (B) five days prior to the Revolving Credit
Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(d) The Issuing Bank shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Bank or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
(e) Letters of Credit issued under the Existing Credit
Agreement which are outstanding on the Closing Date shall be deemed to be
Letters of Credit issued under this Agreement on the Closing Date.
3.2 Procedure for Issuance of Letters of Credit. The Borrower
may from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Bank, and
such other certificates, documents and other papers and information as the
Issuing Bank may reasonably request. Upon receipt of any Application, the
Issuing Bank will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Bank be required to
issue any Letter of Credit earlier than three Business Days after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Bank and the Borrower. The Issuing Bank shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof.
3.3 Participations and Payments in Respect of the Letters of
Credit. (a) The Issuing Bank irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Bank to issue Letters of Credit
hereunder, each L/C Participant irrevocably agrees to accept and purchase and
hereby accepts and purchases from the Issuing Bank, on the terms and conditions
hereinafter stated, for such L/C Participant's own account and risk an undivided
interest equal to such L/C Participant's L/C Commitment Percentage in the
Issuing Bank's obligations and rights under each Letter of Credit issued
hereunder and the amount of each draft paid by the Issuing Bank thereunder.
(b) Each L/C Participant unconditionally and irrevocably
agrees with the Issuing Bank that, if a draft is paid under any Letter of Credit
for which the Issuing Bank is not reimbursed on the day of such payment in full
by the Borrower in immediately available funds, such Lender shall pay to the
Issuing Bank upon demand at the Issuing Bank's address for notices specified
herein an amount equal to such L/C Participant's L/C Commitment Percentage of
the amount of such draft, or any part thereof, which is not so reimbursed. Each
L/C Participant's obligation to make each such payment to the Issuing Bank, and
the Issuing Bank's right to receive the same, are absolute and unconditional and
shall not be affected by any circumstance whatsoever, including, without
limiting the effect of the foregoing, the occurrence or continuance of a Default
or Event of Default or the failure of any other L/C Participant to make any
payment
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under this subsection, and each L/C Participant further agrees that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each L/C Participant shall indemnify and hold harmless the Issuing
Bank from and against any and all losses, liabilities (including, without
limitation, liabilities for penalties), actions, suits, judgments, demands,
costs and expenses (including reasonable attorneys' fees) resulting from any
failure of such L/C Participant to provide, or from any delay in providing, the
Issuing Bank with such L/C Participant's L/C Commitment Percentage of such
payment in accordance with the provisions of this subsection, but no L/C
Participant shall be so liable for any such failure on the part of any other L/C
Participant.
(c) If any amount required to be paid by any L/C Participant
to the Issuing Bank pursuant to subsection 3.3(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit is
paid to the Issuing Bank within two Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Bank on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
funds rate, as quoted by the Issuing Bank, during the period from and including
the date such payment is required to the date on which such payment is
immediately available to the Issuing Bank, times (iii) a fraction the numerator
of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to subsection 3.3(a) is not in fact made available to the
Issuing Bank by such L/C Participant within two Business Days after the date
such payment is due, the Issuing Bank shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to Alternate Base Rate Loans
hereunder. A certificate of the Issuing Bank submitted to any L/C Participant
with respect to any amounts owing under this subsection shall be conclusive in
the absence of manifest error.
(d) Whenever, at any time after the Issuing Bank has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 3.3(a), the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by the Issuing Bank), or any payment of interest on account thereof, the Issuing
Bank will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the
Issuing Bank shall be required to be returned by the Issuing Bank, such L/C
Participant shall return to the Issuing Bank the portion thereof previously
distributed by the Issuing Bank to it.
3.4 Fees, Commissions and Other Charges. (a) The Borrower
shall pay to the Administrative Agent, for the account of the Issuing Bank, a
fronting fee with respect to each Letter of Credit for the period from and
including the date of issuance thereof to but not including the Expiry Date
thereof, computed at the rate of 1/8 of 1% per annum on the average daily amount
of the undrawn and unexpired amount of such Letter of Credit. Such fronting fee
shall be payable quarterly in advance on the date of issuance of each Letter of
Credit and on the last day of each March, June, September and December
thereafter. Such fee shall be nonrefundable.
(b) The Borrower shall pay to the Administrative Agent, for
the account of the Issuing Bank and the L/C Participants, a letter of credit
commission with respect to each Letter of
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Credit for the period from and including the date of issuance thereof to but not
including the Expiry Date thereof, computed at the rate of the then Applicable
Margin for Eurodollar Loans per annum on the average daily amount of the undrawn
and unexpired amount of such Letter of Credit. Such commission shall be payable
to the L/C Participants to be shared ratably among them in accordance with their
respective L/C Commitment Percentages. Such commission shall be payable
quarterly in advance on the date of issuance of each Letter of Credit and on the
last day of each March, June, September and December thereafter. Such fee shall
be nonrefundable.
(c) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Bank for such normal and customary
costs and expenses as are incurred or charged by the Issuing Bank in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(d) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Bank and the L/C Participants all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
(e) The fees and commissions described in the preceding
paragraphs (a) and (b) shall be based on a 360 day year. If any amounts in the
preceding paragraphs (a) and (b) shall be payable on a day that is not a Working
Day, such amount shall be extended to the next succeeding Working Day unless the
result of such extension would be to carry such amount into another calendar
month in which event such amount shall be payable on the immediately preceding
Working Day.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Bank on each date on which the Issuing Bank
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Bank for the amount of (i) such draft
so paid and (ii) any taxes, fees, charges or other costs or expenses incurred by
the Issuing Bank in connection with such payment. Each such payment shall be
made to the Issuing Bank at its address for notices specified herein in lawful
money of the United States of America and in immediately available funds.
(b) Unless otherwise notified by the Borrower, each drawing
under a Letter of Credit shall constitute a request by the Borrower to the
Administrative Agent for a borrowing pursuant to subsection 2.3 of Revolving
Credit Loans which are Alternate Base Rate Loans in the amount of such drawing,
subject to satisfaction of the conditions set forth in subsection 6.2. The
Borrowing Date with respect to such borrowing shall be the date of such drawing.
(c) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection from the date such amounts become
payable (whether at stated maturity, by acceleration or otherwise) until payment
in full at the rate which would be payable on any outstanding Alternate Base
Rate Loans which were then overdue.
3.6 Obligations Absolute. (a) The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Bank or any
beneficiary of any Letter of Credit.
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(b) The Borrower also agrees with the Issuing Bank that the
Issuing Bank shall not be responsible for, and the Borrower's Reimbursement
Obligations under subsection 3.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or (ii) any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or (iii) any claims whatsoever of the Borrower against
any beneficiary of any Letter of Credit or any such transferee.
(c) The Issuing Bank shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions caused by the Issuing Bank's gross negligence or
willful misconduct.
(d) The Borrower agrees that any action taken or omitted by
the Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence of willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Bank to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Bank shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Bank to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS FOR LOANS
4.1 Optional and Mandatory Prepayments. (a) The Borrower may
on the last day of any Interest Period with respect thereto, in the case of
Eurodollar Loans, or at any time and from time to time, in the case of Alternate
Base Rate Loans, prepay the Revolving Credit Loans, in whole or in part, without
premium or penalty, upon at least four Business Days' irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans, Alternate Base Rate Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each. Upon receipt of any such notice the Administrative Agent shall promptly
notify each Lender thereof. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein. Partial
prepayments shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof.
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(b) If on any date (including any date on which a certificate
of a Responsible Officer of the Borrower is delivered pursuant to subsection
7.2(b)) the sum of the Aggregate Outstanding Revolving Credit Extensions of
Credit then outstanding exceeds the lesser of (i) the then aggregate Revolving
Credit Commitments or (ii) the then applicable Incurrence Limitation, then,
without notice or demand, the Borrower shall, no later than 15 days following
such date, prepay the Revolving Credit Loans in an amount equal to such excess.
The Borrower may, subject to the terms and conditions of this Agreement,
reborrow the amount of any prepayment made under subsection 4.1(c).
(c) The application of any prepayment pursuant to subsections
4.1(b) shall be made first to Alternate Base Rate Loans and second to Eurodollar
Loans. Each prepayment of the Loans under subsections 4.1(b) (other than
Alternate Base Rate Loans) shall be accompanied by accrued interest to the date
of such prepayment on the amount prepaid.
4.2 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to Alternate Base Rate Loans
by giving the Administrative Agent at least two Business Days' prior irrevocable
notice of such election, provided that any such conversion of Eurodollar Loans
may only be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert Alternate Base Rate Loans to
Eurodollar Loans by giving the Administrative Agent at least three Working Days'
prior irrevocable notice of such election. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans and Alternate Base Rate Loans may be converted as provided
herein, provided that (i) no Revolving Credit Loan may be converted into a
Eurodollar Loan when any Default or Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined that such a conversion is not appropriate, (ii) any such conversion
may only be made if, after giving effect thereto, subsection 4.3 shall not have
been contravened and (iii) no Revolving Credit Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Revolving Credit
Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
of the length of the next Interest Period to be applicable to such Revolving
Credit Loans, provided that no Eurodollar Loan may be continued as such (i) when
any Default or Event of Default has occurred and is continuing and the
Administrative Agent has or the Required Lenders have determined that such a
continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 4.3 would be contravened or (iii) after the date that is one month
prior to the Revolving Credit Termination Date and provided, further, that if
the Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Revolving Credit Loans shall be automatically converted to
Alternate Base Rate Loans on the last day of such then expiring Interest Period.
4.3 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Revolving Credit Loans hereunder and all selections of
Interest Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving
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effect thereto, (a) the aggregate principal amount of the Revolving Credit Loans
comprising each Tranche shall be equal to $2,000,000 or a whole multiple of
$100,000 in excess thereof, and (b) the number of Tranches then outstanding
shall not exceed eight.
4.4 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each Alternate Base Rate Loan shall bear interest at a
rate per annum equal to the Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any
Revolving Credit Loan, (ii) any interest payable thereon or (iii) any commitment
fee or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is the higher of (A) the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% and (B) the Alternate Base Rate plus 1%, in each case from
the date of such non-payment until such amount is paid in full (as well after as
before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
4.5 Computation of Interest and Fees. (a) Interest on
Alternate Base Rate Loans, commitment fees and interest on overdue interest,
commitment fees and other amounts payable hereunder shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. Interest on Eurodollar Loans shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent shall as soon
as practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Alternate Base Rate or the Eurocurrency Reserve Requirements shall
become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent shall as soon as practicable notify
the Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
4.4(a).
4.6 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the
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relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Revolving Credit Loans
during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Alternate Base Rate Loans, (y) any Revolving
Credit Loans that were to have been converted on the first day of such Interest
Period to Eurodollar Loans shall be converted to or continued as Alternate Base
Rate Loans and (z) any outstanding Eurodollar Loans shall be converted, on the
first day of such Interest Period, to Alternate Base Rate Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower have the right
to convert Revolving Credit Loans to Eurodollar Loans.
4.7 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee hereunder and any reduction of the Revolving Credit
Commitments of the Lenders shall be made pro rata according to the respective
Commitment Percentages of the Lenders. Each payment (including each prepayment)
by the Borrower on account of principal of and interest on the Revolving Credit
Loans shall be made pro rata according to the respective outstanding principal
amounts of the Revolving Credit Loans then held by the Lenders. All payments
(including prepayments) to be made by the Borrower hereunder and under the
Revolving Credit Notes, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Administrative Agent's office
specified in subsection 11.2, in Dollars and in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder (other than payments
on the Eurodollar Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension and with respect to payments of fees,
such fees accruing during such extension shall be payable on the next succeeding
Business Day. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Working Day, the maturity thereof shall be extended to the next
succeeding Working Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Working Day.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a Borrowing Date that such Lender will not
make the amount that would constitute its Commitment Percentage of the borrowing
on such date available to the Administrative Agent, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent on such Borrowing Date, and the Administrative
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Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such Borrowing Date, such Lender shall pay to the
Administrative Agent on demand an amount equal to the product of (i) the daily
average Federal Funds Effective Rate during such period, times (ii) the amount
of such Lender's Commitment Percentage of such borrowing, times (iii) a fraction
the numerator of which is the number of days that elapse from and including such
Borrowing Date to the date on which such Lender's Commitment Percentage of such
borrowing shall have become immediately available to the Administrative Agent
and the denominator of which is 360. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under this subsection
shall be conclusive in the absence of manifest error. If such Lender's
Commitment Percentage of such borrowing is not in fact made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall be entitled to recover such amount with
interest thereon at the rate per annum applicable to Alternate Base Rate Loans
hereunder, on demand, from the Borrower.
4.8 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Alternate Base Rate Loans to Eurodollar Loans shall forthwith be
cancelled and (b) such Lender's Revolving Credit Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Alternate Base
Rate Loans on the respective last days of the then current Interest Periods with
respect to such Revolving Credit Loans or within such earlier period as required
by law. If any such conversion of a Eurodollar Loan occurs on a day which is not
the last day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 4.11.
4.9 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Revolving Credit Note, any Letter
of Credit, any Application or any Eurodollar Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof
(except for taxes covered by subsection 4.10 and changes in the rate of
tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
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and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in the
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this subsection, it shall promptly
notify the Borrower, through the Administrative Agent, of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the
Administrative Agent, to the Borrower shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Revolving Credit Notes and all other amounts payable
hereunder.
(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender for such reduction.
4.10 Taxes. (a) All payments made by the Borrower under this
Agreement and the Revolving Credit Notes shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding, in the case of the
Administrative Agent and each Lender, net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or
such Lender, as the case may be, as a result of a present or former connection
between the jurisdiction of the government or taxing authority imposing such tax
and the Administrative Agent or such Lender (excluding a connection arising
solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or enforced, this
Agreement or the Revolving Credit Notes) or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions and withholdings being hereinafter called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under the Revolving Credit
Notes, the amounts so payable to the Administrative Agent or such Lender shall
be increased to the extent necessary to yield to the Administrative Agent or
such Lender (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement and
the Revolving Credit Notes. Whenever any Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the Administrative
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Agent for its own account or for the account of such Lender, as the case may be,
a certified copy of an original official receipt received by the Borrower
showing payment thereof. If the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Revolving
Credit Notes and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative
Agent (A) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as the case
may be, and (B) an Internal Revenue Service Form W-8 or W-9, or
successor applicable form, as the case may be;
(ii) deliver to the Borrower and the Administrative
Agent two further copies of any such form or certification on or before
the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in
the most recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested by
the Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
4.11 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in payment when
due of the principal amount of or interest on any Eurodollar Loan, (b) default
by the Borrower in making a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (c) default by the
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Borrower in making any prepayment after the Borrower has given a notice thereof
in accordance with the provisions of this Agreement or (d) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto, including, without limitation, in each case, any
such loss or expense arising from the reemployment of funds obtained by it or
from fees payable to terminate the deposits from which such funds were obtained.
This covenant shall survive the termination of this Agreement and the payment of
the Revolving Credit Notes and all other amounts payable hereunder.
4.12 Lenders Obligation to Mitigate. Each Lender agrees that,
as promptly as practicable after it becomes aware that it has been or will be
affected by the occurrence of an event or the existence of a condition described
under subsection 4.8, 4.9(a) or 4.10(a), it will, to the extent not inconsistent
with such Lender's internal policies, use its best efforts (a) to provide
written notice to the Borrower describing such condition and the anticipated
effect thereof and (b) to make, fund or maintain the affected Eurodollar Loans
of such Lender through another lending office of such Lender if as a result
thereof the additional moneys which would otherwise be required to be paid in
respect of such Revolving Credit Loans pursuant to subsection 4.8, 4.9 or
4.10(a) would be materially reduced or the illegality or other adverse
circumstances which would otherwise require such payment pursuant to subsection
4.8, 4.9(a) or 4.10(a) would cease to exist and if, as determined by such
Lender, in its sole discretion, the making, funding or maintaining of such
Revolving Credit Loans through such other lending office would not otherwise
adversely affect such Revolving Credit Loans or such Lender. The Borrower hereby
agrees to pay all reasonable expenses incurred by any Lender in utilizing
another lending office of such Lender pursuant to this subsection 4.12.
4.13 Certain Permitted Transactions. Notwithstanding any
provision in the Loan Documents and without increasing the obligations of the
Lenders under Sections 2 and 3 of this Agreement, the Borrower and its
Subsidiaries shall have the right to consummate any of the following
transactions:
(a) Viosca Xxxxx Transactions. The acquisition of additional
interests in Viosca Xxxxx and other related transactions described in the Proxy
Statement of the Borrower dated February 8, 1999, including, but not limited to:
(i) acquisition by the Borrower of E1 Paso
Energy's 49% interest in Viosca Xxxxx;
(ii) payment in full of Viosca Xxxxx'x revolving
credit facility;
(iii) amendment of the Partnership Agreement; and
(iv) exercise by the Borrower of the option to
purchase El Paso Energy's remaining 1%
interest in Viosca Xxxxx;
(b) NGPL Transactions. (i) The acquisition by the Borrower
from Natural Gas Pipeline Company of America ("NGPL") of, and the assumption by
Borrower of obligations with respect to, (x) NGPL's interest in Western Gulf,
(y) NGPL's interest in UTOS and (z) certain of NGPL's offshore pipeline
laterals, and (ii) the reorganization of Stingray Pipeline Company, a
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Delaware partnership, into a limited liability company; provided that
immediately prior to and immediatly following the transactions described in the
preceding clauses (i) and (ii), no Default or Event of Default has occurred and
is continuing and provided further that immediately after giving effect to any
such transaction, the Borrower would be in pro forma compliance with the
covenants set forth in subsection 8.1; and
(c) HIOS Reorganization. (i) The reorganization of High Island
Offshore System, a Delaware partnership, into a limited liability company, (ii)
the creation of Western Gulf and East Breaks and (iii) the capital contributions
contemplated by the Limited Liability Company Agreement of Western Gulf dated as
of December 11, 1998, including, without limitation, contribution of TOGT's and
TOPC's interests in High Island Offshore System, L.L.C., the converted
partnership.
4.14 Certain Adjustments.
(a) Acquisition; Redesignation. If the Borrower or any of its
Restricted Subsidiaries acquires any Acquired Business or there is a
Redesignation of any Subsidiary during any Calculation Period, Consolidated
EBITDA for such Calculation Period will be determined on a pro forma basis as if
such Acquired Business were acquired, or such Redesignation occurred, on the
first day thereof. Such pro forma adjustments will be subject to delivery to the
Administrative Agent of a certificate of a Responsible Officer of the Borrower.
Such certificate may be delivered at any time with respect to any Redesignation
and at any time after the last day of the first fiscal quarter of the Borrower
to end after the related acquisition date with respect to any Acquired Business.
Each such certificate shall be accompanied by supporting information and
calculations with respect to each Acquired Business or Redesignation and such
other information as any Lender, through the Administrative Agent, may
reasonably request.
(b) Viosca Xxxxx. After the date on which Viosca Xxxxx has
become a Subsidiary, financial measurements under this Agreement for periods
prior to such date shall be calculated as if Viosca Xxxxx was a Subsidiary and a
Restricted Subsidiary during the applicable prior period.
4.15 Redesignated Senior Indebtedness. The Borrower and the
Co-Borrower hereby designate all Obligations of the Borrower and its
Subsidiaries (including the Co-Borrower) under this Agreement and the other Loan
Documents as Designated Senior Indebtedness, as such term is defined in the
Senior Subordinated Note Indenture.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Revolving Credit Loans and issue or
participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
5.1 Financial Condition. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 1998, and the
related consolidated statements of operations and of cash flows for the fiscal
year ended December 31, 1998, reported on by
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PricewaterhouseCoopers LLP, copies of which have heretofore been furnished to
each Lender, present fairly the consolidated financial condition of the Borrower
and its consolidated Subsidiaries as at such date, and the consolidated results
of their operations and their consolidated cash flows for the year then ended.
The consolidated balance sheet of the Borrower and its consolidated Subsidiaries
as at March 31, 1999 and the related consolidated statements of operations and
of cash flows for the three months ended March 31, 1999, copies of which have
heretofore been furnished to each Lender, present fairly the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at each
such date, and the consolidated results of their operations and their
consolidated cash flows for the three-month period then ended. All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants and as disclosed
therein and, with respect to the March 31, 1999 financial statements, for the
absence of footnotes and year-end adjustments). Except as set forth on Schedule
5.1 or as permitted by subsection 8.4(c), neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing statements
or in the notes thereto. Except as set forth on Schedule 5.1, during the period
from March 31, 1999 to and including the Closing Date there has been no sale,
transfer or other disposition by the Borrower or any of its consolidated
Subsidiaries of any material part of its business or property and no purchase or
other acquisition of any business or property (including any capital stock of
any other Person) material in relation to the consolidated financial condition
of the Borrower and its consolidated Subsidiaries at March 31, 1999.
5.2 No Change. Since December 31, 1998 (a) there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect and (b) no dividends or other distributions have been
declared, paid or made upon the Capital Stock of the Borrower except as
permitted by subsection 8.7, nor has any of the Capital Stock of the Borrower
been redeemed, retired, purchased or otherwise acquired for value by the
Borrower or any of its Subsidiaries.
5.3 Existence; Compliance with Law. Each of the Borrower and
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has the power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation, limited
partnership or limited liability company, as the case may be, and, where
applicable, in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations. (a) The
Borrower has the power and authority, and the legal right, to make, deliver and
perform this Agreement, the Revolving Credit Notes and the other Loan Documents
to which it is a party and to borrow hereunder and has taken all necessary
action to authorize the borrowings on the terms and
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conditions of this Agreement and the Revolving Credit Notes and to authorize the
execution, delivery and performance of this Agreement, the Revolving Credit
Notes and the other Loan Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in respect of, any
Governmental Authority or any other Person is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or the Revolving Credit Notes or the
Applications. This Agreement has been, and each Revolving Credit Note and the
Applications will be, duly executed and delivered on behalf of the Borrower.
This Agreement constitutes, and each Revolving Credit Note and each other Loan
Document to which the Borrower is a party when executed and delivered will
constitute, a legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
(b) Each of the Subsidiary Guarantors has the power and
authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party and has taken all necessary action to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents to which such
Subsidiary Guarantor is a party. Each of the Loan Documents to which such
Subsidiary Guarantor is a party will be duly executed and delivered on behalf of
such Subsidiary Guarantor. Each Loan Document to which such Subsidiary Guarantor
is a party will, when executed and delivered, constitute a legal, valid and
binding obligation of such Subsidiary Guarantor enforceable against such
Subsidiary Guarantor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of
this Agreement, the Revolving Credit Notes and the other Loan Documents, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of any Loan Party, or, to the best
knowledge of the Borrower, any Joint Venture any of the interests in which is
owned by a Restricted Subsidiary, and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation.
5.6 No Material Litigation. Except as set forth on Schedule
5.6, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries, or, to the
best knowledge of the Borrower, any Joint Venture any of the interests in which
is owned by a Restricted Subsidiary, or against any of its or their respective
properties or revenues (a) with respect to this Agreement, the Revolving Credit
Notes or any of the other Loan Documents or any of the transactions contemplated
hereby or thereby, or (b) which could reasonably be expected to have a Material
Adverse Effect.
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5.7 No Default. No Loan Party, and, to the best knowledge of
the Borrower, no Joint Venture any of the interests in which is owned by a
Restricted Subsidiary, is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
5.8 Ownership of Property; Liens. Each of the Borrower and its
Restricted Subsidiaries has good record and marketable title in fee simple to,
or a valid leasehold interest in, all its real property necessary for its
operations as then conducted, and good title to, or a valid leasehold interest
in, all its other property, and none of such property necessary for its
operations as then conducted is subject to any Lien except as permitted by
subsection 8.3.
5.9 Intellectual Property. The Borrower and each of its
Restricted Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not have a Material Adverse Effect (the "Intellectual Property"). No
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness of
any such Intellectual Property, nor does the Borrower know of any valid basis
for any such claim. The use of such Intellectual Property by the Borrower and
its Restricted Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, do not have a
Material Adverse Effect.
5.10 No Burdensome Restrictions. The Borrower, in good faith,
does not believe any Requirement of Law or Contractual Obligation of the
Borrower or any of its Restricted Subsidiaries could reasonably be expected to
have a Material Adverse Effect.
5.11 Taxes. Each of the Borrower and its Subsidiaries has
filed or caused to be filed all tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); 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.
5.12 Federal Regulations. No part of the proceeds of any
Revolving Credit Loans will be used for "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of such Board of Governors. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said Regulation
U.
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5.13 ERISA. No Loan Party has or is a party to, or has any
matured or contingent obligations under, any Plans.
5.14 Investment Company Act; Other Regulations. The Borrower
is not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
5.15 Subsidiaries. The Persons set forth on Schedule 5.15
constitute all of the Subsidiaries of the Borrower, and all Joint Ventures in
which the Borrower owns any interest, as of the Closing Date, and the percentage
of the equity interests owned by the Borrower in each such Person as of such
date. Each of the Subsidiaries listed on Schedule 5.15 is as of the Closing Date
a Restricted Subsidiary.
5.16 Purpose of Revolving Credit Loans, Letters of Credit. The
proceeds of the Revolving Credit Loans shall be used by the Borrower (a) to
refinance Indebtedness under the Existing Credit Agreement and (b) for general
corporate purposes. The Letters of Credit shall be used for the purposes
described in subsection 3.1(b).
5.17 Environmental Matters. Except as set forth on Schedule
5.17:
(a) To the best knowledge of the Borrower, the Properties do
not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i) constitute
or constituted a violation of, or (ii) give rise to liability under,
any Environmental Law, except in either case insofar as such violation
or liability, or any aggregation thereof, could not reasonably be
expected to result in the payment of a Material Environmental Amount.
(b) To the best knowledge of the Borrower, the Properties and
all operations at the Properties are in compliance, and have in the
period commencing six months prior to the date hereof been in
compliance, in all material respects with all applicable Environmental
Laws, and there is no contamination at, under or about the Properties
or violation of any Environmental Law with respect to the Properties or
the business operated by the Borrower or any of its Subsidiaries or any
Joint Venture (the "Business") which could materially interfere with
the continued operation of any material Property or which could
reasonably be expected to have a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries nor, to
the best knowledge of the Borrower or any Joint Venture, has received
any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Properties or the
Business, nor does the Borrower have knowledge or reason to believe
that any such notice will be received or is being threatened except
insofar as such notice or threatened notice, or any aggregation
thereof, does not involve a matter or matters that is or could
reasonably be expected to result in the payment of a Material
Environmental Amount.
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(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be
expected to give rise to liability under, any applicable Environmental
Law except insofar as any such violation or liability referred to in
this paragraph, or any aggregation thereof, could not reasonably be
expected to result in the payment of a Material Environmental Amount.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any Subsidiary,
or, to the best knowledge of the Borrower, any Joint Venture, is or
will be named as a party with respect to the Properties or the
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business except insofar as such
proceeding, action, decree, order or other requirement, or any
aggregation thereof, could not reasonably be expected to result in the
payment of a Material Environmental Amount.
(f) To the best knowledge of the Borrower, there has been no
release or threat of release of Materials of Environmental Concern at
or from the Properties, or arising from or related to the operations of
the Borrower or any Subsidiary or any Joint Venture, in connection with
the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws except insofar as any such violation
or liability referred to in this paragraph, or any aggregation thereof,
could not reasonably be expected to result in the payment of a Material
Environmental Amount.
(g) There are no Liens arising under or pursuant to any
Environmental Laws on any of the real properties or properties owned or
leased by any Loan Party, and no government actions have been taken or
are in process which could subject any of such properties to such Liens
and no Loan Party would be required to place any notice or restriction
relating to the presence of Hazardous Materials at any properties owned
by it in any deed to such properties.
(h) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or which are in
the possession of any Loan Party in relation to any properties or
facility now or previously owned or leased by any Loan Party which have
not been made available to the Lenders.
5.18 Accuracy and Completeness of Information. The factual
statements contained in the financial statements (other than financial
projections) referred to in subsection 5.1, the Loan Documents, the Confidential
Information Memorandum dated April 1999 and any other certificates or documents
furnished or to be furnished (but only, with respect to documents furnished
after the Closing Date, documents provided pursuant to subsection 7.2(d)) to the
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Administrative Agent or the Lenders from time to time in connection with this
Agreement, taken as a whole, do not and will not, to the knowledge of the
Borrower, as of the date when made, contain any untrue statement of a material
fact or omit to state a material fact (other than omissions that pertain to
matters of a general economic nature, matters generally known to the
Administrative Agent or matters of public knowledge that generally affect any of
the industry segments included in the Business of the Borrower, its Subsidiaries
or any Joint Venture) necessary in order to make the statements contained
therein not misleading in light of the circumstances in which the same were
made, such knowledge qualification being given only with respect to factual
statements made by Persons other than the Borrower, and all financial
projections contained in any such document or certificate have been prepared in
good faith based upon assumptions believed by the Borrower to be reasonable.
5.19 Security Documents. The Pledge Agreements are each
effective to create in favor of the Administrative Agent, for the ratable
benefit of the Lenders, a legal, valid and enforceable security interest in the
respective Interests described therein and proceeds thereof, and the Pledge
Agreements each constitute a fully perfected first Lien on, and security
interest in, all right, title and interest of the Borrower and Leviathan,
respectively, in such Interests and Pledged Certificates and in proceeds thereof
superior in right to any other Person. Each Security Agreement is effective to
create in favor of the Administrative Agent, for the ratable benefit of the
Lenders, a legal, valid and enforceable security interest in the respective
collateral described therein and proceeds thereof, and the Security Agreements
constitute fully perfected, first priority Liens on, and security interests in
(subject to the Liens permitted pursuant to subsection 8.3), all right, title
and interest of the Borrower and the Subsidiary Guarantors in such collateral
and the proceeds thereof superior in right to any other Person other than Liens
permitted hereby.
5.20 Joint Venture Charters, Management Agreement, etc. (a) As
of the Closing Date, the Administrative Agent has received, with a copy for each
Lender, a complete copy of each of the Joint Venture Charters of each Joint
Venture any of the interests in which is owned by a Restricted Subsidiary and
all amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof.
(b) As of the Closing Date, the Administrative Agent has
received a complete copy of the Partnership Agreement, the Management Agreement
and each credit agreement to which any Joint Venture any of the interests in
which is owned by a Restricted Subsidiary is a party (including all exhibits,
schedules and disclosure letters referred to therein or delivered pursuant
thereto, if any) and all amendments thereto, waivers, relating thereto and other
side letters or agreements affecting the terms thereof (collectively, such
agreements and documents described in paragraphs (a) and (b) of this subsection
5.20 are referred to as the "Documents"). None of the Documents has been amended
or supplemented, nor have any of the provisions thereof been waived, except (i)
pursuant to a written agreement or instrument which has heretofore been
consented to in writing by the Required Lenders or (ii) in accordance with the
provisions of this Agreement.
(c) Except as disclosed on Schedule 5.6, each of the Documents
has been duly executed and delivered by each of the Borrower and its
Subsidiaries party thereto and, to the Borrower's knowledge, by each of the
other parties thereto, is in full force and effect and constitutes a legal,
valid and binding enforceable obligation of each of the Borrower and its
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Subsidiaries party thereto and, to the Borrower's knowledge, each other party
thereto. None of the Borrower or any of its Subsidiaries party to any of the
Documents, is in default in the performance of any of its obligations thereunder
in any material respect which would give any other party to such Document a
right to accelerate payment of amounts due under, or terminate, such Document.
5.21 Senior Indebtedness. The Obligations constitute "Senior
Indebtedness" of the Borrower under and as defined in the Senior Subordinated
Note Indenture. The obligations of each Subsidiary Guarantor under the Loan
Documents to which it is a party constitute "Senior Debt" of such Subsidiary
Guarantor under and as defined in the Senior Subordinated Note Indenture.
5.22 Year 2000 Matters. To the Borrower's knowledge, any
reprogramming required to permit the proper functioning (but only to the extent
that such proper functioning would otherwise be impaired by the occurrence of
the year 2000) in and following the year 2000 of computer systems and other
equipment containing embedded microchips, in either case owned or operated by
the Borrower or any of its Subsidiaries or otherwise controlled and used or
relied upon in the conduct of their business (including any such systems and
other equipment supplied by others or with which the computer systems of
Holdings, the Borrower or any of its Subsidiaries interface), and the testing of
all such systems and other equipment as so reprogrammed, will be completed by
September 30, 1999 except for such failure to reprogram or test which would not
reasonably be expected to have a Material Adverse Effect. To the Borrower's
knowledge, the costs to the Borrower and its Subsidiaries that have not been
incurred as of the date hereof for such reprogramming and testing and for the
other reasonably foreseeable consequences to them of any improper functioning of
other computer systems and equipment containing embedded microchips due to the
occurrence of the year 2000 could not reasonably be expected to result in a
Default or Event of Default or to have a Material Adverse Effect. Except for any
reprogramming referred to above, the computer systems of the Borrower and its
Subsidiaries are and, with ordinary course upgrading and maintenance, are
expected to continue for the term of this Agreement to be, sufficient for the
conduct of their business as currently conducted, except for such
insufficiencies as would not reasonably be expected to have a Material Adverse
Effect.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extensions of Credit. The agreement
of each Lender to make the initial extension of credit requested to be made by
it is subject to the satisfaction, immediately prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent (it being agreed that the conditions described in
paragraphs (b), (h), (i) and (j) below may be satisfied at any time prior to the
30th day following the Closing Date unless the Administrative Agent requests
that such conditions be satisfied earlier):
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower, (ii) for the account of each Lender
which requests the same, a Revolving Credit Note executed
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and delivered by a duly authorized officer of the Borrower, and (iii) a
confirmation of each of the Guarantees and Security Documents, executed
and delivered by a duly authorized officer of each Loan Party thereto
and satisfactory in form to the Administrative Agent.
(b) Related Agreements. The Administrative Agent shall have
received true and correct copies, certified as to authenticity by the
Borrower, of the Partnership Agreement, the certificate of limited
partnership of the Borrower, the Management Agreement, the limited
liability company agreement, or certificate of incorporation and
by-laws, as the case may be, of each Subsidiary, the Joint Venture
Charter of each Joint Venture and each agreement evidencing, securing
or under which is issued Indebtedness of any of the Joint Ventures
under their respective credit facilities, and such other documents or
instruments as may be reasonably requested by the Administrative Agent,
including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which any Joint Venture may be
a party.
(c) Borrowing Certificate. The Administrative Agent shall have
received a certificate of the Borrower, dated the Closing Date,
substantially in the form of Exhibit L, with appropriate insertions and
attachments, satisfactory in form and substance to the Administrative
Agent, executed by the Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, President, Treasurer or any Vice
President of the Borrower and the Secretary or any Assistant Secretary
of the Borrower.
(d) Partnership Proceedings of the Borrower. The
Administrative Agent shall have received a copy of the resolutions, in
form and substance satisfactory to the Administrative Agent, of the
Board of Directors of the General Partner authorizing on behalf of the
Borrower (i) the execution, delivery and performance of this Agreement,
the Revolving Credit Notes and the other Loan Documents to which the
Borrower is a party, (ii) the borrowings contemplated hereunder and
(iii) the granting by the Borrower of the Liens created pursuant to the
Security Documents to which it is a party, certified by the Secretary
or an Assistant Secretary of the General Partner on behalf of the
Borrower as of the Closing Date, which certificate shall be in form and
substance satisfactory to the Administrative Agent and shall state that
the resolutions thereby certified have not been amended, modified,
revoked or rescinded.
(e) Borrower Incumbency Certificate. The Administrative Agent
shall have received a certificate of the Borrower, dated the Closing
Date, as to the incumbency and signature of the officers of the
Borrower executing any Loan Document, satisfactory in form and
substance to the Administrative Agent, executed by the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President,
Treasurer or any Vice President and the Secretary or any Assistant
Secretary of the Borrower.
(f) Corporate Proceedings of Leviathan. The Administrative
Agent shall have received a copy of the resolutions, in form and
substance satisfactory to the Administrative Agent, of the Board of
Directors of Leviathan authorizing (i) the execution, delivery and
performance of the Loan Documents to which Leviathan is a party and
(ii) the granting by it of the Liens created pursuant to the Security
Documents to
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which it is a party, certified by the Secretary or an Assistant
Secretary of Leviathan as of the Closing Date, which certificate shall
be in form and substance satisfactory to the Administrative Agent and
shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded.
(g) Leviathan Incumbency Certificate. The Administrative Agent
shall have received a certificate of Leviathan, dated the Closing Date,
as to the incumbency and signature of the officers of Leviathan
executing any Loan Document, satisfactory in form and substance to the
Administrative Agent, executed by the Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, President, Treasurer or any
Vice President and the Secretary or any Assistant Secretary of
Leviathan.
(h) Proceedings of Subsidiaries. The Administrative Agent
shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Managing Member or the
Board of Directors, as applicable, of each Subsidiary of the Borrower
which is a party to a Loan Document authorizing (i) the execution,
delivery and performance of the Loan Documents to which it is a party
and (ii) the granting by it of the Liens created pursuant to the
Security Documents to which it is a party, certified by the Secretary
or an Assistant Secretary of such Subsidiary as of the Closing Date,
which certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded.
(i) Subsidiary Incumbency Certificates. The Administrative
Agent shall have received a certificate of each Subsidiary of the
Borrower which is a Loan Party, dated the Closing Date, as to the
incumbency and signature of the officers of such Subsidiary executing
any Loan Document, satisfactory in form and substance to the
Administrative Agent, executed by the Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, President, Treasurer or any
Vice President and the Secretary or any Assistant Secretary of each
such Subsidiary.
(j) Corporate Documents. The Administrative Agent shall have
received true and complete copies of the certificate of incorporation
and by-laws of Leviathan and the certificate of formation or
certificate of incorporation, as the case may be, of each Subsidiary of
the Borrower, certified as of the Closing Date as complete and correct
copies thereof by the Secretary or an Assistant Secretary of Leviathan
or such Subsidiary, as the case may be.
(k) Consents, Licenses and Approvals. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate
of a Responsible Officer of the Borrower (i) attaching copies of all
consents, authorizations and filings referred to in subsection 5.4, and
(ii) stating that such consents, licenses and filings are in full force
and effect, and each such consent, authorization and filing shall be in
form and substance satisfactory to the Administrative Agent.
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(l) Fees. The Administrative Agent and each Lender shall have
received the fees to be received on the Closing Date as separately
agreed to between each of them and the Borrower.
(m) Legal Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal
opinion of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel to the
Borrower and the other Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent.
(n) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates, if any, representing the shares
and limited liability company interests pledged pursuant to each of the
Pledge Agreements, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the
pledgor thereof. Each Instruction to Register Pledge referred to in
such Pledge Agreements shall have been delivered to the Borrower and
its Subsidiaries, and each Initial Transaction Statement referred to in
such Pledge Agreements shall have been delivered to the Administrative
Agent, as are required by any of the Pledge Agreements.
(o) Actions to Perfect Liens. The Administrative Agent shall
have received evidence in form and substance satisfactory to it that
all filings, recordings, registrations and other actions, including,
without limitation, the filing of duly executed financing statements on
form UCC-1 and amendments to financing statements on form UCC-3,
necessary or, in the opinion of the Administrative Agent, desirable to
perfect the Liens created by the Security Documents shall have been
completed.
(p) Insurance. (i) The Administrative Agent shall have
received evidence in form and substance satisfactory to it and all of
the requirements of subsection 7.5 shall have been satisfied.
(ii) The Lenders shall have received a schedule detailing, and
shall be satisfied with, the amount, coverage and carriers of the
insurance carried by the Borrower, the Restricted Subsidiaries and
Leviathan.
(q) Good Standing Certificates. The Administrative Agent shall
have received copies of certificates dated as of a recent date from the
Secretary of State or other appropriate authority of such jurisdiction,
evidencing the good standing of the Borrower and each other Loan Party
in each state where the ownership, lease or operation of property or
the conduct of business requires it to qualify as a foreign
corporation, partnership or limited liability company, as the case may
be.
(r) No Violation. The consummation of the transactions
contemplated hereby shall not contravene, violate or conflict with, nor
involve any Lender in any violation of, any Requirement of Law.
(s) Litigation, Etc. No suit, action, investigation, inquiry
or other proceeding (including, without limitation, the enactment or
promulgation of a statute or rule) by or before any arbitrator or any
Governmental Authority shall be
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pending and no preliminary or permanent injunction or order by a state
or federal court shall have been entered (i) in connection with any
Loan Document or any of the transactions contemplated hereby or thereby
or (ii) which, in any such case could have a Material Adverse Effect.
(t) Senior Subordinated Notes. The Borrower shall have
received (i) at least $175,000,000 in gross cash proceeds from the
issuance of the Senior Subordinated Notes and (ii) a copy of the Senior
Subordinated Note Indenture, certified as of the Closing Date as a
complete copy thereof by the Secretary or an Assistant Secretary of the
Borrower. The Senior Subordinated Note Indenture shall be satisfactory
in form of substance to the Lenders.
(u) Consents. All material governmental and third party
approvals (or arrangements satisfactory to the Lenders in lieu of such
approvals) necessary or advisable in connection with the transactions
and financings contemplated hereby and by the other Loan Documents and
the continuing operations of the Borrower, the Subsidiaries and the
Joint Ventures (including, without limitation, any consent of other
partners of and lenders to any Joint Venture) shall have been obtained
and be in full force and effect.
(v) Material Adverse Effect. No event which has or could have
a Material Adverse Effect shall have occurred.
(w) No Defaults. There shall exist no event of default (or
condition which would constitute an event of default with the giving of
notice or the passage of time) under any material Capital Stock,
financing agreements, lease agreements, partnership agreements or other
material contracts of the Borrower or the Subsidiaries or, to the
knowledge of the Borrower, any Joint Venture.
(x) Tax and Labor Matters. The Lenders shall be satisfied with
the status of all labor, tax, employee benefit and health and safety
matters involving the Borrower and the Restricted Subsidiaries.
(y) Financial Statements. The Administrative Agent shall have
received, with a counterpart for each Lender, complete copies of the
financial statements described in subsection 5.1.
(z) Commodity Hedging Program. The Administrative Agent shall
have received, with a counterpart for each Lender, a report on the
status of the Commodity Hedging Programs of the Borrower covering the
Borrower's interest in production from the Subject Properties in
amounts and for periods reasonably satisfactory to the Administrative
Agent.
(aa) Viosca Xxxxx. The Borrower and its Restricted
Subsidiaries shall have executed definitive documentation with El Paso
Energy and its Subsidiaries providing for the acquisition no later than
June 1, 1999 by the Borrower and its Restricted Subsidiaries of all of
the interest of El Paso Energy and its Subsidiaries in Viosca Xxxxx
(other than a
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1% interest in profits and capital of Viosca Xxxxx) on substantially
the terms set forth in the Borrower's Proxy Statement dated February 8,
1999.
(bb) Accrued Interest, Fees and Term Loans. The Borrower shall
have paid to the Administrative Agent all unpaid interest, commitment
fees and letter of credit commissions accrued and all term loans
outstanding under the Existing Credit Agreement through the Closing
Date.
(cc) Reallocation of Revolving Credit Loans; Assignments. The
Lenders shall have reallocated the Revolving Credit Loans outstanding
under this Agreement immediately prior to the Closing Date, and the
Lenders and the lenders under the Existing Credit Agreement shall be
deemed to have made such assignments of the Revolving Credit
Commitments among themselves, as directed by the Administrative Agent
in order to reflect the Revolving Credit Commitments under this
Agreement.
(dd) Additional Matters. All corporate, company, partnership
and other proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by this
Agreement and the other Loan Documents shall be reasonably satisfactory
in form and substance to the Lenders, and the Lenders shall have
received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or
thereby as any of them shall reasonably request.
6.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit (including the renewal or extension
of a Letter of Credit) requested to be made by it on any date (including,
without limitation, its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and the other Loan
Parties in or pursuant to the Loan Documents shall be true and correct
in all material respects on and as of such date as if made on and as of
such date (unless such representations and warranties are stated to
relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of
such earlier date).
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Additional Matters. The Administrative Agent shall have
received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or by the
other Loan Documents as it shall reasonably request.
Each borrowing by the Borrower hereunder, and each issuance or renewal or
extension of a Letter of Credit hereunder, shall constitute a representation and
warranty by the Borrower as of the date of such extension of credit or such
conversion that the conditions contained in this subsection 6.2 have been
satisfied.
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SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments remain in effect, any Revolving Credit Note or any Letter of
Credit remains outstanding and unpaid or any other amount is owing to any
Lender, the Administrative Agent hereunder, the Borrower shall and (except in
the case of delivery of financial information, reports and notices) shall cause
each of its Restricted Subsidiaries and, with respect to subsections 7.3 and
7.11, each of its Unrestricted Subsidiaries, to:
7.1 Financial Statements. Furnish to the Administrative Agent,
with copies for the Lenders:
(a) as soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by PricewaterhouseCoopers LLP or other independent
certified public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated and
consolidating balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated and consolidating statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
when considered in relation to the consolidated and consolidating
financial statements of the Borrower and its consolidated Subsidiaries
(subject to normal year-end audit adjustments);
(c) concurrently with the delivery of the financial statements
for any fiscal year described in paragraph (a) of this subsection 7.1,
the unaudited consolidating balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year and the
related unaudited consolidating statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
when considered in relation to the consolidating financial statements
of the Borrower and its consolidated Subsidiaries;
(d) as soon as available, but in any event within 120 days
after the end of each fiscal year of each material Joint Venture any of
the interests in which is owned by a Restricted Subsidiary, a copy of
the audited balance sheet of such Joint Venture, as at the
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end of such year and the related unaudited statements of income and
retained earnings and of cash flows of such Joint Venture, for such
year, setting forth in each case in a comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by independent certified public accountants of nationally
recognized standing; and
(e) concurrently with the delivery of the financial statements
referred to in subsection 7.1(b), the unaudited balance sheet of each
Joint Venture any of the interests in which is owned by a Restricted
Subsidiary, as at the end of each such quarter of such Joint Venture,
and the related unaudited consolidated statements of income and
retained earnings and of cash flows of such Joint Venture, for such
month and the portion of the fiscal year through the end of such month,
setting forth in each case in comparative form the figures for the
previous year, in each case received by the Borrower or any of its
Subsidiaries during such fiscal quarter;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and (except for the
financial statements of any Joint Venture) in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein and, with respect to unaudited interim financial statements,
for the absence of footnotes and year-end adjustments).
7.2 Certificates; Other Information. Furnish to the
Administrative Agent, with copies for the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default relating to accounting
issues, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a certificate of a
Responsible Officer of the Borrower, (i) stating that, to the best of
such Officer's knowledge, the Borrower and its Subsidiaries during such
period have observed or performed all of their respective covenants and
other agreements, and satisfied every condition, contained in this
Agreement and in the Revolving Credit Notes and the other Loan
Documents to be observed, performed or satisfied by them, and that such
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate, and (ii) setting forth (x) in
reasonable detail the calculation of the covenants set forth in
subsection 8.1 for the Calculation Period ending on the last day of
such fiscal quarter and (y) in reasonable detail the calculation of the
Incurrence Limitation as of the last day of the most recent fiscal
quarter covered by such certificate;
(c) not later than thirty days prior to the end of each fiscal
year of the Borrower, a copy of the projections by the Borrower of the
operating budget and cash flow budget of the Borrower for the
succeeding fiscal year, such projections to be accompanied by a
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certificate of a Responsible Officer to the effect that such
projections have been prepared on the basis of sound financial planning
practice and that such Officer has no reason to believe they are
incorrect or misleading in any material respect;
(d) within five days after the same are sent, copies of all
financial statements and reports which the Borrower sends to the
holders of its Capital Stock, and within five days after the same are
filed, copies of all financial statements and reports which the
Borrower may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(e) upon the request of any Lender, and to the extent the same
have been received by the Borrower or any of its Subsidiaries, a copy
of the projections by each Joint Venture any of the interests in which
is owned by a Restricted Subsidiary, as the case may be, of the
operating budget and cash flow budget of such Joint Venture for the
succeeding fiscal year;
(f) upon the request of any Lender, and to the extent the same
have been received by the Borrower or any of its Subsidiaries, within
thirty days of the end of each of the quarterly periods of each fiscal
year of each Joint Venture any of the interests in which is owned by a
Restricted Subsidiary, a list of all shippers that have used such Joint
Venture during such quarterly period and the volumes and revenues
attributable to each such shipper;
(g) upon the request of any Lender, and to the extent the same
have been received by the Borrower or any of its Subsidiaries, copies
of all compliance certificates delivered by each Joint Venture any of
the interests in which is owned by a Restricted Subsidiary, pursuant to
any credit agreement to which such Joint Venture is a party;
(h) upon the request of any Lender, within five days after the
same are received by the Borrower, a copy of any FERC Form 2 for any
Joint Venture any of the interests in which is owned by a Restricted
Subsidiary;
(i) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate signed by the
President, Chief Executive Officer, Chief Operating Officer or Chief
Financial Officer of the Borrower in the form of Exhibit N hereto.
Further, if requested by the Required Lenders (by notice to the
Administrative Agent, which will give notice of such request to the
Borrower and each Lender), the Borrower shall permit and cooperate with
an environmental and safety review made in connection with the
operations of Borrower's properties once during each fiscal year of the
Borrower, by independent environmental consultants chosen by the
Borrower and acceptable to the Required Lenders, which review shall, if
requested by such Lender or Lenders, be arranged and supervised by
environmental legal counsel for the Lenders, all at the Borrower's cost
and expense. The consultant shall render a verbal or written report, as
specified by the Lenders, based upon such review, at the Borrower's
cost and expense. Notwithstanding anything in this paragraph (i) to the
contrary, the maximum amount of cost and expense for which the Borrower
shall be responsible with respect to any such review in any fiscal year
shall be $25,000;
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(j) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a Reserve Report, at the Borrower's
cost and expense;
(k) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a statement of production
by blocks of oil and gas setting forth on a monthly basis average sales
price received for the Subject Properties;
(l) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a throughput report
setting forth the throughputs of each pipeline owned by the Borrower;
and
(m) promptly, such additional financial and other information
concerning any Loan Party, any Unrestricted Subsidiary or any Joint
Venture as any Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be, and except
where the failure to so pay, discharge or satisfy such obligations could not
reasonably be expected to have a Material Adverse Effect.
7.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event fire, casualty, public liability and product liability)
as are usually insured against in the same general area by companies engaged in
the same or a similar business; and furnish to each Lender, upon written
request, full information as to the insurance carried. Upon demand by any Lender
(by notice to the Administrative Agent, which shall give notice of such demand
to the Borrower and each Lender) any insurance policies covering Collateral
shall be endorsed to provide that such policies may not be cancelled or reduced
or affected in any material manner for any reason without 15 days prior notice
to the Lenders. The Borrower shall, and shall cause each of its Restricted
Subsidiaries to, at all times maintain liability and other insurance in
accordance with and in the amounts set forth on the schedule delivered pursuant
to subsection 6.1(p)(ii), which insurance shall be by financially sound and
reputable insurers.
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7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and accounts in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and its
Restricted Subsidiaries with officers and employees of the Borrower and its
Restricted Subsidiaries and with its independent certified public accountants.
7.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any
of its Subsidiaries in which the amount involved is $5,000,000 or more
and not covered by insurance or in which injunctive or similar relief
is sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan; and
(e) any development or event which could reasonably be
expected to have a Material Adverse Effect or cause the incurrence of
an environmental liability in excess of the Material Environmental
Amount.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
7.8 Environmental Laws.
(a) Comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain
and comply with and maintain, and
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ensure that all tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, notifications, registrations
or permits required by applicable Environmental Laws except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws
except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not
reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders, and their respective employees, agents, officers
and directors, from and against any and all claims, demands, penalties,
fines, liabilities, settlements and damages, and reasonable costs and
expenses, of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable
to the operations of the Borrower, any of its Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, attorney's
and consultant's fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, except to the extent that
any of the foregoing arise out of the gross negligence or willful
misconduct of the party seeking indemnification therefor. The
agreements in this paragraph shall survive repayment of the Revolving
Credit Notes and all other amounts payable hereunder.
7.9 Maintenance of Liens of the Security Documents. Promptly,
upon the request of the Administrative Agent, at the Borrower's expense,
execute, acknowledge and deliver, or cause the execution, acknowledgement and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Security Documents or
otherwise deemed by the Administrative Agent necessary or desirable for the
continued validity, perfection and priority of the Liens on the collateral
covered thereby.
7.10 Pledge of After-Acquired Property. (a) With respect to
any right, title or interest of any Loan Party in any Capital Stock or other
property of a type subject to the Security Documents and acquired after the
Closing Date, promptly grant or cause to be granted to the Administrative Agent,
for the benefit of the Lenders, a first Lien of record on all such Capital Stock
and property (other than such Capital Stock and property subject to (i) prior
Liens in existence at the time of acquisition thereof and not created in
anticipation of such acquisition, in which case the Lien of the Lenders shall be
of such priority as is permitted by such prior Lien and (ii) other Liens that
are expressly permitted by this Agreement), upon terms substantially the same as
those set forth in the Security Documents, and satisfy the conditions with
respect thereto set forth in subsection 6.1. The Borrower, at its own expense,
shall execute, acknowledge and deliver, or cause its Restricted Subsidiaries to
execute, acknowledge and deliver, and thereafter register, file or record, or
cause its Restricted Subsidiaries to register, file or record, in an appropriate
governmental office, any document or instrument deemed by the Administrative
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Agent to be necessary or desirable for the creation and perfection of the
foregoing Liens and deliver Uniform Commercial Code searches in jurisdictions
requested by the Administrative Agent with respect to such Capital Stock and
other property and legal opinions requested by the Administrative Agent and
shall pay, or cause to be paid, all taxes and fees related to such registration,
filing or recording.
(b) With respect to any new Restricted Subsidiary created or
acquired after the Closing Date by the Borrower, promptly cause such Restricted
Subsidiary to execute and deliver to the Administrative Agent the Subsidiary
Guarantee, and, if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to such Restricted Subsidiary and
the Subsidiary Guarantee, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.
(c) Notwithstanding anything to the contrary in any Loan
Document, neither the Borrower nor any Restricted Subsidiary shall be obligated
to (a) pledge under the Loan Documents any of its equity interest in any Joint
Venture if such pledge is prohibited by any Contractual Obligation or (b) pledge
under the Loan Documents any of its real property.
(d) Notwithstanding anything to the contrary in any Loan
Document, if the Borrower or any Restricted Subsidiary has pledged its interest
in any Joint Venture and the Borrower or such Restricted Subsidiary desires to
make a contribution of or investment with such interest to or in a second Joint
Venture in accordance with subsection 8.8(f), the Lien held by the Lenders upon
such interest shall terminate as long as the interest held by the Borrower or
Restricted Subsidiary in the second Joint Venture shall be subject to a Lien
under the Loan Documents in accordance with subsection 8.8(f) unless otherwise
agreed by the Required Lenders.
7.11 Agreements Respecting Unrestricted Subsidiaries. (a)
Operate each Unrestricted Subsidiary in such a manner as to make it apparent to
all creditors of such Unrestricted Subsidiary that such Unrestricted Subsidiary
is a legal entity separate and distinct from the Borrower or any Restricted
Subsidiary and as such is solely responsible for its debts, and such manner
shall include, but shall not be limited to, the maintenance of a separate board
of directors for such Unrestricted Subsidiary.
(b) In connection with any Indebtedness, Guarantee Obligations
or other obligations incurred by each Unrestricted Subsidiary, (i) incur such
Indebtedness only on a basis which does not permit, allow or provide for
recourse to the Borrower or any Restricted Subsidiary, and (ii) incur any such
Indebtedness, Guarantee Obligations or other obligations in excess of $500,000
only under a loan agreement, note, lease, instrument or other contractual
obligation that expressly states that such Indebtedness is being incurred by
such Unrestricted Subsidiary on a basis which is non-recourse to the Borrower
and its Restricted Subsidiaries, provided that no such agreement, note, lease,
instrument or other Obligation shall be required to include such statement if
such agreement, note, lease, instrument or other obligation was in effect on the
date such Subsidiary became an Unrestricted Subsidiary.
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7.12 Commodity Hedging Programs. Enter into Commodity Hedging
Programs, not to exceed 80% of annual production at any time, covering the
Borrower's interest in production of the Subject Properties.
7.13 Joint Venture Charters, Management Agreement, etc.
Deliver to the Administrative Agent (a) any amendments to the Documents
previously delivered, written waivers relating thereto and other side letters or
agreements in writing affecting the terms thereof and (b) any Documents relating
to any new Joint Venture any of the interests in which is owned by a Restricted
Subsidiary.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving
Credit Commitments remain in effect, any Revolving Credit Note or any Letter of
Credit remains outstanding and unpaid or any other amount is owing to any
Lender, the Administrative Agent hereunder, the Borrower shall not, and (except
with respect to subsection 8.1) shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenants.
(a) Tangible Net Worth. Permit Consolidated Tangible Net Worth
at any time to be less than $70,000,000.
(b) Interest Coverage Ratio. Permit for any Calculation Period
the ratio of (i) Consolidated EBITDA for such period to (ii)
Consolidated Interest Expense for such period to be less than 2.0 to
1.0.
(c) Senior Leverage Ratio. Permit, on the last day of any
fiscal quarter of the Borrower, the ratio of (x) Consolidated Total
Senior Indebtedness to (y) the Consolidated EBITDA for the Calculation
Period ending on such date to exceed 3.5 to 1.0 (or, from and after the
Equity Adjustment Date, 3.25 to 1.0).
(d) Leverage Ratio. Permit, on the last day of any fiscal
quarter of the Borrower the ratio of (x) Consolidated Total
Indebtedness at such date to (y) the Consolidated EBITDA for the
Calculation Period ending on such date to exceed 5.35 to 1.0 (or, from
and after the Equity Adjustment Date, 5.0 to 1.0).
Solely for purposes of paragraphs (b), (c) and (d) of this subsection 8.1,
Consolidated EBITDA shall be deemed to be $23,500,000 for each of the Borrower's
fiscal quarters ending on June 30, 1998, September 30, 1998, December 31, 1998
and March 31, 1999. The initial test date for the covenants set forth in this
subsection 8.1 shall be June 30, 1999.
8.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower and its Subsidiaries under
the Loan Documents;
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(b) Indebtedness of the Borrower to any Subsidiary Guarantor,
and of any Subsidiary Guarantor to the Borrower or any other Subsidiary
Guarantor;
(c) Indebtedness permitted pursuant to subsections 8.3 and
8.8;
(d) Indebtedness of the Borrower and the Co-Borrower in
respect of the Senior Subordinated Notes in an aggregate principal
amount not to exceed $200,000,000;
(e) Indebtedness incurred pursuant to any Hedge Agreement to
the extent permitted by subsection 8.22;
(f) Indebtedness (i) of any other Person existing at the time
such other Person is merged with or into or became a Subsidiary of the
Borrower or any Restricted Subsidiary or (ii) to which any asset is
subject existing at the time such asset is acquired by the Borrower or
any Restricted Subsidiary; provided that (A) no Default shall have
occurred and be continuing at the time of, or after giving effect to,
the incurring of such Indebtedness and (B) after giving effect to the
incurrence of such Indebtedness the Borrower would be in pro forma
compliance with the covenants set forth in subsection 8.1; and
(g) other unsecured Indebtedness of the Borrower in an
aggregate principal amount not to exceed $10,000,000 outstanding at any
time less the aggregate amount of Guarantee Obligations incurred
pursuant to subsection 8.4(f) then outstanding.
8.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Restricted Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property
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subject thereto or materially interfere with the ordinary conduct of
the business of the Borrower or such Restricted Subsidiary;
(f) Liens created pursuant to construction, operating, farmout
and maintenance agreements, space lease agreements, Joint Venture
Charters and related documents (to the extent requiring a Lien on the
equity interest of the Borrower or any Restricted Subsidiary, as the
case may be, in the applicable Joint Venture is required thereunder),
division orders, contracts for sale, transportation or exchange of oil
and natural gas, unitization and pooling declarations and agreements,
area of mutual interest agreements and other similar agreements, in
each case having ordinary and customary terms and entered into in the
ordinary course of business by the Borrower and its Restricted
Subsidiaries; and
(g) additional Liens securing Indebtedness and other
obligations not to exceed $1,000,000 at any one time outstanding.
This subsection shall not restrict the ability of any Joint Venture or
Unrestricted Subsidiary to create, incur, assume or suffer to exist any Lien on
any of its property.
8.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations created pursuant to the Loan
Documents;
(b) Guarantee Obligations of the Borrower or any Restricted
Subsidiary incurred after the Closing Date in an aggregate amount not
to exceed $1,000,000 at any one time outstanding;
(c) Guarantee Obligations constituting performance guarantees
provided in the ordinary course of business by the Borrower and its
Restricted Subsidiaries supporting obligations of the Borrower and/or
Restricted Subsidiaries which obligations have been incurred in the
ordinary course of business (including in connection with the
operation, construction or acquisition of pipelines, platforms and
related facilities);
(d) Guarantee Obligations of any Subsidiary Guarantor in
respect of the Senior Subordinated Notes, provided that such Guarantee
Obligations are subordinated to such Subsidiary Guarantor's obligations
under the Loan Documents to the same extent as the obligations of the
Borrower in respect of the Senior Subordinated Notes;
(e) Guarantee Obligations in an aggregate amount not to exceed
$11,500,000 at any one time outstanding incurred pursuant to clawback
and other similar arrangements; and
(f) Guarantee Obligations, in addition to those described in
clause (e) of this subsection 8.4, incurred pursuant to clawback and
other similar arrangements in an aggregate amount not to exceed
$10,000,000 outstanding at any time less the aggregate amount of
Indebtedness incurred pursuant to subsection 8.2(g) then outstanding.
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8.5 Limitations on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or make any material change in its
present method of conducting business, except:
(a) any Restricted Subsidiary may be merged or consolidated
with or into the Borrower (as long as the Borrower is the surviving
entity) or any one or more Restricted Subsidiaries which is a
Subsidiary Guarantor (provided that, if any of such Restricted
Subsidiaries is not wholly owned by the Borrower and the General
Partner, the Restricted Subsidiary or Restricted Subsidiaries in which
the Borrower owns the greatest interest shall be the continuing or
surviving corporation);
(b) any Restricted Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other Restricted
Subsidiary which is a Subsidiary Guarantor and in which, if not wholly
owned by the Borrower and the General Partner, the Borrower owns at
least the same percentage interests as the Borrower owns in the
transferor Restricted Subsidiary; and
(c) the Borrower or any Restricted Subsidiary may enter into a
merger, consolidation or share exchange with any other Person so long
as:
(i) such transaction is permitted under subsection
8.8;
(ii) such transaction shall be effected in such
manner so that (A) if the Borrower is a party to such
transaction, the Borrower is the surviving entity and (B)
otherwise, the Restricted Subsidiary shall be the continuing
or surviving entity;
(iii) at the time of such acquisition and after
giving effect thereto, no Default or Event of Default shall
have occurred and shall be continuing; and
(d) solely to effect any transaction permitted by subsection
8.6(b).
The transactions permitted under this subsection shall be permitted
notwithstanding anything to the contrary in subsection 4(j) of each of the
Borrower Pledge Agreement and the Leviathan Pledge Agreement (GP).
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
(a) as permitted by subsection 8.5; and
(b) as long as no Default or Event of Default has occurred and
is continuing or would result therefrom the Borrower and the Restricted
Subsidiaries may sell or otherwise dispose of property in any fiscal
year having an aggregate value not in excess of 5% of Consolidated
Tangible Net Worth calculated on the last day of the prior fiscal
quarter.
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The transactions permitted under this subsection shall be permitted
notwithstanding anything to the contrary in subsection 4(j) of each of the
Borrower Pledge Agreement and the Leviathan Pledge Agreement (GP).
8.7 Limitation on Dividends. Declare or pay any dividend or
distribution on (other than dividends, including splits, payable solely in
non-mandatorily redeemable Capital Stock), or make any payment on account of, or
set apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any shares of any
class of Capital Stock of the Borrower or any warrants or options to purchase
any such Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower or any Restricted Subsidiary (such
declarations, payments, setting apart, purchases, redemptions, defeasances,
retirements, acquisitions and distributions being herein called "Restricted
Payments"), except that as long as no Default or Event of Default has occurred
and is continuing or would result therefrom, the Borrower may make Restricted
Payments once each fiscal quarter consisting of cash distributions in accordance
with the terms of the Partnership Agreement on its Preference Units, its Common
Units and the General Partnership Interest.
8.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) capital contributions, loans or other investments made by
the Borrower to any Restricted Subsidiary which is a Subsidiary
Guarantor and by any Restricted Subsidiary to the Borrower or any
Restricted Subsidiary which is a Guarantor;
(d) capital contributions, loans or other investments by
Subsidiaries of the Borrower or any Joint Venture to or in the Borrower
or any Restricted Subsidiary, provided that no Default or Event of
Default shall have occurred and be continuing, or would occur as a
result of such investment;
(e) other non-hostile acquisitions of equity securities of, or
assets constituting a business unit of, any Person (an "Acquired
Business"), provided that (i) immediately prior to and after giving
effect to any such acquisition, no Default or Event of Default shall
have occurred or be continuing (whether under subsection 8.17 or
otherwise), (ii) such acquisition is consummated in accordance with
applicable law, (iii) if such acquisition is of equity securities of a
Person, such Person becomes a Restricted Subsidiary, (iv) the Borrower
shall be in pro forma compliance with the covenants set forth in
subsection 8.1 after giving effect to such acquisition and (v) the
Acquired Business shall not be subject to any material liabilities
except as permitted by this Agreement;
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(f) the contribution by the Borrower or any Restricted
Subsidiary of the equity interests owned by it in a Joint Venture to
another Joint Venture or the investment by the Borrower or any
Restricted Subsidiary in another Joint Venture to the extent made with
equity interests in a Joint Venture owned by it as long as (i) the
Borrower or such Restricted Subsidiary receives in exchange equity
interests in such transferee Joint Venture and (ii) unless otherwise
agreed by the Required Lenders, if the transferred equity interests are
subject to a Lien under the Loan Documents, the equity interests
received in exchange become subject to a Lien under the Loan Documents;
and
(g) other capital contributions, loans or other investments
(which shall not include the transactions described in subsection 4.13
or 8.8(f)) in an aggregate amount not to exceed $25,000,000 (i) with
respect to the period between the Closing Date to an including 11:59
p.m., Central Standard Time, on December 31, 1999 or (ii) during any
fiscal year of the Borrower beginning with the fiscal year commencing
on January 1, 2000.
8.9 Limitation on Optional Payments and Modifications of Debt
Instruments and Other Agreements. (a) Make any optional payment or prepayment
on, redemption of or purchase of, or voluntarily defease, or directly or
indirectly voluntarily or optionally purchase, redeem, retire or otherwise
acquire, the Senior Subordinated Notes or any other Indebtedness or Guarantee
Obligations (other than the Revolving Credit Loans), or make any payment under
or on account of the Management Agreement except as required pursuant to the
terms thereof, (b) amend, modify or change, or consent or agree to any
amendment, modification or change to, any of the terms of the Senior
Subordinated Notes or the Senior Subordinated Note Indenture (other than any
such amendment, modification or change which would extend the maturity or reduce
the amount of any payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon), (c) amend, modify or change,
or consent or agree to any amendment, modification or change to, any of the
terms of any Indebtedness or Guarantee Obligations other than the Senior
Subordinated Notes and Guarantee Obligations in respect thereof (other than any
such amendment, modification or change which would extend the maturity or reduce
the amount of any payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon), except to the extent the same
could not reasonably be expected to have a Material Adverse Effect, (d) amend,
modify or change, or consent to any amendment, modification or change to, any of
the terms of, the Partnership Agreement, the Borrower's certificate of limited
partnership, the Management Agreement or any Joint Venture Charter, except to
the extent the same could not reasonably be expected to have a Material Adverse
Effect, (e) waive or otherwise relinquish any of its rights or causes of action
arising out of the Partnership Agreement, the Borrower's certificate of limited
partnership, the Management Agreement or any Joint Venture Charter, except to
the extent the same could not reasonably be expected to have a Material Adverse
Effect or (f) designate any Indebtedness as "Designated Senior Indebtedness"
under the Senior Subordinated Note Indenture without the consent of the
Administrative Agent (other than the Obligations). Notwithstanding any provision
contained in this subsection 8.9, the Borrower and its Restricted Subsidiaries
shall have the absolute right to amend any Joint Venture Charter to the extent
necessary or reasonably appropriate to evidence the substitution, replacement or
other changes of partners, members or owners in any Joint Venture not in
violation of subsection 8.19 or subsection 8.21.
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8.10 Limitation on Transactions with Affiliates. Subject to
the rights set forth in subsection 8.13, 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 transaction is (a)
otherwise permitted under this Agreement, and (b) except for the Management
Agreement, upon fair and reasonable terms no less favorable to the Borrower or
such Restricted Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an Affiliate.
8.11 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Restricted Subsidiary of real or personal property which has been or is to be
sold or transferred by the Borrower or such Restricted Subsidiary to such Person
or to any other Person to whom funds have been or are to be advanced by such
Person on the security of such property or rental obligations of the Borrower or
such Restricted Subsidiary.
8.12 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Borrower to end on a day other than December 31.
8.13 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary or Joint Venture, except for (a)
gathering, transporting (by barge, pipeline, ship, truck or other modes of
hydrocarbon transportation), terminalling, storing, producing, acquiring,
developing, exploring for, processing, dehydrating and otherwise handling
hydrocarbons, including, without limitation, constructing pipeline, platform,
dehydration, processing and other energy-related facilities, and activities or
services reasonably related or ancillary thereto and (b) other businesses as
long as the consolidated total assets principally relating to such other
businesses do not exceed 3% of the consolidated total assets of the Borrower and
its Restricted Subsidiaries at any time.
8.14 Corporate Documents. Permit the amendment or modification
of the limited liability company agreement or certificate of formation or
incorporation of any Restricted Subsidiary if such amendment could reasonably be
expected to have a Material Adverse Effect, or would authorize or issue any
Capital Stock not authorized or issued on the Closing Date, except to the extent
such authorization or issuance would have the same substantive effect as any
transaction permitted by subsection 8.5 or 8.6.
8.15 Compliance with ERISA. (a) Terminate any Plan so as to
result in any material liability to PBGC, (b) engage in any "prohibited
transaction" (as defined in Section 4975 of the Code) involving any Plan which
could result in a material liability for an excise tax or civil penalty in
connection therewith, (c) incur or suffer to exist any material "accumulated
funding deficiency" (as defined in Section 302 of ERISA), whether or not waived
involving any Plan, or (d) allow or suffer to exist any event or condition,
which presents a material risk of incurring a material liability to PBGC by
reason of termination of any such Plan.
8.16 Limitation on Restrictions Affecting Subsidiaries. Enter
into, or suffer to exist, any agreement with any Person, other than the Lenders
pursuant hereto and other than the arrangements described in subsections 8.2(c)
and 8.4(d) or which exist on the Closing Date, which prohibits or limits the
ability of any Restricted Subsidiary to (a) pay dividends or make
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other distributions or pay any Indebtedness owed to the Borrower or any
Restricted Subsidiary, (b) make loans or advances to or make other investments
in the Borrower or any Restricted Subsidiary, (c) transfer any of its properties
or assets to the Borrower or any Restricted Subsidiary, (d) create, incur,
assume or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired.
8.17 Creation of Restricted Subsidiaries. Create or acquire
any new Restricted Subsidiary of the Borrower or any of its Restricted
Subsidiaries, unless, immediately upon the creation or acquisition of any such
Restricted Subsidiary, (a) such Restricted Subsidiary shall become party to the
Subsidiaries Guarantee as a Subsidiary Guarantor pursuant to an addendum thereto
or other documentation in form and substance reasonably satisfactory to the
Administrative Agent, (b) such Restricted Subsidiary shall become party to the
Subsidiary Security Agreement as a grantor pursuant to an addendum thereto or
other documentation in form and substance reasonably satisfactory to the
Administrative Agent, and all actions required to perfect the Liens granted
thereby, all filings required thereunder and all consents necessitated thereby
shall have been taken, made or obtained, (c) all Capital Stock issued by such
Restricted Subsidiary owned by the Borrower or any other Restricted Subsidiary
shall have been pledged to the Administrative Agent pursuant to an addendum or
amendment to the Borrower Pledge Agreement or other documentation in form and
substance satisfactory to the Administrative Agent, (d) all corporate, company,
partnership or other proceedings, and all documents, instruments and other legal
matters in connection with the creation of such Restricted Subsidiary and the
transactions contemplated by this subsection 8.17 shall be reasonably
satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received such other documents and legal opinions
in respect of any aspect or consequence of such creation or such transactions as
it shall reasonably request and (e) no Default or Event of Default shall have
occurred and be continuing after giving effect thereto.
8.18 Hazardous Materials. Except to the extent that the same
could not reasonably be expected to have a Material Adverse Effect, permit the
manufacture, storage, transmission or presence of any Hazardous Materials over
or upon any of its properties except in accordance with all applicable
Requirements of Law or release, discharge or otherwise dispose of any Hazardous
Materials on any of its properties except that the Borrower and its Restricted
Subsidiaries may treat, store and transport petroleum, its derivatives,
by-products and other hydrocarbons, hydrogen sulfide and sulfur dioxide in the
ordinary course of their business.
8.19 Holding Companies. Notwithstanding any other provisions
of this Agreement and the other Loan Documents, permit any Restricted Subsidiary
which is a general partner in or owner of a general partnership interest in a
Joint Venture to incur or suffer to exist any obligations or indebtedness of any
kind, whether contingent or fixed (excluding any contingent liability of such
Restricted Subsidiary to creditors of such Joint Venture arising solely as a
result of its status as a general partner or owner of such Joint Venture and
Guarantee Obligations referred to in subsections 8.4(d), 8.4(e) and 8.4(f)) or
create or suffer to exist any Liens, in each case except to the extent any such
obligations, indebtedness or Liens arise under or pursuant to the Joint Venture
Charter for such Joint Venture as in effect on the Closing Date (or, if later,
the date of acquisition or formation of such Joint Venture) or the Loan
Documents or are otherwise permitted by the Loan Documents; or permit any
Restricted Subsidiary which is a general partner in or owner of a general
partnership interest in a Joint Venture to acquire any
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property or asset after the Closing Date (or, if later, the date of acquisition
or formation of such Joint Venture) except for distributions made to it by such
Joint Venture; or permit any Restricted Subsidiary which is a general partner in
or owner of a general partnership interest in a Joint Venture to engage in any
business or activity other than holding the general partnership interest in (or
other ownership interest) such Joint Venture held by it on the Closing Date (or,
if later, the date of formation of such Joint Venture).
8.20 No Voluntary Termination of Joint Venture Charters.
Permit any Restricted Subsidiary which is a partner in, or owner of any interest
in, any Joint Venture to voluntarily terminate any Joint Venture Charter and
liquidate such Joint Venture to the extent permitted thereunder.
8.21 Actions by Joint Ventures. (a) Consent or agree to or
acquiesce in any Joint Venture the interests in which are owned by a Restricted
Subsidiary adversely changing its policy of making distributions of available
cash to partners, or (b) so long as any interest therein is owned by a
Restricted Subsidiary, consent or agree to or acquiesce in any Joint Venture's
taking any actions that could reasonably be expected to have a Material Adverse
Effect.
8.22 Hedging Transactions. Enter into any interest rate,
cross-currency, commodity, equity or other security, swap, collar or similar
hedging agreement or purchase any option to purchase or sell or to cap any
interest rate, cross-currency, commodity, equity or other security, in any such
case, other than to hedge risk exposures in the operation of its business,
ownership of assets or the management of its liabilities.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Revolving Credit Note or any Reimbursement Obligation which is not
funded by a Loan when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Revolving
Credit Note, or any other amount payable hereunder, within five days
after any such interest or other amount becomes due in accordance with
the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document
or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on
or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or
performance of any agreement contained in Section 8 (other than
subsection 8.1(a)) or in subsection 7.11; or any Loan Party shall
default in the observance or performance of any agreement contained in
Section 5(h), (i), (j) or (o) of the Borrower Security Agreement or the
Subsidiary Security Xxxxxxxxx, xx Xxxxxxx 0(x), (x), (x) or (m) of the
Leviathan Security
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Agreement, Section 9(j) of the Leviathan Guarantee, Section 4(b) of the
Borrower Pledge Agreement or the Leviathan Pledge Agreement (LLC) or
Section 5(b) of the Leviathan Pledge Agreement (GP); or the Borrower
shall default in the observance or performance of any agreement
contained in subsection 8.1(a) and such default shall continue uncured
for a period of 15 days; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days after receipt of written
notice thereof from the Administrative Agent or any Lender; or
(e) Any Loan Party or any Restricted Subsidiary of the
Borrower shall (i) default in any payment of principal of or interest
on any Indebtedness (other than the Revolving Credit Notes) or in the
payment of any Guarantee Obligation, beyond the period of grace (not to
exceed 30 days), if any, provided in the instrument or agreement under
which such Indebtedness or Guarantee Obligation was created; or (ii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation to
become payable; provided, however, that the aggregate principal amount
of Indebtedness and Guarantee Obligations with respect to which such
defaults shall have occurred shall equal or exceed $5,000,000; or
(f) (i) Any Loan Party or any Restricted Subsidiary of the
Borrower shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or any Loan Party or any Subsidiary of
the Borrower shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against any Loan Party or
any Restricted Subsidiary of the Borrower any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against any Loan
Party or any Restricted Subsidiary of the Borrower any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) any Loan Party or
any Restricted Subsidiary of the
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Borrower shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) any Loan Party or any
Restricted Subsidiary of the Borrower shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Restricted Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of
$5,000,000 or more, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 60
days from the entry thereof;
(i) If at any time the Borrower or any Restricted Subsidiary
shall become liable for remediation and/or environmental compliance
expenses and/or fines, penalties or other charges which, in the
aggregate, are in excess of the Material Environmental Amount for any
Loan Party and the Restricted Subsidiaries; or
(j) For any reason (other than any act on the part of the
Administrative Agent or the Lenders) any Security Document or any
Guarantee ceases to be in full force and effect or any party thereto
(other than the Administrative Agent or the Lenders) shall so assert in
writing or the Lien intended to be created by any Security Document
ceases to be or is not a valid and perfected Lien having the priority
contemplated thereby; or
(k) A Change of Control shall occur; or
(l) Except in connection with transactions permitted by
subsection 8.5 and 8.6(b), the Borrower shall cease to own legally and
beneficially at least the percentage of the managing limited liability
company or other equity interest in each Restricted Subsidiary of the
Borrower which is a limited liability company owned by it on the date
hereof (or, if later, the date of acquisition or formation of such
Subsidiary); or Leviathan
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and the Borrower together shall cease to own legally and beneficially
the percentage of the equity interest in each Restricted Subsidiary of
the Borrower owned by it on the date hereof (or, if later, the date of
acquisition or formation of such Subsidiary); or
(m) Any Person (other than any Lender) shall exercise its
rights and remedies (other than dilution of the equity interests owned
by the Borrower and its Restricted Subsidiaries in any Joint Venture
pursuant to contractual dilution provisions existing with respect to
the Joint Ventures) with respect to its Lien on any equity interest of
any Joint Venture the equity interest in which has been pledged to such
Person; provided that in the case of clause (ii), the amount of claims
secured by such Lien shall equal or exceed $5,000,000 and such claim
shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof;
(n) (i) The Management Agreement shall cease to be in full
force and effect prior to the end of the initial term thereof
substantially as in effect on the date hereof; or (ii) El Paso Energy
Field Services Inc. or El Paso Energy or any of its wholly-owned
Subsidiaries shall default in the observance or performance of any
material provision of the Management Agreement; or
(o) the Senior Subordinated Notes or the guarantees thereof
shall cease, for any reason, to be validly subordinated to the
Obligations or the obligations of the Subsidiary Guarantors under the
Loan Documents to which they are parties, as the case may be, as
provided in the Senior Subordinated Note Indenture, or any Loan Party,
any Affiliate of any Loan Party, the trustee in respect of the Senior
Subordinated Notes or the holders of at least 25% in aggregate
principal amount of the Senior Subordinated Notes shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Revolving Credit Commitments shall immediately terminate and
the Revolving Credit Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Revolving Credit Notes shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare the
Revolving Credit Commitments to be terminated forthwith, whereupon the Revolving
Credit Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Revolving Credit Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Revolving Credit Notes to be due and payable forthwith,
whereupon the same shall immediately become due and payable. If presentment for
honor under any Letter of Credit shall not have occurred at the time of an
acceleration pursuant to the preceding sentence, the Borrower shall at such time
deposit in a cash
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collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of the Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Bank and the Lenders, a security interest in such cash collateral to
secure all obligations of the Borrower under this Agreement and the other Loan
Documents. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the Revolving Credit Notes.
After all such Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrower hereunder and under the Revolving Credit Notes shall
have been paid in full, the balance, if any, in such cash collateral account
shall be returned to the Borrower. The Borrower shall execute and deliver to the
Administrative Agent, for the account of the Issuing Bank and the Lenders, such
further documents and instruments as the Administrative Agent may request to
evidence the creation and perfection of the within security interest in such
cash collateral account. Except as expressly provided above in this Section,
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration and all other notices of any kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT
10.1 Appointment. Each Lender hereby irrevocably designates
and appoints The Chase Manhattan Bank as the Administrative Agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes The Chase Manhattan Bank, as the Administrative Agent for
such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained
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in this Agreement or any other Loan Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the Revolving Credit Notes or
any other Loan Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Borrower.
10.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Revolving Credit Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Revolving Credit Note as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed with
the Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Revolving Credit Notes and
the other Loan Documents in accordance with a request of the Required Lenders,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Revolving Credit
Notes.
10.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of the
Borrower, shall be deemed to constitute any representation or warranty by the
Administrative
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Agent to any Lender. Each Lender represents to the Administrative Agent that it
has, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought under this subsection, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Revolving Credit Notes) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Administrative Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of the
Revolving Credit Notes and all other amounts payable hereunder.
10.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to its Loans made or renewed by it and any
Revolving Credit Note issued to it and with respect to the Letters of Credit,
the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not the Administrative Agent. The terms "Lender" and "Lenders"
shall include the Administrative Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' written notice to the Lenders.
If the Administrative Agent
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shall resign as Administrative Agent under this Agreement and the other Loan
Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall be approved by the
Borrower, whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Revolving Credit Notes. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this subsection shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
10.10 Other Agents. Neither the Syndication Agent nor the
Documentation Agent shall have any rights or obligations in its capacity as
such.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement, any
Revolving Credit Note, any other Loan Document, nor any terms hereof or thereof
may be amended, supplemented or modified except in accordance with the
provisions of this subsection. The Required Lenders may, or, with the written
consent of the Required Lenders, the Administrative Agent may, from time to
time, (a) enter into with the Borrower or the Loan party thereto written
amendments, supplements or modifications hereto and to the Revolving Credit
Notes and the other Loan Documents for the purpose of adding any provisions to
this Agreement or the Revolving Credit Notes or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Borrower or any other
Loan Party hereunder or thereunder or (b) waive in writing, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the Revolving Credit Notes or the other Loan Documents or any Default or Event
of Default and its consequences; provided, however, that no such waiver and no
such amendment, supplement or modification shall (i) reduce the amount or extend
the scheduled date of maturity of any Revolving Credit Note or of any
installment thereof, or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or increase the
amount or extend the expiration date of any Lender's Revolving Credit
Commitment, in each case without the consent of each Lender affected thereby, or
(ii) amend, modify or waive any provision of this subsection or reduce the
percentage specified in the definition of Required Lenders, or consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents (except in a transaction
permitted by subsection 8.5), in each case without the written consent of all
the Lenders, or (iii) amend, modify or waive any provision of Section 10 without
the written consent of the then Administrative Agent, (iv) release the Lenders'
Liens on all or substantially all of the Collateral under the Security Documents
without the consent of each Lender or (v) except to the extent relating to the
Redesignation of any Restricted Subsidiary, the sale or other disposition of any
Restricted Subsidiary as otherwise permitted by this Agreement or any other
transaction permitted by this Agreement, release any Guarantee. Any such waiver
and any such amendment, supplement or modification shall apply
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equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Revolving Credit
Notes. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the outstanding Revolving Credit Notes and any other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in Schedule I in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Revolving Credit Notes:
The Borrower: Leviathan Gas Pipeline Partners, L.P.
El Paso Energy Building
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
with a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: J. Xxxxxxx Xxxxxxxx, Esq.
The Administrative Agent: The Chase Manhattan Bank
One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 3.2, 2.6, 2.7, 2.11, 4.1 or 4.2 shall
not be effective until received, provided, further, that the failure by the
Administrative Agent or any Lender to provide a copy to the Borrower's counsel
shall not cause any notice to the Borrower to be ineffective.
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11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Revolving Credit Notes.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the Revolving Credit Notes and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including,
without limitation, the fees and disbursements of counsel to the Administrative
Agent, (b) to pay or reimburse each Lender and the Administrative Agent for all
its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the Revolving Credit Notes, the
other Loan Documents and any such other documents, including, without
limitation, the fees and disbursements of counsel to the Administrative Agent
and to the several Lenders, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the Revolving Credit Notes, the other Loan Documents and any
such other documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments and suits, and
reasonable costs, expenses or disbursements, of any kind or nature whatsoever
with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the Revolving Credit Notes and the other Loan
Documents, the use of the proceeds of the Revolving Credit Loans, including the
use and reliance on electronic, telecommunications or other information or
transmission systems in connection with the Loan Documents (all the foregoing in
this clause (d), collectively, the "indemnified liabilities"), REGARDLESS OF
WHETHER OR NOT SUCH INDEMNIFIED LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT
CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY THE
ADMINISTRATIVE AGENT OR ANY LENDER, provided, that the Borrower shall have no
obligation hereunder to the Administrative Agent or any Lender with respect to
indemnified liabilities arising from (i) the gross negligence or willful
misconduct of the Administrative Agent or any such Lender or (ii) legal
proceedings commenced against the Administrative Agent or any such Lender by any
security holder or creditor thereof arising out of and based upon rights
afforded any such security holder or creditor solely in its capacity as such.
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The agreements in this subsection shall survive repayment of the Revolving
Credit Notes and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations; Purchasing
Lenders. (a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Administrative Agent, all future holders of the
Revolving Credit Notes and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, and after notice to the
Borrower, at any time sell to one or more banks or other entities
("Participants") participating interests in any Revolving Credit Loan owing to
such Lender, any Revolving Credit Note held by such Lender, any Revolving Credit
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Loan Documents. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Revolving Credit Note for all purposes under
this Agreement and the other Loan Documents, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. The Borrower agrees that if amounts outstanding under
this Agreement and the Revolving Credit Notes are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall be deemed to have the right of setoff
in respect of its participating interest in amounts owing under this Agreement
and any Revolving Credit Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement or any Revolving Credit Note, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in subsection 11.7(a) as fully
as if it were a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of subsections 4.9, 4.10 and 4.11 with respect
to its participation in the Revolving Credit Commitments, the Revolving Credit
Loans and the Letters of Credit outstanding from time to time; provided, that no
Participant shall be entitled to receive any greater amount pursuant to such
subsections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred. No Lender shall be entitled
to create in favor of any Participant, in the participation agreement pursuant
to which such Participant's participating interest shall be created or
otherwise, any right to vote on, consent to or approve any matter relating to
this Agreement or any other Loan Document except for those specified in clauses
(i) to (v) of the proviso of subsection 11.1(b) to the extent the Participant is
directly affected thereby.
(c) Any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time sell to any Lender or any
successor or affiliate thereof and, with the consent of the Borrower and the
Administrative Agent (which in each case shall not be unreasonably withheld), to
one or more additional banks or financial institutions or funds that regularly
purchase loans ("Purchasing Lenders") all or any part of its rights and
obligations under this Agreement and the Revolving Credit Notes pursuant to an
Assignment and Acceptance,
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substantially in the form of Exhibit M, executed by such Purchasing Lender, such
transferor Lender (and, in the case of a Purchasing Lender that is not then a
Lender or an affiliate thereof, by the Borrower and the Administrative Agent)
and delivered to the Administrative Agent for its acceptance and recording in
the Register ,provided that no such assignment to an assignee (other than any
Lender or any affiliate of any Lender) shall be in an aggregate principal amount
of less than $10,000,000 (other than in the case of an assignment of all of a
Lender's interest under this Agreement) and the assigning Lender shall have
retained at least $10,000,000 of Revolving Credit Commitments (unless it is
assigning all of its Revolving Credit Commitments and Revolving Credit Loans),
unless otherwise agreed by the Borrower and the Administrative Agent. For
purposes of the proviso contained in the preceding sentence, the amount
described therein shall be aggregated in respect to each Lender and its related
affiliates, if any. Upon such execution, delivery, acceptance and recording,
from and after the Transfer Effective Date determined pursuant to such
Assignment and Acceptance, (x) the Purchasing Lender thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Revolving Credit Commitment
as set forth therein, and (y) the transferor Lender thereunder shall, to the
extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of a transferor Lender's rights
and obligations under this Agreement, such transferor Lender shall cease to be a
party hereto but shall continue to be entitled to the benefit of the indemnity
and expense reimbursement provisions of the Loan Documents to the extent
relating to matters during the time it was a Lender). Such Assignment and
Acceptance shall be deemed to amend this Agreement to the extent, and only to
the extent, necessary to reflect the addition of such Purchasing Lender and the
resulting adjustment of Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of such
transferor Lender under this Agreement and the Revolving Credit Notes. On or
prior to the Transfer Effective Date determined pursuant to such Assignment and
Acceptance, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the Revolving Credit Note of the transferor
Lender a new Revolving Credit Note to the order of such Purchasing Lender in an
amount equal to the Revolving Credit Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the transferor Lender has retained Revolving
Credit Commitments hereunder, a new Revolving Credit Note to the order of the
transferor Lender in an amount equal to the Revolving Credit Commitment retained
by it hereunder. Such new Revolving Credit Notes shall be dated the Closing
Date, and shall otherwise be in the form of the Revolving Credit Note replaced
thereby. The Revolving Credit Notes surrendered by the transferor Lender shall
be returned by the Administrative Agent to the Borrower marked "cancelled".
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at its address referred to in subsection 11.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Revolving Credit Loans owing to, each
Lender from time to time. The entries in the Register shall be conclusive, in
the absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register as the
owner of the Revolving Credit Loan recorded therein for all purposes of this
Agreement, notwithstanding any notice to the contrary. Any assignment of any
Revolving Credit Loan or other Obligations hereunder not evidenced by a
Revolving Credit Note shall be effective only upon appropriate entries with
respect thereto being
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made in the Register. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by a transferor Lender and Purchasing Lender (and, in the case of a Purchasing
Lender that is not then a Lender or an affiliate thereof, by the Borrower and
the Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $4,000, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the Transfer
Effective Date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and any prospective
Transferee any and all financial information in such Lender's possession
concerning the Borrower and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower in connection with
such Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Revolving Credit Loans and Revolving Credit Notes relate only to absolute
assignments and that such provisions do not prohibit assignments creating
security interests, including, without limitation, any pledge or assignment by a
Lender of any Revolving Credit Loan or Revolving Credit Note to any Federal
Reserve Bank in accordance with applicable law.
11.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its Loans or
the Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 9(i), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans of
the same type or the Reimbursement Obligations owing to it, as the case may be,
or interest thereon, such benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loan or the Reimbursement Obligations owing to it, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder or under the Revolving Credit Notes (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such
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amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of the Borrower. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such set-off and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
11.11 Usury Savings Clause. It is the intention of the parties
hereto to comply with applicable usury laws (now or hereafter enacted);
accordingly, notwithstanding any provision to the contrary in this Agreement,
the Revolving Credit Notes, any of the other Loan Documents or any other
document related hereto, in no event shall this Agreement or any such other
document require the payment or permit the collection of interest in excess of
the maximum amount permitted by such laws. If from any circumstances whatsoever,
fulfillment of any provision of this Agreement or of any other document
pertaining hereto or thereto, shall involve transcending the limit of validity
prescribed by applicable law for the collection or charging of interest, then,
ipso facto, the obligation to be fulfilled shall be reduced to the limit of such
validity, and if from any such circumstances the Administrative Agent and the
Lenders shall ever receive anything of value as interest or deemed interest by
applicable law under this Agreement, the Revolving Credit Notes, any of the
other Loan Documents or any other document pertaining hereto or otherwise an
amount that would exceed the highest lawful rate, such amount that would be
excessive interest shall be applied to the reduction of the principal amount
owing under the Revolving Credit Notes or on account of any other indebtedness
of the Borrower, and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal of such indebtedness, such
excess shall be refunded to the Borrower. In determining whether or not the
interest paid or payable with respect to any indebtedness of the Borrower to the
Administrative Agent and the Lenders, under any specified contingency, exceeds
the Highest Lawful Rate (as hereinafter defined), the Borrower, the
Administrative Agent and the Lenders shall, to the maximum extent permitted by
applicable law, (a) characterize any non-principal
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payment as an expense, fee or premium rather than as interest, (b) exclude
voluntary prepayments and the effects thereof, (c) amortize, prorate, allocate
and spread the total amount of interest throughout the full term of such
indebtedness so that interest thereon does not exceed the maximum amount
permitted by applicable law, and/or (d) allocate interest between portions of
such indebtedness, to the end that no such portion shall bear interest at a rate
greater than that permitted by applicable law.
To the extent that Article 5069-1D.001 et seq., as amended, of
the Texas Revised Civil Statutes is relevant to the Administrative Agent and the
Lenders for the purpose of determining the Highest Lawful Rate, the
Administrative Agent and the Lenders hereby elect to determine the applicable
rate ceiling under such Article by the indicated (weekly) rate ceiling from time
to time in effect. Nothing set forth in this subsection 11.11 is intended to or
shall limit the effect or operation of subsection 11.12. In no event shall
Chapter 346 of the Texas Finance Code (which regulates certain revolving credit
loan accounts) apply to this Agreement or the Revolving Credit Notes.
For purposes of this subsection 11.11, "Highest Lawful Rate"
shall mean the maximum rate of nonusurious interest that may be contracted for,
charged, taken, reserved or received on the Revolving Credit Notes under laws
applicable to the Administrative Agent and the Lenders.
11.12 GOVERNING LAW. THIS AGREEMENT AND THE REVOLVING
CREDIT NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT
AND THE REVOLVING CREDIT NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.13 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive general jurisdiction
of the Courts of the State of New York, the courts of the United States
of America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 11.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
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(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary or punitive
damages (including, without limitation, damages arising from the use of
electronic, telecommunications or other information transmissions
systems in connection with the Loan Documents).
11.14 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Revolving Credit Notes
and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower or any other Loan
Party arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between Administrative Agent
and Lenders, on one hand, and the Borrower and the other Loan Parties,
on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no joint venture exists among the Lenders or among the
Borrower and the other Loan Parties and the Lenders.
11.15 Confidentiality. Each of the Administrative Agent and
each Lender agrees that it will hold in confidence, any information provided to
such Person pursuant to this Agreement; provided, that nothing in this
subsection 11.15 shall be deemed to prevent the disclosure by the Administrative
Agent or any Lender of any such information (a) to any employee, officer,
director, accountant, attorney or consultant of such Person, or any examiner or
other Governmental Authority, (b) that has been or is made public by Leviathan,
the Borrower or any of its Subsidiaries or Affiliates or by any third party
without breach of this Agreement or that otherwise becomes generally available
to the public other than as a result of a disclosure in violation of this
subsection 11.15, (c) that is or becomes available to any such Person from a
third party on a non-confidential basis, (d) that is required to be disclosed by
any Requirement of Law, including to any bank examiners or regulatory
authorities, (e) that is required to be disclosed by any court, agency,
arbitrator or legislative body, or (f) to any Transferee or proposed Transferee.
11.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR THE REVOLVING CREDIT NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
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11.17 ACKNOWLEDGEMENT OF NO CLAIMS, OFFSETS OR DEFENSES;
RELEASE BY THE LOAN PARTIES. BORROWER, ON BEHALF OF ITSELF AND EACH OF THE OTHER
LOAN PARTIES, ACKNOWLEDGES THAT NO LOAN PARTY NOR ANY OF THEIR RESPECTIVE
OWNERS, DIRECTORS, SUCCESSORS, ASSIGNS, AGENTS, OFFICERS, EMPLOYEES, AND
REPRESENTATIVES (COLLECTIVELY, THE "BORROWER AFFILIATES PARTIES") HAS ANY CLAIM,
DEMAND, RIGHT OF OFFSET, CAUSE OF ACTION IN LAW OR IN EQUITY, LIABILITY OR
DAMAGES OF ANY NATURE WHATSOEVER, WHETHER FIXED OR CONTINGENT (HEREINAFTER
COLLECTIVE CALLED "CLAIMS") THAT COULD BE ASSERTED IN CONNECTION WITH, OR WHICH
WOULD IN ANY OTHER MANNER BE RELATED TO, THE EXISTING CREDIT AGREEMENT OR ANY
PROMISSORY NOTES OR OTHER AGREEMENTS, TRANSACTIONS OR OTHER ACTIONS PRIOR TO THE
DATE HEREOF INVOLVING ANY OF THE BORROWER AFFILIATED PARTIES AND LENDERS ("THE
PRIOR AGREEMENTS AND ACTIVITIES"). NOTWITHSTANDING THE FOREGOING, HOWEVER,
BORROWER HEREBY AGREES THAT IN CONSIDERATION OF THE CREDIT EXTENDED TO BORROWER
UNDER THE LOAN DOCUMENTS AND AS A MATERIAL INDUCEMENT TO THE LENDERS TO ENTER
INTO SUCH LOAN DOCUMENTS AND EXTEND SUCH CREDIT TO BORROWER, BORROWER, ON BEHALF
OF ITSELF AND ALL OF THE OTHER BORROWER AFFILIATED PARTIES HEREBY RELEASES AND
FOREVER DISCHARGES, EACH LENDER, EACH SUBSEQUENT HOLDER OF ANY OF THE REVOLVING
CREDIT NOTES, AND EACH AND ALL OF THEIR PARENT, SUBSIDIARY AND AFFILIATED
CORPORATIONS PAST AND PRESENT, AS WELL AS THEIR RESPECTIVE OWNERS, DIRECTORS,
SUCCESSORS, ASSIGNS, AGENTS, OFFICERS, EMPLOYEES, AND REPRESENTATIVES
(COLLECTIVELY, THE "RELEASED PARTIES"), OF AND FROM ANY AND ALL CLAIMS WHICH
BORROWER AND THE OTHER BORROWER AFFILIATED PARTIES MAY HAVE OR HEREAFTER ACQUIRE
AGAINST ANY OR ALL OF THE RELEASED PARTIES BY REASON OF, OR RELATED IN ANY WAY
TO, THE PRIOR AGREEMENTS AND ACTIVITIES.
11.18 Releases. (a) At such time as the Revolving Credit
Loans, the Reimbursement Obligations and any other obligations under this
Agreement shall have been paid in full, the Revolving Credit Commitments have
been terminated and no Letters of Credit shall be outstanding, the Collateral
shall be released from the Liens created by the Loan Documents, and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Loan Party thereunder and under the other Loan
Documents shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Collateral shall revert to the
respective Loan Parties. At the request and expense of any Loan Party following
any such termination, the Administrative Agent shall deliver to such Loan Party
any Collateral held by the Administrative Agent under the Security Documents,
and execute and deliver to such Loan Party such documents as such Loan Party
shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Loan Party in a transaction permitted by this
Agreement or such Loan Party is designated as
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an Unrestricted Subsidiary in accordance with the terms of this Agreement, then
the Lenders authorize the Administrative Agent, at the request and expense of
such Loan Party, to execute and deliver to such Loan Party all releases or other
documents reasonably necessary or desirable for the release of the Liens created
by the applicable Security Documents on such Collateral. At the request and sole
expense of the Borrower, the Lenders authorize the Administrative Agent to
release a Loan Party from its obligations under the applicable Security Document
in the event that all the Capital Stock of such Loan Party shall be sold,
transferred or otherwise disposed of in a transaction permitted by this
Agreement or such Loan Party is designated as an Unrestricted Subsidiary in
accordance with the terms of this Agreement, provided that the Borrower shall
have delivered to the Administrative Agent, at least five Business Days prior to
the date of the proposed release, a written request for release identifying the
relevant Loan Party and the terms of the sale or other disposition in reasonable
detail, including the price thereof and any expenses in connection therewith,
together with a certification by the Borrower stating that such transaction is
in compliance with this Agreement and the other Loan Documents.
11.19 Co-Borrower's Obligations. The Co-Borrower is a party
hereto for purposes of providing co-extensive obligors for the Obligations (on a
joint and several basis), although the parties acknowledge that the Co-Borrower
shall not have any substantial assets or other property. All references in this
Agreement and the other Loan Documents to the "Borrower" shall be deemed to
include a reference to the Co-Borrower, mutatis mutandis, whether or not actual
reference is made thereto; provided, that, without limiting the generality of
the foregoing, any obligations by any of the parties hereto to the Borrower
shall be deemed fulfilled with respect to the Co-Borrower when fulfilled with
respect to the Borrower.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
LEVIATHAN GAS PIPELINE PARTNERS, L.P.
By /s/ XXXXX XXXXXX
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
LEVIATHAN FINANCE CORPORATION
By /s/ XXXXX XXXXXX
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By /s/ XXXXX X. XXXX
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as Syndication Agent and as a Lender
By /s/ XAVIER RATOUIS
-------------------------------------
Name: Xavier Ratouis
Title: Senior Vice President
BANKBOSTON, N.A.,
as Documentation Agent and as a Lender
By /s/ XXXXXXXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxxxxxxx Xxxxxxxx
Title: Director
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ARAB BANKING CORPORATION (B.S.C.)
By /s/ XXXXXXX X. XXXXXXX'
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx'
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ F.C.H. XXXXX
--------------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
BANK OF SCOTLAND
By /s/ XXXXX XXXXX
-------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA NT &SA
By /s/ XXXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
CREDIT AGRICOLE INDOSUEZ
By /s/ XXXXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: First Vice President,
Managing Director
By /s/ XXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: First Vice President
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CIBC, INC.
By /s/ XXXXX XXXXXX
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON
By /s/ J. XXXXX XXXXX
-------------------------------------
Name: J. Xxxxx Xxxxx
Title: Associate
By /s/ XXXXX X. XXXXX
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
THE FUJI BANK, LIMITED
By /s/ XXXXXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Senior Vice President and
Group Head
HIBERNIA NATIONAL BANK
By /s/ XXXX XXXXXXXXXX
-------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Assistant Vice President
FIRST UNION NATIONAL BANK
By /s/ XXXX X. XXXXXX
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
KBC BANK N.V.
By /s/ XXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
By /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: First Vice President
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XXXXX FARGO BANK (TEXAS), N.A.
By /s/ XXXXXXXXX FAITH
-------------------------------------
Name: Xxxxxxxxx Faith
Title: Assistant Vice President
PNC BANK
By /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
PARIBAS
By /s/ XXXXXX XXXXXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
MEESPIERSON CAPITAL CORP.
By /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ XAVIER RATOUIS
-------------------------------------
Name: Xavier Ratouis
Title: Senior Vice President
