EXHIBIT 10.24
CREDIT AGREEMENT
between
NORTHERN BORDER PARTNERS, L.P.,
Borrower
and
SUNTRUST BANK, ATLANTA,
Lender
$25,000,000 Revolving Credit Facility
December 15, 1999
PREPARED BY XXXXXX AND XXXXX, L.L.P.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of December 15,
1999, between NORTHERN BORDER PARTNERS, L.P., a Delaware limited
partnership ("Borrower"), and SUNTRUST BANK, ATLANTA ("Lender").
Borrower has requested from Lender a $25,000,000 revolving
line of credit - subject to certain limitations below - for the
purpose of making capital contributions to NBPC, whether directly
or through the Guarantor or for acquisitions or capital
investments by the Borrower, either directly or indirectly
through its Subsidiaries.
ACCORDINGLY, for adequate and sufficient consideration,
Borrower and Lender agree as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 Definitions. Capitalized terms used in the Loan
Documents shall have the meanings assigned to such terms in
Schedule 1.
1.2 References to the CIBC Credit Agreement. Throughout
this agreement, references will be made to the CIBC Credit
Agreement. References to the CIBC Credit Agreement - including
(without limitation) the defined terms, representations,
warranties, covenants, and agreements contained therein: (i) are
intended to be for Lender's continuing benefit; and (ii) shall be
references to such agreement as it is in effect on the date
hereof, regardless of whether the CIBC Credit Agreement, or any
term or provision contained therein, is hereafter amended or
modified, non-compliance therewith is hereafter waived, or the
CIBC Credit Agreement hereafter expires by its terms or is
terminated.
1.3 Time References. Unless otherwise specified, in the
Loan Documents (a) time references (e.g., 10:00 a.m.) are to CST,
and (b) in calculating a period from one date to another, the
word "from" means "from and including" and the word "to" or
"until" means "to but excluding."
1.4 Other References. Unless otherwise specified, in the
Loan Documents (a) where appropriate, the singular includes the
plural and vice versa, and words of any gender include each other
gender, (b) heading and caption references may not be construed
in interpreting provisions, (c) monetary references are to
currency of the United States of America, (d) section, paragraph,
annex, schedule, exhibit, and similar references are to the
particular Loan Document in which they are used, (e) references
to "telecopy," "facsimile," "fax," or similar terms are to
facsimile or telecopy transmissions, (f) references to
"including" mean including without limiting the generality of any
description preceding that word, (g) the rule of construction
that references to general items that follow references to
specific items are limited to the same type or character of those
specific items is not applicable in the Loan Documents, (h)
references to any Person include that Person's heirs, personal
representatives, successors, trustees, receivers, and permitted
assigns, (i) references to any Law include every amendment or
supplement to it, rule and regulation adopted under it, and
successor or replacement for it, and (j) references to any Loan
Document or other document include every renewal and extension of
it, amendment and supplement to it, and replacement or
substitution for it.
1.5 Accounting Principles. Unless otherwise specified, in
the Loan Documents (a) GAAP determines all accounting and
financial terms and compliance with financial covenants, (b) GAAP
in effect on the date of this agreement determines compliance
with financial covenants, (c) otherwise, all accounting
principles applied in a current period must be comparable in all
material respects to those applied during the preceding
comparable period, and (d) while Borrower has any consolidated
Subsidiaries (i) all accounting and financial terms and
compliance with reporting covenants must be on a consolidated
basis, as applicable, and (ii) compliance with financial
covenants must be in accordance with the compliance requirements
specified within the CIBC Agreement.
SECTION 2 COMMITMENT.
2.1 Facility. Subject to the provisions in the Loan
Documents, Lender agrees to extend credit to Borrower under the
Facility which Borrower may borrow, repay, and reborrow under
this agreement subject to the following conditions:
(a) Each Borrowing may only be $100,000 or a greater
integral multiple of $100,000 if a Base-Rate Borrowing or
$1,000,000 or a greater integral multiple of $100,000 if a
LIBOR Borrowing or a Quoted-Rate Borrowing;
(b) Each Borrowing may only occur on a Business Day on
or after the Closing Date and before the Termination Date;
and
(c) The aggregate of all Borrowings may never exceed
$25,000,000 at any time.
2.2 Borrowing Procedure. Borrower may request a Borrowing
by making or delivering a Borrowing Request (that may be
telephonic if promptly confirmed in writing on the same date as
the Borrowing Request) to Lender, which is irrevocable and
binding on Borrower. Each Borrowing Request shall state the
Type, amount, and Interest Period for each Borrowing, and must be
received by Lender no later than (i) (if applicable) 10:00 a.m.
CST (11:00 a.m. EST) on the second Business Day before the
Borrowing Date for any LIBOR Borrowing, or (ii) 8:30 a.m. CST
(9:30 a.m. EST) on the Borrowing Date for any Base-Rate Borrowing
or Quoted-Rate Borrowing.
2.3 Borrowing Notices. Each Borrowing Request (whether
telephonic or written) constitutes a representation and warranty
by Borrower that as of the Borrowing Date all of the conditions
precedent in Section 6 have been satisfied.
2.4 Termination. Borrower may - upon giving at least two
Business Days prior written and irrevocable notice to Lender -
terminate all or part of the Facility as follows:
(a) Each partial termination of the Facility must be
in an amount of not less than $5,000,000 or a greater
integral multiple of $1,000,000.
(b) At the time of any such termination, Borrower
shall pay to Lender all accrued and unpaid fees under this
agreement, the interest attributable to the amount of that
termination, and any related Funding Loss. Any part of the
Commitment that is terminated may not be reinstated.
SECTION 3 TERMS OF PAYMENT.
3.1 Note and Payments.
(a) Note. Principal Debt under the Facility is
evidenced by the Note.
(b) Payment. Borrower must make each payment and
prepayment on the Obligation to Lender's principal office in
Atlanta, Georgia in immediately available funds by 10:00
a.m. CST (11:00 a.m. EST) on the day due; otherwise, those
funds continue to accrue interest as if they were received
on the next Business Day.
3.2 Interest and Principal Payments.
(a) Interest. Accrued interest on each LIBOR
Borrowing or Quoted-Rate Borrowing is due and payable on the
last day of its respective Interest Period and on the
Termination Date. Accrued interest on each Base-Rate
Borrowing is due and payable: (i) on the date of any
prepayment, (ii) on the last day of each calendar month
(commencing on the first of those dates following the
Closing Date), (iii) on the date any such Base-Rate
Borrowing is converted to a LIBOR Borrowing under Section
3.9, and (iv) on the Termination Date.
(b) Principal. The Principal Debt is due and payable
on the Termination Date. Before the occurrence of the
Termination Date, Borrower may prepay, without penalty and
in whole or in part, the Principal Debt, so long as (i) each
voluntary partial prepayment must be in a principal amount
not less than $1,000,000 or a greater integral multiple of
$100,000, (ii) Borrower shall give prior written and
irrevocable notice to Lender (A) at least three Business
Days before any prepayment of a Quoted-Rate Borrowing,
(B) at least two Business Days before any prepayment of a
LIBOR Borrowing or (C) at least one Business Day before any
prepayment of a Base-Rate Borrowing, and (iii) Borrower
shall pay any related Funding Loss upon demand. Conversions
under Section 3.9 are not prepayments.
3.3 Interest Options. Borrowings under the Facility shall
bear interest at an annual rate equal to the lesser of either (i)
the Maximum Rate, or (ii) the Base Rate, Quoted Rate or LIBOR
plus the Applicable Margin (in each case as designated or deemed
designated by Borrower), as the case may be. Each change in the
Base Rate and Maximum Rate is effective, without notice to
Borrower or any other Person, upon the effective date of change.
3.4 Quotation of Rates. Borrower may call Lender before
delivering a Borrowing Request to receive an indication of the
interest rates then in effect, but the indicated rates do not
bind Lender or affect the interest rate that is actually in
effect when Borrower makes a Borrowing Request on the Borrowing
Date.
3.5 Default Rate. If permitted by Law, all past-due
Principal Debt, and past-due interest accruing on any of the
foregoing bears interest from the date due (stated or by
acceleration) at the Default Rate until paid, regardless whether
payment is made before or after entry of a judgment.
3.6 [Intentionally Deleted].
3.7 Interest Calculations. Interest will be calculated on
the basis of actual number of days (including the first day but
excluding the last day) elapsed but computed as if each calendar
year consisted of 360 days (unless the calculation would result
in an interest rate greater than the Maximum Rate, or in the case
of interest on Base-Rate Borrowings in which event interest will
be calculated on the basis of a year of 365 or 366 days, as the
case may be). All interest rate determinations and calculations
by Lender are conclusive and binding absent manifest error.
3.8 Interest Periods. When Borrower requests any LIBOR
Borrowing or Quoted-Rate Borrowings, Borrower may elect the
applicable interest period (each an "Interest Period"), which may
be, at Borrower's option: (i) for a LIBOR Borrowing one, two, or
three months; and (ii) for Quoted-Rate Borrowings 30, 60, or 90
days. Borrower's selection of such Interest Periods shall be
subject to Section 11.1 and the following conditions, (u) no
Interest Period may extend beyond the Maturity Date; (v) the
initial Interest Period for a Quoted-Rate Borrowing commences on
the applicable Borrowing Date; (w) the initial Interest Period
for a LIBOR Borrowing commences on the applicable Borrowing Date
or conversion date, and each subsequent Interest Period
applicable to any such LIBOR Borrowing commences on the day when
the next preceding applicable Interest Period expires; (x) if any
Interest Period for a LIBOR Borrowing begins on a day for which
no numerically corresponding Business Day in the calendar month
at the end of the Interest Period exists, then the Interest
Period ends on the last Business Day of that calendar month;
(y) if Borrower is required to pay any portion of a LIBOR
Borrowing or Quoted-Rate Borrowing before the end of its Interest
Period in order to comply with the payment provisions of the Loan
Documents, Borrower shall also pay any related Funding Loss; and
(z) no more than four Interest Periods may be in effect at one
time.
3.9 Conversions. Subject to the dollar limits of
Section 2.1 and provided that Borrower may not convert to or
select a new Interest Period for a LIBOR Borrowing or a Quoted-
Rate Borrowing at any time when a Default or Potential Default
exists, Borrower may (a) convert a Borrowing of one Type into a
Borrowing of another Type; and (b) continue a LIBOR Borrowing or
Quoted-Rate Borrowing for a new Interest Period. Such a
continuation may be made by telephonic request to Lender no later
than 10:00 a.m. CST (11:00 a.m. EST) on the second Business Day
before the conversion date or the last day of the Interest
Period, as the case may be (for conversion to a LIBOR Borrowing,
or election of a new Interest Period), and no later than 8:30
a.m. CST (9:30 a.m. EST) on the last day of the Interest Period
(for conversion to a Base-Rate Borrowing or Quoted-Rate
Borrowing). Borrower shall provide a Conversion Notice to Lender
no later than two days after the date of the conversion or
election. A request for conversion may be made telephonically if
promptly confirmed to Lender in writing on the same date as the
Conversion Notice. Absent Borrower's telephonic request for
conversion or election of a new Interest Period or if a Default
or Potential Default exists, then, a LIBOR Borrowing or a Quoted-
Rate Borrowing shall be deemed converted to a Base-Rate Borrowing
effective when the applicable Interest Period expires.
3.10 Order of Application. If a Default or Potential
Default exists or if Borrower fails to give direction, any
payment (including proceeds from the exercise of any Rights)
shall be applied in the following order: (i) to all fees and
expenses for which Lender has not been paid or reimbursed in
accordance with the Loan Documents (and if such payment is less
than all unpaid or unreimbursed fees and expenses, then the
payment shall be paid against unpaid and unreimbursed fees and
expenses in the order of incurrence or due date); (ii) to accrued
interest on the Principal Debt; then (iii) to the Principal Debt
(but Lender agrees to apply proceeds in an order that will
minimize any Funding Loss).
3.11 [Intentionally Deleted.]
3.12 Basis Unavailable or Inadequate for LIBOR. If, on or
before any date when LIBOR is to be determined for a Borrowing,
Lender reasonably determines that the basis for determining the
applicable rate is not available or Lender determines that the
resulting rate does not accurately reflect the cost to Lender of
making or converting Borrowings at that rate for the applicable
Interest Period, then Lender shall promptly notify Borrower of
that determination (which is conclusive and binding on Borrower
absent manifest error) and the applicable Borrowing shall bear
interest at the Base Rate. Until Lender notifies Borrower that
those circumstances no longer exist, Lender's commitment under
this agreement to make, or to convert to, LIBOR Borrowings, as
the case may be, are suspended.
3.13 Taxes. Any Taxes payable by Lender or ruled (by a
Tribunal) payable by Lender in respect of this agreement or any
other Loan Document shall, if permitted by Law, be paid by
Borrower, together with interest and penalties, if any, except
for Taxes payable on or measured by the overall net income of
Lender (including, but not limited to, franchise taxes to the
extent they are calculated based on such net income). Lender
shall notify Borrower and deliver to Borrower a certificate
setting forth in reasonable detail the calculation of the amount
of Taxes payable, which certificate is conclusive and binding
(absent manifest error), and Borrower shall pay that amount to
Lender for its account or the account of Lender, as the case may
be within five Business Days after demand. If Lender
subsequently receives a refund of the Taxes paid to it by
Borrower, then Lender shall promptly pay the refund to Borrower.
3.14 Change in Laws. If any Law makes it unlawful for
Lender to make or maintain LIBOR Borrowings or Quoted-Rate
Borrowings, then Lender shall promptly notify Borrower, (a) as to
undisbursed funds, that requested Borrowing shall be made as a
Base-Rate Borrowing, and (b) as to any outstanding Borrowing
(i) if maintaining the Borrowing until the last day of the
applicable Interest Period is unlawful, the Borrowing shall be
converted to a Base-Rate Borrowing as of the date of notice, in
which event Borrower will be required to pay any related Funding
Loss, or (ii) if not prohibited by Law, the Borrowing shall be
converted to a Base-Rate Borrowing as of the last day of the
applicable Interest Period, or (iii) if any conversion will not
resolve the unlawfulness, Borrower shall promptly prepay the
Borrowing, without penalty but with related Funding Loss.
3.15 Funding Loss. BORROWER SHALL INDEMNIFY LENDER AGAINST,
AND PAY TO IT UPON DEMAND, ANY FUNDING LOSS INCURRED BY LENDER.
WHEN LENDER DEMANDS THAT BORROWER PAY ANY FUNDING LOSS, LENDER
SHALL DELIVER TO BORROWER A CERTIFICATE WITHIN 120 DAYS OF THE
INCURRENCE THEREOF, SETTING FORTH IN REASONABLE DETAIL THE BASIS
FOR IMPOSING THE FUNDING LOSS AND THE CALCULATION OF THE AMOUNT,
WHICH CALCULATION IS CONCLUSIVE AND BINDING ABSENT MANIFEST
ERROR. THE PROVISIONS OF AND UNDERTAKINGS AND INDEMNIFICATION IN
THIS SECTION SURVIVE THE SATISFACTION AND PAYMENT OF THE
OBLIGATION AND TERMINATION OF THIS AGREEMENT.
SECTION 4 COMMITMENT FEE. From and after the Effective Date,
Borrower agrees to pay in accordance with Section 3.1 a
commitment fee to Lender, as it accrues on the last day of each
March, June, September, and December - commencing on December 31,
1999 - and on the Termination Date. Each payment of such fee is
equal to the following, determined for the calendar quarter (or
portion of a calendar quarter commencing on the date of this
agreement or ending on such later Termination Date) preceding and
including the date it is due; from the Effective Date until the
Termination Date, the product of (i) 0.10%, times (ii) the
unadvanced principal amount of the Principal Debt during the
applicable quarter or portion of it, times (iii) a fraction with
the number of days in the applicable quarter or portion of it as
the numerator and 360 as the denominator.
SECTION 5 GUARANTY. In consideration of the intercompany
advances which may be made by Borrower to Guarantor, Borrower
shall cause Guarantor to unconditionally guarantee the full
payment and performance of the Obligation by execution of a
Guaranty.
SECTION 6 CONDITIONS PRECEDENT. Lender is not obligated to fund
the initial Borrowing unless (a) Lender has received all of the
items described in Schedule 6; (b) Lender and its counsel have
completed due diligence satisfactory to each, including without
limitation, a review of financial projections of Borrower,
including statements of income, balance sheets, and cash flow
statements; (c) Lender has received and reviewed to its
satisfaction the Compliance Certificate (with all attachments)
delivered by Borrower to the "Agent" and "Lender" as required
under the CIBC Credit Agreement for the quarter ended September
30, 1999, certified by a senior financial officer of Borrower.
In addition, Lender is not obligated to fund (as opposed to
continue or convert) any Borrowing unless on the applicable
Borrowing Date (and after giving effect to the requested
Borrowing): (w) Lender timely receives a Borrowing Request or
Conversion Notice, as the case may be; (x) all of the
representations and warranties in the Loan Documents and the CIBC
Credit Agreement are true and correct in all material respects
(unless they speak to a specific date or are based on facts which
have changed by transactions contemplated or expressly permitted
by this agreement); (y) no Material Adverse Event, Default, or
Potential Default exists; and (z) no limitation in Section 2.1 is
exceeded. Each Borrowing Request, however delivered, constitutes
Borrower's representation and warranty that the conditions in
clauses (w) through (z) above are satisfied. Upon Lender's
request, Borrower shall deliver to Lender evidence substantiating
any of the matters in the Loan Documents that are necessary to
enable Borrower to qualify for the Borrowing. Each condition
precedent in this agreement (including, without limitation, those
on Schedule 6) is material to the transactions contemplated by
this agreement, and time is of the essence with respect to each
condition precedent.
SECTION 7 REPRESENTATIONS AND WARRANTIES. Borrower represents
and warrants to Lender as follows:
7.1 Corporate Existence, Good Standing and Authority. Each
Company is duly organized, validly existing, and in good standing
under the Laws of its jurisdiction of organization. Except where
not a Material Adverse Event, each Company is duly qualified to
transact business and is in good standing as a foreign legal
entity in each jurisdiction where the nature and extent of its
business and properties require due qualification and good
standing. Each Company possesses the requisite authority and
power to conduct its business as is now being conducted and to
own and operate its assets.
7.2 Authorization and Contravention The execution and
delivery by each Company of each Loan Document to which it is a
party and the performance by it of its obligations under those
Loan Documents (a) are within its partnership power, (b) have
been duly authorized by all necessary partnership action,
(c) require no action by or filing with any Tribunal (except any
action or filing that has been taken or made on or before the
Effective Date), (d) did not violate any provision of its
partnership agreement, charter or bylaws and (e) do not violate
any provision of Law applicable to it or any Material Agreement
to which it is a party.
7.3 Binding Effect Upon execution and delivery by all
parties to it, each Loan Document will constitute a legal and
binding obligation of each Company party to it, enforceable
against it in accordance with that Loan Document's terms except
as that enforceability may be limited by Debtor Laws and general
principles of equity.
7.4 CIBC Credit Agreement Each representation and warranty
in the CIBC Credit Agreement as pertains to Borrower, or its
Subsidiaries, are true and correct (each of which representation
and warranty is incorporated herein by reference together with
related definitions and ancillary provisions) and would be true
and correct if each reference therein to "Obligation," "this
agreement," "Notes," "Loan Document," "Material Adverse Effect,"
"Loans," "Default," "Event of Default" were, respectfully,
references to Obligation, this agreement, Note, Loan Documents,
Material Adverse Event, Borrowings, Potential Default, or a
Default.
7.5 No Default. No Default or Potential Default has
occurred and is continuing.
7.6 Purpose. Borrower will use the proceeds of the
Facility for capital contributions to NBPC, whether directly or
through the Guarantor or for acquisitions or capital investments
by the Borrower, either directly or indirectly through its
Subsidiaries.
7.7 Financials and Existing Debt. The Current Financials
were prepared in accordance with GAAP and present fairly, in all
material respects, the Borrower's consolidated financial
condition, results of operations, and cash flows as of, and for
the portion of the fiscal year ending on their dates (subject
only to normal year-end adjustments for interim statements).
Except for transactions directly related to, specifically
contemplated by, or expressly permitted by the Loan Documents or
as disclosed in the reports filed by Borrower pursuant to the
Securities and Exchange Act of 1934 and delivered to Lender after
the date of the Current Financials, no material adverse changes
have occurred in the Borrower's consolidated financial condition
from that shown in the Current Financials.
7.8 Full Disclosure. If a Material Adverse Event has
occurred, each material fact or condition relating thereto has
been disclosed in writing to Lender. All information (taken as a
whole) previously furnished to Lender in connection with the Loan
Documents was - and all information furnished in the future
(taken as a whole) by Borrower to Lender will be - true and
accurate in all material respects or based on reasonable
estimates on the date the information is stated or certified.
7.9 Year 2000 Compliance. Borrower has implemented its
plan (the "Y2K Plan") insuring that Borrower's and each
Subsidiary's software and hardware systems are Year 2000
Compliant and Ready to the extent that errors or failures that
may result in such software or hardware systems will not result
in a Material Adverse Event. As used herein, "Year 2000
Compliant and Ready" means that the Borrower's and each
Subsidiary's hardware and software systems with respect to the
operation of their business and their general business plan will:
(i) handle date information involving any and all dates before,
during and/or after January 1, 2000, including accepting input,
providing output and performing date calculations in whole or in
part; (ii) operate accurately without interruption on and in
respect of any and all dates before, during and/or after January
1, 2000 and without any change in performance; (iii) respond to
and process two digit year input without creating any ambiguity
as to the century; and (iv) store and provide date input
information without creating any ambiguity as to the century.
SECTION 8 COVENANTS. For so long as Lender is committed to lend
under this agreement and until the Obligation has been fully paid
and performed, Borrower covenants and agrees that:
8.1 CIBC Credit Agreement. It will, for Lender's benefit,
timely and properly observe, perform, and otherwise comply with
each agreement and covenant (each of which is incorporated herein
by reference together with related definitions and ancillary
provisions) pertaining to it under the CIBC Credit Agreement as
each such agreement and covenant is in effect on the date hereof,
regardless of whether any such agreement or covenant is hereafter
amended or modified, non-compliance therewith is hereafter waived
by the "Agent" or any "Lender" under the CIBC Credit Agreement or
any such loan document hereafter expires by its terms or is
terminated, as if each reference therein to "Lender," "Agent,"
"General Partner," "this Agreement," "Loan Document,"
"Indebtedness," "Intermediate Partnership," "the Notes,"
"Material Adverse Effect," and "the Required Lenders," are,
respectfully, references to Lender, Lender, General Partner, this
agreement, Loan Documents, Debt, Guarantor, Note, Material
Adverse Event, and Lender. In confirmation, but not replacement
or limitation, of, the foregoing agreement, Borrower shall:
(a) In accordance with Section 7.1.7 of the CIBC
Credit Agreement, ensure that the claims and rights of
Lender against it under the Loan Documents will not be
subordinate to, and will rank at all times at least pari
passu with, all other Debt of the Borrower. The Borrower
will not amend, modify or supplement any credit agreement,
notes, or other document relating to its Debt in any manner
which would make them materially more onerous to Borrower
than the provisions of this Agreement and the Note as in
effect from time to time;
(b) In accordance with Section 7.2.2(e) of the CIBC
Credit Agreement, not, and will not permit the Guarantor to,
create, incur, assume, or suffer to exist any Lien upon any
of its property, revenues or assets, whether now owned or
hereafter acquired, except Liens securing Borrower's or
Guarantor's Debt, if, and only if, concurrently with the
creation of such Lien, the Debt - including, but not limited
to, the Obligation - is equally and ratably secured by such
Liens; and
(c) In accordance with Section 7.2.1 of the CIBC
Credit Agreement, not, and will not permit the Guarantor to,
create, incur, assume or suffer to exist or to otherwise
become or be liable in respect of any Debt, other than, the
Debt described in such Section7.2.1; provided, however, that
this agreement - and the Principal Debt advanced under the
terms of this agreement - comprises the Debt referred to in
such Section 7.2.1(d). No further Debt may be incurred by
Borrower or Guarantor under such Section.
8.2 Certain Items Furnished. In addition to, and without
limiting the generality, of the foregoing, Borrower shall furnish
to Lender:
(a) Financial Statements. Copies of each financial
statement, compliance certificate, report, notice and
information provided to the "Agent" or "Lenders" under the
CIBC Credit Agreement, as and when provided to them;
(b) Notice. As soon as possible, but in any event
within 10 Business Days after becoming aware - of (i) the
existence and, if requested by Lender, status of any
Litigation that, if determined adversely to any Company,
would be a Material Adverse Event, (ii) any change in any
material fact or circumstance represented or warranted by
any Company in any Loan Document that could be reasonably
expected to result in a Material Adverse Event, or (iii) a
Default or Potential Default, specifying the nature thereof
and what action the Companies have taken, are taking, or
propose to take; and
(c) Other Information. Promptly when requested by
Lender, such information (not otherwise required to be
furnished under this agreement) about any Company's business
affairs, assets, and liabilities, and any opinions,
certifications, and documents, in addition to those
mentioned herein.
8.3 Expenses. Promptly after demand Borrower shall pay
(a) all costs, fees, and expenses paid or incurred by Lender
incident to any Loan Document (including, without limitation, the
reasonable fees and expenses of Lender's counsel in connection
with the negotiation, preparation, delivery, and execution of the
Loan Documents and any related amendment, waiver, or consent) and
(b) all costs and expenses incurred by Lender in connection with
the enforcement of the obligations of any Company under the Loan
Documents or the exercise of any Rights under the Loan Documents
(including, without limitation, allocated costs of in-house
counsel, other reasonable attorneys' fees, and court costs), all
of which are part of the Obligation, bearing interest, (if not
paid within ten Business Days after demand accompanied by an
invoice describing the costs, fees, and expenses in reasonable
detail) at the Default Rate until paid.
SECTION 9 DEFAULT. The term "Default" means the occurrence of
any one or more of the following:
9.1 Payment of Obligation. The failure or refusal of
Borrower to pay any portion of the Obligation, as the same
becomes due in accordance with the terms of the Loan Documents.
9.2 Covenants. Any Company's failure or refusal to
punctually and properly perform, observe, and comply with any
covenant (other than covenants to pay the Obligation) applicable
to it; provided, that, with respect to Sections 8.2(a), 8.2(c),
and 8.3, no such Default shall occur until such Company's failure
or refusal to punctually and properly perform, observe, and
comply with any of such covenants shall continue for 30 days
after the first occurrence of such failure or refusal.
9.3 Debtor Relief. Borrower or any other Company shall not
be Solvent, or any Company (a) fails to pay its Debts generally
as they become due, (b) voluntarily seeks, consents to, or
acquiesces in the benefit of any Debtor Law, or (c) becomes a
party to or is made the subject of any proceeding provided for by
any Debtor Law, other than as a creditor or claimant, that could
suspend or otherwise adversely affect the Rights of Lender
granted in the Loan Documents (unless, in the event such
proceeding is involuntary, the petition instituting same is
dismissed within 60 days after its filing).
9.4 Misrepresentation. Any representation or warranty made
by any Company in any Loan Document at any time proves to have
been incorrect when made.
9.5 Cross-Default. The occurrence of a "Default" or "Event
of Default" under the CIBC Credit Agreement - regardless of
whether such "Default" or "Event of Default" is thereafter
waived. The occurrence of a "Guaranty Default" or "Guaranty
Event of Default" under the CIBC Guaranty - regardless of whether
such "Guaranty Default" or "Guaranty Event of Default" is
thereafter waived.
9.6 Validity and Enforceability. This agreement, the Note,
the Guaranty, or any other Loan Document ceases to be in full
force and effect in any material respect or is declared to be
null and void or its validity or enforceability is contested in
writing by any Company party to it or any Company party to it
denies in writing that it has any further liability or
obligations under it.
SECTION 10 RIGHTS AND REMEDIES.
10.1 Remedies Upon Default.
(a) Debtor Relief. If a Default exists under
Section 9.3, the commitment to extend credit under this
agreement automatically terminates, and the entire unpaid
balance of the Obligation automatically becomes due and
payable without any action of any kind whatsoever.
(b) Other Defaults. If any Default exists, Lender may
do any one or more of the following: (i) if the maturity of
the Obligation has not already been accelerated under
Section 9.3, declare the entire unpaid balance of all or any
part of the Obligation immediately due and payable,
whereupon it is due and payable; (ii) terminate the
commitment of Lender to extend credit under this agreement;
(iii) reduce any claim to judgment; and (iv) exercise any
and all other legal or equitable Rights afforded by the Loan
Documents, by applicable Laws, or in equity.
(c) Offset. If a Default exists, to the extent
permitted by applicable Law, Lender may exercise the Rights
of offset and banker's lien against each and every account
and other property, or any interest therein, which any
Company may now or hereafter have with, or which is now or
hereafter in the possession of, Lender to the extent of the
full amount of the Obligation owed to Lender.
10.2 Company Waivers. To the extent permitted by Law,
Borrower and Guarantor each waive presentment and demand for
payment, protest, notice of intention to accelerate, notice of
acceleration, and notice of protest and nonpayment, and each
agree that its liability with respect to all or any part of the
Obligation is not affected by any renewal or extension in the
time of payment of all or any part of the Obligation, by any
indulgence, or by any release or change in any security for the
payment of all or any part of the Obligation.
10.3 Performance by Lender. If any Company's covenant,
duty, or agreement is not performed in accordance with the terms
of the Loan Documents, Lender may, while a Default exists, at its
option, perform or attempt to perform that covenant, duty, or
agreement on behalf of that Company (and any amount expended by
Lender in its performance or attempted performance is payable by
the Companies, jointly and severally, to Lender on demand,
becomes part of the Obligation, and bears interest at the Default
Rate from the date of Lender's expenditure until paid). However,
Lender does not assume and shall never have, except by its
express written consent, any liability or responsibility for the
performance of any Company's covenants, duties, or agreements.
10.4 Course of Dealing. The acceptance by Lender of any
partial payment on the Obligation is not a waiver of any Default
then existing. No waiver by Lender of any Default is a waiver of
any other then-existing or subsequent Default. No delay or
omission by Lender in exercising any Right under the Loan
Documents impairs that Right or is a waiver thereof or any
acquiescence therein, nor will any single or partial exercise of
any Right preclude other or further exercise thereof or the
exercise of any other Right under the Loan Documents or
otherwise.
10.5 Cumulative Rights. All Rights available to Lender
under the Loan Documents are cumulative of and in addition to all
other Rights granted to Lender at law or in equity, whether or
not the Obligation is due and payable and whether or not Lender
has instituted any suit for collection, foreclosure, or other
action in connection with the Loan Documents.
10.6 Certain Proceedings. Borrower shall promptly execute
and deliver, or cause the execution and delivery of, all
applications, certificates, instruments, registration statements,
and all other documents and papers Lender requests in connection
with the obtaining of any consent, approval, registration,
qualification, permit, license, or authorization of any Tribunal
or other Person necessary or appropriate for the effective
exercise of any Rights under the Loan Documents. Because
Borrower agrees that Lender's remedies at Law for failure of
Borrower to comply with the provisions of this section would be
inadequate and that failure would not be adequately compensable
in damages, Borrower agrees that the covenants of this section
may be specifically enforced.
10.7 Expenditures by Lender. Any sums spent by Lender in
the exercise of any Right under any Loan Document is payable to
Lender within five Business Days after demand, becomes part of
the Obligation, and bears interest at the Default Rate from the
date spent until the date repaid.
SECTION 11 MISCELLANEOUS.
11.1 Nonbusiness Days. Any payment or action that is due
under any Loan Document on a non-Business Day may be delayed
until the next-succeeding Business Day (but interest shall
continue to accrue on any applicable payment until payment is in
fact made) unless the payment concerns a LIBOR Borrowing or
Quoted-Rate Borrowing, in which case if the next-succeeding
Business Day is in the next calendar month, then such payment
shall be made on the next-preceding Business Day.
11.2 Communications. Unless otherwise specifically
provided, whenever any Loan Document requires or permits any
consent, approval, notice, request, or demand from one party to
another, communication must be in writing (which may be by fax)
to be effective and shall be deemed to have been given (a) if by
fax, when transmitted to the appropriate fax number (and all
communications sent by fax must be confirmed promptly thereafter
by telephone; but any requirement in this parenthetical shall not
affect the date when the fax shall be deemed to have been
delivered), (b) if by mail, on the third Business Day after it is
enclosed in an envelope and properly addressed, stamped, sealed,
and deposited in the appropriate official postal service, or
(c) if by any other means, when actually delivered. Until
changed by notice pursuant to this agreement, the address (and
fax number) for Borrower is stated beside its respective
signature to this agreement and for Lender is stated beside its
name on the signature page to this agreement.
11.3 Form and Number of Documents. The form, substance, and
number of counterparts of each writing to be furnished under this
agreement must be satisfactory to Lender and its counsel.
11.4 Exceptions to Covenants. No Company may take or fail
to take any action that is permitted as an exception to any of
the covenants contained in any Loan Document if that action or
omission would result in the breach of any other covenant
contained in any Loan Document.
11.5 Survival. All covenants, agreements, undertakings,
representations, and warranties made in any of the Loan Documents
survive all closings under the Loan Documents and, except as
otherwise indicated, are not affected by any investigation made
by any party.
11.6 Governing Law. Unless otherwise stated in any Loan
Document, the Laws of the State of New York and of the United
States of America govern the Rights and duties of the parties to
the Loan Documents and the validity, construction, enforcement,
and interpretation of the Loan Documents.
11.7 Invalid Provisions. Any provision in any Loan Document
held to be illegal, invalid, or unenforceable is fully severable;
the appropriate Loan Document shall be construed and enforced as
if that provision had never been included; and the remaining
provisions shall remain in full force and effect and shall not be
affected by the severed provision. Lender and each Company party
to the affected Loan Document agree to negotiate, in good faith,
the terms of a replacement provision as similar to the severed
provision as may be possible and be legal, valid, and
enforceable.
11.8 Amendments, and Waivers.
(a) Conflicts. Any conflict or ambiguity between the
terms and provisions of this agreement and terms and
provisions in any other Loan Document is controlled by the
terms and provisions of this agreement.
(b) Waivers. No course of dealing or any failure or
delay by Lender, or any of their respective Representatives
with respect to exercising any Right of Lender under this
agreement operates as a waiver thereof. A waiver must be in
writing and signed by Lender to be effective, and a waiver
will be effective only in the specific instance and for the
specific purpose for which it is given.
11.9 Multiple Counterparts. Any Loan Document may be
executed in a number of identical counterparts (including, at
Lender's discretion, counterparts or signature pages executed and
transmitted by fax) with the same effect as if all signatories
had signed the same document. All counterparts must be construed
together to constitute one and the same instrument.
11.10 Parties Bound. Each Loan Document binds and
inures to the parties to it, any intended beneficiary of it, and
each of their respective successors and permitted assigns. No
Company may assign or transfer any Rights or obligations under
any Loan Document without first obtaining Lender's consent, and
any purported assignment or transfer without Lender's consent is
void. Lender may transfer, pledge, assign, sell any
participation in, or otherwise encumber its portion of the
Obligation, and may disclose information pertaining to the
Borrower for such purposes. Any assignment will be made with
Borrower's consent (which consent shall not be unreasonably
withheld) and, once completed, release Lender of its funding
obligation with respect to the amount assigned.
11.11 Venue, Service of Process, and Jury Trial.
BORROWER, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, IRREVOCABLY
(A) SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS IN NEW YORK, (B) WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION (INCLUDING IT BEING AN
INCONVENIENT FORUM) THAT IT MAY NOW OR IN THE FUTURE HAVE TO THE
LAYING OF VENUE OF ANY LITIGATION ARISING OUT OF OR IN CONNECTION
WITH ANY LOAN DOCUMENT AND THE OBLIGATION BROUGHT IN THE COURTS
OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND (C) CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THOSE COURTS IN ANY LITIGATION BY THE
MAILING OF COPIES OF THAT PROCESS BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, POSTAGE PREPAID, BY HAND DELIVERY, OR BY
DELIVERY BY A NATIONALLY-RECOGNIZED COURIER SERVICE, AND SERVICE
SHALL BE DEEMED COMPLETE UPON DELIVERY OF THE LEGAL PROCESS AT
ITS ADDRESS FOR PURPOSES OF THIS AGREEMENT. BORROWER
ACKNOWLEDGES THAT THESE WAIVERS ARE A MATERIAL INDUCEMENT TO
LENDER'S AGREEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
LENDER HAS ALREADY RELIED ON THESE WAIVERS IN ENTERING INTO THIS
AGREEMENT, AND THAT LENDER WILL CONTINUE TO RELY ON EACH OF THESE
WAIVERS IN RELATED FUTURE DEALINGS. BORROWER FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THESE WAIVERS WITH ITS LEGAL
COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY AGREES TO EACH
WAIVER FOLLOWING CONSULTATION WITH LEGAL COUNSEL. The waivers in
this section are irrevocable, meaning that they may not be
modified either orally or in writing, and these waivers apply to
any future renewals, extensions, amendments, modifications, or
replacements in respect of the applicable Loan Document. In
connection with any Litigation, this agreement may be filed as a
written consent to a trial by the court.
11.12 No General Partners' Liability. Lender agrees for
itself and its respective successors and assigns, including any
subsequent holder of the Note, that any claim against the
Borrower which may arise under any Loan Document shall be made
only against, and shall be limited to the assets of, the
Borrower, except to the extent the Guarantor may have obligations
with respect to such claim pursuant to the terms of the Guaranty,
and that no judgment, order or execution entered in any suit,
action or proceeding, whether legal or equitable, on this
agreement, the Note or any other Loan Document, shall be obtained
or enforced against any General Partner or its assets for the
purpose of obtaining satisfaction and payment of the Note, the
Debt evidenced thereby or any claims arising thereunder or under
this agreement or any other Loan Document, any right to proceed
against the General Partners individually or their respective
assets being hereby expressly waived, renounced and remitted by
Lender for itself and its successors and assigns. Nothing in the
Section, however, shall be construed so as to prevent Lender or
any other holder of the Note from commencing any action, suit or
proceeding with respect to or causing legal papers to be served
on any General Partner for the purpose of obtaining jurisdiction
over the Borrower.
11.13 Entirety. THE LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN BORROWER AND LENDER MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.
Signature Page to that certain Credit Agreement dated as of
December 15, 1999 between NORTHERN BORDER PARTNERS, L.P., as
Borrower and SUNTRUST BANK, ATLANTA, as Lender.
NORTHERN BORDER PARTNERS, L.P.,
as Borrower
By /s/ Xxxxx X. XxXxxx
Name: Xxxxx X. XxXxxx
Title: Chief Executive Officer
Address: 0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Signature Page to that certain Credit Agreement dated as of
December 15, 1999 between NORTHERN BORDER PARTNERS, L.P., as
Borrower and SUNTRUST BANK, ATLANTA, as Lender.
SUNTRUST BANK, ATLANTA,
as Lender
By /s/Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
Address: 000 Xxxxxxxxx
Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
SCHEDULES AND EXHIBITS
Schedule 1 - Defined Terms
Schedule 6 - Closing Documents
Exhibit A - Note
Exhibit B - Guaranty
Exhibit C-1 - Borrowing Request
Exhibit C-2 - Conversion Notice
Exhibit D - Opinion of General Counsel to Companies
SCHEDULE 1
DEFINED TERMS
Acceptance Agreement means that certain Acceptance Agreement
dated the date hereof, executed between Borrower and Lender, and
listed on Schedule 6 hereto.
Applicable Margin means, for any LIBOR Borrowing, (i) for
any day during the period from and including the Effective Date,
through and including the 180th calendar day thereafter, 0.50%
per annum and (ii) for any day subsequent thereto, 0.75% per
annum.
Authorized Representative means, officers of Northern Plains
Natural Gas Company whose signatures and incumbency shall have
been certified to Lender pursuant to Section 6 and who have been
authorized by the Borrower pursuant to resolution as its
"Authorized Representative." Under the terms of this agreement,
an Authorized Representative may execute and present Borrowing
Requests and Conversion Notices.
Base Rate means, for any day, the greater of either (a) the
annual interest rate most recently announced by SunTrust Bank,
Atlanta at its principal office in Atlanta, Georgia, as its prime
rate, with the understanding that such prime rate is one of its
base rates and serves as the basis upon which effective rates of
interest are calculated for those loans making reference to the
prime rate, and is evidenced by the recording of such prime rate
after its announcement in such internal publication or
publications as SunTrust Bank, Atlanta may designate,
automatically fluctuating upward and downward without special
notice to Borrower or any other Person, or (b) the sum of the
Federal-Funds Rate plus (i) for the period between December 3,
1999 through January 31, 2000 (inclusive of such dates), one and
one-half percent (1.5%); or (ii) for all other times, one half of
one percent (0.5%).
Base-Rate Borrowing means a Borrowing bearing interest at
the Base Rate.
Borrower is defined in the preamble to this agreement.
Borrowing means any amount disbursed under the Loan
Documents by Lender to or on behalf of Borrower under the Loan
Documents, either as an original disbursement of funds, a
renewal, extension, or continuation of an amount outstanding.
Borrowing Date means the date on which funds are requested
by Borrower in a Borrowing Request.
Borrowing Request means a request, subject to Section 2.2,
substantially in the form of Exhibit C-1.
Business Day means (a) for purposes of any LIBOR Borrowing,
a day when commercial banks are open for international business
in London, England, and (b) for all other purposes, any day other
than Saturday, Sunday, and any other day that commercial banks
are authorized by Law to be closed in Georgia.
CIBC Credit Agreement means that certain Credit Agreement
dated as of November 6, 1997 among the Borrower, certain
commercial lending institutions, and Canadian Imperial Bank of
Commerce, as Agent, providing for a revolving line of credit in
an amount not to exceed $175,000,000.
CIBC Guaranty means that certain Guaranty dated as of
November 6, 1997 by Northern Border Intermediate Limited
Partnership, a Delaware limited partnership, as guarantor in
favor of the "Lender Parties" defined therein, to guarantee,
among other things, Borrower's obligations under the CIBC Credit
Agreement.
Closing Date means the date agreed to by Borrower and Lender
for the initial Borrowing, which must be a Business Day occurring
no earlier than December 15, 1999
Code means the Internal Revenue Code of 1986.
Commitment means Lender's obligation under Section 2.1 to
make advances under the Facility.
Companies means, at any time, Borrower and each of its
Subsidiaries.
Conversion Notice means a request, subject to Section 3.9,
substantially in the form of Exhibit C-2.
CST means Central Standard Time.
Current Date means any date within 30 days prior to the
Effective Date.
Current Financials, unless otherwise specified, means either
(a) the Borrower's most recent 10K and 10Q filed with the
Securities and Exchange Commission, or (b) at any time after
annual Financials are first delivered under Section 7.7,
Borrower's annual Financials then most recently delivered to
Lender under Section 7.7, together with the Borrower's quarterly
Financials then most recently delivered to Lender under Section
7.7.
Debt means - of any Person, at any time, and without
duplication - all obligations, contingent or otherwise, which in
accordance with GAAP should be classified upon such Person's
balance sheet as liabilities, but in any event including the sum
of the following: (a) all obligations for borrowed money; (b) all
obligations evidenced by bonds, debentures, notes, bankers'
acceptances or similar instruments; (c) all obligations to pay
the deferred purchase price of property or services except trade
accounts payable arising in the ordinary course of business; (d)
all direct or contingent obligations in respect of letters of
credit; (e) liabilities secured (or for which the holder of the
Debt has an existing Right, contingent or otherwise to be so
secured) by any Lien existing on property owned or acquired by
that Person; (f) lease obligations that have been (or under GAAP
should be) capitalized for financial reporting purposes; plus (g)
all guaranties, endorsements, and other contingent obligations
for Debt of others.
Debtor Laws means the Bankruptcy Code of the United States
of America and all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership, insolvency,
reorganization, suspension of payments, or similar Laws affecting
creditors' Rights.
Default is defined in Section 9.
Default Rate means, for any day, an annual interest rate
equal from day to day to the lesser of either (a) the then-
existing Base Rate plus 3% or (b) the Maximum Rate.
Effective Date means December 15, 1999.
EST means Eastern Standard Time.
Facility is the amount available to Borrower, not to exceed
$25,000,000 at any time.
Federal-Funds Rate means, for any day, the annual rate
(rounded upwards, if necessary, to the nearest 1/16%) determined
(which determination is conclusive and binding, absent manifest
error) by Lender to be equal to (a) the weighted average of the
rates on overnight federal-funds transactions with member bank of
the Federal Reserve System arranged by federal-funds brokers on
that day, as published by the Federal Reserve Bank of New York on
the next Business Day, or (b) if those rates are not published
for any day, the average of the quotations at approximately 9:00
a.m. CST (10:00 a.m. EST) received by Lender from three federal-
funds brokers of recognized standing selected by Lender in its
sole discretion.
Financials of a Person means balance sheets, profit and loss
statements, reconciliations of capital and surplus, and
statements of cash flow prepared (a) according to GAAP (subject
to year end audit adjustments with respect to interim Financials)
and (b) except as stated in Section 1.5, in comparative form to
prior year-end figures or corresponding periods of the preceding
fiscal year or other relevant period, as applicable.
Funding Loss means any loss, expense, or reduction in yield
(but not any Applicable Margin) that Lender incurs because
(a) Borrower fails or refuses to take any Borrowing that it has
requested under this agreement, or (b) Borrower prepays or pays
any Borrowing or converts any Borrowing to a Borrowing of another
Type, in each case, other than on the last day of the applicable
Interest Period.
GAAP means generally accepted accounting principles of the
Accounting Principles Board of the American Institute of
Certified Public Accountants and the Financial Accounting
Standards Board that are applicable from time to time.
General Partner means any of Northern Plains Natural Gas
Company, Pan Border Gas Company, and Northwest Border Pipeline
Company, and their successors and assigns in such capacity.
Guarantor means Northern Border Intermediate Limited
Partnership, a Delaware limited partnership.
Guaranty means a guaranty substantially in the form of the
attached Exhibit B.
Interest Period is defined in Section 3.8.
Laws means all applicable statutes, laws, treaties,
ordinances, rules, regulations, orders, writs, injunctions,
decrees, judgments, opinions, and interpretations of any
Tribunal.
Lender is defined in the preamble to this agreement.
LIBOR means, for a LIBOR Borrowing and for the relevant
Interest Period, the annual interest rate (rounded upward, if
necessary, to the nearest 0.01%) equal to the quotient obtained
by dividing (a) the rate per annum for deposits in United States
dollars for a period equal to such Interest Period appearing on
the display designated as Page 3750 on the Dow Xxxxx Markets
Service (or such other page on that service or such other service
designated by the British Banker's Association for the display of
such Association's Interest Settlement Rates for Dollar deposits)
as of 11:00 a.m. (London, England time) on the day that is two
Business Days prior to the first day of the Interest Period or if
such page 3750 is unavailable for any reason at such time, the
rate which appears on the Reuters Screen ISDA Page as of such
date and such time; provided, that if Lender determines that the
relevant foregoing sources are unavailable for the relevant
Interest Period, LIBOR shall mean the rate of interest determined
by Lender to be the average (rounded upward, if necessary, to the
nearest 1/100th of 1%) of the rates per annum at which deposits
in United States dollars are offered to Lenders; two (2) Business
Days preceding the first day of such Interest Period by leading
banks in the London interbank market as of 10:00 a.m. 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 the LIBOR Borrowing of Lenders by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to the
relevant Interest Period.
LIBOR Borrowing means a Borrowing bearing interest at the
sum of LIBOR plus the Applicable Margin.
Lien means any lien, mortgage, security interest, pledge,
assignment, charge, title retention agreement, or encumbrance of
any kind and any other arrangement for a creditor's claim to be
satisfied from assets or proceeds prior to the claims of other
creditors or the owners (other than title of the lessor under an
operating lease).
Litigation means any action by or before any Tribunal.
Loan Documents means (a) this agreement, certificates and
reports delivered under this agreement, and exhibits and
schedules to this agreement, (b) all agreements, documents, and
instruments in favor of Lender ever delivered under this
agreement or otherwise delivered in connection with all or any
part of the Obligation (other than assignments), and (c) all
renewals, extensions, and restatements of, and amendments and
supplements to, any of the foregoing.
Material Adverse Event shall mean, with respect to any
event, act, condition or occurrence of whatever nature (including
any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singly or in
conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse
effect on, (i) the business, results of operations, financial
condition, assets, or liabilities of the Borrower and its
Subsidiaries taken as a whole, as represented to Lender in the
most recently delivered Current Financials, (ii) the ability of
the Borrower to perform its obligations under the Loan Documents,
(iii) the rights and remedies of the Lender under any of the Loan
Documents or (iv) the legality, validity or enforceability of any
of the Loan Documents.
Material Agreement means any written or oral agreement,
contract, commitment or understanding under which any Company is
obligated to make payments in excess of $10,000,000 in any fiscal
year or is entitled to receive revenues in any fiscal year in
excess of 5% of Borrower's consolidated annual revenues for such
year.
Maturity Date means the earlier to occur of (a) the 364th
calendar day following the Effective Date; or (b) the "Commitment
Termination Date" defined under the CIBC Credit Agreement as in
effect on the Effective Date, regardless of whether such
agreement is hereafter modified, renewed or extended.
Maximum Amount and Maximum Rate respectively mean, for
Lender, the maximum non-usurious amount and the maximum non-
usurious rate of interest that, under applicable Law, that Lender
is permitted to contract for, charge, take, reserve, or receive
on the Obligation.
NBPC means Northern Border Pipeline Company, a Texas general
partnership.
Note means a promissory note substantially in the form of
the attached Exhibit A, as renewed, extended, amended, and
restated.
Obligation means all present and future (a) Debts,
liabilities, and obligations of any Company to Lender and related
to any Loan Document, whether principal, interest, fees, costs,
attorneys' fees, or otherwise, and (b) renewals, extensions, and
modifications of any of the foregoing.
Person means any individual, entity, or Tribunal.
Potential Default means any event's occurrence or any
circumstance's existence that would - upon any required notice,
time lapse, or both - become a Default.
Principal Debt means, at any time, the unpaid principal
balance of all Borrowings.
Quoted Rate means the fixed rate per annum for a specified
maturity, which may be mutually agreed upon by Borrower and
Lender pursuant to this agreement.
Quoted-Rate Borrowing means a Borrowing bearing interest at
the Quoted Rate.
Representatives means representatives, officers, directors,
employees, accountants, attorneys, and agents.
Reserve Requirement means, for any LIBOR Borrowing and for
the relevant Interest Period, the total reserve requirements
(including all basic, supplemental, emergency, special, marginal,
and other reserves required by applicable Law) actually
applicable to Lender's eurocurrency fundings or liabilities as of
the first day of that Interest Period.
Responsible Officer means Borrower's chief executive
officer, or chief financial officer.
Rights means rights, remedies, powers, privileges, and
benefits.
Solvent means, as to any Person, that (a) the aggregate
fair market value of its assets exceeds its liabilities, (b) it
has sufficient cash flow to enable it to pay its Debts as they
mature, and (c) it does not have unreasonably small capital to
conduct its businesses.
Subsidiary of any Person means any entity of which (i) more
than 50% (in number of votes) of the stock (or equivalent
interests) is owned of record or beneficially, directly or
indirectly, by that Person, or (ii) any partnership, association,
joint venture, limited liability company or similar business
organization more than fifty percent (50%) of the ownership
interest having ordinary voting power of which shall at the time
be directly or indirectly owned by such Person, by such Person
and one or more Subsidiaries of such Person, or by one or more
Subsidiaries of such Person.
Taxes means, for any Person, taxes, assessments, or other
governmental charges or levies imposed upon it, its income, or
any of its properties, franchises, or assets.
Termination Date means the earlier of either (a) the
Maturity Date or (b) the effective date that Lender's Commitment
is fully canceled or terminated.
Tribunal means any (a) local, state, territorial, federal,
or foreign judicial, executive, regulatory, administrative,
legislative, or governmental agency, board, bureau, commission,
department, or other instrumentality, (b) private arbitration
board or panel, or (c) central bank.
Type means any type of Borrowing determined with respect to
the applicable interest option.
