EXHIBIT 10.1
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED AS OF MARCH 30, 2006
AMONG
NORTHERN BORDER PARTNERS, L.P.,
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO,
SUNTRUST BANK,
as Administrative Agent
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
and
BANK OF MONTREAL (doing business as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇),
BARCLAYS BANK PLC,
and
CITIBANK, N.A.,
as Co-Documentation Agents
====================================================================
SUNTRUST CAPITAL MARKETS, INC.
and
WACHOVIA CAPITAL MARKETS, LLC,
as Co-Lead Arrangers and Book Managers
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; CONSTRUCTION...................................................................1
Section 1.1. Definitions............................................................................1
Section 1.2. Classifications of Loans and Borrowings...............................................23
Section 1.3. Accounting Terms and Determination....................................................23
Section 1.4. Terms Generally.......................................................................23
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS........................................................24
Section 2.1. General Description of Facilities.....................................................24
Section 2.2. Revolving Loans.......................................................................24
Section 2.3. Procedure for Revolving Borrowings....................................................24
Section 2.4. Swingline Commitment..................................................................25
Section 2.5. Funding of Borrowings.................................................................26
Section 2.6. Interest Elections....................................................................27
Section 2.7. Optional Reduction and Termination of Commitments.....................................28
Section 2.8. Repayment of Loans....................................................................28
Section 2.9. Evidence of Indebtedness..............................................................28
Section 2.10. Prepayments...........................................................................29
Section 2.11. Interest on Loans.....................................................................30
Section 2.12. Fees..................................................................................31
Section 2.13. Computation of Interest and Fees......................................................32
Section 2.14. Inability to Determine Interest Rates.................................................32
Section 2.15. Illegality............................................................................32
Section 2.16. Increased Costs.......................................................................33
Section 2.17. Funding Indemnity.....................................................................34
Section 2.18. Taxes.................................................................................34
Section 2.19. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...........................36
Section 2.20. Letters of Credit.....................................................................37
Section 2.21. Increase of Commitments; Additional Lenders...........................................41
Section 2.22. Mitigation of Obligations.............................................................43
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT........................................43
Section 3.1. Conditions To Effectiveness...........................................................43
Section 3.2. Each Credit Event.....................................................................45
Section 3.3. Delivery of Documents.................................................................45
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................................................46
Section 4.1. Existence; Power......................................................................46
Section 4.2. Organizational Power; Authorization...................................................46
Section 4.3. Governmental Approvals; No Conflicts..................................................46
Section 4.4. Financial Statements..................................................................46
Section 4.5. Litigation and Environmental Matters..................................................47
Section 4.6. Compliance with Laws and Agreements...................................................47
Section 4.7. Investment Company Act, Etc...........................................................47
Section 4.8. Taxes.................................................................................47
Section 4.9. Margin Regulations....................................................................48
Section 4.10. ERISA.................................................................................48
Section 4.11. Ownership of Property.................................................................48
Section 4.12. Disclosure............................................................................49
Section 4.13. Labor Relations.......................................................................49
Section 4.14. Subsidiaries..........................................................................49
Section 4.15. Insolvency............................................................................49
Section 4.16. OFAC..................................................................................49
Section 4.17. Patriot Act...........................................................................49
ARTICLE V AFFIRMATIVE COVENANTS......................................................................50
Section 5.1. Financial Statements and Other Information............................................50
Section 5.2. Notices of Material Events............................................................51
Section 5.3. Existence; Conduct of Business........................................................52
Section 5.4. Compliance with Laws, Etc.............................................................52
Section 5.5. Payment of Obligations................................................................52
Section 5.6. Books and Records.....................................................................52
Section 5.7. Visitation, Inspection, Etc...........................................................52
Section 5.8. Maintenance of Properties; Insurance..................................................52
Section 5.9. Use of Proceeds and Letters of Credit.................................................53
Section 5.10. Pari Passu Status.....................................................................53
Section 5.11. Maintenance of Tax Status.............................................................53
ARTICLE VI FINANCIAL COVENANTS........................................................................53
Section 6.1. Leverage Ratio........................................................................53
Section 6.2. Interest Coverage Ratio...............................................................53
ARTICLE VII NEGATIVE COVENANTS.........................................................................54
Section 7.1. Indebtedness; Preferred Interests.....................................................54
Section 7.2. Negative Pledge.......................................................................55
Section 7.3. Fundamental Changes...................................................................57
Section 7.4. Investments, Loans, Etc...............................................................58
Section 7.5. Restricted Payments...................................................................59
Section 7.6. Reserved..............................................................................59
Section 7.7. Transactions with Affiliates..........................................................59
Section 7.8. Restrictive Agreements................................................................59
Section 7.9. Government Regulations................................................................60
Section 7.10. Hedging Transactions..................................................................60
Section 7.11. Accounting Changes....................................................................60
Section 7.12. Restrictions on Agreements Governing Indebtedness.....................................60
Section 7.13. Certain Amendments to Cash Distribution Policies and Partnership Agreements...........60
ARTICLE VIII EVENTS OF DEFAULT..........................................................................61
Section 8.1. Events of Default.....................................................................61
ii
ARTICLE IX THE ADMINISTRATIVE AGENT...................................................................64
Section 9.1. Appointment of Administrative Agent...................................................64
Section 9.2. Nature of Duties of Administrative Agent..............................................64
Section 9.3. Lack of Reliance on the Administrative Agent..........................................65
Section 9.4. Certain Rights of the Administrative Agent............................................65
Section 9.5. Reliance by Administrative Agent......................................................65
Section 9.6. The Administrative Agent in its Individual Capacity...................................66
Section 9.7. Successor Administrative Agent........................................................66
Section 9.8. Authorization to Execute other Loan Documents.........................................66
Section 9.9. Syndication Agent and Co-Documentation Agents.........................................66
ARTICLE X MISCELLANEOUS..............................................................................67
Section 10.1. Notices...............................................................................67
Section 10.2. Waiver; Amendments....................................................................69
Section 10.3. Expenses; Indemnification.............................................................70
Section 10.4. Successors and Assigns................................................................71
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process............................75
Section 10.6. WAIVER OF JURY TRIAL..................................................................75
Section 10.7. Right of Setoff.......................................................................76
Section 10.8. Counterparts; Integration.............................................................76
Section 10.9. Survival..............................................................................76
Section 10.10. Severability..........................................................................77
Section 10.11. Confidentiality.......................................................................77
Section 10.12. Interest Rate Limitation..............................................................77
Section 10.13. Waiver of Effect of Seal..............................................................77
Section 10.14. Patriot Act...........................................................................78
Section 10.15. No General Partner Liability..........................................................78
Section 10.16. Amendment and Restatement.............................................................78
iii
Schedules
Schedule I - Applicable Margin and Applicable Percentage
Schedule II - Commitment Amounts
Schedule 4.5(b) - Environmental Matters
Schedule 4.14 - Subsidiaries
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule 7.7 - Transactions with Affiliates
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Swingline Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Intermediate Partnership Guaranty Agreement
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.4 - Form of Notice of Swingline Borrowing
Exhibit 2.6 - Form of Notice of Continuation/Conversion
Exhibit 3.1(b)(v) - Form of Secretary's Certificate
Exhibit 3.1(b)(viii) - Form of Officer's Certificate
Exhibit 5.1(c) - Form of Compliance Certificate
iv
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Agreement") is made and entered into as of March 30, 2006, by and among
NORTHERN BORDER PARTNERS, L.P., a Delaware limited partnership (the "Borrower"),
the several banks and other financial institutions and lenders from time to time
party hereto (the "Lenders"), SUNTRUST BANK, in its capacity as administrative
agent for the Lenders (the "Administrative Agent"), as issuing bank (the
"Issuing Bank") and as swingline lender (the "Swingline Lender"), WACHOVIA BANK,
NATIONAL ASSOCIATION, as syndication agent (the "Syndication Agent") and BANK OF
MONTREAL (doing business as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇), BARCLAYS BANK PLC, and CITIBANK,
N.A., as Co-Documentation Agents.
W I T N E S S E T H:
WHEREAS, the Borrower, certain of the Lenders, certain other
banks and financial institutions, and the Administrative Agent are parties to a
Revolving Credit Agreement dated as of May 16, 2005, as amended by a First
Amendment to Revolving Credit Agreement dated as of June 13, 2005 (as so
amended, the "Existing Credit Agreement"), pursuant to which a $500,000,000
revolving credit facility in favor of the Borrower was established;
WHEREAS, the Borrower has requested that the revolving credit
facility under the Existing Credit Agreement be increased to $750,000,000 and
that certain other amendments be made to the Existing Credit Agreement;
WHEREAS, the Lenders have agreed to amend and restate the
Existing Credit Agreement in order to effect such increase and other amendments
to the Existing Credit Agreement, all subject to the terms, conditions, and
requirements of this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Borrower, the Lenders, the
Administrative Agent, the Issuing Bank and the Swingline Lender agree that the
Existing Credit Agreement is amended and restated as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.1. DEFINITIONS. In addition to the other terms defined herein, the
following terms used herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the terms defined):
"Additional Lender" shall have the meaning given to such term
in Section 2.21.
"Adjusted Consolidated EBITDA" shall mean, for the Borrower
and its Subsidiaries, for any period, the sum of (a) Consolidated EBITDA for
such period plus (b) any Material Project EBITDA Adjustments for such period.
"Adjusted LIBO Rate" shall mean, with respect to each
Interest Period for a Eurodollar Borrowing, the rate per annum obtained by
dividing (i) LIBOR for such Interest Period by (ii) a percentage equal to 1.00
minus the Eurodollar Reserve Percentage.
"Administrative Agent" shall have the meaning assigned to
such term in the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to
each Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed
by such Lender.
"Affiliate" shall mean, as to any Person, any other Person
that directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For the purposes
of this definition, "Control" shall mean the power, directly or indirectly, to
direct or cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by control or otherwise.
The terms "Controlling", "Controlled by", and "under common Control with" have
the meanings correlative thereto.
"Aggregate Revolving Commitment Amount" shall mean the
aggregate principal amount of the Aggregate Revolving Commitments from time to
time. On the Restatement Date, the Aggregate Revolving Commitment Amount equals
$750,000,000.
"Aggregate Revolving Commitments" shall mean, collectively,
all Revolving Commitments of all Lenders at any time outstanding.
"Applicable Lending Office" shall mean, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or an Affiliate of
such Lender) designated for such Type of Loan in the Administrative
Questionnaire submitted by such Lender or such other office of such Lender (or
an Affiliate of such Lender) as such Lender may from time to time specify to
the Administrative Agent and the Borrower as the office by which its Loans of
such Type are to be made and maintained.
"Applicable Margin" shall mean, as of any date, with respect
to all Revolving Loans outstanding on any date or the letter of credit fee, the
percentage per annum determined by reference to the applicable Rating Category
from time to time in effect as set forth on Schedule I; provided, that a change
in the Applicable Margin resulting from a change in the Rating Category shall
be effective on the day on which either rating agency changes its rating and
shall continue until the day prior to the day that a further change becomes
effective. The Applicable Margin as of the Restatement Date shall be at Level
III as set forth on Schedule I.
"Applicable Percentage" shall mean, as of any date, with
respect to the facility fee as of any date, the percentage per annum determined
by reference to the applicable Rating Category as set forth on Schedule I;
provided, that a change in the Applicable Percentage
2
resulting from a change in the Rating Category shall be effective on the day on
which either rating agency changes its rating and shall continue until the day
prior to the day that a further change becomes effective. Notwithstanding the
foregoing, the Applicable Percentage for the facility fee as of the Restatement
Date shall be at Level III as set forth on Schedule I.
"Approved Fund" shall mean any Person (other than a natural
Person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 10.4(b)) and accepted by the
Administrative Agent, in the form of Exhibit C attached hereto or any other
form approved by the Administrative Agent.
"Availability Period" shall mean the period from the
Restatement Date to the Revolving Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the per annum rate
which the Administrative Agent publicly announces from time to time to be its
prime lending rate, as in effect from time to time, and (ii) the Federal Funds
Rate, as in effect from time to time, plus one-half of one percent (0.50%). The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"Borrower" shall have the meaning assigned to such term in
the opening paragraph hereof.
"Borrower Partnership Agreement" means the Amended and
Restated Agreement of Limited Partnership of Northern Border Partners, L.P.,
dated as of October 1, 1993 as amended, supplemented, restated or otherwise
modified from time to time.
"Borrowing" shall mean a borrowing consisting of (i) Loans of
the same Class and Type, made, converted or continued on the same date and in
the case of Eurodollar Loans, as to which a single Interest Period is in
effect, or (ii) a Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday,
Sunday or other day on which commercial banks in Atlanta, Georgia and New York,
New York are authorized or required by law to close and (ii) if such day
relates to a Borrowing of, a payment or prepayment of principal or interest on,
a conversion of or into, or an Interest Period for, a Eurodollar Loan or a
notice with respect to any of the foregoing, any day on which dealings in
Dollars are carried on in the London interbank market.
3
"Capital Lease Obligations" of any Person shall mean all
obligations of such Person to pay rent or other amounts under any lease (or
other arrangement conveying the right to use) of real or personal property, or
a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" shall mean any non-redeemable capital stock
(or in the case of a partnership or limited liability company, the partners' or
members' equivalent equity interest) of the Borrower or any of its Subsidiaries
(to the extent issued to a Person other than the Borrower), whether common or
preferred.
Change in Control" shall mean (i) prior to the consummation
of the NBPC Sale, the failure of the Borrower to own, directly or indirectly
through the Intermediate Partnership, free and clear of all Liens, more than
50% of the partnership interests in Pipeline, or (ii) the failure of OKE to
own, directly or indirectly, free and clear of all Liens, general partner
interests in the Borrower and the Intermediate Partnership such that the
aggregate voting rights of OKE are greater than 50% of all voting rights of all
outstanding general partner interests of the Borrower and the Intermediate
Partnership.
"Change in Law" shall mean (i) the adoption of any applicable
law, rule or regulation after the Original Closing Date, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the Original Closing
Date, or (iii) compliance by any Lender (or its Applicable Lending Office) or
the Issuing Bank (or for purposes of Section 2.16(b), by such Lender's or the
Issuing Bank's parent corporation, if applicable) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the Original Closing Date.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Swingline Loans and when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Commitment or a
Swingline Commitment.
"Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Commitment" shall mean a Revolving Commitment or a Swingline
Commitment or any combination thereof (as the context shall permit or require).
"Common Unit" means units representing limited partnership
interests in the Borrower offered for sale to the public.
"Compliance Certificate" shall mean a certificate from the
principal executive officer, the principal financial officer or the treasurer
of the Borrower in the form of, and containing the certifications set forth in,
the certificate attached hereto as Exhibit 5.1(c).
4
"Consolidated EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (i) Consolidated Net
Income for such period plus (ii) to the extent deducted in determining
Consolidated Net Income for such period, (A) Consolidated Interest Expense, (B)
income tax expense determined on a consolidated basis in accordance with GAAP,
(C) depreciation and amortization determined on a consolidated basis in
accordance with GAAP, and (D) all other non-cash charges, determined in each
case on a consolidated basis in accordance with GAAP for such period. For
purposes of Section 6.1 and Section 6.2, if the Borrower or any Subsidiary has
acquired another Person as a Subsidiary, or all or substantially all of the
assets of another Person or a division, line of business, or other business
unit of another Person (in any such case, an "Acquisition"), or has sold,
transferred or otherwise disposed of a Subsidiary or all or substantially all
of the assets of a Subsidiary or a division, line of business, or other
business unit or, in the case of the NBPC Sale, the sale of the partnership
interests of Pipeline to TCPILP (in any such case, a "Disposition"), in any
case as permitted by this Agreement, during the relevant period for determining
the Interest Coverage Ratio and Leverage Ratio, Consolidated EBITDA shall be
calculated in such ratios after giving pro forma effect thereto (such pro forma
basis to have been reasonably diligenced by the Borrower), as if such
Acquisition or Disposition (and in each case any related incurrence, assumption
or repayment of Indebtedness) had occurred on the first day of the relevant
period for determining Consolidated EBITDA.
"Consolidated Interest Expense" shall mean, for the Borrower
and its Subsidiaries for any period determined on a consolidated basis in
accordance with GAAP, the sum of (i) total interest expense, including without
limitation the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or not actually
paid during such period) plus (ii) the net amount payable (or minus the net
amount receivable) under any Hedging Transaction (relating to interest rates
only) during such period (whether or not actually paid or received during such
period).
"Consolidated Net Income" shall mean, for the Borrower and
its Subsidiaries for any period, the net income (or loss) of the Borrower and
its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP; provided that there shall be excluded therefrom (a) the
income or loss of any Person accrued prior to the date it became a Subsidiary
of the Borrower, or is merged or consolidated with the Borrower or any of its
Subsidiaries, or such Person's assets were acquired by the Borrower or any of
its Subsidiaries, (b) any equity interests of the Borrower or any Subsidiary in
the earnings of any Person (other than a Subsidiary of the Borrower), but
including dividends and similar distributions actually received by the Borrower
or its Subsidiaries from any such Person, (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of the organizational documents or Contractual
Obligations of, or Requirements of Law applicable to, such Subsidiary, (d) any
extraordinary gains or losses, and (e) any gains attributable to write-ups of
assets.
"Consolidated Total Debt" shall mean, as of any date, all
Indebtedness of the Borrower and its Subsidiaries measured on a consolidated
basis as of such date, but excluding Indebtedness of the type described in
subsection (xi) of the definition thereto.
5
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of
the property in which it has an interest is bound.
"Default" shall mean any condition or event that, with the
giving of notice or the lapse of time or both, would constitute an Event of
Default.
"Default Interest" shall have the meaning set forth in
Section 2.11(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the
United States of America.
"Eligible Assignee" shall mean (i) a Lender; (ii) an
Affiliate of a Lender; (iii) an Approved Fund; and (iv) any other Person (other
than a natural Person) approved by the Administrative Agent, the Issuing Bank,
and unless an Event of Default has occurred and is continuing, the Borrower
(each such approval not to be unreasonably withheld or delayed). If the consent
of the Borrower to an assignment or to an Eligible Assignee is required
hereunder (including a consent to an assignment which does not meet the minimum
assignment thresholds specified in paragraph (b) of Section 10.4), the Borrower
shall be deemed to have given its consent five Business Days after the date
notice thereof has actually been delivered by the assigning Lender (through the
Administrative Agent) to the Borrower, unless such consent is expressly refused
by the Borrower prior to such fifth Business Day.
"Environmental Laws" shall mean all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability,
contingent or otherwise (including any liability for damages, costs of
environmental investigation and remediation, costs of administrative oversight,
fines, natural resource damages, penalties or indemnities), of the Borrower or
any Subsidiary directly or indirectly resulting from or based upon (i) any
actual or alleged violation of any Environmental Law, (ii) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (iii) any actual or alleged exposure to any Hazardous Materials,
(iv) the Release or threatened Release of any Hazardous Materials or (v) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean each "person" (as defined in
Section 3(a) of ERISA) (whether or not incorporated) which is, or has been
within the past five years, a member of any Loan Party's controlled group
(within the meaning of PBGC regulation ss.4001.2).
"ERISA Event" shall mean (i) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event for
6
which the 30-day notice period is waived); (ii) the existence with respect to
any Plan of an "accumulated funding deficiency" (as defined in Section 412 of
the Code or Section 302 of ERISA), whether or not waived; (iii) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (iv) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(v) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator appointed by the PBGC of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan;
(vi) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (vii) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Borrower or
any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, bears
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of
the maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D. The Eurodollar
Reserve Percentage shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
"Event of Default" shall have the meaning provided in
Article VIII.
"Excluded Taxes" shall mean with respect to the
Administrative Agent, any Lender, the Issuing Bank or any other recipient of
any payment to be made by or on account of any obligation of the Borrower
hereunder, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under the laws
of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which any
Lender is located and (c) in the case of a Foreign Lender, any withholding tax
that (i) is imposed on amounts payable to such Foreign Lender at the time such
Foreign Lender becomes a party to this Agreement, (ii) is imposed on amounts
payable to such Foreign Lender at any time that such Foreign Lender designates
a new lending office, other than taxes that have accrued prior to the
designation of such lending office that are otherwise not Excluded Taxes, and
(iii) is attributable to such Foreign Lender's failure to comply with Section
2.18(e).
7
"Existing Credit Agreement" shall have the meaning provided
in the recitals.
"Existing Lenders" shall mean the lenders party to the
Existing Credit Agreement as of the date hereof.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers,
as published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"Fee Letter" shall mean that certain fee letter, dated as of
March 7, 2006, executed by SunTrust Capital Markets, Inc. and SunTrust Bank and
accepted by Borrower.
"Fiscal Quarter" shall mean any fiscal quarter of the
Borrower.
"Fiscal Year" shall mean any fiscal year of the Borrower.
"Foreign Lender" shall mean any Lender that is not a United
States person under Section 7701(a)(3) of the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is
organized under the laws of a jurisdiction other than one of the fifty states
of the United States or the District of Columbia.
"Fort Union, L.L.C." means Fort Union Gas Gathering, L.L.C.,
a Delaware limited liability company.
"Fort Union Project Finance Documents" means the Construction
and Term Credit Agreement dated as of April 16, 1999 among Fort Union, L.L.C.
as Borrower, Fleet National Bank, as administrative agent and the other lenders
and agents parties thereto, and the other agreements executed as security
therefor or pursuant thereto, as the same may from time to time be amended.
"GAAP" shall mean generally accepted accounting principles in
the United States applied on a consistent basis and subject to the terms of
Section 1.3.
"Governmental Authority" shall mean the government of the
United States of America, any other nation or any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean
any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the "primary obligor") in
8
any manner, whether directly or indirectly and including any obligation, direct
or indirect, of the guarantor (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation or
to purchase (or to advance or supply funds for the purchase of) any security
for the payment thereof, (ii) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (iv) as an account party in respect of any letter of credit or
letter of guaranty issued in support of such Indebtedness or obligation;
provided, that the term "Guarantee" shall not include endorsements for
collection or deposits in the ordinary course of business. The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which Guarantee is made or, if
not so stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith. The term "Guarantee" used as a verb
has a corresponding meaning.
"Guarantor" shall mean Northern Border Intermediate Limited
Partnership, a Delaware limited partnership.
"Guaranty Agreement" shall mean the Amended and Restated
Guaranty Agreement, dated as of the date hereof and substantially in the form
of Exhibit D, made by the Guarantor in favor of the Administrative Agent for
the benefit of the Lenders.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or any fraction or by-product thereof, asbestos
or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature
regulated pursuant to any Environmental Law.
"Hedging Obligations" of any Person shall mean any and all
obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired under (i) any and all
Hedging Transactions, (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Transactions and (iii) any and all
renewals, extensions and modifications of any Hedging Transactions and any and
all substitutions for any Hedging Transactions.
"Hedging Transaction" of any Person shall mean any
transaction (including an agreement with respect thereto) now existing or
hereafter entered into by such Person that is a rate swap, basis swap, forward
rate transaction, commodity swap, interest rate option, foreign exchange
transaction, cap transaction, floor transaction, collateral transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
"Hydrocarbon Interests" means all rights, titles, interests
and estates now owned or hereafter acquired by the Borrower or any of its
Subsidiaries in any and all oil, gas and other
9
liquid or gaseous hydrocarbon properties and interests, including without
limitation, mineral fee or lease interests, production sharing agreements,
concession agreements, license agreements, service agreements, risk service
agreements or similar Hydrocarbon interests granted by an appropriate
Governmental Authority, farmout, overriding royalty and royalty interests, net
profit interests, oil payments, production payment interests and similar
interests in Hydrocarbons, including any reserved or residual interests of
whatever nature.
"Hydrocarbons" means oil, gas, casing head gas, condensate,
distillate, liquid hydrocarbons, gaseous hydrocarbons, all products refined,
separated, settled and dehydrated therefrom, including, without limitation,
kerosene, liquefied petroleum gas, refined lubricating oils, diesel fuel, drip
gasoline, natural gasoline, helium, sulfur and all other minerals.
"Indebtedness" of any Person shall mean, without duplication
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the deferred purchase price
of property or services (other than trade payables incurred in the ordinary
course of business on terms customary in the trade), (iv) all obligations of
such Person under any conditional sale or other title retention agreement(s)
relating to property acquired by such Person, (v) all Capital Lease Obligations
of such Person, (vi) all obligations, contingent or otherwise, of such Person
in respect of letters of credit, acceptances or similar extensions of credit,
(vii) all Guarantees of such Person of the type of Indebtedness described in
clauses (i) through (vi) above, (viii) all Indebtedness of a third party
secured by any Lien granted by such Person on property owned by such Person,
whether or not such Indebtedness has been assumed by such Person, (ix) all
obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, (x)
Off-Balance Sheet Liabilities and (xi) all Hedging Obligations. The
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a joint venturer,
except to the extent that the terms of such Indebtedness provide that such
Person is not liable therefor. Notwithstanding the foregoing, Indebtedness
shall not include indebtedness (which is not assumed or guaranteed by Borrower
or any Subsidiary of Borrower) arising under the Fort Union Project Finance
Documents which is secured by Liens on the limited liability company interests
of Crestone Powder River, L.L.C. in Fort Union, L.L.C., nor indebtedness (which
is not assumed or guaranteed by Borrower or any Subsidiary of Borrower) which
is secured by Liens on the limited liability company interests of Crestone Wind
River, L.L.C. in Lost Creek, L.L.C.
"Indemnified Taxes" shall mean Taxes other than Excluded
Taxes.
"Information Memorandum" shall mean the Confidential
Information Memorandum dated March 2006 relating to the Borrower and the
transactions contemplated by this Agreement and the other Loan Documents.
"Interest Coverage Ratio" shall mean, as of any date, the
ratio of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense, in each
case for the four consecutive Fiscal Quarters ending on or immediately prior to
such date.
10
"Interest Period" shall mean with respect to (i) any
Swingline Borrowing, such period as the Swingline Lender and the Borrower shall
mutually agree and (ii) any Eurodollar Borrowing, a period of one, two, three
or six months; provided, that:
(i) the initial Interest Period for such Borrowing shall commence on
the date of such Borrowing (including the date of any conversion
from a Borrowing of another Type), and each Interest Period
occurring thereafter in respect of such Borrowing shall commence
on the day on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless such Business Day falls in
another calendar month, in which case such Interest Period would
end on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business Day of a
calendar month or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period shall end on the last Business Day of such
calendar month; and
(iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"Intermediate Partnership" shall mean Northern Border
Intermediate Limited Partnership, a Delaware limited partnership.
"Intermediate Partnership Agreement" shall mean that certain
Amended and Restated Agreement of Limited Partnership of Intermediate
Partnership dated as of October 1, 1993, as amended, supplemented, restated or
otherwise modified from time to time.
"Issuing Bank" shall mean SunTrust Bank or any other Lender,
each in its capacity as an issuer of Letters of Credit pursuant to Section
2.20.
"LC Commitment" shall mean that portion of the Aggregate
Revolving Commitment Amount that may be used by the Borrower for the issuance
of Letters of Credit in an aggregate face amount not to exceed $100,000,000.
"LC Disbursement" shall mean a payment made by the Issuing
Bank pursuant to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all
applications, agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the
aggregate undrawn amount of all outstanding Letters of Credit at such time,
plus (ii) the aggregate amount of all LC Disbursements that have not been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Lender shall be its Pro Rata Share of the total LC Exposure at such time.
11
"Lenders" shall have the meaning assigned to such term in the
opening paragraph of this Agreement and shall include, where appropriate, the
Swingline Lender and each Additional Lender that joins this Agreement pursuant
to Section 2.21
"Letter of Credit" shall mean any stand-by letter of credit
issued pursuant to Section 2.20 by the Issuing Bank for the account of the
Borrower pursuant to the LC Commitment.
"Leverage Ratio" shall mean, as of any date, the ratio of (i)
Consolidated Total Debt as of such date to (ii) Adjusted Consolidated EBITDA
for the four consecutive Fiscal Quarters ending on or immediately prior to such
date.
"LIBOR" shall mean, for any applicable Interest Period with
respect to any Eurodollar Loan, the British Bankers' Association Interest
Settlement Rate per annum for deposits in Dollars for a period equal to such
Interest Period appearing on the display designated as Page 3750 on the Dow
▇▇▇▇▇ Markets Service (or such other page on that service or such other service
designated by the British Bankers' 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 the Administrative Agent determines that
the relevant foregoing sources are unavailable for the relevant Interest
Period, LIBOR shall mean the rate of interest determined by the Administrative
Agent to be the average (rounded upward, if necessary, to the nearest 1/100th
of 1%) of the rates per annum at which deposits in Dollars are offered to the
Administrative Agent 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. (New York time) 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 Eurodollar Loan of the Administrative Agent.
"Lien" shall mean (i) any mortgage, deed of trust, deed to
secure debt, pledge, security interest, lien (statutory or otherwise), charge,
claim, easement or encumbrance, hypothecation, assignment, deposit arrangement,
or (ii) any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having the same economic
effect as any of the foregoing).
"Limited Partnership Units" means Common Units and any other
units representing a limited partner's interest in the Borrower.
"Loan Documents" shall mean, collectively, this Agreement,
the Notes (if any), the LC Documents, the Guaranty Agreement, all Notices of
Borrowing, all Notices of Conversion/Continuation, all Compliance Certificates
and any and all other instruments, agreements, documents and writings executed
in connection with any of the foregoing.
"Loan Parties" shall mean the Borrower and the Guarantor.
12
"Loans" shall mean all Revolving Loans and Swingline Loans
in the aggregate or any of them, as the context shall require.
"Lost Creek L.L.C." means Lost Creek Gathering Company,
L.L.C., a Delaware limited liability company.
"Lost Creek Project Finance Documents" means the Construction
and Term Credit Agreement dated as of September 24, 1999 among Lost Creek,
L.L.C. as Borrower, Barclays Bank PLC, as administrative agent and the other
lenders party thereto and the other agreements executed as security therefor or
pursuant thereto, as the same may from time to time be amended.
"Material Adverse Effect" 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 singularly 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 or of the Borrower and its Subsidiaries taken as a
whole, (ii) the ability of the Loan Parties to perform any of their respective
obligations under the Loan Documents, (iii) the rights and remedies of the
Administrative Agent, the Issuing Bank, Swingline Lender, and the Lenders under
any of the Loan Documents evidencing, governing or securing the Obligations or
(iv) the legality, validity or enforceability of any of the Loan Documents
evidencing, governing or securing the Obligations.
"Material Indebtedness" shall mean Indebtedness (other than
the Loans and Letters of Credit) and Hedging Obligations of the Borrower or any
of its Subsidiaries, individually or in an aggregate principal amount,
exceeding (i) prior to consummation of the OKE Acquisition, $15,000,000, and
(ii) after consummation of the OKE Acquisition, $50,000,000. For purposes of
determining the amount of attributed Indebtedness from Hedging Obligations, the
"principal amount" of any Hedging Obligations at any time shall be the Net
▇▇▇▇-to-Market Exposure of such Hedging Obligations.
"Material Project" shall mean each new pipeline, storage
facility, processing plant or other capital expansion project wholly owned by
the Borrower or its Subsidiaries, the construction of which commenced after the
Restatement Date and which has a budgeted capital cost exceeding $25,000,000.
"Material Project EBITDA Adjustments" shall mean, with
respect to each Material Project, (A) prior to completion of the Material
Project, a percentage (based on the then-current completion percentage of the
Material Project) of an amount to be approved by the Required Lenders as the
projected Consolidated EBITDA attributable to such Material Project (such
amount to be determined based on contracts relating to such Material Project,
the creditworthiness of the other parties to such contracts and projected
revenues from such contracts, capital costs and expenses, scheduled completion,
and other factors deemed appropriate by the Lenders) shall be added to actual
Consolidated EBITDA for the Borrower and its Subsidiaries for the fiscal
quarter in which construction of such Material Project commences
13
and for each fiscal quarter thereafter until completion of the Material Project
(net of any actual Consolidated EBITDA attributable to such Material Project
following its completion), provided that if construction of the Material
Project is not completed by the scheduled completion date, then the foregoing
amount shall be reduced by the following percentage amounts depending on the
period of delay for completion (based on the period of actual delay or
then-estimated delay, whichever is longer): (i) longer than 90 days, but not
more than 180 days, 25%, (ii) longer than 180 days but not more than 270 days,
50%, and (iii) longer than 270 days, 100%; and (B) beginning with the first
full fiscal quarter following completion of the Material Project and for the
two immediately succeeding fiscal quarters, an amount equal to the projected
Consolidated EBITDA attributable to the Material Project for the balance of the
four full fiscal quarter period following completion shall be added to the
actual Consolidated EBITDA attributable to the Material Project for such fiscal
quarter or quarters, for determining Consolidated EBITDA for the fiscal quarter
then ending and the immediately preceding three fiscal quarters.
Notwithstanding the foregoing, (i) no such additions shall be allowed with
respect to any Material Project unless not later than 45 days prior to
commencement of construction thereof, the Borrower shall have delivered to the
Administrative Agent and the Lenders written pro forma projections of
Consolidated EBITDA attributable to such Material Project and such other
information and documentation as the Administrative Agent or any Lender may
reasonably request, all in form and substance satisfactory to the
Administrative Agent and the Required Lenders, and (ii) the aggregate amount of
all Material Project EBITDA Adjustments during any period shall be limited to
20% of the total actual Consolidated EBITDA of the Borrower and its
Subsidiaries for such period (which total actual Consolidated EBITDA shall be
determined without including any Material Project EBITDA Adjustments or any
adjustments in respect of any Acquisitions or Dispositions as provided in the
definition of Consolidated EBITDA).
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NBPC Sale" shall mean the sale by the Guarantor to TCPILP of
20% of the partnership interests of Pipeline for a cash purchase price of
approximately $300,000,000 (subject to adjustment as provided in Section 3.2 of
the Partnership Interest Purchase and Sale Agreement referenced in the
definition of NBPC Sale Documents) pursuant to the NBPC Sale Documents, the
proceeds of which sale are to be used by the Borrower to fund a portion of the
consideration for the OKE Acquisition and related transaction costs and fees.
"NBPC Sale Documents" shall mean, collectively, the
Partnership Interest Purchase and Sale Agreement between the Intermediate
Partnership and TCPILP dated as of December 31, 2005, and the other
"Transaction Documents" as defined therein, in each case with all exhibits,
schedules and supplements thereto.
"Net ▇▇▇▇-to-Market Exposure" of any Person shall mean, as of
any date of determination with respect to any Hedging Obligation, the excess
(if any) of all unrealized losses over all unrealized profits of such Person
arising from such Hedging Obligation. "Unrealized losses" shall mean the fair
market value of the cost to such Person of replacing the Hedging Transaction
giving rise to such Hedging Obligation as of the date of determination
(assuming the
14
Hedging Transaction were to be terminated as of that date), and
"unrealized profits" means the fair market value of the gain to such Person of
replacing such Hedging Transaction as of the date of determination (assuming
such Hedging Transaction were to be terminated as of that date).
"Notes" shall mean, collectively, the Revolving Credit Notes
and the Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices
of Revolving Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice
given by the Borrower to the Administrative Agent in respect of the conversion
or continuation of an outstanding Borrowing as provided in Section 2.6(b).
"Notice of Revolving Borrowing" shall have the meaning as set
forth in Section 2.3.
"Notice of Swingline Borrowing" shall have the meaning as set
forth in Section 2.4.
"Obligations" shall mean all amounts owing by the Borrower to
the Administrative Agent, the Issuing Bank or any Lender (including the
Swingline Lender) pursuant to or in connection with this Agreement or any other
Loan Document, including without limitation, all principal, interest (including
any 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), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
fees and expenses of counsel to the Administrative Agent, the Issuing Bank and
any Lender (including the Swingline Lender) incurred pursuant to this Agreement
or any other Loan Document), whether direct or indirect, absolute or
contingent, liquidated or unliquidated, now existing or hereafter arising
hereunder or thereunder, and all Hedging Obligations owed to the Administrative
Agent, any Lender or any of their Affiliates incurred in order to limit
interest rate or fee fluctuation with respect to the Loans and Letters of
Credit, and all obligations and liabilities incurred in connection with
collecting and enforcing the foregoing, together with all renewals, extensions,
modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i)
any repurchase obligation or liability of such Person with respect to accounts
or notes receivable sold by such Person, (ii) any liability of such Person
under any sale and leaseback transactions that do not create a liability on the
balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the balance sheet of such Person.
"Oil and Gas Agreements" means operating agreements,
processing agreements, farm-out and farm-in agreements, development agreements,
area of mutual interest agreements, contracts for the gathering and/or
transportation of oil and natural gas, unitization agreements,
15
pooling arrangements, joint bidding agreements, joint venture agreements,
participation agreements, surface use agreements, service contracts, leases and
subleases of Oil and Gas Properties or other similar agreements which are
customary in the oil and gas business, howsoever designated, in each case made
or entered into in the ordinary course of the oil and gas business as conducted
by the Borrower and its Subsidiaries.
"Oil and Gas Properties" means (a) Hydrocarbon Interests; (b)
the property now or hereafter pooled or unitized with Hydrocarbon Interests;
(c) all presently existing or future unitization, pooling agreements and
declarations of pooled units and the units created thereby (including, without
limitation, all units created under orders, regulations and rules of any
Governmental Authority) which may affect all or any portion of the Hydrocarbon
Interests; (d) all operating agreements, contracts and other agreements which
relate to any of the Hydrocarbon Interests or the production, sale, purchase,
exchange or processing of Hydrocarbons from or attributable to such Hydrocarbon
Interest; (e) all Hydrocarbons in and under and which may be produced and saved
or attributable to the Hydrocarbon Interests, the lands covered thereby and all
oil in tanks and all rents, issues, profits, proceeds, products, revenues and
other income from or attributable to the Hydrocarbon Interests; and (f) all
tenements, hereditaments, appurtenances and property in any manner
appertaining, belonging, affixed or incidental to the Hydrocarbon Interests,
and any and all property, now owned or hereafter acquired and situated upon,
used, held for use or useful in connection with the operating, working or
development of any of such Hydrocarbon Interests or property (excluding
drilling rigs, automotive equipment or other personal property which may be on
such premises for the purpose of drilling a well or for other similar temporary
uses) and including any and all oil ▇▇▇▇▇, gas ▇▇▇▇▇, injection ▇▇▇▇▇ or other
▇▇▇▇▇, buildings, structures, fuel separators, liquid extraction plants, plant
compressors, pumps, pumping units, field gathering systems, tanks and tank
batteries, fixtures, valves, fittings, machinery and parts, engines, boilers,
meters, apparatus, equipment, appliances, tools, implements, cables, wires,
towers, casing, tubing and rods, surface leases, rights-of-way, easements and
servitudes together with all additions, substitutions, replacements, accessions
and attachments to any and all of the foregoing.
"OKE" shall mean ONEOK, Inc., an Oklahoma corporation.
"OKE Acquisition" shall mean the acquisition by the Borrower
from OKE of its gathering and processing, pipelines and storage, and natural
gas liquids businesses for consideration in an aggregate amount of (i)
$1,350,000,000 in cash (subject to adjustments as provided in Section 1.4 of
the Purchase and Sale Agreement referenced in the definition of OKE Acquisition
Documents), and (ii) 36,494,126 Class B limited partnership units of the
Borrower, pursuant to the OKE Acquisition Documents.
"OKE Acquisition Documents" shall mean, collectively, the
Contribution Agreement among OKE, the Borrower, and the Intermediate
Partnership dated as of February 14, 2006, together with the "Services
Agreement" as defined therein, and the Purchase and Sale Agreement between OKE
and the Borrower dated as of February 14, 2006, together with the "Services
Agreement" as defined therein, in each case with all exhibits, schedules and
supplements thereto.
"Original Closing Date" shall mean May 16, 2005.
16
"OSHA" shall mean the Occupational Safety and Health Act of
1970, as amended from time to time, and any successor statute.
"Other Taxes" shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant" shall have the meaning set forth in Section
10.4(d).
"Payment Office" shall mean the office of the Administrative
Agent located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other location as to which the Administrative Agent shall have given written
notice to the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, and any successor entity performing similar
functions.
"Permitted Encumbrances" shall mean:
(i) Liens imposed by law for taxes, assessments or other
governmental charges or levies not yet due or which are being
contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in
accordance with GAAP;
(ii) Liens of landlords, carriers, operators, warehousemen,
mechanics, and materialmen, statutory Liens of producers of
hydrocarbons, and similar Liens arising by operation of law, in
each case incurred in the ordinary course of business for
amounts not yet due or which are being contested in good faith
by appropriate proceedings and with respect to which adequate
reserves are being maintained to the extent such amounts exceed
$500,000;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance,
other social security laws or regulations or other forms of
governmental insurance or benefits;
(iv) deposits to secure the performance of tenders, bids, contracts
(other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations
of a like nature, in each case entered into in the ordinary
course of business or to secure obligations on surety or appeal
bonds;
(v) judgment and attachment liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or
legal proceeding that are currently being contested in good
faith by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with GAAP;
(vi) title defects, easements, zoning restrictions, rights-of-way,
land use and environmental regulations, and similar encumbrances
on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations
and
17
do not materially detract from the value of the affected
property or materially interfere with the ordinary conduct of
business of the Borrower and its Subsidiaries taken as a whole;
and
(vii) Liens securing obligations of others, neither assumed nor
guaranteed by any Loan Party nor on which it customarily pays
interest, existing upon real estate or rights in or relating to
real estate acquired by such Person for substation, metering
station, compression station, gathering line, transmission line,
transportation line, distribution line or right of way purposes,
and any Liens reserved in leases for rent and for compliance
with the terms of the leases in the case of leasehold estates,
to the extent that any such Lien referred to in this clause
(vii) does not materially impair the use of the property.
provided, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United
States (or by any agency thereof to the extent such obligations are
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) commercial paper and auction rate securities having the
highest rating, at the time of acquisition thereof, of S&P or ▇▇▇▇▇'▇
and in either case maturing or having an auction date within six
months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States or any state
thereof which has a combined capital and surplus and undivided profits
of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term
of not more than 30 days for securities described in clause (i) above
and entered into with a financial institution satisfying the criteria
described in clause (iii) above; and
(v) mutual funds investing solely in any one or more of
the Permitted Investments described in clauses (i) through (iv)
above.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability company, trust or
other entity, or any Governmental Authority.
"Pipeline" means Northern Border Pipeline Company, a Texas
general partnership.
"Pipeline Credit Agreement" means that certain Revolving
Credit Agreement, dated as of the date hereof, among Pipeline, Wachovia Bank,
National Association, as administrative agent, and the lenders defined therein,
as in effect on the Restatement Date.
18
"Pipeline Leverage Ratio" means the ratio calculated in
accordance with Section 6.1 of the Pipeline Credit Agreement, as in effect on
the date of this Agreement, without regard to whether said credit agreement is
amended or ceases to be in effect after the date hereof.
"Pipeline Partnership Agreement" means that certain General
Partnership Agreement relating to the formation of Pipeline effective as of
March 9, 1978, as amended, supplemented, restated or otherwise modified from
time to time.
"Plan" shall mean any employee pension benefit plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pro Rata Share" shall mean with respect to any Commitment of
any Lender at any time, a percentage, the numerator of which shall be such
Lender's Commitment (or if such Commitments have been terminated or expired or
the Loans have been declared to be due and payable, such Lender's Revolving
Credit Exposure), and the denominator of which shall be the sum of such
Commitments of all Lenders (or if such Commitments have been terminated or
expired or the Loans have been declared to be due and payable, all Revolving
Credit Exposure of all Lenders).
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time, and any successor regulations.
"Related Parties" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding
more than 50% of the aggregate outstanding Revolving Commitments at such time
or if the Lenders have no Commitments outstanding, then Lenders holding more
than 50% of the Revolving Credit Exposure.
"Requirement of Law" for any Person shall mean the articles
or certificate of incorporation, bylaws, partnership certificate and agreement,
or limited liability company certificate of organization and agreement, as the
case may be, and other organizational and governing documents of such Person,
and any law, treaty, rule or regulation, or determination of a 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.
19
"Responsible Officer" shall mean any of the president, the
chief executive officer, the chief operating officer, the chief financial
officer, the treasurer or a vice president of the Borrower or such other
representative of the Borrower as may be designated in writing by any one of
the foregoing with the consent of the Administrative Agent, and, with respect
to the financial covenants only, the chief executive officer, chief financial
officer or treasurer of the Borrower.
"Restatement Date" shall mean the date on which the
conditions precedent set forth in Section 3.1 and Section 3.2 have been
satisfied or waived in accordance with Section 10.2.
"Restricted Payment" shall have the meaning set forth in
Section 7.5.
"Revolving Commitment" shall mean, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the Borrower
and to participate in Letters of Credit and Swingline Loans in an aggregate
principal amount not exceeding the amount set forth with respect to such Lender
on Schedule II, as such schedule may be amended pursuant to Section 2.21, or in
the case of a Person becoming a Lender after the Restatement Date through an
assignment of an existing Revolving Commitment, the amount of the assigned
"Revolving Commitment" as provided in the Assignment and Acceptance executed by
such Person as an assignee, as the same may be increased or deceased pursuant
to terms hereof.
"Revolving Commitment Termination Date" shall mean the
earliest of (i) ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) the date on which the Revolving
Commitments are terminated pursuant to Section 2.7 and (iii) the date on which
all amounts outstanding under this Agreement have been declared or have
automatically become due and payable (whether by acceleration or otherwise).
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the sum of the outstanding principal amount of such
Lender's Revolving Loans, LC Exposure and Swingline Exposure.
"Revolving Credit Note" shall mean a promissory note of the
Borrower payable to the order of a requesting Lender in the principal amount of
such Lender's Revolving Commitment, in substantially the form of Exhibit A.
"Revolving Loan" shall mean a loan made by a Lender (other
than the Swingline Lender) to the Borrower under its Revolving Commitment,
which may either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's, a Division of the
▇▇▇▇▇▇-▇▇▇▇ Companies.
"Senior Note Indentures" means the 2010 Senior Note Indenture
and/or the 2011 Senior Note Indenture, as the case may be.
"Senior Notes" means the 2010 Senior Notes and/or the 2011
Senior Notes, as the case may be.
20
"Subsidiary" shall mean, with respect to any Person (the
"parent"), any corporation, partnership, joint venture, limited liability
company, association or other entity the accounts of which would be
consolidated with those of the parent in the parent's consolidated financial
statements if such financial statements were prepared in accordance with GAAP
as of such date, as well as any other corporation, partnership, joint venture,
limited liability company, association or other entity of which securities or
other ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power, or in the case of a partnership, more than
50% of the general partnership interests are, as of such date, owned,
controlled or held. Unless otherwise indicated, all references to "Subsidiary"
hereunder shall mean a Subsidiary of the Borrower.
"Swingline Commitment" shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate principal amount at
any time outstanding not to exceed $15,000,000.
"Swingline Exposure" shall mean, with respect to each Lender,
the principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.4, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank, or any other
Lender that may agree to make Swingline Loans hereunder.
"Swingline Loan" shall mean a loan made to the Borrower by
the Swingline Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the
Borrower payable to the order of the Swingline Lender in the principal amount
of the Swingline Commitment, substantially the form of Exhibit B.
"Syndication Agent" shall mean Wachovia Bank, National
Association, as Syndication Agent.
"Synthetic Lease" shall mean a lease transaction under which
the parties intend that (i) the lease will be treated as an "operating lease"
by the lessee pursuant to Statement of Financial Accounting Standards No. 13,
as amended and (ii) the lessee will be entitled to various tax and other
benefits ordinarily available to owners (as opposed to lessees) of like
property.
"Synthetic Lease Obligations" shall mean, with respect to any
Person, the sum of (i) all remaining rental obligations of such Person as
lessee under Synthetic Leases which are attributable to principal and, without
duplication, (ii) all rental and purchase price payment obligations of such
Person under such Synthetic Leases assuming such Person exercises the option to
purchase the lease property at the end of the lease term.
"2010 Senior Notes" means the unsecured 8-7/8% notes dated as
of June 2, 2000 issued by the Borrower in an aggregate principal amount of
$250,000,000 with a maturity date of June 15, 2010.
21
"2010 Senior Note Indenture" means the indenture authorizing
the issuance of the 2010 Senior Notes.
"2011 Senior Notes" means the 7.10% unsecured notes dated as
of March 21, 2001 issued by the Borrower in an aggregate principal amount of
$225,000,000 with a maturity date of March 15, 2011.
"2011 Senior Note Indenture" means the indenture authorizing
the issuance of the 2011 Senior Notes.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"TCPILP" means TC PipeLines Intermediate Limited Partnership,
a Delaware limited partnership.
"Threshold Amount" means (i) prior to consummation of the OKE
Acquisition, $15,000,000, and (ii) after consummation of the OKE Acquisition,
$50,000,000.
"Type", when used in reference to a Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"Viking" means Viking Gas Transmission Company, a Delaware
corporation.
"Viking Guaranty" means that certain guaranty agreement,
dated as of December 22, 2004, executed by Borrower and the Intermediate
Partnership for the benefit of Viking in connection with the obligations of
Viking under the Viking Indenture and the notes issued pursuant thereto.
"Viking Indenture" means that certain Indenture, Assignment
and Security Agreement, dated as of November 1, 1993, between Viking as Issuer
and Norwest Bank Minnesota, National Association as Trustee, as amended by
Supplemental Indenture No. 1, dated as of November 1, 1996, as amended by
Supplemental Indenture No. 2, dated as of December 20, 1996, as amended by
Supplemental Indenture No. 3, dated as of October 15, 1997, as amended by
Supplemental Indenture No. 4, dated as of October 27, 1999, as amended by
Supplemental Indenture No. 5, dated as of December 20, 2002, as amended and
restated by Supplemental Indenture No. 6, dated as of December 22, 2004 and as
further amended from time to time, provided that the effect of such amendment
shall not be to (a) increase the principal amount of, or the rate of interest
on, Indebtedness authorized thereunder; (b) change the dates upon which
payments of principal or interest are due on any Indebtedness authorized
thereunder other than to postpone such dates; (c) change or add any covenant,
default or event of default therein, other than to make any such covenant,
default or event of default provision less restrictive; (d) change the
redemption or prepayment provisions relating to Indebtedness authorized
thereunder, other than to waive such provisions or to reduce the amounts
payable thereunder; (e) grant any additional security or collateral to secure
payment of Indebtedness authorized thereunder; or (f) change or amend any other
term if such change or amendment
22
would materially increase the obligations of Viking thereunder or confer
additional material rights on the holder of any Indebtedness issued thereunder
in a manner adverse to Lenders.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title
IV of ERISA.
SECTION 1.2. CLASSIFICATIONS OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g. a "Revolving Loan" or "Swingline Loan") or by Type (e.g. a "Eurodollar
Loan" or "Base Rate Loan") or by Class and Type (e.g. "Revolving Eurodollar
Loan"). Borrowings also may be classified and referred to by Class (e.g.
"Revolving Borrowing") or by Type (e.g. "Eurodollar Borrowing") or by Class and
Type (e.g. " Revolving Eurodollar Borrowing").
SECTION 1.3. ACCOUNTING TERMS AND DETERMINATION. Unless
otherwise defined or specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent with the most recent audited consolidated financial statement of the
Borrower delivered pursuant to Section 5.1(a); provided, that if the Borrower
notifies the Administrative Agent that the Borrower wishes to amend any
covenant in Article VI to eliminate the effect of any change in GAAP on the
operation of such covenant (or if the Administrative Agent notifies the
Borrower that the Required Lenders wish to amend Article VI for such purpose),
then the Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Required Lenders.
SECTION 1.4. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the word
"to" means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as it was originally executed or as it may from time to time be
amended, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to include
such Person's successors and permitted assigns, (iii) the words "hereof",
"herein" and "hereunder" and words of similar import shall be construed to
refer to this Agreement as a whole and not to any particular provision hereof,
(iv) all references to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles, Sections, Exhibits and Schedules to this
Agreement and (v) all references to a specific time shall be construed to refer
to the time in the city and state of the Administrative Agent's principal
office, unless otherwise indicated.
23
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
SECTION 2.1. GENERAL DESCRIPTION OF FACILITIES. Subject to
and upon the terms and conditions herein set forth, (i) the Lenders hereby
establish in favor of the Borrower a revolving credit facility pursuant to
which each Lender severally agrees (to the extent of such Lender's Revolving
Commitment) to make Revolving Loans to the Borrower in accordance with Section
2.2, (ii) the Issuing Bank agrees to issue Letters of Credit in accordance with
Section 2.20, (iii) the Swingline Lender agrees to make Swingline Loans in
accordance with Section 2.4 and (iv) each Lender agrees to purchase a
participation interest in the Letters of Credit and the Swingline Loans
pursuant to the terms and conditions hereof; provided, that in no event shall
the aggregate principal amount of all outstanding Revolving Loans, Swingline
Loans and outstanding LC Exposure exceed at any time the Aggregate Revolving
Commitment Amount from time to time in effect.
SECTION 2.2. REVOLVING LOANS. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make Revolving
Loans, ratably in proportion to its Pro Rata Share, to the Borrower, from time
to time during the Availability Period, in an aggregate principal amount
outstanding at any time that will not result in such Lender's Revolving Credit
Exposure exceeding such Lender's Revolving Commitment. During the Availability
Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving
Loans in accordance with the terms and conditions of this Agreement; provided,
that the Borrower may not borrow or reborrow should there exist a Default or
Event of Default.
SECTION 2.3. PROCEDURE FOR REVOLVING BORROWINGS.
The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each Revolving
Borrowing substantially in the form of Exhibit 2.3 (a "Notice of Revolving
Borrowing") (x) prior to 11:00 a.m. (New York time) on the requested date of
each Base Rate Borrowing and (y) prior to 11:00 a.m. (New York time) three (3)
Business Days prior to the requested date of each Eurodollar Borrowing. Each
Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the
aggregate principal amount of such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (iii) the Type of such Revolving Loan
comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing, the
duration of the initial Interest Period applicable thereto (subject to the
provisions of the definition of Interest Period). Each Revolving Borrowing
shall consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower
may request. The aggregate principal amount of each Borrowing shall be not less
than $5,000,000 or a larger multiple of $1,000,000; provided, that Base Rate
Loans made pursuant to Section 2.4 or Section 2.20(d) may be made in lesser
amounts as provided therein. At no time shall the total number of Eurodollar
Borrowings outstanding at any time exceed five. Promptly following the receipt
of a Notice of Revolving Borrowing in accordance herewith, the Administrative
Agent shall advise each Lender of the details thereof and the amount of such
Lender's Revolving Loan to be made as part of the requested Revolving
Borrowing.
24
SECTION 2.4. SWINGLINE COMMITMENT.
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower, from time to
time during the Availability Period, in an aggregate principal amount
outstanding at any time not to exceed the lesser of (i) the Swingline
Commitment then in effect and (ii) the difference between the Aggregate
Revolving Commitment Amount and the aggregate Revolving Credit Exposures of all
Lenders; provided, that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. The Borrower shall
be entitled to borrow, repay and reborrow Swingline Loans in accordance with
the terms and conditions of this Agreement.
(b) The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each Swingline
Borrowing substantially in the form of Exhibit 2.4 attached hereto ("Notice of
Swingline Borrowing") prior to 11:00 a.m. (New York time) on the requested date
of each Swingline Borrowing. Each Notice of Swingline Borrowing shall be
irrevocable and shall specify: (i) the principal amount of such Swingline Loan,
(ii) the date of such Swingline Loan (which shall be a Business Day) and (iii)
the account of the Borrower to which the proceeds of such Swingline Loan should
be credited. The Administrative Agent will promptly advise the Swingline Lender
of each Notice of Swingline Borrowing. Each Swingline Loan shall accrue
interest at the Base Rate or any other interest rate as agreed between the
Borrower and the Swingline Lender and shall have an Interest Period (subject to
the definition thereof) as agreed between the Borrower and the Swingline
Lender. The aggregate principal amount of each Swingline Loan shall be not less
than $100,000 or a larger multiple of $50,000, or such other minimum amounts
agreed to by the Swingline Lender and the Borrower. The Swingline Lender will
make the proceeds of each Swingline Loan available to the Borrower in Dollars
in immediately available funds at the account specified by the Borrower in the
applicable Notice of Swingline Borrowing not later than 1:00 p.m. (New York
time) on the requested date of such Swingline Loan.
(c) The Swingline Lender, at any time and from time to time
in its sole discretion, may, on behalf of the Borrower (which hereby
irrevocably authorizes and directs the Swingline Lender to act on its behalf),
give a Notice of Revolving Borrowing to the Administrative Agent requesting the
Lenders (including the Swingline Lender) to make Base Rate Loans in an amount
equal to the unpaid principal amount of any Swingline Loan. Each Lender will
make the proceeds of its Base Rate Loan included in such Borrowing available to
the Administrative Agent for the account of the Swingline Lender in accordance
with Section 2.5, which will be used solely for the repayment of such Swingline
Loan.
(d) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date
that such Base Rate Borrowing should have occurred. On the date of such
required purchase, each Lender shall promptly transfer, in immediately
available funds, the amount of its participating interest to the Administrative
Agent for the account of the Swingline Lender. If such Swingline Loan bears
interest at a rate other than the Base Rate, such Swingline Loan shall
25
automatically become a Base Rate Loan on the effective date of any such
participation and interest shall become payable on demand.
(e) Each Lender's obligation to make a Base Rate Loan
pursuant to Section 2.4(c) or to purchase the participating interests pursuant
to Section 2.4(d) shall be absolute and unconditional and shall not be affected
by any circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may
have or claim against the Swingline Lender, the Borrower or any other Person
for any reason whatsoever, (ii) the existence of a Default or an Event of
Default or the termination of any Lender's Revolving Commitment, (iii) the
existence (or alleged existence) of any event or condition which has had or
could reasonably be expected to have a Material Adverse Effect, (iv) any breach
of this Agreement or any other Loan Document by the Borrower, the
Administrative Agent or any Lender or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. If such
amount is not in fact made available to the Swingline Lender by any Lender, the
Swingline Lender shall be entitled to recover such amount on demand from such
Lender, together with accrued interest thereon for each day from the date of
demand thereof (i) at the Federal Funds Rate until the second Business Day
after such demand and (ii) at the Base Rate at all times thereafter. Until such
time as such Lender makes its required payment, the Swingline Lender shall be
deemed to continue to have outstanding Swingline Loans in the amount of the
unpaid participation for all purposes of the Loan Documents. In addition, such
Lender shall be deemed to have assigned any and all payments made of principal
and interest on its Loans and any other amounts due to it hereunder, to the
Swingline Lender to fund the amount of such Lender's participation interest in
such Swingline Loans that such Lender failed to fund pursuant to this Section
2.4, until such amount has been purchased in full.
SECTION 2.5. FUNDING OF BORROWINGS.
(a) Each Lender will make available each Loan to be made by
it hereunder on the proposed date thereof by wire transfer in immediately
available funds by 1:00 p.m. (New York time) to the Administrative Agent at the
Payment Office; provided, that the Swingline Loans will be made as set forth in
Section 2.4. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts that it receives, in like funds by
the close of business on such proposed date, to an account maintained by the
Borrower with the Administrative Agent or at the Borrower's option, by
effecting a wire transfer of such amounts to an account designated by the
Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified
by any Lender (x) prior to 12:00 p.m. (New York time) on the requested date of
a Base Rate Borrowing and (y) prior to 5:00 p.m. (New York time) one (1)
Business Day prior to the date of a Eurodollar Borrowing in which such Lender
is to participate that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date, and the Administrative Agent, in reliance on
such assumption, may make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate until the second Business Day after
26
such demand and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent
together with interest at the rate specified for such Borrowing. Nothing in
this subsection shall be deemed to relieve any Lender from its obligation to
fund its Pro Rata Share of any Borrowing hereunder or to prejudice any rights
which the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on
the basis of their respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans
hereunder.
SECTION 2.6. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified
in the applicable Notice of Borrowing, and in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such Notice of
Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a
different Type or to continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section
2.6. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing. This Section shall NOT apply to Swingline Borrowings, which may not
be converted or continued.
(b) To make an election pursuant to this Section 2.6, the
Borrower shall give the Administrative Agent prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing
substantially in the form of Exhibit 2.6 attached hereto (a "Notice of
Conversion/Continuation") that is to be converted or continued, as the case may
be, (x) prior to 11:00 a.m. (New York time) on the requested date of a
conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m. (New York
time) three (3) Business Days prior to a continuation of or conversion into a
Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify (i) the Borrowing to which such Notice of
Continuation/Conversion applies and if different options are being elected with
respect to different portions thereof, the portions thereof that are to be
allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) shall be specified for each
resulting Borrowing); (ii) the effective date of the election made pursuant to
such Notice of Continuation/Conversion, which shall be a Business Day, (iii)
whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and (iv) if the resulting Borrowing is to be a Eurodollar Borrowing,
the Interest Period applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of "Interest Period". If
any such Notice of Continuation/Conversion requests a Eurodollar Borrowing but
does not specify an Interest Period, the Borrower shall be deemed to have
selected an Interest Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar Borrowings
and Base Rate Borrowings set forth in Section 2.3.
27
(c) If, on the expiration of any Interest Period in respect
of any Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice
of Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as,
a Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation,
the Administrative Agent shall promptly notify each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
SECTION 2.7. OPTIONAL REDUCTION AND TERMINATION OF
COMMITMENTS.
(a) Unless previously terminated, all Revolving Commitments,
Swingline Commitments and LC Commitments shall terminate on the Revolving
Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the Borrower may
reduce the Aggregate Revolving Commitments in part or terminate the Aggregate
Revolving Commitments in whole; provided, that (i) any partial reduction shall
apply to reduce proportionately and permanently the Revolving Commitment of
each Lender, (ii) any partial reduction pursuant to this Section 2.7 shall be
in an amount of at least $5,000,000 and any larger multiple of $1,000,000, and
(iii) no such reduction shall be permitted which would reduce the Aggregate
Revolving Commitment Amount to an amount less than the outstanding Revolving
Credit Exposures of all Lenders. Any such reduction in the Aggregate Revolving
Commitment Amount below the sum of the principal amount of the Swingline
Commitment and the LC Commitment shall result in a proportionate reduction
(rounded to the next lowest integral multiple of $100,000) in the Swingline
Commitment and the LC Commitment.
SECTION 2.8. REPAYMENT OF LOANS.
(a) The outstanding principal amount of all Revolving Loans
shall be due and payable (together with accrued and unpaid interest thereon) on
the Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be
due and payable (together with accrued and unpaid interest thereon) on the
earlier of (i) the last day of the Interest Period applicable to such Borrowing
and (ii) the Revolving Commitment Termination Date.
SECTION 2.9. EVIDENCE OF INDEBTEDNESS.
(a) Each Lender shall maintain in accordance with its usual
practice appropriate records evidencing the Indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable thereon and paid to
such Lender from
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time to time under this Agreement. The Administrative Agent shall maintain
appropriate records in which shall be recorded (i) the Revolving Commitment of
each Lender, (ii) the amount of each Loan made hereunder by each Lender, the
Class and Type thereof and the Interest Period applicable thereto, (iii) the
date of each continuation thereof pursuant to Section 2.6, (iv) the date of
each conversion of all or a portion thereof to another Type pursuant to Section
2.6, (v) the date and amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender hereunder in respect of
such Loans and (vi) both the date and amount of any sum received by the
Administrative Agent hereunder from the Borrower in respect of the Loans and
each Lender's Pro Rata Share thereof. The entries made in such records shall be
prima facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, that the failure or delay of any Lender or
the Administrative Agent in maintaining or making entries into any such record
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans (both principal and unpaid accrued interest) of
such Lender in accordance with the terms of this Agreement.
(b) At the request of any Lender (including the Swingline
Lender) at any time, the Borrower agrees that it will execute and deliver to
such Lender a Revolving Credit Note and, in the case of the Swingline Lender
only, a Swingline Note, payable to the order of such Lender.
SECTION 2.10. PREPAYMENTS.
(a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing, in whole or in part, without premium or
penalty, by giving irrevocable written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent no later than (i) in the case
of prepayment of any Eurodollar Borrowing, 11:00 a.m. (New York time) not less
than three (3) Business Days prior to any such prepayment, (ii) in the case of
any prepayment of any Base Rate Borrowing, not less than one Business Day prior
to the date of such prepayment, and (iii) in the case of Swingline Borrowings,
prior to 11:00 a.m. (New York time) on the date of such prepayment. Each such
notice shall be irrevocable and shall specify the proposed date of such
prepayment and the principal amount of each Borrowing or portion thereof to be
prepaid. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each affected Lender of the contents thereof and of such
Lender's Pro Rata Share of any such prepayment. If such notice is given, the
aggregate amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date on the
amount so prepaid in accordance with Section 2.11(d); provided, that if a
Eurodollar Borrowing is prepaid on a date other than the last day of an
Interest Period applicable thereto, the Borrower shall also pay all amounts
required pursuant to Section 2.17. Each partial prepayment of any Loan (other
than a Swingline Loan) shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type pursuant to
Section 2.2 or in the case of a Swingline Loan pursuant to Section 2.4. Each
prepayment of a Borrowing shall be applied ratably to the Loans comprising such
Borrowing.
(b) If at any time the Revolving Credit Exposure of all
Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant
to Section 2.7 or otherwise, the Borrower shall immediately repay Swingline
Loans and Revolving Loans in an amount equal to such excess, together with all
accrued and unpaid interest on such excess amount and any amounts due under
Section 2.17. Each prepayment shall be applied first to the Swingline Loans
29
to the full extent thereof, second to the Base Rate Loans to the full extent
thereof, and finally to Eurodollar Loans to the full extent thereof. If after
giving effect to prepayment of all Swingline Loans and Revolving Loans, the
Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving
Commitment Amount, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Issuing Bank and the Lenders, an amount in cash equal to such
excess plus any accrued and unpaid fees thereon to be held as collateral for
the LC Exposure. Such account shall be administered in accordance with Section
2.20(g) hereof.
SECTION 2.11. INTEREST ON LOANS.
(a) The Borrower shall pay interest on each Base Rate Loan at
the Base Rate in effect from time to time and on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan,
plus, in each case, the Applicable Margin in effect from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at the rate
applicable to such Loan pursuant to Section 2.4(b).
(c) While an Event of Default exists or after acceleration,
at the option of the Required Lenders, the Borrower shall pay interest
("Default Interest") with respect to all Eurodollar Loans at the rate otherwise
applicable for the then-current Interest Period plus an additional 2% per annum
until the last day of such Interest Period, and thereafter, and with respect to
all Base Rate Loans (including all Swingline Loans) and all other Obligations
hereunder (other than Loans), at an all-in rate in effect for Base Rate Loans,
plus an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall
accrue from and including the date such Loans are made to but excluding the
date of any repayment thereof. Interest on all outstanding Base Rate Loans
shall be payable quarterly in arrears on the last day of each March, June,
September and December and on the Revolving Commitment Termination Date.
Interest on all outstanding Eurodollar Loans shall be payable on the last day
of each Interest Period applicable thereto, and, in the case of any Eurodollar
Loans having an Interest Period in excess of three months or 90 days,
respectively, on each day which occurs every three months or 90 days, as the
case may be, after the initial date of such Interest Period, and on the
Revolving Commitment Termination Date. Interest on each Swingline Loan shall be
payable on the maturity date of such Loan, which shall be the last day of the
Interest Period applicable thereto, and on the Revolving Commitment Termination
Date. Interest on any Loan which is converted into a Loan of another Type or
which is repaid or prepaid shall be payable on the date of such conversion or
on the date of any such repayment or prepayment (on the amount repaid or
prepaid) thereof. All Default Interest shall be payable on demand.
(e) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder and shall promptly notify the Borrower
and the Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
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SECTION 2.12. FEES.
(a) The Borrower shall pay to the Administrative Agent and
the Syndication Agent for their own respective accounts fees in the amounts and
at the times previously agreed upon in writing by the Borrower and the
Administrative Agent or the Syndication Agent, as applicable, including the
amounts described in the Fee Letter.
(b) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a facility fee, which shall accrue at the
Applicable Percentage per annum (determined daily in accordance with Schedule
I) on the daily amount of the Revolving Commitment (whether used or unused) of
such Lender during the Availability Period; provided, that if such Lender
continues to have any Revolving Credit Exposure after the Revolving Commitment
Termination Date, then the facility fee shall continue to accrue on the daily
amount of such Revolving Credit Exposure from and after the Revolving
Commitment Termination Date to the date that all of such Lender's Revolving
Credit Exposure has been paid in full.
(c) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender, a utilization fee, which shall accrue at the
rate of 0.10% per annum during the Availability Period on the average daily
amount of the Revolving Credit Exposure for each day that the Revolving Credit
Exposure of all Lenders on such date equals or exceeds 50% of the Aggregate
Revolving Commitment Amount on such date.
(d) The Borrower agrees to pay (i) to the Administrative
Agent, for the account of each Lender, a letter of credit fee with respect to
its participation in each Letter of Credit, which shall accrue at a rate per
annum equal to the Applicable Margin for Eurodollar Loans then in effect on the
average daily amount of such Lender's LC Exposure attributable to such Letter
of Credit during the period from and including the date of issuance of such
Letter of Credit to but excluding the date on which such Letter of Credit
expires or is drawn in full (including without limitation any LC Exposure that
remains outstanding after the Revolving Commitment Termination Date) and (ii)
to the Issuing Bank for its own account a fronting fee, which shall accrue at
the rate of 0.125% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the Availability Period (or until the date that such Letter of Credit is
irrevocably cancelled, whichever is later), as well as the Issuing Bank's
standard fees with respect to issuance, amendment, renewal or extension of any
Letter of Credit or processing of drawings thereunder. Notwithstanding the
foregoing, if the Required Lenders elect to increase the interest rate on the
Loans to the Default Interest pursuant to Section 2.11(c), the rate per annum
used to calculate the letter of credit fee pursuant to clause (i) above shall
automatically be increased by an additional 2% per annum.
(e) The Borrower shall pay to the Administrative Agent all
other fees previously agreed upon by the Borrower and the Administrative Agent
in the Fee Letter, which shall be due and payable on the Restatement Date.
(f) Accrued fees under paragraphs (b), (c) and (d) above
shall be payable quarterly in arrears on the last day of each March, June,
September and December, and on the Revolving Commitment Termination Date (and
if later, the date the Loans and LC Exposure
31
shall be repaid in their entirety); provided further, that any such fees
accruing after the Revolving Commitment Termination Date shall be payable on
demand.
SECTION 2.13. COMPUTATION OF INTEREST AND FEES. Interest
hereunder based on the Administrative Agent's prime lending rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and
paid for the actual number of days elapsed (including the first day but
excluding the last day). All other interest and all fees shall be computed on
the basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day). Each determination by the
Administrative Agent of an interest amount or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.
SECTION 2.14. INABILITY TO DETERMINE INTEREST RATES. If prior
to the commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant interbank market,
adequate means do not exist for ascertaining LIBOR for such Interest
Period, or
(ii) the Administrative Agent shall have received notice from
the Required Lenders that the Adjusted LIBO Rate does not adequately
and fairly reflect the cost to such Lenders (or Lender, as the case
may be) of making, funding or maintaining their (or its, as the case
may be) Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations
of the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any
Eurodollar Revolving Borrowing for which a Notice of Revolving Borrowing has
previously been given that it elects not to borrow on such date, then such
Revolving Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.15. ILLEGALITY. If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent
and the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligation of such Lender to make Eurodollar Revolving Loans,
or to continue or convert outstanding Loans as or into Eurodollar Loans, shall
be suspended. In the case of the making of a Eurodollar Revolving Borrowing,
such Lender's Revolving Loan shall be made as a Base Rate Loan as part of the
same Revolving Borrowing for the same Interest Period and if the affected
32
Eurodollar Loan is then outstanding, such Loan shall be converted to a Base
Rate Loan either (i) on the last day of the then current Interest Period
applicable to such Eurodollar Loan if such Lender may lawfully continue to
maintain such Loan to such date or (ii) immediately if such Lender shall
determine that it may not lawfully continue to maintain such Eurodollar Loan to
such date. Notwithstanding the foregoing, the affected Lender shall, prior to
giving such notice to the Administrative Agent, designate a different
Applicable Lending Office if such designation would avoid the need for giving
such notice and if such designation would not otherwise be disadvantageous to
such Lender in the good faith exercise of its discretion.
SECTION 2.16. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement that is not otherwise included in the
determination of the Adjusted LIBO Rate hereunder against assets of,
deposits with or for the account of, or credit extended by, any Lender
(except any such reserve requirement reflected in the Adjusted LIBO
Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
eurodollar interbank market any other condition affecting this
Agreement or any Eurodollar Loans made by such Lender or any Letter of
Credit or any participation therein;
and the result of either of the foregoing is to increase the cost to such
Lender of making, converting into, continuing or maintaining a Eurodollar Loan
or to increase the cost to such Lender or the Issuing Bank of participating in
or issuing any Letter of Credit or to reduce the amount received or receivable
by such Lender or the Issuing Bank hereunder (whether of principal, interest or
any other amount), then the Borrower shall promptly pay, upon written notice
from and demand by such Lender on the Borrower (with a copy of such notice and
demand to the Administrative Agent), to the Administrative Agent for the
account of such Lender, within five Business Days after the date of such notice
and demand, additional amount or amounts sufficient to compensate such Lender
or the Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined
that on or after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender's or the Issuing Bank's capital (or on the capital of such Lender's
or the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt
by the Borrower of written demand by such Lender (with a copy thereof to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
33
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's parent corporation, as the case may
be, specified in paragraph (a) or (b) of this Section 2.16 shall be delivered
to the Borrower (with a copy to the Administrative Agent) and shall be
conclusive, absent manifest error. The Borrower shall pay any such Lender or
the Issuing Bank, as the case may be, such amount or amounts within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section 2.16 shall not constitute
a waiver of such Lender's or the Issuing Bank's right to demand such
compensation; provided, that the Borrower shall not be required to compensate a
Lender or the Issuing Bank under this Section 2.16 for any increased costs or
reductions incurred more than 90 days prior to the date that such Lender or the
Issuing Bank notifies the Borrower of such increased costs or reductions and of
such Lender's or the Issuing Bank's intention to claim compensation therefor;
provided further, that if the Change in Law giving rise to such increased costs
or reductions is retroactive, then such 90 day period shall be extended to
include the period of such retroactive effect.
SECTION 2.17. FUNDING INDEMNITY. In the event of (a) the
payment of any principal of a Eurodollar Loan other than on the last day of the
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion or continuation of a Eurodollar Loan other than on
the last day of the Interest Period applicable thereto or (c) the failure by
the Borrower to borrow, prepay, convert or continue any Eurodollar Loan on the
date specified in any applicable notice (regardless of whether such notice is
withdrawn or revoked). In the case of a Eurodollar Loan, such loss, cost or
expense shall be deemed to include an amount determined by such Lender to be
the excess, if any, of (A) the amount of interest that would have accrued on
the principal amount of such Eurodollar Loan if such event had not occurred at
the Adjusted LIBO Rate applicable to such Eurodollar Loan for the period from
the date of such event to the last day of the then current Interest Period
therefor (or in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Eurodollar Loan) over
(B) the amount of interest that would accrue on the principal amount of such
Eurodollar Loan for the same period if the Adjusted LIBO Rate were set on the
date such Eurodollar Loan was prepaid or converted or the date on which the
Borrower failed to borrow, convert or continue such Eurodollar Loan. A
certificate as to any additional amount payable under this Section 2.17
submitted to the Borrower by any Lender (with a copy to the Administrative
Agent) shall be conclusive, absent manifest error.
SECTION 2.18. TAXES.
(a) Any and all payments by or on account of any obligation
of the Borrower hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided, that if the Borrower shall
be required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.18) the Administrative Agent, any Lender or the
Issuing Bank (as the case may be) shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
34
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within five (5) Business Days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section 2.18) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the Code or any treaty to which the
United States is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding or at a
reduced rate. Without limiting the generality of the foregoing, each Foreign
Lender agrees that it will deliver to the Administrative Agent and the Borrower
(or in the case of a Participant, to the Lender from which the related
participation shall have been purchased), as appropriate, two (2) duly
completed copies of (i) Internal Revenue Service Form W-8 ECI, or any successor
form thereto, certifying that the payments received from the Borrower hereunder
are effectively connected with such Foreign Lender's conduct of a trade or
business in the United States; or (ii) Internal Revenue Service Form W-8 BEN,
or any successor form thereto, certifying that such Foreign Lender is entitled
to benefits under an income tax treaty to which the United States is a party
which reduces the rate of withholding tax on payments of interest; or (iii)
Internal Revenue Service Form W-8 BEN, or any successor form prescribed by the
Internal Revenue Service, together with a certificate (A) establishing that the
payment to the Foreign Lender qualifies as "portfolio interest" exempt from
U.S. withholding tax under Code section 871(h) or 881(c), and (B) stating that
(1) the Foreign Lender is not a bank for purposes of Code section 881(c)(3)(A),
or the obligation of the Borrower hereunder is not, with respect to such
Foreign Lender, a loan agreement entered into in the ordinary course of its
trade or business, within the meaning of that section; (2) the Foreign Lender
is not a 10% shareholder of the Borrower within the meaning of Code section
871(h)(3) or 881(c)(3)(B); and (3) the Foreign Lender is not a controlled
foreign corporation that is related to the Borrower within the meaning of Code
section 881(c)(3)(C); or (iv) such other Internal Revenue Service forms as may
be applicable to the Foreign Lender, including Forms W-8 IMY or W-8 EXP. Each
such Foreign Lender shall deliver to the
35
Borrower and the Administrative Agent such forms on or before the date that it
becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In
addition, each such Foreign Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign
Lender. Each such Foreign Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or
any other form of certification adopted by the Internal Revenue Service for
such purpose).
SECTION 2.19. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SET-OFFS.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Sections 2.16, 2.17 or 2.18, or
otherwise) prior to 12:00 noon (New York time) on the date when due, in
immediately available funds, free and clear of any defenses, rights of set-off,
counterclaim, or withholding or deduction of taxes. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon. All such payments shall be made to the
Administrative Agent at the Payment Office, except payments to be made directly
to the Issuing Bank or Swingline Lender as expressly provided herein and except
that payments pursuant to Sections 2.16, 2.17 and 2.18 and 10.3 shall be made
directly to the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be made payable for
the period of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
36
participations in LC Disbursements and Swingline Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Swingline Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount or amounts due.
In such event, if the Borrower has not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.4(b), 2.5(b), 2.19(d), 2.20(d) or (e) or
10.3(d), then the Administrative Agent may, in its discretion (notwithstanding
any contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are
fully paid.
SECTION 2.20. LETTERS OF CREDIT.
(a) At any time before the fifth Business Day prior to
expiration of the Availability Period, the Issuing Bank, in reliance upon the
agreements of the other Lenders pursuant to Section 2.20(d), agrees to issue,
at the request of the Borrower, Letters of Credit for the account of the
Borrower or any of its Subsidiaries on the terms and conditions hereinafter set
forth; provided, that (i) each Letter of Credit shall expire on the earlier of
(A) the date one year after the date of issuance of such Letter of Credit (or
in the case of any renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is five (5) Business Days prior to the
Revolving Commitment Termination Date; (ii) each Letter of Credit shall be in a
stated amount of at least $100,000; and (iii) the Borrower may not request any
Letter of Credit, if, after giving effect to such issuance (A) the aggregate LC
Exposure would exceed the LC Commitment or (B) the aggregate Revolving Credit
Exposure of all Lenders would exceed the
37
Aggregate Revolving Commitment Amount. Each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing
Bank without recourse a participation in each Letter of Credit equal to such
Lender's Pro Rata Share of the aggregate amount available to be drawn under
such Letter of Credit on the date of issuance with respect to all Letters of
Credit. Each issuance of a Letter of Credit shall be deemed to utilize the
Revolving Commitment of each Lender by an amount equal to the amount of such
participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall give the Issuing Bank and the Administrative Agent irrevocable
written notice at least three (3) Business Days prior to the requested date of
such issuance specifying the date (which shall be a Business Day) such Letter
of Credit is to be issued (or amended, extended or renewed, as the case may
be), the expiration date of such Letter of Credit, the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. In addition to the satisfaction of the conditions in Article
III, the issuance of such Letter of Credit (or any amendment which increases
the amount of such Letter of Credit) will be subject to the further conditions
that such Letter of Credit shall be in such form and contain such terms as the
Issuing Bank shall approve and that the Borrower shall have executed and
delivered any additional applications, agreements and instruments relating to
such Letter of Credit as the Issuing Bank shall reasonably require; provided,
that in the event of any conflict between such applications, agreements or
instruments and this Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any
Letter of Credit, the Issuing Bank will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received such
notice and if not, the Issuing Bank will provide the Administrative Agent with
a copy thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately preceding the
date the Issuing Bank is to issue the requested Letter of Credit (1) directing
the Issuing Bank not to issue the Letter of Credit because such issuance is not
then permitted hereunder because of the limitations set forth in Section
2.20(a) or that one or more conditions specified in Article III are not then
satisfied, then, subject to the terms and conditions hereof, the Issuing Bank
shall, on the requested date, issue such Letter of Credit in accordance with
the Issuing Bank's usual and customary business practices.
(d) The Issuing Bank shall examine all documents purporting
to represent a demand for payment under a Letter of Credit promptly following
its receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing Bank
has made or will make a LC Disbursement thereunder; provided, that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Lenders with respect to such
LC Disbursement. The Borrower shall be irrevocably and unconditionally
obligated to reimburse the Issuing Bank for any LC Disbursements paid by the
Issuing Bank in respect of such drawing, without presentment, demand or other
formalities of any kind. Unless the Borrower shall have notified the Issuing
Bank and the Administrative Agent prior to 11:00 a.m. (New York time) on the
Business Day immediately prior to the date on which such drawing is honored
that the Borrower intends to reimburse the Issuing Bank for the amount of such
drawing in funds other than from
38
the proceeds of Revolving Loans, the Borrower shall be deemed to have timely
given a Notice of Revolving Borrowing to the Administrative Agent requesting
the Lenders to make a Base Rate Borrowing on the date on which such drawing is
honored in an exact amount due to the Issuing Bank; provided, that for purposes
solely of such Borrowing, the conditions precedents set forth in Section 3.2
hereof shall not be applicable. The Administrative Agent shall notify the
Lenders of such Borrowing in accordance with Section 2.3, and each Lender shall
make the proceeds of its Base Rate Loan included in such Borrowing available to
the Administrative Agent for the account of the Issuing Bank in accordance with
Section 2.5. The proceeds of such Borrowing shall be applied directly by the
Administrative Agent to reimburse the Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share
of such LC Disbursement on and as of the date which such Base Rate Borrowing
should have occurred. Each Lender's obligation to fund its participation shall
be absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the
Issuing Bank or any other Person for any reason whatsoever, (ii) the existence
of a Default or an Event of Default or the termination of the Aggregate
Revolving Commitments, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower or any of its Subsidiaries, (iv) any breach of this
Agreement by the Borrower or any other Lender, (v) any amendment, renewal or
extension of any Letter of Credit or (vi) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. On the date
that such participation is required to be funded, each Lender shall promptly
transfer, in immediately available funds, the amount of its participation to
the Administrative Agent for the account of the Issuing Bank. Whenever, at any
time after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the
Administrative Agent or the Issuing Bank, as the case may be, will distribute
to such Lender its Pro Rata Share of such payment; provided, that if such
payment is required to be returned for any reason to the Borrower or to a
trustee, receiver, liquidator, custodian or similar official in any bankruptcy
proceeding, such Lender will return to the Administrative Agent or the Issuing
Bank any portion thereof previously distributed by the Administrative Agent or
the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any
amount required to be paid pursuant to paragraph (d) above on the due date
therefor, such Lender shall pay interest to the Issuing Bank (through the
Administrative Agent) on such amount from such due date to the date such
payment is made at a rate per annum equal to the Federal Funds Rate; provided,
that if such Lender shall fail to make such payment to the Issuing Bank within
three (3) Business Days of such due date, then, retroactively to the due date,
such Lender shall be obligated to pay interest on such amount at the rate set
forth in Section 2.11(c).
(g) If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders demanding the deposit of cash collateral pursuant
to this paragraph, the Borrower shall deposit in
39
an account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Issuing Bank and the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid fees
thereon; provided, that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due and
payable, without demand or notice of any kind, upon the occurrence of any Event
of Default with respect to the Borrower described in clause (g) or (h) of
Section 8.1. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Borrower agrees to execute any documents and/or certificates to effectuate the
intent of this paragraph. Other than any interest earned on the investment of
such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest and profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it had not been reimbursed and to the extent so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated, with the consent of the Required Lenders, be applied to
satisfy other obligations of the Borrower under this Agreement and the other
Loan Documents. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not so applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
(h) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver (through the Administrative Agent) to each Lender
and the Borrower a report describing the aggregate Letters of Credit
outstanding at the end of such Fiscal Quarter. Upon the request of any Lender
from time to time, the Issuing Bank shall deliver to such Lender any other
information reasonably requested by such Lender with respect to each Letter of
Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under all
circumstances whatsoever and irrespective of any of the following
circumstances:
(i) Any lack of validity or enforceability of any Letter of
Credit or this Agreement, or whether any Letter of Credit was issued
for the account of any Subsidiary of Borrower;
(ii) The existence of any claim, set-off, defense or other
right which the Borrower or any Subsidiary or Affiliate of the
Borrower may have at any time against a beneficiary or any transferee
of any Letter of Credit (or any Persons or entities for whom any such
beneficiary or transferee may be acting), any Lender (including the
Issuing Bank) or any other Person, whether in connection with this
Agreement or the Letter of Credit or any document related hereto or
thereto or any unrelated transaction;
40
(iii) Any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document to the Issuing Bank
that does not comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or
not similar to any of the foregoing, that might, but for the
provisions of this Section 2.20, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower's
obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of
the Issuing Bank; provided, that the foregoing shall not be construed to excuse
the Issuing Bank from liability to the Borrower to the extent of any actual
direct damages (as opposed to special, indirect (including claims for lost
profits or other consequential damages), or punitive damages, claims in respect
of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank's
failure to exercise due care when determining whether drafts or other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree, that in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have exercised due
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented that appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, or the International Standby Practices
(1998 Revision), International Chamber of Commerce Publication No. 590, in each
case as the same may be amended from time to time, and, to the extent not
inconsistent therewith, the governing law of this Agreement set forth in
Section 10.5.
41
SECTION 2.21. INCREASE OF COMMITMENTS; ADDITIONAL LENDERS.
(a) So long as no Event of Default has occurred and is
continuing, from time to time after the Restatement Date, Borrower may, upon at
least 30 days' written notice to the Administrative Agent (who shall promptly
provide a copy of such notice to each Lender), propose to increase the
Aggregate Commitments to an amount not to exceed $1,000,000,000 (the amount of
any such increase, the "Additional Commitment Amount"). Each Lender shall have
the right for a period of 15 days following receipt of such notice, to elect by
written notice to the Borrower and the Administrative Agent to increase its
Revolving Commitment by a principal amount equal to its Pro Rata Share of the
Additional Commitment Amount. No Lender (or any successor thereto) shall have
any obligation to increase its Revolving Commitment or its other obligations
under this Agreement and the other Loan Documents, and any decision by a Lender
to increase its Revolving Commitment shall be made in its sole discretion
independently from any other Lender.
(b) If any Lender shall not elect to increase its Revolving
Commitment pursuant to subsection (a) of this Section 2.21, the Borrower may
designate another bank or other financial institution (which may be, but need
not be, one or more of the existing Lenders) which at the time agrees to, in
the case of any such Person that is an existing Lender, increase its Revolving
Commitment and in the case of any other such Person (an "Additional Lender"),
become a party to this Agreement; provided, however, that any new bank or
financial institution must be reasonably acceptable to the Administrative
Agent. The sum of the increases in the Revolving Commitments of the existing
Lenders pursuant to this subsection (b) plus the Revolving Commitments of the
Additional Lenders shall not in the aggregate exceed the unsubscribed amount of
the Additional Commitment Amount.
(c) An increase in the aggregate amount of the Revolving
Commitments pursuant to this Section 2.21 shall become effective upon the
receipt by the Administrative Agent of an supplement or joinder in form and
substance satisfactory to the Administrative Agent executed by the Borrower and
by each Additional Lender and by each other Lender whose Revolving Commitment
is to be increased, setting forth the new Revolving Commitments of such Lenders
and setting forth the agreement of each Additional Lender to become a party to
this Agreement and to be bound by all the terms and provisions hereof, together
with Notes evidencing such increase in the Commitments, and such evidence of
appropriate corporate authorization on the part of the Borrower with respect to
the increase in the Revolving Commitments and such opinions of counsel for the
Borrower with respect to the increase in the Revolving Commitments as the
Administrative Agent may reasonably request.
(d) Upon the acceptance of any such agreement by the
Administrative Agent, the Aggregate Revolving Commitment Amount shall
automatically be increased by the amount of the Revolving Commitments added
through such agreement and Schedule II shall automatically be deemed amended to
reflect the Revolving Commitments of all Lenders after giving effect to the
addition of such Revolving Commitments.
(e) Upon any increase in the aggregate amount of the
Revolving Commitments pursuant to this Section 2.21 that is not pro rata among
all Lenders, (x) within five Business Days, in the case of any Base Rate Loans
then outstanding, and at the end of the then current Interest Period with
respect thereto, in the case of any Eurodollar Loans then outstanding, the
Borrower shall prepay such Loans in their entirety and, to the extent the
Borrower elects to
42
do so and subject to the conditions specified in Article III, the Borrower
shall reborrow Loans from the Lenders in proportion to their respective
Revolving Commitments after giving effect to such increase, until such time as
all outstanding Loans are held by the Lenders in proportion to their respective
Commitments after giving effect to such increase and (y) effective upon such
increase, the amount of the participations held by each Lender in each Letter
of Credit then outstanding shall be adjusted automatically such that, after
giving effect to such adjustments, the Lenders shall hold participations in
each such Letter of Credit in proportion to their respective Revolving
Commitments.
SECTION 2.22. MITIGATION OF OBLIGATIONS. If any Lender
requests compensation under Section 2.16, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.18, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the sole judgment of
such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable under Section 2.16 or Section 2.18, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all costs and expenses incurred by any Lender in
connection with such designation or assignment.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
SECTION 3.1. CONDITIONS TO EFFECTIVENESS. This Agreement
shall become effective, and the Lenders, the Swingline Lender and Issuing Bank
shall be obligated to make the initial Loans and issue the initial Letters of
Credit hereunder, upon the satisfaction of the following conditions, in
addition to the conditions precedent specified in Section 3.2:
(a) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Restatement Date, including
reimbursement or payment of all out-of-pocket expenses (including reasonable
fees, charges and disbursements of outside counsel to the Administrative Agent)
required to be reimbursed or paid by the Borrower hereunder, under any other
Loan Document and under any agreement with the Administrative Agent or SunTrust
Capital Markets, Inc., as Arranger.
(b) The Administrative Agent (or its counsel) shall have
received the following:
(i) a counterpart of this Agreement signed by or on behalf of
each party hereto or written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement;
(ii) a duly executed Revolving Credit Note payable to each
Lender requesting the same and the Swingline Note payable to the
Swingline Lender;
43
(iii) the Guaranty Agreement duly executed by the Guarantor;
(iv) evidence that all outstanding Loans and all accrued
interest, fees and expenses outstanding under the Existing Credit
Agreement as of the Restatement Date have been paid in full (including
any amounts required by any Lenders, as a condition to the
effectiveness of this Agreement, to be paid pursuant to Section 2.17
of the Existing Credit Agreement in connection with such payment);
(v) a certificate of the Secretary or Assistant Secretary of
each Loan Party in the form of Exhibit 3.1(b)(v), attaching and
certifying copies of its bylaws and of the resolutions of its boards
of directors, or partnership agreement or limited liability company
agreement, or comparable organizational documents and authorizations,
authorizing the execution, delivery and performance of the Loan
Documents to which it is a party and certifying the name, title and
true signature of each officer of such Loan Party executing the Loan
Documents to which it is a party;
(vi) certified copies of the articles or certificate of
incorporation, certificate of organization or limited partnership, or
other registered organizational documents of each Loan Party, together
with certificates of good standing or existence, as may be available
from the Secretary of State of the jurisdiction of organization of
such Loan Party and each other jurisdiction where such Loan Party is
required to be qualified to do business as a foreign corporation;
(vii) a favorable written opinion, addressed to the
Administrative Agent and each of the Lenders, and covering such
matters relating to the Loan Parties, the Loan Documents and the
transactions contemplated therein as the Administrative Agent or the
Required Lenders shall reasonably request, of (a)▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP,
counsel to the Borrower and Intermediate Partnership, and (b) ▇▇▇▇▇
Place, Vice President and General Counsel of Northern Plains Natural
Gas Company, LLC, Pan Border Gas Company, LLC, and NBP Services, LLC;
(viii) a certificate in the form of Exhibit 3.1(b)(viii),
dated the Restatement Date and signed by a Responsible Officer,
certifying that (x) no Default or Event of Default exists, (y) all
representations and warranties of each Loan Party set forth in the
Loan Documents are true and correct and (z) since the date of the
financial statements of the Borrower described in Section 4.4, there
shall have been no change which has had or could reasonably be
expected to have a Material Adverse Effect;
(ix) a duly executed Notice of Borrowing;
(x) a duly executed funds disbursement letter, together with
a report setting forth the sources and uses of the proceeds hereof;
44
(xi) certified copies of all consents, approvals,
authorizations, registrations and filings and orders required or
advisable to be made or obtained under any Requirement of Law, or by
any Contractual Obligation of each Loan Party, in connection with the
execution, delivery, performance, validity and enforceability of the
Loan Documents or any of the transactions contemplated thereby, and
such consents, approvals, authorizations, registrations, filings and
orders shall be in full force and effect and all applicable waiting
periods shall have expired, and no investigation or inquiry by any
governmental authority regarding the Credit Facility or any
transaction being financed with the proceeds thereof shall be ongoing;
and
(xii) copies of the audited consolidated balance sheets and
related statements of income, owners' equity, and cash flows of the
Borrower and its Subsidiaries for the Fiscal Years ending December 31,
2003, December 31, 2004 and December 31, 2005.
SECTION 3.2. EACH CREDIT EVENT. The obligation of each Lender
to make a Loan on the occasion of any Borrowing and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit is subject to the
satisfaction of the following conditions:
(a) at the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, all representations and warranties of each Loan Party
set forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of issuance,
amendment, extension or renewal of such Letter of Credit, in each case before
and after giving effect thereto;
(c) the Borrower shall have delivered the required Notice of
Borrowing; and
(d) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the Administrative
Agent or the Required Lenders may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent or the Required Lenders and
consistent with the terms of the Agreement.
Each Borrowing and each issuance, amendment, extension or
renewal of any Letter of Credit shall be deemed to constitute a representation
and warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section 3.2.
SECTION 3.3. DELIVERY OF DOCUMENTS. All of the Loan
Documents, certificates, legal opinions and other documents and papers referred
to in this Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall
be in form and substance satisfactory in all respects to the Administrative
Agent.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative
Agent and each Lender as follows:
SECTION 4.1. EXISTENCE; POWER. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation, partnership or limited liability company under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to
carry on its business as now conducted, and (iii) is duly qualified to do
business, and is in good standing, in each jurisdiction where such
qualification is required, except where a failure to be so qualified could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.2. ORGANIZATIONAL POWER; AUTHORIZATION. The
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party are within such Loan Party's organizational powers and have
been duly authorized by all necessary organizational, and if required,
shareholder, partner or member, action. This Agreement has been duly executed
and delivered by the Borrower, and constitutes, and each other Loan Document to
which any Loan Party is a party, when executed and delivered by such Loan
Party, will constitute, valid and binding obligations of the Borrower or such
Loan Party (as the case may be), enforceable against it in accordance with
their respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
SECTION 4.3. GOVERNMENTAL APPROVALS; NO CONFLICTS. The
execution, delivery and performance by the Borrower of this Agreement, and by
each Loan Party of the other Loan Documents to which it is a party (a) do not
require any consent or approval of, registration or filing with, or any action
by, any Governmental Authority, except those as have been obtained or made and
are in full force and effect, (b) will not violate any Requirements of Law
applicable to the Borrower or any of its Subsidiaries or any judgment, order or
ruling of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding on the
Borrower or any of its Subsidiaries or any of its assets or give rise to a
right thereunder to require any payment to be made by the Borrower or any of
its Subsidiaries, in each case other than violations, defaults or rights which
could not reasonably expected to result in a Material Adverse Effect, and (d)
will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries, except Liens (if any) created under the
Loan Documents.
SECTION 4.4. FINANCIAL STATEMENTS. The Borrower has furnished
to each Lender the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 2005 and the related consolidated statements of
income, owners' equity and cash flows for the Fiscal Year then ended, together
with the audit report of KPMG, LLP. Such financial statements fairly present
the consolidated financial condition of the Borrower and its Subsidiaries as of
such dates and the consolidated results of operations for such periods in
conformity with GAAP consistently applied. As of the Restatement Date, since
December 31,
46
2005, there have been no changes with respect to the Borrower and its
Subsidiaries which have had or could reasonably be expected to have, singly or
in the aggregate, a Material Adverse Effect.
SECTION 4.5. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) No litigation, investigation or proceeding of or before
any arbitrators or Governmental Authorities is pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination that could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect or (ii) which in
any manner draws into question the validity or enforceability of this Agreement
or any other Loan Document.
(b) Except for the matters set forth on Schedule 4.5(b),
neither the Borrower nor any of its Subsidiaries (i) has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit, license
or other approval required under any Environmental Law, (ii) has become subject
to any Environmental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability, that, in each case, could reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect.
SECTION 4.6. COMPLIANCE WITH LAWS AND AGREEMENTS. The
Borrower and each Subsidiary is in compliance with (a) all Requirements of Law
and all judgments, decrees and orders of any Governmental Authority and (b) all
indentures, agreements or other instruments binding upon it or its properties,
except where non-compliance, either singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.7. INVESTMENT COMPANY ACT, ETC. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company" or is
"controlled" by an "investment company", as such terms are defined in, or
subject to regulation under, the Investment Company Act of 1940, as amended, or
(b) otherwise subject to any other regulatory scheme limiting its ability to
incur debt or requiring any approval or consent from or registration or filing
with, any Governmental Authority in connection therewith.
SECTION 4.8. TAXES. The Borrower and its Subsidiaries and
each other Person for whose taxes the Borrower or any Subsidiary could become
liable have timely filed or caused to be filed, or received extensions of time
for the filing of, all Federal income tax returns and all other material tax
returns that are required to be filed by them, and have paid all taxes shown to
be due and payable on such returns or on any assessments made against it or its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, except where the same are currently
being contested in good faith by appropriate proceedings and for which the
Borrower or such Subsidiary, as the case may be, has set aside on its books
adequate reserves in accordance with GAAP. The charges, accruals and reserves
on the books of the Borrower and its Subsidiaries in respect of such taxes are
adequate, and no tax liabilities that could be materially in excess of the
amount so provided are anticipated.
47
SECTION 4.9. MARGIN REGULATIONS. None of the proceeds of any
of the Loans or Letters of Credit will be used, directly or indirectly, for
"purchasing" or "carrying" any "margin stock" with the respective meanings of
each of such 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 that violates the provisions of the Regulation U. Neither the Borrower
nor its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying "margin stock."
SECTION 4.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of all such
underfunded Plans.
SECTION 4.11. OWNERSHIP OF PROPERTY.
(a) Each of the Borrower and its Subsidiaries has good title
to, or valid leasehold or easement interests in, or the right to use, all of
its real and personal property material to the operation of its business,
including all such properties reflected in the most recent audited consolidated
balance sheet of the Borrower referred to in Section 4.4 or purported to have
been acquired by the Borrower or any Subsidiary after said date (except as sold
or otherwise disposed of in the ordinary course of business), in each case free
and clear of Liens prohibited by this Agreement, except to the extent that the
failure to have such good title, valid leasehold or easement interests or
rights to use, or that such Liens exist, could not reasonably be expected to
result in a Material Adverse Effect. All leases that individually or in the
aggregate are material to the business or operations of the Borrower and its
Subsidiaries are valid and subsisting and are in full force, except to the
extent that failure of such lease to be valid and subsisting could not
reasonably be expected to result in a Material Adverse Effect.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents, trademarks, service
marks, trade names, copyrights and other intellectual property material to its
business, and the use thereof by the Borrower and its Subsidiaries does not
infringe in any material respect on the rights of any other Person except to
the extent that the failure to do so could not reasonably be expected to result
in a Material Adverse Effect.
(c) The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies which are not
Affiliates of the Borrower, in such amounts with such deductibles and covering
such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or
any applicable Subsidiary operates.
48
SECTION 4.12. DISCLOSURE. The Borrower has disclosed to the
Lenders all agreements, instruments, and corporate or other restrictions to
which the Borrower or any of its Subsidiaries is subject, and all other matters
known to any of them, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports
that the Borrower is required to file with the Securities and Exchange
Commission), financial statements, certificates or other information furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender in
connection with the negotiation or syndication of this Agreement or any other
Loan Document or delivered hereunder or thereunder (as modified or supplemented
by any other information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements
therein, in each case when taken as a whole, in light of the circumstances
under which they were made, not misleading.
SECTION 4.13. LABOR RELATIONS. There are no strikes, lockouts
or other material labor disputes or grievances against the Borrower or any of
its Subsidiaries, or, to the Borrower's knowledge, threatened against or
affecting the Borrower or any of its Subsidiaries, and no significant unfair
labor practice, charges or grievances are pending against the Borrower or any
of its Subsidiaries, or to the Borrower's knowledge, threatened against any of
them before any Governmental Authority. All payments due from the Borrower or
any of its Subsidiaries pursuant to the provisions of any collective bargaining
agreement have been paid or accrued as a liability on the books of the Borrower
or any such Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
SECTION 4.14. SUBSIDIARIES. Schedule 4.14 sets forth the name
of, the jurisdiction of incorporation or organization of, and the type of, each
Subsidiary, in each case as of the Restatement Date.
SECTION 4.15. INSOLVENCY. After giving effect to the
execution and delivery of the Loan Documents, the making of the Loans under
this Agreement, neither the Borrower nor its Subsidiaries will be "insolvent,"
within the meaning of such term as defined in ss. 101 of Title 11 of the United
States Code, as amended from time to time, or be unable to pay its debts
generally as such debts become due, or have an unreasonably small capital to
engage in any business or transaction, whether current or contemplated.
SECTION 4.16. OFAC. No Loan Party (i) is a person whose
property or interest in property is blocked or subject to blocking pursuant to
Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or
transactions prohibited by Section 2 of such executive order, or is otherwise
associated with any such person in any manner violative of Section 2, or (iii)
is a person on the list of Specially Designated Nationals and Blocked Persons
or subject to the limitations or prohibitions under any other U.S. Department
of Treasury's Office of Foreign Assets Control regulation or executive order.
SECTION 4.17. PATRIOT ACT. Each Loan Party is in compliance,
in all material respects, with (i) the Trading with the Enemy Act, as amended,
and each of the foreign assets control regulations of the United States
Treasury Department (31 CFR, Subtitle B, Chapter V, as
49
amended) and any other enabling legislation or executive order relating
thereto, and (ii) the Uniting And Strengthening America By Providing
Appropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot Act
of 2001). No part of the proceeds of the Loans will be used, directly or
indirectly, for any payments to any governmental official or employee,
political party, official of a political party, candidate for political office,
or anyone else acting in an official capacity, in order to obtain, retain or
direct business or obtain any improper advantage, in violation of the United
States Foreign Corrupt Practices Act of 1977, as amended.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or any Obligation remains unpaid or outstanding:
SECTION 5.1. FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 120 days
after the end of each Fiscal Year of Borrower, a copy of the annual audited
report for such Fiscal Year for the Borrower and its Subsidiaries, containing a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end
of such Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows (together with all footnotes thereto) of
the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each
case in comparative form the figures for the previous Fiscal Year (other than
with respect to the businesses to be acquired by the Borrower in the OKE
Acquisition that had previously been owned by ▇▇▇▇ Industries), all in
reasonable detail and reported on by KPMG, LLP or other independent public
accountants of nationally recognized standing (without a "going concern" or
like qualification, exception or explanation and without any qualification or
exception as to scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition and
the results of operations of the Borrower and its Subsidiaries for such Fiscal
Year on a consolidated and consolidating basis in accordance with GAAP and that
the examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards;
(b) as soon as available and in any event within 60 days
after the end of each Fiscal Quarter of the Borrower, an unaudited consolidated
and consolidating balance sheet of the Borrower and its Subsidiaries as of the
end of such Fiscal Quarter and the related unaudited consolidated and
consolidating statements of income and cash flows of the Borrower and its
Subsidiaries for such Fiscal Quarter and the then elapsed portion of such
Fiscal Year, setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of Borrower's previous
Fiscal Year;
(c) concurrently with the delivery of the financial
statements referred to in clauses (a) and (b) above, a Compliance Certificate
signed by the chief executive officer, chief financial officer or treasurer of
the Borrower;
50
(d) concurrently with the delivery of the financial
statements referred to in clauses (a) and (b) above, a description of each
Material Project commenced or in progress during the periods covered by such
financial statements, the current budget and scheduled completion date for such
Material Project, a description in reasonable detail as to the status of the
construction and percentage completion of such Material Project as of the end
of such periods, and such other information in respect of such Material Project
as the Administrative Agent or any Lender may reasonably request;
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed
with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all functions of said Commission; and
(f) promptly following any request therefor, such other
information regarding the results of operations, business affairs and financial
condition of the Borrower or any Subsidiary as the Administrative Agent or any
Lender may reasonably request.
SECTION 5.2. NOTICES OF MATERIAL EVENTS. The Borrower will
furnish to the Administrative Agent prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or, to
the knowledge of the Borrower, affecting the Borrower or any Subsidiary which,
if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any event or any other development by
which the Borrower or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) becomes subject to
any Environmental Liability, (iii) receives notice of any claim with respect to
any Environmental Liability, or (iv) becomes aware of any basis for any
Environmental Liability and in each of the preceding clauses, which
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $15,000,000;
(e) the occurrence of any default or event of default, or the
receipt by Borrower or any of its Subsidiaries of any written notice of an
alleged default or event of default, respect of any Material Indebtedness of
the Borrower or any of its Subsidiaries; and
(f) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
51
Each notice delivered under this Section 5.2 shall be accompanied by a written
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 5.3. EXISTENCE; CONDUCT OF BUSINESS. The Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and maintain in full force and effect its
legal existence and its respective rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business and will continue to engage in the same business as
presently conducted or such other businesses that are reasonably related
thereto; provided, that nothing in this Section 5.3 shall prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.3.
SECTION 5.4. COMPLIANCE WITH LAWS, ETC. The Borrower will,
and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and requirements of any Governmental Authority applicable to its
business and properties, including without limitation, all Environmental Laws,
ERISA and OSHA, except where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.5. PAYMENT OF OBLIGATIONS. The Borrower will, and
will cause each of its Subsidiaries to, pay and discharge at or before
maturity, all of its obligations and liabilities (including without limitation
all tax liabilities and claims that could result in a statutory Lien) before
the same shall become delinquent or in default, except where (a) the validity
or amount thereof is being contested in good faith by appropriate proceedings,
(b) the Borrower or such Subsidiary has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) the failure to
make payment pending such contest could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.6. BOOKS AND RECORDS. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities to the extent necessary
to prepare the consolidated financial statements of Borrower in conformity with
GAAP.
SECTION 5.7. VISITATION, INSPECTION, ETC. The Borrower will,
and will cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times
and as often as the Administrative Agent or any Lender may reasonably request
after reasonable prior notice to the Borrower; provided, however, if an Event
of Default has occurred and is continuing, no prior notice shall be required.
SECTION 5.8. MAINTENANCE OF PROPERTIES; INSURANCE. The
Borrower will, and will cause each of its Subsidiaries to, (a) keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted and (b) maintain with
financially sound and reputable insurance companies, insurance with respect to
its
52
properties and business, and the properties and business of its Subsidiaries,
against loss or damage of the kinds customarily insured against by companies in
the same or similar businesses operating in the same or similar locations.
SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT. The
Borrower will use the proceeds of all Loans to refinance existing indebtedness,
to finance permitted acquisitions and investments, to pay related fees and
expenses, and to provide for working capital needs and for other general
business purposes of the Borrower and its Subsidiaries. No part of the proceeds
of any Loan will be used, whether directly or indirectly, for any purpose that
would violate any rule or regulation of the Board of Governors of the Federal
Reserve System, including Regulations T, U or X. All Letters of Credit will be
used for general business purposes.
SECTION 5.10. PARI PASSU STATUS. Each Loan Party will ensure
the claims and rights of the Lenders against it under this Agreement and each
other Loan Document will not be subordinate to, and will rank at all times at
least pari passu with, all other unsecured Debt of such Loan Party.
SECTION 5.11. MAINTENANCE OF TAX STATUS. The Borrower shall
take all action necessary to prevent the Borrower and Intermediate Partnership
from being, and will take no action which would have the effect of causing
either of the Borrower or Intermediate Partnership to be, treated as an
association taxable as a corporation or otherwise to be taxed as an entity for
federal income tax purposes.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or any Obligation remains unpaid or outstanding:
SECTION 6.1. LEVERAGE RATIO. The Borrower will maintain at
all times a Leverage Ratio of not greater than 4.75:1.00 (the "Required
Threshold"); provided, however, that if the Borrower consummates one or more
acquisitions permitted hereunder in which the aggregate purchase price of all
such acquisitions exceeds $25,000,000, then the Required Threshold shall be
increased to 5.25:1.00 for the first two full fiscal reporting periods during
any 12-month period immediately following the consummation of such
acquisitions.
SECTION 6.2. INTEREST COVERAGE RATIO. The Borrower will
maintain as of the end of each Fiscal Quarter an Interest Coverage Ratio of not
less than 3.00:1.00.
53
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or any Obligation remains unpaid or outstanding:
SECTION 7.1. INDEBTEDNESS; PREFERRED INTERESTS. The Borrower
will not permit any of its Subsidiaries to create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Viking's $32,000,000 Notes, 6.65% Series A Due October
31, 2008, $5,400,000 Notes, 7.10% Series B due November 30, 2011, $14,000,000
Notes, 7.31% Series C due September 30, 2012, and $20,000,000 Notes, 8.04%
Series D due September 30, 2014, all issued pursuant to the Viking Indenture,
and the Viking Guaranty;
(b) trade debt for goods furnished or services rendered in
the ordinary course of business and payable in accordance with customary trade
terms that are not more than 90 days past due;
(c) endorsements of checks or drafts in the ordinary course
of business;
(d) so long as Pipeline is a Subsidiary of the Borrower,
Indebtedness of Pipeline under the Pipeline Credit Agreement and other
Indebtedness of Pipeline, so long as the Pipeline Leverage Ratio does not
exceed 4.50:1.0 (the "Pipeline Required Threshold"); provided, however, that if
Pipeline consummates one or more acquisitions permitted hereunder in which the
aggregate purchase price of all such acquisitions exceeds $25,000,000, then the
Pipeline Required Threshold shall be increased to 5.00:1.00 for the first two
full fiscal reporting periods during any 12-month period immediately following
the consummation of such acquisitions;
(e) other Indebtedness of the Subsidiaries of the Borrower
(excluding Indebtedness otherwise permitted in this Section 7.1) which does not
exceed $35,000,000 outstanding at any time in the aggregate;
(f) Indebtedness of the Subsidiaries of the Borrower
resulting from loans made by the Borrower to Intermediate Partnership, loans by
Intermediate Partnership to another Subsidiary or other loans by a Subsidiary
to another Subsidiary; provided, however, that any Indebtedness of Intermediate
Partnership resulting from loans made by any Subsidiary to Intermediate
Partnership shall be subordinated on terms and conditions satisfactory to
Administrative Agent and the Required Lenders in right of payment to its
obligations under the Guaranty Agreements;
(g) the guaranty by Intermediate Partnership of the
Borrower's Indebtedness; and
(h) to the extent Guardian Pipeline, L.L.C. ("Guardian") is a
Subsidiary of the Borrower, Indebtedness of Guardian pursuant to the Master
Shelf Agreement and Revolving Note Agreement, each dated as of November 8,
2001, among Guardian, Prudential Insurance
54
Company of America and the other parties thereto, in each case as amended from
time to time (the "Guardian Agreements");
provided, however, no Indebtedness otherwise permitted under this Section 7.1
shall be permitted if, after giving effect to the incurrence thereof, any
Default or Event of Default shall have occurred and be continuing.
Borrower will not, and will not permit any Subsidiary to,
issue any preferred shares or other preferred partnership, limited liability
company or other equity interests that (i) mature or are mandatorily redeemable
pursuant to a sinking fund obligation or otherwise, (ii) are or may become
redeemable or repurchaseable by Borrower or such Subsidiary at the option of
any holders thereof, in whole or in part or (iii) are convertible or
exchangeable at the option of any holders thereof for Indebtedness or preferred
shares or any other preferred partnership, limited liability company or other
equity interests described in this paragraph, on or prior to, in the case of
clause (i), (ii) or (iii), the first anniversary of the Revolving Commitment
Termination Date.
SECTION 7.2. NEGATIVE PLEDGE. The Borrower will not, and will
not permit any of its Subsidiaries to, create, incur, assume or suffer to exist
any Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Restatement Date set forth on Schedule 7.2;
provided, that such Lien shall not apply to any other property or asset of the
Borrower or any Subsidiary;
(c) purchase money Liens upon or in any fixed or capital
assets to secure the purchase price or the cost of construction or improvement
of such fixed or capital assets or to secure Indebtedness incurred solely for
the purpose of financing the acquisition, construction or improvement of such
fixed or capital assets (including Liens securing any Capital Lease
Obligations); provided, that (i) such Lien secures Indebtedness permitted by
Section 7.1, (ii) such Lien attaches to such asset concurrently or within 90
days after the acquisition, improvement or completion of the construction
thereof; (iii) such Lien does not extend to any other asset; and (iv) the
Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets;
(d) any Lien (i) existing on any asset of any Person at the
time such Person becomes a Subsidiary of the Borrower, (ii) existing on any
asset of any Person at the time such Person is merged with or into the Borrower
or any Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower;
provided, that any such Lien was not created in the contemplation of any of the
foregoing and any such Lien secures only those obligations which it secures on
the date that such Person becomes a Subsidiary or the date of such merger or
the date of such acquisition;
(e) Liens on the limited liability company interests in Fort
Union, L.L.C. which are owned by Crestone Powder River L.L.C., a Delaware
limited liability company, which Liens secure amounts owed under the Fort Union
Project Finance Documents;
55
(f) Liens on the limited liability company interests in Lost
Creek, L.L.C. which are owned by Crestone Wind River, L.L.C., a Delaware
limited liability company, which Liens secure amounts owed under the Lost Creek
Project Finance Documents; and
(g) extensions, renewals, or replacements of any Lien
referred to in paragraphs (a) through (f) of this Section 7.2; provided, that
the principal amount of the Indebtedness secured thereby is not increased and
that any such extension, renewal or replacement is limited to the assets
originally encumbered thereby;
(h) any Liens (i) in favor of the Administrative Agent
arising under Section 2.20(g), (ii) so long as Pipeline is a Subsidiary of the
Borrower, in favor of the administrative agent under section 2.20(g) of the
Pipeline Credit Agreement, and (iii) in favor of any trustee under any
indentures governing Indebtedness of the Borrower or any of its Subsidiaries
securing unpaid fees of such trustee in collateral in the possession of such
trustee;
(i) any right which any municipal or governmental body or
agency may have by virtue of any franchise, license, contract or status to
purchase or designate a purchaser of, or order the sale of, any property of the
Borrower or any Subsidiary upon payment of reasonable compensation therefor or
to terminate any franchise, license or other rights or to regulate the property
and business of the Borrower or any Subsidiary;
(j) Liens on cash and cash equivalents granted pursuant to
master netting agreements entered into in the ordinary course of business in
connection with Hedging Transactions; provided that (i) the transactions
secured by such Liens are governed by standard International Swaps and
Derivatives Association, Inc. ("ISDA") documentation, and (ii) such Hedging
Transactions consist of derivative transactions contemplated to be settled in
cash and not by physical delivery and are designed to minimize the risk of
fluctuations in oil and gas prices with respect to the Borrower's and its
Subsidiaries' operations in the ordinary course of its business;
(k) Liens pursuant to master netting agreements entered into
in the ordinary course of business in connection with Hedging Transactions, in
each case pursuant to which the Borrower or any Subsidiary of the Borrower, as
a party to such master netting agreement and as pledgor, pledges or otherwise
transfers to the other party to such master netting agreement, as pledgee, in
order to secure the Borrower's or such Subsidiary's obligations under such
master netting agreement, a Lien upon and/or right of set off against, all
right, title, and interest of the pledgor in any obligations of the pledgee
owed to the pledgor, together with all accounts and general intangibles and
payment intangibles in respect of such obligations and all dividends, interest,
and other proceeds from time to time received, receivable, or otherwise
distributed in respect of, or in exchange for, any or all of the foregoing;
(l) Liens arising in the ordinary course of business under
Oil and Gas Agreements to secure compliance with such agreements, provided that
any such Lien referred to in this clause are for claims which are not
delinquent or which are being contested in good faith by appropriate action and
for which adequate reserves have been maintained in accordance with GAAP, and
provided further that any such Lien referred to in this clause does not
materially impair the use of the property covered by such Lien for the purposes
for which such property is
56
held by the Borrower or any Subsidiary or materially impair the value of such
property subject thereto, and provided further that such Liens are limited to
property that is the subject of the relevant Oil and Gas Agreement; and
(m) After consummation of the OKE Acquisition, Liens not
otherwise permitted by this Section 7.2 if at the time of, and after giving
effect to, the creation or assumption of any such Lien, the aggregate of all
obligations of the Borrower and its Subsidiaries secured by any Liens not
otherwise permitted hereby does not exceed five percent (5%) of the sum of (i)
the consolidated owners' equity, determined in accordance with GAAP, of the
Borrower and its Subsidiaries, and (ii) Consolidated Total Debt.
SECTION 7.3. FUNDAMENTAL CHANGES.
(a) The Borrower will not, and will not permit any Subsidiary
to, merge into or consolidate into any other Person, or permit any other Person
to merge into or consolidate with it, or sell, lease, transfer or otherwise
dispose of (in a single transaction or a series of transactions) all of its
assets (in each case, whether now owned or hereafter acquired) or all or
substantially all of the Capital Stock of its Subsidiaries (in each case,
whether now owned or hereafter acquired) or liquidate or dissolve; provided,
that if at the time thereof and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing, then (i) the
Borrower or any Subsidiary may merge with a Person if the Borrower (or such
Subsidiary if the Borrower is not a party to such merger) is the surviving
Person, (ii) any Subsidiary may merge into another Subsidiary; (iii) any
Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Borrower or to a Subsidiary Loan Party,
and (iv) any Subsidiary (other than a Subsidiary Loan Party) may sell, lease,
transfer or otherwise dispose of (in a single transaction or a series of
transactions) all of its assets (in each case, whether now owned or hereafter
acquired) or all or substantially all of the stock of or other equity interest
or may liquidate or dissolve if no Default or Event of Default has occurred and
is continuing or would result therefrom, and the Borrower determines in good
faith that such sale, lease, transfer, disposition, liquidation or dissolution
is in the best interests of the Borrower and is not materially disadvantageous
to the Lenders; provided, however, that (x) in no event shall any such merger,
consolidation, sale, transfer, lease or other disposition whether or not
otherwise permitted by this Section 7.3 have the effect of releasing any Loan
Party from any of its obligations and liabilities under this Agreement or the
other Loan Documents and (y) so long as Pipeline is a Subsidiary of the
Borrower, in no event shall the Borrower permit Pipeline to merge or
consolidate with or into any other Person, or sell, assign, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its business and assets (whether now owned or hereafter
acquired) to, any Person, except pursuant to Section 14 or Section 15 (to the
extent it applies to a merger pursuant to Section 14) of the Pipeline
Partnership Agreement.
(b) So long as Pipeline is a Subsidiary of the Borrower, the
Borrower shall not permit Pipeline to lease, sell or otherwise dispose of its
assets to any other Person except: (i) sales of inventory and other assets in
the ordinary course of business, (ii) leases, sales or other dispositions of
its assets that, together with all other assets of Pipeline previously leased,
sold or disposed of (other than disposed of pursuant to this Section 7.3(b))
during the twelve-month period ending with the month in which any such lease,
sale or other disposition occurs, do not
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constitute a substantial portion of the assets of Pipeline, (iii) sales of
assets which are concurrently leased back, (iv) dispositions of assets which
are obsolete or no longer used or useful in the business of Pipeline, and (v)
as permitted pursuant to Section 14 or Section 15 (to the extent it applies to
a merger pursuant to Section 14) of the Pipeline Partnership Agreement.
(c) The Borrower shall not engage in any business activity
except the ownership of a limited partner interest in Intermediate Partnership
and such activities as may be incidental or related thereto. Intermediate
Partnership shall not, and the Loan Parties shall not permit any of their
Subsidiaries to, engage, directly or indirectly, in any business activity
except (a) existing business activities consisting of the ownership and
operation of natural gas pipelines, coal slurry pipelines, natural gas
gathering facilities, midstream gas processing facilities, extension and
expansion of such pipelines and facilities and related facilities, services
related to the transportation, marketing and processing of natural gas and coal
slurry and such activities as may be incidental or related to the
aforementioned and (b) new business activities in the area of storage,
exploration, development, production, processing, refining, transportation or
marketing of gas, oil, coal or products thereof, provided the gross income of
such activities allows Borrower to meet the exception in Section 7704 of the
Code.
SECTION 7.4. INVESTMENTS, LOANS, ETC. The Borrower will not,
and will not permit any of its Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly-owned
Subsidiary prior to such merger), any common stock, evidence of indebtedness or
other securities (including any option, warrant, or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any
other interest in, any other Person (all of the foregoing being collectively
called "Investments"), or purchase or otherwise acquire (in one transaction or
a series of transactions) any assets of any other Person that constitute a
business unit, or create or form any Subsidiary, except:
(a) Investments (other than Permitted Investments) existing
on the date hereof and set forth on Schedule 7.4 (including Investments in
Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section
7.1;
(d) loans or advances to employees, officers or directors of
the Borrower or any Subsidiary in the ordinary course of business for travel,
relocation and related expenses; provided, however, that the aggregate amount
of all such loans and advances does not exceed $1,000,000 at any time;
(e) Hedging Transactions permitted by Section 7.10;
(f) Investments in and through Intermediate Partnership
permitted by Section 7.3(c); and
(g) Investments made as part of the OKE Acquisition.
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SECTION 7.5. RESTRICTED PAYMENTS. The Borrower will not, and
will not permit its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any dividend on any class of its Capital Stock, or make
any payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, retirement, defeasance or other acquisition
of, any shares of Capital Stock or Indebtedness subordinated to the Obligations
of the Borrower or any Guarantee thereof or any options, warrants, or other
rights to purchase such Capital Stock or such Indebtedness, whether now or
hereafter outstanding (each, a "Restricted Payment"), except for (i) dividends
payable by Subsidiaries of the Borrower solely in shares of any class of its
Capital Stock, (ii) Restricted Payments made by any Subsidiary to the Borrower
or to another Subsidiary, on at least a pro rata basis with any other holders
of its Capital Stock if such Subsidiary is not wholly owned by the Borrower and
other wholly owned Subsidiaries, (iii) distributions on the Limited Partnership
Units and General Partners' interests in accordance with the Borrower
Partnership Agreement and (iv) repurchases of the Limited Partnership Interests
provided that the aggregate purchase price therefore does not exceed
$20,000,000 in the aggregate during the term of this Agreement.
SECTION 7.6. RESERVED.
SECTION 7.7. TRANSACTIONS WITH AFFILIATES. Except as set
forth in Schedule 7.7, the Borrower will not, and will not permit any of its
Subsidiaries to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except
(a) in the ordinary course of business at prices and on terms and conditions
not less favorable to the Borrower or such Subsidiary than could be obtained on
an arm's-length basis from unrelated third parties, (b) transactions between or
among the Borrower and any other Loan Party not involving any other Affiliates
and (c) any Restricted Payment permitted by Section 7.5.
SECTION 7.8. RESTRICTIVE AGREEMENTS. The Borrower will not,
and will not permit any Subsidiary to, directly or indirectly, enter into,
incur or permit to exist any agreement that prohibits, restricts or imposes any
condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit any Lien upon any of its assets or properties, whether now
owned or hereafter acquired, to secure any obligations owing under the Loan
Documents, except as provided for (x) by the Viking Indenture, (y) so long as
Pipeline or Guardian is a Subsidiary of the Borrower, by the Pipeline Credit
Agreement or the Guardian Agreements, respectively, and (z) by indentures or
other agreements governing publicly issued Indebtedness of the Borrower
requiring that such Indebtedness be secured by an equal and ratable Lien with
any Lien that may be granted to secure any obligations owing under the Loan
Documents, or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to its Capital Stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guarantee Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, that (i)
the foregoing shall not apply to restrictions or conditions imposed by law or
by this Agreement or any other Loan Document or any loan or credit agreement
governing Indebtedness permitted under Section 7.1(a), (ii) the foregoing shall
not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is sold and such
sale is permitted hereunder, (iii) clause (a) shall not apply to restrictions
or conditions imposed by any agreement relating to
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secured Indebtedness permitted by this Agreement, or so long as Guardian is a
Subsidiary of the Borrower, the Guardian Agreements, in each case so long as
such restrictions and conditions apply only to the property or assets securing
such Indebtedness, and (iv) clause (a) shall not apply to customary provisions
in leases restricting the assignment thereof.
SECTION 7.9. GOVERNMENT REGULATIONS. No Loan Party will
conduct its business in such a way that it will become subject to regulation
under the Investment Company Act of 1940, as amended, the Federal Power Act, as
amended, or any other Law (other than Regulations T, U, and X of the Board of
Governors of the Federal Reserve System) which regulates the incurrence of
Indebtedness.
SECTION 7.10. HEDGING TRANSACTIONS. The Borrower will not,
and will not permit any of the Subsidiaries to, enter into any Hedging
Transaction, other than Hedging Transactions entered into in the ordinary
course of business to hedge or mitigate risks to which the Borrower or any
Subsidiary is exposed in the conduct of its business or the management of its
liabilities. Solely for the avoidance of doubt, the Borrower acknowledges that
a Hedging Transaction entered into for speculative purposes or of a speculative
nature (which shall be deemed to include any Hedging Transaction under which
the Borrower or any of the Subsidiaries is or may become obliged to make any
payment (i) in connection with the purchase by any third party of any common
stock or any Indebtedness or (ii) as a result of changes in the market value of
any common stock or any Indebtedness but shall be deemed to exclude any Hedging
Transaction in which the Borrower ▇▇▇▇▇▇ the issuance price of its Limited
Partnership Units in connection with an anticipated offering of additional
Limited Partnership Units) is not a Hedging Transaction entered into in the
ordinary course of business to hedge or mitigate risks.
SECTION 7.11. ACCOUNTING CHANGES. The Borrower will not, and
will not permit any of its Subsidiaries to, make any significant change in
accounting treatment or reporting practices, except as required by GAAP, or
change the fiscal year of the Borrower or of any of its Subsidiaries, except to
change the fiscal year of a Subsidiary to conform its fiscal year to that of
the Borrower.
SECTION 7.12. RESTRICTIONS ON AGREEMENTS GOVERNING
INDEBTEDNESS. The Borrower will not, and will not permit any of its
Subsidiaries to, enter into or otherwise become a party to any agreement
governing Indebtedness of the Borrower or such Subsidiary which contains any
redemption or "put rights" with respect to such Indebtedness that may be
exercised by any holders of such Indebtedness or any trustee, agent or other
representative on behalf of such holders, except for the Senior Notes and the
Senior Notes Indentures.
SECTION 7.13. CERTAIN AMENDMENTS TO CASH DISTRIBUTION
POLICIES AND PARTNERSHIP AGREEMENTS. Each Loan Party agrees that it shall not
consent to, vote in favor of or permit any amendment of (a) the cash
distribution policies of Pipeline or Intermediate Partnership in any manner
which would result in a Material Adverse Effect with respect to any Loan Party
or materially adversely affect the rights and remedies of Lenders under and in
connection with this Agreement, the Notes or any other Loan Document; or (b)
the Borrower Partnership Agreement, the Pipeline Partnership Agreement or the
Intermediate Partnership Agreement in any manner which would (i) have a
material adverse effect on the rights and
60
remedies of Lenders under and in connection with this Agreement, the Notes or
any other Loan Document; or (ii) result in a Material Adverse Effect.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. If any of the following
events (each an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
or of any reimbursement obligation in respect of any LC Disbursement when and
as the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount payable under clause (a)
of this Section 8.1) payable under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five (5) days; or
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document (including the Schedules attached thereto)
and any amendments or modifications hereof or waivers hereunder, or in any
certificate, report, financial statement or other document submitted to the
Administrative Agent or the Lenders by any Loan Party or any representative of
any Loan Party pursuant to or in connection with this Agreement or any other
Loan Document shall prove to be incorrect in any material respect when made or
deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any
covenant or agreement contained in Sections 5.1, 5.2, or 5.3 (with respect to
the Borrower's existence) or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those referred to
in clauses (a), (b) and (d) above) or any other Loan Document, and such failure
shall remain unremedied for 30 days after the earlier of (i) any officer of the
Borrower becomes aware of such failure, or (ii) notice thereof shall have been
given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary
obligor or as guarantor or other surety) shall fail to pay any principal of, or
premium or interest on, any Material Indebtedness that is outstanding, when and
as the same shall become due and payable (whether at scheduled maturity,
required prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument evidencing or governing such Indebtedness; or any other event
shall occur or condition shall exist under any agreement or instrument relating
to such Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of
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such Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or any
offer to prepay, redeem, purchase or defease such Indebtedness shall be
required to be made, in each case prior to the stated maturity thereof;
provided, that no Default will result from a Rating Decline Offer (as such term
is defined in the Senior Note Indentures), or the event causing such offer,
under the Senior Notes or the election by one or more holders of Senior Note(s)
to exercise its or their rights to have all or any portion of their Senior
Notes repurchased by the Borrower; or
(g) the Borrower or any Subsidiary shall (i) commence a
voluntary case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section 8.1, (iii) apply
for or consent to the appointment of a custodian, trustee, receiver, liquidator
or other similar official for the Borrower or any such Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for
the purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Subsidiary or its debts, or any
substantial part of its assets, under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or (ii) the
appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any Subsidiary or for a substantial part of its
assets, and in any such case, such proceeding or petition shall remain
undismissed for a period of 60 days or an order or decree approving or ordering
any of the foregoing shall be entered; or
(i) the Borrower or any Subsidiary shall become unable to
pay, shall admit in writing its inability to pay, or shall fail to pay, its
debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in liability to the Borrower
and the Subsidiaries in an aggregate amount exceeding the Threshold Amount; or
(k) any judgments or orders for the payment of money in
excess of the Threshold Amount in the aggregate shall be rendered against the
Borrower or any Subsidiaries, and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgments or orders or (ii) there
shall be a period of 30 consecutive days during which a stay of enforcement of
such judgments or orders, by reason of a pending appeal or otherwise, shall not
be in effect; or
(l) any non-monetary judgment or order shall be rendered
against the Borrower or any Subsidiary that could reasonably be expected to
have a Material Adverse Effect,
62
and there shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any Loan Document shall, at any time after its execution
and delivery and for any reason, cease to be in full force and effect in any
material respect or be declared to be null and void (other than in accordance
with the terms hereof or thereof) or the validity or enforceability thereof be
contested by any Loan Party thereto or any Loan Party shall deny in writing
that it has any or any further liability or obligations under any Loan Document
to which it is a party; or
(o) any event or condition shall occur or exist with respect
to any activity or substance regulated under the Environmental Law and, as a
result of such event or condition, any Loan Party or any of their respective
Subsidiaries shall have incurred or in the opinion of the Required Lenders will
be reasonably likely to incur a liability in excess of the Threshold Amount
during any consecutive twelve (12) month period; or
(p) any Loan Party or, so long as Pipeline is a Subsidiary of
the Borrower, Pipeline shall dissolve, liquidate, or otherwise terminate their
existence, except, with respect to Pipeline, pursuant to Section 14 or Section
15 (to the extent it applies to a merger pursuant to Section 14) of Pipeline's
Partnership Agreement; or
(q) any material provision of any Guaranty Agreement shall
for any reason cease to be valid and binding on, or enforceable against any
Guarantor, or any Guarantor shall so state in writing, or any Guarantor shall
seek to terminate its Guaranty Agreement; or
(r) so long as Pipeline is a Subsidiary of the Borrower, any
"Event of Default" shall occur or exist under the terms of the Pipeline Credit
Agreement;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section 8.1) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon
the written request of the Required Lenders shall, by notice to the Borrower,
take any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately, (ii) declare the principal of and any accrued interest
on the Loans, and all other Obligations owing hereunder, to be, whereupon the
same shall become, due and payable immediately, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower, (iii) exercise all remedies contained in any other Loan Document, and
(iv) exercise any other remedies available at law or in equity; and that, if an
Event of Default specified in either clause (g) or (h) shall occur, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon, and all fees, and all
other Obligations shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
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ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. APPOINTMENT OF ADMINISTRATIVE AGENT.
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent and authorizes it to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent under this
Agreement and the other Loan Documents, together with all such actions and
powers that are reasonably incidental thereto. The Administrative Agent may
perform any of its duties hereunder or under the other Loan Documents by or
through any one or more sub-agents or attorneys-in-fact appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent or
attorney-in-fact may perform any and all of its duties and exercise its rights
and powers through their respective Related Parties. The exculpatory provisions
set forth in this Article shall apply to any such sub-agent or attorney-in-fact
and the Related Parties of the Administrative Agent, any such sub-agent and any
such attorney-in-fact and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent
may agree at the request of the Required Lenders to act for the Issuing Bank
with respect thereto; provided, that the Issuing Bank shall have all the
benefits and immunities (i) provided to the Administrative Agent in this
Article with respect to any acts taken or omissions suffered by the Issuing
Bank in connection with Letters of Credit issued by it or proposed to be issued
by it and the application and agreements for letters of credit pertaining to
the Letters of Credit as fully as if the term "Administrative Agent" as used in
this Article included the Issuing Bank with respect to such acts or omissions
and (ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
SECTION 9.2. NATURE OF DUTIES OF ADMINISTRATIVE AGENT. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action
or exercise any discretionary powers, except those discretionary rights and
powers expressly contemplated by the Loan Documents that the Administrative
Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.2), and (c) except as expressly set
forth in the Loan Documents, the Administrative Agent shall not have any duty
to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for
any action taken or not taken by it, its sub-agents or attorneys-in-fact with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
64
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be responsible for the
negligence or misconduct of any sub-agents or attorneys-in-fact selected by it
with reasonable care. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof (which notice shall include an express reference to such event being a
"Default" or "Event of Default" hereunder) is given to the Administrative Agent
by the Borrower or any Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements, or other
terms and conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article III or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent. The Administrative Agent may consult with legal counsel (including
counsel for the Borrower) concerning all matters pertaining to such duties.
SECTION 9.3. LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT.
Each of the Lenders, the Swingline Lender and the Issuing Bank acknowledges
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 credit analysis and decision to enter into
this Agreement. Each of the Lenders, the Swingline Lender and the Issuing Bank
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, continue to make its own decisions in
taking or not taking of any action under or based on this Agreement, any
related agreement or any document furnished hereunder or thereunder.
SECTION 9.4. CERTAIN RIGHTS OF THE ADMINISTRATIVE AGENT. If
the Administrative Agent shall request instructions from the Required Lenders
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have
received instructions from such Lenders; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
SECTION 9.5. RELIANCE BY ADMINISTRATIVE AGENT. The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed, sent or made by the proper Person. The Administrative
Agent may also rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (including counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken
or not taken by it in accordance with the advice of such counsel, accountants
or experts.
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SECTION 9.6. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL
CAPACITY. The bank serving as the Administrative Agent shall have the same
rights and powers under this Agreement and any other Loan Document in its
capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the
terms "Lenders", "Required Lenders", "holders of Notes", or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The bank acting as the
Administrative Agent and its Affiliates may accept deposits from, lend money
to, and generally engage in any kind of business with the Borrower or any
Subsidiary or Affiliate of the Borrower as if it were not the Administrative
Agent hereunder.
SECTION 9.7. SUCCESSOR ADMINISTRATIVE AGENT.
(a) The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Default or
Event of Default shall exist at such time. If no successor Administrative Agent
shall have been so appointed, and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice of resignation,
then the retiring Administrative Agent may, on behalf of the Lenders and the
Issuing Bank, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of America or any
state thereof or a bank which maintains an office in the United States, having
a combined capital and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. If within 45 days after written
notice is given of the retiring Administrative Agent's resignation under this
Section 9.7 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent's resignation shall become effective, (ii) the retiring
Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a successor
Administrative Agent as provided above. After any retiring Administrative
Agent's resignation hereunder, the provisions of this Article shall continue in
effect for the benefit of such retiring Administrative Agent and its
representatives and agents in respect of any actions taken or not taken by any
of them while it was serving as the Administrative Agent.
SECTION 9.8. AUTHORIZATION TO EXECUTE OTHER LOAN DOCUMENTS.
Each Lender hereby authorizes the Administrative Agent to execute on behalf of
all Lenders all Loan Documents other than this Agreement.
SECTION 9.9. SYNDICATION AGENT AND CO-DOCUMENTATION AGENTS.
Each Lender hereby designates Wachovia Bank, National Association as
Syndication Agent and agrees that the Syndication Agent shall have no duties or
obligations under any Loan Documents
66
to any Lender or any Loan Party. Each Lender hereby designates BANK OF MONTREAL
(doing business as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇), Barclays Bank PLC, and Citibank, N.A., as
Co-Documentation Agents and agrees that the Co-Documentation Agents shall have
no duties or obligations under any Loan Documents to any Lender or any Loan
Party.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. NOTICES.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications to any party herein to be effective shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
To the Borrower: Northern Border Partners, L.P.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Financial and Accounting Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Northern Plains Natural Gas Company
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Ms. ▇▇▇▇▇ Place
Vice President and General Counsel
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
To the Administrative Agent
or Swingline Lender: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: SunTrust Bank
Agency Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. E./ 25th Floor
Atlanta, Georgia 30308
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
67
and
King & Spalding LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Bank: SunTrust Bank
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇. E./Mail Code 3706
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Swingline Lender: SunTrust Bank
Agency Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇./▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the
Administrative Questionnaire or the
Assignment and Acceptance Agreement
executed by such Lender
Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
such notices and other communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for overnight (next-day)
delivery, or transmitted in legible form by facsimile machine, respectively, or
if mailed, upon the third Business Day after the date deposited into the mail
or if delivered, upon delivery; provided, that notices delivered to the
Administrative Agent, the Issuing Bank or the Swingline Bank shall not be
effective until actually received by such Person at its address specified in
this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and
the Lenders shall be entitled to rely on the authority of any Person purporting
to be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower
or other Person on account of any action taken or not taken by the
Administrative Agent or the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of the Borrower to repay the Loans and all
other Obligations hereunder shall not be affected in any way or to any extent
by any failure of the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Administrative Agent and the Lenders of a confirmation which is at variance
with the terms understood by the Administrative Agent and the Lenders to be
contained in any such telephonic or facsimile notice.
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SECTION 10.2. WAIVER; AMENDMENTS.
(a) No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder or any
other Loan Document, and no course of dealing between the Borrower and the
Administrative Agent or any Lender, shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power or any
abandonment or discontinuance of steps to enforce such right or power, preclude
any other or further exercise thereof or the exercise of any other right or
power hereunder or thereunder. The rights and remedies of the Administrative
Agent, the Issuing Bank and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies
provided by law. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section 10.2, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or the issuance of a Letter
of Credit shall not be construed as a waiver of any Default or Event of
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default or Event of
Default at the time.
(b) No amendment or waiver of any provision of this Agreement
or the other Loan Documents, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Borrower and the Required Lenders or the Borrower and the
Administrative Agent with the consent of the Required Lenders and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no amendment or waiver shall:
(i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
date fixed for any payment of any principal of, or interest on, any Loan or LC
Disbursement or interest thereon or any fees hereunder or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.19(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender or waive or amend any condition set forth in
Section 3.1, (v) change any of the provisions of this Section 10.2 or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement, without the
written consent of each Lender; (vii) release all or substantially all
collateral (if any) securing any of the Obligations, without the written
consent of each Lender; provided further, that no such agreement shall amend,
modify or otherwise affect the rights, duties or obligations of the
Administrative Agent, the Swingline Bank or the Issuing Bank without the prior
written consent of such Person. Notwithstanding anything contained herein to
the contrary, this Agreement may be amended and restated without the consent of
any Lender (but with the consent of the Borrower and the Administrative Agent)
if, upon giving effect to such amendment and restatement, such Lender shall no
longer be a party to this Agreement (as so amended and restated), the
Commitments of such Lender shall have
69
terminated (but such Lender shall continue to be entitled to the benefits of
Sections 2.16, 2.17, 2.18 and 10.3), such Lender shall have no other commitment
or other obligation hereunder and shall have been paid in full all principal,
interest and other amounts owing to it or accrued for its account under this
Agreement.
SECTION 10.3. EXPENSES; INDEMNIFICATION.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket
costs and expenses of the Administrative Agent, the Syndication Agent and their
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, the Syndication Agent and their Affiliates, in
connection with the syndication of the credit facilities provided for herein,
the preparation of the Loan Documents and any amendments, modifications or
waivers thereof (whether or not the transactions contemplated in this Agreement
or any other Loan Document shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket costs and expenses
(including, without limitation, the reasonable fees, charges and disbursements
of outside counsel) incurred by the Administrative Agent, the Syndication
Agent, the Issuing Bank or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement, including its
rights under this Section 10.3, or in connection with the Loans made or any
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent
(and any sub-agent thereof), each Lender and the Issuing Bank, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the fees,
charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and
disbursements for attorneys who may be employees of any Indemnitee, incurred by
any Indemnitee or asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or Release of Hazardous Materials
on or from any property owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of
70
such Indemnitee, (y) result from a claim brought by the Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if the Borrower or such
Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction or (z) result from a
claim brought by one Indemnitee against another Indemnitee (other than the
Administrative Agent, the Syndication Agent, the Swingline Lender or the
Issuing Bank, in their capacities as such).
(c) The Borrower shall pay, and hold the Administrative Agent
and each of the Lenders harmless from and against, any and all present and
future stamp, documentary, and other similar taxes with respect to this
Agreement and any other Loan Documents, any collateral described therein, or
any payments due thereunder, and save the Administrative Agent and each Lender
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent, the Issuing Bank or the
Swingline Lender under clauses (a), (b) or (c) hereof, each Lender severally
agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be, such Lender's Pro Rata Share (determined as of the
time that the unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided, that the unreimbursed expense or indemnified payment,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent, the Issuing Bank or the
Swingline Lender in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to actual or direct damages) arising out of, in connection with or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or any Letter of Credit
or the use of proceeds thereof.
(f) All amounts due under this Section 10.4 shall be payable
promptly after written demand therefor.
SECTION 10.4. SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender, and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an assignee in accordance with the provisions of paragraph (b) of this
Section, (ii) by way of participation in accordance with the provisions of
paragraph (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of paragraph (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby,
71
Participants to the extent provided in paragraph (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing
to it); provided that any such assignment shall be subject to the following
conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the
Loans at the time owing to it or in the case of an assignment
to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and
(B) in any case not described in paragraph (b)(i)(A)
of this Section, the aggregate amount of the Commitment
(which for this purpose includes Revolving Credit Exposure
outstanding thereunder) or, if the applicable Commitment is
not then in effect, the principal outstanding balance of the
Revolving Credit Exposure of the assigning Lender subject to
each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Acceptance, as of the Trade
Date) shall not be less than $1,000,000, unless each of the
Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or
delayed).
(ii) Proportionate Amounts. Each partial assignment shall be
made as an assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement with respect to
the Revolving Credit Exposure or the Commitment assigned.
(iii) Required Consents. No consent shall be required
for any assignment except to the extent required by paragraph
(b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to
be unreasonably withheld or delayed) shall be required unless
(x) an Event of Default has occurred and is continuing at the
time of such assignment or (y) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such
consent not to be unreasonably withheld or delayed) shall be
required for assignments to a Person that is not a Lender
with a Commitment; and
(C) the consent of the Issuing Bank (such consent
not to be unreasonably withheld or delayed) shall be required
for any assignment that increases the
72
obligation of the assignee to participate in exposure under
one or more Letters of Credit (whether or not then
outstanding), and the consent of the Swingline Lender (such
consent not to be unreasonably withheld or delayed) shall be
required for any assignment in respect of the Revolving Credit
Commitments.
(iv) Assignment and Acceptance. The parties to each
assignment shall deliver to the Administrative Agent (A) a duly
executed Assignment and Acceptance, (B) a processing and recordation
fee of $3,000, (C) an Administrative Questionnaire unless the assignee
is already a Lender and (D) the documents required under Section 2.18
if such assignee is a Foreign Lender.
(v) No Assignment to Borrower. No such assignment shall be
made to the Borrower or any of the Borrower's Affiliates or
Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment
shall be made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to paragraph (c) of this Section 10.4, from and after the effective
date specified in each Assignment and Acceptance, the assignee thereunder shall
be a party to this Agreement and, to the extent of the interest assigned by
such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 2.19, 2.20, 2.21 and 10.3
with respect to facts and circumstances occurring prior to the effective date
of such assignment. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (d)
of this Section 10.4.
(c) The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at one of its offices in Atlanta,
Georgia a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Revolving Credit Exposure owing to,
each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may at any time, without the consent of, or
notice to, the Borrower, the Administrative Agent, the Swingline Bank or the
Issuing Bank sell participations to any Person (other than a natural person,
the Borrower or any of the Borrower's Affiliates or Subsidiaries) (each, a
"Participant") in all or a portion of such Lender's rights and/or obligations
73
under this Agreement (including all or a portion of its Commitment and/or the
Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Lenders, Issuing Bank and
Swingline Lender shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement.
(e) Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver with respect to the
following to the extent affecting such Participant: (i) increase the Commitment
of any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent of
each Lender affected thereby, (iii) postpone the date fixed for any payment of
any principal of, or interest on, any Loan or LC Disbursement or interest
thereon or any fees hereunder or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date for the termination or reduction of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.19(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section 10.4 or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders which are required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
consent of each Lender; (vi) release any guarantor or limit the liability of
any such guarantor under any guaranty agreement without the written consent of
each Lender except to the extent such release is expressly provided under the
terms of the Guaranty Agreement; or (vii) release all or substantially all
collateral (if any) securing any of the Obligations. Subject to paragraph (e)
of this Section 10.4, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.16, 2.17, and 2.18 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section 10.4. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.7 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.19
as though it were a Lender.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.16 and Section 2.18 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.18 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.18(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank;
74
provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
SECTION 10.5. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE
OF PROCESS.
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without giving effect
to the conflict of law principles thereof) of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction of the
United States District Court of the Southern District of New York, and of any
state court of the State of Supreme Court of the State of New York sitting in
New York county and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan
Document or the transactions contemplated hereby or thereby, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York state court
or, to the extent permitted by applicable law, such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or
any other Loan Document shall affect any right that the Administrative Agent,
the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of this Section 10.5 and
brought in any court referred to in paragraph (b) of this Section 10.5. Each of
the parties hereto irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 10.1. Nothing
in this Agreement or in any other Loan Document will affect the right of any
party hereto to serve process in any other manner permitted by law.
SECTION 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER, AND (B)
75
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.7. RIGHT OF SETOFF. In addition to any rights now
or hereafter granted under applicable law and not by way of limitation of any
such rights, each Lender and the Issuing Bank shall have the right, at any time
or from time to time upon the occurrence and during the continuance of an Event
of Default, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, to
set off and apply against all deposits (general or special, time or demand,
provisional or final) of the Borrower at any time held or other obligations at
any time owing by such Lender and the Issuing Bank to or for the credit or the
account of the Borrower against any and all Obligations held by such Lender or
the Issuing Bank, as the case may be, irrespective of whether such Lender or
the Issuing Bank shall have made demand hereunder and although such Obligations
may be unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Borrower after any such set-off and any
application made by such Lender and the Issuing Bank, as the case may be;
provided, that the failure to give such notice shall not affect the validity of
such set-off and application.
SECTION 10.8. COUNTERPARTS; INTEGRATION. This Agreement may
be executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent and the
Co-Arrangers constitute the entire agreement among the parties hereto and
thereto regarding the subject matters hereof and thereof and supersede all
prior agreements and understandings, oral or written, regarding such subject
matters.
SECTION 10.9. SURVIVAL. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement
and the making of any Loans and issuance of any Letters of Credit, regardless
of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any Lender
may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on
any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and so long as
the Commitments have not expired or terminated. The provisions of Sections
2.16, 2.17, 2.18, and 10.3 and Article IX shall survive and remain in full
force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof as the case may be. All representations and
warranties made herein, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the other Loan Documents, and the making of the
Loans and the issuance of the Letters of Credit.
76
SECTION 10.10. SEVERABILITY. Any provision of this Agreement
or any other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
SECTION 10.11. CONFIDENTIALITY. Each of the Administrative
Agent, the Issuing Bank and each Lender agrees to take normal and reasonable
precautions to maintain the confidentiality of any information designated in
writing as confidential and provided to it by the Borrower or any Subsidiary,
except that such information may be disclosed (i) to any Related Party of the
Administrative Agent, the Issuing Bank or any such Lender, including without
limitation accountants, legal counsel and other advisors, (ii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (iii) to the extent requested by any regulatory agency or authority,
(iv) to the extent that such information becomes publicly available other than
as a result of a breach of this Section 10.11, or which becomes available to
the Administrative Agent, the Issuing Bank, any Lender or any Related Party of
any of the foregoing on a nonconfidential basis from a source other than the
Borrower, (v) in connection with the exercise of any remedy hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, and (ix) subject to provisions substantially similar to this
Section 10.11, to any actual or prospective assignee or Participant, or (vi)
with the consent of the Borrower. Any Person required to maintain the
confidentiality of any information as provided for in this Section 10.11 shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.
SECTION 10.12. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which may be
treated as interest on such Loan under applicable law (collectively, the
"Charges"), shall exceed the maximum lawful rate of interest (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by a
Lender holding such Loan in accordance with applicable law, the rate of
interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan but were not payable as a result of the operation of this Section
10.12 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the Maximum
Rate therefor) until such cumulated amount, together with interest thereon at
the Federal Funds Rate to the date of repayment, shall have been received by
such Lender.
SECTION 10.13. WAIVER OF EFFECT OF SEAL. The Borrower
represents and warrants that neither it nor any other Loan Party is required to
affix any seal to this Agreement or any other Loan Document pursuant to any
Requirement of Law or regulation, agrees that this Agreement is delivered by
Borrower under seal and waives any shortening of the statute of limitations
that may result from not affixing any seal to this Agreement or such other Loan
Documents.
77
SECTION 10.14. PATRIOT ACT. The Administrative Agent and each
Lender hereby notifies the Loan Parties that pursuant to the requirements of
the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Patriot Act"), it is required to obtain, verify and record
information that identifies each Loan Party, which information includes the
name and address of such Loan Party and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify such Loan Party
in accordance with the Patriot Act. Each Loan Party shall, and shall cause each
of its Subsidiaries to, provide to the extent commercially reasonable, such
information and take such other actions as are reasonably requested by the
Administrative Agent or any Lender in order to assist the Administrative Agent
and the Lenders in maintaining compliance with the Patriot Act.
SECTION 10.15. NO GENERAL PARTNER LIABILITY. The
Administrative Agent and Lenders agree for themselves and their respective
successors, participants and assigns, including any subsequent holder of any
Note, that any claim against Borrower which may arise under any Loan Document
shall be made only against and shall be limited to the assets of Borrower,
except to the extent any general partner of the Borrower may have obligations
with respect to such claim pursuant to the terms of its Guaranty Agreement, if
any, and that no judgment, order or execution entered in any suit, action or
proceeding, whether legal or equitable, on this Agreement, such Note or any of
the other Loan Documents shall be obtained or enforced against any general
partner of the Borrower or its assets for the purpose of obtaining satisfaction
and payment of such Note, the Obligations evidenced thereby, any other
Obligation or any claims arising thereunder or under this Agreement or any
other Loan Document, any right to proceed against any general partner of the
Borrower individually or their respective representatives or assets being
hereby expressly waived, renounced and remitted by the Administrative Agent and
Lenders for themselves and their respective successors, participants and
assigns. Nothing in this Section 10.15, however, shall be construed so as to
prevent the Administrative Agent, any Lender or any other holder of any Note
from commencing any action, suit or proceeding with respect to or causing legal
papers to be served upon any general partner of the Borrower for the purpose of
obtaining jurisdiction over Borrower.
SECTION 10.16. AMENDMENT AND RESTATEMENT. This Agreement
constitutes an amendment and restatement of the Existing Credit Agreement and
is not, and is not intended by the parties to be, a novation of the Existing
Credit Agreement. All rights and obligations of the parties shall continue in
effect, except as otherwise expressly set forth herein. Without limiting the
foregoing, no Default or Event of Default existing under the Existing Credit
Agreement as of the Restatement Date shall be deemed waived or cured by this
amendment and restatement thereof. On the Restatement Date, any and all Loans
outstanding under the Existing Credit Agreement, together with all accrued and
unpaid interest, fees, and other expenses and amounts payable by the Borrower
under the Existing Credit Agreement shall be paid in full to the "Lenders"
under the Existing Credit Agreement, the Issuing Bank, and the Administrative
Agent, and the Revolving Commitments of those "Lenders" under the Existing
Credit Agreement that are not continuing as Lenders under this Agreement shall
automatically terminate and cease to be of any force or effect without further
action on the part of any party. The Revolving Commitments of the Lenders under
this Agreement after giving effect to this amendment and restatement are set
forth on the respective signature pages for such Lenders hereinafter set forth.
On and after the Restatement Date, all Loans and other extensions of credit
shall be made by the Lenders under this Agreement in accordance with their
respective Pro Rata Shares of the
78
Revolving Commitments as in effect from time to time. All references in the
other Loan Documents to the Credit Agreement shall be deemed to refer to and
mean this Amended and Restated Revolving Credit Agreement, as the same may be
further amended, supplemented, and restated from time to time.
(remainder of page left intentionally blank)
79
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
NORTHERN BORDER PARTNERS, L.P.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial and Accounting Officer
SUNTRUST BANK
AS ADMINISTRATIVE AGENT, AS ISSUING BANK, AS SWINGLINE
LENDER AND AS A LENDER
By
---------------------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
AS SYNDICATION AGENT AND AS A LENDER
By
---------------------------------------------------
Name:
Title:
CITIBANK, N.A., AS A LENDER
By
---------------------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCING, INC., AS A LENDER
By
---------------------------------------------------
Name:
Title:
UBS LOAN FINANCE LLC, AS A LENDER
By
---------------------------------------------------
Name:
Title:
By
---------------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., AS A LENDER
By
---------------------------------------------------
Name:
Title:
BARCLAYS BANK PLC, AS A LENDER
By
---------------------------------------------------
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC, AS A LENDER
By
---------------------------------------------------
Name:
Title:
ROYAL BANK OF CANADA, AS A LENDER
By
---------------------------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A., AS A LENDER
By
---------------------------------------------------
Name:
Title:
COMERICA BANK, AS A LENDER
By
---------------------------------------------------
Name:
Title:
MIZUHO CORPORATE BANK, LTD., AS A LENDER
By
---------------------------------------------------
Name:
Title:
BNP PARIBAS, AS A LENDER
By
---------------------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION, AS A LENDER
By
---------------------------------------------------
Name:
Title:
SCHEDULE I
APPLICABLE MARGIN AND APPLICABLE PERCENTAGE
Applicable Margin Applicable Margin Applicable
Pricing for Eurodollar for Base Percentage for
Level Rating Category Loans Rate Loans Facility Fee
------------- ------------------- -------------------- -------------------- --------------------
I A-or higher/A3 or
higher 0.210% per annum 0.00% per annum 0.065% per annum
------------- ------------------- -------------------- -------------------- --------------------
II BBB+/Baa(1) 0.270% per annum 0.00% per annum 0.080% per annum
------------- ------------------- -------------------- -------------------- --------------------
III BBB/Baa(2) 0.350% per annum 0.00% per annum 0.100% per annum
------------- ------------------- -------------------- -------------------- --------------------
IV BBB- /Baa(3) 0.500% per annum 0.00% per annum 0.125% per annum
------------- ------------------- -------------------- -------------------- --------------------
V BB+ or lower/Ba1
or lower 0.575% per annum 0.00% per annum 0.175% per annum
------------- ------------------- -------------------- -------------------- --------------------
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior, unsecured long-term debt securities of the
Borrower without third-party credit enhancement, whether or not any such debt
securities are actually outstanding, and any rating assigned to any other debt
security of the Borrower shall be disregarded. The rating in effect on any date
is that in effect at the close of business on such date. If the Borrower is
split-rated and (1) the ratings differential is one category, the higher of the
two ratings will apply (e.g., A-/Baa1 results in Level I status) (2) the ratings
differential is two categories, the rating which falls between them shall apply
(e.g., A-/Baa2, then the rate would be based on Level II status) or (3) the
ratings differential is more than two category, the rate shall be determined by
reference to the category next above that of the lower of the two ratings (e.g.,
A-/Baa3, then the rate would be based on Level III status). If the Borrower is
not rated by either ▇▇▇▇▇'▇ or S&P, then the rate shall be established by
reference to Level V.
If the rating system of ▇▇▇▇▇'▇ or S&P shall change, or if either rating agency
shall cease to be in the business of rating corporate debt obligations, the
Borrower, the Lenders and the Administrative Agent shall negotiate in good faith
to amend this Schedule to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Applicable Margin and the Applicable Percentage shall
be determined by reference to the rating most recently in effect prior to any
such change or cessation. If after a reasonable time the parties cannot agree to
a mutually acceptable amendment, the Applicable Margin and the Applicable
Percentage shall be determined by reference to Level V.
SCHEDULE II
COMMITMENT AMOUNTS
LENDER REVOLVING COMMITMENT AMOUNT PRO RATA SHARE
------ --------------------------- --------------
SunTrust Bank $67,500,000 9.0%
Wachovia Bank, National Association $67,500,000 9.0%
Citibank, N.A. $67,500,000 9.0%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Financing, Inc. $55,500,000 7.4%
UBS Loan Finance LLC $55,500,000 7.4%
Bank of America, N.A. $55,500,000 7.4%
Barclays Bank PLC $55,500,000 7.4%
The Royal Bank of Scotland PLC $55,500,000 7.4%
Royal Bank of Canada $45,000,000 6.0%
▇▇▇▇▇ Fargo Bank, N.A. $45,000,000 6.0%
Comerica Bank $45,000,000 6.0%
Mizuho Corporate Bank, Ltd. $45,000,000 6.0%
BNP Paribas $45,000,000 6.0%
U.S. Bank National Association $45,000,000 6.0%
SCHEDULE 4.5(b)
ENVIRONMENTAL MATTERS
NONE
Schedule 4.5(b)
SCHEDULE 4.14
SUBSIDIARIES
SUBSIDIARY OF BORROWER
Name of Subsidiary Jurisdiction of Incorporation or Organization Type of Entity
------------------ --------------------------------------------- --------------
Northern Border Intermediate
Limited Partnership Delaware limited partnership
SUBSIDIARIES OF INTERMEDIATE PARTNERSHIP
Name of Subsidiary Jurisdiction of Incorporation or Organization Type of Entity
------------------ ---------------------------------------------- --------------
Northern Border Pipeline Company Texas general partnership
Crestone Energy Ventures, L.L.C. Delaware limited liability
company
Bear Paw Investments, LLC Delaware limited liability
company
Black Mesa Pipeline Operations, L.L.C. Delaware limited liability
company
Border Midstream Services, Ltd. Alberta, Canada corporation
Border Midwestern Company Delaware corporation
Border Minnesota Pipeline, LLC Delaware limited liability
company
Schedule 4.14
SUBSIDIARIES OF BEAR PAW INVESTMENTS, LLC
Name of Subsidiary Jurisdiction of Incorporation or Organization Type of Entity
------------------ --------------------------------------------- --------------
Bear Paw Energy, LLC Delaware limited liability
company
▇▇▇▇▇ Bear Enterprises, LLC Delaware limited liability
company
SUBSIDIARIES OF BEAR PAW ENERGY, LLC
Name of Subsidiary Jurisdiction of Incorporation or Organization Type of Entity
------------------ --------------------------------------------- --------------
Bear Paw Processing Company
(Canada) Ltd Canada corporation
SUBSIDIARIES OF BLACK MESA HOLDINGS, INC.
Name of Subsidiary Jurisdiction of Incorporation or Organization Type of Entity
------------------ --------------------------------------------- --------------
Black Mesa Pipeline, Inc. Delaware corporation
SUBSIDIARIES OF CRESTONE ENERGY VENTURES, L.L.C.
Name of Subsidiary Jurisdiction of Incorporation or Organization Type of Entity
------------------ --------------------------------------------- --------------
Crestone Powder River, L.L.C. Delaware limited liability
company
Crestone Wind River, L.L.C. Delaware limited liability
company
Crestone Bighorn, L.L.C. Delaware limited liability
company
Crestone Gathering Services, L.L.C. Delaware limited liability
company
Schedule 4.14
SUBSIDIARIES OF BORDER MIDWESTERN COMPANY
Name of Subsidiary Jurisdiction of Incorporation or Organization Type of Entity
------------------ --------------------------------------------- --------------
Midwestern Gas Transmission Company Delaware corporation
Midwestern Gas Marketing Company Delaware corporation
Border Viking Company Delaware corporation
Black Mesa Technologies, Inc. Oklahoma corporation
Black Mesa Holdings, Inc. Delaware corporation
SUBSIDIARIES OF BORDER VIKING COMPANY
Name of Subsidiary Jurisdiction of Incorporation or Organization Type of Entity
------------------ --------------------------------------------- --------------
Viking Gas Transmission Company Delaware corporation
Schedule 4.14
SCHEDULE 7.2
EXISTING LIENS
NONE
Schedule 7.2
SCHEDULE 7.4
EXISTING INVESTMENTS
Investments Percentage Owned
----------- ----------------
Bighorn Gas Gathering, L.L.C., a Delaware limited 49% (common membership interest)
liability company
Fort Union Gas Gathering, L.L.C., a Delaware limited 37.04%
liability company
Lost Creek Gathering Company, L.L.C., a Delaware 35%
limited liability company
Guardian Pipeline, L.L.C., a Delaware limited 33 1/3 %
liability company
Black Mesa Technologies Services, L.L.C. 50 % (common membership interest)
China Pipeline Holdings, Ltd 0.81%
(entity may be dissolved)
See Schedule 4.14 for Subsidiaries
Schedule 7.4
SCHEDULE 7.7
TRANSACTIONS WITH AFFILIATES
Operating Agreement dated as of February 28, 1980 between Northern Border
Pipeline Company and Northern Plains Natural Gas Company, LLC as amended,
modified or supplemented from time to time.
Operating Agreement dated as of May 1, 2001 between Midwestern Gas Transmission
Company and Northern Plains Natural Gas Company, LLC as amended, modified or
supplemented from time to time.
Operating Agreement dated as of January 17, 2003 between Viking Gas Transmission
Company and Northern Plains Natural Gas Company, LLC as amended, modified or
supplemented from time to time.
Operating Agreement effective April 5, 2004 between Guardian Pipeline, L.L.C.
and Northern Plains Natural Gas Company, LLC as amended, modified or
supplemented from time to time.
Administrative Services Agreement dated as of October 1, 1993 between Borrower,
Guarantor and NBP Services, LLC, as amended, modified or supplemented from time
to time which is to be terminated effective with the OKE Acquisition.
Services Agreement to be entered into effective with the OKE Acquisition with
ONEOK, Inc. Northern Plains Natural Gas Company, LLC, NBP Services, ▇.▇▇, the
Borrower and the Guarantor for services including but not limited to executive
officers, legal services, accounting, human resources and benefits, information
technology, insurance and risk management, general operations and maintenance,
purchasing, inventory control, gas supply services, marketing, pipeline control,
right of way management, general operations and maintenance, measurement,
engineering, contract administration, SEC reporting, day-to-day supervisory and
administrative services, planning support, budgeting supporting, technical,
treasury services, tax and internal audit services, systems and other services
required to be provided pursuant to the Partnership Agreement and Intermediate
Partnership Agreement and.
Schedule 7.7