Exhibit 10.03
EXECUTION COPY
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BANK SENIOR LOAN AGREEMENT
among
PORT ▇▇▇▇▇▇ FINANCE CORP.,
as Borrower,
PORT ▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY L.P.,
as Partnership and Guarantor,
SABINE RIVER HOLDING CORP.
as General Partner of the Partnership and Guarantor,
NECHES RIVER HOLDING CORP.,
as Limited Partner of the Partnership and Guarantor,
THE BANK SENIOR LENDERS PARTY HERETO,
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent for the Bank Senior Lenders,
Dated as of August 19, 1999
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Table of Contents
Section Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.01 Defined Terms........................................................ 1
1.02 Interpretation....................................................... 2
1.03 Conflict............................................................. 2
1.04 Senior Notes......................................................... 2
ARTICLE II
LOANS, SENIOR NOTES AND PREPAYMENTS
2.01 Commitments.......................................................... 2
2.02 Procedure for Borrowings............................................. 4
2.03 Fees................................................................. 5
2.04 Lending Offices...................................................... 5
2.05 Several Obligations; Remedies Independent............................ 5
2.06 Senior Notes......................................................... 6
2.07 Optional Prepayments of Loans........................................ 7
2.08 Pro Rata Prepayments................................................. 7
2.09 Mandatory Prepayments................................................ 8
2.10 Change in Commitments................................................ 8
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
3.01 Repayment of Loans................................................... 9
3.02 Interest............................................................. 9
ARTICLE IV
PAYMENTS, PRO RATA TREATMENT, COMPUTATIONS, ETC.
4.01 Payments............................................................. 10
4.02 Pro Rata Treatment................................................... 11
4.03 Computations......................................................... 12
4.04 Certain Notices...................................................... 12
4.05 Non-Receipt of Funds by the Administrative Agent..................... 13
4.06 Right of Set-off..................................................... 14
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Section Page
ARTICLE V
YIELD PROTECTION, ETC.
5.01 Additional Costs..................................................... 14
5.02 Alternate Interest Rate.............................................. 16
5.03 Illegality........................................................... 16
5.04 Compensation......................................................... 17
5.05 Covered Taxes........................................................ 18
5.06 Replacement Bank Senior Lenders...................................... 19
ARTICLE VI
CONDITIONS PRECEDENT
6.01 Initial Bank Senior Loans............................................ 20
6.02 Subsequent Disbursements of the Tranche A Facility................... 20
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01 Representations and Warranties of the Borrower and the Guarantors.... 21
ARTICLE VIII
COVENANTS
8.01 Covenants of the Borrower and the Guarantors......................... 21
ARTICLE IX
EVENTS OF DEFAULT
9.01 Events of Default.................................................... 21
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Section Page
ARTICLE X
THE ADMINISTRATIVE AGENT
10.01 Appointment, Powers and Immunities................................... 21
10.02 Reliance by Administrative Agent..................................... 23
10.03 Defaults............................................................. 23
10.04 Indemnification...................................................... 23
10.05 Non-Reliance on Administrative Agent and Other Bank Senior Lenders... 24
10.06 Failure to Act....................................................... 24
10.07 Resignation or Removal of Administrative Agent....................... 24
10.08 Notices.............................................................. 25
ARTICLE XI
GUARANTEE
11.01 Guarantee of the Guarantors.......................................... 25
ARTICLE XII
MISCELLANEOUS
12.01 Waiver............................................................... 28
12.02 Notices.............................................................. 28
12.03 Expenses, Etc........................................................ 28
12.04 Amendments, Etc...................................................... 29
12.05 Successors and Assigns............................................... 30
12.06 Assignments and Participations....................................... 30
12.07 Survival............................................................. 32
12.08 Counterparts......................................................... 32
12.09 GOVERNING LAW........................................................ 33
12.10 WAIVER OF JURY TRIAL................................................. 33
12.11 Consent to Jurisdiction.............................................. 33
12.12 Severability......................................................... 33
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APPENDICES
APPENDIX A......................................................... Definitions
SCHEDULE I......................... Amortization Schedule of Tranche A Facility
SCHEDULE II........................ Amortization Schedule of Tranche B Facility
SCHEDULE III....................................................... Commitments
EXHIBIT I.................................................. Form of Senior Note
EXHIBIT II................................... Form of Assignment and Acceptance
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BANK SENIOR LOAN AGREEMENT
This Agreement, dated as of August 19, 1999, is made among:
PORT ▇▇▇▇▇▇ FINANCE CORP., a company incorporated under the laws of
the State of Delaware, as Borrower (the "Borrower"),
PORT ▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY L.P., a limited partnership organized under
the laws of the State of Delaware, as Partnership and Guarantor (the
"Partnership"),
SABINE RIVER HOLDING CORP., a company incorporated under the laws of
the State of Delaware, as General Partner of the Partnership and Guarantor (the
"General Partner"),
NECHES RIVER HOLDING CORP., a company incorporated under the laws of
the State of Delaware, as Limited Partner of the Partnership and Guarantor (the
"Limited Partner" and together with the Partnership and the General Partner, the
"Guarantors"),
EACH OF THE BANK SENIOR LENDERS PARTY HERETO, as identified on
Schedule III to this Agreement, as the same may be modified at any time or from
time to time pursuant to the terms of this Agreement (together, the "Bank Senior
Lenders") and
DEUTSCHE BANK AG, NEW YORK BRANCH, a New York State licensed branch of
a German bank, as Administrative Agent for the Bank Senior Lenders (the
"Administrative Agent").
WHEREAS, the Borrower desires that the Bank Senior Lenders provide
financing for the ▇▇▇▇▇ Project, and the Bank Senior Lenders are willing to
provide such financing, subject to, and on the terms and conditions set forth
in, this Agreement and the other Financing Documents;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and undertakings contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.01 Defined Terms. Except for terms defined in this Agreement or
Appendix A hereto, defined terms in this Agreement and the Exhibits hereto, that
may be identified by the capitalization of the first letter of each principal
word thereof, shall have the meanings assigned to them in the Common Security
Agreement (including Appendix A thereto).
1.02 Interpretation. In this Agreement and in the Appendix and
Exhibits hereto, except to the extent that the context otherwise requires:
(a) the table of contents and headings are for convenience only and
shall not affect the interpretation of this Agreement;
(b) unless otherwise specified, references to Articles, Sections,
clauses, the Appendix and Exhibits are references to Articles, Sections and
clauses of, and the Appendix and Exhibits to, this Agreement;
(c) references to any document or agreement, including without
limitation this Agreement, shall be deemed to include references to such
document or agreement (together with all appendices, annexes and schedules
thereto) as amended, supplemented, replaced or restated from time to time in
accordance with its terms and (where applicable) subject to compliance with the
requirements set forth therein; and
(d) references to any party to this Agreement or any other document
or agreement shall include such party's successors and permitted assigns.
1.03 Conflict. In the event of any conflict between this Agreement
and the Common Security Agreement, the Common Security Agreement shall govern.
1.04 Senior Notes. All references in this Agreement to "Senior Notes"
shall apply only to the extent that any particular Bank Senior Lender requests
that the Borrower and the Guarantors execute and deliver a Senior Note to
evidence their obligation to repay a particular Bank Senior Loan. If a Bank
Senior Lender does not request such a Senior Note for a particular Bank Senior
Loan, then those provisions dealing with "Senior Notes" in this Agreement will
be deemed not to apply for purposes of that particular Bank Senior Loan,
provided that such Bank Senior Lender shall retain the right to request Senior
Notes from time to time to evidence future Bank Senior Loans.
ARTICLE II
LOANS, SENIOR NOTES AND PREPAYMENTS
2.01 Commitments. (a) Subject to the terms and conditions contained
in this Agreement and the Common Security Agreement, each Bank Senior Lender
severally agrees to make senior loans (each, a "Bank Senior Loan" and
collectively, the "Bank Senior Loans") to the Borrower on the applicable
Disbursement Date or Disbursement Dates during the applicable Commitment Period
in an aggregate principal amount at any time outstanding not to exceed the
amount of such Bank Senior Lender's Commitment, provided that borrowings in
respect of the Tranche A Facility may be made at any time, and from time to
time, after the termination of all Commitments under the Tranche B Facility,
subject to the other terms and conditions set forth in this Agreement. The
Commitment of each Bank Senior Lender shall be reduced by the amount of such
Bank Senior
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Lender's Bank Senior Loans immediately after such Bank Senior Loans are made. If
any portion of any Commitment is not disbursed during the applicable Commitment
Period, the amount of such undrawn portion shall be automatically cancelled as
of the close of business in New York, New York on the last day of the applicable
Commitment Period.
(b) Prior to the Disbursement Date for the Tranche B Facility, upon
the securing of Commitments to lend Reallocation Senior Debt under the Tranche B
Facility in accordance with Section 2.12 of the Common Security Agreement, the
Arrangers, with the consent of the Borrower, which consent shall not be
unreasonably withheld, shall have the right to reallocate the Commitments so as
to (i) increase the aggregate Commitments with respect to the Tranche B Facility
by an amount equal to such Reallocation Senior Debt without affecting the amount
of the other existing Commitments under the Tranche B Facility and (ii) decrease
the Commitments of each of the Arrangers under the Tranche A Facility on a pro
rata basis in an aggregate amount equal to the amount of the Commitments to lend
such Reallocation Senior Debt.
(c) After the Disbursement Date for the Tranche B Facility, upon the
incurrence from time to time of Reallocation Senior Debt under the Tranche B
Facility in accordance with Section 2.12 of the Common Security Agreement, the
Arrangers, with the consent of the Borrower, which consent shall not be
unreasonably withheld, shall have the right to (i) increase the amount of
outstanding Bank Senior Loans under the Tranche B Facility by an amount equal to
such Reallocation Senior Debt without affecting the amounts outstanding under
existing Bank Senior Loans under the Tranche B Facility and (ii) decrease the
remaining Commitments, if any, of, and the disbursed and outstanding Bank Senior
Loans, if any, made by, each of the Arrangers under the Tranche A Facility on a
pro rata basis among the Arrangers in an aggregate amount equal to the amount of
such Reallocation Senior Debt being incurred. The changes described in this
clause (c) shall be effected as (i) the incurrence by the Borrower of
Reallocation Senior Debt under the Tranche B Facility and (ii) if any Senior
Debt shall be outstanding under the Tranche A Facility, the application by the
Borrower of that portion of the proceeds of such Reallocation Senior Debt that
bears a relation to the amount of such proceeds which is equal to (x) Senior
Debt outstanding under the Tranche A Facility divided by (y) the sum of Senior
Debt outstanding under the Tranche A Facility and remaining undrawn Commitments
under the Tranche A Facility to the prepayment in whole or in part of such
Senior Debt outstanding under the Tranche A Facility held by the Arrangers on a
pro rata basis, and the remaining Commitments of the Arrangers under the Tranche
A Facility shall be reduced by an amount equal to the amount of such
Reallocation Senior Debt incurred but not applied to the prepayment of Senior
Debt in accordance with the terms of this sentence.
(d) Prior to the initial Disbursement Date for the Tranche A
Facility, upon the securing of Commitments to lend Reallocation Senior Debt
under the Tranche A Facility in accordance with Section 2.12 of the Common
Security Agreement, the Arrangers, with the consent of the Borrower, which
consent shall not be unreasonably withheld, shall have the right to reallocate
the Commitments so as to decrease the Commitments of each of the Arrangers under
the Tranche A Facility on a pro rata basis in an aggregate amount equal to the
amount of the Commitments to lend such Reallocation Senior Debt being secured.
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(e) After the initial Disbursement Date for the Tranche A Facility,
upon the incurrence from time to time of Reallocation Senior Debt and, if a
portion of the Commitments to extend Senior Debt under the Tranche A Facility
remains, the securing of Commitments to extend Reallocation Senior Debt under
the Tranche A Facility in accordance with Section 2.12 of the Common Security
Agreement, the Arrangers, with the consent of the Borrower, which consent shall
not be unreasonably withheld, shall have the right to decrease the remaining
Commitments, if any, of, and the disbursed and outstanding Bank Senior Loans, if
any, made by, each of the Arrangers under the Tranche A Facility on a pro rata
basis among the Arrangers and between such Commitments and such outstanding Bank
Senior Loans in an aggregate amount equal to the amount of such Reallocation
Senior Debt being incurred or Commitments secured. The changes described in this
clause (e) shall be effected as (i) the incurrence by the Borrower of
Reallocation Senior Debt and, if a portion of the Commitments to extend Senior
Debt under the Tranche A Facility remains, the securing of Commitments to extend
Reallocation Senior Debt under the Tranche A Facility and (ii) the application
by the Borrower of the proceeds of such Reallocation Senior Debt to the
prepayment in whole or in part of such Senior Debt outstanding under the Tranche
A Facility held by the Arrangers on a pro rata basis and the reduction of the
Commitments of the Arrangers under the Tranche A Facility on a pro rata basis.
(f) Any prepayment made by the Borrower in accordance with this
Section 2.01 shall be made together with all accrued but unpaid interest on
amounts prepaid and all other amounts (including any amounts due pursuant to
Article V) then due from the Borrower under this Agreement. Any amount prepaid
in accordance with this Section 2.01 may not be reborrowed.
(g) Clauses (b)-(f) of this Section 2.01 shall apply only until each
Arranger's Commitment has been reduced to such Arranger's Hold Level. After the
reduction of each Arranger's Commitment to such Arranger's Hold Level, such
clauses shall apply only to the extent mutually agreed among the Arrangers and
the Borrower in their sole discretion.
2.02 Procedure for Borrowings. (a) The Borrower shall give the
Administrative Agent (who shall promptly notify the Bank Senior Lenders) notice
of each borrowing under this Agreement as provided in Section 4.04, such notice
to be substantially in the form of Appendix O to the Common Security Agreement.
Except as to a borrowing that utilizes the unborrowed Commitments in respect of
the Tranche A Facility in full, each borrowing under this Agreement shall be in
a minimum amount of $5,000,000 and, if greater, in an amount that is an integral
multiple of $1,000,000.
(b) Not later than 1:00 p.m., New York time, on the date specified
in the notice specified in paragraph (a) of this Section 2.02, each Bank Senior
Lender shall make available the aggregate amount of the Bank Senior Loan or Bank
Senior Loans to be made by it on such date (as determined in accordance with
clause (c) of Section 4.02) to the Administrative Agent, at the account
designated by the Administrative Agent and for such purpose maintained by the
Administrative Agent with Deutsche Bank AG, in immediately available funds. The
amount so received by the Administrative Agent shall, subject to the terms and
conditions of this Agreement and the Common
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Security Agreement, be made available to the Borrower by depositing such amount,
in immediately available funds, in the Bank Loan Drawdown and Equity Funding
Account.
2.03 Fees.
(a) Agent Fees. The Borrower shall pay to the Administrative Agent a
fee for the Administrative Agent's services as an Administrative Agent to be
provided pursuant to this Agreement and the other applicable Financing Documents
in an amount equal to $50,000 per annum. The Borrower shall pay such fee
annually in advance on each July 15, commencing on July 15, 2000. For the period
commencing on the Closing Date and ending on, but not including, July 15, 2000,
the Borrower shall pay a pro rata portion of such fee to the Administrative
Agent on the Closing Date.
(b) Commitment Fees. The Borrower shall pay to the Administrative
Agent for the account of each Bank Senior Lender a commitment fee on the daily
aggregate unused amount of such Bank Senior Lender's Commitment (i) with respect
to the Arrangers, for the period from and including July 14, 1999 and (ii) with
respect to any other Bank Senior Lender that shall become party to this
Agreement, for the period from the earlier of (A) the date such Bank Senior
Lender first extends a binding Commitment and (B) the date that such Bank Senior
Lender shall be deemed to be a party to this Agreement, in each case to but
excluding the Commitment Termination Date, at a rate per annum equal to 0.75%,
calculated in accordance with the provisions of Section 4.03. Accrued commitment
fees shall be payable quarterly in arrears on each January 15, April 15, July 15
and October 15, commencing on October 15, 1999, and on the Commitment
Termination Date.
2.04 Lending Offices. The Bank Senior Loans made by each Bank Senior
Lender shall be made and maintained at such Bank Senior Lender's Applicable
Lending Office.
2.05 Several Obligations; Remedies Independent. The failure of any
Bank Senior Lender to make any Bank Senior Loan to be made by it on the date
requested by the Borrower in the relevant notice of borrowing shall not relieve
any other Bank Senior Lender of its obligation to make its Bank Senior Loan on
such date, but neither any Bank Senior Lender nor the Administrative Agent shall
be responsible for the failure of any other Bank Senior Lender to make a Bank
Senior Loan under this Agreement, and no Bank Senior Lender shall have any
obligation to the Administrative Agent or any other Bank Senior Lender for the
failure by such Bank Senior Lender to make any Bank Senior Loan required to be
made by such Bank Senior Lender. The amounts payable by the Borrower at any time
under this Agreement and the Senior Notes to each Bank Senior Lender shall be a
separate and independent obligation of the Borrower to such Bank Senior Lender,
and each Bank Senior Lender shall be entitled, in accordance with and subject to
the terms of the Common Security Agreement, to protect and enforce its rights
arising out of this Agreement and the Senior Notes held by it, and, except as
otherwise provided in the Common Security Agreement, it shall not be necessary
for any other Bank Senior Lender or the Administrative Agent to consent to, or
be joined as an additional party in, any proceedings for such purposes.
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2.06 Senior Notes. (a) As additional evidence of the Borrower's
obligation to pay the principal of each Bank Senior Loan as provided in Section
3.01, the Borrower and the Guarantors shall execute and deliver to the
Collateral Trustee on behalf of each Bank Senior Lender, upon request by such
Bank Senior Lender, on or prior to each date on which any Bank Senior Loan is
made under this Agreement, a promissory note (each, a "Senior Note") issued by
the Borrower and guaranteed by each of the Guarantors, substantially in the form
set forth in Exhibit I hereto, and otherwise duly completed, payable to the
order of each such Bank Senior Lender and in a principal amount equal to the
amount of such Bank Senior Lender's Commitment. The Borrower's and each
Guarantor's signatures on each Senior Note shall be duly certified by a notary
public.
(b) Each Senior Note shall (i) be dated as of the date on which the
Bank Senior Loan to which it relates is made, (ii) represent the Borrower's
obligation to repay a principal amount equal to the amount of the relevant Bank
Senior Loans, (iii) be payable in consecutive installments on each Payment Date
and mature on the Final Maturity Date and (iv) bear interest for the period from
the date of disbursement to the Borrower until paid in full on the unpaid
principal amount thereof from time to time outstanding at the applicable
interest rate per annum provided in, and payable as specified in, Section 3.02.
Each Bank Senior Lender is authorized to record (A) the date and amount of the
relevant Bank Senior Loan and of each payment or prepayment of principal of the
Bank Senior Loans made by such Bank Senior Lender and (B) the Interest Period
and interest rate with respect thereto, on the schedules annexed to and
constituting a part of the Senior Note held by such Bank Senior Lender. It is
understood, however, that the failure by a Bank Senior Lender to make any such
recordation or the inaccuracy or incompleteness of any such recordation shall
not affect the obligations of the Borrower under this Agreement or such Senior
Note in respect of the Bank Senior Loans made by such Bank Senior Lender.
(c) The execution and delivery by the Borrower and the Guarantors of
the Senior Notes shall not affect in any way whatsoever the rights or
obligations of the Borrower or the Guarantors under this Agreement, the Common
Security Agreement or any other Financing Document, and the rights and claims of
each Bank Senior Lender under the Senior Notes held by it shall not replace or
supersede the rights and claims of such Bank Senior Lender under this Agreement,
the Common Security Agreement or the other Financing Documents, provided,
however, that payment of any part of the principal of any such Senior Note in
accordance with the terms and conditions of this Agreement and the Common
Security Agreement shall, to the extent that such payment if made hereunder
would discharge the Borrower's obligations hereunder and thereunder in respect
of the payment of the principal of the Bank Senior Loan evidenced by such Senior
Note, discharge such obligation pro tanto, and the payment of any principal of a
Bank Senior Loan in accordance with the terms of this Agreement shall discharge
the obligations of the Borrower and the Guarantors under the Senior Note
evidencing such Bank Senior Loan to the extent of such payment.
(d) Upon discharge of all obligations of the Borrower and the
Guarantors under and in accordance with this Agreement and the Common Security
Agreement, each Bank Senior Lender shall cancel and return to the Borrower the
Senior Note or Senior Notes delivered to such Bank Senior Lender by the Borrower
and the Guarantor.
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(e) Each Bank Senior Lender agrees that, notwithstanding any
provision of the Senior Note or Senior Notes held by it to the contrary, it
shall not demand payment of any amount under such Senior Note or Senior Notes
unless such amount is then due and payable (whether at stated maturity, by
acceleration or otherwise) by the Borrower or the Guarantors in accordance with
the terms of this Agreement and the Common Security Agreement.
2.07 Optional Prepayments of Loans. Subject to clause (d) of Section
4.02 and the terms and conditions of Article II of the Common Security
Agreement, the Borrower shall have the right to prepay the outstanding principal
amount of the Bank Senior Loans at any time or from time to time outstanding
under this Agreement, in whole or in part, without premium or penalty (but with
any prepayment compensation required by Section 5.04), on any Business Day,
provided, however, that: (a) the Borrower shall give the Administrative Agent
notice of any such prepayment as provided in Section 4.04, which notice shall
become irrevocable five Business Days prior to the date of such optional
prepayment, with a copy to the Collateral Trustee (and, upon the date specified
in any such notice of prepayment, the amount to be prepaid shall become due and
payable hereunder); (b) any prepayments of the Bank Senior Loans pursuant to
this Section 2.07 shall be applied as provided in clause (c) of Section 2.04 of
the Common Security Agreement; and (c) each partial prepayment of principal of
Bank Senior Loans shall be in an aggregate amount at least equal to $5,000,000
and, if greater, in an amount which is an integral multiple of $1,000,000. Any
prepayment made by the Borrower pursuant to this Section 2.07 or Section 2.08 or
2.09 shall be made together with all accrued but unpaid interest on amounts
prepaid and all other amounts (including any amounts due pursuant to Article V)
then due from the Borrower under this Agreement. Any amount prepaid pursuant to
this Section 2.07 may not be reborrowed.
2.08 Pro Rata Prepayments. Subject to the terms of the Common
Security Agreement, in the event that the Borrower shall make, or be (or be
notified that it is) required to make, or give notice that it will make, any
payment of any principal of any Capital Markets Senior Debt outstanding under
the Indenture prior to the originally scheduled maturity date thereof (other
than as provided in Section 2.07 of the Common Security Agreement), the Borrower
shall give prompt notice thereof to the Administrative Agent and shall
simultaneously with such payment (or, if not on a Payment Date, with the consent
of Majority Bank Lenders, on the next succeeding Payment Date), make a Pro Rata
Payment to each Bank Senior Lender in prepayment of the Bank Senior Loans in
accordance with Sections 2.04 and 2.06 of the Common Security Agreement. A Bank
Senior Lender may waive its right to receive any such prepayment without
prejudice to its right to receive any subsequent prepayment. Each prepayment of
Bank Senior Loans under this Section 2.08 shall be accompanied by the prepayment
compensation (if any) required pursuant to Section 5.04.
2.09 Mandatory Prepayments. (a) The Borrower shall make Mandatory
Prepayments pursuant to Section 2.05 of the Common Security Agreement, provided
that, with respect to the Tranche B Facility, Tranche B Lenders shall each have
the option to refuse its pro rata share of Excess Cash Flow Mandatory
Prepayments (the "Refusal Option") by notifying the Administrative Agent and the
Collateral Trustee in writing no later than five Business Days prior to
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the date of such proposed Mandatory Prepayment). If any Tranche B Lender does
exercise its Refusal Option, then all amounts to be so prepaid as Excess Cash
Flow Mandatory Prepayments to such Tranche B Lender shall be applied to Bank
Senior Loans outstanding under the Tranche A Facility. To the extent (i) that
any Tranche B Lender does not exercise its Refusal Option or (ii) that, in the
case of a Tranche B Lender having exercised its Refusal Option, there are
amounts to be prepaid as Excess Cash Flow Mandatory Prepayments still unpaid
after all Bank Senior Loans outstanding under the Tranche A Facility have been
paid in full, amounts to be prepaid as Excess Cash Flow Mandatory Prepayments
shall be applied to Bank Senior Loans outstanding under the Tranche B Facility
(A) in amounts equal to (x) 103% of the amount to be prepaid, in the case of
Excess Cash Flow Mandatory Prepayments made during the first year following the
Closing Date, (y) 102% of the amount to be prepaid, in the case of Excess Cash
Flow Mandatory Prepayments made during the second year following the Closing
Date and (z) 101% of the amount to be prepaid, in the case of Excess Cash Flow
Mandatory Prepayments made during the third year following the Closing Date and
(B) after the third year following the Closing Date, at par.
(b) In addition to the Refusal Option, any Bank Senior Lender may
waive its right to receive all or any part of any Mandatory Prepayment required
to be made pursuant to clause (a) of this Section 2.09 without prejudice to its
right to receive any subsequent Mandatory Prepayment. Each prepayment of Loans
under this Section 2.09 shall be accompanied by the prepayment compensation (if
any) required pursuant to Section 5.04. Any amount prepaid pursuant to this
Section 2.09 may not be reborrowed.
2.10 Change in Commitments. (a) The aggregate amount of the
Commitments shall be automatically reduced by any and all Bank Senior Loans made
under this Agreement and shall be automatically reduced to zero on the
Commitment Termination Date.
(b) Subject to clause (b) of Section 9.03 of the Common Security
Agreement, the Borrower shall have the right, at any time or from time to time,
to terminate or reduce the aggregate unused amount of the Commitments, provided
that (i) the Borrower shall give the Administrative Agent notice of each such
termination or reduction as provided in Section 4.04 and (ii) each partial
reduction shall be in an aggregate amount at least equal to $5,000,000 and, if
greater, in an amount that is an integral multiple of $1,000,000. Any portion of
a Commitment, once terminated or reduced, may not be reinstated.
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
3.01 Repayment of Loans. (a) With respect to the Tranche A Facility,
the Borrower hereby promises to pay to the Administrative Agent for the account
of each Bank Senior Lender the principal amount of such Bank Senior Lender's
Bank Senior Loans made under the Tranche A Facility in 11 semi-annual
installments on each Payment Date, in the amounts and
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percentages as set forth in the amortization schedule attached hereto in
Schedule I, commencing on January 15, 2002.
(b) With respect to the Tranche B Facility, the Borrower hereby
promises to pay to the Administrative Agent for the account of each Bank Senior
Lender the principal amount of such Bank Senior Lender's Bank Senior Loan made
under the Tranche B Facility on the dates and in the amounts and percentages as
set forth in the amortization schedule attached hereto in Schedule II,
commencing on January 15, 2002.
3.02 Interest. (a) Subject to clause (b) of this Section 3.02, the
Borrower hereby promises to pay to the Administrative Agent for the account of
each Bank Senior Lender interest on the unpaid principal amount of each Bank
Senior Loan held by such Bank Senior Lender, for the period from and including
the date such Bank Senior Loan is made to but excluding the date such Bank
Senior Loan shall be paid in full, at an interest rate per annum in respect of
each Interest Period equal to LIBOR for such Bank Senior Loan for such Interest
Period plus the applicable Margin.
(b) Subject to clause (c) of this Section 3.02, in the event that
the Borrower incurs Reallocation Senior Debt on a date other than a Payment
Date or Tranche B Interest Payment Date, as the case may be:
(A) after the Disbursement Date for the Tranche B Facility, the
Borrower hereby promises to pay to the Administrative Agent for the
account of each Reallocation Bank Senior Lender interest on the unpaid
principal amount of each such Bank Senior Loan held by such
Reallocation Bank Senior Lender, for the period from and including the
date such Reallocation Bank Senior Loan is made to but excluding the
Tranche B Interest Payment Date immediately succeeding the
disbursement of such Bank Senior Loans, at an interest rate per annum
in respect of such period equal to the Base Rate, and after such
period at LIBOR plus the applicable Margin;
(B) after the initial Disbursement Date for the Tranche A
Facility, the Borrower hereby promises to pay to the Administrative
Agent for the account of each Reallocation Bank Senior Lender interest
on the unpaid principal amount of each such Bank Senior Loan held by
such Reallocation Bank Senior Lender, for the period from and
including the date such Reallocation Bank Senior Loan is made to but
excluding the next Payment Date, in the case of Bank Senior Loans
under the Tranche A Facility, or the Tranche B Interest Payment Date,
in the case of Bank Senior Loans under the Tranche A Facility, as the
case may be, immediately succeeding the disbursement of such Bank
Senior Loans, at an interest rate per annum in respect of such period
equal to the Base Rate, and after such period at LIBOR plus the
applicable Margin;
-9-
(c) In connection with the incurrence by the Borrower of
Reallocation Senior Debt or the securing by the Borrower of Commitments to lend
Reallocation Senior Debt, or the assignment by the Arrangers of Commitments or
Bank Senior Loans prior to the date on which the Commitments of the Arrangers
have been reduced to their respective Hold Levels, the Arrangers shall have the
right, with the consent of the Borrower, such consent not to be unreasonably
withheld, to increase the Margin applicable to all Bank Senior Loans under the
Tranche A Facility or Tranche B Facility, as the case may be, or both. All Bank
Senior Loans outstanding or to be drawn down under the applicable tranche or
tranches shall, from and after the Payment Date on or immediately succeeding the
date of incurrence of such Reallocation Senior Debt, securing by the Borrower of
Commitments to lend Reallocation Senior Debt or the assignment by the Arrangers
of Commitments or Bank Senior Loans bear interest at a rate equal to LIBOR plus
the applicable Margin following such increase, subject to any further
adjustments pursuant to this clause (c); provided however, that the Margin shall
not be increased pursuant to this clause (c) without a Ratings Reaffirmation.
(d) The Borrower hereby agrees that, upon the occurrence and during
the continuation of any Event of Default under Article IX, the interest rate per
annum that the Borrower is obligated to pay in respect of each Interest Period
pursuant to paragraph (a) above shall be increased by the Post-Default Rate.
(e) Interest on each Bank Senior Loan shall accrue and be payable in
arrears (i)(A) with respect to the Tranche A Facility, on each Payment Date and
(B) with respect to the Tranche B Facility, on each Tranche B Interest Payment
Date, commencing in each case on January 15, 2000, (ii) upon the payment or any
prepayment of such Bank Senior Loan (but only on the amount paid or prepaid),
and (iii) upon maturity (whether on the Final Maturity Date, by acceleration or
otherwise). Promptly after the determination of any interest rate provided for
in this Agreement or any change therein, the Administrative Agent shall give
notice thereof to the Bank Senior Lenders and the Borrower.
ARTICLE IV
PAYMENTS, PRO RATA TREATMENT, COMPUTATIONS, ETC.
4.01 Payments. (a) Except to the extent otherwise provided in this
Agreement, all payments of principal, interest and other amounts to be made by
the Borrower under this Agreement and the Senior Notes (including without
limitation fees and indemnities) shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the
Administrative Agent at the account designated by the Administrative Agent
maintained by the Administrative Agent with Deutsche Bank AG, not later than
1:00 p.m., New York time, on the date on which such payment shall become due.
Any such payment made after such time on such due date shall be deemed to have
been made on the next succeeding Business Day.
(b) Each payment received by the Administrative Agent under this
Agreement or any Senior Note for account of any Bank Senior Lender shall be paid
by the Administrative Agent
-10-
promptly to such Bank Senior Lender, in immediately available funds, for account
of such Bank Senior Lender's Applicable Lending Office for the Bank Senior Loan
or other obligation in respect of which such payment is made.
(c) If the due date of any payment under this Agreement or any
Senior Note would otherwise fall on a day that is not a Business Day, such date
shall be extended to the next succeeding Business Day, and interest shall be
payable for any principal so extended for the period of such extension, provided
that, if such next succeeding Business Day falls in the following month, such
date shall be the Business Day immediately preceding such due date.
4.02 Pro Rata Treatment. Except to the extent otherwise provided in
this Agreement or the Common Security Agreement:
(a) each payment of commitment fees under clause (b) of Section 2.03
shall be made for the account of the Bank Senior Lenders so that each such
payment is a Pro Rata Payment;
(b) each reduction in the amount of the Commitments under Section
2.10 hereof shall be applied to the several Commitments of the Bank Senior
Lenders pro rata according to the amounts of their respective Commitments;
(c) notwithstanding anything to the contrary provided in this
Agreement, the Bank Senior Loans shall be disbursed by the Bank Senior Lenders
pro rata in accordance with the maximum respective principal amounts of each
Bank Senior Lender's Commitment;
(d) other than with respect to any payment or prepayment made
pursuant to Section 5.03, and except as provided in Section 2.08, each payment
or prepayment of principal of Bank Senior Loans by the Borrower shall be made
for the account of the Bank Senior Lenders so that each such payment or
prepayment is a Pro Rata Payment; and
(e) each payment of interest on Bank Senior Loans by the Borrower
under this Agreement shall be made for the account of the Bank Senior Lenders so
that each such payment is a Pro Rata Payment.
4.03 Computations. Interest on Bank Senior Loans and commitment fees
shall be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable.
4.04 Certain Notices. Except as otherwise provided in the Common
Security Agreement with respect to prepayments of Senior Debt required thereby,
notices by the Borrower to the Administrative Agent of borrowings, termination
or reduction of Commitments and Optional Prepayments of Bank Senior Loans shall
be irrevocable and shall be effective only if received by the Administrative
Agent not later than 10:00 a.m., New York time, on the number of Business Days
-11-
prior to the date of the relevant borrowing, termination, reduction or
prepayment, as the case may be, specified below:
Type of Notice Required Prior Notice
-------------- ---------------------
Borrowing of Bank Senior 5 Business Days
Loans
Termination or Reduction of 10 Business Days
Commitments
Prepayments of Bank Senior 30 Business Days which shall
Loans become irrevocable 5 Business
Days prior to the date of such
Optional Prepayment
provided; that the certificate of the Independent Engineer to be attached to a
Notice of Borrowing may be delivered separately no later than one Business Day
prior to the date of such borrowing.
If received later than 10:00 a.m., New York time on such number of Business Days
prior to the relevant date, such notice shall be effective on the next
succeeding Business Day, unless the Borrower is notified by the Administrative
Agent that such notice shall be effective on the original Business Day.
Each such notice of borrowing or Optional Prepayment shall specify the
Bank Senior Loans to be borrowed or prepaid and the amount (subject to Section
2.02 and Section 2.07 hereof) of each Bank Senior Loan to be borrowed or prepaid
and the date of borrowing or Optional Prepayment (which shall be a Business
Day). Each such notice of termination or reduction shall specify the amount
(subject to Section 2.10) of the Commitments to be terminated or reduced. The
Administrative Agent shall promptly notify the Bank Senior Lenders of the
contents of each such notice (and in any event by the Business Day after the
Administrative Agent's receipt thereof).
4.05 Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Bank Senior Lender or the
Borrower (the "Payor") prior to the date on which the Payor is to make payment
to the Administrative Agent of (in the case of a Bank Senior Lender) the
proceeds of a Bank Senior Loan to be made by such Bank Senior Lender under this
Agreement or (in the case of the Borrower) a payment to the Administrative Agent
for the account of one or more of the Bank Senior Lenders under this Agreement
(such payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that the Payor does not intend to make the Required
Payment to the Administrative Agent, the Administrative Agent may assume that
the Required Payment has been made and may, but shall not be required to, in
reliance upon such assumption, make the amount thereof available to the intended
recipient(s) on
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such date; and, if the Payor has not in fact made the Required Payment to the
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to the Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"Advance Date") such amount was so made available by the Administrative Agent
until the date the Administrative Agent recovers such amount at a rate per annum
equal to the Federal Funds Rate for such day and, if such recipient(s) shall
fail promptly to make such payment, the Administrative Agent shall be entitled
to recover such amount, on demand, from the Payor, together with interest as
aforesaid, provided that, if neither the recipient(s) nor the Payor shall return
the Required Payment to the Administrative Agent within three Business Days of
such demand from the Administrative Agent, then, retroactively to the Advance
Date, the Payor and the recipient(s) shall each be obligated to pay interest on
the Required Payment as follows:
(a) if the Required Payment shall represent a payment to be made by
the Borrower to the Bank Senior Lenders, the Borrower and the recipient(s) shall
each be obligated, retroactively to the Advance Date, to pay interest in respect
of the Required Payment at the rate of interest provided in Section 3.02 (and,
in case the recipient(s) shall return the Required Payment to the Administrative
Agent, without limiting the obligation of the Borrower under Section 3.02 to pay
interest to such recipient(s) in respect of the Required Payment); and
(b) if the Required Payment shall represent proceeds of a Bank
Senior Loan to be made by the Bank Senior Lenders to the Borrower, the Payor and
the Borrower shall each be obligated, retroactively to the Advance Date, to pay
interest in respect of the Required Payment at the rate of interest provided for
such Required Payment in Section 3.02 (and, in case the Borrower shall return
the Required Payment to the Administrative Agent, without limiting any claim the
Borrower may have against the Payor in respect of the Required Payment).
In the event that the Payor and the recipient(s) both return the Required
Payment to the Administrative Agent together with interest thereon as required
by this Section 4.05, the Administrative Agent shall promptly pay to the
recipient(s) the Required Payment together with the interest paid by the
recipient(s) to the Administrative Agent.
The Administrative Agent shall promptly notify the Borrower of any receipt of
notice by the Administrative Agent from a Bank Senior Lender that the Bank
Senior Lender does not intend to make payment to the Administrative Agent of the
proceeds of a Bank Senior Loan.
4.06 Right of Set-off. The Borrower agrees that each Bank Senior
Lender shall be entitled, at its option but only with the prior written consent
of the Administrative Agent, to offset balances held by it for the account of
the Borrower at any of its offices against any obligations of the Borrower
(including principal and interest on any of the Bank Senior Loans) to such Bank
Senior Lender that are not paid when due.
-13-
ARTICLE V
YIELD PROTECTION, ETC.
5.01 Additional Costs. (a) The Borrower shall pay directly to each
Bank Senior Lender from time to time such amounts as such Bank Senior Lender may
determine in good faith to be necessary to compensate such Bank Senior Lender
for any increase in costs attributable to its making or maintaining of any Bank
Senior Loans or its obligation to make any Bank Senior Loans under this
Agreement, or any reduction in any amount receivable by such Bank Senior Lender
under this Agreement in respect of any of such Bank Senior Loans or such
obligation (such increases in costs and reductions in amounts receivable being
herein called collectively "Additional Costs"), in each case, from those costs
and amounts receivable existing on the date hereof, resulting from any
Regulatory Change that:
(i) changes the basis of taxation of any amounts payable to such
Bank Senior Lender under this Agreement or the Senior Note(s) held by it in
respect of any of such Bank Senior Loans (other than Excluded Taxes and
Covered Taxes as described in Section 5.05); or
(ii) imposes or modifies any reserve, special deposit or similar
requirements, including without limitation any application of the
Regulation D requirements relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, such Bank Senior
Lender (including, without limitation, any of such Bank Senior Loans or any
deposits referred to in the definition of "LIBOR" in Appendix A hereto), or
any commitment of such Bank Senior Lender (including without limitation the
Commitment or Commitments of such Bank Senior Lender under this Agreement);
or
(iii) imposes any other duty or charge in respect of this Agreement,
the Senior Note(s) held by it (or any of such extensions of credit or
liabilities), its Commitment or Commitments or any amounts payable to such
Bank Senior Lender under this Agreement or the Senior Note(s) held by it in
respect of any such Bank Senior Loans (other than Covered Taxes and
Excluded Taxes).
(b) Without limiting the effect of the foregoing provisions of this
Section 5.01, the Borrower shall pay directly to each Bank Senior Lender from
time to time on request such amounts as such Bank Senior Lender may determine in
good faith to be necessary to compensate such Bank Senior Lender (or the bank
holding company of which such Bank Senior Lender is a subsidiary) for any
increase in costs that it determines are attributable to the maintenance by such
Bank Senior Lender (or any Applicable Lending Office or such bank holding
company), pursuant to any law or regulation or any interpretation, directive,
guideline or request (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) of or by any court or
governmental, monetary, fiscal or other authority (i) following any Regulatory
Change or (ii) implementing any risk-based capital guideline or other
requirement (whether or not having the force of law and whether or not the
failure to comply therewith would be unlawful), issued after the
-14-
date hereof by any government or governmental or supervisory authority
implementing at the national level the Basle Accord, of capital in respect of
its Commitment or Bank Senior Loans (such compensation to include, without
limitation, an amount equal to any reduction of the rate of return on assets or
equity of such Bank Senior Lender (or any Applicable Lending Office or such bank
holding company) to a level below that which such Bank Senior Lender (or any
Applicable Lending Office or such bank holding company) could have achieved but
for such law, regulation, interpretation, directive, guideline or request). For
purposes of this clause (b), "Basle Accord" shall mean the proposals for risk-
based capital framework described by the Basle Committee on Banking Regulations
and Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended, modified
and supplemented and in effect from time to time, or any replacement thereof,
including without limitation any framework adopted pursuant to the proposal for
a new capital adequacy framework dated June 1999 and entitled "A New Capital
Adequacy Framework".
(c) Each Bank Senior Lender shall notify the Borrower of any event
occurring after the date of this Agreement entitling such Bank Senior Lender to
compensation under clauses (a) or (b) of this Section 5.01 as promptly as
practicable. Each Bank Senior Lender shall designate a different Applicable
Lending Office for the Bank Senior Loans of such Bank Senior Lender affected by
such event if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the opinion of such Bank Senior Lender, be
disadvantageous to such Bank Senior Lender. Each Bank Senior Lender will furnish
to the Borrower a certificate setting forth in reasonable detail the basis and
amount of each request by such Bank Senior Lender for compensation under clause
(a) or (b) of this Section 5.01. Determinations and allocations set forth in
such certificate by any Bank Senior Lender for purposes of this Section of the
effect of any Regulatory Change pursuant to clause (a) of this Section 5.01 or
of the effect of capital maintained pursuant to clause (b) of this Section 5.01,
on its costs or rate of return of maintaining Bank Senior Loans or its
obligation to make Bank Senior Loans, or on amounts receivable by it in respect
of Bank Senior Loans, and of the amounts required to compensate such Bank Senior
Lender under this Section 5.01, shall, absent manifest error, be conclusive.
5.02 Alternate Interest Rate. Anything to the contrary in this
Agreement notwithstanding, if, on or prior to the determination of LIBOR for any
Interest Period or Default Interest Period:
(a) the Administrative Agent determines, which determination shall
be conclusive absent manifest error, that quotations of interest rates for the
relevant deposits of the types referred to in the definition of "LIBOR" in
Appendix A hereto are not being provided in the relevant amounts or for the
relevant maturity for purposes of determining rates of interest as provided in
this Agreement; or
(b) Majority Bank Lenders notify the Administrative Agent that the
relevant rates of interest referred to in the definition of "LIBOR" in Appendix
A hereto upon the basis of which the rate of interest for such Interest Period
or Default Interest Period is to be determined would not
-15-
adequately cover the cost to such Bank Senior Lenders of making or maintaining
Bank Senior Loans, or maintaining any other amount under this Agreement not paid
when due, for such Interest Period or Default Interest Period;
then the Administrative Agent shall notify the Borrower thereof, and, subject to
the following paragraph, the interest payable to the Bank Senior Lenders on Bank
Senior Loans, and such other amounts not paid when due, to which such Interest
Period or Default Interest Period, as the case may be, applies shall thereafter
be interest at a rate per annum equal to the Alternate Base Rate for each day
during such Interest Period or Default Interest Period, as the case may be, plus
the applicable Margin plus, during any Default Interest Period, 2% per annum.
The alternative interest rate procedure set forth in the immediately preceding
paragraph shall apply to each relevant period succeeding the first such period
to which they were applied unless and until the Administrative Agent notifies
the Borrower that the condition referred to in clause (a) of this Section 5.02
no longer exists or the Administrative Agent (at the request of Majority Bank
Lenders) notifies the Borrower that the condition referred to in clause (b) of
this Section 5.02 no longer exists, whereupon interest on Bank Senior Loans
shall again be determined in accordance with the provisions of Section 3.02,
effective commencing on the third Business Day after the date of such notice.
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Bank Senior Lender or
its Applicable Lending Office to honor its obligation to make Bank Senior Loans
under this Agreement, then such Bank Senior Lender shall promptly notify the
Borrower thereof (with a copy to the Administrative Agent) and such Bank Senior
Lender's obligation to make Bank Senior Loans shall be suspended until such time
as such Bank Senior Lender may again make Bank Senior Loans. Notwithstanding any
other provision of this Agreement to the contrary, in the event that it becomes
unlawful for any Bank Senior Lender or its Applicable Lending Office to honor
its obligation to maintain Bank Senior Loans, then, at the election of such Bank
Senior Lender (by notice to the Administrative Agent, which shall promptly
notify the Borrower), the Borrower shall prepay such Bank Senior Lender's
outstanding Bank Senior Loans in full (or in the amount of the affected portion
thereof) together with accrued interest thereon and all other amounts payable to
such Bank Senior Lender under this Agreement (including without limitation
amounts payable under Section 5.04) to the Administrative Agent for the account
of such Bank Senior Lender, on the last day of the then current Interest Period
or Default Interest Period for such Bank Senior Loans (or on such earlier date
as shall be certified by the Bank Senior Lender as being the last permissible
date for such prepayment under the relevant law, rule, regulation, treaty or
directive). Each Bank Senior Lender shall designate a different Applicable
Lending Office for the portion of its Commitment or Bank Senior Loans affected
by the illegality granting such Bank Senior Lender a right to suspend its
Commitment or requiring repayment by the Borrower if such designation will avoid
the need for such suspension or required repayment, or reduce the amount of the
portion of the Commitment subject to suspension or the portion of the Bank
Senior Loans subject to repayment, as the case may be, provided that no Bank
Senior Lender shall be obligated so to designate a different Applicable Lending
Office if such Bank Senior Lender determines that such
-16-
designation would be disadvantageous to such Bank Senior Lender compared to the
designation of its then current Applicable Lending Office.
5.04 Compensation. The Borrower shall pay to the Administrative Agent
for the account of each Bank Senior Lender, upon the request of such Bank Senior
Lender through the Administrative Agent, such amount or amounts as shall be
sufficient (in the opinion of such Bank Senior Lender) to compensate it for any
Loss that such Bank Senior Lender determines is attributable to:
(a) any payment or prepayment of a Bank Senior Loan made by such
Bank Senior Lender for any reason (including without limitation the acceleration
of the Bank Senior Loans pursuant to Section 10.04 of the Common Security
Agreement and optional prepayments made pursuant to Section 2.07 or in
accordance with clause (c) of Section 3.02) or the assignment of a Bank Senior
Loan made by such Bank Senior Lender prior to the date on which the Commitments
of the Arrangers have been reduced to their respective Hold Levels, in each case
on a date other than the last day of an Interest Period for such Bank Senior
Loan; or
(b) any failure by the Borrower for any reason (including without
limitation the failure of any of the conditions precedent specified in Article
VI of this Agreement or Article IX of the Common Security Agreement to be
satisfied) to borrow a Bank Senior Loan from such Bank Senior Lender on the date
for such borrowing specified in the relevant notice of borrowing given pursuant
to Section 2.02, other than any failure which results from such Bank Senior
Lender wrongfully suspending its obligation to make Bank Senior Loans or
wrongfully terminating its Commitment under this Agreement or the Common
Security Agreement.
Any such compensation shall include an amount equal to the excess, if any, of
(x) the amount of interest that otherwise would have accrued on the principal
amount so paid, prepaid, assigned or not borrowed for the period from the date
of such payment, prepayment, assignment or failure to borrow to the last day of
the then current Interest Period for such Bank Senior Loan (or, in the case of a
failure to borrow, the Interest Period for such Bank Senior Loan that would have
commenced on the date specified for such borrowing) at the applicable rate of
interest for such Bank Senior Loan provided in this Agreement (excluding,
however, the applicable Margin or Post-Default Rate included therein, if any)
over (y) the amount of interest (as determined by such Bank Senior Lender) that
otherwise would have accrued on such principal amount by placing such amount on
deposit for a comparable period with leading banks in the London interbank
market. A certificate of such Bank Senior Lender setting forth in reasonable
detail any amount or amounts that such Bank Senior Lender is entitled to receive
pursuant to this Section 5.04 and the manner in which such amounts shall have
been determined shall be delivered to the Borrower and shall be conclusive
absent manifest error.
-17-
5.05 Covered Taxes. The Borrower agrees that, whether or not any Bank
Senior Loan is made under this Agreement:
(a) All payments of principal of and interest on the Bank Senior
Loans and all other amounts payable on, under or in respect of this Agreement,
the Bank Senior Loans, the Senior Notes, the Common Security Agreement or any
other Financing Document by the Borrower to the Administrative Agent or any Bank
Senior Lender, including without limitation amounts payable by the Borrower
under clause (b) of this Section 5.05 and under Section 12.03, shall be made
free and clear of, and without deduction or withholding for, any and all present
and future taxes, levies, imposts, tariffs, duties, assessments, deductions,
withholdings, fees, liabilities or other charges other than Excluded Taxes
(collectively, "Taxes") imposed, assessed, levied or collected by any
Governmental Authority, together with interest thereon and penalties with
respect thereto, if any, under or in respect of this Agreement, the Bank Senior
Loans, the Senior Notes or any other Financing Document, the execution,
registration, enforcement, notarization or other formalization of any thereof,
and any payments of principal, interest, charges, fees, commissions or other
amounts made on, under or in respect thereof ("Covered Taxes"), all of which
shall be paid by the Borrower, for its own account, prior to the date on which
penalties attach thereto.
(b) The Borrower shall indemnify and hold harmless the
Administrative Agent and each Bank Senior Lender against, and promptly reimburse
the Administrative Agent and each Bank Senior Lender on demand for, any Covered
Taxes paid by the Administrative Agent or any Bank Senior Lender and any Loss
that the Administrative Agent or any Bank Senior Lender may incur at any time
arising out of or in connection with any failure of the Borrower to make any
payment of Covered Taxes when due, other than any interest, penalties or legal
fees arising from the failure of the Borrower to pay such Covered Taxes due to
the gross negligence or willful misconduct of the Administrative Agent or such
Bank Senior Lender.
(c) In the event that the Borrower is required by Applicable Law to
deduct or withhold Covered Taxes from any amounts payable on, under or in
respect of this Agreement, the Bank Senior Loans, the Senior Notes or any other
Financing Document (including without limitation any amounts payable under
clause (b) of this Section 5.05 and Sections 2.07, 2.09, 3.01 and 3.02), the
Borrower shall pay the Administrative Agent and each Bank Senior Lender such
additional amount as may be required, after the deduction or withholding of any
Covered Taxes, to enable the Person entitled to such amount to receive from the
Borrower an amount equal to the full amount stated to be payable under this
Agreement, the Bank Senior Loans, the Senior Notes or any other Financing
Document.
(d) The Borrower shall furnish to the Administrative Agent original
or certified copies of tax receipts in respect of any withholding of Covered
Taxes required under this Section 5.05 within 30 days after the date of each
payment under this Agreement as to which such withholding is required, and the
Borrower shall promptly furnish to the Administrative Agent any other
information, documents and receipts that the Administrative Agent or any Bank
Senior Lender
-18-
may from time to time require to establish to its satisfaction that full and
timely payment has been made of all Covered Taxes required to be paid under this
Section 5.05.
5.06 Replacement Bank Senior Lenders. Subject to Section 2.07 and
Section 2.10 of the Common Security Agreement, and provided that no Event of
Default shall have occurred and be Continuing under this Agreement or the Common
Security Agreement, the Borrower may, at any time, replace any Bank Senior
Lender that has requested compensation from the Borrower pursuant to Section
5.01 or whose obligation to make additional Bank Senior Loans has been suspended
or terminated pursuant to Section 5.03 or that has failed, and such failure has
continued for 10 Business Days, to make payment to the Administrative Agent of
the proceeds of a Bank Senior Loan to be made by such Bank Senior Lender under
this Agreement after satisfaction of all conditions precedent to such Bank
Senior Loan (any such Bank Senior Lender being herein called an "Affected Bank
Senior Lender"), by giving not less than 10 Business Days' prior written notice
to the Administrative Agent (which shall promptly notify such Affected Bank
Senior Lender and each other Bank Senior Lender), that it intends to replace
such Affected Bank Senior Lender with one or more banks (which may include any
other Bank Senior Lender) selected by the Borrower and acceptable to the
Administrative Agent, provided that, if the replacement Bank Senior Lender shall
request, with respect to such Bank Senior Loan, compensation pursuant to this
Article V, such compensation shall in the aggregate be lower than that of the
Affected Bank Senior Lender. The method (whether by assignment or otherwise) of,
and documentation for, such replacement shall be the execution and delivery of
an assignment agreement in writing, substantially in the form of Exhibit II
hereto.
Upon the effective date of any replacement pursuant to this Section
5.06 (and as a condition thereto), the Borrower shall pay to the Affected Bank
Senior Lender being replaced any amounts owing to such Affected Bank Senior
Lender under this Agreement (including without limitation principal, interest,
fees, commissions, compensation and additional amounts under this Article V, in
each case accrued to the effective date of such replacement, and any amounts
that would be payable under this Section 5.06 if all of such Affected Bank
Senior Lender's Bank Senior Loans were being prepaid in full on such date),
whereupon each replacement bank shall for all purposes of this Agreement become
a "Bank Senior Lender" having a Commitment in the amount of such Affected Bank
Senior Lender's Commitment assumed by it, holding Bank Senior Loans acquired by
it and party to, or entitled to the benefit of, the Financing Documents, and
such Commitment of the Affected Bank Senior Lender being replaced shall be
terminated upon such effective date and all of such Affected Bank Senior
Lender's rights and obligations under the Financing Documents shall terminate
(provided that the obligations of the Borrower under Sections 5.01, 5.03, 5.04,
5.05, 5.06 and 12.03 with respect to such Affected Bank Senior Lender, and the
obligations of such Affected Bank Senior Lender under Section 10.4 with respect
to the Administrative Agent, shall survive any such replacement).
-19-
ARTICLE VI
CONDITIONS PRECEDENT
6.01 Initial Bank Senior Loans. The obligation of each Bank Senior
Lender to make its initial Bank Senior Loan under the Tranche A Facility and its
Bank Senior Loan under the Tranche B Facility under this Agreement shall be
subject to the satisfaction of each of the following conditions:
(a) Execution. This Agreement shall have been duly executed and
delivered by each of the parties hereto and each of the Senior Notes evidencing
the Initial Bank Senior Loans shall have been duly completed, executed and
delivered by each of the Borrower and the Guarantors to the relevant Bank Senior
Lender; and
(b) Satisfaction of Common Conditions Precedent. All the common
conditions precedent set forth in Section 9.01 of the Common Security Agreement
shall have been satisfied (or waived as provided in Section 14.13 of the Common
Security Agreement).
6.02 Subsequent Disbursements of the Tranche A Facility. The
obligation of each Bank Senior Lender to make any Bank Senior Loan under the
Tranche A Facility under this Agreement, including without limitation its
initial Bank Senior Loan, shall be subject to the satisfaction of the following
conditions:
(a) Satisfaction of Common Conditions Precedent. All the common
conditions precedent set forth in Section 9.02 of the Common Security Agreement
shall have been satisfied (or waived as provided in Section 14.13 of the Common
Security Agreement).
(b) Senior Notes. Such Bank Senior Lender or the Administrative
Agent on behalf of such Bank Senior Lender shall have received a duly completed
and executed Senior Note or Senior Notes evidencing such Bank Senior Loan or
Bank Senior Loans.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01 Representations and Warranties of the Borrower and the
Guarantors. Each of the Borrower and the Guarantors confirms the respective
representations and warranties made by it in Section 3.01 of the Common Security
Agreement, as if made as of the date of this Agreement, which representations
and warranties are incorporated herein by reference as if fully set forth in
this Agreement.
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ARTICLE VIII
COVENANTS
8.01 Covenants of the Borrower and the Guarantors. Each of the
Borrower and the Guarantors agrees that, so long as any Bank Senior Lender has
any Commitment under this Agreement or any amount payable under this Agreement
remains unpaid, it shall observe and perform each of the covenants applicable to
it set forth in Article IV of the Common Security Agreement, which covenants and
agreements are incorporated by reference in this Agreement as if fully set forth
herein, in accordance with their terms.
ARTICLE IX
EVENTS OF DEFAULT
9.01 Events of Default. The occurrence of any Default or Event of
Default set forth in Article X of the Common Security Agreement shall constitute
a "Default" or "Event of Default", as the case may be, for all purposes of this
Agreement. If any Default or Event of Default shall occur and be Continuing,
then the Bank Senior Lenders shall have (in addition to any and all other
available remedies at law and in equity) each of the remedies set forth in
Article X of the Common Security Agreement.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.01 Appointment, Powers and Immunities. (a) Each Bank Senior Lender
hereby irrevocably appoints and authorizes Deutsche Bank AG, New York Branch, as
the Administrative Agent to act as its agent, with such powers as are
specifically delegated to the Administrative Agent by the terms of this
Agreement and the Common Security Agreement, together with such other powers as
are incidental thereto, and each Bank Senior Lender authorizes and instructs the
Administrative Agent to execute and deliver on its behalf each of the Common
Security Agreement, the Transfer Restrictions Agreement, the Intercreditor
Agreement, each Security Document and any other applicable Financing Document,
and agrees to be bound by the terms and conditions of each such agreement as if
it had executed and delivered such agreement for and in its own name. The
Administrative Agent hereby accepts such appointment upon the terms and
conditions set forth in this Article X.
(b) Each Bank Senior Lender hereby agrees and acknowledges that the
Administrative Agent shall act for and on behalf of the Bank Senior Lenders as a
Bank Senior Lender or Bank Senior Lender Group for purposes of each of the
Common Security Agreement, the Transfer Restrictions Agreement or any other
Financing Document, and each Bank Senior Lender hereby authorizes such action by
the Administrative Agent on its behalf in accordance with its appointment under
this Agreement. Notwithstanding the foregoing, the Administrative Agent shall,
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upon the request of any Bank Senior Lender, promptly deliver to such Bank Senior
Lender any request, notice or communication permitted to be given by any Bank
Senior Lender under or pursuant to the Common Security Agreement, the Transfer
Restrictions Agreement or any other Financing Document.
(c) The Administrative Agent (which term as used in this Article X
and Sections 10.04 and 12.03 shall include its Affiliates and their respective
officers, directors, employees and agents) shall not: (i) have any duties or
responsibilities (including without limitation any duties or responsibilities to
make any determinations with respect to the terms or provisions or any insurance
policy referred to in Article VII of the Common Security Agreement), except
those expressly set forth in this Agreement or the Common Security Agreement or,
by reason of this Agreement or the Common Security Agreement, be a trustee for
any Bank Senior Lender; (ii) be responsible to the Bank Senior Lenders for any
recitals, statements, representations or warranties contained in this Agreement
or the Common Security Agreement, or in any certificate or other document
referred to or provided for in, or received by any of them under, this Agreement
or the Common Security Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, any Senior Note,
the Common Security Agreement or any other document referred to or provided for
herein or therein, or for any failure by the Borrower or any other Person to
perform any of its obligations hereunder or thereunder; (iii) be required to
initiate or conduct any litigation or collection proceedings under this
Agreement or the Common Security Agreement; or (iv) be responsible for any
action taken or omitted to be taken by it under this Agreement or the Common
Security Agreement or under any other document or instrument referred to or
provided for herein or therein or in connection herewith or therewith, except
for its own negligence or willful misconduct.
The Administrative Agent may employ agents and attorneys-in-fact, and
the Administrative Agent shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it without
negligence or willful misconduct. The Administrative Agent may deem and treat
the payee of any Senior Note as the holder thereof for all purposes hereof
unless and until a notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent.
10.02 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely upon any certification, notice or other communication
(including without limitation any thereof by telephone, telecopy, telex,
telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by this Agreement or the Common Security Agreement, the Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with instructions given by Majority Bank
Lenders, and such instructions of Majority Bank Lenders and any action taken or
failure to act pursuant thereto shall be binding on all Bank Senior Lenders.
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10.03 Defaults. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Event of Default or Default (other
than, subject to Section 4.05, the non-payment of principal of or interest on
Bank Senior Loans or of commitment fees) unless the Administrative Agent has
received notice from the Collateral Trustee, a Bank Senior Lender, the Borrower
or the Partnership specifying such Event of Default or Default and stating that
such notice is a "Notice of Default". In the event that the Administrative Agent
receives such a notice of the occurrence of any Event of Default or Default or
of any such non-payment, the Administrative Agent shall give prompt notice
thereof to each of the Bank Senior Lenders. The Administrative Agent shall
(subject to Section 10.06) take such action with respect to such Event of
Default, Default or non-payment as shall be directed by Majority Bank Lenders,
provided that, unless and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Event
of Default, Default or non-payment as it may deem advisable in the best interest
of the Bank Senior Lenders, except to the extent that this Agreement or the
Common Security Agreement expressly requires that such action be taken, or not
be taken, only with the consent or upon the authorization of Majority Bank
Lenders or all Bank Senior Lenders.
10.04 Indemnification. Each of the Bank Senior Lenders agrees to
indemnify and hold harmless the Administrative Agent (to the extent not
reimbursed under Section 12.03, but without limiting the obligations of the
Borrower under said Section 12.03), ratably in accordance with the aggregate
principal amount of the Bank Senior Loans held by such Bank Senior Lender (or,
if no Bank Senior Loans of such Bank Senior Lender are at the time outstanding,
ratably in accordance with its Commitment), for any and all Losses that may be
imposed on, incurred by, or asserted against (including without limitation by
any Bank Senior Lender) the Administrative Agent arising out of or by reason of
any investigation in or in any way relating to or arising out of this Agreement,
the Common Security Agreement or any other documents contemplated by or referred
to herein or the transactions contemplated hereby or thereby (including without
limitation the costs and expenses that the Borrower is obligated to pay under
Section 12.03, but excluding, unless a Default has occurred and is Continuing,
normal administrative costs and expenses incident to the performance of the
Administrative Agent's agency duties hereunder) or the enforcement of any of the
terms hereof or thereof, provided, however, that no Bank Senior Lender shall be
liable for any of the foregoing to the extent they arise from the negligence or
willful misconduct of the Administrative Agent.
10.05 Non-Reliance on Administrative Agent and Other Bank Senior
Lenders. Each Bank Senior Lender agrees that it has, independently and without
reliance on the Administrative Agent or any other Bank Senior Lender, and based
on such documents and information as it has deemed appropriate, made its own
credit analysis of the ▇▇▇▇▇ Project, the Borrower, the Partnership, the General
Partner, the Limited Partner and their respective Affiliates and its own
decision to enter into this Agreement and the other Financing Documents and that
it will, independently and without reliance upon the Administrative Agent or any
other Bank Senior Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking, or refraining from taking, any action under this
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Agreement and the other Financing Documents. The Administrative Agent shall not
be required to keep itself informed as to the performance or observance by the
Borrower or the Guarantors of this Agreement or the other Financing Documents,
or to inspect the properties or books of the Borrower or the Guarantors. Except
for notices, reports and other documents and information expressly required to
be furnished to the Bank Senior Lenders by the Administrative Agent under this
Agreement or the other Financing Documents (as to which the Administrative Agent
only shall have the duty to forward what it has received), the Administrative
Agent shall not have any duty or responsibility to provide any Bank Senior
Lender with any credit or other information concerning the affairs, financial
condition or business of the ▇▇▇▇▇ Project, the Borrower, the Partnership, the
General Partner, the Limited Partner or any of their Affiliates that may come
into its possession or that of any of its Affiliates.
10.06 Failure to Act. Except for action expressly required of the
Administrative Agent under this Agreement or the other Financing Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder or thereunder unless it shall receive further
assurances to its reasonable satisfaction from the Bank Senior Lenders of their
indemnification obligations under Section 10.04 against any and all Losses that
may be incurred by the Administrative Agent by reason of taking or continuing to
take any such action.
10.07 Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided in
this Section 10.07, the Administrative Agent may resign at any time by notifying
the Bank Senior Lenders in writing. The Administrative Agent may be removed as
agent hereunder upon 30 days' written notice by an instrument in writing signed
by Majority Bank Lenders. Upon any such resignation or removal, Majority Bank
Lenders shall have the right to appoint a successor. If no successor shall have
been so appointed by Majority Bank Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Bank Senior Lenders, appoint a successor Administrative Agent which shall be a
bank with an office in New York, New York, or an Affiliate of any such bank.
Upon the acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of Section 10.04
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
10.08 Notices. The Administrative Agent agrees to furnish promptly to
each Bank Senior Lender a copy of each written communication (including without
limitation financial information and project reports) received by it from any of
the Borrower or the Guarantors or any of their Affiliates expressly relating to,
and any amendment or waiver of any of the provisions of, this Agreement or any
other Financing Document or the transactions contemplated hereby and
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thereby, or from any Bank Senior Lender pursuant to or in relation to this
Agreement or any other Financing Document. In addition, the Administrative Agent
agrees to advise promptly each Bank Senior Lender of any material action taken,
or any action proposed by the Bank Senior Lenders to be taken that is not taken,
by the Bank Senior Lenders at any meeting of Bank Senior Lenders.
ARTICLE XI
GUARANTEE
11.01 Guarantee of the Guarantors. (a) Each of the Guarantors hereby
unconditionally, and jointly and severally, guarantees to each Bank Senior
Lender and the Administrative Agent (i) the due and punctual payment of the
principal of, premium on (if any) and interest on each Bank Senior Loan when and
as the same shall become due and payable, whether at the maturity thereof, by
declaration of acceleration or otherwise, in accordance with the terms of this
Agreement and the Common Security Agreement and (ii) the performance by the
Borrower of each of its other obligations under this Agreement and the other
Financing Documents. In the case of the failure of the Borrower or any successor
thereto punctually to pay to each Bank Senior Lender or the Administrative Agent
and or any such principal or interest and any other amounts due under this
Agreement and the Common Security Agreement, each of the Guarantors hereby
agrees to cause any such payments to be made punctually when and as the same
shall become due and payable, whether at the maturity thereof, by declaration of
acceleration or otherwise, as if such payments were made by the Borrower. Each
of the Guarantors hereby agrees that its obligations hereunder shall be as if it
were a principal debtor and obligor and not merely a surety, and shall be
absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Bank Senior Loan or any
provision of this Agreement or of the other Financing Documents, any failure to
enforce the provisions of any Bank Senior Loan or any provision of this
Agreement or of the other Financing Documents, any waiver, modification or
indulgence granted to the Borrower with respect thereto by any Bank Senior
Lender, the Collateral Trustee or the Administrative Agent, any recovery of any
judgment against the Borrower to enforce the same, any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of the terms of any
Bank Senior Loan, the Agreement or any other Financing Document or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or guarantor.
(b) Each of the Guarantors hereby expressly (i) waives (A)
promptness, diligence, presentment, demand of payment, filing of claims with a
court in the event of merger, bankruptcy or insolvency of the Borrower, any
right to require a proceeding first against the Borrower, the benefit of
discussion, protest, order and notice with respect to any Bank Senior Loan or
the Senior Debt evidenced thereby and all demands whatsoever and (B) any
requirement that a Bank Senior Lender exhaust any right to take any action
against the Borrower or any other Person prior to or contemporaneously with
proceeding to exercise any right against the Guarantors and (ii) covenants that
this guarantee will not be discharged with respect to any Bank Senior Loan
except by payment in full of the principal amount due thereunder and any
interest thereon.
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(c) Each of the Guarantors acknowledges and agrees for the benefit
of the Administrative Agent on behalf of the Bank Senior Lenders and the Bank
Senior Lenders that the Administrative Agent and the Bank Senior Lenders may,
subject to the other provisions of this Agreement and the Common Security
Agreement, directly and simultaneously proceed against any or all of the
Guarantors for the enforcement of this guarantee and against the Borrower. The
obligations of the Guarantors under this guarantee are independent of the
obligations of the Borrower, and a separate action or actions may be brought and
prosecuted against any or all of the Guarantors, whether or not (i) any action
or proceeding is brought against the Borrower, (ii) the Borrower is joined in
any such action or proceeding against any or all of the Guarantors or (iii) the
Administrative Agent or the Bank Senior Lenders have taken any action to collect
or attempted to collect otherwise such obligations from the Borrower or any
other Person liable therefor.
(d) Each of the Guarantors hereby irrevocably agrees that (i) this
Guarantee will constitute the direct and unconditional obligation of each of the
Guarantors and, (ii) except as set forth in Sections 5.05 and 10.12 of the
Common Security Agreement and other than in the case of claims which may be
granted preferential treatment pursuant to applicable law, this guarantee shall
rank pari passu with any Senior Debt Obligations incurred pursuant to a Senior
Loan Agreement to which the Borrower or the Partnership is party, and any Oil
Payment Reimbursement Obligations incurred pursuant to the Oil Payment
Reimbursement Agreement, and in each case shall be senior to all Subordinated
Debt.
(e) Each of the Guarantors hereby agrees that this guarantee shall
continue to be effective or be reinstated, as the case may be, if at any time,
payment or any partial payment of any obligations or interest thereon is
rescinded or must otherwise be restored by a Bank Senior Lender to the Borrower
upon the bankruptcy or insolvency of the Borrower or any of the Guarantors.
(f) Each of the Guarantors hereby agrees that it will pay, or
reimburse any Bank Senior Lender on demand for, all reasonable costs and
expenses (including fees and disbursements of counsel) incurred by such Bank
Senior Lender in connection with any rescission or restoration of this
guarantee, including any such costs and expenses incurred in defending against
any claim alleging that any payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
(g) Each of the Guarantors hereby agrees that, until such time as
all Bank Senior Loans, and all amounts payable under this Guarantee and the
other Financing Documents are paid in full, none of the Guarantors shall be
entitled to enforce any claim or other rights, whether presently or hereafter
acquired against the Borrower, that arise from the existence, payment,
performance or enforcement of any of the Guarantors' obligations under this
guarantee, including without limitation any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any
claim or remedy of any Bank Senior Lender of any Bank Senior Loan and the
Administrative Agent on behalf of such Bank Senior Lender against the Borrower
or any collateral that any such Bank Senior Lender or the Administrative Agent
on behalf of such Bank Senior Lender acquires under this Agreement or any other
Financing Document, whether or not such
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claim, remedy or right arises in equity, or under contract, statute or common
law, including without limitation the right to take or receive from the
Borrower, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any of the Guarantors in violation of the
preceding sentence at any time prior to the payment in full of all Bank Senior
Loans and all other amounts payable under this guarantee, such amount shall be
deemed to have been paid to the respective Guarantor or Guarantors for the
benefit of, and held in trust for the benefit of, the Bank Senior Lenders and
the Administrative Agent on behalf of the Bank Senior Lenders, and shall
forthwith be paid to the Administrative Agent for the benefit of the Bank Senior
Lenders to be credited and applied upon such guaranteed obligations, whether
matured or unmatured, in accordance with the terms of this Agreement and the
Common Security Agreement.
(h) The Guarantors shall give prompt written notice to the
Administrative Agent of any fact known to any of the Guarantors that would
prohibit the making of any payment to the Administrative Agent in respect of
this guarantee.
(i) Notwithstanding anything in this Article XI to the contrary, the
guarantee under clause (a) of this Section 11.1 shall not apply to the extent
any obligation is guaranteed pursuant to (i) the guarantee attached to the
securities evidencing Capital Markets Senior Debt in accordance with Section 205
and Article 12 of the Indenture, (ii) the guarantee of Bank Senior Debt pursuant
to Article X of the Secured Working Capital Facility or (iii) the guarantee of
Senior Debt Obligations and Oil Payment Reimbursement Obligations pursuant to
Section 12.01 of the Common Security Agreement.
ARTICLE XII
MISCELLANEOUS
12.01 Waiver. Except as expressly provided in this Agreement, no
failure on the part of the Administrative Agent or any Bank Senior Lender to
exercise, no delay in exercising, and no course of dealing with respect to, any
right, power or privilege under this Agreement or any Senior Note shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege under this Agreement or any Senior Note preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided in this Agreement are cumulative and not exclusive of any
remedies provided by law.
12.02 Notices. Any notice, request, demand, consent, designation,
direction, instruction, certificate, report or other communication to be given
or made under this Agreement (including without limitation any modifications of,
or waivers or consents under, this Agreement) shall be given or made in writing
and shall be deemed duly given when (i) personally delivered, (ii) sent by
facsimile transmission (but only if, immediately after the transmission, the
sender's facsimile machine records in writing the correct answerback), or (iii)
five days have elapsed after mailing by certified or registered mail, postage
pre-paid, in each case addressed to a party at the address or
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facsimile transmission number specified below such party's name on the signature
pages hereof or to such other address or facsimile transmission number of which
such party has given notice. Any notice to be given by or on behalf of the
Borrower or the Guarantors may be given by the Partnership acting alone; and any
notice to be given to the Borrower or the Guarantors shall be deemed duly given
to both the Borrower and the Guarantors if given to the Guarantors alone. Any
notice to be given by or on behalf of the Borrower or the Guarantors to the Bank
Senior Lenders may be sent to the Administrative Agent. Notice of address or
facsimile transmission number change shall be effective only upon receipt.
12.03 Expenses, Etc. Whether or not any of the transactions
contemplated by this Agreement are consummated, the Borrower agrees to reimburse
(or cause to be reimbursed) the Administrative Agent and each Bank Senior Lender
on demand for all out-of-pocket costs and expenses of each of the Bank Senior
Lenders, and the Administrative Agent (including without limitation all
commissions, charges, costs and expenses, if any, for the conversion of
currencies, fees and expenses of legal counsel, consultants and advisors and
travel-related costs and expenses) made, paid, suffered or incurred in
connection with (a) the preparation, negotiation, execution and delivery,
syndication (both before and after the Closing Date) and, where appropriate,
authentication, registration and recordation of this Agreement, the other
Financing Documents and any other documents and instruments related hereto or
thereto (including legal opinions), (b) any amendment or modification to, or the
protection or preservation of any right or claim under, or consent or waiver in
connection with, this Agreement or any other Financing Document, any such other
document or instrument related hereto or thereto or any Collateral, (c) the
authentication, registration, translation, syndication and recordation (where
appropriate) and the delivery of the evidences of indebtedness relating to the
Bank Senior Loans and the disbursements thereof and (d) the syndication,
administration and enforcement (including with respect to a workout) of this
Agreement, the other Financing Documents and any other documents and instruments
referred to herein or therein.
The Borrower hereby agrees to indemnify the Administrative Agent and
each Bank Senior Lender and their respective directors, officers, employees,
agents and Affiliates from, and hold each of them harmless against, any and all
claims or Losses incurred by it arising out of or by reason of any investigation
or litigation or other proceedings (including without limitation any threatened
investigation or litigation or other proceedings) relating to, arising out of or
resulting from the Bank Senior Loans or any actual or proposed use by the
Borrower or the Partnership of the proceeds of the Bank Senior Loans, including
without limitation the fees and disbursements of counsel incurred in connection
with any such investigation or litigation or other proceedings. Without limiting
the generality of the foregoing, the Borrower shall indemnify the Administrative
Agent and each Bank Senior Lender and their respective directors, officers,
employees, agents and Affiliates from, and hold each of them harmless against,
any claims or Losses, including without limitation those described in the
preceding sentence relating to any Environmental Law including without
limitation those arising as a result of the past, present or future operations
of the Partnership or any of its Affiliates (or any predecessor in interest to
the Partnership or any of its Affiliates) or the environmental contamination of
any site or facility owned, operated or leased at any time by the Partnership or
any of its Affiliates (or any such predecessor in interest), any Release or
threatened
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Release of any Hazardous Substance by the Partnership or any of its Affiliates
(or any such predecessor in interest) at or from any such site or facility, or
any claim or Loss relating to any Environmental Law in connection with the ▇▇▇▇▇
Project including without limitation any such claim or Loss, arising as a result
of operations, environmental contamination or any Release or threatened Release
that shall occur during any period when the Administrative Agent or any Bank
Senior Lender shall be in possession of any such site or facility following the
exercise by the Administrative Agent or any Bank Senior Lender of any of its
rights and remedies under this Agreement or any of the Security Documents, that
is related to the operations, compliance, environmental contamination or any
Release or threatened Release occurring prior to such period or relates to
conditions previously in existence, or of practices employed by the Partnership
or any of its Affiliates, at such site or facility and the Borrower waives any
rights it may have under any Environmental Law relating to this indemnity or the
Administrative Agent or any Bank Senior Lender.
12.04 Amendments, Etc. Except as otherwise expressly provided in this
Agreement and Section 14.13 of the Common Security Agreement, any provision of
this Agreement may be amended, modified or supplemented only by an instrument in
writing signed by each of the parties hereto, and any provision of this
Agreement may be waived by Majority Bank Lenders or by the Administrative Agent
acting with the consent of Majority Bank Lenders, provided, however, that: (a)
no amendment, modification, supplement or waiver shall, unless by an instrument
signed by all of the Bank Senior Lenders, (i) increase, or extend the term of
the Commitments, or extend the time or waive any requirement for the reduction
or termination of the Commitments, (ii) extend the date fixed for the payment of
principal of, or interest on, any Bank Senior Loan or any commitment fee under
this Agreement or the Senior Notes, (iii) reduce the amount of any such payment
of principal, (iv) reduce the rate at which interest is payable thereon or any
commitment fee is payable under this Agreement or any of the Senior Notes, (v)
alter the rights or obligations of the Borrower to prepay Bank Senior Loans,
(vi) alter the terms of this Section 12.04 or 4.02, (vii) modify the definition
of the term "Majority Bank Lenders" or modify in any other manner the number or
percentage of the Bank Senior Lenders required to make any determinations or
waive any rights under this Agreement or to modify any provision hereof, (viii)
waive any of the conditions precedent set forth in Article VI, (ix) subject any
Bank Senior Lender to any additional obligations, (x) subject to the express
provisions of the Common Security Agreement, relinquish or diminish any security
or support for the Borrower's obligations under this Agreement, or (xi) release
the Collateral Trustee from the irrevocable instructions granted to it pursuant
to the Common Security Agreement, and (b) any modification or supplement of
Article X, insofar as it relates to the Administrative Agent, shall require the
consent of the Administrative Agent.
12.05 Successors and Assigns. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective successors
and permitted assigns.
12.06 Assignments and Participations. (a) The Borrower may not assign
any of its rights or obligations under this Agreement or any of the Senior Notes
without the prior written consent of all Bank Senior Lenders and the
Administrative Agent.
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(b) Each Bank Senior Lender may assign all or a portion of its
Commitments and related Bank Senior Loans and Senior Notes (or, if the
Commitments have been terminated, its Bank Senior Loans and Senior Notes) to any
other entity, provided that any assignment to an entity other than an Affiliated
Lender of such Working Capital Lender shall require the consent of the
Administrative Agent (such consent not to be unreasonably withheld), and
provided, further, that no such assignment shall result in an assignor or
assignee (in each case, together with its Affiliated Lenders) who holds any
Commitments or Bank Senior Loans holding an aggregate amount of Commitments and
Bank Senior Loans that is greater than zero but less than $5,000,000 (or such
lower amount as may be approved by the Administrative Agent). Upon execution and
delivery by the assignee to the Lead Arranger and the Administrative Agent of an
instrument in writing, substantially in the form of Exhibit II hereto, pursuant
to which such assignee agrees to become a "Bank Senior Lender" for purposes of
this Agreement (if not already a Bank Senior Lender), (i) Schedule III shall be
deemed amended to reflect the Bank Senior Lender's Commitments after giving
effect to such assignment, (ii) upon the surrender of the relevant Senior Notes
by the assigning Bank Senior Lender (or against customary indemnification
arrangements) new Senior Notes will be issued, at the Borrower's expense, to
such new Bank Senior Lender and to the assigning Bank Senior Lender in
conformity with Section 2.06, (iii) the assignee shall have, to the extent of
such assignment, all the obligations, rights and benefits of a Bank Senior
Lender under this Agreement, holding the Commitment and Bank Senior Loans (or
portions thereof) assigned to it (in addition to the Commitment and Bank Senior
Loans, if any, theretofore held by such assignee), and under the Common Security
Agreement, any of the Senior Notes assigned to it and any other Financing
Document to which the Bank Senior Lenders are party, and (iv) the assigning Bank
Senior Lender shall, to the extent of such assignment, be released from the
Commitment (or portion thereof) so assigned. Upon each such assignment (except
any such assignment to an Affiliated Lender of the assigning Bank Senior
Lender), the assigning Bank Senior Lender shall pay the Administrative Agent an
assignment fee of $3,500.
(c) A Bank Senior Lender may sell or agree to sell to one or more
other Persons (each, a "Participant") a participation in all or any part of any
Bank Senior Loans, Senior Notes and Commitments held by it, or in its
Commitment, provided that (i) such Bank Senior Lender shall remain a "Bank
Senior Lender" for all purposes hereunder (and may not transfer or assign any
part of its Commitments except in accordance with clause (b) of Section 12.06)
and the Participant shall not constitute a "Bank Senior Lender" hereunder and
(ii) no Bank Senior Lender shall transfer, assign or grant any participation
under which the Participant shall have rights to approve any amendment to or
waiver of this Agreement or any other Financing Document other than an amendment
or waiver referred to under clauses (i) through (iv), (x) or (xi) of clause (a)
in Section 12.04. In the case of any such participation, the Participant shall
not have any rights under this Agreement or any of the other Financing Documents
(the Participant's rights against the such Bank Senior Lender in respect of such
participation to be those set forth in the agreement executed by such Bank
Senior Lender and such Participant in connection with such participation) and
all amounts payable by the Borrower hereunder shall be determined as if such
Bank Senior Lender had not sold such participation.
-30-
(d) A Bank Senior Lender may furnish any information concerning the
Borrower or any of the Guarantors in the possession of such Bank Senior Lender
from time to time to assignees and Participants and their investment advisors
(including prospective assignees and Participants), provided that such assignees
and Participants and prospective assignees and Participants and their investment
advisors shall first execute and deliver to the Borrower or the applicable
Guarantor an agreement in writing to become subject to the provisions contained
in Section 14.12 of the Common Security Agreement.
(e) Nothing in this Agreement shall prevent or prohibit any Bank
Senior Lender from pledging its Bank Senior Loans and Notes hereunder to a
Federal Reserve Bank in support of borrowings made by such Bank Senior Lender
from such Federal Reserve Bank and, with the consent of the Administrative
Agent, which consent shall not be unreasonably withheld, any Bank Senior Lender
which is a fund may pledge all or any portion of its Bank Senior Loans and Notes
to its trustee in support of its obligations to its trustee. No pledge pursuant
to this clause (e) shall release the transferor Bank Senior Lender from any of
its obligations hereunder.
(f) Notwithstanding anything to the contrary contained herein, any
Bank Senior Lender (a "Granting Bank Senior Lender") may grant to a special
purpose funding vehicle (an "SPC"), identified as such in writing from time to
time by the Granting Bank Senior Lender to the Administrative Agent and the
Borrower, the option to provide the Borrower all or any part of any Bank Senior
Loan that such Granting Bank Senior Lender would otherwise be obligated to make
to the Borrower pursuant to this Agreement, provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Bank Senior Loan, and (ii)
if an SPC elects not to exercise such option or otherwise fails to provide all
or any part of such Bank Senior Loan, the Granting Bank Senior Lender shall be
obligated to make such Bank Senior Loan pursuant to the terms hereof. The making
of a Bank Senior Loan by an SPC hereunder shall utilize the Commitment of the
Granting Bank Senior Lender to the same extent, and as if, such Bank Senior Loan
were made by such Granting Bank Senior Lender. Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Bank Senior Lender). In furtherance of the foregoing, each party hereto hereby
agrees (which agreement shall survive the termination of this Agreement) that,
prior to the date that is one year and one day after the payment in full of all
outstanding commercial paper or other serious indebtedness of any SPC, it will
not, in its capacity as a party hereto or to any other Financing Document,
institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this clause (f), any SPC
may (x) with notice to, but without the prior written consent of, the Borrower
and the Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Bank Senior Loans to the
Granting Bank Senior Lender or to any financial institutions (such institutions
consented to by the Administrative Agent) providing liquidity or credit support
to or for the account of such SPC to support the funding or maintenance of Bank
Senior Loans and (y) disclose on a confidential basis any non-public information
relating to its Bank Senior Loans to any rating agency, commercial paper dealer
or provider or any surety, guarantee or credit
-31-
or liquidity enhancement to such SPC. This clause (f) may not be amended without
the written consent of each SPC holding an interest in any Commitment or any
Bank Senior Loan.
12.07 Survival. The obligations of the Borrower under Article V and
Sections 12.03 and 12.11 and the obligations of the Bank Senior Lenders under
Section 10.04 shall survive the repayment of the Bank Senior Loans and the
termination of the Commitments. This Agreement shall continue to be effective or
be reinstated, as the case may be, if at any time payment and performance of the
Borrower's obligations under this Agreement, or any part thereof, is, pursuant
to Applicable Law, rescinded or reduced in amount, or must otherwise be restored
or returned by the Administrative Agent or any Bank Senior Lender. In the event
that any payment or any part thereof is so rescinded, reduced, restored or
returned, such obligations shall be reinstated and deemed reduced only by such
amount paid and not so rescinded, restored or returned.
12.08 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
12.09 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
12.10 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE PARTNERSHIP, THE
ADMINISTRATIVE AGENT AND THE BANK SENIOR LENDERS HEREBY WAIVES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SENIOR NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
12.11 Consent to Jurisdiction. The Borrower and each of the Guarantors
confirm their consent and submission to jurisdiction, and their appointment of
CT Corporation System as agent for service of process, pursuant to clause (b) of
Section 14.12 of the Common Security Agreement, which Section is incorporated by
reference as it relates to the Borrower and the Guarantors as if fully set forth
in this Agreement.
12.12 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
-32-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
PORT ▇▇▇▇▇▇ FINANCE CORP.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
PORT ▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY L.P.,
By: SABINE RIVER HOLDING CORP.,
GENERAL PARTNER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
SABINE RIVER HOLDING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
NECHES RIVER HOLDING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
-33-
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent for the Bank Senior
Lenders
By: /s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
-34-
Bank Senior Lenders
-------------------
Commitment
US$106,775,000 Credit Suisse First Boston
US$95,675,000 in respect of
Tranche A Facility
US$11,100,000 in respect of
Tranche B Facility
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ Ngwube
------------------------------------
Name: ▇▇▇▇▇ Ngwube
Title: Associate
Lending Office:
Addresses for Notices:
Attention:
Telephone:
Telecopier:
-35-
Bank Senior Lenders
-------------------
Commitment
US$84,475,000 Deutsche Bank AG, New York Branch
US$75,575,000 in respect of and or Cayman Islands Branch
Tranche A Facility
US$8,900,000 in respect of
Tranche B Facility
By: /s/ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office:
Addresses for Notices:
Attention:
Telephone:
Telecopier:
-36-
Bank Senior Lenders
-------------------
Commitment
US$48,750,000 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.
US$33,750,000 in respect of
Tranche A Facility
US$15,000,000 in respect of
Tranche B Facility
By: /s/ ▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇ ▇▇▇▇▇
Title: Managing Director
Lending Office:
Addresses for Notices:
Attention:
Telephone:
Telecopier:
-37-
Bank Senior Lenders
-------------------
Commitment
US$35,000,000 General Electric Capital Corporation
US$0 in respect
of Tranche A Facility
US$35,000,000 in respect
of Tranche B Facility
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager, Operations
Lending Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Addresses for Notices: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇,
Manager of Portfolio
Administration
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Bank Senior Lenders
-------------------
Commitment
US$20,000,000 Fuji Bank Ltd.
US$20,000,000 in respect
of Tranche A Facility
US$0 in respect of Tranche B
Facility
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: EVP & GM
Lending Office: The Fuji Bank, Limited --
New York Branch
Addresses for Notices: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-39-
Bank Senior Lenders
-------------------
Commitment
US$10,000,000 Citibank, N.A.
US$0 in respect of Tranche A
Facility
US$10,000,000 in respect of
Tranche B Facility
By: /s/ ▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
Lending Office: Citibank, N.A.
Addresses for Notices: ▇ ▇▇▇▇'▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-40-
Bank Senior Lenders
-------------------
Commitment
US$20,000,000 ▇▇▇▇▇▇ Financial, Inc
US$0 in respect of Tranche A
Facility
US$20,000,000 in respect of
Tranche B Facility
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Lending Office: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Addresses for Notices:
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-41-
Appendix A
to Bank Senior Loan Agreement
DEFINITIONS
In this Appendix, the Bank Senior Loan Agreement and the Exhibits thereto
and in any other document that references this Appendix, the following terms
shall have the meanings assigned below (the singular includes the plural and
vice versa) (unless otherwise specified, section references in this Appendix are
to sections of the Bank Senior Loan Agreement):
"Additional Costs" shall have the meaning specified in clause (a) of
Section 5.01.
"Advance Date" shall have the meaning specified in Section 4.05.
"Affected Bank Senior Lender" shall have the meaning specified in Section
5.06.
"Affiliated Leaders" means, for any Bank Senior Lender, any of its
Affiliate and, in the case of a Bank Senior Lender that is a fund that
invests in loans, any other funds that invest in loans and are managed or
advised by the same investment advisor.
"Agreement" shall mean this Bank Senior Loan Agreement (including the
Appendix and Exhibits thereto).
"Alternate Base Rate" shall mean, for any day, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum
(rounded upward, if necessary, to the nearest 1/16th of 1.0%) is equal to the
Federal Funds Rate in effect on such day plus .050%.
"applicable Commitment Period" shall mean the period from and including the
Closing Date until the Commitment Termination Date during which Commitments
shall be available.
"Applicable Law" shall mean, with respect to any Person or the ▇▇▇▇▇
Project, any and all laws, statutes, regulations, rules, orders, injunctions,
decrees, writs and judgments applicable to such Person or the ▇▇▇▇▇ Project.
"Applicable Lending Office" shall mean, for each Bank Senior Lender, the
"Lending Office(s)" of such Bank Senior Lender (or of an Affiliate of such
Bank Senior Lender) designated on the signature pages of this Agreement or
such other office(s), branch(es) or subsidiary(ies) of such Bank Senior
Lender (or of an Affiliate of such Bank Senior Lender) as such Bank Senior
Lender may from time to time specify to the Administrative Agent and the
Borrower as the office(s), branch(es) or subsidiary(ies) by which its Bank
Senior Loans are to be made and maintained, provided that, if any Bank Senior
Lender at any time so designates
A-1
more than one "Lending Office", the "Applicable Lending Office" for such Bank
Senior Lender with respect to any specific Bank Senior Loan (or portion
thereof) held by such Bank Senior Lender shall be the "Lending Office"
designated on the books of such Bank Senior Lender as the Lending Office for
such Bank Senior Loan (or portion thereof).
"Arrangers" shall mean, collectively, Credit Suisse First Boston,
Deutsche Bank AG, New York Branch and ▇▇▇▇▇▇▇ Sachs Credit Partners L.P.
"Bank Senior Loan" shall have the meaning specified in Section 2.01.
"Base Rate" shall mean the greater of (i) the sum of the Prime Rate plus
400 basis points and (ii) the sum of the Federal Funds Rate plus 450 basis
points.
"Commitments" shall mean, for each Bank Senior Lender, the aggregate
obligation of such Bank Senior Lender to make Bank Senior Loans to the
Borrower, in an aggregate principal amount not to exceed the amount set forth
opposite the name of such Bank Senior Lender on Schedule III hereof (as the
same may be amended at any time or from time to time pursuant to the terms of
this Agreement), up to an aggregate principal amount for all Bank Senior
Lenders at any one time outstanding equal to $325 million (comprised as of
the date hereof of $225 million under the Tranche A Facility and $100 million
under the Tranche B Facility) (as the same may be modified amended to the
terms of this Agreement. Schedule III shall be automatically amended to the
extent Commitments are modified pursuant to this Agreement.
"Commitment Termination Date" shall mean, in the case of the Tranche B
Facility, October 15, 1999 and, in the case of the Tranche A Facility, the
date on which Substantial Reliability occurs, provided, however, that
Reallocation Senior Debt under the Tranche B Facility may also be incurred at
any time and from time to time after October 15, 1999 in accordance with
Section 2.01.
"Common Security Agreement" shall mean the Common Security Agreement, dated
as of August 19, 1999, among Port ▇▇▇▇▇▇ Finance Corp., Port ▇▇▇▇▇▇ ▇▇▇▇▇
Company L.P., Sabine River Holding Corp., Neches River Holding Corp.,
Winterthur International Insurance Company Limited, as Oil Payment Insurers
Administrative Agent, Bankers Trust Company, as Collateral Trustee for the
Secured Parties, Deutsche Bank AG, New York Branch, as Bank Senior Lenders
Administrative Agent, HSBC Bank USA as Capital Markets Trustee for the
Capital Markets Senior Lenders, and Bankers Trust Company, as Depositary
Bank, as the same may be amended or supplemented in accordance with its terms
and in effect from time to time.
"Covered Taxes" shall have the meaning specified in Section 5.05 hereof.
"Default" shall have the meaning specified in Section 9.01 hereof.
A-2
"Default Interest Period" shall mean each successive period (not in excess
of six months) while the Borrower is in default with respect to any amount
payable by it under this Agreement, as the Administrative Agent shall choose
(with the consent of Majority Bank Lenders), the first such period to
commence as of the date on which such amount becomes due and each succeeding
such period to commence immediately upon the expiry of the immediately
preceding such period, provided that, in the absence of or pending such
consent of Majority Bank Lenders, each Default Interest Period shall have a
duration of one week.
"Disbursement Date" shall mean, (i) in the case of the Tranche A Facility,
each date on which a disbursement of any Bank Senior Loan under the Tranche A
Facility shall be made and (ii) in the case of the Tranche B Facility, the
date on which all of the Bank Senior Loans under the Tranche B Facility shall
be made in a single disbursement in accordance with Section 2.01.
"Event of Default" shall have the meaning specified in Section 9.01 hereof.
"Excess Cash Flow Mandatory Prepayments" shall mean Mandatory Prepayments
out of 75% of Excess Cash Flow pursuant to clause (b) of Section 2.05 of the
Common Security Agreement.
"Excluded Taxes" shall mean all present and future taxes, levies, imposts,
duties, deductions, withholdings, fees, liabilities and similar charges
imposed on or measured by the overall net income of any Bank Senior Lender
(or any office, branch or subsidiary of such Bank Senior Lender) or any
franchise taxes, taxes on doing business or taxes measured by capital or net
worth imposed on any Bank Senior Lender (or any office, branch or subsidiary
of such Bank Senior Lender), in each case imposed by the United States of
America, any State or locality, or any political subdivision or taxing
authority thereof or therein, or taxes on or measured by the overall net
income of any office, branch or subsidiary of a Bank Senior Lender or any
franchise taxes, taxes imposed on doing business or taxes measured by capital
or net worth imposed on any office, branch or subsidiary of such Bank Senior
Lender, in each case imposed by any foreign country or locality, or any
political subdivision or taxing authority thereof or therein in which such
Bank Senior Lender's principal office or Applicable Lending Office is
located.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that, (i) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day and (ii) if such rate is not
so published for any Business Day, the Federal Funds Rate for such Business
Day shall be the average rate charged to the Applicable Lending Office of the
Administrative Agent on such Business Day on such transactions as determined
by the Administrative Agent.
A-3
"Final Maturity" shall mean (i) with respect to the Tranche A Facility,
January 15, 2007 and (ii) with respect to the Tranche B Facility, July 15,
2007.
"Granting Bank Senior Lender" shall have the meaning set forth in clause
(f) of Section 12.06.
"Guarantors" shall mean the Partnership, the General Partner and the
Limited Partner.
"Hold Level" shall mean, in the case of the Lead Arranger, $75,000,000, in
the case of Deutsche Bank AG, New York Branch, $60,000,000, and in the case
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., $40,000,000.
"Interest Period" shall mean, with respect to any Bank Senior Loan, the
period commencing on (and including) the date such Bank Senior Loan is made
or the last day of the next preceding Interest Period for such Bank Senior
Loan, as the case may be, and ending on (but excluding) the next succeeding
Payment Date in the case of Bank Senior Loans made under the Tranche A
Facility or the next succeeding Tranche B Interest Payment Date in the case
of Bank Senior Loans made under the Tranche B Facility, provided, however,
that (i) if a Payment Date or a Tranche B Interest Payment Date, as the case
may be, is not a Business Day, the relevant date for purposes of this
definition shall be the immediately succeeding Business Day, and (ii) subject
to (i), any Interest Period that would otherwise end after the Final Maturity
Date shall end on the Final Maturity Date.
"Lead Arranger" shall mean Credit Suisse First Boston.
"LIBOR" shall mean, with respect to any Bank Senior Loan or any other
amount payable under this Agreement that is not paid when due, for the
Interest Period or Default Interest Period therefor, the interest rate per
annum for deposits in Dollars, if any, for a period equal to (or if there is
no equal, then most comparable to) such Interest Period or Default Interest
Period which appears on the page designated Page 3750 on the Telerate Service
(or such other page as may replace that page on that service for the purpose
of displaying the British Bankers Association Interest Settlement Rate) at or
about 11:00 a.m., London time, on the date two Eurodollar Business Days
before and for value on the first day of such Interest Period or Default
Interest Period. If such a rate does not appear on the page designated Page
3750 on the Telerate Service (or such other page) as may replace that page on
that service for the purpose of displaying the British Bankers Association
Interest Settlement Rate for any relevant Interest Period or Default Interest
Period, LIBOR for each Bank Senior Loan or other amount outstanding during
such Interest Period or Default Interest Period shall mean the interest rate
per annum determined by the Administrative Agent to be equal to the
arithmetic mean (rounded upward, if necessary, to the nearest fifth decimal
place) of the rates per annum for Dollar deposits for a period equal to (or,
if there is no equal, then most comparable to) such Interest Period or
Default Interest Period which appear on the Reuters Screen LIBO Page at or
about 11:00 a.m., London time, on the date two Eurodollar Business Days prior
to the first day of such Interest Period or Default Interest
A-4
Period, provided that, if no such rate appears on the Reuters Screen LIBO
Page for any relevant Interest Period or Default Interest Period, LIBOR for
each Bank Senior Loan or other amount outstanding during such Interest Period
or Default Interest Period (a) shall mean the interest rate per annum
determined by the Administrative Agent to be equal to the average (rounded
upwards to the nearest fifth decimal place, if such average is not such a
decimal) of the interest rates per annum (as provided by the Reference Banks
to the Administrative Agent) at which deposits in Dollars are offered by the
principal office of each of the Reference Banks in London, England to prime
banks in the London interbank market at or about 11:00 a.m., London time (or
as soon thereafter as practicable), on the date two Eurodollar Business Days
before the first day of such Interest Period or Default Interest Period in
immediately available funds in an amount substantially equal to the aggregate
principal amount of the Bank Senior Loans or other amounts to be outstanding
during such Interest Period or Default Interest Period and for a period equal
to (or if there is no equal, then most comparable to) such Interest Period or
Default Interest Period; and (b) shall be determined by the Administrative
Agent pursuant to clause (a) above (i) on the basis of applicable rates
furnished to and received by the Administrative Agent from the Reference
Banks two Eurodollar Business Days before the first day of such Interest
Period or Default Interest Period, subject, however, to the provisions of
Section 5.02, or (ii) if any of the Reference Banks shall be unable or
otherwise fails to provide a rate for the purposes of determining LIBOR as
hereinabove provided, on the basis of the rate or rates quoted by the
remaining Reference Banks, provided, however, that, if fewer than two such
Reference Banks shall quote such a rate, LIBOR shall be determined in
accordance with Section 5.02.
"Loss" shall mean any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, including without
limitation interest and legal fees, or disbursements of any kind or nature
whatsoever.
"Margin" shall mean (i) with respect to the Tranche A Facility, 475 basis
points and (ii) with respect to the Tranche B Facility, 525 basis points, in
each case as increased from time to time in accordance with clause (b) or (c)
of Section 3.02.
"Negotiation Period" shall have the meaning specified in clause (x) of
Section 5.02.
"Notice of Default" shall have the meaning specified in Section 10.03.
"Participant" shall have the meaning specified in clause (c) of
Section 12.06.
"Payor" shall have the meaning specified in Section 4.05.
"Post-Default Rate" shall mean, in respect of any principal of any Bank
Senior Loan or any other amount payable under this Agreement (including
interest on a Bank Senior Loan) which is not paid when due, a rate per annum
equal to the sum of 2% plus the applicable Margin.
A-5
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its prime rate in effect at
its principal office in The City of New York, New York.
"Reallocation Bank Senior Loan" shall mean any Bank Senior Loan pursuant to
which Reallocation Senior Debt is incurred by the Borrower.
"Reallocation Bank Senior Lender" shall mean any commercial financial
institution (other than a Shareholder or Affiliate of a Shareholder) that has
provided Reallocation Senior Debt or have entered into commitments to provide
Reallocation Senior Debt.
"Reallocation Senior Debt" shall mean any Bank Senior Debt extended by any
Person after the date hereof and prior to the reduction of each Arranger's
Commitments to $25,000,000.
"Reference Bank" shall mean Deutsche Bank AG (or its respective Applicable
Lending Offices, as the case may be) or such substitute banks designated as
such by the Administrative Agent from time to time to provide the quotations
required for the determination of LIBOR, and being the principal London
offices of each of such banks.
"Refusal Option" shall have the meaning set forth in clause (a) of
Section 2.09.
"Regulation A" and "Regulation D" shall mean, respectively, Regulation A
and Regulation D of the Board of Governors of the Federal Reserve System (or
any successor thereof), as the same may be amended, modified or supplemented
from time to time.
"Regulatory Change" shall mean, with respect to any Bank Senior Lender or
the Administrative Agent, any change occurring after the date of this
Agreement in any (or the adoption or making after such date of any new) law,
regulation, interpretation, directive, guideline or request (whether or not
having the force of law) applicable to such Bank Senior Lender or the
Administrative Agent of or by any court or governmental, monetary, fiscal or
other authority charged with the interpretation or administration thereof.
"Required Payment" shall have the meaning specified in Section 4.05.
"Reuters Screen LIBO Page" shall mean the display page so designated on the
Reuter Monitor Money Rates Service (or such other page as may replace that
page on that service for the purpose of displaying London interbank offered
rates for Dollar deposits).
"Senior Notes" shall have the meaning specified in Section 2.06.
"SPC" shall have the meaning set forth in clause (f) of Section 12.06.
"Substitute Basis" shall have the meaning specified in clause (x) of
Section 5.02.
A-6
"Taxes" shall have the meaning specified in Section 5.05.
"Tranche A Facility" shall mean the Bank Senior Lenders' seven and one-half
year construction and term loan commitment in an aggregate amount of
$225 million.
"Tranche B Facility" shall mean the Bank Senior Lenders' eight year
construction and term loan commitment in an aggregate amount of $100 million.
"Tranche B Interest Payment Dates" shall mean January 15, April 15, July 15
and October 15 commencing July 15, 2000.
"Tranche A Lender" shall mean a Bank Senior Lender who has made and
currently has outstanding a Bank Senior Loan or Bank Senior Loans under the
Tranche A Facility.
"Tranche B Lender" shall mean a Bank Senior Lender who has made and
currently has outstanding a Bank Senior Loan or Bank Senior Loans under the
Tranche B Facility.
A-7
SCHEDULE I
to Bank Senior Loan Agreement
AMORTIZATION SCHEDULE
FOR TRANCHE A FACILITY
Date % $ (millions)
----------------------------------------------------------------
15-Jan-02 5.3% 11.9
15-Jul-02 7.7% 17.4
15-Jan-03 7.7% 17.4
15-Jul-03 6.8% 15.3
15-Jan-04 6.8% 15.3
15-Jul-04 11.8% 26.5
15-Jan-05 12.3% 27.6
15-Jul-05 11.8% 26.5
15-Jan-06 11.8% 26.5
15-Jul-06 9.0% 20.3
15-Jan-07 9.0% 20.3
-----------------------------------------
Total 100% 225.0
=============
I-1
SCHEDULE II
to Bank Senior Loan Agreement
AMORTIZATION SCHEDULE
FOR TRANCHE B FACILITY
Date % $ (millions)
----------------------------------------------------------------
15-Jan-02 0.5% 0.5
15-Jul-02 0.5% 0.5
15-Jan-03 0.5% 0.5
15-Jul-03 0.5% 0.5
15-Jan-04 0.5% 0.5
15-Jul-04 0.5% 0.5
15-Jan-05 0.5% 0.5
15-Jul-05 0.5% 0.5
15-Jan-06 0.5% 0.5
15-Jul-06 0.5% 0.5
15-Jan-07 0.5% 0.5
15-Jul-07 94.5% 94.5
-----------------------------------------
Total 100% 100.0
=============
II-1
SCHEDULE III
to Bank Senior Loan Agreement
COMMITMENTS
Credit Suisse First Boston US$106,775,000
US$95,675,000 in respect of Tranche A Facility
US$11,100,000 in respect of Tranche B Facility
-------------------------------------------------------------------------------------------
Deutsche Bank AG, New York Branch US$84,475,000
US$75,575,000 in respect of Tranche A Facility
US$ 8,900,000 in respect of Tranche B Facility
-------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P. US$48,750,000
US$33,750,000 in respect of Tranche A Facility
US$15,000,000 in respect of Tranche B Facility
-------------------------------------------------------------------------------------------
General Electric Capital Corporation US$35,000,000
US$0 in respect of Tranche A Facility
US$35,000,000 in respect of Tranche B Facility
-------------------------------------------------------------------------------------------
Fuji Bank Ltd. US$20,000,000
US$20,000,000 in respect of Tranche A Facility
US$0 in respect of Tranche B Facility
-------------------------------------------------------------------------------------------
III-1
Citibank, N.A. US$10,000,000
US$0 in respect of Tranche A Facility
US$10,000,000 in respect of Tranche B Facility
-------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Financial, Inc. US$20,000,000
US$0 in respect of Tranche A Facility
US$20,000,000 in respect of Tranche B Facility
-------------------------------------------------------------------------------------------
III-2
EXHIBIT I
to Bank Senior Loan Agreement
Form of Senior Note
SENIOR NOTE
New York, New York
U.S. Dollars _________ __________, 1999
FOR VALUE RECEIVED, PORT ▇▇▇▇▇▇ FINANCE CORP., a corporation organized
under the laws of the State of Delaware (the "Borrower"),
PORT ▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY L.P., a limited partnership organized under the laws
of the State of Delaware (the "Partnership"), SABINE RIVER HOLDING CORP., a
corporation organized under the laws of the State of Delaware (the "General
Partner"), and NECHES RIVER HOLDING CORP., a corporation organized under the
laws of the State of Delaware (the "Limited Partner" and, together with the
Partnership and the General Partner, the "Guarantors"), hereby unconditionally
and jointly and severally promise to pay to the order of ____________ (the "Bank
Senior Lender") at the principal office of __________________________ located at
________________, _____________, _________, in lawful money of the United States
and in immediately available funds, the principal amount of (a) _______________
U.S. Dollars ($ ________) or, if less, (b) the aggregate unpaid principal amount
of all Bank Senior Loans made by the Bank Senior Lender to the Borrower pursuant
to Section 2.01 of the Bank Senior Loan Agreement, dated as of August 19, 1999
(as amended, modified or supplemented from time to time, the "Bank Senior Loan
Agreement"), among the Borrower, the Guarantors, the Bank Senior Lenders from
time to time parties thereto and Deutsche Bank AG, New York Branch, as
Administrative Agent for and on behalf of the Bank Senior Lenders. The Borrower
and the Guarantors also promise to pay interest on the unpaid principal amount
of each Bank Senior Loan from the date of such Bank Senior Loan until such Loan
is paid in full, in like money at such office at the rate or rates per annum and
on the date or dates specified in the Bank Senior Loan Agreement.
The holder of this Senior Note is authorized to endorse on the schedule
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each Bank
Senior Loan under the Tranche A Facility and the Tranche B Facility made
pursuant to Section 2.01 of the Bank Senior Loan Agreement, the date and amount
of each payment or prepayment of principal thereof and the length of each
Interest Period with respect thereto, which endorsement shall constitute
prima facie evidence of the accuracy of the information endorsed, provided that
any failure by the holder of this Senior Note to make such an endorsement or any
error in such endorsement shall in no manner affect the validity or
enforceability of the obligation of the Borrower and the Guarantors to make
payments of principal and interest in accordance with the terms of this Senior
Note and the Bank Senior Loan Agreement.
E-I-1
All parties hereto, whether as makers, endorsers or otherwise, severally
waive diligence, presentment, demand, protest and notice of any kind whatsoever.
The failure or forbearance by the holder to exercise any of its rights under
this Senior Note in any particular instance shall in no event constitute a
waiver thereof.
This Senior Note is one of the Senior Notes referred to in, and is entitled
to the benefits of, the Bank Senior Loan Agreement, which, among other things,
contains provisions for the acceleration of the maturity of the Bank Senior
Loans upon the happening of certain events, for Optional Pre-payment of the
principal of the Bank Senior Loans prior to the applicable Final Maturity Date
of each tranche thereof and for the amendment or waiver of certain provisions of
the Bank Senior Loan Agreement or this Senior Note, all upon the terms and
conditions therein specified. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed thereto in the Bank Senior Loan
Agreement.
Upon the taking of an Enforcement Action (as defined in the Common Security
Agreement referred to in the Bank Senior Loan Agreement) the principal of, and
interest on, this Senior Note may be declared to be forthwith due and payable in
the manner, upon the conditions and with the effect provided in the Bank Senior
Loan Agreement and in the Common Security Agreement.
This Senior Note may be prepaid with respect to each tranche as provided in
the Bank Senior Loan Agreement and the Common Security Agreement.
The Borrower and the Guarantors agree to pay, exclusively in lawful money
of the United States of America, costs of collection and attorneys' fees in case
default occurs in the payment of this Senior Note.
THIS SENIOR NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
This Senior Note is not negotiable and interests herein may be assigned
only upon the terms and conditions specified in the Bank Senior Loan Agreement.
E-I-2
IN WITNESS WHEREOF, this Senior Note has been duly executed by the
undersigned as of the date first written above.
PORT ▇▇▇▇▇▇ FINANCE CORP.
By: ________________________________
Name:
Title:
PORT ▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY L.P.
By: SABINE RIVER HOLDING CORP.,
GENERAL PARTNER
By: ________________________________
Name:
Title:
SABINE RIVER HOLDING CORP.
By: ________________________________
Name:
Title:
NECHES RIVER HOLDING CORP.
By: ________________________________
Name:
Title:
E-I-3
SENIOR LOANS AND PRINCIPAL PAYMENTS
----------------------------------------------------------------------------------------------------------------------------------
Amount of Bank Amount of Bank Amount of Amount of Amount of Amount of
Senior Loans Senior Loan Principal Repaid Principal Repaid Unpaid Principal Unpaid Principal Notation
Date Made Under Made Under Interest Toward Toward Balance of Balance of Made By
Tranche A Tranche B Period Tranche A Tranche B Tranche A Tranche B
Facility Facility Facility Facility Facility Facility
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
E-I-4
EXHIBIT II
to Bank Senior Loan Agreement
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Bank Senior Loan Agreement, dated as of August 19,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Bank Senior Loan Agreement"), among PORT ▇▇▇▇▇▇ FINANCE CORP., a corporation
organized under the laws of the State of Delaware (the "Borrower"), PORT ▇▇▇▇▇▇
▇▇▇▇▇ COMPANY L.P., a limited partnership organized under the laws of Delaware
(the "Partnership"), SABINE RIVER HOLDING CORP., a corporation organized under
the laws of the State of Delaware (the "General Partner"), and NECHES RIVER
HOLDING CORP., a corporation organized under the laws of the State of Delaware
(the "Limited Partner" and, together with the Partnership and the General
Partner, the "Guarantors") (together, the "Borrowers"), the Bank Senior Lenders
from time to time party thereto (the "Bank Senior Lenders") and Deutsche Bank
AG, New York Bank, as Administrative Agent for the Bank Senior Lenders. Unless
otherwise defined herein, capitalized terms used herein shall have the meanings
ascribed thereto in the Bank Senior Loan Agreement.
The Assignor identified on Schedule I hereto (the "Assignor") and the
Assignee identified on Schedule I hereto (the "Assignee") hereby agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the interest described in Schedule I hereto
(the "Assigned Interest") in and to the Assignor's rights and obligations under
the Bank Senior Loan Agreement with respect to those Bank Senior Loans contained
in the Bank Senior Loan Agreement as are set forth on Schedule I hereto
(individually, an "Assigned Loan"; collectively, the "Assigned Loans"), in a
principal amount for each Assigned Loan as set forth on Schedule I hereto.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statement, warranties or representations made
in or in connection with any Financing Document, or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Financing Document or any other instrument or document furnished pursuant
thereto, other than that the Assignor has not created any adverse claim upon the
interest being assigned by it hereunder and that such interest is free and clear
of any such adverse claim; (b) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrowers or
any other obligor or the performance or observance by the Borrowers or any other
obligor of any of their respective obligations under any Financing Document or
any other instrument or document furnished pursuant hereto or thereto; and (c)
attaches any Senior Notes held by it evidencing the Assigned Loans and (i)
requests that the Administrative Agent exchange
E-II-1
the attached Senior Notes for new Senior Notes payable to the Assignee and (ii)
if the Assignor has retained any interest in the Assigned Loan, requests that
the Administrative Agent exchange the attached Senior Notes for new Senior Notes
payable to the Assignor and the Assignee, in each case in amounts which reflect
the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (b) confirms that it has received
a copy of the Financing Documents together with copies of the financial
statements or other information delivered pursuant to clause (d) of Section
12.06 of the Bank Senior Loan Agreement referred to therein and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Bank Senior Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Financing
Documents or any other instrument or document furnished pursuant hereto or
thereto; (d) appoints and authorizes the Administrative Agent to take such
action as agent (in its capacity as Administrative Agent under the Bank Senior
Loan Agreement) on its behalf and to exercise such powers and discretion under
the Financing Documents or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees
that it will be bound by the provisions of the Financing Documents and will
perform in accordance with its terms all the obligations which by the terms of
the Financing Documents are required to be performed by it as a Bank Senior
Lender.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule I hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent, effective as of the Effective Date (which shall not,
unless otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts that have accrued prior to the Effective Date and to
the Assignee for amounts which have accrued on and subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Bank Senior Loan Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Bank Senior Lender
thereunder and under such other agreements and shall be bound by the provisions
thereof and (b) the Assignor shall, to the extent provided in this Agreement and
E-II-2
Acceptance, relinquish its rights and be released from its obligations under the
Bank Senior Loan Agreement and such other agreements.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule I hereto.
E-II-3
Schedule I
to Assignment and Acceptance
Name of Assignor:_______________________________________
Name of Assignee:_______________________________________
Effective Date of Assignment:___________________________
Commitment Commitment
Principal Amount Principal Amount Percentage Percentage
Assigned of Assigned of Assigned of Assigned of
Tranche A Facility Tranche B Facility Tranche A Facility Tranche B Facility
------------------ ------------------ ------------------ ------------------
$_________________ $_________________ __________________% __________________%
$_________________ $_________________ __________________% __________________%
[Name of Assignee] [Name of Assignor]
By:___________________________________ By:_____________________________________
Name: Name:
Title: Title:
E-II-4
Consented to:
------------
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent for and on behalf of
the Bank Senior Lenders
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Collateral Trustee for the Secured Parties
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By:_____________________________
Name:
Title:
PORT ▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY L.P.
By:_____________________________
Name:
Title:
E-II-5