EXHIBIT 10.1
Execution Copy
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 1, 2005
among
CROSSTEX ENERGY, L.P.,
as Borrower,
THE FINANCIAL INSTITUTIONS
PARTY TO THIS CREDIT AGREEMENT
as Banks,
BANK OF AMERICA, N. A.
as Administrative Agent and Collateral Agent,
UNION BANK OF CALIFORNIA, N.A.
and
SUNTRUST BANK,
as Co-Syndication Agents,
and
BANK OF MONTREAL D/B/A ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents
-------------------------
BANC OF AMERICA SECURITIES LLC
as Lead Arranger and Sole Book Runner
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS................................................... 2
Section 1.01. Certain Defined Terms..................................................... 2
Section 1.02. Computation of Time Periods............................................... 21
Section 1.03. Accounting Terms; Changes in GAAP......................................... 21
Section 1.04. Types of Advances and Borrowings.......................................... 22
Section 1.05. Miscellaneous............................................................. 22
Section 1.06. Times of Day.............................................................. 22
Section 1.07. Letter of Credit Amounts.................................................. 22
ARTICLE II CREDIT FACILITIES.................................................................. 22
Section 2.01. Making the Advances....................................................... 22
Section 2.02. Method of Borrowing....................................................... 23
Section 2.03. Reduction of the Commitments.............................................. 26
Section 2.04. Prepayment of Advances.................................................... 26
Section 2.05. Repayment of Advances..................................................... 28
Section 2.06. Fees...................................................................... 28
Section 2.07. Interest.................................................................. 29
Section 2.08. Payments and Computations................................................. 30
Section 2.09. Sharing of Payments, Etc.................................................. 31
Section 2.10. Breakage Costs............................................................ 32
Section 2.11. Increased Costs........................................................... 32
Section 2.12. Taxes..................................................................... 33
Section 2.13. Letters of Credit......................................................... 36
Section 2.14. Replacement of Banks...................................................... 43
Section 2.15. Increase in Commitments................................................... 44
ARTICLE III CONDITIONS OF LENDING.............................................................. 45
Section 3.01. Conditions Precedent to Initial Advances.................................. 45
Section 3.02. Conditions Precedent to All Borrowings.................................... 48
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................................... 49
Section 4.01. Existence and Power....................................................... 49
Section 4.02. Authorization............................................................. 49
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TABLE OF CONTENTS
(continued)
PAGE
Section 4.03. Governmental Action, Etc.................................................. 49
Section 4.04. Binding Effect............................................................ 50
Section 4.05. Financial Statements...................................................... 50
Section 4.06. Other Information......................................................... 50
Section 4.07. Legal Proceedings......................................................... 50
Section 4.08. Subsidiaries.............................................................. 50
Section 4.09. Trademarks, Etc........................................................... 51
Section 4.10. Fire, Etc................................................................. 51
Section 4.11. Burdensome Agreements..................................................... 51
Section 4.12. Taxes..................................................................... 51
Section 4.13. Public Utility Holding Company Act; Natural Gas Act;
Investment Company Act ................................................... 51
Section 4.14. Regulations T, U and X.................................................... 51
Section 4.15. Title to Properties, Etc.................................................. 51
Section 4.16. Employee Benefit Plans.................................................... 52
Section 4.17. Environmental Compliance.................................................. 52
Section 4.18. Material Contracts........................................................ 52
Section 4.19. Ownership................................................................. 52
Section 4.20. Compliance with Laws...................................................... 52
Section 4.21. Solvency.................................................................. 52
ARTICLE V AFFIRMATIVE COVENANTS.............................................................. 53
Section 5.01. Reporting Requirements.................................................... 53
Section 5.02. Preservation of Legal Existence, Etc...................................... 55
Section 5.03. Maintenance of Properties, Etc............................................ 55
Section 5.04. [Intentionally omitted]................................................... 55
Section 5.05. Compliance with Laws, Etc................................................. 55
Section 5.06. Payment of Taxes, Etc..................................................... 55
Section 5.07. Maintenance of Insurance.................................................. 55
Section 5.08. Visitation Rights......................................................... 55
Section 5.09. Keeping of Books.......................................................... 56
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TABLE OF CONTENTS
(continued)
PAGE
Section 5.10. Transactions with Affiliates.............................................. 56
Section 5.11. Compliance with Environmental Laws........................................ 56
Section 5.12. Environmental Remediation and Indemnification............................. 56
Section 5.13. Use of Proceeds........................................................... 57
Section 5.14. Clean Down Period......................................................... 57
Section 5.15. Post-Closing Requirements................................................. 57
Section 5.16 Mortgage Amendments....................................................... 57
ARTICLE VI NEGATIVE COVENANTS................................................................. 58
Section 6.01. Liens, Etc................................................................ 58
Section 6.02. Debt...................................................................... 59
Section 6.03. Mergers, Acquisitions, Etc................................................ 60
Section 6.04. Sales, Etc. of Property................................................... 61
Section 6.05. Investments in Other Persons.............................................. 62
Section 6.06. Distributions, Etc........................................................ 63
Section 6.07. Change in Nature of Business.............................................. 63
Section 6.08. ERISA Plans............................................................... 64
Section 6.09. Accounting Changes........................................................ 64
Section 6.10. Creation of Material Subsidiaries......................................... 64
Section 6.11. Commodity Contracts....................................................... 64
Section 6.12. [Intentionally Omitted]................................................... 64
Section 6.13. Interest Charge Coverage Ratio............................................ 64
Section 6.14. Leverage Ratio............................................................ 64
Section 6.15. [Intentionally Omitted]................................................... 64
Section 6.16. Amendment of Partnership Agreements....................................... 64
Section 6.17. Note Agreement............................................................ 65
Section 6.18. [Intentionally Omitted]................................................... 65
Section 6.19. Other Debt................................................................ 65
Section 6.20 ▇▇▇▇▇▇ Lease Documents.................................................... 65
ARTICLE VII REMEDIES........................................................................... 65
Section 7.01. Events of Default......................................................... 65
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TABLE OF CONTENTS
(continued)
PAGE
Section 7.02. Optional Acceleration of Maturity......................................... 67
Section 7.03. Automatic Acceleration of Maturity........................................ 68
Section 7.04. Non-exclusivity of Remedies............................................... 68
Section 7.05. Right of Set-off.......................................................... 68
Section 7.06. Application of Collateral................................................. 69
ARTICLE VIII THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT.................................. 69
Section 8.01. Appointment and Authority................................................. 69
Section 8.02. Rights as a Bank.......................................................... 70
Section 8.03. Exculpatory Provisions.................................................... 70
Section 8.04. Reliance by Agents........................................................ 71
Section 8.05. Delegation of Duties...................................................... 71
Section 8.06. Resignation of Administrative Agent....................................... 71
Section 8.07. Non-Reliance on Agents and Other Banks.................................... 72
Section 8.08. No Other Duties, Etc...................................................... 72
Section 8.09. Administrative Agent May File Proofs of Claim............................. 72
Section 8.10. Collateral and Guaranty Matters........................................... 73
Section 8.11. Swap Agreements........................................................... 74
ARTICLE IX MISCELLANEOUS...................................................................... 74
Section 9.01. Amendments, Etc........................................................... 74
Section 9.02. Notices; Effectiveness; Electronic Communication.......................... 74
Section 9.03. No Waiver; Remedies....................................................... 75
Section 9.04. Expenses; Indemnity; Damage Waiver........................................ 76
Section 9.05. Binding Effect............................................................ 77
Section 9.06. Bank Assignments and Participations....................................... 78
Section 9.07. Treatment of Certain Information; Confidentiality......................... 79
Section 9.08. Execution in Counterparts................................................. 80
Section 9.09. Survival of Representations and Warranties................................ 80
Section 9.10. Severability.............................................................. 81
Section 9.11. Payments Set Aside........................................................ 81
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TABLE OF CONTENTS
(continued)
PAGE
Section 9.12. Guaranties................................................................ 81
Section 9.13. Usury Not Intended........................................................ 81
Section 9.14. Waiver of Jury; Consent to Jurisdiction................................... 82
Section 9.15. Governing Law............................................................. 82
Section 9.16. Credit Documents.......................................................... 82
Section 9.17. Existing Indebtedness..................................................... 82
Section 9.18. Release of Collateral..................................................... 83
Section 9.19. Amendment and Restatement................................................. 83
Section 9.20. USA PATRIOT Act Notice.................................................... 84
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EXHIBITS:
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Conversion or Continuation
Exhibit D - Form of Assignment and Assumption
SCHEDULES:
Schedule 1 - Commitments
Schedule 2 - Applicable Lending Offices
Schedule 1.01 - Guarantors
Schedule 2.13 - Existing Letters of Credit
Schedule 4.08 - Subsidiaries
Schedule 4.16 - Employee Benefit Plans
Schedule 5.10 - Transactions with Affiliates
Schedule 6.02 - Permitted Debt
Schedule 6.05 - Permitted Investments
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amended and Restated Credit Agreement dated as of November 1,
2005 is among Crosstex Energy, L.P., a Delaware limited partnership (the
"Borrower"), the Banks (as defined below), Bank of America, N.A. ("Bank of
America"), as Administrative Agent and Collateral Agent for the Banks, Union
Bank of California, N.A. and SunTrust Bank, as Co-Syndication Agents, and Bank
of Montreal d/b/a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Wachovia Bank, National Association as
Co-Documentation Agents.
INTRODUCTION
A. The Borrower, Crosstex Energy Services, L.P. (the "Predecessor
Borrower"), Bank of America, as administrative agent and lender, Union Bank of
California N.A., as syndication agent and lender and Royal Bank of Canada, U.S.
Bank National Association and BNP Paribas, as co-documentation agents and
lenders, are parties to the Third Amended and Restated Credit Agreement dated as
of March 31, 2005 (the "Existing Credit Agreement").
B. The Borrower, the Administrative Agent and the Banks desire to amend
and restate the Existing Credit Agreement. To evidence the credit facility
requested hereunder, the Borrower, the Administrative Agent and the Banks have
agreed that this Agreement is an amendment and restatement of the Existing
Credit Agreement, not a new or substitute credit agreement or novation of the
Existing Credit Agreement, and each reference to an "Advance" or a "Letter of
Credit" shall include each Advance made and each Letter of Credit issued
heretofore under the Existing Credit Agreement as well as each Advance made and
each Letter of Credit issued hereafter under this Agreement.
The Borrower, the Banks, the Administrative Agent, the Co-Syndication
Agents and the Co-Documentation Agents agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (unless otherwise indicated,
such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"Acceptable Security Interest" in any Property means a Lien which (a)
exists in favor of the Collateral Agent for its benefit and the ratable benefit
of the Administrative Agent, the Banks and their Affiliates that are parties to
any Hydrocarbon Hedge Agreement or Interest Rate Contract with the Borrower or
any Subsidiary, and the Holders, (b) is superior to all other Liens, except
Permitted Liens, (c) secures the Obligations and, if outstanding, the Note
Obligations, and (d) is perfected and enforceable.
"Accounts" means the unpaid portion of the obligations to the Borrower and
its Subsidiaries of customers of the Borrower and its Subsidiaries to pay for
goods sold and shipped or services rendered (net of commissions to agents).
"Acquisition" means the direct or indirect purchase or acquisition,
whether in one or more related transactions, by the Borrower or any of its
Subsidiaries of any Person or group of Persons (or any equity interest in any
Person or group of Persons) or any related group of assets, liabilities, or
securities of any Person or group of Persons, other than acquisitions of
Property in the ordinary course of business.
"Acquisition Adjustment Period" means at any time after the Closing
Leverage Period, any period of three consecutive fiscal quarters commencing on
the first day of each fiscal quarter during which the Borrower or any of its
Subsidiaries consummates any Acquisition in which the purchase price therefor
exceeds $50,000,000 (whether such purchase price is paid in cash, by the
assumption of Debt of the Person or assets so acquired, or otherwise) and ending
on the last day of the third fiscal quarter following such date.
"Additional Notes" shall mean any senior secured notes of one or more
series (other than the Series A Notes, the Series B Notes and the Series C
Notes) issued by the Borrower from time to time pursuant to the Note Agreement,
together with any notes issued in substitution or exchange therefor pursuant to
the Note Agreement.
"Adjusted Reference Rate" means, for any day, the fluctuating rate per
annum of interest equal to the greater of (a) the Reference Rate in effect on
such day and (b) the Federal Funds Rate in effect on such day plus 1/2%.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 2, or such other address
or account as the Administrative Agent may from time to time notify to the
Borrower and the Banks.
"Advance" means any advance by a Bank to the Borrower as part of a
Borrowing and refers to a Reference Rate Advance or a Eurodollar Rate Advance.
"Administrative Agent" means Bank of America, in its capacity as an agent
pursuant to Article VIII and any successor agent pursuant to Section 8.06.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 2, or such other address
or account as the Administrative Agent may from time to time notify to the
Borrower and the Banks.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person or any Subsidiary of such Person. The
term "control" (including the terms "controlled by" or "under common control
with") means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through
ownership of voting securities, by contract or otherwise.
"Agents" means the Administrative Agent and the Collateral Agent.
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"Agreement" means this Fourth Amended and Restated Credit Agreement dated
as of November 1, 2005 among the Borrower, the Banks, the Administrative Agent,
the Co-Syndication Agents and the Co-Documentation Agents, as it may be amended,
modified, restated, renewed, extended, increased or supplemented from
time-to-time.
"Applicable Lending Office" means, with respect to each Bank, such Bank's
Domestic Lending Office in the case of a Reference Rate Advance and such Bank's
Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" means, as of any date of determination, (i) during the
Closing Leverage Period, (a) 2.00% with respect to Eurodollar Rate Advances, (b)
0.50% with respect to Reference Rate Advances, (c) 0.375% with respect to
Commitment Fees and (d) 2.00% with respect to letter of credit fees and (ii)
thereafter, the following percentages determined as a function of the Leverage
Ratio for the Borrower and its Subsidiaries on a Consolidated basis:
Eurodollar Rate Reference Rate Letter of Credit
Leverage Ratio Advances Advances Commitment Fees Fees
----------------------- ----------------- --------------- --------------- -----------------
> or = 3.25 1.75% 0.25% 0.375% 1.75%
> or = 2.75 and
< 3.25 1.50% 0.00% 0.300% 1.50%
> or = 2.25 and
< 2.75 1.25% 0.00% 0.250% 1.25%
< 2.25 1.00% 0.00% 0.200% 1.00%
The foregoing ratio shall be determined from the Financial Statements of the
Borrower and its Subsidiaries most recently delivered pursuant to Section
5.01(c) or Section 5.01(d) and certified to by a Responsible Officer in
accordance with such Sections. Any change in the Applicable Margin shall be
effective upon the date of delivery of the financial statements pursuant to
Section 5.01(c) or Section 5.01(d), as the case may be, and receipt by the
Administrative Agent of the compliance certificate required by such Sections.
Notwithstanding the foregoing, if at any time during an Acquisition Adjustment
Period, the Leverage Ratio is greater than 4.00 to 1.00, then the Applicable
Margin with respect to Eurodollar Rate Advances shall be increased by 0.50% and
the Applicable Margin with respect to the Commitment Fees shall be increased by
0.125%.
"Approved Consultant's Report" means a report by ▇▇▇▇▇▇ & Click, Inc.,
▇▇▇▇▇▇ & ▇▇▇▇▇, Oil & Gas Advisors, Inc. or another consultant selected by the
Borrower and reasonably acceptable to the Administrative Agent confirming that
the assumptions used by the Borrower in the adjustments to EBITDA in connection
with any Acquisition, acquisition of Property or percentage of completion of
construction of Property are reasonable.
"Approved Fund" means any Fund that is administered or managed by (a) a
Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity
that administers or manages a Bank.
"Asset Disposition" means any sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property or
any series of related dispositions of
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property by any Person, including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith in which the property disposed either (a)
generates EBITDA greater than or equal to 5% of EBITDA for the four fiscal
quarter period ending as of the most recent fiscal quarter for which the
Borrower has delivered Financial Statements pursuant to Section 5.01(c) or (d)
or (b) has an aggregate book value greater than 5% of the book value of the
consolidated assets of the Borrower and its Subsidiaries as of the end of the
most recent fiscal quarter for which the Borrower has delivered Financial
Statements pursuant to Section 5.01(c) or (d); provided, that the term "Asset
Disposition" shall not include any transaction permitted by Section 6.04(a),
(b), (c), (d), (e) or (f).
"Assignment and Assumption" means an assignment and assumption entered
into by a Bank and an Eligible Assignee, and accepted by the Administrative
Agent and the Borrower (if applicable), in substantially the form of the
attached Exhibit D or any other form approved by the Administrative Agent.
"Available Cash" for any fiscal quarter has the meaning set forth in the
Borrower Partnership Agreement.
"Banks" means the lenders listed on Schedule 1 hereto and each Eligible
Assignee that shall become a party to this Agreement pursuant to Section 9.06.
"Bookrunner" means Banc of America Securities LLC.
"Borrower" means Crosstex Energy, L.P., a Delaware limited partnership.
"Borrower Partnership Agreement" means the Second Amended and Restated
Agreement of Limited Partnership of Crosstex Energy, L.P. dated as of March 29,
2004 among the General Partner and Crosstex Energy, Inc., as the Organizational
Limited Partner.
"Borrower Security Agreement" means the Amended and Restated Security
Agreement between the Borrower and the Collateral Agent in form and substance
reasonably satisfactory to the Collateral Agent and the Banks, as it may be
amended, modified or supplemented from time-to-time.
"Borrowing" means a borrowing consisting of simultaneous Advances of the
same Type made by each Bank pursuant to Section 2.01(a), continued by each Bank
pursuant to Section 2.02(b), or Converted by each Bank to Advances of a
different Type pursuant to Section 2.02(b).
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Capital Leases" means, as applied to any Person, any lease of any
Property by such Person as lessee which would, in accordance with GAAP, be
required to be classified and accounted for as a capital lease on the balance
sheet of such Person.
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"CERCLA" means the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, state and local analogs, and all rules and
regulations and requirements thereunder in each case as now or hereafter in
effect.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and
Liability Information System maintained by the U.S. Environmental Protection
Agency.
"CESL Partnership Agreement" means the Second Amended and Restated
Agreement of Limited Partnership of Crosstex Energy Services, L.P., dated as of
April 1, 2004 between Crosstex Operating GP, LLC, Crosstex Energy, L.P. and the
other parties thereto, as the same may be amended, modified or supplemented from
time-to-time as permitted by this Agreement.
"CFS" means CFS Louisiana Midstream Company, a Delaware corporation.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit
plan of such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such plan)
other than the Qualifying Owners becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934) of 50% or more
of the equity securities of the Ultimate General Partner entitled to vote for
members of the board of directors or equivalent governing body of the Ultimate
General Partner on a fully-diluted basis; or
(b) during any period of 12 consecutive months, a majority of the members
of the board of directors or other equivalent governing body of the Ultimate
General Partner cease to be composed of individuals (i) who were members of that
board or equivalent governing body on the first day of such period, (ii) whose
election or nomination to that board or equivalent governing body was approved
by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body
occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more directors by any person or
group other than a solicitation for the election of one or more directors by or
on behalf of the board of directors).
"Clean Down Period" has the meaning set forth in Section 5.14.
"Closing Leverage Period" means the period from the Effective Date through
the first day of the fiscal quarter for which the Borrower is required to
deliver Financial Statements pursuant to Section 5.01(c) or Section 5.01(d)
which reflect a Leverage Ratio for the Borrower and its Subsidiaries on a
Consolidated basis less than or equal to 4.00 to 1.00.
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"Co-Documentation Agents" means Bank of Montreal d/b/a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
Wachovia Bank, National Association.
"Co-Syndication Agents" means UBOC and SunTrust Bank.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute.
"Collateral" means all Collateral as defined in each of the Security
Agreements and in each of the Mortgages.
"Collateral Agent" means Bank of America, N.A., in its capacity as
collateral agent pursuant to the Intercreditor Agreement, and any successor
collateral agent appointed pursuant to the Intercreditor Agreement.
"Commitment" means, for any Bank, the amount set opposite such Bank's name
on Schedule 1 as its Commitment, or if such Bank has entered into any Assignment
and Assumption, as set forth for such Bank as its Commitment in the Register
maintained by the Administrative Agent pursuant to Section 9.06(c), as such
amount may be reduced or terminated pursuant to Section 2.03 or Article VII.
"Consolidated" refers to the consolidation of the accounts of the Borrower
and its Subsidiaries in accordance with GAAP, including, when used in reference
to the Borrower, principles of consolidation consistent with those applied in
the preparation of the Financial Statements.
"Convert," "Conversion," and "Converted" each refers to a conversion of
Advances of one Type into Advances of another Type pursuant to Section 2.02(b).
"Credit Documents" means, collectively, this Agreement, the Notes, the
Security Documents, the Guaranties, the Letter of Credit Documents, any Interest
Rate Contract between the Borrower or any Subsidiary and a Bank or an Affiliate
thereof, any Hydrocarbon Hedge Agreement between the Borrower or any Subsidiary
and a Bank or an Affiliate thereof, the Fee Letter and each other agreement,
instrument or document executed at any time in connection with the foregoing
documents, as each such Credit Document may be amended, modified or supplemented
from time-to-time.
"Dauphin" means El Paso Dauphin Island Company, L.L.C., a Delaware limited
liability company.
"Debt," for any Person, means, without duplication,
(a) indebtedness of such Person for borrowed money;
(b) obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
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(c) obligations of such Person to pay the deferred purchase price of
Property or services (other than trade payables which are not more than 90 days
past due, except for any such trade payables which are being contested in good
faith and by appropriate proceedings);
(d) all indebtedness created or arising under any conditional-sale or
other title-retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property);
(e) obligations of such Person as lessee under Capital Leases;
(f) the net amount payable by such Person under any Hydrocarbon Hedge
Agreement or Interest Rate Contract if such Hydrocarbon Hedge Agreement or
Interest Rate Contract terminated at the date of determination due to a default
by such Person;
(g) reimbursement obligations of such Person in respect of letters of
credit, acceptance facilities, drafts or similar instruments issued or accepted
by banks and other financial institutions for the account of such Person;
(h) obligations of such Person under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) of such Person to purchase
or otherwise acquire, or otherwise to assure a creditor against loss in respect
of, another's indebtedness or obligations of the kinds referred to in clauses
(a) through (g) above; and
(i) another's indebtedness or obligations of the kinds referred to in
clauses (a) through (h) secured by any Lien on or in respect of any Property of
such Person; provided that the amount of such Debt, if such Person has not
assumed the same or become liable therefore, shall in no event be deemed to be
greater than the fair market value from time to time of the Property subject to
such Lien.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means (a) an Event of Default or (b) any event or condition
which with notice or lapse of time or both would, unless cured or waived, become
an Event of Default.
"Distribution Loan" means an Advance which is made in whole or in part for
the purpose of paying a Quarterly Distribution.
"Dollars" and "$" means lawful money of the United States of America.
"Domestic Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "Domestic Lending Office" on its Administrative
Questionnaire or such other
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office of such Bank as such Bank may from time to time specify to the Borrower
and the Administrative Agent.
"EBITDA" means, for the Borrower and its Subsidiaries on a Consolidated
basis for any period, (a) Net Income for such period plus (b) to the extent
deducted in determining Net Income, Interest Expense, taxes, depreciation,
amortization and other noncash items for such period minus (c) to the extent
included in determining Net Income, all noncash items increasing Net Income for
such period. Notwithstanding the foregoing, the purchase price of commodity
derivative instruments, net of all proceeds from the sale of such instruments,
may be amortized over the remaining term of such instruments. For purposes of
calculating the Leverage Ratio only, EBITDA shall be calculated, on a pro forma
basis, after giving effect to, without duplication, (a) any Acquisition or (b)
any Property under construction (based on the percentage of completion of
construction of any such Property), in each case, occurring during the period
commencing on the first day of such period to and including the date of such
transaction or percentage of completion of Property under construction to be
included in EBITDA, as the case may be (the "Reference Period") and whether or
not such acquired Property or Property under construction was operated during
such Reference Period, as if such Acquisition or percentage of completion of
Property under construction occurred on the first day of the Reference Period.
In making the calculation contemplated by the preceding sentence, EBITDA
generated or to be generated by such acquired Person, by such acquired Property
or by such Property under construction (based on the percentage of completion of
construction of such Property) shall be determined in good faith by the Borrower
based on reasonable assumptions and may take into account pro forma expenses
that would have been incurred by the Borrower and its Subsidiaries in the
operation of such acquired Person, acquired Property or Property under
construction (based on the percentage of completion of construction of such
Property), during such period computed on the basis of personnel expenses for
employees retained or to be retained by the Borrower and its Subsidiaries in the
operation of such acquired Person, acquired Property or Property under
construction (based on the percentage of completion of construction of such
Property) and non-personnel costs and expenses incurred by the Borrower and its
Subsidiaries in the operation of the Borrower's and its Subsidiaries' business
at similarly situated facilities of the Borrower or any of its Subsidiaries;
provided however, that such pro forma calculations shall be reasonably
acceptable to the Administrative Agent if the Borrower does not provide the
Administrative Agent with an Approved Consultant's Report supporting such pro
forma calculations (and any such pro forma calculations described in this
sentence being hereinafter referred to as "Pro Forma EBITDA"); provided further,
that the Borrower shall not be required to deliver an Approved Consultant's
Report in connection with the El Paso Acquisition. Notwithstanding the
foregoing, such pro forma adjustments to EBITDA with respect to any Property
under construction shall be reduced if such construction is not completed by or
if the estimated date by which such construction to be completed is beyond, a
date that is more than 90 days beyond the Scheduled Completion Date for such
construction, such reduction to be reflected in the next set of financial
statements to be delivered to the Administrative Agent and the Banks on or after
the date such construction is not so completed or it is determined that such
construction will not be so completed and to be in an amount equal to the
product of (i) the applicable percentage reduction rate relating to the number
of days of delay as set forth below and (ii) the amount of the Pro Forma EBITDA
attributable to such Property:
-8-
Delay or estimated delay,
whichever is greater Applicable Percentage Reduction Rate
> 90 days and < or = 180 days 25%
> 180 days and < or = 270 days 50%
> 270 days 100%
Notwithstanding any provision of this Agreement which may otherwise be to the
contrary, if any lease pursuant to the ▇▇▇▇▇▇ Lease Documents is treated under
GAAP as a Capital Lease, then, for all computations of EBITDA hereunder, such
lease shall be treated as an operating lease and Net Income, Interest Expense,
taxes, depreciation, amortization and other noncash items, for all purposes of
determining EBITDA under this Agreement for any period, shall be adjusted as
though such lease was accounted for as an operating lease.
"Effective Date" means the date on which the conditions set forth in
Section 3.01 are satisfied.
"El Paso Acquired Companies" means each of CFS, Dauphin, and Sabine.
"El Paso Acquisition" means the acquisition of the Equity Interests of
each of the El Paso Acquired Companies pursuant to the El Paso Purchase and Sale
Agreement for a cash purchase price not exceeding $500,000,000, subject to
adjustments to Working Capital (as defined in the El Paso Purchase and Sale
Agreement).
"El Paso Acquisition Documents" means the El Paso Purchase and Sale
Agreement and all other agreements, instruments or documents executed in
connection therewith or otherwise related to the El Paso Acquisition.
"El Paso Purchase and Sale Agreement" means the Purchase and Sale
Agreement dated as of August 8, 2005 between the Borrower and El Paso
Corporation, a Delaware corporation.
"Eligible Assignee" means (a) a Bank; (b) an Affiliate of a Bank; (c) an
Approved Fund; and (d) any other Person (other than a natural person) approved
by (i) the Administrative Agent and the Issuing Bank, and (ii) unless an Event
of Default has occurred and is continuing, the Borrower (each such approval not
to be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or any of the
Borrower's Affiliates or Subsidiaries.
"Environmental Law" means any Governmental Rule relating to pollution or
protection of the environment or any natural resource, to any Hazardous Material
or to health or safety, including any Governmental Rule relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of
any Hazardous Material.
-9-
"Environmental Permit" means any Governmental Action required under any
Environmental Law.
"Environmental Proceeding" means any action, suit, written demand, demand
letter, claim, notice of noncompliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental Permit
or any Hazardous Material or arising from alleged injury or threat to health,
safety or the environment, including (a) by any Governmental Person for
enforcement, cleanup, removal, response, remedial or other action or damages and
(b) by any Person for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Equity Interests" means (a) with respect to a corporation, any and all
shares of capital stock, (b) with respect to a partnership, limited liability
company, trust or similar Person, any and all units, interests or other
partnership, limited liability company, trust or similar interests, and (c) any
other direct equity ownership or participation in a Person.
"Equity Issuance" means any issuance of Equity Interests (including any
preferred equity securities) by the Borrower or any of its Subsidiaries other
than Equity Interests issued (i) to the Borrower or any of its Subsidiaries;
(ii) pursuant to employee or director and officer benefit or dividend
reinvestment plans or stock option or purchaser plans in the ordinary course of
business; (iii) as consideration in connection with any investment by the
Borrower or any of its Subsidiaries in any other Person pursuant to which such
Person shall become a Subsidiary or shall be merged into or consolidated with
the Borrower or any of its Subsidiaries; and (iv) as consideration in connection
with an Acquisition or Investment by the Borrower or any of its Subsidiaries,
provided that at the time of issuance no Default or Event of Default has
occurred and is continuing both before and after giving effect to such Equity
Issuance.
"Equity Issuance Proceeds" means, with respect to any Equity Issuance, all
cash and cash equivalents received by the Borrower or any of its Subsidiaries
from such Equity Issuance after payment of, or provision for, all brokerage
commissions and other reasonable out-of-pocket fees and expenses actually
incurred.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time-to-time, and the regulations promulgated thereunder and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the Borrower's controlled group, or is under common control with
the Borrower, within the meaning of Section 414 of the Code and the regulations
promulgated and rulings issued thereunder.
"ERISA Event" means (a) a Reportable Event with respect to a Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or
partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer
Plan or notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Plan amendment as
a termination under
-10-
Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC
to terminate a Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan or Multiemployer Plan; or (f)
the imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.
"▇▇▇▇▇▇ Guaranty" has the meaning assigned to such term in the El Paso
Purchase and Sale Agreement.
"▇▇▇▇▇▇ Lease Documents" has the meaning assigned to such term in the El
Paso Purchase and Sale Agreement and includes any ▇▇▇▇▇▇ Lease Document
Amendment (as defined in Section 3.01(p)) or permitted by Section 6.20.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board (or any successor), as in effect from
time-to-time.
"Eurodollar Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "Eurodollar Lending Office" in its Administrative
Questionnaire (or, if no such office is specified, its Domestic Lending Office)
or such other office of such Bank as such Bank may from time to time specify to
the Borrower and the Administrative Agent.
"Eurodollar Rate" means for any Interest Period with respect to a
Eurodollar Rate Advance:
(a) the rate per annum equal to the rate determined by the Administrative
Agent to be the offered rate that appears on the page of the Telerate screen (or
any successor thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not appear on
such page or service or such page or service shall not be available, the rate
per annum equal to the rate determined by the Administrative Agent to be the
offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are not
available, the rate per annum determined by the Administrative Agent as the rate
of interest at which deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the Eurodollar
Rate Advance being made, continued or converted by Bank of America and with a
term equivalent to such Interest Period would be offered by Bank of America's
London Branch to major banks in the London interbank Eurodollar market at their
request at approximately 4:00 p.m. (London time) two Business Days prior to the
first day of such Interest Period.
-11-
"Eurodollar Rate Advance" means an Advance which bears interest as
provided in Section 2.07(b).
"Eurodollar Rate Reserve Percentage" of any Bank for the Interest Period
for any Eurodollar Rate Advance means the reserve percentage applicable during
such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time-to-time by the Federal Reserve Board for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such Bank
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 7.01.
"Existing Letters of Credit" means, collectively, the letters of credit
issued under the Existing Credit Agreement and outstanding on the Effective
Date, including, without limitation, those listed on Schedule 2.13.
"Expiration Date" means, with respect to any Letter of Credit, the date on
which such Letter of Credit will expire or terminate in accordance with its
terms.
"Federal Funds Rate" means, for any day, the rate per annum 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 (a) if such day 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 (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any of its successors.
"Fee Letter" has the meaning specified in Section 2.06(b).
"Finance Entity" means any Subsidiary of the Borrower that is not also a
Subsidiary of Crosstex Energy Services, L.P. and that is formed for the purpose
of issuing Debt specifically permitted by Section 6.02(k).
"Financial Letter of Credit" means a Letter of Credit qualifying as a
"financial guarantee-type letter of credit" under 12 CFR Part 3, Appendix A,
Section 3(b)(1)(i) or any successor U.S. Comptroller of the Currency regulation
and issued by an Issuing Bank under the terms of this Agreement.
"Financial Statements" means the financial statements referred to in
Section 5.01.
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"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Debt" of any Person means Debt of such Person as described in
clauses (a), (b), (d) and (e) (other than any such Debt which may be
attributable to the ▇▇▇▇▇▇ Lease Documents) of the definition of "Debt" in this
Section 1.01.
"GAAP" means United States generally accepted accounting principles as in
effect from time to time, applied on a basis consistent with the requirements of
Section 1.03.
"General Partner" means Crosstex Energy GP, L.P., a Delaware limited
partnership.
"Governmental Action" means any authorization, approval, consent, waiver,
exception, license, filing, registration, permit, notarization or other
requirement of any Governmental Person.
"Governmental Person" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Governmental Rule" means any treaty, law, rule, regulation, ordinance,
order, code, interpretation, judgment, writ, injunction, decree, determination,
award, directive, guideline, request, policy or similar form of decision of any
Governmental Person, referee or arbitrator.
"Guarantor" means as of the Effective Date, each of the Persons listed on
Schedule 1.01, and thereafter, each of the future direct and indirect Material
Subsidiaries of the Borrower (other than any Material Subsidiary of the Borrower
that is not organized in a jurisdiction in the United States of America if the
Guaranty by such Material Subsidiary could reasonably be expected to have
material adverse tax consequences on the Borrower or any Subsidiary), and
"Guarantors" means all such Guarantors collectively.
"Guarantor Security Agreement" means the Third Amended and Restated
Subsidiary Security Agreement between each of the Guarantors and the Collateral
Agent, in form and substance reasonably satisfactory to the Collateral Agent and
the Banks, as each may be amended, modified or supplemented from time-to-time in
accordance with its terms.
"Guaranty" means each of the Guaranties executed by each Guarantor, in form
and substance reasonably satisfactory to the Administrative Agent and the Banks,
as each may be amended from time to time in accordance with its terms, and
"Guaranties" shall mean all such Guaranties collectively.
"Hazardous Material" means any substance or material described as a toxic
or hazardous substance, waste or material or as a pollutant, contaminant or
infectious waste, or words of similar import, in any Environmental Law,
including asbestos, petroleum (including crude oil
-13-
and any fraction thereof, natural gas, natural-gas liquid, liquefied natural gas
and synthetic gas usable for fuel, and any mixture of any of the foregoing),
polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive matter, and
chemicals that may cause cancer or reproductive toxicity.
"Holder" means a holder of any Private Note and "Holders" means all the
holders of the Private Notes from time to time.
"Hydrocarbon Hedge Agreement" means a swap, collar, floor, cap, option or
other derivative contract which is intended to reduce or eliminate the risk of
fluctuations in the price of Hydrocarbons.
"Hydrocarbons" means oil, gas, coal seam gas, casinghead gas, drip
gasoline, natural gasoline, condensate, distillate, and all other liquid and
gaseous hydrocarbons produced or to be produced in conjunction therewith from a
well bore and all products, by-products, and other substances derived therefrom
or the processing thereof, and all other minerals and substances produced in
conjunction with such substances, including, but not limited to, sulfur,
geothermal steam, water, carbon dioxide, helium, and any and all minerals, ores,
or substances of value and the products and proceeds therefrom.
"Intercreditor Agreement" means the Second Amended and Restated
Intercreditor and Collateral Agency Agreement dated as of November 1, 2005 among
the Collateral Agent, the Administrative Agent, the Banks, the Noteholders (as
defined therein) party to the Note Agreement, and the Bank Affiliated
Counterparties (as defined therein) party thereto.
"Interest Charge Coverage Ratio" means, for the Borrower and its
Subsidiaries on a Consolidated basis, as of the end of any fiscal quarter, the
ratio of (a) EBITDA for the four-fiscal quarter period then ended to (b)
Interest Expense for the four-fiscal quarter period then ended.
"Interest Expense" means, for the Borrower and its Subsidiaries determined
on a Consolidated basis, for any period, the total interest, letter of credit
fees, and other fees incurred in connection with any Debt for such period,
whether paid or accrued, including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, all as determined in conformity with GAAP and on
a pro forma basis at any time that EBITDA is being determined on such a basis.
"Interest Period" means for each Eurodollar Rate Advance comprising part of
the same Borrowing, the period commencing on the date of such Advance or the
date of the Conversion of any Reference Rate Advance into such an Advance and
ending on the last day of the period selected by the Borrower pursuant to the
provisions below or by Section 2.02 and thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period and
ending on the last day of the period selected by the Borrower pursuant to the
provisions below or by Section 2.02. The duration of each such Interest Period
shall be one, two, three, or six months, in each case as the Borrower may select
in the applicable Notice of Conversion or Continuation; provided, however, that:
(a) the Borrower may not select any Interest Period for any Advance which
ends after any principal repayment date unless, after giving effect to such
selection, the aggregate unpaid
-14-
principal amount of Advances that are Reference Rate Advances and Advances
having Interest Periods which end on or before such principal repayment date
shall be at least equal to the amount of Advances due and payable on or before
such date;
(b) whenever the last day of any Interest Period would otherwise occur on a
day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day; provided that if such
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(c) any Interest Period which begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month in which it would have ended if there were a
numerically corresponding day in such calendar month.
"Interest Rate Contract" means an interest rate protection agreement,
interest rate future, interest rate option, interest rate swap, interest rate
cap, collar or other interest rate hedge arrangement, to or under which the
Borrower or any Subsidiary is or becomes a party.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuing Bank" means, as the context may require, (a) Bank of America, with
respect to Letters of Credit issued by it, (b) UBOC, with respect to Letters of
Credit issued by it, (c) with respect to each Existing Letter of Credit, UBOC,
or (d) collectively, all the foregoing. Any Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of such
Issuing Bank, in which case the term "Issuing Bank" shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.
Notwithstanding anything to the contrary in this Agreement, the maximum face
amount of Letters of Credit issued by UBOC or any Affiliate of UBOC shall at no
time exceed $270,000,000 in the aggregate.
"L/C Advance" means, with respect to each Bank, such Bank's funding of its
participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing.
"Lead Arranger" means Banc of America Securities LLC.
"Letter of Credit" means, individually, any letter of credit issued by the
Issuing Bank which is subject to this Agreement and shall include the Existing
Letters of Credit and "Letters of Credit" means all such letters of credit
collectively.
"Letter of Credit Application" means the Issuing Bank's standard form
letter of credit application for either a Performance Letter of Credit or
Financial Letter of Credit, as the case may be, which has been executed by the
Borrower and accepted by the Issuing Bank in connection with the issuance or
amendment of a Letter of Credit.
-15-
"Letter of Credit Documents" means all Letters of Credit, Letter of Credit
Applications, and agreements, documents, and instruments entered into in
connection with or relating thereto.
"Letter of Credit Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit plus (b) the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings at such
time. For all purposes of this Agreement, if on any date of determination a
Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of
Credit shall be deemed to be "outstanding" in the amount so remaining available
to be drawn. For purposes of computing the amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.07.
"Letter of Credit Obligations" means, as at any date of determination, the
aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate
of all Unreimbursed Amounts, including all L/C Borrowings. For all purposes of
this Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be
"outstanding" in the amount so remaining available to be drawn. For purposes of
computing the amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section
1.07.
"Leverage Ratio" means, for the Borrower and its Subsidiaries on a
Consolidated basis, as of the end of any fiscal quarter, the ratio of (a) Funded
Debt for the Borrower and its Subsidiaries on a Consolidated basis as of the end
of such fiscal quarter to (b) EBITDA for the four fiscal quarters then ended.
"Lien" means, with respect to any Property, (a) any lien, charge, option,
claim, deed of trust, mortgage, security interest, pledge or other encumbrance,
or any other type of preferential arrangement of any kind, in respect of such
Property, including any easement, right of way or other encumbrance on title to
real property, or (b) the interest of a vendor or lessor under any
conditional-sale agreement, capital lease or other title-retention agreement
relating to such Property.
"Limited Partners" means Crosstex Holdings, L.P., a Delaware limited
partnership, and each of the other limited partners of the Borrower.
"Louisiana Guarantors" means each of Crosstex LIG, LLC and Crosstex
Tuscaloosa, LLC.
"Majority Banks" means, at any time, Banks having at least 50.1% of the
aggregate amount of the Commitments at such time or, if the Commitments have
been terminated, then Banks holding at least 50.1% of the then aggregate unpaid
principal amount of the Advances held by the Banks and the Letter of Credit
Exposure of the Banks at such time.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, assets, properties, liabilities (actual and contingent), operations or
condition (financial or otherwise) of the Borrower and its Subsidiaries, taken
as a whole, (b) the ability of the Borrower or any Guarantor to perform its
obligations under this Agreement or any of the Credit Documents or (c)
-16-
the rights and remedies of the Administrative Agent or the Banks under this
Agreement or any of the Credit Documents.
"Material Subsidiary" shall mean a Subsidiary of the Borrower having:
either (a) 5% or more of EBITDA for the four fiscal quarter period ending as of
the most recent fiscal quarter for which the Borrower has delivered Financial
Statements pursuant to Section 5.01(c) or (d); or (b) 5% of the book value
consolidated assets of the Borrower and its Subsidiaries as of the end of the
most recent fiscal quarter for which the Borrower has delivered Financial
Statements pursuant to Section 5.01(c) or (d).
"Maximum Rate" means the maximum nonusurious interest rate under applicable
law.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgaged Property" means the aggregate of all of the "Mortgaged Property"
and "Trust Property" as defined in all of the Mortgages.
"Mortgages" means, collectively, each of the Deed of Trust, Security
Agreement, Financing Statement and Assignments executed by the Borrower or any
Subsidiary in favor of the Collateral Agent for its benefit and the ratable
benefit of the Creditors (as defined in the Intercreditor Agreement) in form and
substance reasonably satisfactory to the Collateral Agent and the Banks, as the
same may be amended, modified or supplemented from time-to-time.
"Multiemployer Plan" means a "multiemployer plan," as defined in Section
4001(a)(3) of ERISA and subject to Title IV thereof, to which the Borrower or
any ERISA Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an obligation
to make contributions, such plan being maintained pursuant to one or more
collective-bargaining agreements.
"Multiple Employer Plan" means a "single employer plan," as defined in
Section 4001(a)(15) of ERISA and subject to Title IV thereof, that (a) is
maintained by the Borrower or an ERISA Affiliate and at least one Person other
than the Borrower and its ERISA Affiliates or (b) was so maintained previously,
but is not currently maintained by the Borrower or its ERISA Affiliates, and in
respect of which the Borrower or an ERISA Affiliate would still have liability
under Section 4063, 4064 or 4069 of ERISA in the event such plan has been or
were to be terminated.
"Net Cash Proceeds" means (a) in connection with any Asset Disposition or
Recovery Event, the proceeds thereof in the form of cash and cash equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset
Disposition or Recovery Event, net of attorneys' fees, accountants' fees,
investment banking fees and insurance consultant fees, amounts required to be
applied to the repayment of Debt secured by a Lien permitted hereunder on any
asset which is the subject of such Asset Disposition or Recovery Event (other
than any Lien pursuant to a Security Document) and other customary fees and
expenses actually incurred in connection therewith and net of taxes paid or
reasonably estimated to be payable as a result thereof within two years of the
date of the relevant Asset Disposition or Recovery Event as a result of any gain
recognized in
-17-
connection therewith (after taking into account any applicable tax credits or
deductions and any tax sharing arrangements) and (b) in connection with any
issuance or sale of debt securities or instruments or the incurrence of loans,
the cash proceeds or cash equivalents received from such issuance or incurrence,
net of attorneys' fees, investment banking fees, brokerage, finder's or similar
fees, accountants' fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection therewith
"Net Income" means, for any period for which such amount is being
determined, the Consolidated net income of the Borrower and its Subsidiaries, as
determined in accordance with GAAP consistently applied, excluding, however, any
net gain or loss from extraordinary items, including but not limited to any net
gain or loss during such period arising from the sale, exchange, or other
disposition of capital assets other than in the ordinary course of business.
"Note" means a promissory note of the Borrower payable to the order of any
Bank in substantially the form of the attached Exhibit A, evidencing
indebtedness of the Borrower to such Bank resulting from any Advance by such
Bank.
"Note Agreement" means the Amended and Restated Master Shelf Agreement
dated as of March 31, 2005 among the Borrower, the Predecessor Borrower,
Prudential Investment Management, Inc. and each of the existing noteholders
party thereto, as the same may be amended, modified or supplemented from
time-to-time as permitted by this Agreement.
"Note Obligations" means "Obligations" as defined in the Note Agreement.
"Notice of Borrowing" means a notice of borrowing in the form of the
attached Exhibit B signed by a Responsible Officer.
"Notice of Conversion or Continuation" means a notice of conversion or
continuation in the form of the attached Exhibit C signed by a Responsible
Officer.
"Obligations" means the principal, interest, fees, Letter of Credit
commissions, charges, expenses, attorneys' fees and disbursements, indemnities
and any other amounts payable by the Borrower and the Guarantors to the
Administrative Agent, the Collateral Agent and the Banks under the Credit
Documents, including without limitation, the Letter of Credit Obligations.
"Omnibus Agreement" means the Omnibus Agreement among the Borrower, the
General Partner, the Ultimate General Partner, Crosstex Energy, Inc. and
Crosstex Energy Services, L.P.
"Participant" has the meaning specified in Section 9.06(e).
"Partners" means the General Partner and the Limited Partners.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Performance Letter of Credit" means a Letter of Credit qualifying as a
"performance-based standby letter of credit" under 12 CFR Part 3, Appendix A,
Section 3(b)(2)(i) or any successor U.S. Comptroller of the Currency regulation
and issued by an Issuing Bank under the terms of this Agreement.
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"Permitted Investments" means investments having a maturity of not greater
than 3 months from the date of acquisition thereof in (a) obligations issued or
unconditionally guaranteed by the United States of America or issued by any
agency thereof and backed by the full faith and credit of the United States of
America, (b) demand deposits and certificates of deposit (located in the United
States of America) of any Bank or any other commercial bank organized under the
laws of the United States of America or any state thereof and having combined
capital and surplus of at least $500,000,000, (c) commercial paper with a rating
of at least "Prime-l" by ▇▇▇▇▇'▇ Investors Service, Inc. or "A-l" by Standard &
Poor's Ratings Group or (d) other investments agreed to from time to time
between the Borrower and the Administrative Agent.
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding has been commenced that
has not been stayed or bonded pending appeal: (a) Liens for taxes, assessments
and governmental charges or levies, to the extent the same are not yet due or
are being contested in good faith by proper proceedings and appropriate reserves
are being maintained for the same; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's, repairmen's and bankers' Liens
and other similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 60 days or that are
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained; (c) pledges or deposits to secure
obligations under workers' compensation laws or similar legislation or to secure
public or statutory obligations; (d) easements, rights of way, landlord's liens
and other encumbrances on title to real property that do not materially and
adversely affect the value of such property or the use of such property by the
Borrower or any Subsidiary for its current purposes; (e) deposits to secure the
performance of bids, trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of like nature incurred in the ordinary course of business; and (f)
Liens arising by reason of any judgment or order of any Governmental Person,
referee or arbitrator if appropriate legal proceedings for the review of such
judgment or order are being diligently prosecuted and execution or enforcement
thereof is stayed pending appeal.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability partnership, limited liability company, joint
stock company, trust, unincorporated association, joint venture or other entity,
or a government or any political subdivision or agency thereof or any trustee,
receiver, custodian or similar official.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Private Notes" shall mean the Series A Notes, Series B Notes, Series C
Notes and any Additional Notes.
"Property" of any Person means any property or assets (whether real,
personal, or mixed, tangible or intangible) of such Person.
"Pro Rata Share" means, with respect to any Bank, either (a) the ratio
(expressed as a percentage) of such Bank's Commitment at such time to the
aggregate Commitments at such time or (b) if the Commitments have been
terminated, the ratio (expressed as a percentage) of
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such Bank's aggregate outstanding Advances and Letter of Credit Exposure at such
time to the aggregate outstanding Advances and Letter of Credit Exposure of all
the Banks at such time.
"Qualifying Owners" means (a) the significant owners of the ultimate parent
company of the General Partner, Crosstex Energy, Inc., on the date hereof,
consisting of Yorktown Energy Partners IV, L.P., Yorktown Energy Partners V,
L.P., Lubar Nominees and ▇▇▇▇▇ ▇. ▇▇▇▇▇ or any Affiliate of the foregoing, (b)
Crosstex Energy, Inc. and its Affiliates and (c) any transferee of any of the
foregoing to the extent such transferee is approved by a majority of the
ownership interests of the then-existing Qualifying Owners (other than the
transferor) or any Affiliate of the foregoing.
"Quarterly Distributions" means cash distributions by the Borrower to the
Partners during any fiscal quarter in amounts that do not exceed the Available
Cash for the immediately preceding fiscal quarter.
"Recovery Event" means any settlement of or payment in respect of any
property or casualty insurance claim (excluding any claim in respect of business
interruption) or any condemnation proceeding relating to any asset of the
Borrower or any of its Subsidiaries, in which the subject property either (a)
generates EBITDA greater than or equal to 5% of EBITDA for the four fiscal
quarter period ending as of the most recent fiscal quarter for which the
Borrower has delivered Financial Statements pursuant to Section 5.01(c) or (d)
or (b) has an aggregate book value greater than 5% of the book value of the
consolidated assets of the Borrower and its Subsidiaries as of the end of the
most recent fiscal quarter for which the Borrower has delivered Financial
Statements pursuant to Section 5.01(c) or (d).
"Reference Rate" means for any day a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." The "prime rate" is a rate set by Bank of
America based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Reference Rate Advances" means an Advance which bears interest as provided
in Section 2.07(a).
"Register" has the meaning set forth in paragraph (c) of Section 9.06.
"Regulations T, U and X" means Regulations T, U and X of the Federal
Reserve Board, as the same are from time-to-time in effect, and all official
rulings and interpretations thereunder or thereof.
"Reinvestment Deferred Amount" with respect to any Reinvestment Event, the
aggregate Net Cash Proceeds received by the Borrower or any of its Subsidiaries
in connection therewith that are not required to be applied to prepay the
Advances pursuant to Section 2.04 as a result of the delivery of a Reinvestment
Notice.
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"Reinvestment Event" means any Asset Disposition or Recovery Event in
respect of which a Reinvestment Notice has been delivered.
"Reinvestment Notice" means a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing and that
the Borrower (directly or indirectly through a Subsidiary) intends and expects
to use all or a specified portion of the Net Cash Proceeds of a Asset
Disposition or Recovery Event to acquire assets useful in its business and/or to
repair Property, as applicable.
"Reinvestment Prepayment Amount" means with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date, and in any event
expended prior to the date on which the Borrower would otherwise be required to
apply such Reinvestment Deferred Amount to repay any other Debt of the Borrower
or any of its Subsidiaries, to acquire assets useful in the business of any such
Person and/or to repair Property, as applicable.
"Reinvestment Prepayment Date" means with respect to any Reinvestment
Event, the earlier of (a) the date occurring 270 days after such Reinvestment
Event or, provided that the Borrower (directly or indirectly through a
Subsidiary) has entered into a binding contract to acquire assets useful in its
business and/or to repair Property, as applicable, such later date as is
reasonably determined by the Borrower and notified to the Administrative Agent
to be the earliest date on which the Borrower (directly or indirectly through a
Subsidiary), shall have, using diligent efforts, (i) completed acquiring assets
useful in its business and/or (ii) repaired Property, as applicable, (b) the
date on which the Borrower (directly or indirectly through a Subsidiary) shall
have determined not to, or shall have otherwise ceased to, acquire assets useful
in its business and/or to repair Property, as applicable, with all or any
portion of the relevant Reinvestment Deferred Amount, and (c) the occurrence and
continuance of any Default or Event of Default.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Responsible Officer" means the Chief Executive Officer, President, Chief
Financial Officer, any Executive Vice President, any Senior Vice President, the
Vice President of Finance, Treasurer or Assistant Treasurer of the Ultimate
General Partner.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Sabine" means Sabine Pass Plant Facility Joint Venture, a Texas general
partnership.
"Scheduled Completion Date" means, with respect to the construction of any
Property, the date indicated as the Company's good faith estimate of the
scheduled date of the completion
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of such construction in the first certificate sent by the Borrower pursuant to
Sections 5.01(c) or 5.01(d) which includes the first calculation of Pro Forma
EBITDA for such specific project.
"Security Agreements" means, collectively, the Borrower Security Agreement
and the Guarantor Security Agreement.
"Security Documents" means, collectively, (a) the Security Agreements, (b)
the Mortgages, (c) each other agreement, instrument or document executed at any
time in connection with the Security Agreements or the Mortgages, and (d) each
other agreement, instrument or document executed at any time in connection with
securing the Obligations.
"Series A Notes" shall mean $30,000,000 aggregate principal amount of the
Borrower's 6.95% Senior Secured Notes, Series A, due June 1, 2010, together with
any notes of such series issued in substitution or exchange therefor pursuant to
the Note Agreement.
"Series B Notes" shall mean $10,000,000 aggregate principal amount of the
Borrower's 6.88% Senior Secured Notes, Series B, due July 1, 2010, together with
any notes of such series issued in substitution or exchange therefor pursuant to
the Note Agreement.
"Series C Notes" shall mean $75,000,000 aggregate principal amount of the
Borrower's 6.96% Senior Secured Notes, Series C, due June 18, 2014, together
with any notes of such series issued in substitution or exchange therefor
pursuant to the Note Agreement.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA and subject to Title IV thereof, that (a) is maintained by
the Borrower or an ERISA Affiliate and no Person other than the Borrower and its
ERISA Affiliates or (b) was so maintained previously, but is not currently
maintained by the Borrower or its ERISA Affiliates, and in respect of which the
Borrower or an ERISA Affiliate would still have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Solvent" means with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the probable liability of such Person on its debts
as such debts become absolute and matured, (c) such Person will not have, as of
such date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For
purposes of this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"Subsidiary" of a Person means any corporation or other entity of which
more than 50% of the outstanding capital stock or other equity ownership
interests having ordinary voting power
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to elect a majority of the board of directors of such corporation (irrespective
of whether at such time capital stock of any other class or classes or other
equity ownership interests of such corporation shall or might have voting power
upon the occurrence of any contingency) is at the time directly or indirectly
owned by such Person, by such Person and one or more Subsidiaries of such Person
or by one or more Subsidiaries of such Person. Unless otherwise specified,
"Subsidiary" means a Subsidiary of the Borrower.
"Termination Date" means the earlier of (a) November 1, 2010, (b) the
acceleration of the maturity of the Advances and the termination of the Banks'
obligations to provide Advances pursuant to Article VII and (c) the termination
of all of the Commitments pursuant to Section 2.03.
"Type" has the meaning set forth in Section 1.04.
"UBOC" means Union Bank of California, N.A.
"Unreimbursed Amount" has the meaning specified in Section 2.13(c)(i).
"Ultimate General Partner" means Crosstex Energy GP, LLC, a Delaware
limited liability company, and its successors and permitted assigns as general
partner of the General Partner or as the business entity with the ultimate
authority to manage the business and operations of the Borrower.
Section 1.02. Computation of Time Periods. In the Credit Documents in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
Section 1.03. Accounting Terms; Changes in GAAP.
(a) All accounting terms not specifically defined in this Agreement
shall be construed in accordance with GAAP applied on a consistent basis with
those applied in the preparation of the Financial Statements.
(b) Unless otherwise indicated, all financial statements of the
Borrower and its Subsidiaries, all calculations for compliance with covenants in
this Agreement and all calculations of any amounts to be calculated under the
definitions in Section 1.01 shall be based upon the consolidated accounts of the
Borrower and its Subsidiaries in accordance with GAAP and consistent with the
principles applied in preparing the Financial Statements. If at any time any
change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Credit Document, and either the Borrower or
Majority Banks shall so request, Majority Banks and the Borrower shall negotiate
in good faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP, provided that, until so amended, (i)
such ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent financial statements and other documents required under
this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP.
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Section 1.04. Types of Advances and Borrowings. Advances are distinguished
by "Type." The "Type" of an Advance refers to the determination whether such
Advance is a Eurodollar Rate Advance or Reference Rate Advance.
Section 1.05. Miscellaneous. Article, Section, Schedule and Exhibit
references are to Articles and Sections of and Schedules and Exhibits to this
Agreement, unless otherwise specified.
Section 1.06. Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
Section 1.07. Letter of Credit Amounts. Unless otherwise specified herein,
the amount of a Letter of Credit at any time shall be deemed to be the stated
amount of such Letter of Credit in effect at such time; provided, however, that
with respect to any Letter of Credit that, by its terms or the terms of any
Letter of Credit Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit
shall be deemed to be the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount
is in effect at such time.
ARTICLE II.
CREDIT FACILITIES
Section 2.01. Making the Advances.
(a) Advances. Each Bank severally agrees, on the terms and
conditions set forth in this Agreement, to make Advances to the Borrower from
time to time on any Business Day during the period from the Effective Date until
the Termination Date in an aggregate outstanding amount up to but not to exceed
at any time outstanding its Commitment, as such amount may be reduced pursuant
to Section 2.03, 7.02, and 7.03; provided, however that the aggregate
outstanding principal amount of all Advances plus the Letter of Credit Exposure
shall not at any time exceed the aggregate Commitments. As of the Effective Date
the aggregate Commitments shall be $750,000,000.00.
(b) Generally. Each Borrowing shall, in the case of Borrowings
consisting of Reference Rate Advances, be in an aggregate amount not less than
$500,000 and in integral multiples of $100,000 in excess thereof, and in the
case of Borrowings consisting of Eurodollar Rate Advances, be in an aggregate
amount not less than $1,000,000 or in integral multiples of $500,000 in excess
thereof, and in each case shall consist of Advances of the same Type made on the
same day by the Banks ratably according to their respective Commitments. Within
the limits of each Bank's Commitment, and subject to the terms of this
Agreement, the Borrower may from time to time borrow, prepay, and reborrow
Advances.
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(c) Evidence of Debt.
(i) The Advances made by each Bank shall be evidenced by one
or more accounts or records maintained by such Bank and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Bank shall be conclusive absent manifest error
of the amount of the Advances made by the Banks to the Borrower and the interest
and payments thereon. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrower hereunder
to pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Bank and the
accounts and records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of
manifest error. Upon the request of any Bank made through the Administrative
Agent, the Borrower shall execute and deliver to such Bank (through the
Administrative Agent) a Note, which shall evidence such Bank's Advances in
addition to such accounts or records. Each Bank may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount and maturity of its
Advances and payments with respect thereto.
(ii) In addition to the accounts and records referred to in
subsection (i), each Bank and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Bank of participations in Letters of Credit. In the event of
any conflict between the accounts and records maintained by the Administrative
Agent and the accounts and records of any Bank in respect of such matters, the
accounts and records of the Administrative Agent shall control in the absence of
manifest error.
Section 2.02. Method of Borrowing.
(a) Notice. Each Borrowing shall be made pursuant to a Notice of
Borrowing (or by telephone notice promptly confirmed in writing by a Notice of
Borrowing), given not later than (i) 11:00 a.m. on the third Business Day before
the date of the proposed Borrowing, in the case of a Eurodollar Rate Borrowing
or (ii) 1:00 p.m. on the Business Day of the proposed Borrowing, in the case of
a Reference Rate Borrowing, by the Borrower to the Administrative Agent, which
shall in turn give to each Bank prompt notice of such proposed Borrowing by
telecopier or telex. Each Notice of Borrowing shall be given by telecopier or
telex, confirmed immediately in writing, or other written notice specifying the
information required therein. In the case of a proposed Borrowing comprised of
Eurodollar Rate Advances, the Administrative Agent shall promptly notify each
Bank of the applicable interest rate under Section 2.07(b). Each Bank shall,
before 2:00 p.m. on the date of such Borrowing, make available for the account
of its Applicable Lending Office to the Administrative Agent's Office in same
day funds, such Bank's Pro Rata Share of such Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent shall
make such funds available to the Borrower at its account with the Administrative
Agent.
(b) Conversions and Continuations. The Borrower may elect to Convert
or continue any Borrowing under this Section 2.02 by delivering an irrevocable
Notice of Conversion or Continuation to the Administrative Agent at the
Administrative Agent's office no later than (i) 11:00 a.m. on the date which is
at least three Business Days in advance of the
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proposed Conversion or continuation date in the case of a Conversion to or a
continuation of a Borrowing comprised of Eurodollar Rate Advances and (ii) 1:00
p.m. on the Business Day of the proposed conversion date in the case of a
Conversion to Borrowing comprised of Reference Rate Advance. Each such Notice of
Conversion or Continuation shall be in writing or by telex or telecopier,
confirmed immediately in writing, or other written notice specifying the
information required therein. Promptly after receipt of a Notice of Conversion
or Continuation under this Section, the Administrative Agent shall provide each
Bank with a copy thereof and, in the case of a Conversion to or a Continuation
of a Borrowing comprised of Eurodollar Rate Advances, notify each Bank of the
applicable interest rate under Section 2.07(b). No such Conversion or
continuation shall be deemed the making of a new Advance for purposes of this
Agreement, including without limitation Article III.
(c) Certain Limitations. Notwithstanding anything in paragraphs (a)
and (b) above:
(i) at no time shall there be more than six Interest Periods
applicable to outstanding Eurodollar Rate Advances and the Borrower may not
select Eurodollar Rate Advances for any Borrowing at any time that a Default has
occurred and is continuing;
(ii) if any Bank shall at least one Business Day before the
date of any requested Borrowing, Conversion or continuation, notify the
Administrative Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or that any central
bank or other Governmental Person asserts that it is unlawful, for such Bank or
its Eurodollar Lending Office to perform its obligations under this Agreement to
make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances,
the right of the Borrower to select Eurodollar Rate Advances from such Bank
shall be suspended until such Bank shall notify the Administrative Agent that
the circumstances causing such suspension no longer exist, and the Advance made
by such Bank in respect of such Borrowing, Conversion or continuation shall be a
Reference Rate Advance;
(iii) if the Administrative Agent is unable to determine in
good faith the Eurodollar Rate for Eurodollar Rate Advances comprising any
requested Borrowing, the right of the Borrower to select Eurodollar Rate
Advances for such Borrowing or for any subsequent Borrowing shall be suspended
until the Administrative Agent shall notify the Borrower and the Banks that the
circumstances causing such suspension no longer exist, and each Advance
comprising such Borrowing shall be a Reference Rate Advance;
(iv) if the Majority Banks shall, at least one Business Day
before the date of any requested Borrowing, notify the Administrative Agent that
the Eurodollar Rate for Eurodollar Rate Advances comprising such Borrowing will
not adequately reflect the cost to such Banks of making or funding their
respective Eurodollar Rate Advances, as the case may be, for such Borrowing, the
right of the Borrower to select Eurodollar Rate Advances for such Borrowing or
for any subsequent Borrowing shall be suspended until the Administrative Agent
shall notify the Borrower and the Banks that the circumstances causing such
suspension no longer exist, and each Advance comprising such Borrowing shall be
a Reference Rate Advance; and
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(v) if the Borrower shall fail to select the duration or
continuation of any Interest Period for any Eurodollar Rate Advances in
accordance with the provisions contained in the definition of "Interest Period"
in Section 1.01 and paragraph (b) above, the Administrative Agent shall so
notify the Borrower and the Banks and such Advances shall be made available to
the Borrower on the date of such Borrowing as Reference Rate Advances or, if an
existing Advance, Converted into Reference Rate Advances.
(d) Notices Irrevocable. Each Notice of Borrowing and Notice of
Conversion or Continuation, once delivered, shall be irrevocable and binding on
the Borrower. In the case of any Borrowing which the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Bank against any loss, out-of-pocket cost or expense incurred by
such Bank as a result of any failure by the Borrower to fulfill on or before the
date specified in such Notice of Borrowing, the applicable conditions set forth
in Article III, including, without limitation, any loss (including any loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund the
Advance to be made by such Bank as part of such Borrowing when such Advance, as
a result of such failure, is not made on such date.
(e) Funding by Banks; Presumption by Administrative Agent. Unless
the Administrative Agent shall have received notice from a Bank prior to the
proposed date of any Borrowing that such Bank will not make available to the
Administrative Agent such Bank's share of such Borrowing, the Administrative
Agent may assume that such Bank has made such share available on such date in
accordance with Section 2.02 and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Bank has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Bank and the Borrower severally agree
to pay to the Administrative Agent forthwith on demand such corresponding amount
in immediately available funds with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (a) in the case of
a payment to be made by such Bank, the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation and (B) in the case of a payment to be made by
the Borrower, the interest rate applicable to Reference Rate Advances. If the
Borrower and such Bank shall pay such interest to the Administrative Agent for
the same or an overlapping period, the Administrative Agent shall promptly remit
to the Borrower the amount of such interest paid by the Borrower for such
period. If such Bank pays its share of the applicable Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Bank's
Advance included in such Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Bank that shall have
failed to make such payment to the Administrative Agent. A notice of the
Administrative Agent to any Bank or the Borrower with respect to any amount
owing under this subsection (e) shall be conclusive, absent manifest error.
(f) Obligations of Banks Several. The obligations of the Banks
hereunder to make Advances, to fund participations in Letters of Credit and to
make payments pursuant to Section 9.04(c) are several and not joint. The failure
of any Bank to make any Advance, to fund any such participation or to make any
payment under Section 9.04(c) on any date required hereunder shall not relieve
any other Bank of its corresponding obligation to do so on such date,
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and no Bank shall be responsible for the failure of any other Bank to so make
its Advance, to purchase its participation or to make its payment under Section
9.04(c).
Section 2.03. Reduction of the Commitments.
(a) The Borrower shall have the right, upon at least three Business
Days' irrevocable notice to the Administrative Agent, to terminate in whole or
reduce ratably in part the unused portion of the Commitments; provided that (i)
each partial reduction shall be in the aggregate amount of $1,000,000 or an
integral multiple of $500,000 and (ii) the Borrower shall not terminate or
reduce the aggregate Commitments if, after giving effect thereto and to any
concurrent prepayments hereunder, the aggregate amount of Advances plus the
Letter of Credit Exposure would exceed the aggregate Commitments.
(b) Any reduction and termination of the Commitments pursuant to
this Section 2.03 shall be applied ratably to each Bank's Commitment and shall
be permanent, with no obligation of the Banks to reinstate such Commitments and
the commitment fees provided for in Section 2.06(a) shall thereafter be computed
on the basis of the Commitments, as so reduced.
Section 2.04. Prepayment of Advances.
(a) Optional. The Borrower may prepay all or any part of the
Advances at any time, without premium or penalty, after giving by 12:00 p.m. (i)
in the case of Eurodollar Rate Advances, at least three Business Days' or (ii)
in case of Reference Rate Advances, on the same Business Day, irrevocable prior
written notice to the Administrative Agent stating the proposed date and
aggregate principal amount of such prepayment. If any such notice is given, the
Borrower shall prepay Advances comprising part of the same Borrowing in whole or
ratably in part in an aggregate principal amount equal to the amount specified
in such notice, together with accrued interest to the date of such prepayment on
the principal amount prepaid and amounts, if any, required to be paid pursuant
to Section 2.10 as a result of such prepayment being made on such date;
provided, however, that each partial prepayment with respect to: (a) any
Borrowing comprised of Reference Rate Advances shall be made in an initial
minimum aggregate principal amount of $500,000 and thereafter in $100,000
multiples and in an aggregate principal amount such that after giving effect
thereto such Borrowing shall have a principal amount outstanding of at least
$500,000 and (b) any Borrowing comprised of Eurodollar Rate Advances shall be
made in an initial minimum aggregate principal amount of $1,000,000 and
thereafter in $500,000 multiples and in an aggregate principal amount such that
after giving effect thereto such Borrowing shall have a principal amount
outstanding of at least $1,000,000. Full prepayments of any Borrowing are
permitted without restriction of amounts. Each prepayment under this Section
2.04(a) shall be allocated between the Advances as determined by the Borrower.
(b) Mandatory.
(i) Reduction of Commitments. On the date of each reduction of
the aggregate Commitments pursuant to Section 2.03 or if for any reason the
outstanding amount of Advances plus the Letter of Credit Exposure exceeds the
aggregate Commitments then in effect, the Borrower agrees to make a prepayment
in respect of the outstanding amount of the Advances
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and/or Cash Collateralize the Letter of Credit Obligations to the extent, if
any, that the aggregate unpaid principal amount of all Advances plus the Letter
of Credit Exposure exceeds the Commitments.
(ii) Asset Disposition. Upon the occurrence of any Asset
Disposition or any Recovery Event (except (i) to the extent that a Reinvestment
Notice shall be delivered in respect of such Asset Disposition or Recovery Event
or (ii) with respect to cash receipts in the ordinary course of business of the
applicable recipient), then on the date of receipt by the Borrower or the
applicable Subsidiary of the Net Cash Proceeds related thereto, the Advances
shall immediately be prepaid by an amount equal to the amount of such Net Cash
Proceeds (except to the extent such Net Cash Proceeds are otherwise required by
the Note Agreement to be applied to the ratable prepayment of the Note
Obligations); provided, that, notwithstanding the foregoing, on each
Reinvestment Prepayment Date the Advances shall be prepaid by an amount equal to
the Reinvestment Prepayment Amount with respect to the relevant Reinvestment
Event (except to the extent such Reinvestment Prepayment Amount is otherwise
required by the Note Agreement to be applied to the ratable prepayment of the
Note Obligations). For purposes of calculating the Net Cash Proceeds received
from an Asset Disposition or from a Recovery Event, such proceeds shall be
determined as of the date of the applicable Asset Disposition or Recovery Event,
whether or not received on such date, but no such amount shall be required to be
applied to prepayment of the Advances pursuant to this Section until received by
the applicable Person. The provisions of this Section do not constitute a
consent to the consummation of any Disposition not permitted by Section 6.04.
(iii) Debt Issuance. If any Debt for borrowed money shall be
issued or incurred by the Borrower or any of its Subsidiaries (excluding any
Debt incurred in accordance with Section 6.02), then on the date of such
issuance or incurrence, the Advances shall be prepaid by an amount equal to the
amount of the Net Cash Proceeds of such issuance or incurrence, except to the
extent that such Net Cash Proceeds are otherwise required by the Note Agreement
to be applied to the ratable prepayment of the Note Obligations. The provisions
of this Section do not constitute a consent to the issuance or incurrence of any
Debt by the Borrower or any of its Subsidiaries not otherwise permitted
hereunder.
(iv) Equity Issuance. If the Leverage Ratio of the Borrower
and its Subsidiaries on a Consolidated basis shall exceed 4.00 to 1.00, then
Equity Issuance Proceeds received by the Borrower or any of its Subsidiaries,
shall be applied to prepay the Advances on the date such Equity Issuance
Proceeds are received in an amount equal to the lesser of (A) the amount of such
Equity Issuance Proceeds and (B) the amount necessary to cause the Leverage
Ratio to be 4.00 to 1.00 or less, based on the most recently delivered Financial
Statements; provided that this paragraph shall not apply to Equity Issuance
Proceeds required to be received by the Borrower pursuant to Section 3.01(n).
(v) Accrued Interest. Each prepayment under this Section
2.04(b) shall be accompanied by accrued interest on the amount prepaid to the
date of such prepayment and amounts, if any, required to be paid pursuant to
Section 2.10 as a result of such prepayment.
(c) Illegality. If any Bank shall notify the Administrative Agent
and the Borrower that the introduction of or any change in or in the
interpretation of any law or
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regulation makes it unlawful, or that any central bank or other Governmental
Person asserts that it is unlawful for such Bank or its Eurodollar Lending
Office to perform its obligations under this Agreement to maintain any
Eurodollar Rate Advances of such Bank then outstanding hereunder, (i) the
Borrower shall (a) if not prohibited by law, on the last day of the Interest
Period for each outstanding Eurodollar Rate Advance made by such Bank or (b) if
required by such notice, on the second Business Day following its receipt of
such notice prepay all of the Eurodollar Rate Advances made by such Bank then
outstanding, together with accrued interest on the principal amount prepaid to
the date of such prepayment and amounts, if any, required to be paid pursuant to
Section 2.10 as a result of such prepayment being made on such date, (ii) such
Bank shall simultaneously make a Reference Rate Advance to the Borrower on such
date in an amount equal to the aggregate principal amount of the Eurodollar Rate
Advances prepaid to such Bank, and (iii) the right of the Borrower to select
Eurodollar Rate Advances from such Bank for any subsequent Borrowing shall be
suspended until such Bank shall notify the Administrative Agent that the
circumstances causing such suspension no longer exist; provided, that such Bank
agrees to use reasonable efforts to designate a different Applicable Lending
Office if the making of such designation would avoid such payment, and would
not, in its reasonable judgment, be otherwise disadvantageous to such Bank.
(d) No Additional Right; Ratable Prepayment. The Borrower shall have
no right to prepay any principal amount of any Advance except as provided in
this Section 2.04, and all notices given pursuant to this Section 2.04 shall be
irrevocable and binding upon the Borrower. Each payment of any Advance pursuant
to this Section 2.04 shall be made in a manner such that all Advances comprising
part of the same Borrowing are paid in whole or ratably in part.
Section 2.05. Repayment of Advances. The Borrower shall repay the
outstanding principal amount of the Advances outstanding on the Termination
Date.
Section 2.06. Fees.
(a) Commitment Fees.
(i) The Borrower agrees to pay to the Administrative Agent for
the account of each Bank a commitment fee on the daily amount by which such
Bank's Commitment exceeds the sum of (a) such Bank's outstanding Advances and
(b) such Bank's Pro Rata Share of the Letter of Credit Exposure, at the
Applicable Margin for commitment fees from the date of this Agreement until the
Termination Date. The commitment fees shall be due and payable quarterly in
arrears on the last day of each March, June, September and December prior to the
Termination Date and on the Termination Date.
(b) Agent Fees. The Borrower agrees to pay to the Administrative
Agent for the benefit of the Administrative Agent or the Lead Arranger, as
applicable, the fees described in the letter dated as of August 27, 2005 from
Bank of America and the Lead Arranger to the Borrower (the "Fee Letter").
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(c) Letter of Credit Fees.
(i) With respect to each Financial Letter of Credit issued
hereunder, the Borrower agrees to pay to (a) the Administrative Agent for the
pro rata benefit of the Banks a fee per annum equal to the Applicable Margin for
letter of credit fees on the aggregate amount available for drawing from time to
time under such Financial Letter of Credit and (b) to the Issuing Bank a facing
fee for each Letter of Credit of .125% per annum of the face amount of such
Letter of Credit. Each such fee shall be payable quarterly in arrears on the
last day of each March, June, September and December prior to the Termination
Date and on the Termination Date (or, if later, the date on which all
outstanding Letters of Credit have expired).
(ii) With respect to each Performance Letter of Credit issued
hereunder, the Borrower agrees to pay to (a) the Administrative Agent for the
pro rata benefit of the Banks a one-time letter of credit fee in an amount equal
to the Applicable Margin for letter of credit fees on the initial stated amount
of such Performance Letter of Credit (or, with respect to any subsequent
increase to the stated amount of any such Performance Letter of Credit, such
increase in the stated amount) thereof, such fee to be payable on the date of
such issuance, increase or extension and (b) to the Issuing Bank a facing fee
for each Letter of Credit of .125% per annum of the face amount of such Letter
of Credit, payable in advance, commencing on the date of issuance, increase or
extension of such Letter of Credit and quarterly thereafter.
(iii) The Borrower agrees to pay concurrently with each
issuance, negotiation, drawing, or amendment of each Letter of Credit, to the
Issuing Bank for the sole account of the Issuing Bank, issuance, negotiation,
drawing and amendment fees and other standard costs and charges in the amounts
set forth from time to time as the Issuing Bank's published scheduled fees for
such services.
Section 2.07. Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance made by each Bank from the date of such Advance
until such principal amount shall be paid in full, at the following rates per
annum:
(a) Reference Rate Advances. If such Advance is a Reference Rate
Advance, a rate per annum equal at all times to the Adjusted Reference Rate in
effect from time to time plus the Applicable Margin in effect from time to time,
payable in arrears on the last day of each March, June, September and December
and on the date such Reference Rate Advance shall be paid in full, provided that
upon the occurrence and during the continuance of any Event of Default, such
Advance shall bear interest at a rate per annum equal at all times to the
Adjusted Reference Rate in effect from time to time plus the Applicable Margin
plus 2.00% per annum, payable on demand.
(b) Eurodollar Rate Advances. If such Advance is a Eurodollar Rate
Advance, a rate per annum equal at all times during the Interest Period for such
Advance to the Eurodollar Rate for such Interest Period plus the Applicable
Margin in effect from time to time, payable on the last day of such Interest
Period, and, in the case of six-month Interest Periods, on the day which occurs
during such Interest Period three months from the first day of such Interest
Period, provided that upon the occurrence and during the continuance of any
Event of Default, such Advance shall bear interest at a rate per annum equal at
all times during the Interest Period
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for such Advance to the Eurodollar Rate for such Interest Period plus the
Applicable Margin plus 2.00% per annum, payable on demand.
(c) Additional Interest on Eurodollar Rate Advances. The Borrower
shall pay to each Bank, so long as any such Bank shall be required under
regulations of the Federal Reserve Board to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Bank, from the effective date of such Advance until such
principal amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (i) the Eurodollar Rate for the
Interest Period for such Advance from (ii) the rate obtained by dividing such
Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage of such Bank for such Interest Period, payable on each date on which
interest is payable on such Advance. Such additional interest payable to any
Bank shall be determined by such Bank and notified to the Borrower through the
Administrative Agent (such notice to include the calculation of such additional
interest, which calculation shall be conclusive in the absence of manifest
error).
(d) Usury Recapture.
(i) If, with respect to any Bank, the effective rate of
interest contracted for under the Credit Documents, including the stated rates
of interest and fees contracted for hereunder and any other amounts contracted
for under the Credit Documents which are deemed to be interest, at any time
exceeds the Maximum Rate, then the outstanding principal amount of the loans
made by such Bank hereunder shall bear interest at a rate which would make the
effective rate of interest for such Bank under the Credit Documents equal the
Maximum Rate until the difference between the amounts which would have been due
at the stated rates and the amounts which were due at the Maximum Rate (the
"Lost Interest") has been recaptured by such Bank.
(ii) If, when the loans made hereunder are repaid in full, the
Lost Interest has not been fully recaptured by such Bank pursuant to the
preceding paragraph, then, to the extent permitted by law, for the loans made
hereunder by such Bank the interest rates charged under Section 2.07 hereunder
shall be retroactively increased such that the effective rate of interest under
the Credit Documents was at the Maximum Rate since the effectiveness of this
Agreement to the extent necessary to recapture the Lost Interest not recaptured
pursuant to the preceding sentence and, to the extent allowed by law, the
Borrower shall pay to such Bank the amount of the Lost Interest remaining to be
recaptured by such Bank.
(iii) Notwithstanding the foregoing or any other term in this
Agreement and the Credit Documents to the contrary, it is the intention of each
Bank and the Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Bank contracts for, charges, or receives any consideration
which constitutes interest in excess of the Maximum Rate, then any such excess
shall be canceled automatically and, if previously paid, shall at such Bank's
option be applied to the outstanding amount of the loans made hereunder by such
Bank or be refunded to the Borrower.
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Section 2.08. Payments and Computations.
(a) Payment Procedures. All payments to be made by the Borrower
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff. The Borrower shall make each payment under this Agreement
and under the Notes not later than 2:00 p.m. on the day when due in Dollars to
the Administrative Agent at the Administrative Agent's Office in same day funds.
The Administrative Agent shall promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest or fees ratably (other than
amounts payable solely to the Administrative Agent, the Issuing Bank or a
specific Bank pursuant to Section 2.06(b), 2.06(c), 2.10, 2.11, 2.12, 2.13, or
9.04) in accordance with each Bank's Pro Rata Share to the Banks for the account
of their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Bank or the Issuing Bank to such Bank
for the account of its Applicable Lending Office, in each case to be allocated
between the Types of Advances and applied in the manner determined by the
Administrative Agent in its sole discretion.
(b) Computations. All computations of interest based on the
Reference Rate and of fees shall be made by the Administrative Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate and the Federal Funds Rate shall be made
by the Administrative Agent, on the basis of a year of 360 days, in each case
for the actual number of days (including the first day, but excluding the last
day) occurring in the period for which such interest or fees are payable. Each
determination by the Administrative Agent of an interest rate or fee shall be
conclusive and binding for all purposes, absent manifest error.
(c) Non-Business Day Payments. Whenever any payment shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be.
(d) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for
the account of the Banks or the Issuing Bank hereunder that the Borrower will
not make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Banks or the Issuing Bank, as the case may
be, the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Banks or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Bank or the Issuing Bank, in immediately available
funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation. A notice of the Administrative Agent to any Bank or
the Borrower with respect to any amount owing under this subsection (d) shall be
conclusive, absent manifest error.
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Section 2.09. Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances or Letter of Credit
Obligations made by it in excess of its Pro Rata Share of payments on account of
the Advances or Letter of Credit Obligations obtained by all the Banks, such
Bank shall notify the Administrative Agent and forthwith purchase from the other
Banks such participations in the Advances made by them or Letter of Credit
Obligations held by them as shall be necessary to cause such purchasing Bank to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Bank, such purchase from each Bank shall be rescinded and such Bank
shall repay to the purchasing Bank the purchase price to the extent of such
Bank's ratable share (according to the proportion of (a) the amount of the
participation sold by such Bank to the purchasing Bank as a result of such
excess payment to (b) the total amount of such excess payment) of such recovery,
together with an amount equal to such Bank's ratable share (according to the
proportion of (i) the amount of such Bank's required repayment to the purchasing
Bank to (ii) the total amount of all such required repayments to the purchasing
Bank) of any interest or other amount paid or payable by the purchasing Bank in
respect of the total amount so recovered. The Borrower agrees that any Bank so
purchasing a participation from another Bank pursuant to this Section 2.09 may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Bank were the direct creditor of the Borrower in the amount of such
participation.
Section 2.10. Breakage Costs. If (a) any payment of principal of any
Eurodollar Rate Advance is made other than on the last day of the Interest
Period for such Advance, whether as a result of any payment pursuant to Section
2.04, the acceleration of the maturity of the Notes pursuant to Article VII, or
for any other reason or (b) the Borrower fails to make a principal or interest
payment with respect to any Eurodollar Rate Advance on the date such payment is
due and payable, the Borrower shall, within 10 days of any written demand sent
by any Bank to the Borrower through the Administrative Agent (which demand shall
provide a statement explaining the amount and setting forth the computation of
any such loss or expense), pay to the Administrative Agent for the account of
such Bank any amounts required to compensate such Bank for any additional
losses, out-of-pocket costs or expenses which it may reasonably incur as a
result of such payment or nonpayment, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any Bank
to fund or maintain such Advance.
Section 2.11. Increased Costs.
(a) Eurodollar Rate Advances. If, due to either (i) the introduction
of or any change (other than any change by way of imposition or increase of
reserve requirements included in the Eurodollar Rate Reserve Percentage) in or
in the interpretation of any law or regulation occurring on or after the date of
this Agreement or (ii) the compliance with any guideline or request from any
central bank or other Governmental Person (whether or not having the force of
law), there shall be any increase occurring on or after the date of this
Agreement in the cost to any Bank of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances, then the Borrower shall from time-to-time,
upon demand by such Bank (with a copy of such demand to the Administrative
Agent), immediately pay to the Administrative Agent for the account of such Bank
additional amounts sufficient to compensate such Bank for such increased
-34-
cost; provided, that, before making any such demand, such Bank agrees to
promptly notify the Borrower and to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in its
reasonable judgment, be otherwise disadvantageous. A certificate as to the
amount of such increased cost and detailing the calculation of such cost
submitted to the Borrower and the Administrative Agent by such Bank shall be
conclusive and binding for all purposes, absent manifest error.
(b) Capital Adequacy. If any Bank or the Issuing Bank reasonably
determines that its required compliance with any law or regulation or any
guideline or request from any central bank or other Governmental Person (whether
or not having the force of law) affects or would affect the amount of capital
required or expected to be maintained by such Bank or the Issuing Bank or any
corporation controlling such Bank or the Issuing Bank and that the amount of the
capital is increased by or based upon the existence of such Bank's commitment to
lend or the Issuing Bank's commitment to issue the Letters of Credit and other
commitments of this type, then, upon 30 days' prior written notice by such Bank
or the Issuing Bank (with a copy of any such demand to the Administrative
Agent), the Borrower shall immediately pay to the Administrative Agent for the
account of such Bank or the Issuing Bank, as the case may be, from time-to-time
as specified by such Bank or the Issuing Bank, additional amounts sufficient to
compensate such Bank or the Issuing Bank, in light of the circumstances, to the
extent that such Bank or the Issuing Bank, as the case may be, reasonably
determines the increase in capital to be allocable to the existence of such
Bank's commitment to lend or the Issuing Bank's commitment to issue the Letters
of Credit under this Agreement. A certificate as to the amounts showing in
reasonable detail the calculation of the amounts submitted to the Borrower by
such Bank or the Issuing Bank shall be presumptively correct, absent manifest
error.
(c) Letters of Credit. If any change in any law or regulation or in
the interpretation thereof by any court or administrative or Governmental Person
charged with the administration thereof shall either (i) impose, modify, or deem
applicable any reserve, special deposit, or similar requirement against letters
of credit issued by, or assets held by, or deposits in or for the account of,
the Issuing Bank or (ii) impose on the Issuing Bank any other condition
regarding the provisions of this Agreement relating to the Letters of Credit or
any Letter of Credit Obligations, and the result of any event referred to in the
preceding clause (i) or (ii) shall be to increase the cost to the Issuing Bank
of issuing or maintaining any Letter of Credit (which increase in cost shall be
determined by the Issuing Bank's reasonable allocation of the aggregate of such
cost increases resulting from such event), then, upon demand by the Issuing
Bank, the Borrower shall pay to the Administrative Agent for the account of the
Issuing Bank, from time to time as specified by the Issuing Bank, additional
amounts which shall be sufficient to compensate the Issuing Bank for such
increased cost. A certificate as to such increased cost incurred by the Issuing
Bank, as a result of any event mentioned in clause (i) or (ii) above, and
detailing the calculation of such increased costs submitted by the Issuing Bank
to the Borrower, shall be conclusive and binding for all purposes, absent
manifest error.
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Section 2.12. Taxes.
(a) No Deduction for Certain Taxes. Any and all payments by the
Borrower shall be made, in accordance with Section 2.08, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank, the Issuing Bank and the Administrative
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction (any political subdivision of the jurisdiction) under the laws of
which such Bank, the Issuing Bank or the Administrative Agent (as the case may
be) is organized or maintains its Applicable Lending Office (all such income and
franchise taxes collectively referred to as "Excluded Taxes", and all such
taxes, levies, imposts, deductions, charges, withholdings and liabilities, other
than the Excluded Taxes being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable to any Bank, the Issuing Bank or the Administrative Agent, (i) the
sum payable shall be increased as may be necessary so that, after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.12), such Bank, the Issuing Bank or the Administrative
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made; (ii) the Borrower shall make such
deductions; and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law. In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, the Notes, or the
other Credit Documents (hereinafter referred to as "Other Taxes").
(b) Indemnification. THE BORROWER HEREBY INDEMNIFIES EACH BANK, THE
ISSUING BANK AND THE ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF TAXES OR OTHER
TAXES (INCLUDING, WITHOUT LIMITATION, ANY TAXES OR OTHER TAXES IMPOSED BY ANY
JURISDICTION ON AMOUNTS PAYABLE UNDER THIS SECTION 2.12) PAID BY SUCH BANK, THE
ISSUING BANK OR THE ADMINISTRATIVE AGENT, AS THE CASE MAY BE, AND ANY LIABILITY
ARISING THEREFROM OR WITH RESPECT THERETO. EACH PAYMENT REQUIRED TO BE MADE BY
THE BORROWER IN RESPECT OF THIS INDEMNIFICATION SHALL BE MADE TO THE
ADMINISTRATIVE AGENT FOR THE BENEFIT OF ANY PARTY CLAIMING SUCH INDEMNIFICATION
WITHIN 30 DAYS FROM THE DATE THE BORROWER RECEIVES WRITTEN DEMAND THEREFOR FROM
THE ADMINISTRATIVE AGENT ON BEHALF OF ITSELF AS ADMINISTRATIVE AGENT, THE
ISSUING BANK OR ANY SUCH BANK.
(c) Evidence of Tax Payments. Within 30 days after the date of any
payment of Taxes or Other Taxes, the Borrower will furnish to the Administrative
Agent upon request thereby, at its address referred to in Section 9.02, the
original or a certified copy of a receipt evidencing payment thereof. If no
Taxes or Other Taxes are payable in respect of any payment hereunder, the
Borrower will furnish to the Administrative Agent, at such address, a
certificate from each appropriate taxing authority, or an opinion of counsel
acceptable to the Administrative Agent, in either case stating that such payment
is exempt from or not subject to Taxes; provided, however, that such certificate
or opinion need only be given if (i) the Borrower makes any payment from an
account located outside the United States or (ii) the payment is made by a payor
that is not a United States Person. For purposes of this Section 2.12 the terms
"United States" and "United
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States Person" shall have the respective meanings set forth in Section 7701 of
the Code.
(d) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.12 shall survive the payment in full of
principal and interest hereunder.
(e) Foreign Bank Withholding Exemption. Each Bank and Issuing Bank
that is not incorporated under the laws of the United States of America or a
state thereof agrees that it shall deliver to the Borrower and the
Administrative Agent on the date of this Agreement or upon, and as a condition
to, the effectiveness of any Assignment and Assumption (i) two duly completed
copies of United States Internal Revenue Service Form W-8BEN or W-8ECI or
successor applicable form, as the case may be, certifying in each case that such
Bank is entitled to receive payments under this Agreement and the Notes payable
to it, without deduction or withholding of any United States federal income
taxes, (ii) if applicable, an Internal Revenue Service Form W-8 or W-9 or
successor applicable form, as the case may be, to establish an exemption from
United States backup withholding tax, and (iii) any other governmental forms
which are necessary or required under an applicable tax treaty or otherwise by
law to reduce or eliminate any withholding tax, which have been reasonably
requested by the Borrower. Each Bank which delivers to the Borrower and the
Administrative Agent a Form W-8BEN or W-8ECI and Form W-8 or W-9 pursuant to the
next preceding sentence further undertakes to deliver to the Borrower and the
Administrative Agent two further copies of the said letter and Form W-8BEN or
W-8ECI and Form W-8 or W-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such letter or
form expires or becomes obsolete or after the occurrence of any event requiring
a change in the most recent letter and form previously delivered by it to the
Borrower and the Administrative Agent, and such extensions or renewals thereof
as may reasonably be requested by the Borrower and the Administrative Agent
certifying in the case of a Form W-8BEN or W-8ECI that such Bank is entitled to
receive payments under this Agreement without deduction or withholding of any
United States federal income taxes. If an event (including without limitation
any change in treaty, law or regulation) has occurred prior to the date on which
any delivery required by the preceding sentence would otherwise be required
which renders all such forms inapplicable or which would prevent any Bank from
duly completing and delivering any such letter or form with respect to it and
such Bank advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax, and in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax, such Bank shall not be
required to deliver such letter or forms. The Borrower shall withhold tax at the
rate and in the manner required by the laws of the United States with respect to
payments made to a Bank failing to timely provide the requisite Internal Revenue
Service forms.
(f) Change of Applicable Lending Office. Any Bank claiming any
additional amount payable pursuant to this Section 2.12 shall use its reasonable
best efforts (consistent with its internal policy and applicable Governmental
Rules) to change the jurisdiction of its lending office if such a change would
avoid the need for, or reduce the amount of, any such additional amount that may
thereafter accrue and would not, in the reasonable judgment of such Bank, be
materially disadvantageous to such Bank.
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(g) Repayment under Certain Circumstances. Each Bank (and the
Administrative Agent with respect to payments to the Administrative Agent for
its own account) will (i) take all reasonable actions by all usual means to
maintain an exemption, if any, available to it from United States tax
withholding (whether available by treaty, by existing administrative waiver or
by virtue of the location of such Bank's lending office) and (ii) otherwise
cooperate with the Borrower to minimize amounts payable by the Borrower under
this Section 2.12; provided, however, that neither any Bank nor the
Administrative Agent shall be obligated by reason of this Section 2.12(g) to
contest the payment of any Taxes or Other Taxes, to disclose any information
regarding its tax affairs or tax computations or to reorder its tax or other
affairs. Subject to the foregoing, to the extent that the Borrower pays any
amount pursuant to this Section 2.12 and such Bank or the Administrative Agent
receives a refund of any or all of such amount, such refund shall be applied to
reduce any amounts then due and owing under this Agreement or, to the extent
that no amounts are then due and owing under this Agreement, paid over to the
Borrower.
(h) Exclusions. Notwithstanding anything contained herein to the
contrary, the Borrower shall not be required to make any payment to any Bank
under this Section 2.12 with respect to any Taxes or Other Taxes that (i) are
attributable to such Bank's failure to comply with the requirements of this
Section 2.12, (ii) are United States taxes imposed on amounts payable to such
Bank at the time the Bank became a party to this Agreement or (iii) are United
States taxes imposed as a result of an event occurring after the date on which
such Bank became a Bank, other than a change in any applicable Governmental
Rule.
Section 2.13. Letters of Credit.
(a) Commitment.
(i) The parties hereto acknowledge that on and after the
Effective Date the Existing Letters of Credit shall be Letters of Credit issued
by the Issuing Bank pursuant to this Agreement. From time to time from the
Effective Date until the Termination Date, at the request of the Borrower, the
Issuing Bank shall, in reliance upon the agreements of the Banks set forth in
this Section 2.13 on the terms and conditions hereinafter set forth, issue,
increase, or extend the expiration date of Letters of Credit for the account of
the Borrower or any Subsidiary on any Business Day; provided however, that for
any Letter of Credit issued for the account of any Subsidiary, the Borrower will
be joint and severally liable for the reimbursement obligations of such
Subsidiary under such Letter of Credit as provided in subsection (h) below.
(ii) No Letter of Credit shall be issued, increased, or
extended:
(A) unless such issuance, increase, or extension would
not cause the Letter of Credit Exposure to exceed the lesser of (i) $300,000,000
and (ii) the aggregate Commitments less the aggregate outstanding principal
amount of all Advances;
(B) unless such Letter of Credit has an Expiration Date
not later than the earlier of (a) 24 months after the date of issuance thereof
and (b) November 1, 2011;
(C) unless such Letter of Credit Documents are in form
and substance reasonably acceptable to the Issuing Bank in its sole discretion;
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(D) unless such Letter of Credit is either a Performance
Letter of Credit or a Financial Letter of Credit; and
(E) unless the Borrower has delivered to the Issuing
Bank a completed and executed Letter of Credit Application
(iii) The Issuing Bank shall not be under any obligation to
issue any Letter of Credit:
(A) if any order, judgment or decree of any Governmental
Person or arbitrator shall by its terms purport to enjoin or restrain the
Issuing Bank from issuing such Letter of Credit, or any Law applicable to the
Issuing Bank or any request or directive (whether or not having the force of
law) from any Governmental Person with jurisdiction over the Issuing Bank shall
prohibit, or request that the Issuing Bank refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall impose upon
the Issuing Bank with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the Issuing Bank is not otherwise compensated
hereunder) not in effect on the Effective Date, or shall impose upon the Issuing
Bank any unreimbursed loss, cost or expense which was not applicable on the
Effective Date and which the Issuing Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(B) if the issuance of such Letter of Credit would
violate one or more policies of the Issuing Bank; and
(C) if a default of any Bank's obligations to fund under
Section 2.13(c) exists or any Bank is at such time a Default Lender hereunder,
unless the Issuing Bank has entered into satisfactory arrangements with the
Borrower or such Bank to eliminate the Issuing Bank's risk with respect to such
Bank.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Borrower delivered to the Issuing Bank
(with a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of the
Borrower. Such Letter of Credit Application must be received by the Issuing Bank
and the Administrative Agent not later than 1:00 p.m. at least two Business Days
(or such later date and time as the Administrative Agent and the Issuing Bank
may agree in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the case of
a request for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the Issuing Bank:
(A) the proposed issuance date of the requested Letter of Credit (which shall be
a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to be presented
by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the Issuing Bank may reasonably
require. In the case of a request for an amendment of any outstanding Letter of
Credit, such
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Letter of Credit Application shall specify in form and detail satisfactory to
the Issuing Bank (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the Issuing Bank may
reasonably require. Additionally, the Borrower shall furnish to the Issuing Bank
and the Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Letter of
Credit Documents, as the Issuing Bank or the Administrative Agent may reasonably
require.
(ii) Promptly after receipt of any Letter of Credit
Application, the Issuing Bank will confirm with the Administrative Agent (in
writing or by facsimile promptly confirmed in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower
and, if not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received written notice from any Bank, the
Administrative Agent, or the Borrower, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit, that
one or more applicable conditions contained in Article III shall not then be
satisfied, then, subject to the terms and conditions hereof, the Issuing Bank
shall, on the requested date, issue a Letter of Credit for the account of the
Borrower (or the applicable Subsidiary) or enter into the applicable amendment,
as the case may be, in each case in accordance with the Issuing Bank's usual and
customary business practices. Immediately upon the issuance of each Letter of
Credit, each Bank shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Bank a risk participation in such Letter of
Credit in an amount equal to the product of such Bank's Pro Rata Share times the
amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of
Credit Application, the Issuing Bank may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic extension provisions (each,
an "Auto-Extension Letter of Credit"); provided that any such Auto-Extension
Letter of Credit must permit the Issuing Bank to prevent any such extension at
least once in each twelve-month period (commencing with the date of issuance of
such Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "Non-Extension Notice Date") in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Upon the
issuance of an Auto-Extension Letter of Credit, the Issuing Bank shall promptly
notify the Administrative Agent of the agreed upon Non-Extension Notice Date
with respect to such Letter of Credit. The Administrative Agent shall notify the
Banks of the agreed upon Non-Extension Notice Date with respect to such Letter
of Credit as a part of its regular quarterly report to the Banks concerning
Letters of Credit. Unless otherwise directed by the Issuing Bank, the Borrower
shall not be required to make a specific request to the Issuing Bank for any
such extension. Once an Auto-Extension Letter of Credit has been issued, the
Banks shall be deemed to have authorized (but may not require) the Issuing Bank
to permit the extension of such Letter of Credit at any time to an expiry date
not later than November 1, 2011; provided, however, that the Issuing Bank shall
not permit any such extension if (A) the Issuing Bank has determined that it
would not be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section 2.13(a) or
otherwise), or (B) it has received notice (which may be in writing or by
facsimile promptly confirmed in writing) on or before the day that is five
Business Days before the Non-Extension Notice Date (1) from the Administrative
Agent that the Majority Banks have elected not to permit such
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extension or (2) from the Administrative Agent, any Bank or the Borrower that
one or more of the applicable conditions specified in Section 3.02 is not then
satisfied, and in each such case directing the Issuing Bank not to permit such
extension.
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the Issuing Bank will also deliver to the Borrower
and the Administrative Agent, a true and complete copy of such Letter of Credit
or amendment. As a part of its regular quarterly report to the Banks concerning
Letters of Credit, the Administrative Agent shall deliver to the Banks notice
that (x) such Letter of Credit or amendment to Letter of Credit has been
delivered, (y) the amount of such Letter of Credit, and (z) the Expiration Date
of such Letter of Credit.
(v) All references in this Section 2.13 to times of day shall
be references to (A) Eastern time (daylight or standard, as applicable) if Bank
of America is the applicable Issuing Bank or (B) Pacific time (daylight or
standard, as applicable) if UBOC is the applicable Issuing Bank.
(c) Drawings and Reimbursements, Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the Issuing Bank shall
notify the Borrower and the Administrative Agent thereof. Not later than 11:00
a.m. on the date of any payment by the Issuing Bank under a Letter of Credit
(each such date, an "Honor Date"), the Borrower shall reimburse the Issuing Bank
through the Administrative Agent in an amount equal to the amount of such
drawing. If the Borrower fails to so reimburse the Issuing Bank by such time,
the Administrative Agent shall promptly notify each Bank of the Honor Date, the
amount of the unreimbursed drawing (the "Unreimbursed Amount"), and the amount
of such Bank's Pro Rata Share thereof. In such event, the Borrower shall be
deemed to have requested a Borrowing of Reference Rate Advances to be disbursed
on the Honor Date in an amount equal to the Unreimbursed Amount, without regard
to the minimum and multiples specified in Section 2.01 for the principal amount
of Reference Rate Advances, but subject to the amount of the unutilized portion
of the aggregate Commitments and the conditions set forth in Section 3.02 (other
than the delivery of a Notice of Borrowing). Any notice given by the Issuing
Bank or the Administrative Agent pursuant to this Section 2.13(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the lack
of such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each Bank shall upon any notice pursuant to Section
2.13(c)(i) make funds available to the Administrative Agent for the account of
the Issuing Bank at the Administrative Agent's Office in an amount equal to its
Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.13(c)(iii), each Bank that so makes funds
available shall be deemed to have made a Reference Rate Advance to the Borrower
in such amount. The Administrative Agent shall remit the funds so received to
the Issuing Bank.
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(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Borrowing of Reference Rate Advances because the
conditions set forth in Section 3.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the Issuing Bank an
L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Adjusted Reference Rate in effect
from time to time plus the Applicable Margin plus 2.00% per annum. In such
event, each Bank's payment to the Administrative Agent for the account of the
Issuing Bank pursuant to Section 2.13(c)(ii) shall be deemed payment in respect
of its participation in such L/C Borrowing and shall constitute an L/C Advance
from such Bank in satisfaction of its participation obligation under this
Section 2.13.
(iv) Until each Bank funds its Advance or L/C Advance pursuant
to this Section 2.13(c) to reimburse the Issuing Bank for any amount drawn under
any Letter of Credit, interest in respect of such Bank's Pro Rata Share of such
amount shall be solely for the account of the Issuing Bank.
(v) Each Bank's obligation to make Advances or L/C Advances to
reimburse the Issuing Bank for amounts drawn under Letters of Credit, as
contemplated by this Section 2.13(c), shall be absolute and unconditional and
shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Bank may have
against the Issuing Bank, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing.
No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the Issuing Bank for the amount of any
payment made by the Issuing Bank under any Letter of Credit, together with
interest as provided herein.
(vi) If any Bank fails to make available to the Administrative
Agent for the account of the Issuing Bank any amount required to be paid by such
Bank pursuant to the foregoing provisions of this Section 2.13(c) by the time
specified in Section 2.13(c)(ii), the Issuing Bank shall be entitled to recover
from such Bank (acting through the Administrative Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the Issuing Bank at a
rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Issuing Bank in accordance with banking industry rules on
interbank compensation. A certificate of the Issuing Bank submitted to any Bank
(through the Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the Issuing Bank has made a payment
under any Letter of Credit and has received from any Bank such Bank's L/C
Advance in respect of such payment in accordance with Section 2.13(c), if the
Administrative Agent receives for the account of the Issuing Bank any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly
from the Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will distribute
to such Bank its Pro Rata Share thereof (appropriately adjusted, in the case of
interest payments, to
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reflect the period of time during which such Bank's L/C Advance was outstanding)
in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of the Issuing Bank pursuant to Section 2.13(c)(i) is required to be
returned under any of the circumstances described in Section 9.11 (including
pursuant to any settlement entered into by the Issuing Bank in its discretion),
each Bank shall pay to the Administrative Agent for the account of the Issuing
Bank its Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Bank, at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Banks under this clause shall
survive the payment in full of the Obligations and the termination of this
Agreement.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse the Issuing Bank for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Credit Document;
(ii) the existence of any claim, counterclaim, setoff, defense
or other right that the Borrower or any Subsidiary may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any Person for
whom any such beneficiary or any such transferee may be acting), the Issuing
Bank or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the Issuing Bank under such Letter of
Credit against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
Issuing Bank under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower or
any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with
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the Borrower's instructions or other irregularity, the Borrower will immediately
notify the Issuing Bank. To the extent permitted by applicable law, the Borrower
shall be conclusively deemed to have waived any such claim against the Issuing
Bank and its correspondents unless such notice is given as aforesaid.
(f) Role of Issuing Bank. Each Bank and the Borrower agree that, in
paying any drawing under a Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the Issuing Bank,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the Issuing Bank shall be liable to
any Bank for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Banks or the Majority Banks, as applicable;
(ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Document. The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the Issuing Bank, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the Issuing Bank shall
be liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.13(e); provided, however, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the Issuing
Bank, and the Issuing Bank may be liable to the Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower directly, or indirectly by a Subsidiary, which
the Borrower proves were caused by the Issuing Bank's willful misconduct or
gross negligence or the Issuing Bank's willful failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the Issuing Bank shall not be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. If, as of 5 days prior to the Termination Date,
any Letter of Credit Obligation for any reason remains outstanding, the Borrower
shall, in each case, immediately Cash Collateralize the then outstanding amount
of all Letter of Credit Obligations. Sections 2.04(b), 7.02 and 7.03 set forth
certain additional requirements to deliver Cash Collateral hereunder. For
purposes of this Section 2.13, Sections 2.04, 7.02 and 7.03, "Cash
Collateralize" means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the Issuing Bank and the Banks, as collateral for the
Letter of Credit Obligations, cash or deposit account balances pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
the Issuing Bank (which documents are hereby consented to by the Banks).
Derivatives of such term have corresponding meanings. The Borrower hereby grants
to
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the Administrative Agent, for the benefit of the Issuing Bank and the Banks, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.
Notwithstanding anything herein to the contrary, provided that the Borrower has
Cash Collateralized the then outstanding amount of all Letter of Credit
Obligations with respect to each Letter of Credit with an expiration date after
the Termination Date in accordance with this Section 2.15(g), each Bank's
participation in the Letter of Credit Obligations shall be released as of the
Termination Date.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed
by the Issuing Bank and the Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit), (i)
the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.
(i) Conflict with Letter of Credit Documents. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Document, the terms hereof shall control.
(j) Letters of Credit Issued for Subsidiaries. Notwithstanding that
a Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the Issuing Bank hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries. Any Letter of Credit Application submitted by
the Borrower to the Issuing Bank requesting the issuance, increase, extension,
or other amendment of any Letter of Credit for the account of any Person other
than the Borrower shall constitute a representation and warranty by the Borrower
that such Person is a Subsidiary of the Borrower. The Issuing Bank shall be
entitled to rely upon, and shall not incur any liability for relying upon, such
representation and warranty of the Borrower.
Section 2.14. Replacement of Banks. If any Bank requests compensation
under Section 2.11, or if the Borrower is required to pay any additional amount
to any Bank or any Governmental Person for the account of any Bank pursuant to
Section 2.12, or if any Bank is a Defaulting Bank or a Non-Consenting Bank (as
defined below in this Section 2.14), then the Borrower may, at its sole expense
and effort, upon notice to such Bank and the Administrative Agent, require such
Bank to assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in, and consents required by, Section 9.06), all of
its interests, rights and obligations under this Agreement and the related
Credit Documents to an assignee that shall assume such obligations (which
assignee may be another Bank, if a Bank accepts such assignment), provided that:
(a) the Assignee shall have paid to the Administrative Agent the
assignment fee specified in Section 9.06(a);
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(b) such Bank shall have received payment of an amount equal to the
outstanding principal of its Advances and L/C Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under
the other Credit Documents (including any amounts under Section 2.11 and 2.12)
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 2.11 or payments required to be made pursuant to
Section 2.12, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Governmental
Rules.
A Bank shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Bank or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply. In the event that (i) the Borrower or the Administrative Agent
requests that the Banks consent to a waiver of any provision of the Credit
Documents or agree to any amendment thereto, (ii) such consent or amendment
requires the agreement of all of the Banks in accordance with the terms of
Section 9.01 and (iii) at least the Majority Banks have agreed to such consent
or amendment, then any Bank that does not agree to such consent or amendment
shall be a "Non-Consenting Bank".
Section 2.15. Increase in Commitments.
(a) Request for Increase. Provided there exists no Default, upon
notice to the Administrative Agent (which shall promptly notify the Banks), the
Borrower may from time to time, request an increase in the aggregate Commitments
by an amount (for all such requests) not exceeding $300,000,000; provided that
(i) any such request for an increase shall be in a minimum amount of
$50,000,000, and (ii) the Borrower may make a maximum of six such requests. At
the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Bank is
requested to respond (which shall in no event be less than ten Business Days
from the date of delivery of such notice to the Banks).
(b) Bank Elections to Increase. Each Bank shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Pro Rata Share of such requested increase. Any Bank not
responding within such time period shall be deemed to have declined to increase
its Commitment.
(c) Notification by Administrative Agent; Additional Banks. The
Administrative Agent shall notify the Borrower of the Banks' responses to each
request made hereunder. To achieve the full amount of a requested increase and
subject to the approval of the Administrative Agent and the Issuing Bank (which
approvals shall not be unreasonably withheld), the Borrower may also invite
additional Eligible Assignees to become Banks pursuant to a joinder agreement in
form and substance satisfactory to the Administrative Agent and its counsel.
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(d) Effective Date and Allocations. If the aggregate Commitments are
increased in accordance with this Section, the Administrative Agent and the
Borrower shall determine the effective date (the "Increase Effective Date") and
the final allocation of such increase. The Administrative Agent shall promptly
notify the Borrower and the Banks of the final allocation of such increase and
the Increase Effective Date.
(e) Conditions to Effectiveness of Increase. As a condition
precedent to such increase, the Borrower shall deliver to the Administrative
Agent a certificate of the Borrower and each Guarantor dated as of the Increase
Effective Date (in sufficient copies for each Bank) signed by a Responsible
Officer of such Person (i) certifying and attaching the resolutions adopted by
such Person approving or consenting to such increase, and (ii) in the case of
the Borrower, certifying that, before and after giving effect to such increase,
(A) the representations and warranties contained in Article IV and the other
Credit Documents are true and correct on and as of the Increase Effective Date,
except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Section 2.15, the representations and
warranties contained in Section 4.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (c) and (d), respectively, of Section
5.01, and (B) no Default exists. The Borrower shall prepay (but may do so with
proceeds of Advances from any effective increase) any Advances outstanding on
the Increase Effective Date (and pay any additional amounts required pursuant to
Section 2.10) to the extent necessary to keep the outstanding Advances ratable
with any revised Pro Rata Shares arising from any nonratable increase in the
Commitments under this Section.
(f) Conflicting Provisions. This Section shall supersede any
provisions in Sections 2.09 or 9.01 to the contrary.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. Conditions Precedent to Initial Advances. The obligation of
each Bank to make its initial Advance and for the Existing Letters of Credit to
be deemed Letters of Credit issued by the Issuing Bank hereunder is subject to
the conditions precedent that:
(a) Documentation. On or before the day on which the initial
Borrowing is made or the initial Letters of Credit are issued, the
Administrative Agent shall have received the following duly executed by all the
parties thereto, in form and substance reasonably satisfactory to the
Administrative Agent and each of the Banks, and where applicable, in sufficient
copies for each Bank:
(i) this Agreement and all its attached Exhibits and
Schedules;
(ii) a Note executed by the Borrower payable to the order of
each Bank requesting a Note in the amount of its Commitment;
(iii) the Intercreditor Agreement;
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(iv) the Security Agreements and all their attached Exhibits
and Schedules;
(v) the Guaranties;
(vi) appropriate UCC-1 or UCC-3 Financing Statements covering
the Collateral acquired in connection with the El Paso Acquisition for filing
with the appropriate authorities;
(vii) a Notice of Borrowing with respect to the initial
Borrowing, if any, and a Letter of Credit Application for each Letter of Credit
to be issued on the Effective Date, if any;
(viii) a certificate dated as of the Effective Date from a
Responsible Officer stating that (a) all representations and warranties of the
Borrower set forth in this Agreement and each of the other Credit Documents to
which it is a party are true and correct in all material respects; (b) no
Default has occurred and is continuing; and (c) the conditions in this Section
3.01 have been met;
(ix) a certificate dated as of the Effective Date from the
Chief Financial Officer of the Borrower as to Solvency of the Borrower and its
Subsidiaries on a consolidated basis after giving effect to the El Paso
Acquisition;
(x) certificate(s) of insurance naming the Collateral Agent as
loss payee or additional insured evidencing insurance which meets the
requirements of this Agreement and the Security Documents and which is in
amount, form and substance and from an issuer satisfactory to the Administrative
Agent;
(xi) a certificate of the secretary or assistant secretary of
the Ultimate General Partner certifying as of the Effective Date (a) the
existence of the Borrower and the General Partner, (b) the Borrower Partnership
Agreement, (c) the General Partner's organizational documents, (d) the Ultimate
General Partner's organizational documents, (e) the resolutions of the Ultimate
General Partner approving this Agreement, the Notes, and the other Credit
Documents and the related transactions, and (f) all documents evidencing other
necessary corporate, partnership or limited liability company action and
governmental approvals, if any, with respect to this Agreement and the other
Credit Documents executed and delivered on or before the Effective Date;
(xii) a certificate of a Secretary or an Assistant Secretary
of the Ultimate General Partner certifying the names and true signatures of the
officers of the Ultimate General Partner authorized to sign this Agreement, the
Notice of Borrowing and the other Credit Documents on behalf of the Borrower;
(xiii) certificates of the secretary or assistant secretary of
each of the Guarantors certifying as of the Effective Date (a) the
organizational documents of such Guarantor, (b) the resolutions of the governing
body of such Guarantor approving this Agreement, the Guaranty, and the other
Credit Documents to which such Guarantor is a party and the related
transactions, and (c) all other documents evidencing other necessary corporate,
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partnership or limited liability company action and governmental approvals, if
any, with respect to this Agreement, the Guaranty, and the other Credit
Documents to which such Guarantor is a party executed and delivered on or before
the Effective Date;
(xiv) certificates of a Secretary or an Assistant Secretary of
each Guarantor certifying the names and true signatures of the officers of such
Guarantor authorized to sign this Agreement, the Guaranty and the other Credit
Documents to which such Guarantor is a party on behalf of such Guarantor;
(xv) certificates of good standing, existence and authority
for the Borrower, the General Partner, the Ultimate General Partner and each of
the Guarantors from each of the states in which the Borrower, the General
Partner, the Ultimate General Partner and each of the Guarantors is either
organized or is qualified to do business as a foreign entity;
(xvi) results of lien, tax and judgment searches of the UCC
Records of the Secretary of State and applicable counties of the States of
Texas, Alabama, Delaware, Louisiana, Mississippi, New Mexico and Oklahoma from a
source acceptable to the Administrative Agent and reflecting no Liens against
any of the Collateral as to which perfection of a Lien is accomplished by the
filing of a financing statement other than in favor of the Administrative Agent
and Liens permitted by Section 6.01;
(xvii) a favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., outside
Texas counsel to the Borrower and the Guarantors;
(xviii) a favorable opinion of Taylor, Porter, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, outside Louisiana counsel to the Borrower, Crosstex LIG, LLC, Crosstex
LIG Liquids, LLC, and Crosstex Tuscaloosa, LLC;
(xix) an executed copy of an amendment to the Note Agreement
in form and substance satisfactory to the Administrative Agent, permitting the
transactions contemplated hereby and by the other Credit Documents (the
"Amendment to Note Agreement");
(xx) copies of the El Paso Purchase and Sale Agreement
together with the exhibits and schedules thereto certified by a Responsible
Officer as being true and correct copies of such documents as of the date
hereof; and
(xxi) such other documents, governmental certificates,
agreements and lien searches as the Administrative Agent may reasonably request.
(b) No Material Adverse Effect. Since December 31, 2004, there shall
not have occurred (i) any event, development, or circumstance that has caused or
could reasonably be expected to cause a material adverse effect on (x) the
condition (financial or otherwise), results of operation, assets, liabilities,
management, prospects or value of the Borrower and its Subsidiaries, taken as a
whole, (y) the validity or enforceability of this Agreement or any of the Credit
Documents or (z) the rights and remedies of the Administrative Agent or the
Banks under this Agreement or any of the Credit Documents, (ii) any event,
development, or circumstance that has caused or could reasonably be expected to
cause a material adverse condition or material adverse change that calls into
question in any material respect the Projections (as defined below)
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or any of the material assumptions on which such Projections were prepared, or
(iii) any change, effect, event or occurrence with respect to the financial
condition, properties, assets or operations of the El Paso Acquired Companies
that is material and adverse to the El Paso Acquired Companies, taken as a
whole, provided that in determining whether such a change, effect, event or
occurrence has occurred, the following shall not be considered: changes,
effects, events and occurrences relating to (A) the natural gas pipeline,
treating and processing industry generally (including the price of natural gas
and the costs associated with the drilling and/or production of natural gas),
(B) any general market, economic, financial or political conditions, or outbreak
or hostilities or war, in the United States, or (C) the transactions
contemplated by the El Paso Purchase and Sale Agreement; provided, however, that
to be excluded under subsection (B) above, such condition may not
disproportionately affect, as compared to others in such industry, any of the El
Paso Acquired Companies, or their respective businesses, assets, properties,
results of operation or condition (financial or otherwise). Neither the
Administrative Agent nor the Banks shall have become aware after August 27, 2005
of any information or other matter affecting the Borrower, the El Paso
Acquisition or the transactions contemplated by this Agreement that is
inconsistent in a material and adverse manner with any such information or other
matter disclosed in writing to the Banks prior to the date hereof.
(c) No Default. No Default shall have occurred and be continuing or
would result from the making of the initial Borrowing or application of the
proceeds therefrom.
(d) Representations and Warranties. The representations and
warranties of the Borrower and the Guarantors contained in Article IV hereof and
in each of the other Credit Documents executed and delivered on or before the
Effective Date shall be true and correct in all material respects on and as of
the Effective Date both before and after giving effect to the initial Borrowing
and to the application of the proceeds from the initial Borrowing, as though
made on and as of such date.
(e) No Material Litigation. No action, suit, investigation or
proceeding pending or, to the knowledge of the Borrower, threatened in any court
or before any arbitrator or governmental authority that could reasonably be
expected to have a Material Adverse Effect.
(f) Payment of Fees and Expenses. The Borrower shall have paid the
fees required by Section 2.06 and all costs and expenses that have been invoiced
and are payable pursuant to Section 9.04.
(g) Title. The Administrative Agent shall be satisfied in its sole
discretion as to the status of the Borrower's or Guarantor's, as applicable,
title to the Borrower's and its Subsidiaries' Properties.
(h) Bank's Liens. The Collateral Agent shall have received
satisfactory evidence that the Liens granted to it under the Security Documents
are Acceptable Security Interests and that all actions or filings necessary to
protect, preserve and validly perfect such Liens have been made, taken or
obtained, as the case may be, and are in full force and effect.
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(i) Security Interests. The Collateral Agent shall be satisfied that
the Security Documents encumber substantially all of such real property
interests held by the Borrower and its Subsidiaries as the Collateral Agent may
require.
(j) Corporate Structure. The corporate and capital structure of the
Borrower shall be reasonably satisfactory to the Administrative Agent.
(k) Financial Information. The Administrative Agent shall have
received the most recently completed annual (or other audited) financial
statements of the Borrower and its Subsidiaries, interim financial statements of
the Borrower and its Subsidiaries dated the end of the most recent fiscal
quarter for which financial statements are available and financial projections
of the Borrower and its Subsidiaries for the fiscal years 2005 through 2010 and
incorporating the Advances provided for herein and the El Paso Acquisition (the
"Projections").
(l) Note Agreement. All of the conditions precedent to the
effectiveness of the Amendment to Note Agreement shall have been met or waived
on or prior to the Effective Date.
(m) Due Diligence. The Administrative Agent shall have completed a
due diligence investigation of the Borrower and its Subsidiaries in scope, and
with results, reasonably satisfactory to the Administrative Agent and shall have
been given such access to the management, records, books of account, contracts
and properties of the Borrower and its Subsidiaries and shall have received such
financial, business and other information regarding the Borrower and its
Subsidiaries and the El Paso Acquisition as the Administrative Agent shall have
reasonably requested, including, without limitation, information as to possible
contingent liabilities, tax matters, collective bargaining agreements and other
arrangements with employees, and the financial statements and Projections
referred to in Section 3.01(k).
(n) Equity Issuance Proceeds. Concurrently with the initial Advance
the Borrower shall receive Equity Issuance Proceeds in immediately available
funds in amount equal to at least $100,000,000.
(o) El Paso Acquisition.
(i) The terms and conditions of the El Paso Acquisition
Documents shall be in form and substance satisfactory to the Administrative
Agent and the Banks (it being agreed that the El Paso Acquisition Documents that
have been delivered to the Administrative Agent are satisfactory).
(ii) Except as otherwise disclosed in writing and acceptable
to the Administrative Agent, the El Paso Acquisition Documents shall be in full
force and effect and no material term or condition thereof shall have been
amended, modified or waived in writing after the execution thereof, unless such
amendment, modification or waiver could not reasonably be expected to be
materially adverse to the interests of the Borrower or the Banks.
(iii) The El Paso Acquisition shall, simultaneously with the
making of the initial Advance, have been consummated by the Borrower, and all
other conditions to the El Paso Acquisition as set forth in the El Paso
Acquisition Documents shall have been satisfied or
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waived in form and substance satisfactory to the Administrative Agent, unless
such waiver could not reasonably be expected to be materially adverse to the
interests of the Borrower or the Banks.
(p) Consents. The Borrower shall have received all necessary or, in
the discretion of the Arranger, advisable, third-party consents or agreements
required for the consummation of the El Paso Acquisition, including, without
limitation, any amendment, consent or agreement related to any ▇▇▇▇▇▇ Lease
Document entered into prior to or on the Effective Date, each of which shall be
in form and substance reasonably satisfactory to the Administrative Agent (each,
a "▇▇▇▇▇▇ Lease Document Amendment" and collectively, the "▇▇▇▇▇▇ Lease Document
Amendments").
(q) Hedging Arrangements. The Borrower and the Guarantors shall have
entered into Hydrocarbon Hedge Agreements with counterparties satisfactory to
the Administrative Agent and otherwise in form and substance satisfactory to,
and covering notional volumes and periods satisfactory to, the Administrative
Agent.
Without limiting the generality of the provisions of Section 2.02(e), for
purposes of determining compliance with the conditions specified in this Section
3.01, each Bank that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Bank unless the Administrative Agent shall have received
notice from such Bank prior to the proposed Effective Date specifying its
objection thereto.
Section 3.02. Conditions Precedent to All Borrowings. The obligation of
each Bank to make an Advance on the occasion of each subsequent Borrowing and of
the Issuing Bank to issue, increase, or extend any Letter of Credit shall be
subject to the further conditions precedent that on the date of such Borrowing
or the issuance, increase, or extension of such Letter of Credit the following
statements shall be true (and the giving of the applicable Notice of Borrowing
or Letter of Credit Application and the acceptance by the Borrower of the
proceeds of such Borrowing or the issuance, increase, or extension of such
Letter of Credit shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing or the issuance, increase, or extension of
such Letter of Credit, such statements are true):
(a) the representations and warranties made by the Borrower and the
Guarantors contained in Article IV hereof and in each of the other Credit
Documents are true and correct in all material respects on and as of the date of
such Borrowing, or the date of the issuance, increase, or extension of such
Letter of Credit, before and after giving effect to such Borrowing or to the
issuance, increase, or extension of such Letter of Credit and to the application
of the proceeds from such Borrowing, as though made on and as of such date,
other than any such representations or warranties that, by the their terms,
refer to a specific date, in which case as of such specific date; and
(b) no Default has occurred and is continuing or would result from
such Borrowing, from the application of the proceeds therefrom or from the
issuance, increase, or extension of such Letter of Credit.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows:
Section 4.01. Existence and Power. The Borrower (a) is a limited
partnership duly formed, validly existing and in good standing under the laws of
Delaware, (b) is duly qualified or licensed as a foreign limited partnership and
is in good standing in each jurisdiction in which it owns or leases property or
in which the conduct of its business requires it to so qualify or be licensed,
except to the extent that the failure to so qualify or be licensed could not
reasonably be expected to have a Material Adverse Effect, and (c) has all
requisite limited partnership power and authority to own or lease and operate
its properties and to carry on its business as now conducted and as proposed to
be conducted. Each Subsidiary (a) is duly organized and validly existing in good
standing under the laws of the jurisdiction in which it is organized, (b) is
duly qualified or licensed as a foreign entity and is in good standing in each
jurisdiction in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed, except to the extent that the
failure to so qualify or be licensed could not reasonably be expected to have a
Material Adverse Effect, and (c) has the corporate, partnership, limited
liability company, or similar power to own its respective property and to carry
on its respective business as now being conducted. The execution, delivery and
performance by each Guarantor of each Credit Document to which it is a party are
within such Guarantor's powers and have been duly authorized by all necessary
corporate, partnership or limited liability company action by the Guarantors.
Section 4.02. Authorization. The execution, delivery and performance by
the Borrower of this Agreement, each other Credit Document to which the Borrower
is or is to be a party, and the consummation of the transactions contemplated
hereby and thereby, are within the Borrower's legal powers, have been duly
authorized by all necessary partnership action by the Borrower and do not (a)
contravene the Borrower Partnership Agreement, (b) violate any applicable
Governmental Rule, the violation of which could reasonably be expected to have a
Material Adverse Effect, (c) conflict with or result in the breach of, or
constitute a default under, any loan agreement, indenture, mortgage, deed of
trust or lease, or any other contract or instrument binding on or affecting the
Borrower or any Subsidiary or any of their respective properties, the conflict,
breach or default of which could reasonably be expected to have a Material
Adverse Effect, or (d) result in or require the creation or imposition of any
Lien upon or with respect to any of the properties of the Borrower or any
Subsidiary, other than Liens permitted under this Agreement. Neither the
Borrower nor any Subsidiary is in violation of any such Governmental Rule or in
breach of any such contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument, the violation or breach of which could reasonably be
expected to have a Material Adverse Effect.
Section 4.03. Governmental Action, Etc. No Governmental Action, and no
authorization, approval or other action by, or notice to, any third party, is
required for (a) the ownership, operation and maintenance of the Borrower's or
its Subsidiaries' Properties, except for such Governmental Action,
authorizations, approvals, other actions and notices as have been duly obtained,
taken, given or made and are in full force and effect and with which the
Borrower
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and its Subsidiaries are in compliance in all material respects or which the
failure to have would not result in a Material Adverse Effect, (b) the due
execution, delivery or performance by the Borrower of this Agreement or any
other Credit Document to which the Borrower is or is to be a party or (c) the
consummation of the transactions contemplated hereby or thereby.
Section 4.04. Binding Effect. This Agreement has been, and each other
Credit Document to which the Borrower is or is to be a party when delivered
hereunder will be, duly executed and delivered by the Borrower. Assuming due
execution and delivery by the Banks, the Administrative Agent, the
Co-Syndication Agents and the Co-Documentation Agents, as applicable, this
Agreement is and the other Credit Documents to which the Borrower is or is to be
a party when delivered hereunder will be, legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforceability is considered in any proceeding in
law or in equity).
Section 4.05. Financial Statements. The Consolidated balance sheet of the
Borrower and its Subsidiaries as of December 31, 2004 and the related
Consolidated statements of operations, changes in partners' capital and cash
flow for the fiscal year then ended, certified by KPMG LLP and copies of which
have been delivered to the Banks, fairly present the Consolidated financial
condition of the Borrower as of such date and the results of the operations of
the Borrower for such period, all in accordance with GAAP consistently applied.
The unaudited consolidated balance sheet of the Borrower and its Subsidiaries
dated June 30, 2005, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for the fiscal quarter ended on
that date (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the
absence of footnotes and to normal year-end audit adjustments. Since December
31, 2004, no Material Adverse Effect has occurred. Neither the Borrower nor any
Subsidiary has any material contingent liability except as disclosed in such
balance sheet or the notes thereto.
Section 4.06. Other Information. No written information, exhibit or report
furnished by the Borrower or any Subsidiary to the Administrative Agent or any
Bank for use in connection with the transactions contemplated by the Credit
Documents, taken as a whole with other information, documents, certificates or
written statements furnished therewith, contains any material misstatement of
fact or omits to state a material fact necessary to make the statements
contained therein, in light of the circumstances in which made, not materially
misleading.
Section 4.07. Legal Proceedings. There is no action, suit, investigation,
litigation or proceeding affecting the Borrower or any Subsidiary pending or, to
the best knowledge of the Borrower, threatened before any Governmental Person,
referee or arbitrator that could reasonably be expected to have a Material
Adverse Effect.
Section 4.08. Subsidiaries. As of the Effective Date, the Borrower has no
Subsidiaries other than those listed in Schedule 4.08.
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Section 4.09. Trademarks, Etc. Each of the Borrower and its Subsidiaries
possesses, or can acquire on reasonable terms, all trademarks, trade names,
copyrights and licenses to conduct its business as now operated, other than
those which the failure to possess could not reasonably be expected to have a
Material Adverse Effect, without any known conflict with the valid trademarks,
trade names, copyrights or licenses of others which would be expected to have a
Material Adverse Effect.
Section 4.10. Fire, Etc. Since December 31, 2004, neither the business nor
the properties of the Borrower or any Subsidiary has been affected by any fire,
explosion, accident, strike, lockout or other labor dispute, or other casualty
(whether or not covered by insurance) that could reasonably be expected to have
a Material Adverse Effect.
Section 4.11. Burdensome Agreements. Neither the Borrower nor any
Subsidiary is in default under or with respect to any indenture, loan agreement,
credit agreement, lease or other agreement or instrument, or subject to any
restriction of its constituent documents, that could, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. No
Default has occurred and is continuing or would result from the consummation of
the transactions contemplated by this Agreement or any other Credit Document.
Section 4.12. Taxes. Each of the Borrower and its Subsidiaries has filed,
or there has been filed on its behalf, or an extension has been obtained for the
filing of, all federal, state and other material tax returns required to be
filed before the date of the making of this representation and warranty, and the
Borrower and each Subsidiary have paid all Federal, state and other material
taxes shown thereon to be due, including interest, additions to taxes and
penalties, or have provided adequate reserves in accordance with GAAP for the
payment thereof.
Section 4.13. Public Utility Holding Company Act; Natural Gas Act;
Investment Company Act. Neither the Borrower nor any Subsidiary is (a) a
"holding company" or a "subsidiary company" of a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, (b) subject to the
jurisdiction of the Federal Energy Regulatory Commission under the Natural Gas
Act of 1938 or (c) an "investment company," or an "affiliated person" of, or a
"promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940.
Section 4.14. Regulations T, U and X. No Advance or Letter of Credit will
be used to purchase or carry, or to extend credit to others for the purpose of
purchasing or carrying, any "margin stock" in violation of Regulations T, U or X
of the Board of Governors of the Federal Reserve System.
Section 4.15. Title to Properties, Etc. Each of the Borrower and its
Subsidiaries has good and indefeasible title to all real property and good and
valid title to all personal property described in the Borrower's filings
pursuant to the Securities Exchange Act of 1934, as amended, as owned by it and
its Subsidiaries, free and clear of all liens, claims, security interests, or
other encumbrances, except (1) as described, and subject to limitations
contained, in the Borrower's filings pursuant to the Securities Exchange Act of
1934, as amended, (2) such as do not materially interfere with the use of such
properties taken as a whole as they have been used in the past and are proposed
to be used in the future as described in the Borrower's filings pursuant to
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the Securities Exchange Act of 1934, as amended, except, in each case, for such
liens, security interests, claims and encumbrances permitted by Section 6.02.
Section 4.16. Employee Benefit Plans. Neither the Borrower nor any
Subsidiary has any, or has any liability under any previously existing,
employee-benefit plan of its own or maintained in common with one or more other
Persons, other than as set forth on Schedule 4.16.
Section 4.17. Environmental Compliance. Except as described in the
Borrower's filings pursuant to the Securities Exchange Act of 1934, the Borrower
and its Subsidiaries (i) are in compliance with any and all applicable
Environmental Laws, (ii) have received all permits required of them under
applicable Environmental Laws to conduct their respective businesses, (iii) are
in compliance with all terms and conditions of any such permit and (iv) do not
have any liability in connection with the release into the environment of any
Hazardous Materials, except where such noncompliance with Environmental Laws,
failure to receive required permits, failure to comply with the terms and
conditions of such permits or liability in connection with such releases would
not, individually or in the aggregate, have a Material Adverse Effect.
Section 4.18. Material Contracts. Neither the Borrower nor any Subsidiary
is a party to any contract for the purchase or sale of goods or services that,
if cancelled or terminated, would not be replaceable promptly by commercially
reasonable substitutes and the loss of which, if not so replaced, could
reasonably be expected to have a Material Adverse Effect.
Section 4.19. Ownership.
(a) The General Partner is the sole general partner of the Borrower
with, as of the date hereof, a 2% general partner interest in the Borrower. No
part of the partnership interests in the Borrower is subject to any Lien granted
by the General Partner or Crosstex Holdings, L.P., other than preferential
rights of the Partners under the Borrower Partnership Agreement.
(b) As of the date hereof, the equity interests in the Subsidiaries
are legally and beneficially owned by the Persons, and by such Persons in the
percentages, specified in Schedule 4.08. No part of such equity interests is
subject to any Lien, other than in favor of the Collateral Agent.
Section 4.20. Compliance with Laws. Each of the Borrower and each
Subsidiary is in compliance in all material respects with the requirements of
all Governmental Rules and all orders, writs, injunctions and decrees applicable
to it or to its properties, except in such instances in which (a) such
requirement of Governmental Rule or order, writ, injunction or decree is being
contested in good faith by appropriate proceedings diligently conducted or (b)
the failure to comply therewith, either individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
Section 4.21. Solvency. The Borrower is, together with its Subsidiaries on
a consolidated basis, Solvent.
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ARTICLE V
AFFIRMATIVE COVENANTS
So long as any amount under any Credit Document shall remain unpaid, any
Letter of Credit shall remain outstanding that has not been Cash Collateralized,
or any Bank shall have any Commitment hereunder, the Borrower agrees to comply
with the following covenants.
Section 5.01. Reporting Requirements. The Borrower will furnish to the
Administrative Agent and the Banks:
(a) [Intentionally omitted];
(b) [Intentionally omitted];
(c) Quarterly Financials. As soon as available and in any event
within 45 days after the end of each of the Borrower's first three fiscal
quarters of each fiscal year of the Borrower, an unaudited Consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such quarter and
unaudited Consolidated statements of operations, changes in partners' capital
and cash flows of the Borrower and its Subsidiaries for the period commencing at
the end of the preceding fiscal year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding figures for the
corresponding period of the preceding fiscal year, all in reasonable detail and
duly certified (subject to normal year-end audit adjustments and the absence of
footnotes) by the chief financial officer, chief accounting officer or Vice
President - Finance of the Ultimate General Partner as having been prepared in
accordance with GAAP, together with (i) a certificate of said officer stating
that no Default has occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the action that the
Borrower proposes to take with respect thereto and (ii) a schedule in reasonable
detail showing the computations used by such officer in determining, as of the
end of such fiscal quarter, compliance with the covenants contained in Sections
6.13 and 6.14;
(d) Audited Annual Financials. As soon as available and in any event
within 90 days after the end of each fiscal year of the Borrower, audited
Consolidated balance sheets of the Borrower and its Subsidiaries as of the end
of such fiscal year and audited Consolidated statements of operations, changes
in partners' capital and cash flows of the Borrower and its Subsidiaries for
such fiscal year, in each case certified without qualification by KPMG LLP or
other independent public accountants acceptable to the Administrative Agent,
together with (i) (A) a certificate of the chief financial officer, chief
accounting officer or Vice President - Finance of the Ultimate General Partner
stating that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and the action
that the Borrower proposes to take with respect thereto and (B) a schedule in
reasonable detail showing the computations used by such officer in determining,
as of the end of such fiscal year, compliance with the covenants contained in
Sections 6.13 and 6.14 and (ii) copies of any material accountant's letters
received by management in connection with such accounting firm's findings during
its audit of the financial records of the Borrower during, or in respect of,
such fiscal year;
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(e) Defaults. Forthwith upon the occurrence of any Default, a
certificate of an Responsible Officer setting forth the details thereof and the
action that the Borrower is taking or proposes to take with respect thereto;
(f) Litigation. Promptly after any Responsible Officer becoming
aware of the assertion or occurrence thereof, notice of any litigation, judicial
reference proceeding, arbitration proceeding or regulatory proceeding affecting
the Borrower or any Subsidiary or the property of the Borrower or any
Subsidiary, other than any such litigation or proceeding that, if adversely
determined, could not reasonably be expected to have a Material Adverse Effect.
(g) Environmental Proceedings. Promptly after the assertion or
occurrence thereof or any Responsible Officer becoming aware of the reasonable
likelihood thereof, notice of any Environmental Proceeding against the Borrower
or any Subsidiary, or of any noncompliance by the Borrower or any Subsidiary
with any Environmental Law or Environmental Permit, that could reasonably be
expected to have a Material Adverse Effect;
(h) SEC Filings. Promptly after the same are available, copies of
each annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Borrower, and copies of all
annual, regular, periodic and special reports and registration statements which
the Borrower may file or be required to file with the SEC under Section 13 or
15(d) of the Securities Exchange Act of 1934, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto;
(i) Other Debt. Promptly after the furnishing thereof, copies of any
statement or report furnished to any holder of debt securities of the Borrower
or any Subsidiary thereof pursuant to the terms of any indenture, loan or credit
or similar agreement and not otherwise required to be furnished to the Banks
pursuant to any other clause of this Section 5.01; and
(j) SEC Investigation. Promptly, and in any event within five
Business Days after receipt thereof by the Borrower or any Subsidiary thereof,
copies of each notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction) concerning any
investigation or possible investigation or other inquiry by such agency
regarding financial or other operational results of the Borrower or any
Subsidiary thereof;
(k) ERISA Event. Promptly after the assertion or occurrence thereof
or any Responsible Officer becoming aware of the reasonable likelihood thereof,
notice of the occurrence of any ERISA Event;
(l) Changes in Reporting Practices. Promptly after the assertion or
occurrence thereof or any Responsible Officer becoming aware of the reasonable
likelihood thereof, notice of any material change in accounting policies or
financial reporting practices by the Borrower or any Subsidiary; and
(m) Other Information. Promptly upon request, such additional
information regarding the financial position or business (including with respect
to environmental matters) of the Borrower or any Subsidiary as any Bank may
reasonably request from time to time.
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If the certificate containing any computations referred to in clauses (c)
or (d) includes Pro Forma EBITDA with respect to the construction of any
Property, such certificate shall also certify as to (1) with respect to the
first inclusion of Pro Forma EBITDA with respect to the construction of any
Property, the Scheduled Completion Date of such construction and (2) thereafter,
the Borrower's current good faith estimate of the date upon which such
construction will be completed.
Section 5.02. Preservation of Legal Existence, Etc. The Borrower will
preserve and maintain, and cause each Subsidiary to preserve and maintain, its
legal existence, rights (charter and statutory) and franchises, except as
otherwise permitted by Section 6.03; provided, however, that neither the
Borrower nor any Subsidiary shall be required to preserve any such right or
franchise if the general partner, board of directors or equivalent body of the
Borrower or such Subsidiary determines that the preservation thereof is no
longer desirable in the conduct of the business of the Borrower or such
Subsidiary, as applicable, and if the loss thereof is not disadvantageous in any
material respect to the Banks.
Section 5.03. Maintenance of Properties, Etc. Except as otherwise
permitted by Section 6.04, the Borrower will maintain and preserve, and cause
each Subsidiary to maintain and preserve, all of its material properties that
are necessary for the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
Section 5.04. [Intentionally omitted].
Section 5.05. Compliance with Laws, Etc. The Borrower will comply, and
cause each Subsidiary to comply, with all Governmental Rules and all contacts,
agreements and other instruments the noncompliance with which could reasonably
be expected to have a Material Adverse Effect.
Section 5.06. Payment of Taxes, Etc. The Borrower will pay and discharge,
and cause each Subsidiary to pay and discharge, before the same become
delinquent, (a) all federal, state and other material taxes, assessments and
governmental charges or levies imposed upon or against it or its property and
(b) all material lawful claims that, if unpaid, might by law become a Lien upon
its property; provided, however, that neither the Borrower nor any Subsidiary
shall be required to pay or discharge any such tax, assessment, charge, levy or
claim that is being contested in good faith and, in the case of any such tax,
assessment, charge or levy, by proper proceedings and as to which, in all such
cases, it is maintaining appropriate reserves in accordance with GAAP.
Section 5.07. Maintenance of Insurance. The Borrower will maintain, and
cause each Subsidiary to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks (a)
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Borrower or such
Subsidiary, as applicable, operates and (b) as is reasonably acceptable to the
Administrative Agent.
Section 5.08. Visitation Rights. At any reasonable time and from time to
time, upon reasonable notice by the Bank concerned, the Borrower will permit,
and cause each Subsidiary to
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permit, any Bank, and any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and visit the
properties of, the Borrower and its Subsidiaries and to discuss the affairs,
finances and accounts of the Borrower and its Subsidiaries with any of their
respective officers or directors (or equivalent persons) or, provided the
Borrower has been given reasonable opportunity to be present, with their
independent certified public accountants; provided, however, that, unless a
Default has occurred and is continuing, each Bank's visitation rights shall be
limited to not more than two occasions in any calendar year by such Bank.
Section 5.09. Keeping of Books. The Borrower will keep, and cause each
Subsidiary to keep, proper books of record and account in which full and correct
entries shall be made of all financial transactions and the Properties and
business of the Borrower and each Subsidiary, in accordance with GAAP
consistently applied.
Section 5.10. Transactions with Affiliates. Except for the transactions
set forth on Schedule 5.10, the Borrower will conduct, and cause each Subsidiary
to conduct, all transactions otherwise permitted under the Credit Documents with
any of its Affiliates (other than the Borrower or any Guarantor) on terms that
are fair and reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arms'-length transaction with a Person not
an Affiliate.
Section 5.11. Compliance with Environmental Laws. The Borrower will (a)
comply, and cause each Subsidiary to comply with all applicable Environmental
Laws and Environmental Permits except in such instances in which (i) such
requirement of law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted; or (ii) the failure
to comply therewith could not reasonably be expected to have a Material Adverse
Effect, (b) obtain and renew, and cause each Subsidiary to obtain and renew,
when needed, all material Environmental Permits necessary for its current
operations and currently owned and operated properties that, if not obtained and
renewed, would reasonably be expected to have a Material Adverse Effect, (c)
conduct, and cause each Subsidiary to conduct, any necessary investigation,
study, sampling and testing at properties currently owned and operated by the
Borrower or any Subsidiary in accordance with the requirements of all applicable
Environmental Laws and (d) undertake, and cause each Subsidiary to undertake,
any cleanup, removal, remedial and other action necessary to remove and clean up
all Hazardous Materials from any of its currently owned or operated properties,
in accordance with the material requirements of all applicable Environmental
Laws, the noncompliance with which would reasonably be expected to have a
Material Adverse Effect.
Section 5.12. Environmental Remediation and Indemnification. If at any
time any Hazardous Material is discovered on, under or about any Mortgaged
Property or any other property owned or operated by the Borrower or any
Subsidiary ("Other Property") and failure to remediate the same would cause the
Borrower or any Subsidiary to be in violation of any Environmental Law that
would reasonably be expected to have a Material Adverse Effect, the Borrower
will inform the Administrative Agent of the same and of the Borrower's proposed
remediation program, and the Borrower or such Subsidiary will, at no cost and
expense to the Collateral Agent, the Administrative Agent or the Banks, and only
to the extent of any legal requirement under applicable Environmental Laws for
the Borrower or such Subsidiary to do so,
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remediate or remove such Hazardous Materials from such Mortgaged Property or
Other Property or the groundwater underlying such Mortgaged Property or Other
Property in accordance with (a) such remediation program as a prudent operator
would undertake, (b) the approval of the appropriate Governmental Persons, if
any such approval is required under the applicable Environmental Laws, and (c)
all applicable Environmental Laws the noncompliance with which would reasonably
be expected to have a Material Adverse Effect. The Borrower and any Subsidiary
shall have the right to contest any notice or directive by any appropriate
Governmental Person to remediate or remove Hazardous Materials from any
Mortgaged Property or Other Property so long as the Borrower or such Subsidiary
diligently prosecutes such contest to completion and complies with any final
order or determination. The Borrower shall be solely responsible for, and will
indemnify and hold harmless the Collateral Agent, the Administrative Agent, the
Bookrunner, the Lead Arranger, any Co-Syndication Agent, any Co-Documentation
Agent and the Banks and their respective directors, officers, employees, agents,
successors and assigns from and against, any and all losses, damages, demands,
claims, causes of action, judgments, actions, assessments, penalties, costs,
expenses and liabilities to the extent that they directly or indirectly arise
out of or are attributable to the release of any Hazardous Materials at any
Mortgaged Property or Other Property, including the following: (i) all
foreseeable and unforeseeable consequential damages; (ii) the costs of any
repair, cleanup or detoxification of any Mortgaged Property or Other Property
required by any applicable Environmental Laws, and the preparation and
implementation of any closure, remedial or other plans required by any
applicable Environmental Laws; and (iii) all reasonable costs and expenses
incurred by the Collateral Agent, the Administrative Agent or any Bank in
connection with clauses (i) and (ii) above, including reasonable attorneys'
fees; provided, however, that the Borrower shall not be liable for any of the
foregoing if a final, nonappealable judgment by a court of competent
jurisdiction finds that such release of Hazardous Materials resulted from the
gross negligence or willful misconduct of the Collateral Agent, the
Administrative Agent or a Bank. The indemnities provided in this section shall
survive the repayment or any other satisfaction of the Obligations of the
Borrower under the Credit Documents.
Section 5.13. Use of Proceeds. The proceeds of Advances will be used by
the Borrower (a) to refinance existing Debt to the extent not prohibited
hereunder, (b) for capital expenditures, (c) for working capital, including the
issuance of Letters of Credit, (d) for Acquisitions, including the El Paso
Acquisition, (e) to fund Quarterly Distributions to the extent permitted by
Section 6.06, (f) to pay fees, costs and expenses owed pursuant to this
Agreement and the El Paso Acquisition and (f) for other general partnership
purposes. The Borrower is not engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U). No proceeds of the Borrowings will be used to purchase or carry
any margin stock in violation of Regulations T, U or X.
Section 5.14. Clean Down Period. During each calendar year during the term
of this Agreement, there shall be a period of fifteen (15) consecutive days (the
"Clean Down Period") during which (a) there are no Distribution Loans
outstanding and (b) no Distributions Loans will be made.
Section 5.15. Post-Closing Requirements.
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(a) Within 90 days following the Effective Date, the Borrower and
the Guarantors shall execute such Mortgages and other Security Documents as the
Collateral Agent may reasonably require to perfect Liens on all material
pipeline, gas gathering and processing assets of the Borrower and the Guarantors
acquired in connection with the El Paso Acquisition. In connection with the
execution and delivery of such Mortgages and other Security Documents, the
Borrower and the Guarantors shall deliver to the Collateral Agent such other
documents, certificates, opinions and agreements as the Collateral Agent may
reasonably request.
(b) Within 120 days following the Effective Date (or such later date
as is acceptable to the Administrative Agent), the Borrower shall deliver to the
Administrative Agent, in form and substance satisfactory to Administrative
Agent, a copy of the signed order of the Louisiana Public Service Commission
authorizing each of the Louisiana Guarantors to execute Guaranties and Security
Documents with respect to the Obligations under this Agreement (the "Louisiana
Public Service Commission Order"). Notwithstanding anything herein to the
contrary, within the 120 day period following the Effective Date (or such later
date as is acceptable to the Administrative Agent), the failure to have obtained
the Louisiana Public Service Commission Order shall not be considered to be a
violation of the representations, warranties and covenants in this Agreement or
any of the other Loan Documents so long as the Borrower is diligently pursuing
the same.
Section 5.16. Mortgage Amendments. Upon the earlier to occur of (i) six
months prior to the Termination Date or (ii) if the Collateral Agent reasonably
believes that failure to execute and deliver such amendments could have a
material adverse effect on the rights and remedies of the Banks or the Holders,
upon the Collateral Agent's request, the Borrower and the Guarantors, as
applicable, shall promptly execute and deliver to the Collateral Agent
amendments to each of the existing Mortgages in form and substance reasonably
satisfactory to the Collateral Agent, together with such other documents,
certificates, opinions and agreements as the Collateral Agent may reasonably
request.
ARTICLE VI
NEGATIVE COVENANTS
So long as any amount under any Credit Document shall remain unpaid, any
Letter of Credit shall remain outstanding that has not been Cash Collateralized,
or any Bank shall have any Commitment, the Borrower agrees to comply with the
following covenants.
Section 6.01. Liens, Etc. The Borrower will not create, incur, assume or
suffer to exist, or permit any Subsidiary to create, incur, assume or suffer to
exist, any Lien, or enter into any agreement with any other Person not to create
any Lien, on or with respect to any of its properties of any character
(including accounts receivable) whether now owned or hereafter acquired, or sign
or file, or permit any Subsidiary to sign or file, under the Uniform Commercial
Code of any jurisdiction, a financing statement that names the Borrower or any
Subsidiary as debtor (except in connection with true leases), or sign, or permit
any Subsidiary to sign, any security agreement authorizing any secured party
thereunder to file such a financing statement (except in connection with true
leases), excluding, however, from the operation of the foregoing restrictions
the following:
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(a) Liens created by the Security Documents;
(b) Permitted Liens;
(c) Liens securing obligations of such Person as lessee under
Capital Leases permitted by Section 6.02(f); and
(d) purchase-money Liens on property acquired or held by the
Borrower or any Subsidiary in the ordinary course of business, to secure the
purchase price of such property or to secure Debt incurred solely for the
purpose of financing the acquisition of such property to be subject to such
Liens, or Liens existing on any such property at the time of acquisition thereof
(or at the time the Borrower acquires the Subsidiary owning such property), or
renewals or refinancings of any of the foregoing Liens for the same or a lesser
amount; provided, however, that (i) no such Lien may extend to or cover any
property other than the property being acquired and improvements and accessions
thereto and proceeds thereof, (ii) no such renewal or refinancing may extend to
or cover any property not previously subject to the Lien being renewed or
refinanced, (iii) the Debt secured thereby does not exceed the cost or fair
market value, whichever is lower, of the property being acquired on the date of
acquisition and (iv) the aggregate principal amount of Debt at any time
outstanding secured by such Liens may not exceed the amount permitted by
paragraph 6.02(g);
(e) the negative pledge contained in the Note Agreement and the
negative pledge contained in any agreement, instrument or document executed at
any time in connection with Debt permitted by Section 6.02(k); provided that any
such negative pledge in connection with Debt permitted by Section 6.02(k) shall
not place any restriction on the creation or existence of any Lien now or
hereafter securing the Obligations or, as a result of the creation or existence
of any Lien securing the Obligations, cause or require the creation of any Lien
securing such Debt;
(f) options, put and call arrangements, rights of first refusal,
setoff rights and customary limitations and restrictions constituting negative
pledges contained in, and limited to, specific leases, licenses, conveyances,
partnership agreements and co-owners' agreements, and similar conveyances and
agreements to the extent that any such Lien referred to in this clause does not
materially impair the use of the Property covered by such Lien for the purposes
for which such Property is held or materially impair the value of such Property
subject thereto;
(g) Liens incurred in the ordinary course of business of the
Borrower or any Subsidiary with respect to obligations (other than Debt for
borrowed money) that do not exceed $5,000,000 at any one time outstanding;
(h) licenses or leases or subleases as licensor, lessor or sublessor
of any of its Property, including intellectual property, in the ordinary course
of business;
(i) Liens represented by the escrow of cash or Permitted Investments
securing the obligations of the Borrower or any Subsidiary under any agreement
to acquire, or pursuant to which it acquired, any Property, which Liens secure
the obligations of the Borrower or such Subsidiary to the seller of such
Property, provided that such acquisition is permitted pursuant to the terms of
this Agreement;
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(j) any Lien permitted by any Mortgage;
(k) Liens on assets pursuant to merger agreements, stock or asset
purchase agreements and similar agreements in respect of the disposition of such
assets, provided that such merger agreement, stock or asset purchase agreement
or similar agreement in respect of the disposition of such asset is permitted
pursuant to the terms of this Agreement; and
(l) the negative pledge contained in the Promissory Note of Crosstex
Louisiana Energy, L.P. dated April 2, 2004, payable to the order of Borrower.
Section 6.02. Debt. The Borrower will not create, incur, assume or suffer
to exist, or permit any Subsidiary to create, incur, assume or suffer to exist,
any Debt other than the following:
(a) Debt under the Credit Documents;
(b) Debt existing on the date of this Agreement and described in
Schedule 6.02, including renewals and refinancings of such Debt, so long as the
principal amount thereof is not increased (other than to pay any associated
premiums, fees and expenses);
(c) Debt under one or more Interest Rate Contract or Hydrocarbon
Hedge Agreement (provided that the parties to this Agreement hereby agree that
the obligations of the Borrower to the Banks in respect of any Interest Rate
Contract or Hydrocarbon Hedge Agreement are secured by the Security Documents,
but only, with respect to each such Bank, if and so long as such Bank remains a
Bank);
(d) Debt in respect of endorsement of negotiable instruments in the
ordinary course of business;
(e) Debt between the Borrower and any Subsidiary or between
Subsidiaries, provided that (i) such Debt is noted on the books and records of
the Borrower and its Subsidiaries and (ii) in the case of any Debt owed by the
Borrower to any Subsidiary that is not a Guarantor, such Debt is subordinated to
the Obligations of the Borrower under the Credit Documents on terms and
conditions, and pursuant to documentation, in form and substance satisfactory to
the Administrative Agent in its sole reasonable discretion;
(f) Debt in respect of Capital Leases not exceeding $30,000,000 in
aggregate amount equivalent to principal at any time outstanding;
(g) Debt secured by Liens permitted by Section 6.01(d), not
exceeding $30,000,000 in aggregate principal amount at any time outstanding;
(h) if any lease pursuant to the ▇▇▇▇▇▇ Lease Documents is treated
under GAAP as a Capital Lease, then, any such Debt which may be attributable to
the ▇▇▇▇▇▇ Lease Documents;
(i) unsecured Debt in addition to Debt otherwise permitted herein,
not exceeding $30,000,000 in aggregate principal amount at any time outstanding;
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(j) Debt under the Note Agreement in an aggregate principal amount
not to exceed $200,000,000; and
(k) unsecured Funded Debt of the Borrower and/or a Finance Entity
and/or any unsecured guaranty by the Borrower or any Guarantor of such Funded
Debt of the Borrower or any Affiliate of the Borrower; provided that (i) the
Borrower is in compliance with Section 6.14 immediately after giving effect to
the incurrence of any such Funded Debt or guaranty determined based upon the
outstanding amount of Funded Debt of the Borrower and its Subsidiaries on a
Consolidated basis immediately after giving effect to such incurrence, EBITDA
for the four fiscal quarters most recently ended on or before the date of such
incurrence and the maximum Leverage Ratio allowed as of the end of the fiscal
quarter most recently ended on or prior to the date of such incurrence (and in
the case of any guaranty of Funded Debt of the Borrower or any other Affiliate
of the Borrower, the aggregate amount of such Funded Debt so guaranteed shall be
"Funded Debt" of the Borrower for purposes of calculating the Leverage Ratio),
(ii) such Funded Debt does not impose any financial or other "maintenance"
covenants on the Borrower or any of the Subsidiaries that are more onerous than
the covenants set forth in this Agreement, (iii) such Funded Debt shall not
require any scheduled payment on account of principal (whether by redemption,
purchase, retirement, defeasance, set-off or otherwise) prior to the Termination
Date and (iv) such Funded Debt shall contain terms and conditions that are
customary for such transactions.
Section 6.03. Mergers, Acquisitions, Etc. The Borrower will not merge or
consolidate with or into, or sell, lease, transfer or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its Property (whether now owned or hereafter acquired) to, or enter into
any Acquisition, or permit any Subsidiary to do any of the foregoing, except for
the following:
(a) so long as no Default has occurred and is continuing or would be
caused thereby, the Borrower or any Subsidiary may make any Acquisition;
provided, however, that any such Acquisition shall be permitted only if, (i)
before the effectiveness of such Acquisition and to the extent required by the
Majority Banks, the Borrower delivers to the Collateral Agent (A) guaranties,
mortgages, deeds of trust, security agreements, releases, UCC financing
statements and UCC terminations, duly executed by the parties thereto, in form
and substance satisfactory to the Collateral Agent and accompanied by UCC
searches, title investigations and legal opinions (except with respect to
priority) demonstrating that, upon the effectiveness of such Acquisition and the
recording and filing of any necessary documentation, the Collateral Agent will
have an Acceptable Security Interest on the Property to be acquired and (B)
evidence of company authority to enter into and environmental assessments with
respect to such Acquisition; (ii) the Borrower or such Guarantor is the
acquiring or surviving entity; (iii) no Default or Event of Default exists and
the Acquisition would not reasonably be expected to cause a Default or Event of
Default; (iv) after giving effect to such Acquisition on a pro forma basis, the
Borrower would have been in compliance with all of the covenants contained in
this Agreement, including, without limitation, Sections 6.13 and 6.14 as of the
end of the most recent fiscal quarter, (v) the acquisition target is in the same
or similar line of business as Borrower and its Subsidiaries, (vi) the terms of
Section 6.10 are satisfied, and (vii) the aggregate amount of cash, Permitted
Investments and the remaining unused portion of the aggregate Commitments is
sufficient to fund such Acquisition;
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(b) so long as no Default has occurred and is continuing or would be
caused thereby, any Subsidiary may sell or otherwise transfer all of its
Property to, or merge into or consolidate with, any other Subsidiary or the
Borrower; provided, however, that any such disposition, merger or consolidation
shall be permitted only if, before the effectiveness of such disposition, merger
or consolidation and to the extent reasonably required by the Administrative
Agent, the Borrower delivers to the Collateral Agent documents of the type
described in the proviso to clause (a) above;
(c) so long as no Default has occurred and is continuing or would be
caused thereby, any Subsidiary of the Borrower may sell or otherwise transfer
all of its Property to, or merge into or consolidate with, any other Person so
long as such transaction is not prohibited by Section 6.04;
(d) any Subsidiary of the Borrower may dissolve so long as all of
its Property is distributed to the Borrower or a Subsidiary; provided that if
such dissolving Subsidiary is a Guarantor, all of its Property shall be
distributed to the Borrower or another Guarantor;
(e) the Borrower and its Subsidiaries may acquire Property in the
ordinary course of business; and
(f) the El Paso Acquisition.
Section 6.04. Sales, Etc. of Property. The Borrower will not sell, lease,
transfer or otherwise dispose of, or permit any Subsidiary to sell, lease,
transfer or otherwise dispose of, any of its Property, except for the following:
(a) sales of inventory in the ordinary course of business;
(b) sales, leases, transfers and other dispositions in the ordinary
course of business of worn-out or other Property that is no longer useful in the
conduct of the business of the Borrower or any Subsidiary;
(c) liquidations or other dispositions of cash and Permitted
Investments;
(d) so long as no Default has occurred and is continuing or would be
caused thereby, sales and other transfers of Property from the Borrower or any
Subsidiary to the Borrower or to any other Subsidiary; provided, however, that
any such sale or other transfer of real property or equity interests shall be
permitted only if, before the effectiveness of such sale or other transfer and
to the extent required by the Majority Banks, the Borrower delivers to the
Collateral Agent documents of the type described in the proviso to Section
6.03(a);
(e) sales of Property resulting from the condemnation thereof;
(f) sales or discounts of overdue accounts receivable in the
ordinary course of business, in connection with the compromise or collection
thereof; and
(g) so long as no Default has occurred and is continuing or would be
caused thereby, sales, leases, transfers and other dispositions of Property for
consideration not exceeding
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$30,000,000 in the aggregate in any fiscal year of the Borrower, provided that
the Net Cash Proceeds thereof are used to prepay the Advances to the extent
required by Section 2.04(b).
Section 6.05. Investments in Other Persons. The Borrower will not make, or
permit any Subsidiary to make, any loan or advance to any Person, or purchase or
otherwise acquire, or permit any Subsidiary to purchase or otherwise acquire,
any equity interests, warrants, rights, options, obligations or other securities
of, make any capital contribution to, or otherwise invest in, any Person (all of
the foregoing collectively called "Investments"); provided, however, that
nothing in this section shall prevent the Borrower or any Subsidiary from doing
any of the following:
(a) Investments existing on the date of this Agreement and described
in Schedule 6.05;
(b) Investments in the Borrower and its Subsidiaries existing on the
Effective Date;
(c) Investments after the Effective Date in Subsidiaries that are
not Guarantors in an amount not to exceed $25,000,000;
(d) Investments in the Borrower and the Guarantors;
(e) acquiring Permitted Investments;
(f) generating and holding accounts receivable in the ordinary
course of business;
(g) so long as no Default has occurred and is continuing or would be
caused thereby, making Investments in Persons that will not be Subsidiaries of
the Borrower, for consideration not exceeding $15,000,000 in the aggregate
during the term of this Agreement;
(h) Investments permitted by Section 6.03(a);
(i) acquiring Investments in connection with (i) the bankruptcy or
reorganization of suppliers and customers or (ii) the settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
(j) so long as no Default has occurred and is continuing or would be
caused thereby, making loans and advances to officers or employees of the
Borrower or any Subsidiary, provided that the aggregate principal amount of such
loans and advances, other than loans for the purpose of financing the purchase
of common units, subordinated units or other equity securities in the Borrower,
shall not exceed $1,000,000 in aggregate principal amount at any time
outstanding; and
(k) the El Paso Acquisition.
Section 6.06. Distributions, Etc. The Borrower will not pay any management
fee or similar fee of any sort to any Affiliate thereof or to any other Person,
declare or pay any
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dividends or distributions, purchase, redeem, retire, defease or otherwise
acquire for value any of its equity interests or any warrants, rights or options
to acquire such equity interests, now or hereafter outstanding, return any
capital to its equity-holders as such, or make any distribution of Property,
equity interests, warrants, rights, options, obligations or securities to its
equity-holders as such, or permit any Subsidiary to purchase, redeem, retire,
defease or otherwise acquire for value any equity interests in the Borrower or
any warrants, rights or options to acquire such equity interests or to pay any
such fee, except for the following:
(a) the Borrower and any Subsidiary may pay any management fee or
similar fee of any sort to any Affiliate of the Borrower or its Subsidiaries
pursuant to the Borrower Partnership Agreement, the CESL Partnership Agreement
or the Omnibus Agreement;
(b) provided that no Default has occurred and is continuing or would
be caused thereby, the Borrower may declare and pay Quarterly Distributions;
(c) the Borrower may pay Quarterly Distributions within 60 days
after the date of declaration thereof if, at the date of declaration, such
payment would comply with clause (b) of this Section 6.06;
(d) the Borrower and its Subsidiaries may declare and pay dividends
and other distributions payable solely in Equity Interests; and
(e) any Subsidiary may pay dividends, or make other distributions,
to the Borrower or to any wholly-owned Subsidiary of the Borrower.
Section 6.07. Change in Nature of Business. The Borrower will not make, or
permit any Subsidiary to make, any material change in the nature of their
collective businesses as carried on as of the date hereof.
Section 6.08. ERISA Plans. The Borrower will not establish, maintain or
contribute to, or permit any ERISA Affiliate to establish, maintain or
contribute to, any Plan, and the Borrower will not become obligated to, or
permit any Subsidiary to become obligated to, contribute to any Multiemployer
Plan.
Section 6.09. Accounting Changes. The Borrower will not make or permit, or
permit any Subsidiary to make or permit, any change in (a) any of its accounting
policies affecting the presentation of financial statements or reporting
practices, except as required or permitted by GAAP, or (b) its fiscal year.
Section 6.10. Creation of Material Subsidiaries. The Borrower will not
create, or permit any Subsidiary to create, any Material Subsidiary unless
within 15 days after the formation of such Subsidiary and to the extent
reasonably required by the Majority Banks, such Subsidiary delivers to the
Administrative Agent (or the Collateral Agent, as appropriate) guaranties,
mortgages, deeds of trust, security agreements, releases, UCC financing
statements, and UCC terminations, duly executed by the parties thereto, in form
and substance reasonably satisfactory to the Administrative Agent or the
Collateral Agent, as the case may be, and accompanied by UCC searches, title
investigations and legal opinions (except with respect to priority)
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demonstrating that, upon the recording and filing of any necessary
documentation, the Collateral Agent will have an Acceptable Security Interest on
the Property of such Material Subsidiary.
Section 6.11. Commodity Contracts. The Borrower will not, and will not
permit any Subsidiary to, enter into, assume or otherwise acquire an interest in
(a) any contract or other obligation to purchase or sell any natural gas or
other commodities or goods, or any hedged or unhedged commodity futures
contract, option or other derivative contract, that in any case would result in
the Borrower or such Subsidiary having an "open" or "uncovered" position in
natural gas or other commodities or goods, or in any derivative of any thereof,
exceeding $500,000 in the aggregate at the end of any day or (b) any other
futures or derivatives contract or obligation for speculative purposes.
Section 6.12. [Intentionally Omitted].
Section 6.13. Interest Charge Coverage Ratio. The Borrower shall not, as
of the end of any fiscal quarter, permit the Interest Charge Coverage Ratio for
the Borrower and its Subsidiaries on a Consolidated basis to be less than 3.00
to 1.00.
Section 6.14. Leverage Ratio. The Borrower shall not, as of the end of any
fiscal quarter, permit the Leverage Ratio for the Borrower and its Subsidiaries
on a Consolidated basis to be greater than (i) 5.25 to 1.00 for any fiscal
quarter ending during the period commencing on the Effective Date and ending
▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) 4.75 to 1.00 for any fiscal quarter ending during the
period commencing on April 1, 2006 and ending on September 30, 2006 and (iii)
4.00 to 1.00 for any fiscal quarter ending thereafter; provided, however, that
during an Acquisition Adjustment Period occurring after the Closing Leverage
Period, the Leverage Ratio shall not be greater than 4.75 to 1.00.
Notwithstanding anything to the contrary in this Section 6.14, if, immediately
subsequent to an Equity Issuance by the Borrower or any of its Subsidiaries, the
Leverage Ratio for the Borrower and its Subsidiaries on a Consolidated Basis
shall be less than 4.00 to 1.00, then the Borrower shall not, as of the end of
any fiscal quarter ending from the date of such Equity Issuance to September 30,
2006, permit the Leverage Ratio for the Borrower and its Subsidiaries on a
Consolidated basis to be greater than 4.00 to 1.00 for such fiscal quarter
except in connection with the occurrence of any Acquisition Adjustment Period.
Section 6.15. [Intentionally Omitted].
Section 6.16. Amendment of Partnership Agreements. The Borrower shall not
amend, modify or supplement (a) the definition of "Available Cash" in the
Borrower Partnership Agreement or increase the amount of any management fee or
similar fee of any sort to payable any Affiliate of the Borrower or its
Subsidiaries (other than the Borrower and its Subsidiaries) without the prior
written consent of the Majority Banks or (b) any other provision of the Borrower
Partnership Agreement if such amendment, modification or supplement would be
materially adverse to the interests of the Banks without the prior written
consent of the Majority Banks. The Borrower shall not amend, modify or
supplement (a) the definition of "Available Cash" in the CESL Partnership
Agreement or increase the amount of any management fee or similar fee of any
sort payable to any Affiliate of the Borrower or its Subsidiaries (other than
the Borrower and its Subsidiaries) without the prior written consent of the
Majority Banks or (b) any other provision of the CESL Partnership Agreement if
such amendment, modification or
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supplement would be materially adverse to the interests of the Banks without the
prior written consent of the Majority Banks. The Borrower shall not increase the
amount of any management fee or similar fee of any sort payable to any Affiliate
of the Borrower or its Subsidiaries (other than the Borrower and its
Subsidiaries) under the Omnibus Agreement without the prior written consent of
the Majority Banks.
Section 6.17. Note Agreement. The Borrower may not make any optional or
scheduled payments or prepayments on account of principal (whether by
redemption, purchase, retirement, defeasance, set-off or otherwise) in respect
of the Private Notes prior to the Termination Date. The Borrower shall not
amend, supplement or otherwise modify the terms of the Note Agreement without
the prior written consent of the Majority Banks, which consent will not be
unreasonably withheld, which has the effect of (a) increasing the outstanding
principal amount of the Note Obligations above $200,000,000, (b) increasing the
rate of interest except with respect to imposing the default rate as provided
for in the Note Agreement on the date hereof or any fees charged on the Note
Obligations or (c) any other provision of the Note Agreement if such amendment,
modification or supplement would be materially adverse to the interests of the
Banks without the prior written consent of the Majority Banks.
Section 6.18. [Intentionally Omitted].
Section 6.19. Other Debt. The Borrower may not make any optional or
scheduled payments or prepayments on account of principal (whether by
redemption, purchase, retirement, defeasance, set-off or otherwise) in respect
of any unsecured Funded Debt incurred pursuant to Section 6.02(k) prior to the
Termination Date, other than principal payments not exceeding $7,500,000 in the
aggregate over the term of this Agreement. The Borrower shall not amend,
supplement or otherwise modify the terms of any Funded Debt incurred under
Section 6.02(k) if such amendment, supplement or other modification would not be
permitted by the terms of Section 6.02(k) without the prior written consent of
the Majority Banks, which consent will not be unreasonably withheld.
Section 6.20. ▇▇▇▇▇▇ Lease Documents. The Borrower will not, and will not
permit any Subsidiary to, make any optional payments or prepayments on account
of principal (whether by redemption, purchase, retirement, defeasance, set-off
or otherwise) in respect of any obligations under the ▇▇▇▇▇▇ Lease Documents,
unless (a) no Default or Event of Default exists and such payment would not
reasonably be expected to cause a Default or Event of Default, (b) after giving
effect to such payment on a pro forma basis, the Borrower would have been in
compliance with all of the covenants contained in this Agreement, including,
without limitation, Sections 6.13 and 6.14 as of the end of the most recent
fiscal quarter, and (c) the aggregate amount of cash, Permitted Investments and
the remaining unused portion of the aggregate Commitments is sufficient to make
such payment. The Borrower shall not, and shall not permit any Subsidiary to,
amend, supplement or otherwise modify the terms of any ▇▇▇▇▇▇ Lease Document if
such amendment, modification or supplement would be materially adverse to the
interests of the Borrower or the Banks without the prior written consent of the
Majority Banks, provided that the Borrower or any of its Subsidiaries may enter
into the ▇▇▇▇▇▇ Lease Document Amendments referred to in Section 3.01(p).
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ARTICLE VII
REMEDIES
Section 7.01. Events of Default. The occurrence of any of the following
events shall constitute an "Event of Default" under any Credit Document:
(a) Payment. The Borrower shall fail to (i) pay any principal of any
Advance or any L/C Borrowing when the same becomes due and payable, (ii) pay any
interest on any Note or any fee owing in connection with the Obligations, this
Agreement or any of the other Credit Documents within three Business Days after
the same becomes due and payable or (iii) pay any other amount owing in
connection with the Obligations, this Agreement or any of the other Credit
Documents within five Business Days after the same becomes due and payable;
(b) Representation and Warranties. Any representation or warranty
made or deemed to be made by the Borrower, the General Partner, any Guarantor or
any Subsidiary, or by any officer of any thereof, under or in connection with
any Credit Document shall prove to have been incorrect in any material respect
when made or deemed to be made;
(c) Covenant Breaches. The Borrower fails to perform or observe any
term, covenant or agreement contained in Sections 5.02, 5.13 or Article VI of
this Agreement; or the Borrower, any Guarantor or any Subsidiary fails to
perform or observe any other term, covenant or agreement contained in any Credit
Document on its part to be performed or observed, and such failure remains
unremedied for 30 days after written notice thereof has been given to the
Borrower, such Guarantor or such Subsidiary, as applicable, by the
Administrative Agent;
(d) Cross-Defaults. The Borrower or any Material Subsidiary fails to
pay any principal of any Debt thereof (excluding the Obligations of the Borrower
hereunder) that is outstanding in a principal amount of at least $20,000,000 in
the aggregate, or any interest or premium thereon, when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration demand
or otherwise), and such failure continues after the applicable grace period, if
any, specified in the agreement or instrument relating to such Debt; any other
event occurs or condition exists under any agreement or instrument relating to
any such Debt and continues after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or any
such Debt is declared to be due and payable or is required to be prepaid,
redeemed, purchased or defeased (other than by a regularly scheduled required
prepayment, redemption, purchase or defeasance), or an offer to prepay, redeem,
purchase or defease such Debt is required to be made, in each case before the
stated maturity thereof;
(e) Insolvency. The Borrower or any Material Subsidiary generally
does not pay its debts as such debts become due, admits in writing its inability
to pay its debts generally or makes a general assignment for the benefit of
creditors; any proceeding is instituted by the Borrower or any Material
Subsidiary seeking to adjudicate it a bankrupt or insolvent, seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver,
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trustee or other similar official for it or for any substantial part of its
property; any proceeding is instituted against the Borrower or any Material
Subsidiary seeking to adjudicate it a bankrupt or insolvent, seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or other similar
official for it or for any substantial part of its property, and either such
proceeding remains undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including the entry of an order for relief
against the Borrower or such Material Subsidiary, as applicable, or the
appointment of a receiver, trustee, custodian or other similar official for it
or for any substantial part of its property) occurs; or the Borrower or any
Material Subsidiary takes any action to authorize any of the actions set forth
above in this Section 7.01(e);
(f) Judgments.
(i) Any judgment or order for the payment of money in excess
of $20,000,000 is rendered against the Borrower or any Material Subsidiary by a
court of competent jurisdiction, and either (a) enforcement proceedings are
commenced by any creditor upon such judgment or order or (b) there is any period
of 30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, is not in effect, unless such
judgment or order has been vacated, satisfied, dismissed, or bonded pending
appeal or, in the case of a judgment or order the entire amount of which is
covered by insurance (subject to applicable deductibles), is the subject of a
binding agreement with the plaintiff and the insurer covering payment therefor;
or
(ii) any nonmonetary judgment or order is rendered against the
Borrower or any Material Subsidiary that could reasonably be expected to have a
Material Adverse Effect, and there is any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, is not in effect;
(g) [Intentionally deleted];
(h) Credit Documents. Any material provision of any Credit Document
for any reason ceases to be valid and binding on, or enforceable against, the
Borrower or any Material Subsidiary, as applicable (except (i) pursuant to the
terms of such Credit Document, (ii) as permitted by this Agreement (including,
without limitation, Sections 6.04 and 9.18 hereof or (iii) to the extent such
provision is released in writing by the Administrative Agent), or the Borrower
or any Material Subsidiary, as applicable, so states in writing;
(i) Security Documents. Any Security Document for any reason (except
pursuant to the terms hereof (including, without limitation, Sections 6.04 and
9.18 hereof) or thereof) ceases to create an Acceptable Security Interest on any
material portion of the Collateral purported to be covered by such Security
Document, and the same, if curable, is not cured within 15 days after the
Administrative Agent notifies the Borrower or the affected Subsidiary, as
applicable, of the same; or
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(j) Change of Control. A Change of Control shall occur.
Section 7.02. Optional Acceleration of Maturity. If any Event of Default
(other than an Event of Default pursuant to paragraph (e) of Section 7.01 with
respect to the Borrower) shall have occurred and be continuing, then, and in any
such event,
(a) the Administrative Agent (i) shall at the request, or may with
the consent, of the Majority Banks, by notice to the Borrower, declare the
obligation of each Bank and the Issuing Bank to make extensions of credit
hereunder, including the making of Advances and issuing of Letters of Credit, to
be terminated, whereupon the same shall forthwith terminate or (ii) shall, at
the request, or may with the consent, of the Majority Banks, by notice to the
Borrower, declare all principal, interest, fees, reimbursements,
indemnifications and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes (if any), all such principal,
interest, and other amounts shall become and be forthwith due and payable in
full, without presentment, demand, protest or further notice of any kind
(including, without limitation, any notice of intent to accelerate or notice of
acceleration), all of which are hereby expressly waived by the Borrower;
(b) the Borrower shall, on demand of the Administrative Agent at the
request or with the consent of the Majority Banks, deposit with the
Administrative Agent Cash Collateral in an amount of cash equal to the Letter of
Credit Exposure as security for the Obligations; and
(c) the Administrative Agent shall at the request or may with the
consent of the Majority Banks proceed to enforce its rights and remedies under
the Security Documents, the Guaranties, and any other Credit Documents for the
ratable benefit of the Creditors (as defined in the Intercreditor Agreement) by
appropriate proceedings.
Section 7.03. Automatic Acceleration of Maturity. If any Event of Default
pursuant to paragraph (e) of Section 7.01 shall occur with respect to the
Borrower,
(a) (i) the obligation of each Bank and the Issuing Bank to make
extensions of credit hereunder, including making Advances and issuing Letters of
Credit, shall immediately and automatically be terminated and (ii) all
principal, interest, fees, reimbursements, indemnifications, and all other
amounts payable under this Agreement, the Notes, and the other Credit Documents
shall immediately and automatically become and be due and payable in full,
without presentment, demand, protest or any notice of any kind (including,
without limitation, any notice of intent to accelerate or notice of
acceleration), all of which are hereby expressly waived by the Borrower; and
(b) the Borrower shall deposit with the Administrative Agent Cash
Collateral in an amount of cash equal to the outstanding Letter of Credit
Exposure as security for the Obligations; and
(c) the Administrative Agent shall at the request and may with the
consent of the Majority Banks proceed to enforce its rights and remedies under
the Security Documents, the Guaranties and any other Credit Document for the
ratable benefit of the Creditors by appropriate proceedings.
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Section 7.04. Non-exclusivity of Remedies. No remedy conferred upon the
Administrative Agent or any Bank is intended to be exclusive of any other
remedy, and each remedy shall be cumulative of all other remedies existing by
contract, at law, in equity, by statute or otherwise.
Section 7.05. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, the Administrative Agent and each Bank is
hereby authorized at any time and from time-to-time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Administrative Agent or any such Bank to or for the credit
or the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement, any Notes held by such
Bank, and the other Credit Documents, irrespective of whether or not the
Administrative Agent or such Bank shall have made any demand under this
Agreement, any Note, or such other Credit Documents, and although such
obligations may be unmatured. The Administrative Agent and each Bank agrees to
promptly notify the Borrower after any such set-off and application made by the
Administrative Agent or such Bank, provided that the failure to give the notice
shall not affect the validity of such set-off and application. The rights of the
Administrative Agent and the Banks under this Section are in addition to any
other rights and remedies (including, without limitation, other rights of
set-off) which the Administrative Agent or the Banks may have.
Section 7.06. Application of Collateral. The proceeds of any sale, or
other realization upon all or any part of the Collateral (as defined in each of
the Security Documents) shall be applied by the Administrative Agent in
accordance with the terms of the Intercreditor Agreement; provided, however that
if the Intercreditor Agreement has been terminated, the Administrative Agent
shall apply such proceeds in the following order:
first, to payment of the reasonable expenses of sale or other realization
of such Collateral, including reasonable compensation to the Administrative
Agent and its agents and counsel;
second, to the payment of all reasonable expenses, liabilities, and
advances incurred or made by the Administrative Agent in connection therewith,
and to the ratable payment of any other unreimbursed reasonable expenses for
which the Administrative Agent or any Bank is to be reimbursed pursuant to the
terms hereof or any other Credit Document;
third, to the ratable payment of accrued but unpaid agent's fees,
commitment fees, letter of credit fees, and fronting fees owing to the
Administrative Agent, the Issuing Bank, and the Banks in respect of the Advances
and Letters of Credit under this Agreement and the Notes;
fourth, to the ratable payment of accrued but unpaid interest on the
Advances owing under this Agreement; and
fifth, to the ratable payment of all other Obligations which relate to the
Advances, Letters of Credit, any Interest Rate Contract between the Borrower or
any Subsidiary and a Bank or an Affiliate thereof, or any Hydrocarbon Hedge
Agreement between the Borrower or any Subsidiary and a Bank or an Affiliate
thereof and which are owing to the Administrative Agent, the Collateral Agent,
the Banks and their Affiliates.
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Any surplus of such cash or cash proceeds held by the Administrative Agent
and remaining after the payment in full of all the Obligations shall be promptly
paid over to the Borrower or to whoever may be lawfully entitled to receive such
surplus.
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
Section 8.01. Appointment and Authority. Each of the Banks and the Issuing
Bank hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent and Collateral Agent hereunder and under the other Credit
Documents and authorizes the Agents to take such actions on its behalf and to
exercise such powers as are delegated to the Agents by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the
Agents, the Banks and the Issuing Bank, and neither the Borrower nor any other
Guarantor shall have rights as a third party beneficiary of any of such
provisions.
Section 8.02. Rights as a Bank. The Person serving as the Agents hereunder
shall have the same rights and powers in its capacity as a Bank as any other
Bank and may exercise the same as though it were not an Agent and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Agents hereunder
in its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with the Borrower or
any Subsidiary or other Affiliate thereof as if such Person were not an Agent
hereunder and without any duty to account therefor to the Banks.
Section 8.03. Exculpatory Provisions. The Agents shall not have any duties
or obligations except those expressly set forth herein and in the other Credit
Documents. Without limiting the generality of the foregoing, the Agents:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Credit Documents that such Agent
is required to exercise as directed in writing by the Majority Banks (or such
other number or percentage of the Banks as shall be expressly provided for
herein or in the other Credit Documents), provided that the Agents shall not be
required to take any action that, in its opinion or the opinion of its counsel,
may expose the Agent to liability or that is contrary to any Credit Document or
applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Credit Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Agent or any of its Affiliates in any capacity.
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The Agents shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Majority Banks (or such other number
or percentage of the Banks as shall be necessary, or as the Agent shall believe
in good faith shall be necessary, under the circumstances as provided in
Sections 9.01 and 7.02) or (ii) in the absence of its own gross negligence or
willful misconduct. The Agents shall be deemed not to have knowledge of any
Default unless and until notice describing such Default is given to the Agent by
the Borrower, a Bank or the Issuing Bank. Upon the receipt of such notice by the
Administrative Agent, the Administrative Agent shall promptly notify the Banks
of the Default described in such notice.
The Agents shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Credit Document, (ii) the contents
of any certificate, report or other document delivered hereunder or thereunder
or in connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein
or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Credit Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
set forth in Article III or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Agent.
Section 8.04. Reliance by Agents. The Agents shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Agents also may rely upon any
statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of an Advance,
or the issuance of a Letter of Credit, that by its terms must be fulfilled to
the satisfaction of a Bank or the Issuing Bank, the Agents may presume that such
condition is satisfactory to such Bank or the Issuing Bank unless the Agent
shall have received notice to the contrary from such Bank or the Issuing Bank
prior to the making of such Advance or the issuance of such Letter of Credit.
The Agents may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
Section 8.05. Delegation of Duties. The Agents may perform any and all of
its duties and exercise its rights and powers hereunder or under any other
Credit Document by or through any one or more sub-agents appointed by the Agent.
The Agents and any such sub-agent may perform any and all of its duties and
exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of this Article shall apply to any such sub-agent and
to the Related Parties of the Agents and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Section 8.06. Resignation of Administrative Agent. The Administrative
Agent may at any time give notice of its resignation to the Banks, the Issuing
Bank and the Borrower. Upon receipt of any such notice of resignation, the
Majority Banks shall have the right, in consultation
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with the Borrower, to appoint a successor, which shall be a bank with an office
in the United States, or an Affiliate of any such bank with an office in the
United States. If no such successor shall have been so appointed by the Majority
Banks 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 Banks and the Issuing Bank, appoint a
successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower and the
Banks that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (a) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Credit Documents (except that in
the case of any collateral security held by the Administrative Agent on behalf
of the Banks or the Issuing Bank under any of the Credit Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Bank and the Issuing
Bank directly, until such time as the Majority Banks appoint a successor
Administrative Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
hereunder or under the other Credit Documents (if not already discharged
therefrom as provided above in this Section). 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 retiring Administrative Agent's resignation hereunder and under the
other Credit Documents, the provisions of this Article and Section 9.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as Issuing Bank and
Collateral Agent. Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
Issuing Bank and Collateral Agent, (b) the retiring Issuing Bank and Collateral
Agent shall be discharged from all of their respective duties and obligations
hereunder or under the other Credit Documents, and (c) the successor Issuing
Bank shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or make other arrangement
satisfactory to the retiring Issuing Bank to effectively assume the obligations
of the retiring Issuing Bank with respect to such Letters of Credit.
Section 8.07. Non-Reliance on Agents and Other Banks. Each Bank and the
Issuing Bank acknowledges that it has, independently and without reliance upon
the Agents or any other Bank or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Bank and the Issuing
Bank also acknowledges that it will, independently and without reliance upon the
Agents or any other Bank or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its
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own decisions in taking or not taking action under or based upon this Agreement,
any other Credit Document or any related agreement or any document furnished
hereunder or thereunder.
Section 8.08. No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Bookrunner, Lead Arranger, any Co-Syndication Agent
or any Co-Documentation Agent listed on the cover page hereof shall have any
powers, duties or responsibilities under this Agreement or any of the other
Credit Documents, except in its capacity, as applicable, as an Agent, a Bank or
the Issuing Bank hereunder.
Section 8.09. Administrative Agent May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Borrower or any Guarantor, the Administrative Agent
(irrespective of whether the principal of any Advance or Letter of Credit
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Administrative Agent shall have
made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Advances, Letter of Credit
Obligations and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the claims of
the Banks, the Issuing Bank and the Administrative Agent (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Banks, the Issuing Bank and the Administrative Agent and their respective agents
and counsel and all other amounts due the Banks, the Issuing Bank and the
Administrative Agent under Sections 2.13, 2.06 and 9.04) allowed in such
judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Bank and the Issuing Bank to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Banks and the Issuing Bank, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.06
and 9.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Bank or the
Issuing Bank any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Bank or to authorize the
Administrative Agent to vote in respect of the claim of any Bank in any such
proceeding.
Section 8.10. Collateral and Guaranty Matters. The Banks and the Issuing
Bank irrevocably authorize the Collateral Agent, at its option and in its
discretion,
(a) to release any Lien on any property granted to or held by the
Collateral Agent under any Credit Document (i) upon termination of the aggregate
Commitments and
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payment in full of all Obligations (other than contingent indemnification
obligations) and the expiration, termination or Cash Collateralization of all
Letters of Credit, (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Credit Document, (iii)
pursuant to Section 9.18 or (iv) subject to Section 9.01, if approved,
authorized or ratified in writing by the Majority Banks;
(b) to subordinate any Lien on any property granted to or held by
the Administrative Agent under any Credit Document to the holder of any Lien on
such property that is permitted by Section 6.01; and
(c) to release any Guarantor from its obligations under the Guaranty
and any other applicable Credit Document if such Person ceases to be a
Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Administrative Agent at any time, the Majority Banks
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty or any other Credit
Document pursuant to this Section 8.10.
Section 8.11. Swap Agreements. The benefit of the Security Documents and
of the provisions of this Agreement relating to any collateral securing the
Obligations shall also extend to and be available to those Banks or their
Affiliates which are counterparties to any Interest Rate Contract or Hydrocarbon
Hedge Agreement with the Borrower or any of its Subsidiaries on a pro rata basis
in respect of any obligations of the Borrower or any of its Subsidiaries which
arise under any such Interest Rate Contract or Hydrocarbon Hedge Agreement that
is in effect while such Person or its Affiliate is a Bank, but only while such
Person or its Affiliate is a Bank, including any Interest Rate Contracts and
Hydrocarbon Hedge Agreements between such Persons in existence prior to the
Effective Date. No Bank or any Affiliate of a Bank shall have any voting rights
under any Credit Document as a result of the existence of obligations owed to it
under any such Interest Rate Contracts or Hydrocarbon Hedge Agreements.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Credit Document nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Banks and the Borrower, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver, or
consent shall, unless in writing and signed by all the Banks, do any of the
following: (a) waive any of the conditions specified in Section 3.01 or 3.02,
(b) increase the Commitment of any Bank, (c) reduce the principal of, or
interest on, the Advances or any fees or other amounts payable hereunder or
under any other Credit Document, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable
hereunder or extend the Termination Date, (e) change the percentage of Banks
which shall be required for the Banks or any of them to take any action
hereunder or under any other
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Credit Document, (f) amend Section 2.09 or this Section 9.01, (g) amend the
definition of "Majority Banks," (h) release any Guarantor from its obligations
under any Guaranty, except in connection with any transaction permitted by this
Agreement, or (i) release any material portion of the collateral securing the
Obligations, except for releases of Collateral sold or otherwise disposed of as
permitted by this Agreement and pursuant to Section 9.18; and provided, further,
that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent or the Issuing Bank in addition to the Banks required above
to take such action, affect the rights or duties of the Administrative Agent or
the Issuing Bank, as the case may be, under this Agreement or any other Credit
Document.
Section 9.02. Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder
to be given by telephone shall be made to the applicable telephone number, as
follows:
(i) if to the Borrower, the Administrative Agent, the
Collateral Agent or, the Issuing Bank, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on
Schedule 2; and
(ii) if to any other Bank, to the address, telecopier number,
electronic mail address or telephone number specified in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
(b) Electronic Communications. Notwithstanding anything to the
contrary contained herein, notices and other communications to the
Administrative Agent, the Banks and the Issuing Bank hereunder may be delivered
or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Bank or the
Issuing Bank pursuant to Article II if such Bank or the Issuing Bank, as
applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication. The
Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.
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Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor
Section 9.03. No Waiver; Remedies. No failure on the part of the
Administrative Agent, any Bank or the Issuing Bank to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 9.04. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of outside counsel for
the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Credit Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Bank or the
Issuing Bank (including the fees, charges and disbursements of any outside
counsel for the Administrative Agent, any Bank or the Issuing Bank), in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Credit Documents, including its rights under
this Section, or (B) in connection with the Advances made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Advances or Letters of
Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify
the Administrative Agent (and any sub-agent thereof), the Collateral Agent, the
Bookrunner, the Lead Arranger, any Co-Syndication Agent, any Co-Documentation
Agent, each Bank and the Issuing Banks, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the fees, charges and disbursements
of any outside counsel for any Indemnitee), incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower or any
other Subsidiary arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Credit Document or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of
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the transactions contemplated hereby or thereby, (ii) any Advance or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory, whether brought by a third party or by the Borrower or any other
Guarantor, and regardless of whether any Indemnitee is a party thereto, IN ALL
CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE
NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim
brought by the Borrower or any other Subsidiary against an Indemnitee for breach
in bad faith of such Indemnitee's obligations hereunder or under any other
Credit Document, if the Borrower or such Subsidiary has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.
(c) Reimbursement by Banks. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section to be paid by it to the Administrative Agent (or any sub-agent
thereof), the Issuing Bank or any Related Party of any of the foregoing, each
Bank severally agrees to pay to the Administrative Agent (or any such
sub-agent), the Issuing Bank or such Related Party, as the case may be, such
Bank's Pro Rata Share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the Issuing Bank in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or Issuing Bank in
connection with such capacity. The obligations of the Banks under this
subsection (c) are subject to the provisions of Section 2.02(f).
(d) Waiver of Consequential Damages, Etc. To the fullest extent
permitted by applicable law, the Borrower shall not assert, and hereby waives,
any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Credit Document or any agreement or instrument contemplated hereby,
the transactions contemplated hereby or thereby, any Advance or Letter of Credit
or the use of the proceeds thereof. No Indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Credit Documents or the transactions
contemplated hereby or thereby.
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(e) Payments. All amounts due under this Section shall be payable
not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent (and the Issuing Bank), the replacement
of any Bank, the termination of the aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
Section 9.05. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower, the Administrative Agent and the
Banks and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Administrative Agent, the Issuing Bank and each Bank and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights or delegate its duties under this Agreement or any
interest in this Agreement without the prior written consent of each Bank.
Section 9.06. Bank Assignments and Participations.
(a) Assignments. Any Bank may assign to one or more banks or other
entities all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments, the
Advances owing to it, and the participation interest in the Letter of Credit
Obligations held by it); provided, however, that (i) each such assignment shall
be of a constant, and not a varying, percentage of all of such Bank's rights and
obligations assigned under this Agreement (including, without limitation, its
obligations to make Advances), (ii) the amount of the Commitments and Advances
of such Bank being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Assumption with respect to such assignment) shall
be, if to an entity other than a Bank, not less than $5,000,000.00 and shall be
an integral multiple of $1,000,000.00, except in the case of an assignment of
the entire remaining amount of the assigning Bank's Commitments and Advances at
the time owing to it, (iii) each such assignment shall be to an Affiliate, an
Approved Fund or an Eligible Assignee, (iv) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Assumption, together with the Notes
(if any) subject to such assignment, and (v) each Eligible Assignee (other than
the Eligible Assignee of the Administrative Agent) shall pay to the
Administrative Agent a $3,500 administrative fee. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Assumption, which effective date shall be at least three Business
Days after the execution thereof (unless waived by the Administrative Agent),
(a) the assignee thereunder shall be a party hereto for all purposes and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Assumption, have the rights and obligations of a Bank
hereunder and (b) such Bank thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Assumption, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Assumption covering all or
the remaining portion of such Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(b) Term of Assignments. By executing and delivering an Assignment
and Assumption, the Bank thereunder and the assignee thereunder confirm to and
agree with each
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other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Assumption, such Bank makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency of value of this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such Bank makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the Guarantors or the
performance or observance by the Borrower or the Guarantors of any of their
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.05 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Assumption; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such Bank or any other Bank 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
this Agreement; (v) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to the Administrative Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and (vi)
such assignee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required to be
performed by it as a Bank.
(c) The Register. The Administrative Agent shall maintain at its
address referred to in Section 9.02 a copy of each Assignment and Assumption
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Banks and the Commitments of, and principal amount of the
Advances owing to, each Bank from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Administrative Agent, the Issuing Bank, and the
Banks may treat each Person whose name is recorded in the Register as a Bank
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Bank at any reasonable time and from time
to time upon reasonable prior notice.
(d) Procedures. Upon its receipt of an Assignment and Assumption
executed by a Bank and an Eligible Assignee, together with the Notes subject to
such assignment, the Administrative Agent shall, if such Assignment and
Assumption has been completed and is in substantially the form of the attached
Exhibit D, (i) accept such Assignment and Assumption, (ii) record the
information contained therein in the Register, and (iii) give prompt notice
thereof to the Borrower.
(e) Participations. Each Bank may at any time, without the consent
of, or notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "Participant") in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it, its
participation interest in the Letter of Credit Obligations, and the Notes held
by it); provided, however, that (i) such Bank's obligations under this Agreement
(including, without limitation, its Commitments to the Borrower hereunder) shall
remain unchanged, (ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such
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Bank shall remain the holder of any such Notes for all purposes of this
Agreement, (iv) the Borrower, the Administrative Agent, and the Issuing Bank and
the other Banks shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement, and (v)
such Bank shall not require the participant's consent to any matter under this
Agreement, except for change in the principal amount of the Notes, reductions in
fees or interest (in each case to the extent subject to such participation),
releasing all or substantially all of the Collateral (other than pursuant to
Section 9.18), or extending the Termination Date (provided that, in any case in
which a participant has the right to approve any amendment, waiver or consent as
described above in this clause (v), such Bank shall retain (and hereby agrees to
exercise) the right to repurchase the participation of such participant if such
participant does not approve any such amendment, waiver or consent). The
Borrower hereby agrees that participants shall have the same rights under
Sections 2.10, 2.11, 2.12(b) and 9.04 as a Bank to the extent of their
respective participations.
Section 9.07. Treatment of Certain Information; Confidentiality. Each of
the Administrative Agent, the Banks and the Issuing Bank agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and to its and its Affiliates' respective
partners, directors, officers, employees, agents, advisors and representatives
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Credit Document or any
action or proceeding relating to this Agreement or any other Credit Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Bank, the Issuing Bank or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Bank or the Issuing Bank on a
nonconfidential basis prior to disclosure by the Borrower or any Subsidiary,
provided that, in the case of information received from the Borrower or any
Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
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Section 9.08. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Section 9.09. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Credit Document
or other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Bank, regardless of any investigation made by the
Administrative Agent or any Bank or on their behalf and notwithstanding that the
Administrative Agent or any Bank may have had notice or knowledge of any Default
at the time of any Advance or issuance of Letter of Credit, and shall continue
in full force and effect as long as any Advance or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.
Section 9.10. Severability. In case one or more provisions of this
Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable in any respect under any applicable law, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
not be affected or impaired thereby.
Section 9.11. Payments Set Aside. To the extent that any payment by or on
behalf of the Borrower is made to the Administrative Agent, the Issuing Bank or
any Bank, or the Administrative Agent, the Issuing Bank or any Bank exercises
its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent, the Issuing Bank or such Bank in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Bank and
the Issuing Bank severally agrees to pay to the Administrative Agent upon demand
its applicable share (without duplication) of any amount so recovered from or
repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of the Banks and the
Issuing Bank under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.
Section 9.12. Guaranties. The Administrative Agent and each of the Banks
hereby consent to the terms and conditions of the Second Amended and Restated
Subsidiary Guaranties executed by each of the Guarantors on the date hereof.
Section 9.13. Usury Not Intended. It is the intent of the Borrower, the
Administrative Agent and the Banks in the execution and performance of this
Agreement and the other Credit Documents to contract in strict compliance with
applicable usury laws, including conflicts of law concepts, governing the
Advances of the Banks including such applicable laws of the State of Texas and
the United States of America from time-to-time in effect. In furtherance
thereof, the
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Administrative Agent, the Banks and the Borrower stipulate and agree that none
of the terms and provisions contained in this Agreement or the other Credit
Documents shall ever be construed to create a contract to pay, as consideration
for the use, forbearance or detention of money, interest at a rate in excess of
the Maximum Rate and that for purposes hereof "interest" shall include the
aggregate of all charges which constitute interest under such laws that are
contracted for, charged or received under this Agreement and the other Credit
Documents; and in the event that, notwithstanding the foregoing, under any
circumstances the aggregate amounts taken, reserved, charged, received or paid
on the Advances, include amounts which by applicable law are deemed interest
which would exceed the Maximum Rate, then such excess shall be deemed to be a
mistake and the Bank receiving same shall credit the same on the principal of
its Advances (or if its Advances shall have been paid in full, refund said
excess to the Borrower). In the event that the maturity of the Obligations is
accelerated by reason of any election of the holder thereof resulting from any
Event of Default under this Agreement or otherwise, or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest may never include more than the Maximum Rate and excess interest, if
any, provided for in this Agreement or otherwise shall be canceled automatically
as of the date of such acceleration or prepayment and, if theretofore paid,
shall be credited on the Advances (or, if the Advances shall have been paid in
full, refunded to the Borrower of such interest). The provisions of this Section
shall control over all other provisions of this Agreement or the other Credit
Documents which may be in apparent conflict herewith. In determining whether or
not the interest paid or payable under any specific contingencies exceeds the
Maximum Rate, the Borrower, the Administrative Agent and the Banks shall to the
maximum extent permitted under applicable law amortize, prorate, allocate and
spread in equal parts during the period of the full stated term of the Advances,
all amounts considered to be interest under applicable law at any time
contracted for, charged, received or reserved in connection with the
Obligations.
Section 9.14. Waiver of Jury; Consent to Jurisdiction. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION. EACH SUCH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
TEXAS AND OF ANY TEXAS STATE COURT SITTING IN DALLAS, TEXAS FOR PURPOSES OF ALL
LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS, AND THE TRANSACTIONS CONTEMPLATED THEREBY.
Section 9.15. Governing Law. This Agreement, the Notes and the other
Credit Documents shall be governed by, and construed and enforced in accordance
with, the laws of the State of Texas. Without limiting the intent of the parties
set forth above, (a) Chapter 15,
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Subtitle 3, Title 79, of the Revised Civil Statutes of Texas, 1925, as amended
(relating to revolving loans and revolving tri-party accounts), shall not apply
to this Agreement, the Notes, or the transactions contemplated hereby and (b) to
the extent that any Bank may be subject to Texas law limiting the amount of
interest payable for its account, such Bank shall utilize the indicated (weekly)
rate ceiling from time to time in effect as provided in Chapter 303 of the Texas
Finance Code, as amended (formerly known as the indicated (weekly) rate ceiling
in Article 5069-1.04 of the Revised Civil Statutes of Texas).
Section 9.16. Credit Documents. To the extent the specific terms and
provisions of this Agreement expressly conflict with the specific terms and
provisions of any of the other Credit Documents, the specific terms and
provisions of this Credit Agreement shall control.
Section 9.17. Existing Indebtedness. The indebtedness of the Borrower
evidenced under this Agreement and the other Credit Documents is given in
renewal, extension, modification but not in extinguishment or discharge of, a
portion of the indebtedness evidenced by the Notes executed by the Borrower each
dated March 31, 2005, in the aggregate principal amount of $250,000,000 executed
by the Borrower to the order of the lenders named therein, each bearing interest
and being due and payable as therein provided.
Section 9.18. Release of Collateral. If after the Effective Date (a) the
Borrower has senior unsecured long-term debt outstanding (or if no such senior
unsecured long-term debt is outstanding that is rated by S&P and ▇▇▇▇▇'▇, the
Borrower has a corporate debt rating) that is rated at or above BBB- by S&P and
Baa3 by ▇▇▇▇▇'▇ (a "Ratings Increase"), and (b) so long as no Default or Event
of Default shall have occurred and then be continuing at such time, then the
Collateral shall be released from the Liens created by the Security Documents
and all obligations (other than those expressly stated to survive such
termination) of the Collateral Agent, the Borrower and each Guarantor thereunder
shall terminate, all without delivery of any instrument or performance of any
act by any party, and all rights to the Collateral shall revert to the Borrower
and its respective Subsidiaries; provided however, that (A) the Holders shall
also grant a similar release of Collateral, (B) the Borrower and its
Subsidiaries shall grant the Administrative Agent and the Banks a negative
pledge on the assets of the Borrower and its Subsidiaries, except for Liens
permitted by Section 6.02, and shall not grant a negative pledge to any other
creditor other than the Holders and (C) the obligations of the Borrower arising
under this Agreement and the Credit Documents rank pari passu and equal in right
of payment with all of the other Debt of the Borrower, which is not by its terms
secured by any assets of the Borrower and its Subsidiaries, and which is not
subordinate in right of payment to any other Debt of the Borrower or its
Subsidiaries. At the request and expense of the Borrower following any such
termination and release, the Collateral Agent shall deliver to the Borrower or
such respective Subsidiary any Collateral held by the Collateral Agent under the
Security Documents, and shall execute and deliver to the Borrower or such
Subsidiary such documents as such Person shall reasonably request to evidence
such termination and release. Notwithstanding the foregoing, if subsequent to
such Rating Increase, the Borrower has senior unsecured long-term debt
outstanding that is either (i) not rated by both S&P and ▇▇▇▇▇'▇ or (ii) is
rated by S&P and ▇▇▇▇▇'▇ and all such debt is rated below BBB- by Standard &
Poor's or below Baa3 by ▇▇▇▇▇'▇, then, at the expense of the Borrower, the
Borrower shall promptly, or such cause each of its Subsidiaries to promptly,
execute and deliver to the Collateral Agent such security agreements, amendments
to this Agreement, other documents and legal opinions, as the
-88-
Collateral Agent and the Banks may reasonably request or deem necessary in
connection with the foregoing grant of a security interest, in order to cause
the Collateral to be subject to the Liens created by the Security Documents as
of the Effective Date, and the Company shall execute and deliver such security
agreements, amendments to this Agreement, other documents and legal opinions, as
the Agent and the Banks may reasonably request in connection with the foregoing
grant of a security interest, and the provisions of this Section 9.18 shall not
apply to any future Ratings Increase.
Section 9.19. Amendment and Restatement. The Borrower, the Administrative
Agent and the Banks have agreed that this Agreement is an amendment and
restatement of the Existing Credit Agreement in its entirety and the terms and
provisions hereof supersede the terms and provisions thereof, and this Agreement
is not a new or substitute credit agreement or novation of the Existing Credit
Agreement.
Section 9.20. USA PATRIOT Act Notice. Each Bank that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Bank) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Bank or
the Administrative Agent, as applicable, to identify the Borrower in accordance
with the Act.
PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS AND COMMERCE CODE, A
CREDIT AGREEMENT IN WHICH THE AMOUNT INVOLVED IN THE CREDIT AGREEMENT EXCEEDS
$50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE CREDIT AGREEMENT IS IN WRITING
AND SIGNED BY THE PARTY TO BE BOUND OR THAT PARTY'S AUTHORIZED REPRESENTATIVE.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT SUBJECT TO THE
PRECEDING PARAGRAPH SHALL BE DETERMINED SOLELY FROM THE WRITTEN CREDIT
AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY
AND MERGED INTO THE CREDIT AGREEMENT. THIS WRITTEN AGREEMENT AND THE CREDIT
DOCUMENTS, AS DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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EXECUTED as of the 1st day of November, 2005.
BORROWER:
CROSSTEX ENERGY, L.P.
By: Crosstex Energy GP, L.P.,
its general partner
By: Crosstex Energy GP, LLC,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President - Finance
BANK OF AMERICA, N.A.,
as Administrative Agent and as
Collateral Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Title: Assistant Vice President
BANK OF AMERICA, N.A.,
as a Bank and as an Issuing Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
as Co-Syndication, as a Bank and as
an Issuing Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Title: Vice President
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------------
Title: Vice President
Signature Page to Fourth Amended and Restated Credit Agreement
Crosstex Energy, L.P.
SUNTRUST BANK
as Co-Syndication Agent and as a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇
--------------------------------------------
Title: Managing Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FINANCING, INC.
as Co-Documentation Agent and as a Bank
By: /s/ Cahal ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Documentation Agent and as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Title: Managing Director
BAYERISCHE HYPO - UND VEREINSBANK AG,
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Director
CITIBANK, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Title: Attorney-in-Fact
SCOTIABANC INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------------
Title: Senior Manager
Signature Page to Fourth Amended and Restated Credit Agreement
Crosstex Energy, L.P.
BNP PARIBAS
By: /s/ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Director
By: /s/ Matthieu Milandri
--------------------------------------------
Title: Vice President
WESTLB AG, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------
ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Title: Authorized Signatory
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. Purchase
--------------------------------------------
Title: Vice President
UFJ BANK LIMITED
By: /s/ Authorized Signatory
--------------------------------------------
FORTIS CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Title: Senior Vice President
Signature Page to Fourth Amended and Restated Credit Agreement
Crosstex Energy, L.P.
GUARANTY BANK
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Senior Vice President
JPMORGAN CHASE BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Senior Vice President
NATEXIS BANQUES POPULAIRES
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
--------------------------------------------
Title: Vice President and Group Manager
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Title: Vice President
KEY BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Title: Vice President
COMERICA BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Title: Senior Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Title: General Manager
Signature Page to Fourth Amended and Restated Credit Agreement
Crosstex Energy, L.P.
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Title: Vice President
STERLING BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Title: Senior Vice President
COMPASS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Senior Vice President
BANK OF SCOTLAND
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Title: Assistant Vice President
MIZUHO CORPORATE BANK, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Title: Deputy General Manager
NATIONAL CITY CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
Title: Vice President
Signature Page to Fourth Amended and Restated Credit Agreement
Crosstex Energy, L.P.