EXHIBIT 10.15
CONFORMED COPY
CREDIT AGREEMENT
Dated as of September 5, 2001
Among
BUCKEYE PARTNERS, L.P.
as Borrower,
SUNTRUST BANK,
as Administrative Agent,
and
THE LENDERS SIGNATORY HERETO
$262,500,000 FIVE YEAR REVOLVING CREDIT FACILITY
________________________________________________________________________________
SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CAPITAL MARKETS, INC.
a division of SunTrust Capital Markets, Inc.,
as Sole Lead Arranger,
BNP PARIBAS,
as Syndication Agent
NATIONAL AUSTRALIA BANK LIMITED
and
MIZUHO FINANCIAL GROUP,
as Co-Documentation Agents
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING MATTERS ............................................................1
SECTION 1.01. Certain Defined Terms ...................................................................1
SECTION 1.02. Accounting Terms and Determinations ....................................................19
ARTICLE II COMMITMENTS .................................................................................19
SECTION 2.01. Loans and Letters of Credit ............................................................19
SECTION 2.02. Borrowings, Continuations and Conversions of Revolving Credit
Loans: Letters of Credit ..............................................................21
SECTION 2.03. Changes of Commitments; Commitment Increase ............................................23
SECTION 2.04. Fees ...................................................................................24
SECTION 2.05. Several Obligations ....................................................................26
SECTION 2.06. Noteless Agreement; Evidence of Indebtedness ...........................................26
SECTION 2.07. Prepayments ............................................................................26
SECTION 2.08. Assumption of Risks ....................................................................27
SECTION 2.09. Obligation to Reimburse and to Prepay ..................................................28
SECTION 2.10. Lending Offices ........................................................................29
ARTICLE III PAYMENTS OF PRINCIPAL AND INTEREST .........................................................30
SECTION 3.01. Repayment of Loans .....................................................................30
SECTION 3.02 Interest ................................................................................30
ARTICLE IV PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC..............................................31
SECTION 4.01. Payments................................................................................31
SECTION 4.02. Pro Rata Treatment......................................................................31
SECTION 4.03. Computations............................................................................31
SECTION 4.04. Non-receipt of Funds by the Agent.......................................................32
SECTION 4.05. Set-off, Sharing of Payments, Etc ......................................................32
SECTION 4.06. Taxes ..................................................................................33
ARTICLE V YIELD PROTECTION .............................................................................35
SECTION 5.01. Additional Costs .......................................................................35
SECTION 5.02. Basis Unavailable or Inadequate for LIBOR Rate .........................................36
SECTION 5.03. Illegality .............................................................................36
SECTION 5.04. Base Rate Loans ........................................................................37
SECTION 5.05. Compensation ...........................................................................37
SECTION 5.06. Replacement Lenders ....................................................................37
ARTICLE VI CONDITIONS PRECEDENT ........................................................................38
SECTION 6.01. Initial Funding ........................................................................38
i
SECTION 6.02. Initial and Subsequent Loans and Letters of Credit .....................................40
SECTION 6.03. Conditions Precedent for the Benefit of Lenders ........................................40
SECTION 6.04. No Waiver ..............................................................................40
ARTICLE VII REPRESENTATIONS AND WARRANTIES .............................................................40
SECTION 7.01. Existence ..............................................................................41
SECTION 7.02. Financial Condition ....................................................................41
SECTION 7.03. Litigation .............................................................................41
SECTION 7.04. No Breach ..............................................................................42
SECTION 7.05 Authority ..............................................................................42
SECTION 7.06. Approvals ..............................................................................42
SECTION 7.07. Use of Loans ...........................................................................42
SECTION 7.08. ERISA ..................................................................................43
SECTION 7.09. Taxes ..................................................................................44
SECTION 7.10. Titles, etc ............................................................................44
SECTION 7.11. No Material Misstatements ..............................................................45
SECTION 7.12. Investment Company Act .................................................................45
SECTION 7.13. Public Utility Holding Company Act .....................................................45
SECTION 7.14. Subsidiaries ...........................................................................45
SECTION 7.15. Location of Business and Offices .......................................................45
SECTION 7.16. Defaults ...............................................................................45
SECTION 7.17. Environmental Matters...................................................................46
SECTION 7.18. Compliance with the Law ................................................................47
SECTION 7.19. Insurance...............................................................................47
SECTION 7.20. Material Agreements.....................................................................47
SECTION 7.21. Partnership Agreement...................................................................47
SECTION 7.22. Ownership of Parties....................................................................48
SECTION 7.23. No Other Debt...........................................................................48
ARTICLE VIIII AFFIRMATIVE COVENANTS ....................................................................48
SECTION 8.01. Reporting Requirements .................................................................48
SECTION 8.02. Litigation..............................................................................50
SECTION 8.03. Maintenance, Etc........................................................................50
SECTION 8.04. Guaranty Approval.......................................................................51
SECTION 8.05. Environmental Matters...................................................................51
SECTION 8.06. Further Assurances......................................................................52
SECTION 8.07. Performance of Obligations..............................................................52
SECTION 8.08. ERISA Information and Compliance........................................................52
ARTICLE IX NEGATIVE COVENANTS...........................................................................52
SECTION 9.01. Debt....................................................................................53
SECTION 9.02. Liens...................................................................................53
SECTION 9.03. Investments, Loans and Advances.........................................................54
SECTION 9.04. Distributions and Redemptions...........................................................55
ii
SECTION 9.05. Sales and Leasebacks ...................................................................55
SECTION 9.06. Nature of Business .....................................................................55
SECTION 9.07. Restrictive Agreements .................................................................55
SECTION 9.08. Mergers, Etc ...........................................................................56
SECTION 9.09. Proceeds of the Loans; Letters of Credit ...............................................56
SECTION 9.10. ERISA Compliance .......................................................................56
SECTION 9.11. Sale or Discount of Receivables ........................................................57
SECTION 9.12. Funded Debt Ratio ......................................................................57
SECTION 9.13. Fixed Charge Coverage Ratio . ..........................................................58
SECTION 9.14. Sale of Properties .....................................................................58
SECTION 9.15. Environmental Matters . ................................................................58
SECTION 9.16. Transactions with Affiliates . .........................................................58
SECTION 9.17. Partnership Agreements . ...............................................................58
SECTION 9.18. Senior Notes . .........................................................................58
SECTION 9.19. Laurel Debt ............................................................................59
ARTICLE X EVENTS OF DEFAULT; REMEDIES ..................................................................59
SECTION 10.01. Events of Default .....................................................................59
SECTION 10.02. Remedies ..............................................................................61
ARTICLE XI THE AGENT ...................................................................................61
SECTION 11.01. The Agent .............................................................................61
SECTION 11.02. Expenses ..............................................................................63
SECTION 11.03. Proportionate Absorption of Losses ....................................................63
SECTION 11.04. Delegation of Duties; Reliance ........................................................64
SECTION 11.05. Limitation of the Agent's Liability . .................................................64
SECTION 11.06. Event of Default ......................................................................65
SECTION 11.07. Limitation of Liability ...............................................................65
SECTION 11.08. Other Agents ..........................................................................66
SECTION 11.09. Relationships of Lenders...............................................................66
SECTION 11.10. Benefits of Agreement .................................................................66
ARTICLE XII MISCELLANEOUS ..............................................................................66
SECTION 12.01. Waiver ................................................................................66
SECTION 12.02. Notices ...............................................................................66
SECTION 12.03. Payment of Expenses, Indemnities, etc .................................................67
SECTION 12.04. Amendments, Etc........................................................................69
SECTION 12.05. Successors and Assigns ................................................................70
SECTION 12.06. Assignments and Participations ........................................................70
SECTION 12.07. Invalidity . ..........................................................................72
SECTION 12.08. Counterparts . ........................................................................72
SECTION 12.09. References ............................................................................72
SECTION 12.10. Survival ..............................................................................73
SECTION 12.11. Captions ..............................................................................73
iii
SECTION 12.12. No Oral Agreements ....................................................................73
SECTION 12.13. Governing Law; Submission to Jurisdiction .............................................73
SECTION 12.14. Interest ..............................................................................75
SECTION 12.15. Confidentiality .......................................................................75
SECTION 12.16. Exculpation Provisions ................................................................76
iv
ANNEXES, EXHIBITS AND SCHEDULES
Annex I - List of Percentage Shares and Revolving Credit Commitments
Exhibit A - Form of Borrowing, Continuation and Conversion Request
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Assignment Agreement
Exhibit D-1 - Restricted Subsidiaries as of the Date Hereof
Exhibit D-2 - Unrestricted Subsidiaries as of the Date Hereof
Exhibit E - Form of Guaranty
Schedule 7.02 - Liabilities
Schedule 7.03 - Litigation
Schedule 7.10 - Titles, etc.
Schedule 7.14 - Subsidiaries and Partnerships
Schedule 7.17 - Environmental Matters
Schedule 7.22 - Structure and Ownership of Subsidiaries
Schedule 9.01 - Debt
Schedule 9.02 - Liens
Schedule 9.03 - Investments, Loans and Advances
v
THIS CREDIT AGREEMENT (as amended, supplemented and modified from time
to time, this "Agreement") is entered into as of September 5, 2001, among
BUCKEYE PARTNERS, L.P., a limited partnership formed under the laws of the State
of Delaware (the "Borrower"); each of the lenders that is a signatory hereto or
that becomes a signatory hereto as provided in Section 12.06 (together with
their successors and assigns, the "Lenders"); SUNTRUST BANK ("SunTrust"), as
administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Agent") and as Issuing Bank (as defined
below).
RECITALS
A. The Borrower has requested that the Lenders provide certain loans to
and extensions of credit on behalf of the Borrower.
B. The Lenders have agreed to make such loans and extensions of credit
subject to the terms and conditions of this Agreement.
C. In consideration of the mutual covenants and agreements herein
contained and of the loans, extensions of credit and commitments hereinafter
referred to, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
SECTION 1.01. Certain Defined Terms.
As used herein, the following terms shall have the following meanings
(all terms defined in this Article I or in other provisions of this Agreement in
the singular to have equivalent meanings when used in the plural and vice
versa):
"Additional Costs" shall have the meaning assigned such term in
Section 5.01 (a).
"Additional Lender" shall have the meaning assigned such term in
Section 2.03(c).
"Affected Loans" shall have the meaning assigned such term in
Section 5.04.
"Affiliate" of any Person shall mean (i) any Person directly or
indirectly controlled by, controlling or under common control with such
first Person, (ii) any director or officer of such first Person or of
any Person referred to in clause (i) above and (iii) if any Person in
clause (i) above is an individual, any member of the immediate family
(including parents, spouse and children) of such individual and any
trust whose principal beneficiary is such individual or one or more
members of such immediate family and any Person who is controlled by
any such member or trust. For purposes of this definition, any Person
which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other governing
body of a corporation or 10% or more of the partnership or other
ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to "control" (including,
with its correlative meanings, "controlled by" and "under common
control with") such corporation or other Person.
2
"Agent" shall have the meaning assigned such term in the preamble
to this Agreement.
"Agreement" shall have the meaning assigned such term in the
preamble to this Agreement.
"Aggregate Revolving Credit Commitments" at any time shall equal
the sum of the Revolving Credit Commitments of the Lenders, as the same
may be reduced pursuant to Section 2.03(a) or increased pursuant to
Section 2.03(c).
"Applicable Lending Office" shall mean, for each Lender and for
each Type of Loan, the lending office of such Lender (or an Affiliate
of such Lender) designated for such Type of Loan on the signature pages
hereof or such other offices of such Lender (or of an Affiliate of such
Lender) as such Lender may from time to time specify to the Agent and
the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" shall mean, for any LIBOR Loan or any Base
Rate Loan, (i) on any date the Utilization Percentage equals or is less
than 50%, the LIBOR Margin or Base Rate Margin interest rate per annum
set forth below in the columns identified as ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇
▇, ▇▇▇▇▇ 4 and Level 5, and (ii) on any date the Utilization Percentage
exceeds 50%, the Utilized LIBOR Margin or Utilized Base Rate Margin
interest rate per annum set forth below in the columns identified as
▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 4 and Level 5, in each case,
determined by reference to the Reference Rating.
======================================================================================================================
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5
======================================================================================================================
Reference Reference Reference
Rating Less Rating Less Rating Less
S&P Reference than ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇ ▇ Reference
Rating but at least but at least but at least Rating
▇▇▇▇▇'▇ at least A-/A3 BBB/Baa1 BBB/Baa2 BBB-/Baa3 below Level 4*
======================================================================================================================
Interest Rate PerAnnum
======================================================================================================================
LIBOR Margin 0.625% 0.725% 0.850% 1.000% 1.375%
======================================================================================================================
Base Rate Margin 0.000% 0.000% 0.000% 0.000% 0.000%
======================================================================================================================
Utilized LIBOR Margin 0.725% 0.850% 0.975% 1.125% 1.550%
======================================================================================================================
Utilized Base Rate
Margin 0.100% 0.125% 0.125% 0.125% 0.175%
======================================================================================================================
*or unrated
3
Any change in the Applicable Margin will be effective as of the
date on which S&P or ▇▇▇▇▇'▇, as the case may be, announces any change
in the ratings used to determine the Reference Rating.
"Assignment Agreement" shall have the meaning assigned such term
in Section 12.06(b).
"Base Rate" shall mean, with respect to any Base Rate Loan, for
any day, the higher of (i) the Federal Funds Rate for any such day plus
1/2 of 1% and (ii) the Prime Rate for such day. Each change in any
interest rate provided for herein based upon the Base Rate resulting
from a change in the Base Rate shall take effect at the time of such
change in the Base Rate.
"Base Rate Loans" shall mean Loans that bear interest at rates
based upon the Base Rate.
"BMC" shall mean Buckeye Management Company, a Delaware
corporation.
"BPLC" shall mean Buckeye Pipe Line Company, a Delaware
corporation.
"Borrower" shall have the meaning assigned such term in the
preamble to this Agreement.
"Borrower Partnership Agreement" shall mean the Amended and
Restated Agreement of Limited Partnership of the Borrower, dated as of
December 31, 1998, as amended from time to time.
"Buckeye Pipe Line Partnership Agreement" shall mean the Amended
and Restated Agreement of Limited Partnership of Buckeye Pipe Line
Company, L.P., dated as of December 23, 1986, as amended on August 12,
1997, as amended and restated on March 25, 1998, and as it may be
amended from time to time.
"Business Day" shall mean any day other than a day on which
commercial banks are authorized or required to close in Georgia or New
York and, if such day relates to a borrowing or continuation of, a
payment or prepayment of principal of or interest on, or a conversion
of or into, or the Interest Period for, a LIBOR Loan or a notice by the
Borrower with respect to any such borrowing or continuation, payment,
prepayment, conversion or Interest Period, any day that is also a day
on which dealings in Dollar deposits are carried out in the London
interbank market.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq.
4
"Change of Control" shall mean either (i) a change resulting when
any Unrelated Person or any Unrelated Persons acting together that
would constitute a Group together with any Affiliates thereof (in each
case also constituting Unrelated Persons) shall at any time
Beneficially Own more than 50% of the aggregate voting power of all
classes of Voting Stock of BMC, (ii) BMC or Glenmoor, Ltd. shall cease
to own 100% of the outstanding stock of BPLC on a fully diluted basis
or (iii) BPLC shall cease to own 100% of the general partnership
interest of the Borrower. As used herein (A) "Beneficially Own" means
"beneficially own" as defined in Rule l3d-3 of the Securities Exchange
Act of 1934, as amended, or any successor provision thereto; provided,
however, that, for purposes of this definition, a Person shall not be
deemed to Beneficially Own securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such
Person's Affiliates until such tendered securities are accepted for
purchase or exchange; (B) "Group" means a "group" for purposes of
Section 13(d) of the Securities Exchange Act of 1934, as amended; (C)
"Unrelated Person" means at any time any Person other than (1)
Glenmoor, Ltd. and the stockholders thereof as of the date hereof, (2)
their respective spouses, lineal descendants, and spouses of their
lineal descendants, (3) the estates of the Persons described in clauses
(1) and (2), and (4) trusts established solely for the benefit of any
Person or Persons described in clauses (1) and (2); and (D) "Voting
Stock" of any Person shall mean capital stock of such Person that
ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by
reason of any contingency.
"Closing Date" shall mean the date on which the conditions
precedent described in Section 6.01 to the Initial Funding shall be
satisfied or waived.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time and any successor statute.
"Commitment" shall mean, for any Lender, its obligation to make
Revolving Credit Loans and to participate in Swing Line Loans as
provided in Section 2.01(b) and Letters of Credit as provided in
Section 2.01(c), up to such Lender's Revolving Credit Commitment in
each case as such amount may be (i) reduced from time to time pursuant
to Section 2.03(a), or (ii) increased pursuant to Section 2.03(c).
"Commitment Increase" shall have the meaning assigned such term
in Section 2.03(c).
"Commitment Increase Approvals" means any Governmental
Requirement, resolution of the Board of Directors of the Borrower or
resolution of the Board of Directors of any Restricted Subsidiary not
obtained by or on behalf of the Borrower or such Restricted Subsidiary,
as applicable, and in full force and effect on the date hereof, which
Governmental Requirement or resolution is required to be obtained in
order to authorize the Commitment Increase and the performance by the
Borrower and the Restricted Subsidiaries of their respective
obligations under the Loan Documents after giving effect to the
Commitment Increase.
"Compliance Certificate" shall mean a certificate from the
Borrower substantially in the form of Exhibit B.
5
"Consolidated Net Income" shall mean, with respect to any Person
for any period, the aggregate of the net income (or loss) of such
Person and its Consolidated Subsidiaries after allowances for taxes for
such period, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded from such net income (to
the extent otherwise included therein) the following: (i) the net
income of any other Person in which such Person or any of its
Consolidated Subsidiaries has an interest (which interest does not
cause the net income of such other Person to be consolidated with the
net income of such Person and its Consolidated Subsidiaries in
accordance with GAAP), except to the extent of the amount of dividends
or distributions actually paid in such period by such other Person to
such Person or to a Consolidated Subsidiary of such Person, as the case
may be; (ii) the net income (but not loss) of any Consolidated
Subsidiary of such Person to the extent that the declaration or payment
of dividends or similar distributions or transfers or loans by that
Consolidated Subsidiary is not at the time permitted by operation of
the terms of its charter or any agreement, instrument or Governmental
Requirement applicable to such Consolidated Subsidiary, or is
other-wise restricted or prohibited in each case determined in
accordance with GAAP; (iii) the net income (or loss) of any other
Person acquired in a pooling-of-interests transaction for any period
prior to the date of such transaction; (iv) any extraordinary gains or
losses, including gains or losses attributable to Property sales not in
the ordinary course of business; and (v) the cumulative effect of a
change in accounting principles resulting in any gains or losses
attributable to write-ups or write-downs of assets or liabilities.
"Consolidated Subsidiaries" shall mean each Subsidiary of any
Person (whether now existing or hereafter created or acquired) the
financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance
with GAAP.
"Debt" shall mean, for any Person the sum of the following
(without duplication): (i) all obligations of such Person for borrowed
money or evidenced by bonds, debentures, notes or other similar
instruments (including principal, interest, fees and charges); (ii) all
obligations of such Person (whether contingent or otherwise) in respect
of bankers' acceptances, letters of credit, surety or other bonds and
similar instruments; (iii) all obligations of such Person to pay the
deferred purchase price of Property or services (other than for
borrowed money); (iv) all obligations under leases which shall have
been, or should have been, in accordance with GAAP, recorded as capital
leases in respect of which such Person is liable (whether contingent or
otherwise); (v) all obligations under operating leases which require
such Person or its Affiliate to make rental payments over the term of
such lease, based on the purchase price or appraised value of the
Property subject to such lease plus a marginal interest rate, and used
primarily as a financing vehicle for, or to monetize, such Property;
(vi) all Debt (as described in the other clauses of this definition) of
others secured by a Lien on any asset of such Person, whether or not
such Debt is assumed by such Person; (vii) all Debt (as described in
the other clauses of this definition) of others guaranteed by such
Person or in which such Person otherwise assures a creditor against
loss of the debtor, provided that such obligations would be recorded as
a liability under GAAP; (viii) all obligations or undertakings of such
Person to maintain or cause to be maintained the financial position or
financial covenants of others or to purchase the Debt of others; (ix)
obligations to deliver goods or services not in the ordinary course of
business in consideration of advance payments; (x) obligations to pay
for goods or services not in the ordinary course of business whether or
not such goods or services are actually received or utilized by such
Person; (xi) any capital stock of such Person in which such Person has
a mandatory obligation to redeem such stock; (xii) any Debt of a
Special Entity for which such Person is liable either by agreement or
because of a Governmental Requirement; and (xiii) all obligations of
such Person under Hedging Agreements.
6
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default,
"Dollars" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean for any Person for any period, the sum of
Consolidated Net Income for such period plus the following expenses or
charges to the extent deducted from Consolidated Net Income for such
period: interest, taxes, depreciation, depletion and amortization;
provided, however, with respect to the Borrower, if during any period
the Borrower acquires any Person and such Person becomes a Restricted
Subsidiary or the Borrower acquires all or substantially all of the
assets of any Person, the EBITDA attributable to such Person or assets
for such period determined on a pro forma basis (which determination,
in each case, shall be subject to the approval of the Required Lenders,
not to be unreasonably withheld) may be included in EBITDA for the
calculation of the Funded Debt Ratio.
"Environmental Law" shall mean any and all Governmental
Requirements pertaining to health or the environment in effect in any
and all jurisdictions in which the Borrower or any Subsidiary is
conducting or at any time has conducted business, or where any Property
of the Borrower or any Subsidiary is located, including without
limitation, the Oil Pollution Act of 1990 ("OPA"), the Clean Air Act,
as amended, the Comprehensive Environmental, Response, Compensation,
and Liability Act of 1980 ("CERCLA"), as amended, the Federal Water
Pollution Control Act, as amended, the Occupational Safety and Health
Act of 1970, as amended, the Resource Conservation and Recovery Act of
1976 ("RCRA"), as amended, the Safe Drinking Water Act, as amended, the
Toxic Substances Control Act, as amended, the Superfund Amendments and
Reauthorization Act of 1986, as amended, the Hazardous Materials
Transportation Act, as amended, the Federal Insecticide, Fungicide, and
Rodenticide Act, the Emergency Planning and Community Right-to-Know
Act, the Rivers and Harbors Act, analogous state and local Governmental
Requirements, and any analogous future enacted or adopted Governmental
Requirement. The term "oil" shall have the meaning specified in OPA,
the terms "hazardous substance" and "release" (or "threatened release")
have the meanings specified in CERCLA, and the terms "solid waste,"
"hazardous waste" and "disposal" (or "disposed") have the meanings
specified in RCRA; provided, however, that (i) in the event either OPA,
CERCLA or RCRA is amended so as to broaden the meaning of any term
defined thereby, such broader meaning shall apply subsequent to the
effective date of such amendment and (ii) to the extent the laws of the
state in which any Property of the Borrower or any Subsidiary is
located establish a meaning for "oil," "hazardous substance,"
"release," "solid waste," "hazardous waste," or "disposal" which is
broader than that specified in either OPA, CERCLA or RCRA, such broader
meaning shall apply.
7
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time and any successor statute.
"ERISA Affiliate" shall mean each trade or business (whether or
not incorporated) which together with the Borrower or any Subsidiary
would be deemed to be a "single employer" within the meaning of section
4001(b)(1) of ERISA or subsection (b), (c), (m) or (o) of section 414
of the Code.
"ERISA Event" shall mean (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder, (ii) the
withdrawal of the Borrower, any Subsidiary or any ERISA Affiliate from
a Plan during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA or the withdrawal of the
Borrower, any Subsidiary or any ERISA Affiliate from a Multiemployer
Plan, (iii) the filing of a notice of intent to terminate a Plan or the
treatment of a Plan amendment as a termination under Section 4041 of
ERISA, (iv) the institution of proceedings to terminate a Plan by the
PBGC, (v) any other event or condition that might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, (vi) the cessation of operations
at a facility in the circumstances described in Section 4062(e) of
ERISA, (vii) the failure by the Borrower, any Subsidiary or any ERISA
Affiliate to make a payment to a Plan required under Section 302(f)(1)
of ERISA, which failure results in the imposition of a lien for failure
to make required payments, and (viii) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA.
"Event of Default" shall have the meaning assigned such term in
Section 10.01.
"Excepted Liens" shall mean:
(i) Prior Liens;
(ii) statutory Liens incidental to the conduct of business
or the ownership of Properties of the Borrower and the Restricted
Subsidiaries (including Liens in connection with worker's
compensation, unemployment insurance and other like laws (other
than ERISA Liens), warehousemen's and mechanics' and
materialmen's liens and statutory landlord's liens) that in each
case are incurred in the ordinary course of business and not in
connection with the borrowing of money, the obtaining of advances
or credit or the payment of the deferred purchase price of
Property and that do not in any event materially impair the value
or use of the Property encumbered thereby in the operation of the
businesses of the Borrower and the Restricted Subsidiaries;
provided in each case, that the obligation secured is not overdue
or, if overdue, (A) is being contested by the Borrower or a
Restricted Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Borrower or a Restricted
Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of the Borrower or such
Restricted Subsidiary or (B) such Liens in the aggregate do not
secure obligations in the aggregate in excess of $1,000,000;
(iii) the right reserved to, or vested in, any
municipality or public authority or in any other Person by the
terms of any right, power, franchise, privilege, grant, license,
permit, easement or lease or by any provision of law, to
terminate such right, power, franchise, privilege, grant,
license, permit, easement or lease or to purchase or recapture,
or to designate a purchaser of, any of the Properties or assets
of the Borrower and the Restricted Subsidiaries;
(iv) the Lien of any tax or assessment that is not at the
time delinquent;
(v) the Lien of any tax or assessment that is delinquent,
but the validity of which is being diligently contested at the
time by the Borrower or any Restricted Subsidiary in good faith,
provided that the Borrower or such Restricted Subsidiary shall
have established such reserves in such amounts as may be required
under GAAP;
(vi) any Lien or privilege vested in any grantor, lessor
or licenser or permittor for rent or other charges due or for any
other obligations or acts to be performed, the payment of which
rent or other charges or performance of which other obligations
or acts is required under leases, easements, rights-of-way,
leases, licenses, franchises, privileges, grants or permits, so
long as payment of such rent or the performance of such other
obligations or acts is not delinquent or the requirement for such
payment or performance is being contested in good faith by
appropriate proceedings;
(vii) defects and irregularities in the title to the
Property of the Borrower or any Restricted Subsidiary that do not
in the aggregate have a Material Adverse Effect;
(viii) easements, exceptions or reservations in any
Property of the Borrower or any Restricted Subsidiary granted or
reserved for the purpose of pipelines, roads, the removal of oil,
gas, coal or other minerals, and other like purposes or for the
joint or common use of real Property, facilities and equipment,
that do not in the aggregate have a Material Adverse Effect;
(ix) rights reserved to, or vested in any grantor, lessor,
licenser, municipality or public authority to control or regulate
any Property of the Borrower or any Restricted Subsidiary or to
use any such Property, provided, that the Borrower or such
Restricted Subsidiary shall not be in default in respect of any
material obligation (except that the Borrower or such Restricted
Subsidiary may be contesting any such obligation in good faith)
to such grantor, lessor, licenser, municipality or public
authority; and provided, further, that all such controls,
Regulations and uses will not have a Material Adverse Effect;
(x) any obligation or duty to any municipality or public
authority with respect to any lease, easement, right-of-way,
license, franchise, privilege, permit or grant;
9
(xi) the Liens of any judgments in an aggregate amount not
in excess of $500,000, or the Lien of any judgment the execution
of which has been stayed, or which has been appealed and secured,
if necessary, by the filing of an appeal bond;
(xii) Liens or burdens imposed by any law or governmental
regulation, including, without limitations, those imposed by
environmental and zoning laws, ordinances, and regulations;
provided, in each case, the Borrower or any Restricted Subsidiary
is not in default in any material obligation (except that the
Borrower or such Restricted Subsidiary may be contesting any such
obligation in good faith) in respect of such Property; provided,
further, that the existence of all such Liens and burdens does
not have a Material Adverse Effect;
(xiii) any pledge or deposit by the Borrower or any
Restricted Subsidiary to secure payment of workers' compensation
or insurance premiums, or in connection with tenders, bids,
contracts or leases; or any deposits to secure public or
statutory obligations; any pledge or deposit in connection with
contracts with or made at the request of the United States of
America or any state or agency or political subdivision thereof
or for any purposes similar to any of those referred to in this
clause (xiii); provided, in each case, the Borrower or such
Restricted Subsidiary is not in default in any material
obligation (except that the Borrower or such Restricted
Subsidiary may be contesting any such obligation in good faith)
in respect thereof;
(xiv) the making of a deposit with or the giving of any
form of security to any governmental agency or any body created
or approved by law or Governmental Requirement in order to
entitle the Borrower or any Restricted Subsidiary to maintain
self-insurance;
(xv) Liens securing Debt of the Borrower or any Restricted
Subsidiary incurred or assumed in connection with the
construction or acquisition of capital Improvements; provided
that such Debt would be permitted under Section 9.01(e) hereof,
and provided, further, that any such Lien shall not extend to any
Property other than Property the construction or acquisition of
which is financed by such Debt;
(xvi) Liens securing all or any part of the purchase
price, or securing Debt of the Borrower or any Restricted
Subsidiary incurred or assumed to pay all or any part of the
purchase price of Property acquired by the Borrower or any
Restricted Subsidiary, or Liens existing on such Property
immediately prior to its acquisition, including, without
limitation, the Liens described in clause (xv) of this
definition, provided, that (i) that any such Lien shall extend
solely to the Property so acquired, (ii) the principal amount of
Debt secured by any such Lien shall not exceed 100% of the fair
market value of such Property (as reasonably determined by the
Board of Directors of the General Partner) at the time of
acquisition, (iii) any such Lien not existing on such Property
immediately prior to its acquisition shall be created at the time
of acquisition of such Property or within 60 days thereafter and
(iv) the aggregate amount of all outstanding Debt secured by such
Liens shall be permitted under Section 9.01(e);
10
(xvii) Liens arising in connection with Sale-Leaseback
Transactions permitted under Section 9.05; provided that any such
Lien shall not extend to any Property other than Property being
leased; and
(xviii) any Lien of the Trustee encumbering the Defeasance
Trust (as defined in that certain Defeasance Trust Agreement,
dated as of December 16, 1997 (the "Defeasance Trust Agreement"),
among Buckeye Pipe Line Company, L.P., PNC Bank, National
Association, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇) and all funds and securities
therein for the benefit of the holders of the Defeased Notes (as
such term is defined in the Defeasance Trust Agreement).
"Existing Credit Agreements" shall mean (i) that certain Credit
Agreement, dated as of December 16, 1998, as amended from time to time,
among Buckeye Pipe Line Company, L.P., as borrower, Buckeye Partners,
L.P., as guarantor, First Union National Bank, as administrative agent,
The First National Bank of Chicago, as documentation agent and the
lenders signatory thereto, and (ii) that certain Offering Basis Loan
Agreement, dated as of February 15, 2001, by and between First Union
National Bank and Buckeye Pipe Line Company, L.P.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight federal funds
transactions with a member of the Federal Reserve System arranged by
federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day, provided
that (i) if the date for which such rate is to be determined is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the
average rate charged to the Agent on such day on such transactions as
determined by the Agent.
"Fee Letter" shall mean that certain letter agreement from
SunTrust Equitable Securities Corporation and SunTrust to the Borrower,
dated June 19, 2001, as the same may be amended or replaced from time
to time, concerning certain fees in connection with this Agreement and
any agreements or instruments executed in connection herewith.
"Financial Statements" shall mean the financial statement or
statements of the Borrower and its Consolidated Subsidiaries described
or referred to in Section 7.02.
"Fixed Charge Coverage Ratio" shall mean the ratio (calculated
quarterly as of the last day of each fiscal quarter) of (i)
consolidated EBITDA of the Borrower (excluding EBITDA attributable to
Unrestricted Subsidiaries) for the four fiscal quarters ending on such
date (the "Base Period") to (ii) the sum of (A) all payments of
principal (including the principal component of all payments in respect
of lease obligations described in clause (v) of the definition of
"Debt", but excluding payments of principal to be made with the
proceeds of other Debt (i.e., refinancings)) payable by the Borrower
and its consolidated Subsidiaries (other than the Unrestricted
Subsidiaries) during the four fiscal quarter period immediately
succeeding the Base Period (the "Reference Period"), plus (B) interest
expense payable by the Borrower and its consolidated Subsidiaries
(other than the Unrestricted Subsidiaries) during the Reference Period,
plus (C) capital expenditures reasonably necessary to maintain the
Property of the Borrower and its consolidated Subsidiaries (other than
the Unrestricted Subsidiaries) in good working order during the
Reference Period.
11
"Funded Debt" shall mean for any Person, Debt of such Person
(other than the type described in subsection (xiii) of the definition
of Debt), less all obligations of such Person to pay the deferred
purchase price of Property or services obtained in the ordinary course
of business.
"Funded Debt Ratio" shall mean the ratio (calculated quarterly at
the end of each fiscal quarter) of (i) the consolidated Funded Debt of
the Borrower (excluding Funded Debt of Unrestricted Subsidiaries) for
the four fiscal quarters ending on such date to (ii) the consolidated
EBITDA of the Borrower (excluding EBITDA attributable to Unrestricted
Subsidiaries) for such four fiscal quarters.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"General Partner" shall mean BPLC.
"Governmental Authority" shall mean the country, the state,
county, city and political subdivisions in which any Person or such
Person's Property is located or that exercises valid jurisdiction over
any such Person or such Person's Property, and any court, agency,
department, commission, board, bureau or instrumentality of any of them
including monetary authorities that exercises valid jurisdiction over
any such Person or such Person's Property. Unless otherwise specified,
all references to Governmental Authority herein shall mean a
Governmental Authority having jurisdiction over, where applicable, the
Borrower, its Subsidiaries or any of their Property or the Agent, any
Lender or any Applicable Lending Office.
"Governmental Requirement" shall mean any law, statute, code,
ordinance, order, determination, rule, regulation, judgment, decree,
injunction, franchise, permit, certificate, license, authorization or
other directive or requirement (whether or not having the force of
law), including, without limitation, Environmental Laws, energy
regulations and occupational, safety and health standards or controls,
of any Governmental Authority.
"Granting Lender" shall have the meaning assigned such term in
Section 12.06(e).
"Guarantor" shall mean each Restricted Subsidiary that has
executed a Guaranty.
12
"Guaranty" shall mean an agreement executed by each Guarantor
substantially in the form of Exhibit E.
"Hedging Agreements" shall mean any commodity, interest rate or
currency swap, cap, floor, collar, forward agreement or other exchange
or protection agreements or any option with respect to any such
transaction.
"Highest Lawful Rate" shall mean, with respect to any Lender, the
maximum nonusurious interest rate, if any, that at any time or from
time to time may be contracted for, taken, reserved, charged or
received on the Debt hereunder under laws applicable to such Lender
that are presently in effect or, to the extent allowed by law, under
such applicable laws that may hereafter be in effect and that allow a
higher maximum nonusurious interest rate than applicable laws now
allow.
"Increasing Lender" shall have the meaning assigned such term in
Section 2.03(c).
"Indemnified Parties" shall have the meaning assigned such term
in Section 12.03(a)(ii).
"Indemnity Matters" shall mean any and all actions, suits,
proceedings (including any investigations, litigation or inquiries),
claims, demands and causes of action made or threatened against a
Person and, in connection therewith, all losses, liabilities, damages
(excluding, however, indirect and consequential damages and lost
profits) or reasonable costs and expenses of any kind or nature
whatsoever incurred by such Person whether caused by the sole or
concurrent negligence of such Person seeking indemnification.
"Indenture" shall mean that certain Amended and Restated
Indenture, dated as of December 16, 1997, between the Buckeye Pipe Line
Company, L.P. and PNC Bank, National Association, as Trustee, as
amended and supplemented from time to time.
"Initial Funding" shall mean the funding of the initial Loans or
issuance of the initial Letters of Credit upon satisfaction of the
conditions set forth in Sections 6.01 and 6.02.
"Interest Period" shall mean, with respect to any LIBOR Loan, the
period commencing on the date such LIBOR Loan is made and ending on the
numerically corresponding day in the first, second, third or sixth
calendar month thereafter, as the Borrower may select as provided in
Section 2.02 (or such longer period as may be requested by the Borrower
and agreed to by the Required Lenders), except that each Interest
Period that commences on the last Business Day of a calendar month (or
on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Business
Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period may end
after the Termination Date; (ii) each Interest Period that would
otherwise end on a day that is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls
in the next succeeding calendar month, on the next preceding Business
Day); and (iii) no Interest Period shall have a duration of less than
one month and, if the Interest Period for any LIBOR Loans would
otherwise be for a shorter period, such Loans shall not be available
hereunder.
13
"Issuing Bank" shall mean SunTrust or any other Lender agreed to
between the Borrower and the Agent to issue Letters of Credit.
"LC Commitment" shall mean $50,000,000.
"LC Exposure" at any time shall mean the aggregate face amount of
all undrawn and uncancelled Letters of Credit and the aggregate of all
amounts drawn under all Letters of Credit and not yet reimbursed.
"LC Payment Notice" shall have the meaning assigned such term in
Section 2.09(c).
"Lenders" shall have the meaning assigned such term in the
preamble to this Agreement.
"Letter of Credit Agreements" shall mean the written agreements
with the Issuing Bank, as issuing lender for any Letter of Credit,
executed in connection with the issuance by the Issuing Bank of the
Letters of Credit, such agreements to be on the Issuing Bank's
customary form for letters of credit of comparable amount and purpose
as from time to time in effect or as otherwise agreed to by the
Borrower and the Issuing Bank.
"Letters of Credit" shall mean the letters of credit issued
pursuant to Section 2.01(c) and all reimbursement obligations
pertaining to any such letters of credit.
"LIBOR" shall mean, for any Interest Period for any LIBOR Loan,
the rate per annum for deposits in Dollars for a period equal to such
Interest Period appearing on Dow ▇▇▇▇▇ Market Service Page 3750 (or
such other page as may replace Dow ▇▇▇▇▇ Market Service Page 3750 or
that service or another service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of
displaying British Bankers' Association Interest Settlement Rates for
Dollars) as of 11:00 a.m. (London, England time) two Business Days
prior to the first day of such Interest Period. In the event that such
rate does not appear on Dow ▇▇▇▇▇ Market Service Page 3750, or such
other page as referenced above, LIBOR shall be determined by the Agent
to be the rate per annum. at which deposits in Dollars are offered by
leading reference banks in the London interbank market to SunTrust at
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of the applicable Interest Period for a period equal to such
Interest Period and in an amount substantially equal to the amount of
the applicable Loan to be made by the Agent (or any Affiliate of the
Agent).
"LIBOR Loans" shall mean Loans that bear interest at rates based
upon the LIBOR Rate.
14
"LIBOR Rate" shall mean, with respect to any LIBOR Loan, a rate
per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Agent to be equal to the quotient of (i) LIBOR for
the Interest Period for such Loan divided by (ii) 1 minus the Reserve
Requirement for such Loan for such Interest Period.
"Lien" shall mean any interest in Property securing an obligation
owed to, or a claim by, a Person other than the owner of the Property,
whether such interest is based on the common law, statute or contract,
and whether such obligation or claim is fixed or contingent, and
including but not limited to the lien or security interest arising from
a mortgage, encumbrance, pledge, security agreement, conditional sale
or trust receipt or a lease, consignment or bailment for security
purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights of way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances
affecting Property. Any Person shall be deemed to be the owner of any
Property that it has acquired or holds subject to a conditional sale
agreement, or leases under a financing lease or other arrangement,
pursuant to which title to the Property has been retained by or vested
in some other Person in a transaction intended to create a financing.
"Loan Documents" shall mean this Agreement, the Letters of
Credit, the Guaranties, the Letter of Credit Agreements, the Fee
Letter, and any and all other agreements or instruments now or
hereafter executed and delivered by the Borrower or any other Person
(other than participation or similar agreements between any Lender and
any other lender or creditor with respect to any Debt hereunder) in
connection with, or as security for or guaranty of the payment or
performance of this Agreement, or reimbursement obligations under the
Letters of Credit, as such agreements may be amended, supplemented or
restated from time to time.
"Loans" shall mean the loans as provided for by Sections 2.01(a)
and (b). "Loans" shall include the Revolving Credit Loans and the Swing
Line Loans.
"Material Adverse Effect" shall mean any material and adverse
effect on (i) the financial condition or results of operations of the
Borrower and the Restricted Subsidiaries, taken as a whole, different
from those reflected in the Financial Statements or from the facts
represented or warranted in any Loan Document, or (ii) the ability of
the Borrower and the Restricted Subsidiaries, taken as a whole, to
carry out their business as of the date hereof or as proposed as of the
date hereof to be conducted or to meet their obligations under the Loan
Documents on a timely basis.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor thereto.
"Multiemployer Plan" shall mean a Plan defined as such in Section
3(37), or 4001(a)(3) of ER1SA.
"Note Agreement" shall mean the Note Agreement, dated as of
December 16, 1997, between Buckeye Pipe Line Company, L.P. and The
Prudential Insurance Company of America.
15
"Other Credit Agreement" shall mean the 364-Day Credit Agreement,
dated as of September 5, 2001, as amended, modified or supplemented
from time to time, among the Borrower, the lenders from time to time
parties thereto and SunTrust Bank, as agent for such lenders.
"Other Taxes" shall have the meaning assigned such term in
Section 4.06(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions.
"Percentage Share" shall mean, for each Lender, the percentage
obtained by dividing such Lender's Commitment by the Aggregate
Revolving Credit Commitments.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust,
unincorporated organization or government or any agency,
instrumentality or political subdivision thereof, or any other form of
entity.
"Plan" shall mean any employee pension benefit plan, as defined
in Section 3(2) of ERISA, that (i) is currently or hereafter sponsored,
maintained or contributed to by the Borrower, any Subsidiary of the
Borrower or an ERISA Affiliate or (ii) was at any time during the
preceding six calendar years sponsored, maintained or contributed to,
by the Borrower, any Subsidiary of the Borrower or an ERISA Affiliate.
"Post-Default Rate" shall mean, in respect of any principal of
any Loan or any other amount payable by the Borrower under this
Agreement or any other Loan Document, a rate per annum equal to 2% per
annum above the rate of interest applicable from time to time to Base
Rate Loans, but in no event to exceed the Highest Lawful Rate; provided
however, for any LIBOR Loan, the Post-Default Rate shall be 2% per
annum above the interest rate for such Loan as provided in Section
3.02(a)(ii), but in no event to exceed the Highest Lawful Rate.
"Prime Rate" shall mean the rate of interest from time to time
announced publicly by the Agent at the Principal Office as its prime
commercial lending rate. Such rate is set by the Agent as a general
reference rate of interest, taking into account such factors as the
Agent may deem appropriate, it being understood that many of the
Agent's commercial or other loans are priced in relation to such rate,
that it is not necessarily the lowest or best rate actually charged to
any customer and that the Agent may make various commercial or other
loans at rates of interest having no relationship to such rate.
"Principal Office" shall mean the principal office of the Agent,
presently located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Prior Lien" shall mean any Lien not created by the Borrower or
any Restricted Subsidiary, which at any time is a lien upon the lands
over which the Borrower or any Restricted Subsidiary holds easements or
rights-of-way for pipeline purposes, or upon Properties with respect to
which the Borrower's or such Restricted Subsidiary's interest is
subordinate to such Lien, and that does not secure bonds, notes, other
indebtedness, taxes, assessments or other charges that have been
assumed or guaranteed by the Borrower or any Restricted Subsidiary or
for which the Borrower or any Restricted Subsidiary has otherwise
become liable or on which the Borrower or any Restricted Subsidiary
customarily pays interest charges.
16
"Property" shall mean any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Quarterly Dates" shall mean the last day of each March, June,
September and December, in each year, the first of which shall be
September 30, 2001.
"Reference Rating" shall mean the ratings assigned by S&P and
▇▇▇▇▇'▇ to the senior unsecured non-credit enhanced long-term debt of
the Borrower. If such ratings assigned by S&P and ▇▇▇▇▇'▇ are not
comparable (i.e., a "split rating"), and (i) the ratings differential
is less than two levels, then the higher of such two ratings shall
control or (ii) the ratings differential is two levels or more, then
the ratings one below the higher of such two ratings shall control,
unless either rating is below BBB- (in the case of S&P) or Baa3 (in the
case of Moody's), in which case the lower of the two ratings shall
control.
"Regulation D" shall mean Regulation D of the Board of Governors
of the Federal Reserve System (or any successor), as the same may be
amended or supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any
change after the date hereof in any Governmental Requirement (including
Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of lenders
(including such Lender or its Applicable Lending Office) of or under
any Governmental Requirement (whether or not having the force of law)
by any Governmental Authority charged with the interpretation or
administration thereof.
"Required Lenders" shall mean, at any time while no Loans are
outstanding, Lenders having more than 50% of the Aggregate Revolving
Credit Commitments and, at any time Loans are outstanding, Lenders
holding more than 50% of the outstanding aggregate principal amount of
the Loans and LC Exposure (without regard to any sale by a Lender of a
participation in any Loan under Section 12.06(c)).
"Required Payment" shall have the meaning assigned such term in
Section 4.04.
"Reserve Requirement" shall mean, for any Interest Period for any
LIBOR Loan, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be
maintained during such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve
requirement) for the Lenders with respect to liabilities or assets
consisting of or including "eurocurrency liabilities" (as defined in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time) having a term equal to such Interest
Period.
17
Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained
by such member banks by reason of any Regulatory Change against (i) any
category of liabilities that includes deposits by reference to which
LIBOR is to be determined as provided in the definition of "LIBOR" or
(ii) any category of extensions of credit or other assets which include
a LIBOR Loan.
"Responsible Officer" shall mean, as to any Person, the Chief
Executive Officer, the President or any Vice President of such Person
and, with respect to financial matters, the term "Responsible Officer"
shall include the Chief Financial Officer of such Person. Unless
otherwise specified, all references to a Responsible Officer herein
shall mean a Responsible Officer of the Borrower.
"Restricted Subsidiary" shall mean those Persons listed on
Exhibit D-1 and any Subsidiary of the Borrower or of any Restricted
Subsidiary that has not been designated by the Board of Directors of
the General Partner, at its creation or acquisition, as an Unrestricted
Subsidiary. The Borrower may thereafter redesignate an Unrestricted
Subsidiary as a Restricted Subsidiary, and it will thereafter be a
Restricted Subsidiary; provided, that such Restricted Subsidiary may
not thereafter be redesignated as an Unrestricted Subsidiary, and
provided, further, that no Subsidiary may be designated as an
Unrestricted Subsidiary at any time other than at its creation or
acquisition. To qualify as a Restricted Subsidiary, such Subsidiary
shall be in a line of business as is permitted for the Borrower under
the Borrower Partnership Agreement and shall have executed a Guaranty
(except in the case of Laurel Pipe Line Company, L.P., which the
Borrower shall cause to execute a Guaranty pursuant to Section 8.04),
and at the time such Subsidiary is designated as a Restricted
Subsidiary no Default shall exist or result from such designation.
"Revolving Credit Commitment" shall mean, as to each Lender, the
amount set forth opposite such Lender's name on Annex I under the
caption "Revolving Credit Commitment" (as the same may be reduced
pursuant to Section 2.03(a) pro rata to each Lender based on its
Percentage Share), as modified from time to time to reflect any
assignments permitted by Section 12.06(b).
"Revolving Credit Loans" shall mean Loans made pursuant to
Section 2.01(a).
"S&P" shall mean Standard & Poor's Ratings Services, a division
of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Sale-Leaseback Attributable Debt" shall mean, as to any
particular lease relating to a Sale-Leaseback Transaction, the amount
of the net sale proceeds derived from the sale or transfer to the
Borrower or any Restricted Subsidiary of the Property involved.
"Sale-Leaseback Transaction" shall mean a transaction or series
of transactions pursuant to which the Borrower or any Restricted
Subsidiary shall sell or transfer to any Person any Property, whether
now owned or hereafter acquired, and as part of the same transaction or
series of transactions, the Borrower or any Restricted Subsidiary shall
rent or lease as lessee, or similarly acquire the right to possession
or use of, such property or one or more Properties which it intends to
use for the same purpose or purposes as such Property.
18
"SEC" shall mean the Securities and Exchange Commission or any
successor Governmental Authority.
"Senior Notes" shall mean the 6.98% Series 1997A notes in the
aggregate principal amount of $125,000,000, the 6.89% Series 1997B
notes in the aggregate principal amount of $100,000,000, the 6.95%
Series 1997C notes in the aggregate principal amount of $10,000,000,
and the 6.96% Series 1997D notes in the aggregate principal amount of
$5,000,000, each due December 16, 2024 and issued pursuant to the
Indenture.
"SPC" shall have the meaning assigned such term in Section
12.06(e)
"Special Entity" of any Person shall mean any joint venture,
limited liability company or partnership, general or limited
partnership or any other type of partnership or company other than a
corporation in which such Person or one or more of its Subsidiaries is
a member, owner, partner or joint venturer and either (a) owns,
directly or indirectly, at least a majority of the equity or interests
of such entity, or (b) controls such entity, but excluding any tax
partnerships that are not classified as partnerships under state law.
For purposes of this definition, any Person that owns directly or
indirectly an equity investment in another Person that allows the first
Person to manage or elect managers who manage the normal activities of
such second Person will be deemed to "control" such second Person
(e.g., a sole general partner controls a limited partnership).
"Subsidiary" shall mean (i) any corporation of which at least a
majority of the outstanding shares of stock having by the terms thereof
ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether or not at the time stock of
any other class or classes of such corporation shall have or might have
voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by the Borrower or one
or more of its Subsidiaries or by the Borrower and one or more of its
Subsidiaries and (ii) any Special Entity.
"Swing Line Commitment" shall mean, for the Swing Line Lender,
its obligation to make Swing Line Loans up to $10,000,000,
"Swing Line Facility" shall mean the facility pursuant to Section
2.01(b).
"Swing Line Lender" shall mean SunTrust or such other Lender as
Agent, Borrower and such Lender shall agree.
"Swing Line Loans" shall mean the Loans made pursuant to Section
2.01(b)
"SunTrust" shall have the meaning assigned such term in the
preamble to this Agreement.
"Taxes" shall have the meaning assigned such term in Section
4.06(a).
19
"Termination Date" shall mean the earlier to occur of (i) the
fifth anniversary of the date hereof and (ii) the date that the
Commitments are terminated pursuant to Section 2.03(a) or 10.02.
"Type" shall mean, with respect to any Loan, a Base Rate Loan or
a LIBOR Loan.
"Unrestricted Subsidiary" shall mean those Persons listed on
Exhibit D-2 and any Subsidiary of the Borrower or any Restricted
Subsidiary that has been designated by the Board of Directors of the
General Partner as an "Unrestricted Subsidiary" at the time of its
creation or acquisition; provided that no Debt or other obligation of
such Unrestricted Subsidiary may be assumed or guaranteed by the
Borrower or any Restricted Subsidiary except to the extent otherwise
permitted under Section 9.01(e), nor may any asset of the Borrower or
any Restricted Subsidiary, directly or indirectly, contingently or
otherwise, become encumbered or otherwise subject to the satisfaction
thereof except to the extent otherwise permitted under Section 9.02(d).
"Utilization Percentage" shall mean, as of any time for the
determination thereof, the percentage obtained by dividing the
aggregate principal amount of Loans outstanding plus the LC Exposure by
the Aggregate Revolving Credit Commitments then in effect.
SECTION 1.02. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all determinations with respect to accounting matters
hereunder shall be made, and all financial statements and certificates and
reports as to financial matters required to be furnished to the Agent or the
Lenders hereunder shall be prepared, in accordance with GAAP, applied on a basis
consistent with the audited financial statements of the Borrower referred to in
Section 7.02 (except for changes concurred with by the Borrower's independent
public accountants).
ARTICLE II
COMMITMENTS
SECTION 2.01. Loans and Letters of Credit.
(a) Revolving Credit Loans. Each Lender severally agrees, on the terms
and conditions of this Agreement, to make loans to the Borrower during the
period from and including (i) the date hereof or (ii) such later date that such
Lender becomes a party to this Agreement as provided in Section 12.06(b), to and
up to, but excluding, the Termination Date in an aggregate principal amount at
any one time outstanding up to, but not exceeding, the amount of such lender's
Revolving Credit Commitment as then in effect; provided, however, that the
aggregate principal amount of all such Revolving Credit Loans by all Lenders
hereunder at any one time outstanding, plus the LC Exposure, plus the amount
outstanding under the Swing Line Facility shall not exceed the Aggregate
Revolving Credit Commitments. Subject to the terms of this Agreement, during the
period from the date hereof to and up to, but excluding, the Termination Date,
the Borrower may borrow, repay and reborrow the amount described in this Section
2.01(a).
20
(b) Swing Line Loans.
(i) Notwithstanding any other provision of this Agreement to the
contrary, in order to administer the revolving facility under Section
2.01(a) above in an efficient manner and to minimize the transfer of
funds between the Agent and the Lenders, the Swing Line Lender shall
make available Swing Line Loans to the Borrower at the election of
Borrower prior to the Termination Date. The Swing Line Lender shall not
make any Swing Line Loan pursuant hereto (i) if the Borrower is not in
compliance with all the conditions to the making of Loans set forth in
this Agreement, (ii) if after giving effect to such Swing Line Loan,
the outstanding Swing Line Loans exceed the Swing Line Commitment, or
(iii) if after giving effect to such Swing Line Loan, the sum of all
Revolving Credit Loans and Swing Line Loans then outstanding, plus LC
Exposure exceeds the Aggregate Revolving Credit Commitments. Loans made
pursuant to this Section 2.01(b) shall be limited to Loans bearing
interest at the Base Rate or such other rate of interest as agreed upon
by the Borrower and the Swing Line Lender.
(ii) Subject to the terms of this Agreement, during the period from
the Closing Date to but excluding, the Termination Date, the Borrower
may borrow, repay and reborrow Swing Line Loans under this Section
2.01(b). Each repayment of a Swing Line Loan shall be in integral
multiples of $ 100,000 or the unpaid amount of the Swing Line Loans
outstanding. The minimum outstanding amount of Swing Line Loans shall
be $100,000.
(iii) If the Borrower instructs the Swing Line Lender to debit its
demand deposit account in an amount of any payment with respect to a
Swing Line Loan, or the Swing Line Lender otherwise receives repayment
after 12:00 noon Atlanta time, on a Business Day, such payment shall be
deemed received on the next Business Day.
(iv) The Borrower and each Lender which is or may become a party
hereto acknowledge that all Swing Line Loans are to be made solely by
the Swing Line Lender to the Borrower, but that each Lender shall share
the risk of loss with respect to such Loans in an amount equal to such
Lender's Percentage Share of such Swing Line Loan. Upon demand made by
the Swing Line Lender, each Lender (including the Swing Line Lender)
shall, according to its Percentage Share of such Swing Line Loan,
promptly provide to the Swing Line Lender its purchase price therefor
in an amount equal to its Percentage Share therein, in which case such
Swing Line Loan shall be deemed from and after such date a Loan made
under Section 2.01(a). The obligation of each Lender to so provide its
purchase price to the Swing Line Lender shall be absolute and
unconditional and shall not be affected by the occurrence of an Event
of Default or any other occurrence or event.
(c) Letters of Credit. During the period from and including the date
hereof to, but excluding, the Termination Date, the Issuing Bank, as issuing
bank for the Lenders, agrees, on the terms and conditions of this Agreement, to
extend credit for the account of the Borrower at any time and from time to time
by issuing, renewing, extending or reissuing Letters of Credit; provided,
however, the LC Exposure at any one time outstanding shall not exceed the lesser
of (i) the LC Commitment and (ii) the Aggregate Revolving Credit Commitments, as
then in effect, minus the aggregate principal amount of all Loans then
outstanding. The Lenders shall participate in such Letters of Credit according
to their respective Percentage Shares. Each Letter of Credit shall (i) be issued
by the Issuing Bank, (ii) contain such terms and provisions as are reasonably
required by the Issuing Bank, (iii) be for the account of the Borrower and (iv)
expire not later than the earlier of (A) one year from the date of issuance and
(B) five days before the Termination Date.
21
(d) Limitation on Types of Loans. Subject to the other terms and
provisions of this Agreement, at the option of the Borrower, the Loans (other
than Swing Line Loans) may be Base Rate Loans or LIBOR Loans; provided that,
without the prior written consent of the Required Lenders, no more than eight
LIBOR Loans may be outstanding at any time.
SECTION 2.02. Borrowings, Continuations and Conversions of Revolving
Credit Loans; Letters of Credit.
(a) Borrowings. The Borrower shall give the Agent (which shall promptly
notify the Lenders) advance notice as hereinafter provided of each borrowing
under Section 2.01 (a), which shall specify (i) the aggregate amount of such
borrowing, (ii) the Type and (iii) the date (which shall be a Business Day) of
the Loans to be borrowed, and (iv) in the case of LIBOR Loans, the duration of
the Interest Period therefor.
(b) Minimum Amounts. All Base Rate Loan borrowings shall be in amounts
of at least $1,000,000 or the remaining balance of the Aggregate Revolving
Credit Commitments, if less, or any whole multiple of $1,000,000 in excess
thereof, and all LIBOR Loans shall be in amounts of at least $3,000,000 or any
whole multiple of $1,000,000 in excess thereof. All Swing Line Loans shall be in
amounts of at least $1,000,000 or any whole multiple of $100,000 in excess
thereof.
(c) Notices. All borrowings, continuations and conversions shall
require advance written notice to the Agent (which shall promptly notify the
Lenders) in the form of Exhibit A (or telephonic notice promptly confirmed by
such a written notice), which in each case shall be irrevocable, from the
Borrower to be received by the Agent not later than 11:00 a.m. Atlanta time on
the date of each Base Rate Loan borrowing and not later than 11:00 a.m. Atlanta
time at least three Business Days prior to the date of each LIBOR Loan
borrowing, continuation or conversion. Without in any way limiting the
Borrower's obligation to confirm in writing any telephonic notice, the Agent may
act without liability upon the basis of telephonic notice believed by the Agent
in good faith to be from the Borrower prior to receipt of written confirmation.
In each such case, the Borrower hereby waives the right to dispute the Agent's
record of the terms of such telephonic notice except in the case of gross
negligence or willful misconduct by the Agent.
(d) Continuation Options. Subject to the provisions made in this
Section 2.02(d), the Borrower may elect to continue all or any part of any
LIBOR Loan beyond the expiration of the then current Interest Period relating
thereto by giving advance notice as provided in Section 2.02(c) to the Agent
(which shall promptly notify the Lenders) of such election, specifying the
amount of such Loan to be continued and the Interest Period therefor. In the
absence of such a timely and proper election, the Borrower shall be deemed to
have elected to convert such LIBOR Loan to a Base Rate Loan pursuant to Section
2.02(e). All or any part of any LIBOR Loan may be continued as provided herein,
provided that (i) any continuation of any such Loan shall be (as to each Loan as
continued for an applicable Interest Period) in amounts of at least $5,000,000
or any whole multiple of $ 1,000,000 in excess thereof and (ii) no Default shall
have occurred and be continuing. If a Default shall have occurred and be
continuing, each LIBOR Loan shall be converted to a Base Rate Loan on the last
day of the Interest Period applicable thereto.
22
(e) Conversion Options. The Borrower may elect to convert all or any
part of any LIBOR Loan on the last day of the then current Interest Period
relating thereto to a Base Rate Loan by giving advance notice to the Agent
(which shall promptly notify the Lenders) of such election. Subject to the
provisions made in this Section 2.02(e), the Borrower may elect to convert all
or any part of any Base Rate Loan (other than a Swing Line Loan) at any time and
from time to time to a LIBOR Loan by giving advance notice as provided in
Section 2.02(c) to the Agent (which shall promptly notify the Lenders) of such
election. All or any part of any outstanding Loan may be converted as provided
herein, provided that (i) any conversion of any Base Rate Loan into a LIBOR Loan
shall be (as to each such Loan into which there is a conversion for an
applicable Interest Period) in amounts of at least $5,000,000 or any whole
multiple of $1,000,000 in excess thereof and (ii) no Default shall have occurred
and be continuing. If a Default shall have occurred and be continuing, no Base
Rate Loan may be converted into a LIBOR Loan.
(f) Advances. Not later than 11:00 a.m. Atlanta time for LIBOR Loans
and 1:00 p.m. Atlanta time for Base Rate Loans on the date specified for each
borrowing hereunder, each Lender shall make available the amount of the Loan to
be made by it on such date to the Agent, to an account which the Agent shall
specify, in immediately available funds, for the account of the Borrower. The
amounts so received by the Agent shall, subject to the terms and conditions of
this Agreement, be made available to the Borrower by depositing the same, in
immediately available funds, in an account of the Borrower, designated by the
Borrower and maintained at the Principal Office.
(g) Letters of Credit. The Borrower shall give the Issuing Bank advance
notice to be received by the Issuing Bank not later than 11:00 a.m. Atlanta time
not less than three Business Days prior thereto of each request for the
issuance, and at least three Business Days prior to the date of the renewal or
extension, of a Letter of Credit hereunder which request shall specify (i) the
amount of such Letter of Credit, (ii) the date (which shall be a Business Day)
such Letter of Credit is to be issued, renewed or extended, (iii) the duration
thereof, (iv) the name and address of the beneficiary thereof, (v) the form of
the Letter of Credit and (vi) such other information as the Agent may reasonably
request, all of which shall be reasonably satisfactory to the Agent. Subject to
the terms and conditions of this Agreement, on the date specified for the
issuance, renewal or extension of a Letter of Credit, the Agent shall issue,
renew or extend such Letter of Credit to the beneficiary thereof.
In conjunction with the issuance of each Letter of Credit, the Borrower
shall execute a Letter of Credit Agreement. In the event of any conflict between
any provision of a Letter of Credit Agreement and this Agreement, the Borrower,
the Issuing Bank, the Agent and the Lenders hereby agree that the provisions of
this Agreement shall govern.
23
The Issuing Bank will send to the Borrower and each Lender, immediately
upon issuance of any Letter of Credit, or an amendment thereto, a true and
complete copy of such Letter of Credit amendment.
SECTION 2.03. Changes of Commitments; Commitment Increase.
(a) The Borrower shall have the right to terminate or to reduce the
amount of the Aggregate Revolving Credit Commitments at any time, or from time
to time, upon not less than three Business Days' prior notice to the Agent
(which shall promptly notify the Lenders) of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any such
reduction (which shall not be less than $2,000,000 or any whole multiple of
$2,000,000 in excess thereof) and shall be irrevocable and effective only upon
receipt by the Agent.
(b) The Aggregate Revolving Credit Commitments once terminated or
reduced may not be reinstated.
(c) (i) At any time prior to the Termination Date, the Borrower may
increase the aggregate amount of the Commitments by an amount not greater than
$37,500,000 and to an amount not greater than $300,000,000 (any such increase, a
"Commitment Increase") by designating either one or more of the existing Lenders
(each of which, in its sole discretion, may determine whether and to what degree
to offer to participate in such Commitment Increase) or one or more other banks
or other financial institutions reasonably acceptable to the Agent that at the
time agree, in the case of any such bank or financial institution that is an
existing Lender to increase its Commitment (an "Increasing Lender") and, in the
case of any other such bank or financial institution (an "Additional Lender"),
to become a party to this Agreement; provided that the effectiveness of a
Commitment Increase is subject to a simultaneous "Commitment Increase" (as such
term is defined in the Other Credit Agreement) by each Increasing Lender and/or
Additional Lender, as the case may be, under the Other Credit Agreement on a
pro-rata basis based upon the "Aggregate Revolving Commitments" (as such term is
defined in the Other Credit Agreement) under the Other Credit Agreement. The sum
of the increases in the Commitments of the Increasing Lenders pursuant to this
subsection (c) plus the Commitments of the Additional Lenders upon giving effect
to the Commitment Increase shall not in the aggregate exceed the amount of the
Commitment Increase. The Borrower shall provide prompt notice of any proposed
Commitment Increase pursuant to this Section 2.03(c) to the Agent, which shall
promptly provide a copy of such notice to the Lenders.
(ii) Any Commitment Increase shall become effective upon (A) the
receipt by the Agent of (1) an agreement in form and substance
satisfactory to the Agent signed by the Borrower, each Increasing
Lender and each Additional Lender, setting forth the new Commitment of
each such Lender and setting forth the agreement of each Additional
Lender to become a party to this Agreement and to be bound by all the
terms and provisions hereof binding upon each Lender, (2) certified
copies of the Commitment Increase Approvals and such opinions of
counsel for the Borrower and the Guarantors with respect to the
Commitment Increase as the Agent may reasonably request, and (3) a
certificate (the statements contained in which shall be true) of a duly
authorized officer of the Borrower stating that both before and after
giving effect to such Commitment Increase (x) no Event of Default has
occurred and is continuing, (y) all representations and warranties made
by the Borrower in this Agreement and by the Guarantors in the
Guaranties are true and correct in all material respects, and (z) all
Commitment Increase Approvals have been obtained and are in full force
and effect, and (B) the funding by each Increasing Lender and
Additional Lender of the Loan(s) to be made by each such Lender
described in paragraph (iii) below.
24
(iii) Upon the effective date of any Commitment Increase, each
Increasing Lender and each Additional Lender shall provide funds to the
Agent in the manner described in Section 2.01 in an amount equal to the
product of (x) the aggregate principal amount of Loans outstanding
hereunder, expressed as a percentage of the Commitments (calculated, in
each case, immediately prior to such Commitment Increase) and (y) such
Lender's pro rata share of the Commitments (calculated, in each case,
after giving effect to such Commitment Increase). The funds so provided
by any Lender shall be deemed to be a Loan or Loans made by such Lender
on the date of such Commitment Increase, with such Loan(s) being (A) in
an amount equal to the product of (x) the aggregate outstanding
principal amount of each Loan expressed as a percentage of the
Commitments (calculated, in each case, immediately prior to such
Commitment Increase) and (y) such Lender's pro rata share of the
Commitments (calculated, in each case, after giving effect to such
Commitment Increase) and (B) of the same Type(s) and having the same
Interest Period(s) as each Loan described in the preceding clause (A),
such that after giving effect to such Commitment Increase and* the
Loan(s) made on the date of such Commitment Increase, each Loan
outstanding hereunder shall consist of Loans made by the Lenders
ratably in accordance with their pro rata shares of the Commitments.
(iv) Notwithstanding any provision contained herein to the
contrary, from and after the date of any Commitment Increase and the
making of any Loans on such date pursuant to paragraph (iii) above, all
calculations and payments of interest on the Loan comprising any Loans
shall take into account the actual Commitment of each Lender and the
principal amount outstanding of each Loan made by such Lender during
the relevant period of time.
SECTION 2.04. Fees.
(a) Facility Fee. The Borrower shall pay to the Agent for the account
of each Lender a facility fee equal to the product of (i) the daily average
amount of such Lender's Commitment (regardless of usage) and (ii) the rate per
annum set forth below in the columns identified as ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇ 4, and Level 5, determined by reference to the Reference Rating from the
date hereof in the case of each Lender, and from the effective date specified in
the Assignment Agreement pursuant to which it became a Lender, in the case of
each other Lender, until the earlier to occur of the Termination Date and, in
the case of the termination in whole of a Lender's Commitment pursuant to
Section 2.03, the date of such termination, payable on each Quarterly Date
during such period, and on the Termination Date.
25
----------------------------------------------------------------------------------------------------------------------
Level I ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ Rating
Less than Reference Rating Reference Rating
S&P ▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ Less than Level 3
Reference Rating but at least but at least but at least BBB- Reference Rating
▇▇▇▇▇'▇ at least A-/A3 BBB+/Baal BBB/Baa2 /Baa3 below Level 4*
----------------------------------------------------------------------------------------------------------------------
Rate Per Annum
----------------------------------------------------------------------------------------------------------------------
Facility Fee 0.125 % 0.150% 0.175% 0.250% 0.375%
----------------------------------------------------------------------------------------------------------------------
*or unrated
Any change in the facility fee will be effective as of the date on which S&P or
▇▇▇▇▇'▇, as the case may be, announces any change in the ratings used to
determine the Reference Rating.
(b) Letter of Credit Fees.
(i) The Borrower agrees to pay the Agent, for the account of each
Lender, commissions for issuing the Letters of Credit on such Lender's
Percentage Share of the daily average amount of the maximum liability
of the Issuing Bank existing from time to time under such Letter of
Credit (calculated separately for each Letter of Credit) at a rate per
annum equal to the Applicable Margin then in effect for LIBOR Loans,
Each Letter of Credit shall be deemed to be outstanding up to the full
face amount of the Letter of Credit until the Issuing Bank has received
the canceled Letter of Credit or a written cancellation of the Letter
of Credit from the beneficiary of such Letter of Credit in form and
substance acceptable to the Issuing Bank, or for any reductions in the
amount of the Letter of Credit (other than from a drawing), written
notification from the beneficiary of such Letter of Credit. Such
commissions are payable quarterly in arrears on each Quarterly Date and
upon cancellation or expiration of each such Letter of Credit.
(ii) The Borrower agrees to pay the Issuing Bank, for its own
account, an issuing fee for issuing Letters of Credit on the daily
average amount of the maximum liability of the Issuing Bank existing
from time to time under such Letter of Credit (calculated separately
for each Letter of Credit) at the rate of 0. 125 % per annum, payable
quarterly in arrears on each Quarterly Date and upon cancellation or
expiration of each such Letter of Credit.
(iii) In addition to the fees in subsections (i) and (ii) of
Section 2.04, the Borrower agrees to pay the Issuing Bank on demand the
Issuing Bank's customary letter of credit fees, including, without
limitation, amendment fees, negotiation and drawing fees, and other
fees customarily payable with respect to each Letter of Credit.
(c) Fee Letter. The Borrower shall pay to SunTrust and SunTrust
Equitable Securities Corporation for their respective accounts such other fees
as are set forth in the Fee Letter on the dates specified therein.
26
SECTION 2.05. Several Obligations.
The failure of any Lender to make any Loan to be made by it or to
provide funds for disbursements or reimbursements under Letters of Credit on the
date specified therefor shall not relieve any other Lender of its obligation to
make its Loan or provide funds on such date, but no Lender shall be responsible
for the failure of any other Lender to make a Loan to be made by such other
Lender or to provide funds to be provided by such other Lender.
SECTION 2.06. Noteless Agreement, Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(b) The Agent shall also maintain accounts in which it will record (i)
the amount of each Loan made hereunder, the Type thereof and the Interest Period
(if any) with respect thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to each Lender
hereunder, and (iii) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant to
subsections (a) and (b) above shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, that the failure
of the Agent or any Lender to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay such
obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by one or more
promissory notes. In such event, the Borrower shall prepare, execute and deliver
to such Lender one or more promissory notes payable to the order of such Lender
and in a form acceptable to the Borrower and the Agent. Thereafter, the Loans
evidenced by such note(s) and interest thereon shall at all times (including
after any assignment pursuant to Section 12.06(b)) be represented by notes from
the Borrower, payable to the order of the payee named therein or any assignee
pursuant to Section 12.06(b), except to the extent that any such Lender or
assignee subsequently returns any such note for cancellation and requests that
the related Loans once again be evidenced as in subsections (a) and (b) above.
SECTION 2.07. Prepayments.
(a) Voluntary Prepayments. The Borrower may prepay the Base Rate Loans
upon not less than one (1) Business Day's prior notice to the Agent (which shall
promptly notify the Lenders), which notice shall specify the prepayment date
(which shall be a Business Day) and the amount of the prepayment (which shall be
at least $1,000,000 or whole multiples of $500,000 in excess thereof for
Revolving Credit Loans that are Base Rate Loans and at least $500,000 or whole
multiples of $100,000 in excess thereof for Swing Line Loans, or the remaining
aggregate principal balance outstanding) and shall be irrevocable and effective
only upon receipt by the Agent, provided that interest on the principal prepaid,
accrued to the prepayment date, shall be paid on the prepayment date. The
Borrower may prepay LIBOR Loans on the same conditions as for Base Rate Loans
(except that prior notice to the Agent shall be not less than three Business
Days for LIBOR Loans and such payment shall be at least $5,000,000 or whole
multiples of $1,000,000 in excess thereof) and in addition such prepayments of
LIBOR Loans shall be subject to the terms of Section 5.05 and shall be in an
amount equal to all of the LIBOR Loans for the Interest Period prepaid.
27
(b) Mandatory Prepayments. If, after giving effect to any termination
or reduction of the Aggregate Revolving Credit Commitments pursuant to Section
2.03(a), the outstanding aggregate principal amount of the Loans plus the LC
Exposure exceeds the Aggregate Revolving Credit Commitments, the Borrower shall
(i) prepay the Revolving Credit Loans on the date of such termination or
reduction in an aggregate principal amount equal to the excess, together with
interest on the principal amount paid accrued to the date of such prepayment,
(ii) if any excess remains after prepaying all Revolving Credit Loans prepay the
Swing Line Loans on the date of such termination or reduction in an aggregate
principal amount equal to such remaining excess, together with interest on the
principal amount paid accrued to the date of such prepayment, and (iii) if any
excess remains after prepaying all of the Loans because of LC Exposure, pay to
the Agent on behalf of the Lenders an amount equal to the excess to be held as
cash collateral as provided in Section 2.09(b) hereof.
(c) Generally. Prepayments permitted or required under this Section
2.07 shall be without premium or penalty, except as required under Section 5.05
for prepayment of LIBOR Loans. Any prepayments on the Loans may be reborrowed
subject to the then effective Aggregate Revolving Credit Commitments.
SECTION 2.08. Assumption of Risks.
The Borrower assumes all risks of the acts or omissions of any
beneficiary of any Letter of Credit or any transferee thereof with respect to
its use of such Letter of Credit. Neither the Issuing Bank (except in the case
of gross negligence or willful misconduct on the part of the Issuing Bank or any
of its agents or employees), its correspondents nor any Lender shall be
responsible for the validity, sufficiency or genuineness of certificates or
other documents or any endorsements thereon, even if such certificates or other
documents should in fact prove to be invalid, insufficient, fraudulent or
forged; for errors, omissions, interruptions or delays in transmissions or
delivery of any messages by mail, telex, or otherwise, whether or not they be in
code; for errors in translation or for errors in interpretation of technical
terms; the validity or sufficiency of any instrument transferring or assigning
or purporting to transfer or assign any 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; the failure of any beneficiary or any
transferee of any Letter of Credit to comply fully with conditions required in
order to draw upon any Letter of Credit; or for any other consequences arising
from causes beyond the Issuing Bank's control or the control of the Issuing
Bank's correspondents. In addition, neither the Issuing Bank, the Agent nor any
Lender shall be responsible for any error, neglect, or default of any of the
Issuing Bank's correspondents; and none of the above shall affect, impair or
prevent the vesting of any of the Issuing Bank's, the Agent's or any Lender's
rights or powers hereunder or under the Letter of Credit Agreements, all of
which rights shall be cumulative. The Issuing Bank and its correspondents may
accept certificates or other documents that appear on their face to be in order,
without responsibility for further investigation of any matter contained therein
regardless of any notice or information to the contrary. In furtherance and not
in limitation of the foregoing provisions, the Borrower agrees that any action,
inaction or omission taken or not taken by the Issuing Bank or by any
correspondent for the Issuing Bank in good faith in connection with any Letter
of Credit, or any related drafts, certificates, documents or instruments, shall
be binding on the Borrower and shall not put the Issuing Bank or its
correspondents under any resulting liability to the Borrower.
28
C)
SECTION 2.09, Obligation to Reimburse and to Prepay.
(a) If a disbursement by the Issuing Bank is made under any Letter of
Credit, the Borrower shall pay to the Agent within two Business Days after
notice of any such disbursement is received by the Borrower, the amount of such
disbursement (if such payment is not sooner effected as may be required under
this Section 2.09 or under other provisions of the Letter of Credit), together
with interest on the amount disbursed from and including the date of
disbursement until payment in full of such disbursed amount at a varying rate
per annum. equal to (i) the then applicable interest rate for Base Rate Loans
through the second Business Day after notice of such disbursement is received by
the Borrower and (ii) thereafter, the Post-Default Rate for Base Rate Loans (but
in no event to exceed the Highest Lawful Rate) for the period from and including
the third Business Day following the date of such disbursement to and excluding
the date of repayment in full of such disbursed amount. The obligations of the
Borrower under this Agreement with respect to each Letter of Credit shall be
absolute, unconditional and irrevocable and shall be paid or performed strictly
in accordance with the terms of this Agreement under all circumstances
whatsoever, including, without limitation, but only to the fullest extent
permitted by applicable law, the following circumstances: (i) any lack of
validity or enforceability of this Agreement, any Letter of Credit or any of the
other Loan Documents; (ii) any amendment or waiver of (including any default),
or any consent to departure from this Agreement (except to the extent permitted
by any amendment or waiver), any Letter of Credit or any of the other Loan
Documents; (iii) the existence of any claim, set-off, defense or, other rights
which the Borrower may have at any time against the beneficiary of any Letter of
Credit or any transferee of any Letter of Credit (or any Persons for whom any
such beneficiary or any such transferee may be acting), the Issuing Bank, the
Agent, any Lender or any other Person, whether in connection with this
Agreement, any Letter of Credit, the other Loan Documents, the transactions
contemplated hereby or any unrelated transaction; (iv) any statement,
certificate, draft, notice or any other document presented under any Letter of
Credit proves to have been forged, fraudulent, insufficient or invalid in any
respect or any statement therein proves to have been untrue or inaccurate in any
respect whatsoever; (v) payment by the Issuing Bank under any Letter of Credit
against presentation of a draft or certificate which appears on its face to
comply, but does not comply, with the terms of such Letter of Credit; and (vi)
any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing.
Notwithstanding anything in this Agreement to the contrary, the Borrower will
not be liable for payment or performance that results from the gross negligence
or willful misconduct of the Issuing Bank, except (i) where the Borrower or any
Subsidiary of the Borrower actually recovers the proceeds for itself or the
Issuing Bank of any payment made by the Issuing Bank in connection with such
gross negligence or willful misconduct or (ii) in cases where the Agent makes
payment to the named beneficiary of a Letter of Credit.
29
(b) In the event of the occurrence of any Event of Default, a payment
or prepayment pursuant to Section 2.07(b) or upon the Termination Date, whether
by acceleration or otherwise, an amount equal to the LC Exposure (or the excess
in the case of Section 2.07(b)) shall be deemed to be forthwith due and owing by
the Borrower to the Issuing Bank, the Agent and the Lenders as of the date of
any such occurrence; and the Borrower's obligation to pay such amount shall be
absolute and unconditional, without regard to whether any beneficiary of any
such Letter of Credit has attempted to draw down all or a portion of such amount
under the terms of a Letter of Credit, and, to the fullest extent permitted by
applicable law, shall not be subject to any defense or be affected by a right of
set-off, counterclaim or recoupment which the Borrower may now or hereafter have
against any such beneficiary, the Issuing Bank, the Agent, the Lenders or any
other Person for any reason whatsoever. Such payments shall be held by the
Issuing Bank on behalf of the Lenders as cash collateral securing the LC
Exposure in an account or accounts at the Principal Office; and the Borrower
hereby grants to and by its deposit with the Agent grants to the Agent a
security interest in such cash collateral. In the event of any such payment by
the Borrower of amounts contingently owing under outstanding Letters of Credit
and in the event that thereafter drafts or other demands for payment complying
with the terms of such Letters of Credit are not made prior to the respective
expiration dates thereof, the Agent agrees, if no Event of Default has occurred
and is continuing or if no other amounts are outstanding under this Agreement,
or the other Loan Documents, to remit to the Borrower amounts for which the
contingent obligations evidenced by the Letters of Credit have ceased.
(c) If the Issuing Bank shall not have been reimbursed in full for any
payment made by the Issuing Bank under a Letter of Credit issued by the Issuing
Bank on the date of such payment, the Issuing Bank shall give the Agent and each
Lender prompt notice thereof (an "LC Payment Notice") no later than 12:00 noon
on the Business Day immediately succeeding the date of such payment by the
Issuing Bank. Each Lender severally agrees to purchase a participation in the
reimbursement obligation of the Borrower to the Issuing Bank by paying to the
Agent for the account of the Issuing Bank an amount equal to such Lender's
Percentage Share of such unreimbursed amount paid by the Issuing Bank, plus
interest on such amount at a rate per annum equal to the Federal Funds Rate from
the date of the payment by the Issuing Bank to the date of payment to the
Issuing Bank by such Lender. Each such payment by a Lender shall be made not
later than 3:00 P.M. on the later to occur of (i) the Business Day immediately
following the date of such payment by the Issuing Bank and (ii) the Business Day
on which Lender shall have received an LC Payment Notice from the Issuing Bank.
Each Lender's obligation to make each such payment to the Agent for the account
of the Issuing Bank shall be several and shall not be affected by the occurrence
or continuance of a Default or the failure of any other Lender to make any
payment under this Section 2.09(c). Each Lender further agrees that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
SECTION 2.10. Lending Offices.
The Loans of each Type made by each Lender shall be made and maintained
at such Lender's Applicable Lending Office for Loans of such Type.
30
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
SECTION 3.01. Repayment of Loans.
(a) Revolving Credit Loans. On the Termination Date the Borrower shall
repay the outstanding aggregate principal amount of the Loans and all accrued
and unpaid interest thereon.
(b) Generally. The Borrower will pay to the Agent, for the account of
each Lender, the principal payments required by this Section 3.01.
SECTION 3.02. Interest.
(a) Interest Rates. The Borrower will pay to the Agent, for the account
of each Lender or the Swing Line Lender, as appropriate, interest on the unpaid
principal amount of each Loan made by such Lender for the period commencing on
the date such Loan is made to, but excluding, the date such Loan shall be paid
in full, at the following rates per annum:
(i) if such a Loan is a Base Rate Loan, the Base Rate (as in effect
from time to time) plus the Applicable Margin, but in no event to
exceed the Highest Lawful Rate; and
(ii) if such a Loan is a LIBOR Loan, for each Interest Period
relating thereto, the LIBOR Rate for such Loan plus the Applicable
Margin (as in effect from time to time), but in no event to exceed the
Highest Lawful Rate.
(b) Post-Default Rate. Notwithstanding the foregoing, the Borrower will
pay to the Agent, for the account of each Lender interest at the applicable
Post-Default Rate on any principal of any Loan made by such Lender, and (to the
fullest extent permitted by law) on any other amount payable by the Borrower
hereunder or under any Loan Document for the period commencing on the date of an
Event of Default until the same is paid in full or all Events of Default are
cured or waived.
(c) Due Dates. Accrued interest on Base Rate Loans shall be payable on
each Quarterly Date, and accrued interest on each LIBOR Loan shall be payable on
the last day of the Interest Period therefor and, if such Interest Period is
longer than three months, at three-month intervals following the first day of
such Interest Period, except that interest payable at the Post Default Rate
shall be payable from time to time on demand and interest on any LIBOR Loan that
is converted into a Base Rate Loan pursuant to Section 5.04 shall be payable on
the date of conversion (but only to the extent so converted). All accrued and
unpaid interest on the Loans shall be paid on the Termination Date.
(d) Determination of Rates. Promptly after the determination of any
interest rate provided for herein or any change therein, the Agent shall notify
the Lenders and the Borrower thereof. Each determination by the Agent of an
interest rate or fee hereunder shall, except in cases of manifest error, be
final, conclusive and binding on the parties.
31
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
SECTION 4.01. Payments.
Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under this
Agreement and the Letter of Credit Agreements shall be made in Dollars, in
immediately available funds, to the Agent at such account as the Agent shall
specify by notice to the Borrower from time to time, not later than 11:00 a.m.
Atlanta time on the date on which such payments shall become due (each such
payment made after such time on such due date to be deemed to have been made on
the next succeeding Business Day). Such payments shall be made without (to the
fullest extent permitted by applicable law) defense, set-off or counterclaim.
Each payment received by the Agent under this Agreement for account of a Lender
shall be paid promptly to such Lender in immediately available funds. Except as
otherwise provided in the definition of "Interest Period", if the due date of
any payment under this Agreement would otherwise fall on a day which is not a
Business Day such date shall be extended to the next succeeding Business Day and
interest shall be payable for any principal so extended for the period of such
extension. At the time of each payment to the Agent of any principal of or
interest on any borrowing, the Borrower shall notify the Agent of the Loans to
which such payment shall apply. In the absence of such notice the Agent may
specify the Loans to which such payment shall apply, but to the extent possible
such payment or prepayment will be applied first to Base Rate Loans.
SECTION 4.02. Pro Rata Treatment.
Except for Swing Line Loans and to the extent otherwise provided
herein, each Lender agrees that: (i) each borrowing from the Lenders under
Section 2.01 and each continuation and conversion under Section 2.02 shall be
made from the Lenders pro rata in accordance with their Percentage Share, each
payment of fees under Section 2.04(a) and Section 2.04(b)(i) shall be made for
account of the Lenders pro rata in accordance with their Percentage Share, and
each termination or reduction of the amount of the Aggregate Revolving Credit
Commitments under Section 2.03(a) shall be applied to the Commitments of all
Lenders, pro rata according to the amounts of their respective Commitments; (ii)
each payment of principal of Loans by the Borrower shall be made for account of
the Lenders pro rata in accordance with the respective unpaid principal amount
of the Loans held by the Lenders; (iii) each payment of interest on Loans by the
Borrower shall be made for account of the Lenders pro rata in accordance with
the amounts of interest due and payable to the respective Lenders; and (iv) each
reimbursement by the Borrower of disbursements under each Letter of Credit shall
be made for account of the Issuing Bank or, if funded by the Lenders, pro rata
for the account of the Lenders, in accordance with the amounts of reimbursement
obligations due and payable to the respective Lenders.
SECTION 4.03. Computations.
Interest on LIBOR Loans, interest determined by reference to the
Federal Funds Rate and fees shall be computed on the basis of a year of 360 days
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which such interest is payable, unless such
calculation would exceed the Highest Lawful Rate, in which case interest shall
be calculated on the per annum basis of a year of 365 or 366 days, as the case
may be. Interest on Base Rate Loans determined by reference to the Prime Rate
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which such interest is payable.
32
SECTION 4.04. Non-receipt of Funds by the Agent.
Unless the Agent shall have been notified by a Lender or the Borrower
prior to the date on which such notifying party is scheduled to make payment to
the Agent (in the case of a Lender) of the proceeds of a Loan or a payment under
a Letter of Credit to be made by it hereunder or (in the case of the Borrower) a
payment to the Agent for account of one or more of the Lenders hereunder (such
payment being herein called the "Required Payment"), which notice shall be
effective upon receipt, that it does not intend to make the Required Payment to
the Agent, the Agent may assume that the Required Payment has been made and may,
in reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient(s) on such date and, if such Lender
or the Borrower (as the case may be) has not in fact made the Required Payment
to the Agent, the recipient(s) of such payment shall, on demand, repay to the
Agent the amount so made available together with interest thereon in respect of
each day during the period commencing on the date such amount was so made
available by the Agent until, but excluding, the date the Agent recovers such
amount at a rate per annum which, for any Lender as recipient, will be equal to
the Federal Funds Rate, and for the Borrower as recipient, will be equal to the
Base Rate plus the Applicable Margin.
SECTION 4.05. Set-off, Sharing of Payments, Etc.
(a) The Borrower agrees that, in addition to (and without limitation
of) any right of set-off, bankers' lien or counterclaim a Lender may otherwise
have, each Lender shall have the right and be entitled (after consultation with
the Agent), at its option, to offset balances held by it or by any of its
Affiliates for account of the Borrower, any Guarantor or any Restricted
Subsidiary at any of its offices, in Dollars or in any other currency, against
any principal of or interest on any of such Lender's Loans, or any other amount
payable to such Lender hereunder, which is not paid when due (regardless of
whether such balances are then due to the Borrower), in which case it shall
promptly notify the Borrower and the Agent thereof, provided that such Lender's
failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain payment of any principal of or interest
on any Loan made by it to the Borrower under this Agreement (or reimbursement as
to any Letter of Credit) through the exercise of any right of set-off, banker's
lien or counterclaim or similar right or otherwise, and, as a result of such
payment, such Lender shall have received a greater percentage of the principal
or interest (or reimbursement) then due hereunder by the Borrower to such Lender
than the percentage received by any other Lenders, it shall promptly (i) notify
the Agent and each other Lender thereof and (ii) purchase from such other
Lenders participations in (or, if and to. the extent specified by such Lender,
direct interests in) the Loans (or participations in Letters of Credit) made by
such other Lenders (or in interest due thereon, as the case may be) in such
amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses which may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal and/or interest on the Loans held by each of the Lenders (or
reimbursements of Letters of Credit). To such end all the Lenders shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. The
Borrower agrees that any Lender so purchasing a participation (or direct
interest) in the Loans made by other Lenders (or in interest due thereon, as the
case may be) may exercise all rights of set-off, banker's lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans (or Letters of Credit) in the amount of such
participation. Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Borrower. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a set-off to
which this Section 4.05 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.05 to share the benefits
of any recovery on such secured claim.
33
SECTION 4.06. Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 4.01, 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 Lender, the Issuing Bank and the Agent, taxes
imposed on its income, and franchise or similar taxes imposed on it, by (i) any
jurisdiction (or political subdivision thereof) of which the Agent, the Issuing
Bank or such Lender, as the case may be, is a citizen or resident or in which
such Lender has an Applicable Lending Office, (ii) the jurisdiction (or any
political subdivision thereof) in which the Agent, the Issuing Bank or such
Lender is organized, or (iii) any jurisdiction (or political subdivision
thereof) in which such Lender, the Issuing Bank or the Agent is presently doing
business which taxes are imposed solely as a result of doing business in such
jurisdiction (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities 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 hereunder to the Lenders, the Issuing Bank or the Agent (i) the sum
payable shall be increased by the amount necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 4.06) such Lender, the Issuing Bank or the Agent (as the case
may be) shall receive an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxing
authority or other Governmental Authority in accordance with applicable law.
(b) Other Taxes. In addition, to the fullest extent permitted by
applicable law, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, any
Assignment Agreement or any other Loan Document (hereinafter referred to as
"Other Taxes").
34
(c) INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE BORROWER WILL INDEMNIFY EACH LENDER AND THE ISSUING BANK AND THE AGENT FOR
THE FULL AMOUNT OF TAXES (AS DEFINED ABOVE) AND OTHER TAXES (INCLUDING, BUT NOT
LIMITED TO, ANY TAXES OR OTHER TAXES IMPOSED BY ANY GOVERNMENTAL AUTHORITY ON
AMOUNTS PAYABLE UNDER THIS SECTION 4.06) PAID BY SUCH LENDER, THE ISSUING BANK
OR THE AGENT (ON THEIR BEHALF OR ON BEHALF OF ANY LENDER), AS THE CASE MAY BE,
AND ANY LIABILITY (INCLUDING PENALTIES, INTEREST AND EXPENSES) ARISING THEREFROM
OR WITH RESPECT THERETO, WHETHER OR NOT SUCH TAXES OR OTHER TAXES WERE CORRECTLY
OR LEGALLY ASSERTED UNLESS THE PAYMENT OF SUCH TAXES WAS NOT CORRECTLY OR
LEGALLY ASSERTED AND SUCH LENDER'S PAYMENT OF SUCH TAXES OR OTHER TAXES WAS THE
RESULT OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ANY PAYMENT PURSUANT TO
SUCH INDEMNIFICATION SHALL BE MADE WITHIN THIRTY (30) DAYS AFTER THE DATE ANY
LENDER, THE ISSUING BANK OR THE AGENT, AS THE CASE MAY BE, MAKES WRITTEN DEMAND
THEREFOR. IF ANY LENDER OR THE AGENT RECEIVES A REFUND OR CREDIT IN RESPECT OF
ANY TAXES OR OTHER TAXES FOR WHICH SUCH LENDER, ISSUING BANK OR THE AGENT HAS
RECEIVED PAYMENT FROM THE BORROWER IT SHALL PROMPTLY NOTIFY THE BORROWER OF SUCH
REFUND OR CREDIT AND SHALL, IF NO EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING, WITHIN THIRTY (30) DAYS AFTER RECEIPT OF A REQUEST BY THE BORROWER
(OR PROMPTLY UPON RECEIPT, IF THE BORROWER HAS REQUESTED APPLICATION FOR SUCH
REFUND OR CREDIT PURSUANT HERETO), PAY AN AMOUNT EQUAL TO SUCH REFUND OR CREDIT
TO THE BORROWER WITHOUT INTEREST (BUT WITH ANY INTEREST SO REFUNDED OR
CREDITED), PROVIDED THAT THE BORROWER, UPON THE REQUEST OF SUCH LENDER, THE
ISSUING BANK OR THE AGENT, AGREES TO RETURN SUCH REFUND OR CREDIT (PLUS
PENALTIES, INTEREST OR OTHER CHARGES) TO SUCH LENDER OR THE AGENT IN THE EVENT
SUCH LENDER OR THE AGENT IS REQUIRED TO REPAY SUCH REFUND OR CREDIT.
(d) Foreign Lenders, Participants and Assignees.
Each Lender, participant (by accepting a participation interest under
this Agreement) and assignee (by executing an Assignment Agreement) that is not
organized under the laws of the United States of America or one of its states
(1) represents to the Agent and the Borrower that (A) no taxes are required to
be withheld by the Agent or the Borrower with respect to any payments to be made
to it hereunder and (B) it has furnished to the Agent and the Borrower two duly
completed copies of either U.S. Internal Revenue Service Form W-8BEN or W-8ECI
or any other form acceptable to the Agent and the Borrower that entitles it to a
complete exemption from U.S. federal withholding tax on all interest or fee
payments under the Loan Documents, and (2) covenants to (A) provide the Agent
and the Borrower a new Form W-8BEN or W-8ECI or other form acceptable to the
Agent and the Borrower upon the expiration or obsolescence according to
Governmental Requirement of any previously delivered form, duly executed and
completed by it, entitling it to a complete exemption from U.S. federal
withholding tax on all interest and fee payments under the Loan Documents, and
(B) comply from time to time with all Governmental Requirements with regard to
the withholding tax exemption. If any of the foregoing is not true at any time
or the applicable forms are not provided, then the Borrower and the Agent
(without duplication), notwithstanding any other provision of this Section 4.06,
may deduct and withhold from interest and fee payments under the Loan Documents
any tax at the maximum rate under the Code or other applicable Governmental
Requirement, and amounts so deducted and withheld shall be treated as paid to
that Lender, participant or assignee, as the case may be, for all purposes under
the Loan Documents.
35
ARTICLE V
YIELD PROTECTION
SECTION 5.01. Additional Costs.
(a) LIBOR Regulations, etc. The Borrower shall pay directly to each
Lender from time to time such amounts as such Lender may reasonably determine to
be necessary to compensate such Lender for any costs that it determines are
attributable to its making or maintaining of any LIBOR Loans or issuing or
participating in Letters of Credit hereunder or its obligation to make any LIBOR
Loans or issue or participate in any Letters of Credit hereunder, or any
reduction in any amount receivable by such Lender hereunder in respect of any of
such LIBOR Loans, Letters of Credit or such obligation (such increases in costs
and reductions in amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Change that: (i) changes the basis of taxation of
any amounts payable to such Lender under this Agreement in respect of any of
such LIBOR Loans or Letters of Credit (other than taxes imposed on the overall
net income of such Lender or of its Applicable Lending Office for any of such
LIBOR Loans by the jurisdiction in which such Lender has its principal office or
Applicable Lending Office); or (ii) imposes or modifies any reserve, special
deposit, minimum capital, capital ratio or similar requirements relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of such Lender, or the Commitment or Loans of such Lender or the
London interbank market; or (iii) imposes any other condition affecting this
Agreement (or any of such extensions of credit or liabilities) or such Lender's
Commitment or Loans. Each Lender will notify the Agent and the Borrower of any
event occurring after the date hereof that will entitle such Lender to
compensation pursuant to this Section 5.01(a) as promptly as practicable after
it obtains knowledge thereof and determines to request such compensation, and
will designate a different Applicable Lending Office for the Loans of such
Lender affected by such event if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole opinion of
such Lender, be disadvantageous to such Lender, provided that such Lender shall
have no obligation to so designate an Applicable Lending Office located in the
United States. If any Lender requests compensation from the Borrower under this
Section 5.01(a), the Borrower may, by notice to such Lender, suspend the
obligation of such Lender to make additional Loans of the Type with respect to
which such compensation is requested until the Regulatory Change giving rise to
such request ceases to be in effect (in which case the provisions of Section
5.04 shall be applicable).
(b) Capital Adequacy. Without limiting the effect of the foregoing
provisions of this Section 5.01 (but without duplication), the Borrower shall
pay directly to any Lender from time to time on request such amounts as such
Lender may reasonably determine to be necessary to compensate such Lender or its
parent or holding company for any costs which it determines are attributable to
the maintenance by such Lender or its parent or holding company (or any
Applicable Lending Office), pursuant to any Governmental Requirement following
any Regulatory Change, of capital in respect of its Commitment, its Loans, or
any interest held by it in any Letter of Credit, such compensation to include,
without limitation, an amount equal to any reduction of the rate of return on
assets or equity of such Lender or its parent or holding company (or any
Applicable Lending Office) to a level below that which such Lender or its parent
or holding company (or any Applicable Lending Office) could have achieved but
for such Governmental Requirement. Such Lender will notify the Borrower that it
is entitled to compensation pursuant to this Section 5.01(b) as promptly as
practicable after it determines to request such compensation.
36
(c) Compensation Procedure, Any Lender notifying the Borrower of the
incurrence of additional costs under this Section 5.01 shall in such notice to
the Borrower and the Agent set forth in reasonable detail the basis and amount
of its request for compensation. Determinations and allocations by each Lender
for purposes of this Section 5.01 of the effect of any Regulatory Change
pursuant to Section 5.01(a), or of the effect of capital maintained pursuant to
Section 5.01(b), on its costs or rate of return of maintaining Loans or its
obligation to make Loans or issue Letters of Credit, or on amounts receivable by
it in respect of Loans or Letters of Credit, and of the amounts required to
compensate such Lender under this Section 5.01, shall be conclusive and binding
for all purposes, provided that such determinations and allocations are made on
a reasonable basis. Any request for additional compensation under this Section
5.01 shall be paid by the Borrower within 30 days of the receipt by the Borrower
of the notice described in this Section 5.01(c).
(d) The Lenders shall determine the applicability of, and the amount
due under, this Section 5.01 consistent with the manner in which they apply
similar provisions and calculate similar amounts payable to them by other
borrowers having in their credit agreements provisions comparable to this
Section.
SECTION 5.02. Basis Unavailable or Inadequate for LIBOR Rate.
If, on or before any date when a LIBOR Rate is to be determined, the
Agent reasonably determines that the basis for determining the applicable rate
is not available or any Lender reasonably determines that the resulting rate
does not accurately reflect the cost to that Lender of making or converting
Loans at that rate for the applicable Interest Period, then the Agent shall
promptly notify the Borrower and the Lenders of that determination (which is
conclusive and binding on the Borrower absent manifest error) and the applicable
Loans shall bear interest at the sum of the Base Rate plus the Applicable
Margin. Until the Agent notifies the Borrower that those circumstances no longer
exist, the Lenders' commitments under this Agreement to make, or to convert to,
LIBOR Rate Loans, as the case may be, are suspended.
SECTION 5.03. Illegality.
Notwithstanding any other provision of this Agreement, in the event
that it becomes unlawful for any Lender or its Applicable Lending Office to
honor its obligation to make or maintain LIBOR Loans hereunder, then such Lender
shall promptly notify the Borrower thereof and such Lender's obligation to make
LIBOR Loans shall be suspended until such time as such Lender may again make
and maintain LIBOR Loans (in which case the provisions of Section 5.04 shall be
applicable).
37
SECTION 5.04. Base Rate Loans
If the obligation of any Lender to make LIBOR Loans shall be suspended
pursuant to Sections 5.01, 5.02 or 5.03 ("Affected Loans"), all Affected Loans
that would otherwise be made by such Lender shall be made instead as Base Rate
Loans (and, if an event referred to in Section 5.01(b) or Section 5.03 has
occurred and such Lender so requests by notice to the Borrower, all Affected
Loans of such Lender then outstanding shall be automatically converted into Base
Rate Loans on the date specified by such Lender in such notice) and, to the
extent that Affected Loans are so made as (or converted into) Base Rate Loans,
all payments of principal that would otherwise be applied to such Lender's
Affected Loans shall be applied instead to its Base Rate Loans.
SECTION 5.05. Compensation.
The Borrower shall pay to each Lender within 30 days of receipt of
written request of such Lender (which request shall set forth, in reasonable
detail, the basis for requesting such amounts and which shall be conclusive and
binding for all purposes provided that such determinations are made on a
reasonable basis), such amounts as shall compensate it for any loss, cost,
expense or liability which such Lender reasonably determines are attributable
to:
(i) any payment, prepayment or conversion of a LIBOR Loan properly
made by such Lender or the Borrower for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 10.01) on
a date other than the last day of the Interest Period for such Loan; or
(ii) any failure by the Borrower for any reason (including but not
limited to, the failure of any of the conditions precedent specified in
Article VI to be satisfied) to borrow, continue or convert a LIBOR Loan
from such Lender on the date for such borrowing, continuation or
conversion specified in the relevant notice given pursuant to Section
2.02(c).
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (A) the amount of interest
which would have accrued on the principal amount so paid, prepaid or converted
or not borrowed for the period from the date of such payment, prepayment or
conversion or failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for such Loan
which would have commenced on the date specified for such borrowing) at the
applicable rate of interest for such Loan provided for herein over (B) the
interest component of the amount such Lender would have bid in the London
interbank market for Dollar deposits of leading banks in amounts comparable to
such principal amount and with maturities comparable to such period (as
reasonably determined by such Lender).
SECTION 5.06. Replacement Lenders.
(a) If any Lender has notified the Borrower and the Agent of its
incurring additional costs under Section 5.01 or has required the Borrower to
make payments for Taxes under Section 4.06, then the Borrower may, unless such
Lender has notified the Borrower and the Agent that the circumstances giving
rise to such notice no longer apply, terminate, in whole but not in part, the
Commitment of any Lender (other than the Agent) (the "Terminated Lender") at any
time upon five Business Days' prior written notice to the Terminated Lender and
the Agent (such notice referred to herein as a "Notice of Termination").
38
(b) In order to effect the termination of the Commitment of the
Terminated Lender, the Borrower shall: (i) obtain an agreement with one or more
Lenders to increase their Commitment or Commitments and/or (ii) request any one
or more other banking institutions to become parties to this Agreement in place
and instead of such Terminated Lender and agree to accept a Commitment or
Commitments; provided, however, that such one or more other banking institutions
are reasonably acceptable to the Agent and each Issuing Bank and become parties
by executing an Assignment Agreement (the Lenders or other banking institutions
that agree to accept in whole or in part the Commitment of the Terminated Lender
being referred to herein as the "Replacement Lenders"), such that the aggregate
increased and/or accepted Commitments of the Replacement Lenders under clauses
(i) and (ii) above equal the Commitment of the Terminated Lender.
(c) The Notice of Termination shall include the name of the Terminated
Lender, the date the termination will occur (the "Lender Termination Date"), and
the Replacement Lender or Replacement Lenders to which the Terminated Lender
will assign its Commitment and, if there will be more than one Replacement
Lender, the portion of the Terminated Lender's Commitment to be assigned to each
Replacement Lender.
(d) On the Lender Termination Date, (i) the Terminated Lender shall by
execution and delivery of an Assignment Agreement assign its Commitment to the
Replacement Lender or Replacement Lenders (pro rata, if there is more than one
Replacement Lender, in proportion to the portion of the Terminated Lender's
Commitment to be assigned to each Replacement Lender) indicated in the Notice of
Termination and shall assign to the Replacement Lender or Replacement Lenders
each of its Loans (if any) then outstanding and participation interests in
Letters of Credit (if any) then outstanding pro rata as aforesaid) and (ii) the
Replacement Lender or Replacement Lenders will thereupon (pro rata as aforesaid)
succeed to and be substituted in all respects for the Terminated Lender with
like effect as if becoming a Lender pursuant to the terms of Section 12.06(b),
and the Terminated Lender will have the rights and benefits of an assignor under
Section 12.06(b). To the extent not in conflict, the terms of Section 12.06(b)
shall supplement the provisions of this Section 5.06(d). For each assignment
made under this Section 5.06, the Replacement Lender shall pay to the Agent the
processing fee provided for in Section 12.06(b). The Borrower will be
responsible for the payment of any breakage costs associated with termination
and Replacement Lenders, as set forth in Section 5.05.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01. Initial Funding.
The obligation of the Lenders to make the Initial Funding is subject
to, on or before the date of the Initial Funding, (i) the Agent's having
completed a review satisfactory to it of the environmental files of the Borrower
and the Restricted Subsidiaries, and (ii) the receipt by the Lenders and Agent
of all fees due and payable as of such date and the following documents, each of
which shall be satisfactory to the Agent in form and substance:
39
(a) A certificate of the Secretary or an Assistant Secretary of the
General Partner and each Guarantor setting forth (i) resolutions of its board of
directors with respect to the authorization of the Borrower and each Guarantor
to execute and deliver the Loan Documents to which such Person is a party and to
enter into the transactions contemplated in those documents, (ii) the officers
of the General Partner and each Guarantor (y) who are authorized to sign the
Loan Documents to which such Person is a party and (z) who will, until replaced
by another officer or officers duly authorized for that purpose, act as its
representatives for the purposes of signing documents and giving notices and
other communications in connection with this Agreement and the transactions
contemplated hereby, (iii) specimen signatures of the authorized officers of the
Borrower and each Guarantor, (iv) the articles or certificate of incorporation
and bylaws or the partnership agreement, as applicable, of the General Partner
and each Guarantor and the Borrower Partnership Agreement, each certified as
being true and complete. The Agent and the Lenders may conclusively rely on such
certificates until the Agent receives notice in writing from the Borrower or
such Guarantor, as the case may be, to the contrary, and (iv) copies of all
governmental approvals required in connection with the execution, delivery and
performance of the Loan Documents by each party thereto, other than the Agent,
the Lenders and any Issuing Bank.
(b) Certificates of the appropriate state agencies with respect to the
existence, qualification and good standing, as appropriate, of the Borrower,
each Guarantor and the General Partner.
(c) A Compliance Certificate for the fiscal quarter ending June 30,
2001, duly and properly executed by a Responsible Officer and dated as of the
date of the Initial Funding.
(d) A promissory note payable to the order of each Lender that requests
one pursuant to Section 2.06.
(e) The Loan Documents, duly completed and executed in sufficient
number of counterparts as reasonably requested by the Agent.
(f) Opinions of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Borrower
and the Guarantors and certain local counsel to the Borrower and the Guarantors,
each in form and substance satisfactory to the Agent, as to such matters
incident to the transactions herein contemplated as the Agent may reasonably
request.
(g) A certificate of insurance coverage of the Borrower evidencing that
the Borrower is carrying insurance in accordance with Section 7.19.
(h) UCC search results reflecting no Liens other than Excepted Liens.
(i) Evidence that, upon the application of the proceeds of the Initial
Funding, the commitments of the lenders under the Existing Credit Agreements
shall be terminated and the obligations of the Borrower and the Restricted
Subsidiaries under the Existing Credit Agreements shall be paid in full.
40
(j) Such other documents as the Agent or any Lender or special counsel
to the Agent may reasonably request.
SECTION 6.02. Initial and Subsequent Loans and Letters of Credit.
The obligation of the Lenders to make Loans to the Borrower upon the
occasion of each borrowing hereunder and to issue, renew, extend or reissue
Letters of Credit for the account of the Borrower (including the Initial
Funding) is subject to the further conditions precedent that, as of the date of
such Loans and after giving effect thereto:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Borrower in Article
VII and by the Borrower and each Guarantor in any other Loan Document shall be
true on and as of the date of the making of such Loans or issuance, renewal,
extension or reissuance of a Letter of Credit with the same force and effect as
if made on and as of such date and following such new borrowing, except to the
extent such representations and warranties are expressly limited to an earlier
date or the Required Lenders may expressly consent in writing to the contrary.
Each request for a borrowing or issuance, renewal, extension or
reissuance of a Letter of Credit by the Borrower hereunder shall constitute a
certification by the Borrower to the effect set forth in Section 6.02(b) (both
as of the date of such notice and immediately following such borrowing or
issuance, renewal, extension or reissuance of a Letter of Credit).
SECTION 6.03. Conditions Precedent for the Benefit of Lenders.
All conditions precedent to the obligations of the Lenders to make any
Loan and of the Issuing Bank to issue Letters of Credit are imposed hereby
solely for the benefit of the Lenders and the Issuing Bank, and no other Person
may require satisfaction of any such condition precedent or be entitled to
assume that the Lenders will refuse to make any Loan or that the Issuing Bank
will refuse to issue a Letter of Credit in the absence of strict compliance with
such conditions precedent.
SECTION 6.04. No Waiver.
No waiver of any condition precedent shall preclude the Agent or the
Lenders from requiring such condition to be met prior to making any subsequent
Loan or preclude the Lenders from thereafter declaring that the failure of the
Borrower to satisfy such condition precedent constitutes a Default.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and the Lenders that
(each representation and warranty herein is given as of the date hereof and
shall be deemed repeated and reaffirmed on the dates of each borrowing and
issuance, renewal, extension or reissuance of a Letter of Credit as provided in
Section 6.02):
41
SECTION 7.01. Existence.
Each of the Borrower, the General Partner, each Guarantor, and each
Restricted Subsidiary: (i) is duly organized, legally existing and in good
standing under the laws of the jurisdiction of its formation; (ii) has all
requisite power, and has all material governmental licenses, authorizations,
consents and approvals necessary to own its assets and carry on its business as
now being or as proposed to be conducted and, with respect to Restricted
Subsidiaries, where a failure to have such items would have a Material Adverse
Effect; and (iii) is qualified to do business in all jurisdictions in which the
nature of the business conducted by it makes such qualification necessary and
where failure so to qualify would have a Material Adverse Effect.
SECTION 7.02. Financial Condition.
The audited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at December 31, 2000 and the related consolidated
statement of income, equity and cash flow of the Borrower and its Consolidated
Subsidiaries for the fiscal year ended on said date, with the opinion thereon of
Deloitte & Touche LLP heretofore furnished to each of the Lenders and the
unaudited consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at June 30, 2001 and the related consolidated statements of
income, equity and cash flow of the Borrower and its Consolidated Subsidiaries
for the six month period ended on such date heretofore furnished to the Agent,
are complete and correct and fairly present in all material respects the
consolidated financial condition of the Borrower and its Consolidated
Subsidiaries as at said dates and the results of its operations for the fiscal
year and the six month period ending on said dates, all in accordance with GAAP,
as applied on a consistent basis (subject, in the case of the interim financial
statements, to normal year-end adjustments and, the lack of footnotes). Neither
the Borrower nor any Subsidiary of the Borrower has on the date hereof any
material Debt, contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in the Financial
Statements or in Schedule 7.02. Since December 31, 2000, there has been no
change or event having a Material Adverse Effect that is continuing. Since the
date of the Financial Statements, neither the business nor the Properties (taken
as a whole) of the Borrower, any Guarantor or any Restricted Subsidiary have
been materially and adversely affected as a result of any fire, explosion,
earthquake, flood, drought, windstorm, accident, strike or other labor
disturbance, embargo, requisition or taking of Property or cancellation of
contracts, permits or concessions by any Governmental Authority, riot,
activities of armed forces or acts of God or of any public enemy which is
continuing.
SECTION 7.03. Litigation.
Except as disclosed to the Lenders in Schedule 7.03 hereto or as
disclosed in the Borrower's Form 10-K for the year ended December 31, 2000 filed
with the SEC (a true and complete copy of which has been delivered to the
Agent), as of the date hereof there is no litigation, legal, administrative or
arbitral proceeding, investigation or other action of any nature pending or, to
the knowledge of the Borrower threatened against or affecting the Borrower, the
General Partner or any Restricted Subsidiary that involves the possibility of
any judgment or liability against the Borrower, the Guarantor, the General
Partner or any Restricted Subsidiary not fully covered by insurance (except for
normal deductibles), and which, if determined adversely, would have a Material
Adverse Effect.
42
SECTION 7.04. No Breach.
Neither the execution and delivery of the Loan Documents, nor
compliance with the terms and provisions hereof will conflict with or result in
a breach of, or require any consent which has not been obtained as of the date
hereof under, the respective partnership agreements or other organizational
documents of the Borrower, the General Partner or any Restricted Subsidiary, or
any Governmental Requirement or any agreement or instrument to which the
Borrower, the Guarantor, the General Partner or any Restricted Subsidiary is a
party or by which it is bound or to which it or its Properties are subject, or
constitute a default under any such agreement or instrument, or result in the
creation or imposition of any Lien upon any of the revenues or assets of the
Borrower, the Guarantor, the General Partner or any Restricted Subsidiary
pursuant to the terms of any such agreement or instrument, other than the Liens
created by the Loan Documents.
SECTION 7.05. Authority.
Each of the Borrower, each Guarantor, the General Partner and each
Restricted Subsidiary has all necessary power and authority to execute, deliver
and perform its obligations under the Loan Documents to which it is a party; and
the execution, delivery and performance by each of the Borrower, each Guarantor,
the General Partner and each Restricted Subsidiary of the Loan Documents to
which it is a party, have been duly authorized by all necessary action on its
part; and each Loan Document to which the Borrower, any Guarantor, the General
Partner or any Restricted Subsidiary is a party, constitutes the legal, valid
and binding obligation of the Borrower, such Guarantor, the General Partner or
such Restricted Subsidiary, as the case may be, and is enforceable in accordance
with its terms, except as limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws of general application
relating to or affecting creditors' rights and general principles of equity.
SECTION 7.06. Approvals.
No authorizations, approvals or consents of, and no filings or
registrations with, any Governmental Authority are necessary for the execution,
delivery or performance by the Borrower, the Guarantors, the General Partner or
the Restricted Subsidiaries of the Loan Documents or for the validity or
enforceability thereof, except for (i) the authorization by the Connecticut
Department of Public Utility Control, in Docket No. 01-08-10, of the execution
and delivery of the Guaranty by Buckeye Pipe Line Company, L.P. and (ii) the
order of the Pennsylvania Public Utility Commission, in Docket No. S-00010867,
registering an Abbreviated Securities Certificate authorizing Buckeye Pipe Line
Company, L.P. to execute and deliver the Guaranty, each of which has been duly
filed or obtained, and is final and in full force and effect.
SECTION 7.07. Use of Loans.
The proceeds of the Loans and Letters of Credit shall be used to
pay-off certain outstanding Debt and for working capital, capital expenditures,
acquisitions and general partnership purposes. The Borrower is not engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose, whether immediate, incidental or ultimate, of buying or
carrying margin stock (within the meaning of Regulation T, U or X of the Board
of Governors of the Federal Reserve System) and no part of the proceeds of any
Loan hereunder will be used to buy or carry any margin stock.
43
SECTION 7.08. ERISA.
(a) The Borrower, each Subsidiary of the Borrower and each ERISA
Affiliate have complied in all material respects with ERISA and, where
applicable, the Code regarding each Plan.
(b) Each Plan is, and has been, maintained in substantial compliance
with ERISA and, where applicable, the Code.
(c) To the knowledge of the Borrower, no act, omission or transaction
has occurred that could result in imposition on the Borrower, any Subsidiary of
the Borrower or any ERISA Affiliate (whether directly or indirectly) of (i)
either a civil penalty assessed pursuant to Section 502(c), (i) or (1) of ERISA
or a tax imposed pursuant to Chapter 43 of Subtitle D of the Code or (ii) breach
of fiduciary duty liability damages under section 409 of ERISA.
(d) No Plan (other than a defined contribution plan) or any trust
created under any such Plan has been terminated since December 31, 1985, other
than the Pension Plan for Buckeye Pipe Line Company, which was terminated on
December 31, 1985. Upon the termination of the Pension Plan for Buckeye Pipe
Line Company, distributions were made or annuities purchased for each
participant under such plan and Borrower received a favorable determination
letter from the Internal Revenue Service with respect to the termination. No
material liability to the PBGC (other than for the payment of current premiums
which are not past due) by the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate has been or is expected by the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate to be incurred with respect to any Plan. No
ERISA Event with respect to any Plan has occurred or is reasonably expected to
be incurred.
(e) Full payment when due has been made of all amounts which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is required
under the terms of each Plan or applicable law to have paid as contributions to
such Plan, and no accumulated funding deficiency (as defined in section 302 of
ERISA and section 412 of the Code), whether or not waived, exists with respect
to any Plan.
(f) The actuarial present value of the benefit liabilities under all
Plans that are subject to Title IV of ERISA do not, as of the end of the
Borrower's most recently ended fiscal year, exceed the current value of the
assets (computed on a plan termination basis in accordance with Title IV of
ERISA) of such Plans allocable to such benefit liabilities by more than
$2,000,000 in the aggregate. The term "actuarial present value of the benefit
liabilities" shall have the meaning specified in section 4041 of ERISA.
(g) None of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate sponsors, maintains, or contributes to an employee welfare benefit
plan, as defined in section 3(l) of ERISA, including, without limitation, any
such plan maintained to provide benefits to former employees of such entities,
that may not be terminated by the Borrower, such Subsidiary or such ERISA
Affiliate in its sole discretion at any time without any material liability.
44
(h) None of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate sponsors, maintains or contributes to, or has at any time in the
preceding six calendar years, sponsored, maintained or contributed to, any
Multiemployer Plan.
(i) Neither the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate is required to provide security under section 401(a)(29) of the Code
due to a Plan amendment that results in an increase in current liability for the
Plan.
SECTION 7.09. Taxes.
Each of the Borrower, the Guarantors, the General Partner and the
Restricted Subsidiaries has filed all United States Federal income tax returns
and all other tax returns which are required to be filed by them and have paid
all material taxes due pursuant to such returns or pursuant to any assessment
received by the Borrower, any Guarantor, the General Partner or any Restricted
Subsidiary. The charges, accruals and reserves on the books of the Borrower, the
Guarantors, the General Partner and the Restricted Subsidiaries in respect of
taxes and other governmental charges are, in the opinion of the Borrower,
adequate. No tax lien has been filed and, to the knowledge of the Borrower, no
claim is being asserted with respect to any such tax, fee or other charge.
SECTION 7.10. Titles, etc.
(a) Except as set out in Schedule 7.10, each of the Borrower, the
Guarantors and the Restricted Subsidiaries has good and defensible title to its
material (individually or in the aggregate) Properties, free and clear of all
Liens, except Liens permitted by Section 9.02.
(b) All leases and agreements necessary for the conduct of the business
of the Borrower, the Guarantors and the Restricted Subsidiaries are valid and
subsisting, in full force and effect, except as could not reasonably be expected
to have a Material Adverse Effect, and there exists no default or event or
circumstance which with the giving of notice or the passage of time or both
would give rise to a default under any such lease or leases, which would affect
in any material respect the conduct of the business of the Borrower, the
Guarantors or the Restricted Subsidiaries.
(c) The rights, Properties and other assets presently owned, leased or
licensed by the Borrower, the Guarantors and the Restricted Subsidiaries
including, without limitation, all easements and rights of way, include all
rights, Properties and other assets necessary to permit the Borrower, each
Guarantor and each Restricted Subsidiary to conduct its business in all material
respects in the same manner as its business has been conducted prior to the date
hereof.
(d) All of the assets and Properties of the Borrower, the Guarantors
and the Restricted Subsidiaries that are reasonably necessary for the operation
of their business are in all material respects in good working condition and are
maintained in accordance with prudent business standards.
45
SECTION 7.11. No Material Misstatements.
No written information, statement, exhibit, certificate, document or
report furnished to the Agent and the Lenders (or any of them) by the Borrower,
any Guarantor or any Restricted Subsidiary in connection with the negotiation of
this Agreement contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statement contained therein not
materially misleading in the light of the circumstances in which made. There is
no fact peculiar to the Borrower or any Restricted Subsidiary that has a
Material Adverse Effect or in the future is reasonably likely to have (so far as
the Borrower can now foresee) a Material Adverse Effect and that has not been
set forth in this Agreement or the other documents, certificates and statements
furnished to the Agent by or on behalf of the Borrower or any Restricted
Subsidiary prior to, as of, the date hereof in connection with the transactions
contemplated hereby.
SECTION 7.12. Investment Company Act.
None of the Borrower, any Guarantor or any Restricted Subsidiary is an
"investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
SECTION 7.13. Public Utility Holding Company Act.
None of the Borrower, any Guarantor or any Restricted Subsidiary is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
SECTION 7.14. Subsidiaries.
Except as set forth on Schedule 7.14 or otherwise as disclosed to the
Agent in writing, the Borrower does not have any Subsidiaries.
SECTION 7.15. Location of Business and Offices.
The Borrower's principal place of business and chief executive office
is located at the address stated on the signature page of this Agreement or as
otherwise disclosed in writing to the Agent. The principal place of business and
chief executive office of each Restricted Subsidiary are located at the
addresses stated on Schedule 7.14 or as otherwise disclosed in writing to the
Agent.
SECTION 7.16. Defaults.
None of the Borrower, any Guarantor or any Restricted Subsidiary is in
default nor has any event or circumstance occurred which, but for the expiration
of any applicable grace period or the giving of notice, or both, would
constitute a default under any material agreement or instrument to which it is a
party or by which it is bound which default would have a Material Adverse
Effect. No Default hereunder has occurred and is continuing.
46
SECTION 7.17. Environmental Matters.
Except (i) as provided in Schedule 7.17, (ii) as disclosed in the Form
10-K for the year ended December 31, 2000 filed by the Borrower with the SEC, or
(iii) as would not have a Material Adverse Effect (or with respect to (c), (d)
and (e) below, where the failure to take such actions would not have a Material
Adverse Effect):
(a) Neither any Property of the Borrower, any Guarantor or any
Restricted Subsidiary nor the operations conducted thereon violate any order or
requirement of any court or Governmental Authority or any Environmental Laws;
(b) Without limitation of clause (a) above, no Property of the
Borrower, any Guarantor or any Restricted Subsidiary nor the operations
currently conducted thereon or, to the best knowledge of the Borrower, by any
prior owner or operator of such Property or operation, are in violation of or
subject to any existing, pending or threatened action, suit, investigation,
inquiry or proceeding by or before any court or Governmental Authority or to any
remedial obligations under Environmental Laws;
(c) All notices, permits, licenses or similar authorizations, if any,
required to be obtained or filed in connection with the operation or use of any
and all Property of the Borrower, each Guarantor and each Restricted Subsidiary,
including without limitation past or present treatment, storage, disposal or
release of a hazardous substance, hazardous waste or solid waste into the
environment, have been duly obtained or filed, and each of the Borrower, the
Guarantors and the Restricted Subsidiaries are in compliance with the terms and
conditions of all such notices, permits, licenses and similar authorizations;
(d) All hazardous substances, hazardous waste, solid waste, and oil and
gas exploration and production wastes, any, generated at any and all Property
of the Borrower, any Guarantor or any Restricted Subsidiary have in the past
been transported, treated and disposed of in accordance with Environmental Laws
and so as not to pose an endangerment to public health or welfare or the
environment, and, to the best knowledge of the Borrower, all such transport
carriers and treatment and disposal facilities have been and are operating in
compliance with Environmental Laws and so as not to pose an imminent and
substantial endangerment to public health or welfare or the environment, and are
not the subject of any existing, pending or threatened action, investigation or
inquiry by any Governmental Authority in connection with any Environmental Laws;
(e) The Borrower, the Guarantors and the Restricted Subsidiaries have
taken all steps reasonably necessary to determine and have determined that no
hazardous substances, hazardous waste, solid waste, or oil and gas exploration
and production wastes, have been disposed of or otherwise released and there has
been no threatened release of any hazardous substances on or to any Property of
the Borrower, any Guarantor, or any Restricted Subsidiary;
(f) To the extent applicable, all Property of the Borrower, each
Guarantor and each Restricted Subsidiary currently satisfies all design,
operation, and equipment requirements imposed by the Environmental Laws or
scheduled as of the date hereof to be imposed by the Environmental Laws during
the term of this Agreement, and the Borrower does not have any reason to believe
that such Property, to the extent subject to the Environmental Laws, will not be
able to maintain compliance with the Environmental Laws requirements during the
term of this Agreement; and
47
(g) None of the Borrower, any Guarantor or any Restricted Subsidiary
has any known contingent liability in connection with any release or threatened
release of any oil, hazardous substance, hazardous waste or solid waste into the
environment.
SECTION 7.18. Compliance with the Law.
None of the Borrower, any Guarantor or any Restricted Subsidiary has
violated any Governmental Requirement or failed to obtain any license, permit,
franchise or other governmental authorization necessary for the ownership of any
of its Properties or the conduct of its business, which violation or failure
would have (in the event such violation or failure were asserted by any Person
through appropriate action) a Material Adverse Effect.
SECTION 7.19. Insurance.
The Borrower and each of the Restricted Subsidiaries maintains, with
financially sound and reputable insurers, insurance with respect to their
respective Properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
All such policies are in full force and effect, all premiums with respect
thereto covering all periods up to and including the date of the closing have
been paid, and no notice of cancellation or termination has been received with
respect to any such policy. Such policies are sufficient for compliance with all
requirements of law and of all agreements to which the Borrower, any Guarantor,
or any Restricted Subsidiary is a party; are valid, outstanding and enforceable
policies; provide adequate insurance coverage in at least such amounts and
against at least such risks (but including in any event public liability) as are
usually insured against in the same general area by companies engaged in the
same or a similar business for the assets and operations of the Borrower, each
Guarantor and each Restricted Subsidiary.
SECTION 7.20. Material Agreements.
The Borrower has heretofore delivered to the Agent a complete and
correct copy of the Indenture and the Note Agreement relating to the Senior
Notes, each as amended and in effect on the date hereof.
SECTION 7.21. Partnership Agreement.
The Borrower Partnership Agreement has not been terminated, and is in
full force and effect as of the date hereof and no default has occurred and is
continuing thereunder which would have a Material Adverse Effect.
48
SECTION 7.22. Ownership of Parties.
(a) The Borrower is a limited partnership formed under the laws of the
State of Delaware and owned 1% (general partnership interest) by the General
Partner and 99% (limited partnership interests) by public holders of limited
partnership units.
(b) The form of organization and equity ownership of each Restricted
Subsidiary and each Unrestricted Subsidiary as of the date hereof is set forth
on Schedule 7.22.
(c) BMC owns 100% of the capital stock of the General Partner as of the
date hereof.
SECTION 7.23. No Other Debt.
Other than pursuant to Section 8.04, as of the date hereof, Laurel Pipe
Line Company, L.P. is not seeking to satisfy any Governmental Requirements in
connection with the issuance of Debt.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, so long as any of the
Commitments are in effect or any Letter of Credit remains outstanding and until
payment in full of all Loans hereunder, all interest thereon and all other
amounts payable by the Borrower hereunder and the Guarantors under the Guaranty:
SECTION 8.01. Reporting Requirements.
The Borrower shall deliver, or shall cause to be delivered, to the
Agent with sufficient copies of each for the Lenders:
(a) Annual Financial Statements. As soon as available and in any event
within 120 days after the end of each fiscal year of the Borrower, the audited
consolidated and, within 120 days after the end of each fiscal year of the
Borrower, unaudited consolidating statements of income, equity, changes in
financial position and cash flow of the Borrower and its Consolidated
Subsidiaries for such fiscal year, and the related consolidated and
consolidating balance sheets of the Borrower and its Consolidated Subsidiaries
as at the end of such fiscal year, and setting forth in each case in comparative
form the corresponding figures for the preceding fiscal year, and, in the case
of the audited statements, accompanied by the related opinion of independent
public accountants of recognized national standing acceptable to the Agent which
opinion shall state that said financial statements fairly present in all
material respects the consolidated and consolidating financial condition and
results of operations of the Borrower and its Consolidated Subsidiaries as at
the end of, and for, such fiscal year and that such financial statements have
been prepared in accordance with GAAP, except for such changes in such
principles with which the independent public accountants shall have concurred
and such opinion shall not contain a "going concern" or like qualification or
exception, and a certificate of such accountants stating that, in making the
examination necessary for their opinion, they obtained no knowledge, except as
specifically stated, of any Default.
49
(b) Quarterly Financial Statements. As soon as available and in any
event within 60 days after the end of each of the first three fiscal quarterly
periods of each fiscal year of the Borrower, consolidated and consolidating
statements of income, equity, changes in financial position and cash flow of the
Borrower and its Consolidated Subsidiaries for such period and for the period
from the beginning of the respective fiscal year to the end of such period, and
the related consolidated and consolidating balance sheets as at the end of such
period, and setting forth in each case in comparative form the corresponding
figures for the corresponding period in the preceding fiscal year, accompanied
by the certificate of a Responsible Officer of BMC, which certificate shall
state that said financial statements fairly present in all material respects the
consolidated and consolidating financial condition and results of operations of
the Borrower and its Consolidated Subsidiaries in accordance with GAAP, as at
the end of, and for, such period (subject to normal year-end audit adjustments
and the lack of footnotes).
(c) Change in Reference Rating. Promptly and in any event within seven
Business Days after ▇▇▇▇▇'▇ or S&P has changed any relevant Reference Rating,
notice of such change.
(d) Notice of Default, Etc. Promptly after a Responsible officer of the
Borrower knows that any Default or any Material Adverse Effect has occurred, a
notice of such Default or Material Adverse Effect, describing the same in
reasonable detail and the action the Borrower proposes to take with respect
thereto.
(e) Other Accounting Reports. Promptly upon receipt thereof, a copy of
each other report or letter submitted to the Borrower or any Subsidiary of the
Borrower by independent accountants in connection with any annual, interim or
special audit made by them of the books of the Borrower and its Subsidiaries,
and a copy of any response by any Guarantor or any Subsidiary of the Borrower,
to such letter or report.
(f) Governmental Authorities. Promptly upon receipt thereof, a copy of
any notice from any Governmental Authority (except where involving a routine or
ordinary course matter, which in any case is immaterial), and promptly upon a
Responsible Officer of the Borrower's knowledge thereof, notice of any material
dispute with any Governmental Authority involving the Borrower, any Guarantor or
any Restricted Subsidiary.
(g) Notices Under Other Loan Agreements. Promptly after the furnishing
thereof, copies of any statement, report or notice furnished by the Borrower to
any Person pursuant to the terms of any indenture, loan or credit or other
similar agreement, other than this Agreement and not otherwise required to be
furnished to the Lenders pursuant to any other provision of this Section 8.01.
(h) Other Matters. From time to time such other information regarding
the business, affairs or financial condition of the Borrower, any Guarantor, any
Restricted Subsidiary or any Subsidiary of the Borrower (including, without
limitation, any Plan or Multiemployer Plan and any reports or other information
required to be filed under ERISA) as the Agent may reasonably request.
The Borrower will each furnish to the Agent, at the time each set of financial
statements is furnished to the Agent pursuant to paragraph (a) or (b) above, a
Compliance Certificate executed by a Responsible Officer of the General Partner
and BMC, respectively, (i) certifying as to the matters set forth therein and
stating that no Default has occurred and is continuing (or, if any Default has
occurred and is continuing, describing the same in reasonable detail), and (ii)
setting forth in reasonable detail the computations necessary to determine
whether the Borrower is in compliance with Sections 9.12 and 9.13 as of the end
of the respective fiscal quarter or fiscal year.
50
SECTION 8.02. Litigation.
The Borrower shall promptly give, and shall cause any Restricted
Subsidiary to give to the Agent notice of: (i) all legal or arbitral
proceedings, and of all proceedings before any Governmental Authority affecting
the Borrower, the Guarantor or any Restricted Subsidiary, except proceedings
which, if adversely determined, would not have a Material Adverse Effect, and
(ii) any litigation or proceeding against or adversely affecting the Borrower,
the Guarantor or any Restricted Subsidiary in which the amount involved exceeds
$5,000,000 and is not covered in full by insurance (subject to normal and
customary deductibles and for which the insurer has not assumed the defense), or
in which injunctive or similar relief is sought.
The Borrower will promptly notify the Agent and each of the Lenders of
any claim, judgment, Lien or other encumbrance affecting any Property of the
Borrower, the Guarantor or any Restricted Subsidiary if the value of the claim,
judgment, Lien, or other encumbrance affecting such Property shall exceed
$5,000,000.
SECTION 8.03. Maintenance, Etc.
(a) Generally. The Borrower shall: preserve and maintain its
partnership or corporate existence and all of its material rights, privileges
and franchises and shall cause the Restricted Subsidiaries to do so; keep books
of record and account in which full, true and correct entries will be made of
all dealings or transactions in relation to its business and activities; comply
with all Governmental Requirements if failure to comply with such requirements
will have a Material Adverse Effect; pay and discharge all taxes, assessments
and governmental charges or levies imposed on it or on its income or profits or
on any of its Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment of which is
being contested in good faith and by proper proceedings and against which
adequate reserves are being maintained; upon reasonable notice, permit
representatives of the Agent or any Lender, during normal business hours, to
examine, copy and make extracts from its books and records, to inspect its
Properties, and to discuss its business and affairs with its officers, all
to the extent reasonably requested by such Lender or the Agent (as the case may
be); and keep, or cause to be kept, insured by financially sound and reputable
insurers all Property of a character usually insured by Persons engaged in the
same or similar business similarly situated against loss or damage of the kinds
and in the amounts customarily insured against by such Persons and carry such
other insurance as is usually carried by such Persons including, without
limitation, environmental risk insurance to the extent reasonably available.
(b) Proof of Insurance. Contemporaneously with the delivery of the
financial statements required by Section 8.01(a) to be delivered for each year,
the Borrower will furnish or cause to be furnished, and will cause to be
furnished for the Restricted Subsidiaries, to the Agent certificates of
insurance coverage from an insurer in form and substance reasonably satisfactory
to the Agent and, if requested, will furnish the Agent copies of the applicable
policies.
51
(c) Operation of Properties. The Borrower will and will cause each
Restricted Subsidiary to, operate its Properties or cause such Properties to be
operated in a careful and efficient manner in accordance with the practices of
the industry and in compliance with all applicable contracts and agreements and
in compliance in all material respects with all Governmental Requirements.
SECTION 8.04. Guaranty Approval.
The Borrower shall use its best efforts to cause Laurel Pipe Line
Company, L.P. to satisfy all Governmental Requirements necessary for the
execution, delivery and performance by Laurel Pipe Line Company, L.P. of a
Guaranty. The Borrower shall cause Laurel Pipe Line Company, L.P. to execute and
deliver a Guaranty promptly upon satisfaction of such Governmental Requirements,
but in no event later than the 180th day following the Closing Date.
SECTION 8.05. Environmental Matters.
(a) Establishment of Procedures. The Borrower will and will cause each
Restricted Subsidiary to, establish and implement such procedures as may be
reasonably necessary to determine and assure that any failure of the following
does not have a Material Adverse Effect: (i) all Property of the Borrower, the
Guarantors and the Restricted Subsidiaries, and the operations conducted thereon
and other activities of the Borrower, the Guarantors and the Restricted
Subsidiaries, are in compliance with and do not violate the requirements of any
Environmental Laws, (ii) no oil, hazardous substances or solid wastes are
disposed of or otherwise released on or to any Property owned by the Borrower,
any Guarantor or any Restricted Subsidiary except in compliance with
Environmental Laws, (iii) no hazardous substance will be released on or to any
such Property in a quantity equal to or exceeding that quantity which requires
reporting pursuant to Section 103 of CERCLA, and (iv) no oil, oil and gas
exploration and production wastes or hazardous substance is released on or to
any such Property so as to pose an imminent and substantial endangerment to
public health or welfare or the environment.
(b) Notice of Action. The Borrower will, and will cause each Restricted
Subsidiary to, promptly notify the Agent and the Lenders in writing of any
threatened action or investigation by any Governmental Authority of which a
Responsible Officer of the Borrower, any Guarantor or any Restricted Subsidiary
has knowledge in connection with any Environmental Laws, excluding routine
testing and corrective action.
(c) Future Acquisitions. The Borrower will, and will cause each
Restricted Subsidiary to, provide environmental audits and tests in accordance
with American Society for Testing and Materials standards as reasonably
requested by the Agent or any Lender through the Agent (or as otherwise required
to be obtained by the Agent or the Lenders by any Governmental Authority) in
connection with any future acquisitions of any material Properties by the
Borrower, any Guarantor or any Restricted Subsidiary.
52
SECTION 8.06. Further Assurances.
The Borrower will promptly cure any defects in the execution and
delivery of the other Loan Documents. The Borrower, at its expense, will
promptly execute and deliver (or cause to be promptly executed and delivered) to
the Agent upon reasonable request all such other documents, agreements and
instruments to comply with or accomplish the covenants and agreements of the
Borrower in the Loan Documents, or to, correct any omissions in the Loan
Documents, or to state more fully the obligations set out herein or in any of
the other Loan Documents, or to make any recordings, to file any notices or
obtain any consents, all as may be necessary or appropriate in connection
therewith.
SECTION 8.07. Performance of Obligations.
The Borrower will do and perform every act and discharge all of the
obligations to be performed and discharged by it under this Agreement, at the
time or times and in the manner specified.
SECTION 8.08. ERISA Information and Compliance.
The Borrower will promptly furnish and will cause any ERISA Affiliate
to promptly furnish to the Agent with sufficient copies to the Lenders (i)
promptly after the filing thereof with the United States Secretary of Labor, the
Internal Revenue Service or the PBGC, copies of each annual and other material
report with respect to each Plan or any trust created thereunder, (ii) as soon
as possible and in any event within 30 days after the occurrence of any ERISA
Event in clause (i) of the definition of ERISA Event or any "prohibited
transaction," as described in section 406 of ERISA or in section 4975 of the
Code, and in any event within 10 days after any other ERISA Event, in connection
with any Plan or any trust created thereunder, a written notice signed by a
Responsible Officer specifying the nature thereof, what action the Borrower or
the ERISA Affiliate is taking or proposes to take with respect thereto, and,
when known, any action taken or proposed by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto, and (iii) immediately upon
receipt thereof, copies of any notice of the PBGC's intention to terminate, or
to have a trustee appointed to administer, any Plan. With respect to each Plan
(other than a Multiemployer Plan), the Borrower will, and will cause each ERISA
Affiliate to, (i) satisfy in full and in a timely manner, without incurring any
late payment or underpayment charge or penalty and without giving rise to any
lien, all of the contribution and funding requirements of section 412 of the
Code (determined without regard to subsections (d), (e), (f) and (k) thereof)
and of section 302 of ERISA (determined without regard to sections 303, 304 and
306 of ERISA), and (ii) pay, or cause to be paid, to the PBGC in a timely
manner, without incurring any late payment or underpayment charge or penalty,
all premiums required pursuant to sections 4006 and 4007 of ERISA.
ARTICLE IX
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any of the
Commitments are in effect or any Letter of Credit remains outstanding and until
payment in full of Loans hereunder, all interest thereon and all other amounts
payable by the Borrower hereunder and the Guarantors under the Guaranties,
without the prior written consent of the Required Lenders:
53
SECTION 9.01. Debt.
The Borrower will not and will not cause or permit any Guarantor or any
Restricted Subsidiary to incur, create, assume or permit to exist any Debt,
except:
(a) the Debt hereunder or any guaranty of or suretyship arrangement for
the Debt hereunder;
(b) Debt of the Borrower and the Restricted Subsidiaries existing on
the date hereof that is reflected in the Financial Statements or is disclosed in
Schedule 9.01, and any renewals or extensions (but not increases) thereof;
(c) accounts payable (for the deferred purchase price of Property or
services) from time to time incurred in the ordinary course of business which,
if material and greater than 90 days past the invoice or billing date, are being
contested in good faith by appropriate proceedings if reserves adequate under
GAAP shall have been established therefor;
(d) Debt of the Borrower and the Restricted Subsidiaries requiring no
principal payments (whether at stated maturity or by virtue of scheduled
amortization, required prepayment or redemption) due until at least one year
after the Termination Date and issued under the Indenture or otherwise on terms
and conditions (excluding interest rates) no less favorable to the Borrower or
the Restricted Subsidiary, as the case may be, than this Agreement;
(e) Debt not otherwise permitted by this Section 9.01 that in the
aggregate shall not exceed $100,000,000 outstanding at any one time;
(f) Debt of the Borrower and the Restricted Subsidiaries under Hedging
Agreements entered into as a part of its normal business operations as a risk
management strategy and/or hedge against changes resulting from market
conditions related to the Borrower's operations;
(g) Debt as a result of (and to the extent permitted by) Sections
9.03(g), (h) and (i); and
(h) Debt under the Other Credit Agreement.
SECTION 9.02. Liens.
The Borrower will not and will not cause or permit any Guarantor or any
Restricted Subsidiary to create, incur, assume or permit to exist any Lien on
any of its Properties (now owned or hereafter acquired), except:
(a) Liens securing the payment of any Debt hereunder;
(b) Excepted Liens;
54
(c) Liens disclosed on Schedule 9.02; and
(d) Liens originally created to secure purchase money Debt permitted
under Section 9.01(e), which in each case shall not exceed 100% of the lesser of
the total purchase price and the fair market value of the Property acquired as
determined at the time of acquisition; provided, that, (i) the Property to be
purchased with the proceeds of such Debt shall be purchased not more than 60
days prior to the date of the creation of such Lien and (ii) such Lien encumbers
only the Property so acquired.
SECTION 9.03. Investments, Loans and Advances.
The Borrower will not and will not cause or permit any Guarantor or any
Restricted Subsidiary to make or permit to remain outstanding any loans or
advances to or investments in any Person, except that the foregoing restriction
shall not apply to:
(a) investments, loans or advances reflected in the Financial
Statements or which are disclosed to the Lenders in Schedule 9.03;
(b) accounts receivable arising in the ordinary course of business;
(c) direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof, in each case
maturing within one year from the date of creation thereof;
(d) commercial paper maturing within one year from the date of creation
thereof rated in the highest grade by S&P or ▇▇▇▇▇'▇;
(e) deposits maturing within one year from the date of creation thereof
with, including certificates of deposit issued by, any Lender or any office
located in the United States of any other bank or trust company which is
organized under the laws of the United States or any state thereof, has capital,
surplus and undivided profits aggregating at least $100,000,000.00 (as of the
date of such Lender's or bank or trust company's most recent financial reports)
and has a short term deposit rating of no lower than A2 or P2, as such rating is
set forth from time to time, by S&P or ▇▇▇▇▇'▇, respectively;
(f) deposits in money market funds investing exclusively in investments
described in Section 9.03(c), 9.03(d) or 9.03(e);
(g) investments, loans or advances made in or to the Borrower or any
Restricted Subsidiary that has executed a Guaranty;
(h) investments, loans or advances in or to any Person (other than the
Borrower or any Restricted Subsidiary that has executed a Guaranty) not to
exceed $75,000,000 in the aggregate at any time outstanding; and
(i) other investments, loans and advances in or to any Person made with
equity of the Borrower or with other consideration, including cash, not to
exceed the amount of net proceeds received by the Borrower from an equity
offering occurring substantially concurrent therewith.
55
SECTION 9.04. Distributions and Redemptions.
If an Event of Default has occurred and is continuing or would result
therefrom, the Borrower will not purchase, redeem or otherwise acquire for value
any of its equity interests now or hereafter outstanding, return any capital or
make any distribution of its assets to its equity owners.
SECTION 9.05. Sales and Leasebacks.
The Borrower will not, and will not cause or permit any Restricted
Subsidiary to, enter into any Sale-Leaseback Transaction, unless:
(a) such Sale-Leaseback Transaction occurs within one year after the
later of (i) completion of the acquisition of the applicable Property by the
Borrower or such Restricted Subsidiary or (ii) commencement of full operation
with respect to such Property; or
(b) such Sale-Leaseback Transaction involves a lease for a term of not
more than three years; or
(c) the net sale proceeds derived from the sale or transfer by the
Borrower or such Restricted Subsidiary of the Property involved are used solely
(i) to prepay or retire Funded Debt of the Borrower ranking pari passu with the
Debt hereunder or (ii) for capital improvements with respect to the pipeline
systems of the Borrower or any Restricted Subsidiary made in the ordinary course
of business of the Borrower or such Restricted Subsidiary; or
(d) the Sale-Leaseback Attributable Debt attributable to such
Sale-Leaseback Transaction would be permitted under Section 9.01(e).
SECTION 9.06. Nature of Business.
The Borrower will not, and will not permit any Restricted Subsidiary
to, make any material change in the nature of its business as it exists on the
date hereof or, in the case of a Restricted Subsidiary, acquired or established
after the date hereof, as the nature of the business existed on the date of such
acquisition or establishment.
SECTION 9.07. Restrictive Agreements.
The Borrower will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into, incur or permit to exist any agreement
that prohibits, restricts or imposes any condition upon the ability of any such
Restricted Subsidiary to declare or pay dividends or distributions to its equity
holders, to make or repay loans or advances to the Borrower or any other
Restricted Subsidiary, to guarantee Indebtedness of the Borrower or any other
such Restricted Subsidiary or to transfer any of its property or assets to the
Borrower or any such Restricted Subsidiary; provided, that (A) the foregoing
shall not apply to restrictions or conditions imposed by law, this Agreement or
any other Loan Document, the Note Agreement or the Indenture (in the case of the
Note Agreement and the Indenture, as in effect on the date hereof), and (B) the
foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of any Restricted Subsidiary of the Borrower
pending such sale, provided such restrictions and conditions apply only to the
Restricted Subsidiary that is sold and such sale is permitted hereunder.
56
SECTION 9.08. Mergers, Etc.
None of the Borrower, any Guarantor or any Restricted Subsidiary will
merge into or with or consolidate with any other Person unless such former
entity is the survivor, or sell, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
Property or assets to any other Person; provided, however, that any Restricted
Subsidiary may merge with or into the Borrower, any Guarantor or any other
Restricted Subsidiary, even if it is not the surviving entity of such merger.
SECTION 9.09. Proceeds of the Loans; Letters of Credit.
The Borrower will not permit the proceeds of the Loans or the proceeds
of the Letters of Credit to be used for any purpose other than those permitted
by Section 7.07. Neither the Borrower nor any Person acting on behalf of the
Borrower has taken or will take any action which might cause any of the Loan
Documents to violate Regulation T, U or X or any other Regulation of the Board
of Governors of the Federal Reserve System or to violate Section 7 of the
Securities Exchange Act of 1934 or any rule or regulation thereunder, in each
case as now in effect or as the same may hereinafter be in effect.
SECTION 9.10. ERISA Compliance.
The Borrower will not at any time take any of the following actions
that could reasonably be expected, individually or in the aggregate, to result
in a Material Adverse Effect:
(a) Engage in, or permit any Subsidiary of the Borrower or ERISA
Affiliate to engage in, any transaction in connection with which the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate could be subjected to
either a civil penalty assessed pursuant to section 502(c), (i) or (1) of ERISA
or a tax imposed by Chapter 43 of Subtitle D of the Code;
(b) Terminate, or permit any Subsidiary of the Borrower or ERISA
Affiliate to terminate, any Plan in a manner, or take any other action with
respect to any Plan, that could result in any liability to the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate to the PBGC;
(c) Fail to make, or permit any Subsidiary of the Borrower or ERISA
Affiliate to fail to make, full payment when due of all amounts that, under the
provisions of any Plan, agreement relating thereto or applicable law, the
Borrower, a Subsidiary or any ERISA Affiliate is required to pay as
contributions thereto;
(d) Permit to exist, or allow any Subsidiary of the Borrower or ERISA
Affiliate to permit to exist, any accumulated funding deficiency within the
meaning of section 302 of ERISA or section 412 of the Code, whether or not
waived, with respect to any Plan;
(e) Permit, or allow any Subsidiary of the Borrower or ERISA Affiliate
to permit, the actuarial present value of the benefit liabilities under any Plan
that is regulated under Title IV of ERISA to exceed the current value of the
assets (computed on a plan termination basis in accordance with Title IV of
ERISA) of such Plan allocable to such benefit liabilities. The term "actuarial
present value of the benefit liabilities" shall have the meaning specified in
section 4041 of ERISA;
57
(f) Contribute to or assume an obligation to contribute to, or permit
any Subsidiary of the Borrower or ERISA Affiliate to contribute to or assume an
obligation to contribute to, any Multiemployer Plan;
(g) Acquire, or permit any Subsidiary of the Borrower or ERISA
Affiliate to acquire, an interest in any Person that causes such Person to
become an ERISA Affiliate with respect to the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate if such Person sponsors, maintains or
contributes to, or at any time in the six-year period preceding such acquisition
has sponsored, maintained, or contributed to, (1) any Multiemployer Plan, or (2)
any other Plan that is subject to Title IV of ERISA under which the actuarial
present value of the benefit liabilities under such Plan exceeds the current
value of the assets (computed on a plan termination basis in accordance with
Title IV of ERISA) of such Plan allocable to such benefit liabilities;
(h) Incur, or permit any Subsidiary of the Borrower or ERISA Affiliate
to incur, a liability to or on account of a Plan under sections 515, 4062, 4063,
4064, 4201 or 4204 of ERISA;
(i) Contribute to or assume an obligation to contribute to, or permit
any Subsidiary of the Borrower or ERISA Affiliate to contribute to or assume an
obligation to contribute to, any employee welfare benefit plan, as defined in
section 3(l) of ERISA, including, without limitation, any such plan maintained
to provide benefits to former employees of such entities, that may not be
terminated by such entities in their sole discretion at any time without any
material liability;
(j) Amend or permit any Subsidiary of the Borrower or ERISA Affiliate
to amend, a Plan resulting in an increase in current liability such that the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate is required to
provide security to such Plan under section 401(a)(29) of the Code; or
(k) Permit to exist any occurrence of a "Reportable Event" described in
Section 4043 of ERISA and the regulations thereunder.
SECTION 9.11. Sale or Discount of Receivables.
None of the Borrower, any Guarantor or any Restricted Subsidiary will
discount or sell (with or without recourse) any of its notes receivable or
accounts receivable.
SECTION 9.12. Funded Debt Ratio.
The Borrower will not permit the Funded Debt Ratio as of the end of any
fiscal quarter to be greater than 4.75 to 1.00; provided, however, that for a
period of up to two consecutive fiscal quarters (an "Increased Funded Debt
Period") within any twelve-month period commencing on the date hereof, the
Funded Debt Ratio may exceed 4.75 to 1.00 but shall in no event exceed 5.00 to
1.00; provided, further, that no Increased Funded Debt Period shall occur sooner
than two fiscal quarters following any other Increased Funded Debt Period.
58
SECTION 9.13. Fixed Charge Coverage Ratio.
The Borrower will not permit the Fixed Charge Coverage Ratio as of the
end of any fiscal quarter (calculated quarterly at the end of each fiscal
quarter) to be less than 1.25 to 1.00.
SECTION 9.14. Sale of Properties.
The Borrower will not, and will not cause or permit any Guarantor or
any Restricted Subsidiary to sell, assign, convey or otherwise transfer any
Property or any interest in any Property, unless such Property is not material
to the ability of the Borrower or any Restricted Subsidiary to generate EBITDA.
SECTION 9.15. Environmental Matters.
The Borrower shall not, and shall not cause or permit any Guarantor or
any Restricted Subsidiary to cause or permit any of its Property to be in
violation of, or do anything or permit anything to be done which will subject
any such Property to any remedial obligations under any Environmental Laws. If
necessary, the Borrower shall timely disclose to the applicable Governmental
Authority all relevant facts, conditions and circumstances, if any, pertaining
to such Property where such violations or remedial obligations exist.
SECTION 9.16. Transactions with Affiliates.
The Borrower will not, and will not cause or permit any Guarantor or
any Restricted Subsidiary to enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of Property or the rendering
of any service, with any Affiliate unless such transactions are otherwise
permitted under this Agreement, are in the ordinary course of its business and
are upon fair and reasonable terms no less favorable to it than it would obtain
in a comparable arm's length transaction with a Person not an Affiliate;
provided, however, that the foregoing shall not prohibit or prevent the
Borrower, any Guarantor or any Restricted Subsidiary from performing under any
agreement in effect on the date hereof.
SECTION 9.17. Partnership Agreements.
Without the prior consent of the Required Lenders, which shall not be
unreasonably withheld, the Borrower will not amend or permit to be amended in
any material respect the Borrower Partnership Agreement or the Buckeye Pipe Line
Partnership Agreement.
SECTION 9.18. Senior Notes.
Without the prior consent of the Required Lenders, which shall not be
unreasonably withheld, the Borrower will not amend or permit to be amended in
any material respect the Senior Notes or the Indenture, except that the Borrower
may issue additional indebtedness under supplemental indentures issued under the
Indenture if otherwise permitted hereunder and thereunder.
59
SECTION 9.19. Laurel Debt.
The Borrower will not cause or permit Laurel Pipe Line Company, L.P. to
incur, create, assume or permit to exist any Debt until Laurel Pipe Line
Company, L.P. shall have executed a Guaranty pursuant to Section 8.04.
ARTICLE X
EVENTS OF DEFAULT; REMEDIES
SECTION 10.01. Events of Default.
One or more of the following events shall constitute an "Event of
Default":
(a) the Borrower shall default in the payment or prepayment when due of
any principal of or interest on any Loan, or any reimbursement obligation for a
disbursement made under any Letter of Credit, or any fees or other amount
payable by it hereunder or under any other Loan Document and such default, other
than a default of a payment or prepayment of principal (which shall have no cure
period) shall continue unremedied for a period of three Business Days; or
(b) the Borrower or any Restricted Subsidiary shall default in the
payment when due of any principal of or interest on any of its other Debt
aggregating $15,000,000 or more, or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such Debt shall occur
if the effect of such event (after the giving of notice or lapse of time or
both, if applicable) is to cause, or to permit the holder or holders of such
Debt (or a trustee or agent on behalf of such holder or holders) to cause, such
Debt to become due prior to its stated maturity; or
(c) any representation, warranty or certification made or deemed made
herein or in any other Loan Document by the Borrower, any Guarantor or any
Person on behalf of any Restricted Subsidiary, or any certificate furnished to
any Lender or the Agent pursuant to the provisions hereof or any other Loan
Document, shall prove to have been false or misleading as of the time made or
furnished in any material respect; or
(d) the Borrower or any Restricted Subsidiary (despite the fact that
such Restricted Subsidiary is not a party to this Agreement) shall default in
the performance of any of its obligations under Article IX; or the Borrower or
any Restricted Subsidiary (despite the fact that such Restricted Subsidiary is
not a party to this Agreement) shall default in the performance of any of its
obligations under Article VIII, any other Article of this Agreement (other than
under Article IX) or any other Loan Document (other than the payment of amounts
due which shall be governed by Section 10.01(a)) and such default shall continue
unremedied for a period of 30 days after the earlier to occur of (i) notice
thereof to the Borrower by the Agent or any Lender (through the Agent), or (ii)
a Responsible Officer of the Borrower otherwise obtaining actual knowledge of
such default; or
60
(e) the senior unsecured non-credit enhanced long-term debt of the
Borrower shall be rated below both (i) BBB- (or unrated) in the case of S&P and
(ii) Baa3 (or unrated) in the case of ▇▇▇▇▇'▇ for a period of 30 days; or
(f) the Borrower shall admit in writing its inability to, or be
generally unable to, pay its debts as such debts become due; or
(g) the Borrower shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property, (ii) make a general
assignment of all or substantially all of its assets for the benefit of its
creditors, (iii) commence a voluntary case under the Federal Bankruptcy Code (as
now or hereafter in effect), (iv) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization, winding-up,
liquidation or composition or readjustment of debts, (v) fail to controvert in a
timely and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Federal Bankruptcy Code, or (vi)
take any corporate action for the purpose of effecting any of the foregoing; or
(h) a proceeding or case shall be commenced, without the application or
consent of the Borrower, in any court of competent jurisdiction, seeking (i) its
liquidation, reorganization, dissolution or winding-up, or the composition or
readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of the Borrower of all or any substantial part
of its assets, or (iii) similar relief in respect of the Borrower under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, and such proceeding or case shall continue undismissed,
or an order, judgment or decree approving or ordering any of the foregoing shall
be entered and continue unstayed and in effect, for a period of 60 days; or (iv)
an order for relief against the Borrower shall be entered in an involuntary case
under the Federal Bankruptcy Code; or
(i) a judgment or judgments for the payment of money in excess of
$5,000,000 in the aggregate shall be rendered by a court against the Borrower or
any Subsidiary of the Borrower and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution thereof
shall not be procured, within 30 days from the date of entry thereof and the
Borrower or such Subsidiary shall not, within said period of 30 days, or such
longer period during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal; or
(j) any Guaranty after delivery thereof shall for any reason, except to
the extent permitted by the terms thereof, cease to be in full force and effect
and valid, binding and enforceable in accordance with its terms, or the Borrower
or any Guarantor shall so state in writing; or
(k) a Change of Control shall occur; or
(1) any Guarantor shall take, suffer or permit to exist any of the
events or conditions referred to in subsection (f), (g), (h) or (i) or any
provision of any Guaranty related thereto shall for any reason cease to be valid
and binding on the relevant Guarantor or if such Guarantor shall so state in
writing;
61
(m) any Restricted Subsidiary shall take, suffer or permit to exist any
of the events or conditions referred to in subsection (f), (g), (h) or (i); or
(n) any ERISA Event shall have occurred that could reasonably be
expected to result in a Material Adverse Effect, and 30 days after notice shall
have been given to the Borrower, such ERISA Event shall still exist.
SECTION 10.02. Remedies.
(a) In the case of an Event of Default other than one referred to in
subsection (f), (g) or (h) of Section 10.01 or in either of subsection (1) or
(m) to the extent it relates to subsection (f), (g) or (h), the Agent, upon
request of the Required Lenders, shall, by notice to the Borrower, cancel the
Commitments and/or declare the principal amount then outstanding of, and the
accrued interest on, the Loans and all other amounts payable by the Borrower
hereunder (including without limitation the payment of cash collateral to secure
the LC Exposure as provided in Section 2.09(b)) to be forthwith due and payable,
whereupon such amounts shall be immediately due and payable without presentment,
demand, protest, notice of intent to accelerate, notice of acceleration or other
formalities of any kind, all of which are hereby expressly waived by the
Borrower.
(b) In the case of the occurrence of an Event of Default referred to in
subsection (f), (g) or (h) of Section 10.01 or in either of subsection (1) and
(m) to the extent it relates to subsection (f), (g) or (h), the Commitments
shall be automatically canceled and the principal amount then outstanding of,
and the accrued interest on, the Loans and all other amounts payable by the
Borrower hereunder (including without limitation the payment of cash collateral
to secure the LC Exposure as provided in Section 2.09(b)) shall become
automatically immediately due and payable without presentment, demand, protest,
notice of intent to accelerate, notice of acceleration or other formalities of
any kind, all of which are hereby expressly waived by the Borrower.
(c) All proceeds received after the Termination Date, whether by
acceleration or otherwise shall be applied first to reimbursement of expenses
and indemnities provided for in this Agreement and the other Loan Documents;
second to accrued interest hereunder; third to fees; fourth pro rata to
principal outstanding hereunder and other Debt hereunder; fifth to serve as cash
collateral to be held by the Agent to secure the LC Exposure; and any excess
shall be paid to the Borrower or as otherwise required by any Governmental
Requirement.
62
ARTICLE XI
THE AGENT
SECTION 11.01. The Agent
(a) Appointment. Each of the LC Issuing Bank and each Lender appoints
the Agent (including, without limitation, each successor Agent in accordance
with this Section 11.01) as its nominee and agent to act in its name and on its
behalf (and the Agent and each such successor accepts that appointment): (i) to
act as its nominee and on its behalf in and under all Loan Documents; (ii) to
arrange the means whereby its funds are to be made available to the Borrower
under the Loan Documents; (iii) to take any action that it properly requests
under the Loan Documents (subject to the concurrence of other Lenders as may be
required under the Loan Documents); (iv) to receive all documents and items to
be furnished to it under the Loan Documents; (v) to be the secured party,
mortgagee, beneficiary, recipient and similar party in respect of the cash
collateral under Section 2.09(b) and any other collateral for the benefit of the
Lenders and the LC Issuing Bank (at any time an Event of Default or Default has
occurred and is continuing); (vi) to promptly distribute to it all material
information, requests, documents and items received from the Borrower, any of
its Subsidiaries or any Restricted Subsidiary under the Loan Documents; (vii) to
promptly distribute to it its ratable part of each payment or prepayment
(whether voluntary, as proceeds of collateral upon or after foreclosure, as
proceeds of insurance thereon or otherwise) in accordance with the terms of the
Loan Documents; and (viii) to deliver to the appropriate Persons requests,
demands, approvals and consents received from it. The Agent, however, may not be
required to take any action that exposes it to personal liability or that is
contrary to any Loan Document or applicable Governmental Requirement. The Agent
may execute any of its duties hereunder or under the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
(including Borrower's counsel) concerning all matters pertaining to such duties.
The Agent shall not be responsible to the Lenders for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
(b) Successor. The Agent may, subject (at any time no Event of Default
or Default has occurred and is continuing) to the Borrower's prior written
consent that may not be unreasonably withheld, assign all of its rights and
obligations as the Agent under the Loan Documents to any of its Affiliates,
which Affiliate shall then be the successor Agent under the Loan Documents. The
Agent may also, upon 30 days' prior notice to the Borrower, voluntarily resign.
If the initial or any successor Agent ever ceases to be a party to this
Agreement or if the initial or any successor Agent ever resigns, then the
Required Lenders shall (which, if no Event of Default or Default has occurred
and is continuing, is subject to the Borrower's approval that may not be
unreasonably withheld) appoint the successor Agent from among the Lenders (other
than the resigning Agent). If the Required Lenders fail to appoint a successor
Agent within 30 days after the resigning Agent has given notice of resignation,
then the resigning Agent may, on behalf of the Lenders, upon thirty (30) days
prior notice to the Borrower, appoint a successor Agent, subject (at any time no
Event of Default or Default has occurred and is continuing) to the Borrower's
prior written consent that may not be unreasonably withheld, which must be a
commercial bank having a combined capital and surplus of at least $1,000,000,000
(as shown on its most recently published statement of condition). Upon its
acceptance of appointment as successor Agent, the successor Agent shall succeed
to and become vested with all of the rights of the prior Agent, and the prior
Agent shall be discharged from its duties and obligations as Agent under the
Loan Documents, and each Lender shall execute the documents that any Lender, the
resigning Agent or the successor Agent reasonably requests to reflect the
change. After any Agent's resignation as the Agent under the Loan Documents, the
provisions of this section inure to its benefit as to any actions taken or not
taken by it while it was the Agent under the Loan Documents.
63
(c) Rights as Lender. The Agent, in its capacity as a Lender, has the
same rights under the Loan Documents as any other Lender and may exercise those
rights as if it were not acting as the Agent. The Agent's resignation or removal
does not impair or otherwise affect any rights that it has or may have in its
capacity as an individual Lender. Each Lender, the LC Issuing Bank and the
Borrower agree that the Agent is not a fiduciary for the Lenders, the LC Issuing
Bank or the Borrower but is simply acting in the capacity described in this
Agreement to alleviate administrative burdens for the Borrower, the LC Issuing
Bank and the Lenders, that the Agent has no duties or responsibilities to the
Lenders, the LC Issuing Bank or the Borrower except those expressly set forth in
the Loan Documents, and that the Agent in its capacity as a Lender has the same
rights as any other Lender.
(d) Other Activities. The Agent or any Lender may now or in the future
be engaged in one or more loan, letter of Loan, leasing or other financing
transactions with the Borrower, act as trustee or depositary for the Borrower or
otherwise be engaged in other transactions with the Borrower (collectively, the
"other activities") not the subject of the Loan Documents. Without limiting the
rights of the Lenders or the LC Issuing Bank specifically set forth in the Loan
Documents, neither the Agent, the LC Issuing Bank nor any Lender is responsible
to account to the other Lenders or the LC Issuing Bank for those other
activities, and neither any Lender nor the LC Issuing Bank shall have any
interest in any other Lender's or the LC Issuing Bank's activities, any present
or future guaranties by or for the account of the Borrower that are not
contemplated by or included in the Loan Documents, any present or future offset
exercised by the Agent, the LC Issuing Bank or any Lender in respect of those
other activities, any present or future property taken as security for any of
those other activities or any property now or hereafter in the Agent's or any
other Lender's possession or control that may be or become security for the
obligations of the Borrower arising under the Loan Documents by reason of the
general description of indebtedness secured or of property contained in any
other agreements, documents or instruments related to any of those other
activities (but, if any payments in respect of those guaranties or that property
or the proceeds thereof is applied by the Agent, the LC Issuing Bank or any
Lender to reduce the obligations hereunder, then each of the LC Issuing Bank and
each Lender is entitled to share in the application as provided in the Loan
Documents).
SECTION 11.02. Expenses.
Each Lender shall pay its Percentage Share of any expenses (including
court costs, reasonable attorneys' fees and other costs of collection) incurred
by the Agent or in connection with any of the Loan Documents if the Agent is not
reimbursed from other sources within 30 days after incurrence. Each Lender is
entitled to receive its Percentage Share of any reimbursement that it makes to
the Agent if the Agent is subsequently reimbursed from other sources.
SECTION 11.03. Proportionate Absorption of Losses.
Except as otherwise provided in the Loan Documents, nothing in the Loan
Documents gives any Lender any advantage over any other Lender insofar as the
obligations hereunder are concerned or relieves any Lender from ratably
absorbing any losses sustained with respect to the obligations hereunder (except
to the extent unilateral actions or inactions by any Lender result in the
Borrower or any other obligor on the obligations hereunder having any credit,
allowance, setoff, defense or counterclaim solely with respect to all or any
part of that Lender's part of the obligations hereunder).
64
SECTION 11.04. Delegation of Duties; Reliance.
The Lenders may perform any of their duties or exercise any of their
rights under the Loan Documents by or through the Agent, and the Lenders, the LC
Issuing Bank and the Agent may perform any of their duties or exercise any of
their rights under the Loan Documents by or through their respective
representatives. The Agent, the LC Issuing Bank, the Lenders and their
respective representatives (a) are entitled to rely upon (and shall be protected
in relying upon) any written or oral statement believed by it or them to be
genuine and correct and to have been signed or made by the proper Person and,
with respect to legal matters, upon opinion of counsel selected by the Agent,
the LC Issuing Bank or that Lender (but nothing in this clause (a) permits the
Agent to rely on (i) oral statements if a writing is required by this Agreement
or (ii) any other writing if a specific writing is required by this Agreement),
(b) are entitled to deem and treat each Lender as the owner and holder of its
portion of the Obligations hereunder for all purposes until written notice of
the assignment or transfer is given to and received by the Agent (and any
request, authorization, consent or approval of any Lender is conclusive and
binding on each subsequent holder, assignee or transferee of or Participant in
that Lender's portion of the obligations hereunder until that notice is given
and received), (c) are not deemed to have notice of the occurrence of an Default
unless a responsible officer of the Agent, who handles matters associated with
the Loan Documents and transactions thereunder, has actual knowledge or the
Agent has been notified by a Lender, the LC Issuing Bank or the Borrower, and
(d) are entitled to consult with legal counsel (including counsel for the
Borrower), independent accountants, and other experts selected by the Agent and
are not liable for any action taken or not taken in good faith by it in
accordance with the advice of counsel, accountants or experts.
SECTION 11.05. Limitation of the Agent's Liability.
(a) Exculpation. Neither the Agent nor any of its Affiliates or
representatives will be liable to the LC Issuing Bank or any Lender for any
action taken or omitted to be taken by it or them under the Loan Documents in
good faith and believed by it to be within the discretion or power conferred
upon it or them by the Loan Documents or be responsible for the consequences of
any error of judgment (except for gross negligence or willful misconduct), and
neither the Agent nor any of its Affiliates or representatives has a fiduciary
relationship with any Lender or the LC Issuing Bank by virtue of the Loan
Documents (but nothing in this Agreement negates the obligation of the Agent to
account for funds received by it for the account of any Lender).
(b) Indemnity. Unless indemnified to its satisfaction against loss,
cost, liability and expense, the Agent may not be compelled to do any act under
the Loan Documents or to take any action toward the execution or enforcement of
the powers thereby created or to prosecute or defend any suit in respect of the
Loan Documents. If the Agent requests instructions from the Lenders, the LC
Issuing Bank or the Required Lenders, as the case may be, with respect to any
act or action in connection with any Loan Document, the Agent is entitled to
refrain (without incurring any liability to any Person by so refraining) from
that act or action unless and until it has received instructions. In no event,
however, may the Agent or any of its representatives be required to take any
action that it or they determine could incur for it or them criminal or onerous
civil liability. Without limiting the generality of the foregoing, neither the
LC Issuing Bank nor any Lender has any right of action against the Agent as a
result of the Agent's acting or refraining from acting under this Agreement in
accordance with instructions of the Required Lenders.
65
(c) Reliance. The Agent is not responsible to the LC Issuing Bank or
any Lender, and each of the LC Issuing Bank and each Lender represents and
warrants that it has not relied upon the Agent in respect of, (i) the
creditworthiness of the Borrower or any Guarantor and the risks involved to the
LC Issuing Bank or such Lender, as the case may be, (ii) the effectiveness,
enforceability, genuineness, validity or the due execution of any Loan Document,
(iii) any representation, warranty, document, certificate, report or statement
made therein or furnished thereunder or in connection therewith, (iv) the
adequacy of any collateral now or hereafter securing the obligations hereunder
or the existence, priority or perfection of any Lien now or hereafter granted or
purported to be granted on the collateral under any Loan Document, or (v)
observation of or compliance with any of the terms, covenants or conditions of
any Loan Document on the part of the General Partner, the Borrower or any
Guarantor, EACH LENDER AGREES TO INDEMNIFY THE AGENT AND ITS REPRESENTATIVES AND
HOLD THEM HARMLESS FROM AND AGAINST (BUT LIMITED TO SUCH LENDER'S PERCENTAGE
SHARE OF) ANY AND ALL LIABILITIES, OBLIGATIONS HEREUNDER, LOSSES, DAMAGES,
PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, REASONABLE EXPENSES AND REASONABLE
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER THAT MAY BE IMPOSED ON, ASSERTED
AGAINST OR INCURRED BY THEM IN ANY WAY RELATING TO OR ARISING OUT OF THE LOAN
DOCUMENTS OR ANY ACTION TAKEN OR OMITTED BY THEM UNDER THE LOAN DOCUMENTS IF THE
AGENT AND ITS REPRESENTATIVES ARE NOT REIMBURSED FOR SUCH AMOUNTS BY THE
BORROWER OR ANY GUARANTOR. ALTHOUGH THE AGENT AND ITS REPRESENTATIVES HAVE THE
RIGHT TO BE INDEMNIFIED UNDER THIS AGREEMENT BY THE LENDERS FOR ITS OR THEIR OWN
ORDINARY NEGLIGENCE, THE AGENT AND ITS REPRESENTATIVES DO NOT HAVE THE RIGHT TO
BE INDEMNIFIED UNDER THIS AGREEMENT FOR ITS OR THEIR OWN GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
SECTION 11.06. Event of Default.
If an Event of Default has occurred and is continuing, the Lenders
agree to promptly confer in order that the Required Lenders or the Lenders, as
the case may be, may agree upon a course of action for the enforcement of the
rights of the Lenders hereunder. The Agent is entitled to act or refrain from
taking any action (without incurring any liability to any Person for so acting
or refraining) unless and until it has received instructions from the Required
Lenders. In actions with respect to any Company's property, the Agent is acting
for the ratable benefit of each Lender.
SECTION 11.07. Limitation of Liability.
No Lender will incur any liability to any other Lender except for acts
or omissions in bad faith, and neither the Agent nor any Lender or Participant
will incur any liability to any other Person for any act or omission of any
other Lender.
66
SECTION 11.08. Other Agents.
On the cover page SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Markets, a
division of SunTrust Capital Markets, Inc., is named as "Sole Lead Arranger,"
BNP Paribas is named as "Syndication Agent" and National Australia Bank Limited
and Mizuho Financial Group are named as "Co-Documentation Agents" but do not, in
such capacities, assume any responsibility or obligation under this Agreement
for syndication, documentation, servicing, enforcement or collection of any part
of the obligations hereunder, nor any other duties, as agent for the LC Issuing
Bank or the Lenders.
SECTION 11.09. Relationship of Lenders.
The Loan Documents do not create a partnership or joint venture among
the Agent, the LC Issuing Bank and the Lenders or among the Lenders.
SECTION 11.10. Benefits of Agreement.
None of the provisions of this Article XI inures to the benefit of the
Borrower or any Guarantor or any other Person except the Agent, the LC Issuing
Bank and the Lenders. Therefore, neither the Borrower nor any Guarantor nor any
other Person is responsible or liable for, entitled to rely upon or entitled to
raise as a defense, in any manner whatsoever, the failure of the Agent, the LC
Issuing Bank or any Lender to comply with these provisions.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Waiver.
No failure on the part of the Agent or any Lender to exercise and no
delay in exercising and no course of dealing with respect to, any right, power
or privilege under any of the Loan Documents shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege under
any of the Loan Documents preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies provided herein
are cumulative and not exclusive of any remedies provided by law.
SECTION 12.02. Notices.
All notices and other communications provided for herein and in the
other Loan Documents (including, without limitation, any modifications of, or
waivers or consents under, this Agreement or the other Loan Documents) shall be
given or made by telex, telecopy, courier or U.S. Mail or in writing and
telexed, telecopied, mailed or delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages hereof or
in the Loan Documents, except that for notices and other communications to the
Agent other than payment of money, the Borrower need only send such notices and
communications to the Agent care of the Atlanta address of SunTrust; or, as to
any party, at such other address as shall be designated by such party in a
notice to each other party. Except as otherwise provided in this Agreement or in
the other Loan Documents, all such communications shall be deemed to have been
duly given when transmitted, if transmitted before 1:00 p.m. local time on a
Business Day (otherwise on the next succeeding Business Day) by telex or
telecopier and evidence or confirmation of receipt is obtained, or personally
delivered or, in the case of a mailed notice, four Business Days after the date
deposited in the mails, postage prepaid, in each case given or addressed as
aforesaid.
67
SECTION 12.03. Payment of Expenses, Indemnities, etc.
(a) The Borrower agrees:
(i) whether or not the transactions hereby contemplated are
consummated, to pay to the extent set forth in the Fee Letter all
reasonable expenses of the Agent in the administration (both before and
after the execution hereof and including advice of counsel as to the
rights and duties of the Agent and the Lenders with respect thereto)
of, and in connection with the negotiation, syndication, investigation,
preparation, execution and delivery of, recording or filing of,
preservation of rights under, enforcement of, and refinancing,
renegotiation or restructuring of, the Loan Documents and any
amendment, waiver or consent relating thereto (including, without
limitation, travel, photocopy, mailing, courier, telephone and other
similar expenses of the Agent, the cost of environmental audits,
surveys and appraisals at reasonable intervals, the reasonable fees and
disbursements of counsel and other outside consultants for the Agent
and, in the case of enforcement, the reasonable fees and disbursements
of counsel for the Agent and any of the Lenders); and promptly
reimburse the Agent for all amounts expended, advanced or incurred by
the Agent or the Lenders to satisfy any obligation of the Borrower or
the Guarantors under this Agreement or any other Loan Document,
including without limitation, all costs and expenses of foreclosure;
(ii) TO INDEMNIFY THE AGENT AND EACH LENDER AND EACH OF THEIR
AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES,
REPRESENTATIVES, AGENTS, ATTORNEYS, ACCOUNTANTS AND EXPERTS
("INDEMNIFIED PARTIES") FROM, HOLD EACH OF THEM HARMLESS AGAINST AND
PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR, THE INDEMNITY
MATTERS WHICH MAY BE INCURRED BY OR ASSERTED AGAINST OR INVOLVE ANY OF
THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A PARTY THERETO) AS A
RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY ACTUAL OR
PROPOSED USE BY THE BORROWER OF THE PROCEEDS OF ANY OF THE LOANS OR
LETTERS OF CREDIT, (II) THE EXECUTION, DELIVERY AND PERFORMANCE OF THE
LOAN DOCUMENTS BY THE BORROWER, (III) THE OPERATIONS OF THE BUSINESS OF
THE BORROWER, ANY GUARANTOR AND THE RESTRICTED SUBSIDIARIES, (IV) THE
FAILURE OF THE BORROWER, ANY GUARANTOR OR ANY RESTRICTED SUBSIDIARY TO
COMPLY WITH THE TERMS OF ANY LOAN DOCUMENT, OR WITH ANY GOVERNMENTAL
REQUIREMENT, (V) ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF
ANY WARRANTY OF THE BORROWER OR THE GUARANTOR SET FORTH IN ANY OF THE
LOAN DOCUMENTS, (VI) THE ISSUANCE, EXECUTION AND DELIVERY OR TRANSFER
OF OR PAYMENT OR FAILURE TO PAY UNDER ANY LETTER OF CREDIT, OR (VII)
THE PAYMENT OF A DRAWING UNDER ANY LETTER OF CREDIT NOTWITHSTANDING
THE NON-COMPLIANCE, NON-DELIVERY OR OTHER IMPROPER PRESENTATION OF THE
MANUALLY EXECUTED DRAFT(S) AND CERTIFICATION(S), (VIII) ANY ASSERTION
THAT THE LENDERS WERE NOT ENTITLED TO RECEIVE THE PROCEEDS RECEIVED
PURSUANT TO THE LOAN DOCUMENTS OR (IX) ANY OTHER ASPECT OF THE LOAN
DOCUMENTS, INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL AND ALL OTHER EXPENSES INCURRED IN CONNECTION
WITH INVESTIGATING, DEFENDING OR PREPARING TO DEFEND ANY SUCH ACTION,
SUIT, PROCEEDING (INCLUDING ANY INVESTIGATIONS, LITIGATION OR
INQUIRIES) OR CLAIM AND INCLUDING ALL INDEMNITY MATTERS ARISING BY
REASON OF THE ORDINARY NEGLIGENCE OF ANY INDEMNIFIED PARTY, BUT
EXCLUDING ALL INDEMNITY MATTERS ARISING SOLELY BY REASON OF CLAIMS
BETWEEN THE LENDERS OR ANY LENDER AND THE AGENT OR A LENDER'S
SHAREHOLDERS AGAINST THE AGENT OR LENDER OR BY REASON OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF THE INDEMNIFIED PARTY;
AND
68
(iii) TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE
INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COST
RECOVERY ACTIONS, ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND
LIABILITIES TO WHICH ANY SUCH PERSON MAY BECOME SUBJECT (I) UNDER ANY
ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER, ANY GUARANTOR OR ANY
RESTRICTED SUBSIDIARY OR ANY OF THEIR PROPERTIES, INCLUDING WITHOUT
LIMITATION, THE TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES OR
HAZARDOUS WASTES ON ANY OF SUCH PROPERTIES, (II) AS A RESULT OF THE
BREACH OR NON-COMPLIANCE BY THE BORROWER OR ANY RESTRICTED SUBSIDIARY
WITH ANY ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER, ANY GUARANTOR OR
ANY RESTRICTED SUBSIDIARY, (III) DUE TO PAST OWNERSHIP BY THE BORROWER,
ANY GUARANTOR OR ANY RESTRICTED SUBSIDIARY OF ANY OF THEIR PROPERTIES
OR PAST ACTIVITY ON ANY OF THEIR PROPERTIES WHICH, THOUGH LAWFUL AND
FULLY PERMISSION AT THE TIME, COULD RESULT IN PRESENT LIABILITY, (IV)
THE PRESENCE, USE, RELEASE, STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS
SUBSTANCES OR HAZARDOUS WASTES ON OR AT ANY OF THE PROPERTIES OWNED OR
OPERATED BY THE BORROWER, ANY GUARANTOR OR ANY RESTRICTED SUBSIDIARY,
OR (V) ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN
CONNECTION WITH THE LOAN DOCUMENTS.
(b) No Indemnified Party may settle any claim to be indemnified without
the consent of the indemnitor, such consent not to be unreasonably withheld;
provided, that the indemnitor may not reasonably withhold consent to any
settlement that an Indemnified Party proposes, if the indemnitor does not have
the financial ability to pay all its obligations outstanding and asserted
against the indemnitor at that time, including the maximum potential claims
against the Indemnified Party to be indemnified pursuant to this Section 12.03.
69
(c) In the case of any indemnification hereunder, the Agent or Lender,
as appropriate shall give notice to the Borrower of any such claim or demand
being made against the Indemnified Party and the Borrower shall have the
non-exclusive right to join in the defense against any such claim or demand
provided that if the Borrower provides a defense, the Indemnified Party shall
bear its own cost of defense unless there is a conflict between the Borrower and
such Indemnified Party.
(d) THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED PARTIES
NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER
WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN
OMISSION, INCLUDING WITHOUT LIMITATION, ALL TYPES OF NEGLIGENT CONDUCT
IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE
INDEMNIFIED PARTIES OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON
ANY ONE OR MORE OF THE INDEMNIFIED PARTIES. TO THE EXTENT THAT AN INDEMNIFIED
PARTY IS FOUND TO HAVE COMMITTED AN ACT OF GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, THIS CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL CONTINUE BUT
SHALL ONLY EXTEND TO THE PORTION OF THE CLAIM THAT IS DEEMED TO HAVE OCCURRED BY
REASON OF EVENTS OTHER THAN THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
INDEMNIFIED PARTY.
(e) The Borrower's obligations under this Section 12.03 shall survive
any termination of this Agreement and the payment of all amounts outstanding
hereunder and shall continue thereafter in full force and effect.
(f) The Borrower shall pay any amounts due under this Section 12.03
within 30 days of the receipt by the Borrower of notice of the amount due.
SECTION 12.04. Amendments, Etc.
Any provision of this Agreement or any other Loan Document may be
amended, modified or waived with the Borrower's and the Required Lenders' prior
written consent; provided that (i) no amendment, modification or waiver that
extends the final maturity of the Loans, postpones any date fixed for any
payment of principal of, or interest on, the Loans or any fees or other amounts
payable hereunder, increases the Aggregate Revolving Credit Commitments (other
than pursuant to Section 2.03(c)), forgives the principal amount of any Debt
outstanding under this Agreement, releases any Guarantor of its obligations
under the Guaranty, reduces the interest rate applicable to the Loans or the
fees payable to the Lenders generally, affects this Section 12.04 or Section
12.06(a) or modifies the definition of "Required Lenders" shall be effective
without consent of all Lenders; (ii) no amendment, modification or waiver which
increases the Revolving Credit Commitment of any Lender shall be effective
without the consent of such Lender; and (iii) no amendment, modification or
waiver which modifies the rights, duties or obligations of the Agent shall be
effective without the consent of the Agent; provided, further, that this
Agreement may be amended and restated without the consent of any Lender or the
Agent if, upon giving effect to such amendment and restatement, such Lender or
the Agent, as the case may be, shall no longer be a party to this Agreement (as
so amended and restated) or have any Commitment or other obligation hereunder
and shall have been paid in full all amounts payable hereunder to such Lender or
the Agent, as the case may be.
70
SECTION 12.05. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
SECTION 12.06. Assignments and Participations.
(a) The Borrower may not assign its rights or obligations hereunder or
under any Letters of Credit without the prior consent of all of the Lenders and
the Agent.
(b) Any Lender may upon the written consent of the Agent (which consent
will not be unreasonably withheld) and, if no Event of Default has occurred and
is continuing, the Borrower (which consent will not be unreasonably withheld),
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement pursuant to an Assignment Agreement substantially in the
form of Exhibit C (an "Assignment Agreement"); provided, however, that (i) any
such assignment shall be in the amount of at least $5,000,000 or such lesser
amount to which the Borrower has consented, (ii) the assignee or assignor shall
pay to the Agent a processing and recordation fee of $1,500 for each assignment
and (iii) any assignment to an Affiliate of such Lender will not require the
consent of the Agent or the Borrower. Any such assignment will become effective
upon the execution and delivery to the Agent of the Assignment Agreement and the
consent of the Agent, if required. Promptly after receipt of an executed
Assignment Agreement, the Agent shall send to the Borrower a copy of such
executed Assignment Agreement. Upon the effectiveness of any assignment pursuant
to this Section 12.06(b), the assignee will become a "Lender," if not already a
"Lender," for all purposes of this Agreement and the other Loan Documents. The
assignor shall be relieved of its obligations hereunder to the extent of such
assignment (and if the assigning Lender no longer holds any rights or
obligations under this Agreement, such assigning Lender shall cease to be a
"Lender" hereunder except that its rights under Sections 4.06, 5.01, 5.05 and
12.03 shall not be affected). The Agent will prepare on the last Business Day of
each month during which an assignment has become effective pursuant to this
Section 12.06(b), a new Annex I giving effect to all such assignments effected
during such month, and will promptly provide the same to the Borrower and each
of the Lenders.
(c) Each Lender may transfer, grant or assign participations in all or
any part of such Lender's interests hereunder pursuant to this Section 12.06(c)
to any Person, provided that: (i) such Lender shall remain a "Lender" for all
purposes of this Agreement and the transferee of such participation shall not
constitute a "Lender" hereunder; and (ii) no participant under any such
participation shall have rights to approve any amendment to or waiver of any of
the Loan Documents except to the extent such amendment or waiver would (x)
forgive any principal owing on any Debt hereunder or extend the final maturity
of the Loans, (y) reduce the interest rate (other than as a result of waiving
the applicability of any post-default increases in interest rates) or fees
applicable to any of the Commitments or Loans or Letters of Credit in which such
participant is participating, or postpone the payment of any thereof, or (z)
release any guarantor of its obligations under its Guaranty or release all or
substantially all of the collateral (except as provided in the Loan Documents)
supporting any of the Commitments or Loans or Letters of Credit in which such
participant is participating. In the case of any such participation, the
participant shall not have any rights under this Agreement or any of the other
Loan Documents (the participant's rights against the granting Lender in respect
of such participation to be those set forth in the agreement with such Lender
creating such participation), and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not sold such participation, provided
that such participant shall be entitled to receive additional amounts under
Article V on the same basis as if it were a Lender and be indemnified under
Section 12.03 as if it were a Lender. In addition, each agreement creating any
participation must include an agreement by the participant to be bound by the
provisions of Section 12.15.
71
(d) The Lenders may furnish any information concerning the Borrower,
the Guarantors and the Restricted Subsidiaries in the possession of the Lenders
from time to time to assignees and participants (including prospective assignees
and participants); provided that, such Persons agree to be bound by the
provisions of Section 12.15.
(e) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC") of such Granting Lender identified as such in writing from time to time
by the Granting Lender to the Agent and the Borrower, the option to provide to
the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by any such SPC
to make any Loan, (ii) if such SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof and (iii) no
SPC or Granting Lender shall be entitled to receive any greater amount pursuant
to Article V than the Granting Lender would have been entitled to receive had
the Granting Lender not otherwise granted such SPC the option to provide any
Loan to the Borrower. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were
made by such Granting Lender. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
for which a Lender would otherwise be liable so long as, and to the extent that,
the related Granting Lender provides such indemnity or makes such payment. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement
shall survive the termination of this Agreement) that, prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPC, it will not institute against or
join any other person in instituting against such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. Notwithstanding the foregoing,
the Granting Lender unconditionally agrees to indemnify the Borrower, the Agent
and each Lender against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be incurred by or asserted against the
Borrower, the Agent or such Lender, as the case may be, in any way relating to
or arising as a consequence of any such forbearance or delay in the initiation
of any such proceeding against its SPC. Each party hereto hereby acknowledges
and agrees that no SPC shall have the rights of a Lender hereunder, such rights
being retained by the applicable Granting Lender. Accordingly, and without
limiting the foregoing, each party hereby further acknowledges and agrees that
no SPC shall have any voting rights hereunder and that the voting rights
attributable to any Loan made by an SPC shall be exercised only by the relevant
Granting Lender and that each Granting Lender shall serve as the administrative
agent and attorney-in-fact for its SPC and shall on behalf of its SPC receive
any and all payments made for the benefit of such SPC and take all actions
hereunder to the extent, if any, such SPC shall have any rights hereunder. In
addition, notwithstanding anything to the contrary contained in this Agreement
any SPC may (i) with notice to, but without the prior written consent of any
other party hereto, assign all or a portion of its interest in any Loans to the
Granting Lender and (ii) disclose on a confidential basis any information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC. This
Section may not be amended without the prior written consent of each Granting
Lender, all or any part of whose Loan is being funded by an SPC at the time of
such amendment.
72
(f) Notwithstanding anything in this Section 12.06 to the contrary, any
Lender may assign and pledge its note issued pursuant to Section 2.06 to any
Federal Reserve Bank. No such assignment and/or pledge shall release the
assigning and/or pledging Lender from its obligations hereunder.
(g) Notwithstanding any other provisions of this Section 12.06, no
transfer or assignment of the interests or obligations of any Lender or any
grant of participations therein shall be permitted if such transfer, assignment
or grant would require the Borrower to file a registration statement with the
SEC or to qualify the Loans under the "Blue Sky" laws of any state.
SECTION 12.07. Invalidity.
In the event that any one or more of the provisions contained in any of
the Loan Documents or the Letters of Credit, the Letter of Credit Agreements
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or any other Loan Document.
SECTION 12.08. Counterparts.
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and any of the
parties hereto may execute this Agreement by signing any such counterpart.
SECTION 12.09. References.
The words "herein", "hereof", "hereunder" and other words of similar
import when used in this Agreement refer to this Agreement as a whole, and not
to any particular Article, Section or Subsection. Any reference herein to a
Section shall be deemed to refer to the applicable Section of this Agreement
unless otherwise stated herein. Any reference herein to an Exhibit or Schedule
shall be deemed to refer to the applicable Exhibit or Schedule attached hereto
unless otherwise stated herein.
73
SECTION 12.10. Survival.
The obligations of the parties under Section 4.06, Article V, and
Sections 11.05 and 12.03 shall survive the repayment of the Loans and the
termination of the Commitments. To the extent that any payments on the Debt
hereunder or proceeds of any collateral are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, debtor in possession, receiver or other Person under any bankruptcy
law, common law or equitable cause, then to such extent, the Debt so satisfied
shall be revived and continue as if such payment or proceeds had not been
received and the Agent's and the Lenders' rights, powers and remedies under this
Agreement and each other Loan Document shall continue in full force and effect.
In such event, each Loan Document shall be automatically reinstated and the
Borrower shall take such action as may be reasonably requested by the Agent and
the Lenders to effect such reinstatement.
SECTION 12.11. Captions.
Captions and Section headings appearing herein are included solely for
convenience of reference and are not intended to affect the interpretation of
any provision of this Agreement.
SECTION 12.12. NO ORAL AGREEMENTS.
THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING
BETWEEN THE PARTIES AND SUPERSEDE ALL OTHER AGREEMENTS AND UNDERSTANDINGS
BETWEEN SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF. THE LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN 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.
SECTION 12.13. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY AND
ENFORCEABILITY HEREOF AND THEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, OTHER THAN THE CONFLICT OF
LAWS RULES THEREOF.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE LOAN DOCUMENTS
SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, EACH OF THE BORROWER, THE AGENT, THE GENERAL PARTNER AND EACH
LENDER HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE BORROWER, THE AGENT, THE GENERAL PARTNER AND EACH
LENDER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. THIS SUBMISSION TO
JURISDICTION IS NON-EXCLUSIVE AND DOES NOT PRECLUDE THE PARTIES FROM OBTAINING
JURISDICTION OVER OTHER PARTIES IN ANY COURT OTHERWISE HAVING JURISDICTION.
74
(c) THE BORROWER AND THE GENERAL PARTNER HEREBY IRREVOCABLY DESIGNATE
CT CORPORATION LOCATED AT ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS THE
DESIGNEE, APPOINTEE AND AGENT OF ITSELF TO RECEIVE, FOR AND ON BEHALF OF ITSELF,
SERVICE OF PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THE LOAN DOCUMENTS. IT IS UNDERSTOOD THAT A COPY OF
SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY OVERNIGHT
COURIER TO THE BORROWER AT ITS ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW, BUT
THE FAILURE OF ANY OF THE BORROWER OR THE GENERAL PARTNER TO RECEIVE SUCH COPY
SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. THE BORROWER AND THE
GENERAL PARTNER FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OF ANY OF
THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS
SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH
MAILING.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE BORROWER OR ANY GUARANTOR IN ANY
OTHER JURISDICTION.
(e) THE BORROWER, THE GENERAL PARTNER AND EACH LENDER HEREBY (i)
IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN; (ii) IRREVOCABLY
WAIVE, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES;
(iii) CERTIFY THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OF COUNSEL
FOR ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT
SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS, AND (iv) ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND
THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED
IN THIS SECTION 12.13.
75
SECTION 12.14. Interest.
It is the intention of the parties hereto that each Lender shall
conform strictly to usury laws applicable to it. Accordingly, if the
transactions contemplated hereby would be usurious as to any Lender under laws
applicable to it (including the laws of the United States of America and the
State of New York or any other jurisdiction whose laws may be mandatorily
applicable to such Lender notwithstanding the other provisions of this
Agreement), then, in that event, notwithstanding anything to the contrary in any
of the Loan Documents or any agreement entered into in connection with or as
security for the Loans, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under law applicable to any Lender that
is contracted for, taken, reserved, charged or received by such Lender under any
of the Loan Documents or agreements or otherwise in connection with the Loans
shall under no circumstances exceed the maximum amount allowed by such
applicable law, and any excess shall be canceled automatically and if
theretofore paid shall be credited by such Lender on the principal amount of the
Debt (or, to the extent that the principal amount of the Debt shall have been or
would thereby be paid in full, refunded by such Lender to the Borrower); and
(ii) in the event that the maturity of the Loans is accelerated by reason of an
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 under law applicable to any
Lender may never include more than the maximum amount allowed by such applicable
law, and excess interest, if any, provided for in this Agreement or otherwise
shall be canceled automatically by such Lender as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited by such
Lender on the principal amount of the Debt (or, to the extent that the principal
amount of the Debt shall have been or would thereby be paid in full, refunded by
such Lender to the Borrower). All sums paid or agreed to be paid to any Lender
for the use, forbearance or detention of sums due hereunder shall, to the extent
permitted by law applicable to such Lender, be amortized, prorated, allocated
and spread throughout the full term of the Loans until payment in full so that
the rate or amount of interest on account of any Loans hereunder does not exceed
the maximum amount allowed by such applicable law. If at any time and from time
to time (i) the amount of interest payable to any Lender on any date shall be
computed at the Highest Lawful Rate applicable to such Lender pursuant to this
Section 12.14 and (ii) in respect of any subsequent interest computation period
the amount of interest otherwise payable to such Lender would be less than the
amount of interest payable to such Lender computed at the Highest Lawful Rate
applicable to such Lender, then the amount of interest payable to such Lender in
respect of such subsequent interest computation period shall continue to be
computed at the Highest Lawful Rate applicable to such Lender until the total
amount of interest payable to such Lender shall equal the total amount of
interest which would have been payable to such Lender if the total amount of
interest had been computed without giving effect to this Section 12.14.
SECTION 12.15. Confidentiality.
In the event that the Borrower or any Guarantor provides to the Agent
or the Lenders written confidential information belonging to the Borrower or
such Guarantor, if the Borrower or such Guarantor shall denominate such
information in writing as "confidential", the Agent and the Lenders shall
thereafter maintain such information in confidence in accordance with the
standards of care and diligence that each utilizes in maintaining its own
confidential information. This obligation of confidence shall not apply to such
portions of the information which (i) are in the public domain, (ii) hereafter
become part of the public domain without the Agent or the Lenders breaching
their obligation of confidence to the Borrower and such Guarantor, (iii) are
previously known by the Agent or the Lenders from some source other than the
Borrower or such Guarantor, (iv) are hereafter developed by the Agent or the
Lenders without using the Borrower's or such Guarantor's information, (v) are
hereafter obtained by or available to the Agent or the Lenders from a third
party who owes no obligation of confidence to the Borrower or such Guarantor
with respect to such information or through any other means other than through
disclosure by the Borrower or such Guarantor, (vi) are disclosed with the
Borrower's or the Guarantor's consent, (vii) must be disclosed either pursuant
to any Governmental Requirement or to Persons regulating the activities of the
Agent or the Lenders, or (viii) as may b required by law or regulation or order
of any Governmental Authority in any judicial, arbitration or governmental
proceeding. Further, except where prohibited by applicable law, the Agent or a
Lender may disclose any such information to any other Lender, any independent
petroleum engineers or consultants, any independent certified public
accountants, any legal counsel employed by such Person in connection with this
Agreement or any other Loan Document, including without limitation, the
enforcement or exercise of all rights and remedies thereunder, or any assignee
or participant (including prospective assignees and participants) in the Loans;
provided, however, that the Agent or the Lenders shall receive a confidentiality
agreement from the Person to whom such information is disclosed such that said
Person shall have the same obligation to maintain the confidentiality of such
information as is imposed upon the Agent or the Lenders hereunder.
Notwithstanding anything to the contrary provided herein, this obligation of
confidence shall cease three years from the date the information was furnished,
unless the Borrower and the Guarantors request in writing at least 30 days prior
to the expiration of such three year period, to maintain the confidentiality of
such information for an additional three year period. Each of the Borrower and
the Guarantors waives any and all other rights it may have to confidentiality as
against the Agent and the Lenders arising by contract, agreement, statute or law
except as expressly stated in this Section 12.15.
76
SECTION 12.16. EXCULPATION PROVISIONS.
EACH OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO
READ THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND AGREES THAT IT IS CHARGED
WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS; THAT IT HAS IN FACT READ THIS AGREEMENT AND IS FULLY INFORMED AND HAS
FULL NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS
AGREEMENT; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS
CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN
ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND THAT IT
RECOGNIZES THAT CERTAIN OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF
THE TRANSACTION AND RELIEVING THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH
LIABILITY. EACH PARTY HERETO AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE
VALIDITY OR ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS ON THE BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE
OF SUCH PROVISION.
[Signatures Begin on Next Page]
S-1
The parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
BORROWER: BUCKEYE PARTNERS, L.P.
By Buckeye Pipe Line Company, its general partner
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior VP Finance & CFO
Address for Notices:
5 Radnor Corporate Center
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: 610/971-9296
Telephone No.: 610/▇▇▇-▇▇▇▇
Attention: Senior Vice President, Finance
S-2
LENDER ISSUING BANK:
AND AGENT: SUNTRUST BANK
By /s/ ▇▇▇▇▇ ▇. Edge
------------------------------------------
Name: ▇▇▇▇▇ J, Edge
Title: Director
Lending Office for Base Rate Loans and LIBOR
Loans:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.:
Telephone No.: 404/▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.:
Telephone No.: 404/▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
S-3
BNP PARIBAS
By /s/▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
By /s/▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Address for Notices:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 713/659-6915
Telephone No.: 713/▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
S-4
CITIBANK, N.A.
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact
Address for Notices:
▇▇▇ ▇▇▇▇'▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: 302/894-6120
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
c/o Citicorp USA, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: 713/654-2849
Telephone No.: 713/▇▇▇-▇▇▇▇
S-5
THE FUJI BANK, LIMITED
By /s/▇▇▇▇ ▇▇▇▇▇
-----------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: General Manager
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 713/759-0717
Telephone No.:713/▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------
S-6
FLEET NATIONAL BANK
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 617/434-3652
Telephone No.: 617/▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
----------------------
S-7
[INTENTIONALLY OMITTED]
S-8
THE INDUSTRIAL BANK OF JAPAN, LIMITED
New York Branch
By /s/▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 212/282-4488
Telephone No.: 212/▇▇▇-▇▇▇▇
Attention:___________________________
S-9
NATIONAL AUSTRALIA BANK LTD.
By /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
Addresses for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 212/983-1969
Telephone No.: 212/▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
-----------
S-10
THE SANWA BANK LIMITED
By /s/C. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: C. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 713/654-1462
Telephone No.: 713/▇▇▇-▇▇▇▇
Attention: Lad Peryeni
-----------
S-11
SUMITOMO MITSUI BANKING
CORPORATION
By /s/▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 212/224-4384
Telephone No.: 212/▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------