EXHIBIT 10.B
EXECUTION COPY
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
GULFTERRA ENERGY PARTNERS, L.P.,
AS BORROWER
GULFTERRA ENERGY FINANCE CORPORATION,
AS CO-BORROWER
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
FORTIS CAPITAL CORP.,
AS SYNDICATION AGENT
CREDIT LYONNAIS NEW YORK BRANCH,
BNP PARIBAS, AND WACHOVIA BANK, NATIONAL ASSOCIATION,
AS CO-DOCUMENTATION AGENTS
AND
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
DATED AS OF MARCH 23, 1995,
AS AMENDED AND RESTATED
THROUGH SEPTEMBER 26, 2003
----------------------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
AS LEAD ARRANGER AND BOOK RUNNER
TABLE OF CONTENTS
ARTICLE I DEFINITIONS ..................................................................................... 1
SECTION 1.1 Defined Terms................................................................... 1
SECTION 1.2 Other Definitional Provisions................................................... 25
ARTICLE II AMOUNT AND TERMS OF LOANS....................................................................... 25
SECTION 2.1 Loans and Commitments........................................................... 25
SECTION 2.2 Repayment of Loans; Evidence of Debt............................................ 27
SECTION 2.3 Procedure for Borrowing......................................................... 28
SECTION 2.4 Limitations on Loans............................................................ 29
SECTION 2.5 Commitment Fee.................................................................. 29
SECTION 2.6 Termination or Reduction of Commitments......................................... 29
SECTION 2.7 Extensions of Revolving Credit Termination Date................................. 30
SECTION 2.8 Co-Borrower's Obligations....................................................... 30
ARTICLE III LETTERS OF CREDIT.............................................................................. 30
SECTION 3.1 Issuance of Letters of Credit................................................... 30
SECTION 3.2 Procedure for Issuance of Letters of Credit..................................... 31
SECTION 3.3 Participations and Payments in Respect of the Letters of Credit................. 32
SECTION 3.4 Fees, Commissions and Other Charges............................................. 33
SECTION 3.5 Reimbursement Obligation of the Borrower........................................ 34
SECTION 3.6 Obligations Absolute............................................................ 34
SECTION 3.7 Letter of Credit Payments....................................................... 35
SECTION 3.8 Applications.................................................................... 35
ARTICLE IV GENERAL PROVISIONS FOR LOANS.................................................................... 35
SECTION 4.1 Optional and Mandatory Prepayments.............................................. 35
SECTION 4.2 Conversion and Continuation Options............................................. 36
SECTION 4.3 Minimum Amounts of Tranches..................................................... 37
SECTION 4.4 Interest Rates and Payment Dates................................................ 37
SECTION 4.5 Computation of Interest and Fees................................................ 38
SECTION 4.6 Inability to Determine Interest Rate............................................ 38
SECTION 4.7 Pro Rata Treatment and Payments................................................. 39
SECTION 4.8 Illegality...................................................................... 40
SECTION 4.9 Requirements of Law............................................................. 40
SECTION 4.10 Taxes........................................................................... 41
SECTION 4.11 Indemnity....................................................................... 43
SECTION 4.12 Lenders Obligation to Mitigate.................................................. 43
SECTION 4.13 Acquisition; Disposition; Redesignation......................................... 44
SECTION 4.14 Redesignated Senior Indebtedness................................................ 44
ARTICLE V REPRESENTATIONS AND WARRANTIES................................................................... 44
SECTION 5.1 Financial Condition............................................................. 44
SECTION 5.2 No Change....................................................................... 45
SECTION 5.3 Existence; Compliance with Law.................................................. 45
SECTION 5.4 Power; Authorization; Enforceable Obligations................................... 45
SECTION 5.5 No Legal Bar.................................................................... 46
SECTION 5.6 No Material Litigation.......................................................... 46
i
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 5.7 No Default...................................................................... 46
SECTION 5.8 Ownership of Property; Liens.................................................... 46
SECTION 5.9 Intellectual Property........................................................... 47
SECTION 5.10 Taxes........................................................................... 47
SECTION 5.11 Federal Regulations............................................................. 47
SECTION 5.12 ERISA........................................................................... 47
SECTION 5.13 Investment Company Act; Other Regulations....................................... 47
SECTION 5.14 Subsidiaries.................................................................... 47
SECTION 5.15 Purpose of Loans, Letters of Credit............................................. 47
SECTION 5.16 Environmental Matters........................................................... 48
SECTION 5.17 Accuracy and Completeness of Information........................................ 49
SECTION 5.18 Security Documents.............................................................. 50
SECTION 5.19 Partnership Agreement........................................................... 50
SECTION 5.20 Senior Debt..................................................................... 50
ARTICLE VI CONDITIONS PRECEDENT............................................................................ 50
SECTION 6.1 Conditions to Initial Extensions of Revolving Credit............................ 50
SECTION 6.2 Conditions to Each Extension of Revolving Credit................................ 53
SECTION 6.3 Conditions Precedent to Making the Additional Term Loans........................ 53
ARTICLE VII AFFIRMATIVE COVENANTS.......................................................................... 54
SECTION 7.1 Financial Statements............................................................ 55
SECTION 7.2 Certificates; Other Information................................................. 56
SECTION 7.3 Payment of Obligations.......................................................... 57
SECTION 7.4 Conduct of Business and Maintenance of Existence................................ 57
SECTION 7.5 Maintenance of Property; Insurance.............................................. 57
SECTION 7.6 Inspection of Property; Books and Records; Discussions.......................... 57
SECTION 7.7 Notices......................................................................... 58
SECTION 7.8 Environmental Laws.............................................................. 58
SECTION 7.9 Maintenance of Liens of the Security Documents.................................. 59
SECTION 7.10 Pledge of After-Acquired Property............................................... 59
SECTION 7.11 Agreements Respecting Unrestricted Subsidiaries................................. 60
SECTION 7.12 Amendments to Partnership Agreement............................................. 60
ARTICLE VIII NEGATIVE COVENANTS............................................................................ 60
SECTION 8.1 Financial Condition Covenants................................................... 61
SECTION 8.2 Limitation on Indebtedness...................................................... 61
SECTION 8.3 Limitation on Liens............................................................. 61
SECTION 8.4 Limitation on Guarantee Obligations............................................. 63
SECTION 8.5 Limitations on Fundamental Changes.............................................. 64
SECTION 8.6 Limitation on Sale of Assets.................................................... 64
SECTION 8.7 Limitation on Dividends......................................................... 65
SECTION 8.8 Limitation on Investments, Loans and Advances................................... 66
SECTION 8.9 Limitation on Optional Payments and Modifications of Debt
Instruments and Other Agreements ............................................... 67
SECTION 8.10 Limitation on Transactions with Affiliates...................................... 67
SECTION 8.11 Limitation on Sales and Leasebacks.............................................. 68
SECTION 8.12 Limitation on Changes in Fiscal Year............................................ 68
SECTION 8.13 Limitation on Lines of Business................................................. 68
ii
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 8.14 Corporate Documents............................................................. 68
SECTION 8.15 Compliance with ERISA........................................................... 68
SECTION 8.16 Limitation on Restrictions Affecting Subsidiaries............................... 68
SECTION 8.17 Creation of Restricted Subsidiaries............................................. 69
SECTION 8.18 Hazardous Materials............................................................. 69
SECTION 8.19 Actions by Joint Ventures....................................................... 69
SECTION 8.20 Hedging Transactions............................................................ 69
ARTICLE IX EVENTS OF DEFAULT............................................................................... 70
ARTICLE X THE ADMINISTRATIVE AGENT......................................................................... 73
SECTION 10.1 Appointment..................................................................... 73
SECTION 10.2 Delegation of Duties............................................................ 73
SECTION 10.3 Exculpatory Provisions.......................................................... 73
SECTION 10.4 Reliance by Administrative Agent................................................ 74
SECTION 10.5 Notice of Default............................................................... 74
SECTION 10.6 Non-Reliance on Administrative Agent and Other Lenders.......................... 74
SECTION 10.7 Indemnification................................................................. 75
SECTION 10.8 Administrative Agent in Its Individual Capacity................................. 75
SECTION 10.9 Successor Administrative Agent.................................................. 76
SECTION 10.10 Other Agents.................................................................... 76
ARTICLE XI MISCELLANEOUS................................................................................... 76
SECTION 11.1 Amendments and Waivers.......................................................... 76
SECTION 11.2 Notices......................................................................... 77
SECTION 11.3 No Waiver; Cumulative Remedies.................................................. 78
SECTION 11.4 Survival of Representations and Warranties...................................... 78
SECTION 11.5 Payment of Expenses and Taxes................................................... 78
SECTION 11.6 Successors and Assigns; Participations; Purchasing Lenders...................... 79
SECTION 11.7 Adjustments; Set-off............................................................ 82
SECTION 11.8 Counterparts.................................................................... 83
SECTION 11.9 Severability.................................................................... 83
SECTION 11.10 Integration..................................................................... 83
SECTION 11.11 Usury Savings Clause............................................................ 83
SECTION 11.12 Governing Law................................................................... 84
SECTION 11.13 Submission To Jurisdiction; Waivers............................................. 84
SECTION 11.14 Acknowledgements................................................................ 85
SECTION 11.15 Confidentiality................................................................. 85
SECTION 11.16 Waivers of Jury Trial........................................................... 86
SECTION 11.17 Acknowledgement Of No Claims, Offsets Or Defenses; Release By The Loan Parties.. 86
SECTION 11.18 Releases........................................................................ 86
SECTION 11.19 Intercreditor Agreement......................................................... 88
SECTION 11.20 Term Loan Addendums............................................................. 88
SECTION 11.21 Term Loan Amendments............................................................ 88
SECTION 11.22 Certain Permitted Transactions.................................................. 88
SECTION 11.23 Non-Recourse to General Partner................................................. 89
SECTION 11.24 Revolving Credit Commitments under the Existing Credit Agreement................ 89
iii
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
ARTICLE XII THE COLLATERAL AGENT........................................................................... 89
SECTION 12.1 Appointment..................................................................... 89
SECTION 12.2 Delegation of Duties............................................................ 90
SECTION 12.3 Exculpatory Provisions.......................................................... 90
SECTION 12.4 Reliance by Collateral Agent.................................................... 90
SECTION 12.5 Notice of Default............................................................... 91
SECTION 12.6 Indemnification................................................................. 91
SECTION 12.7 Successor Collateral Agent...................................................... 91
SECTION 12.8 Amendment....................................................................... 91
SCHEDULES
Schedule I Lenders, Commitments, Revolving Credit Commitment
Percentages and Term Loan Percentages
Annex I Schedule of Applicable Margins
Schedule 5.1 Guarantee Obligations, Contingent Liabilities and
Dispositions
Schedule 5.6 Litigation
Schedule 5.14 Subsidiaries and Joint Ventures
Schedule 5.16 Environmental Matters
EXHIBITS
Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Initial Term Loan Note
Exhibit A-3 Form of Additional Term Loan Note
Exhibit B Form of Term Loan Addendum
Exhibit C Form of Guarantees and Security Documents
Confirmation
Exhibit D Form of Borrower Pledge Agreement
Exhibit E Form of Borrower Security Agreement
Exhibit F Form of Subsidiaries Guarantee
Exhibit G Form of Subsidiary Pledge Agreement
Exhibit H Form of Subsidiary Security Agreement
Exhibit I Form of Borrowing Certificate
Exhibit J Form of Assignment and Acceptance
iv
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
This SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March
23, 1995, as amended and restated through September 26, 2003, is among GULFTERRA
ENERGY PARTNERS, L.P., a Delaware limited partnership, GULFTERRA ENERGY FINANCE
CORPORATION, a Delaware corporation, the several banks and other financial
institutions from time to time parties to this Agreement (the "Lenders"), FORTIS
CAPITAL CORP., as syndication agent for the Lenders hereunder (in such capacity,
the "Syndication Agent"), CREDIT LYONNAIS NEW YORK BRANCH, BNP PARIBAS and
WACHOVIA BANK, NATIONAL ASSOCIATION, as co-documentation agents for the Lenders
hereunder (in such capacity, the "Co-Documentation Agents"), and JPMORGAN CHASE
BANK, a New York banking corporation, as administrative agent for the Lenders
hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Co-Borrower, certain of the Lenders and the
Administrative Agent are parties to the Sixth Amended and Restated Credit
Agreement, dated as of March 23, 1995, as amended and restated through October
10, 2002, as amended by that certain First Amendment to Sixth Amended and
Restated Credit Agreement dated as of November 21, 2002, and as further amended
by that certain Second Amendment to Sixth Amended and Restated Credit Agreement
dated as of June 13, 2003 (and as further amended prior to the date hereof, the
"Existing Credit Agreement");
WHEREAS, the Borrower has requested that the Existing Credit Agreement
be amended and restated to amend certain covenants, to extend the maturity date
and otherwise to amend the Existing Credit Agreement and restate it in its
entirety as more fully set forth herein;
WHEREAS, the Lenders, the Administrative Agent, the Co-Syndication
Agents and the Co-Documentation Agents are willing so to amend and restate the
Existing Credit Agreement, but only on the terms and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree that on the
Restatement Closing Date (as hereinafter defined) the Existing Credit Agreement
shall be amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Acquired Business": as defined in Section 8.8(e).
"Additional Term Loans": as defined in Section 2.1(c).
"Additional Term Loan Commitment": as to any Additional Term Loan
Lender, the obligation of such Term Loan Lender to make Additional Term Loans of
any series hereunder in an aggregate principal amount not to exceed the amount
set forth in any Term Loan Addendum pursuant to which such Additional Term Loan
Lender agrees to make Additional Term Loans of
1
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
such series as a party hereto or in any assignment and acceptance, as such
amount shall be reduced in accordance with the provisions of this Agreement.
"Additional Term Loan Commitment Percentage": as to any Additional Term
Loan Lender at any time, a percentage, the numerator of which is such Lender's
Additional Term Loan Commitment with respect to a particular series of
Additional Term Loans and the denominator of which is the aggregate Additional
Term Loan Commitments for such series of Additional Term Loans.
"Additional Term Loan Lenders": any Lender having an Additional Term
Loan or, on or prior to the Additional Term Loan Closing Date, an Additional
Term Loan Commitment outstanding hereunder.
"Additional Term Loan Closing Date": as to each series of Additional
Term Loans created hereunder, the closing date set forth in the Term Loan
Addendum creating such Additional Term Loans.
"Additional Term Loan Maturity Date": as to each series of Additional
Term Loans created hereunder, the maturity date set forth in the Term Loan
Addendum creating such Additional Term Loans.
"Additional Term Loan Note": as defined in Section 2.2(e).
"Administrative Agent": as defined in the introductory paragraph of
this Agreement.
"Administrative Questionnaire": an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (i)
vote 10% or more of the securities having ordinary voting power for the election
of directors (or similar authority) of such Person or (ii) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise; provided, that any third Person which also beneficially owns 10% or
more of the securities having ordinary voting power for the election of
directors (or similar authority) of a Joint Venture or Subsidiary shall not be
deemed to be an Affiliate of the Borrower and its Subsidiaries or Joint Ventures
merely because of such common ownership.
"Aggregate Outstanding Revolving Credit Extensions of Credit": as to
any Revolving Credit Lender at any time, an amount equal to the sum of (a) the
aggregate principal amount of all Revolving Credit Loans made by such Lender
then outstanding and (b) such Lender's Commitment Percentage of the L/C
Obligations then outstanding.
"Agreement": the Existing Credit Agreement, as amended and restated by
this Agreement, as further amended, supplemented or otherwise modified from time
to time.
2
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Alternate Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/100 of 1%) equal to the greater of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate
of interest per annum publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its principal office in New York City (each
change in the Prime Rate to be effective on the date such change is publicly
announced); and "Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate, for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) of the first sentence of this
definition, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on the effective day of
such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loans": Loans the rate of interest applicable to
which is based upon the Alternate Base Rate.
"Applicable Lender": with respect to any borrowing of Revolving Credit
Loans, each Revolving Credit Lender; with respect to any borrowing of Initial
Term Loans, each Initial Term Loan Lender and with respect to any borrowing of
Additional Term Loans of any series, each Additional Term Loan Lender with
respect to such series.
"Applicable Margin": on any day and with respect to any (a) Initial
Term Loans that are Alternate Base Rate Loans, 2.25% per annum and for any
Initial Term Loans that are Eurodollar Loans, 3.50% per annum, subject in each
case to adjustment pursuant to the terms of Section 4.4(e), (b) series of
Additional Term Loans, the "Applicable Margin" set forth in the Term Loan
Addendum establishing such series of Additional Term Loans and (c) Type of
Revolving Credit Loan and the Commitment Fee payable pursuant to Section 2.5,
the rate per annum specified in Annex I attached hereto, which rate is based on
the ratio of Consolidated Total Indebtedness of the Borrower at such time to
Consolidated EBITDA for the most recently ended Calculation Period (the
"Leverage Ratio") and the ratings by Standard & Poor's Ratings Services (or any
successor statistical rating organization) ("S&P"), or ▇▇▇▇▇'▇ Investors
Service, Inc. (or any successor statistical rating organization) ("Moody's") of
the senior, long-term unsecured debt of the Borrower in effect at the time of
such determination. The Applicable Margin for any Revolving Credit Loan and the
Commitment Fee for any date shall be determined by reference to the Leverage
Ratio as of the last day of the fiscal quarter most recently ended as of such
date and for the Calculation Period ended on such last day, and any change (i)
shall become effective upon the delivery to the Administrative Agent of a
certificate of a Responsible Officer of the Borrower (which certificate may be
delivered prior to delivery of the relevant financial statements or may be
incorporated in the certificate delivered pursuant to subsection 7.2(b)) with
3
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
respect to the financial statements to be delivered pursuant to Section 7.1 for
the most recently ended fiscal quarter (x) setting forth in reasonable detail
the calculation of the Leverage Ratio at the end of such fiscal quarter and (y)
stating that the signer has reviewed the terms of this Agreement and other Loan
Documents and has made, or caused to be made under his or her supervision, a
review in reasonable detail of the transactions and condition of the Borrower
and the Restricted Subsidiaries during the accounting period, and that the
signer does not have knowledge of the existence as at the date of such officers'
certificate of any Event of Default or Default, and (ii) shall apply (A) in the
case of the Revolving Credit Loans bearing interest based upon the Alternate
Base Rate, to such Alternate Base Rate Loans outstanding on such delivery date
or made on and after such delivery date and (B) in the case of the Revolving
Credit Loans bearing interest based upon the Eurodollar Rate, to such Eurodollar
Loans made on and after such delivery date. It is understood that the foregoing
certificate of a Responsible Officer shall be permitted to be delivered prior
to, but in no event later than, the time of the actual delivery of the financial
statements required to be delivered pursuant to Section 7.1. Notwithstanding the
foregoing, at any time during which the Borrower has failed to deliver the
certificate referred to above in this definition as required under subsection
7.2(b) with respect to a fiscal quarter following the date the delivery thereof
is due, the Leverage Ratio shall be deemed, solely for the purposes of this
definition, to be greater than 5.0 to 1.0 until such time as Borrower shall
deliver such compliance certificate.
"Applicable Percentage": as to any Revolving Credit Lender, such
Lender's Revolving Credit Commitment Percentage and as to any Term Loan Lender,
its Term Loan Percentage.
"Application": an application, in such form as the Issuing Bank may
specify, requesting the Issuing Bank to issue a Letter of Credit.
"Approved Fund": any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"Arizona Storage": Arizona Gas Storage, L.L.C., a Delaware limited
liability company.
"Atlantis": Atlantis Offshore, L.L.C., a Delaware limited liability
company.
"Available Revolving Credit Commitment": as to any Revolving Credit
Lender at any time, an amount equal to the excess, if any, of (a) the amount of
such Lender's Revolving Credit Commitment over (b) such Lender's Aggregate
Outstanding Revolving Credit Extensions of Credit.
"Borrower": GulfTerra Energy Partners, L.P., a Delaware limited
partnership (formerly known as El Paso Energy Partners, L.P.).
"Borrower Pledge Agreement": the Amended and Restated Borrower Pledge
and Security Agreement made by the Borrower in favor of the Collateral Agent for
the benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, substantially in the form
of Exhibit D hereto, as the same may be amended, supplemented or otherwise
modified from time to time.
4
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Borrower Security Agreement": the Amended and Restated Borrower
Security Agreement made by the Borrower in favor of the Collateral Agent for the
benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, substantially in the form of
Exhibit E hereto, as the same may be amended, supplemented or otherwise modified
from time to time.
"Borrowing Date": any Business Day specified in a notice pursuant to
Section 2.3 or 3.2 as a date on which the Borrower requests the Revolving Credit
Lenders to make Revolving Credit Loans, the Additional Term Loan Lenders of any
series to make Additional Term Loans or the Issuing Bank to issue a Letter of
Credit hereunder.
"Business": as defined in Section 5.16(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close.
"Calculation Period": each period of four consecutive fiscal quarters
of the Borrower.
"Cameron Highway": Cameron Highway Oil Pipeline Company, a Delaware
general partnership that owns or will own the Cameron Highway Oil Pipeline.
"Cameron Highway GP": Cameron Highway Pipeline GP, L.L.C., a Delaware
limited liability company.
"Cameron Highway I": Cameron Highway Pipeline I, L.P., a Delaware
limited partnership.
"Cameron Highway Financing": the loans made to Cameron Highway under
the Cameron Highway Financing Documents to finance the construction and
operation of the Cameron Highway Oil Pipeline.
"Cameron Highway Financing Documents": means (a) the Credit Agreement,
dated as of July 10, 2003, among Cameron Highway, as borrower, the lenders party
thereto, JPMorgan, as administrative agent, and the other agents and parties
thereto, (b) the Common Agreement, dated as of July 10, 2003, among Cameron
Highway Oil Pipeline Company, as borrower, the lenders party thereto, JPMorgan,
as administrative agent for the lenders, and the other parties from time to time
party thereto, (c) the Note Purchase Agreement, dated as of July 10, 2003, among
Cameron Highway, as borrower, the initial noteholders party thereto, and
JPMorgan, as initial noteholder agent, (d) the Security and Intercreditor
Agreement and Guarantee, dated as of July 10, 2003, among Cameron Highway, as
borrower and grantor, the pledgors party thereto, JPMorgan, as administrative
agent, and each of the other designated facility agents from time to time party
thereto, (e) the Sponsor Agreement, dated as of July 10, 2003, made by the
Partnership to JPMorgan, as collateral agent for the secured parties,
administrative agent for the lenders, and initial noteholder agent for the
noteholders, and (e) all other financing documents and credit arrangements
entered into for the construction of the Cameron Highway Oil Pipeline, as each
of (a) - (e) is amended, restated, renewed, replaced or otherwise modified from
time to time.
5
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Cameron Highway Oil Pipeline": an oil pipeline system transporting oil
from a platform located in Ship Shoal Block 332 in the Gulf of Mexico to
multiple delivery points in ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
"Capital Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing. In addition, with
respect to the Borrower, "Capital Stock" shall include the Units and the General
Partnership Interest.
"Cash Equivalents": (a) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (b)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either S&P or ▇▇▇▇▇'▇; (c) commercial paper maturing no more than one year
from the date of creation thereof and, at the time of acquisition, having the
highest rating obtainable from either S&P or ▇▇▇▇▇'▇; (d) certificates of
deposit or banker's acceptances maturing within one year from the date of
acquisition thereof issued by (i) any Lender, (ii) any commercial bank organized
under the laws of the United States of America or any state thereof or the
District of Columbia having combined capital and surplus of not less than
$250,000,000 or (iii) any bank which has a short-term commercial paper rating
meeting the requirements of clause (c) above (any such Lender or bank, a
"Qualifying Lender"); (e) eurodollar time deposits having a maturity of less
than one year purchased directly from any Lender (whether such deposit is with
such Lender or any other Lender hereunder) or issued by any Qualifying Lender;
and (f) repurchase agreements and reverse repurchase agreements with a term of
not more than 14 days with any Qualifying Lender relating to marketable direct
obligations issued or unconditionally guaranteed by the United States.
"Change of Control": the occurrence of any of the following:
(a) the sale, transfer, lease, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
assets of the Partnership and its Restricted Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) other than the El Paso
Group;
(b) the adoption of a plan relating to the liquidation or
dissolution of the Partnership or the General Partner; or
(c) such time as the El Paso Group ceases to own,
directly or indirectly, at least 70% of the general partner interests
of the Partnership.
6
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Notwithstanding the foregoing, neither (i) a conversion of the Partnership from
a limited partnership to a corporation, limited liability company or other form
of entity or an exchange of all of the outstanding limited partnership interests
for capital stock in a corporation, for member interests in a limited liability
company or for Equity Interests in such other form of entity shall not
constitute a Change of Control, so long as following such conversion or exchange
the El Paso Group beneficially owns, directly or indirectly, in the aggregate
more than 50% of the Capital Voting Stock of such entity, or continues to own a
sufficient number of the outstanding shares of Capital Voting Stock of such
entity to elect a majority of its directors, managers, trustees or other persons
serving in a similar capacity for such entity nor (ii) consummation of the
i-share Transactions shall constitute a Change of Control.
"Co-Borrower": GulfTerra Energy Finance Corporation, a Delaware
corporation (formerly known as El Paso Energy Partners Finance Corporation).
"Co-Documentation Agents": as defined in the preamble to this
Agreement.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": the "Collateral" as defined in the several Security
Documents.
"Collateral Agent": JPMorgan, in its capacity as Collateral Agent as
appointed by the Lenders, and its successors and assigns.
"Commitment Fee": the commitment fee payable pursuant to Section 2.5.
"Common Unit": a partnership interest of a limited partner of the
Borrower representing a fractional part of the partnership interests of all
limited partners of the Borrower and having the rights and obligations specified
with respect to Series A Common Units in the Partnership Agreement.
"Consolidated EBITDA": for any period and in accordance with Section
4.13, the Consolidated Net Income ((a) including earnings and losses from
discontinued operations, except to the extent that any such losses represent
reserves for losses attributable to the planned disposition of material assets,
(b) excluding extraordinary gains, and gains and losses arising from the sale of
material assets, and (c) including other non-recurring losses) for such period,
plus (i) the aggregate amount of cash distributions received by the Borrower and
its consolidated Subsidiaries (excluding Unrestricted Subsidiaries and Joint
Ventures) from Unrestricted Subsidiaries and Joint Ventures (other than cash
proceeds funded from the refinancing of the original capital investment by the
Borrower and its Subsidiaries in Unrestricted Subsidiaries and Joint Ventures),
and (ii) to the extent reflected as a charge in the statement of Consolidated
Net Income for such period, the sum of (A) interest expense, amortization of
debt discount and debt issuance costs (including the write-off of such costs in
connection with prepayments of debt) and commissions, discounts and other fees
and charges associated with standby letters of credit, (B) taxes measured by
income accrued as an expense during such period, (C) depreciation, depletion,
and amortization expense, and (D) non-cash compensation expense resulting from
the accounting treatment applied, in accordance with GAAP, to management's
equity interest minus the equity of the Borrower and its consolidated
Subsidiaries (excluding Unrestricted Subsidiaries and Joint Ventures) in the
earnings of Unrestricted Subsidiaries and Joint Ventures.
7
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Consolidated Interest Expense": for any period, and in accordance with
Section 4.13, total cash interest expense (including that attributable to
Capital Leases) of the Borrower and its Subsidiaries (excluding Unrestricted
Subsidiaries and Joint Ventures) for such period with respect to all outstanding
Indebtedness of the Borrower and such Subsidiaries (including all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Hedge Agreements in respect of
interest rates to the extent such net costs are allocable to such period in
accordance with GAAP).
"Consolidated Net Income": for any period, and in accordance with
Section 4.13, the net income or net loss of the Borrower and its consolidated
Subsidiaries (excluding Unrestricted Subsidiaries and Joint Ventures) for such
period determined in accordance with GAAP on a consolidated basis.
"Consolidated Net Worth": as of the date of determination, all items
which in conformity with GAAP would be included under shareholders' equity on a
consolidated balance sheet of the Borrower and its consolidated Subsidiaries
(excluding Unrestricted Subsidiaries) at such date.
"Consolidated Tangible Net Worth": as of the date of determination and
in accordance with Section 4.13, Consolidated Net Worth after deducting
therefrom the following:
(a) goodwill, including any amounts (however designated
on the balance sheet) representing the cost of acquisitions of
Subsidiaries in excess of underlying tangible assets;
(b) patents, trademarks, copyrights;
(c) leasehold improvements not recoverable at the
expiration of a lease; and
(d) deferred charges (including unamortized debt discount
and expense, organization expenses and experimental and development
expenses, but excluding prepaid expenses).
"Consolidated Total Indebtedness": at any time and in accordance with
Section 4.13, all Indebtedness of the Borrower and its consolidated Subsidiaries
(excluding Unrestricted Subsidiaries) at such time.
"Consolidated Total Senior Indebtedness": at any time and in accordance
with Section 4.13, Consolidated Total Indebtedness less the aggregate
outstanding principal amount of any Indebtedness that is expressly subordinate
in right of payment to the Loans, including the Senior Subordinated Notes, at
such time; provided that any such express right of payment subordination
provisions relating to such Indebtedness have a substantially similar effect as
the right of payment subordination provisions contained in the Senior
Subordinated Note Indentures.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
8
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Copper Eagle": Copper Eagle Gas Storage, L.L.C., a Delaware limited
liability company.
"Crystal Holding": Crystal Holding, L.L.C., a Delaware limited
liability company.
"Default": any of the events specified in Article IX, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"El Paso": El Paso Corporation, a Delaware corporation.
"El Paso Group": collectively, (a) El Paso, and (b) each Person which
is a direct or indirect Subsidiary of El Paso, including, GTM Energy Company and
GTM Management.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment or
to emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes, as now or may at any time hereafter be in effect.
"EPEPC Guarantee": the Amended and Restated EPEPC Guarantee dated
October 10, 2002 made by El Paso Energy Partners Company, L.L.C. in favor of the
Administrative Agent for the benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders,
as the same may be amended, supplemented or otherwise modified from time to
time.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate": any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event": (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to
9
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal) of reserve requirements in effect on such day (including basic,
supplemental, marginal and emergency reserves under any regulations of the Board
of Governors of the Federal Reserve System or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of such Board) maintained by a member bank of such
System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate appearing on page 3750 of the
Telerate Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 A.M., London time, two Working
Days prior to the beginning of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "Eurodollar
Base Rate" with respect to such Eurodollar Loans for such Interest Period shall
be the rate at which dollar deposits of a comparable amount to such Eurodollar
Loans and for a maturity comparable to such Interest Period are offered by the
principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 A.M., London time,
two Working Days prior to the commencement of such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
Eurodollar Base Rate
--------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Article IX, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Excluded Taxes": with respect to the Administrative Agent, any Lender,
the Issuing Bank or any other recipient of any payment to be made by or on
account of any obligation of the
10
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America, or by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 4.10(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 4.10(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 4.10(a).
"Existing Credit Agreement": as defined in the recitals hereto.
"Expiry Date": with respect to any Letter of Credit at any time, the
then stated expiration date of such Letter of Credit as set forth in such Letter
of Credit.
"FERC": the Federal Energy Regulatory Commission and any successor
thereto.
"First Reserve": First Reserve Gas, L.L.C., a Delaware limited
liability company.
"Flextrend": Flextrend Development Company, L.L.C., a Delaware limited
liability company.
"Foreign Lender": any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP": generally accepted accounting principles in the United States
of America in effect from time to time.
"Gateway": Deepwater Gateway L.L.C., a Delaware limited liability
company and a Joint Venture created by the Borrower and Cal Dive International,
Inc. to initially develop and construct the ▇▇▇▇▇ ▇▇▇▇ Platform by, among other
things, building and constructing platforms located in, and providing related
services with respect to, the ▇▇▇▇▇ ▇▇▇▇ Field.
"General Partner": GulfTerra Energy Company, L.L.C., in its capacity as
the general partner of the Borrower, or any other Person acting as general
partner of the Borrower.
"General Partner Guarantee": the General Partner Guarantee dated May 5,
2003 made by the General Partner in favor of the Administrative Agent, the
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, as the same may be amended, supplemented or
otherwise modified from time to time.
"General Partnership Interest": all general partnership interests in
the Borrower.
11
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"General Partner Security Agreement (G&A Agreement)": the General
Partner Security Agreement (G&A Agreement) dated as of May 5, 2003, by the
General Partner in favor of the Collateral Agent for the ratable benefit of the
Administrative Agent, the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, as the same may be
amended, supplemented or otherwise modified from time to time, which document
replaced the Amended and Restated EPEPC Security Agreement (G&A Agreement) dated
as of October 10, 2002, by El Paso Energy Partners Company, L.L.C, the former
general partner of the Borrower.
"Governmental Approval": any authorization, consent, approval, license,
lease, ruling, permit, tariff, rate, certification, exemption, filing, variance,
claim, order, judgment, decree, publication, notice to, declaration of or with
or registration by or with any Governmental Authority.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"GTM Alabama": GulfTerra Alabama Intrastate, L.L.C., a Delaware limited
liability company.
"GTM Arizona": GulfTerra Arizona Gas, L.L.C., a Delaware limited
liability company (formerly known as EPN Arizona Gas, L.L.C.).
"GTM Energy Company": GulfTerra Energy Company, L.L.C., a Delaware
limited liability company.
"GTM Field Services": GulfTerra Field Services, L.L.C., a Delaware
limited liability company.
"GTM GC": GulfTerra GC, L.P., a Delaware limited partnership.
"GTM Holding I": GulfTerra Holding I, L.L.C., a Delaware limited
liability company (formerly known as EPN GP Holding I, L.L.C.).
"GTM Holding II": GulfTerra Holding II, L.L.C., a Delaware limited
liability company (formerly known as EPN GP Holding, L.L.C.).
"GTM Holding III": GulfTerra Holding III, L.L.C., a Delaware limited
liability company (formerly known as EPN Pipeline GP Holding, L.L.C.).
"GTM Holding IV": GulfTerra Holding IV, L.P., a Delaware limited
partnership (formerly known as EPN Holding Company I, L.P.).
"GTM Holding V": GulfTerra Holding V, L.P., a Delaware limited
partnership (formerly known as EPN Holding Company, L.P.).
"GTM Intrastate": GulfTerra Intrastate, L.P., a Delaware limited
partnership (formerly known as El Paso Energy Intrastate, L.P.).
12
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"GTM Management": GulfTerra Management, L.L.C., a Delaware limited
liability company (formerly known as El Paso Energy Partners Management,
L.L.C.).
"GTM Management Registration Statements": the Forms S-1 and S-3
(registration numbers 333-97963 and ▇▇▇-▇▇▇▇▇-▇▇, respectively) jointly filed
with the Securities and Exchange Commission by GulfTerra Management and the
Borrower, respectively, as such registration statements are amended and
supplemented from time to time.
"GTM NGL Storage": GulfTerra NGL Storage, L.L.C., a Delaware limited
liability company (formerly known as EPN NGL Storage, L.L.C.).
"GTM Oil Transport" GulfTerra Oil Transport, L.L.C., a Delaware limited
liability company (formerly known as El Paso Energy Partners Oil Transport,
L.L.C.).
"GTM Operating Company": GulfTerra Operating Company, L.L.C., a
Delaware limited liability company (formerly known as El Paso Energy Partners
Operating Company, L.L.C.).
"GTM South Texas": GulfTerra South Texas, L.P., a Delaware limited
partnership.
"GTM Texas Pipeline": GulfTerra Texas Pipeline, L.P., a Delaware
limited partnership (formerly known as EPGT Texas Pipeline, L.P.).
"Guarantees": means the EPEPC Guarantee, the General Partner Guarantee,
and the Subsidiaries Guarantee.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including
any bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation or
(B) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (A) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (B) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be
13
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
such guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Hattiesburg Sales": Hattiesburg Industrial Gas Sales, L.L.C., a
Delaware limited liability company.
"Hattiesburg Storage": Hattiesburg Gas Storage Company, a Delaware
general partnership.
"Hazardous Materials": any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances, petroleum products
(including crude oil or any fraction thereof), defined or regulated as such in
or under any Environmental Law.
"Hedge Agreements": all interest rate swaps, caps or collar agreements
or similar arrangements dealing with interest rates or currency exchange rates
or the exchange of nominal interest obligations, either generally or under
specific contingencies.
"High Island": High Island Offshore System, L.L.C., a Delaware limited
liability company.
"Indebtedness": of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices and which in any event are no more than 120 days past due or, if more
than 120 days past due, are being contested in good faith and adequate reserves
with respect thereto have been made on the books, of such Person), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all Guarantee Obligations of such Person with respect to
the Indebtedness of others, (d) all obligations of such Person under Capital
Leases, (e) all obligations of such Person in respect of outstanding letters of
credit (other than commercial letters of credit with an initial maturity date of
less than 90 days), acceptances and similar obligations issued or created for
the account of such Person, (f) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof and (g) for purposes of the
covenants set forth in Section 8.1, the net obligations of such Person under
Hedge Agreements.
"Indemnified Taxes": Taxes other than Excluded Taxes.
"Initial Term Loan Date": October 10, 2002.
"Initial Term Loan Lenders": any Lender having an Initial Term Loan
outstanding hereunder.
"Initial Term Loan Maturity Date": October 10, 2007.
"Initial Term Loan Note": as defined in Section 2.2(e).
"Initial Term Loans": as defined in Section 2.1(b).
14
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Intercreditor Agreement": the Amended and Restated Intercreditor
Agreement dated as of the Restatement Closing Date, by and among the
Administrative Agent, for the benefit of the Lenders, the administrative agent
for the lenders in connection with the ▇▇▇▇▇ ▇▇▇▇ Financing Documents, for the
benefit of the lenders thereunder, and the Collateral Agent and acknowledged by
the Borrower, as such agreement may be amended, modified, or supplemented from
time to time.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the
last day of each March, June, September and December, commencing September 30,
2003, (b) as to any Eurodollar Loan having an Interest Period of three months or
less, the last day of such Interest Period, and (c) as to any Eurodollar Loan
having an Interest Period longer than three months, each day which is three
months or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending (i) one, two, three or six months thereafter, as
selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto, or (ii) if
available from the applicable Lenders, a period that is not less than 7
days nor longer than 12 months; and
(b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurodollar Loan
and ending (i) one, two, three or six months thereafter, as selected by
the Borrower by irrevocable notice to the Administrative Agent not less
than three Working Days prior to the last day of the then current
Interest Period with respect thereto, or (ii) if available from the
applicable Lenders, a period that is not less than 7 days nor longer
than 12 months;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Working Day, such
Interest Period shall be extended to the next succeeding Working Day
unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Working Day;
(2) any Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date or the Term Loan Maturity
Date, as applicable, shall end on the Revolving Credit Termination Date
or the Term Loan Maturity Date, as applicable;
(3) any Interest Period pertaining to a Eurodollar Loan
that begins on the last Working Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Working
Day of a calendar month; and
15
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(4) the Borrower shall select Interest Periods so as not
to require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"i-share Transactions": as defined in Section 11.22.
"Issuing Bank": JPMorgan, in its capacity as issuer of any Letter of
Credit.
"Joint Venture": any Person in which the Borrower and/or its
Subsidiaries hold more than 5% but less than a majority of the equity interests,
and which does not constitute a Subsidiary of the Borrower, whether direct or
indirect; provided that Atlantis, Cameron Highway, Copper Eagle, Gateway and
Poseidon and their respective Subsidiaries shall be deemed a Joint Venture for
purpose of the Loan Documents unless any such Person becomes a Subsidiary in
accordance with the definition thereof and the Borrower designates such Person
as a Subsidiary.
"Joint Venture Charter": with respect to each Joint Venture, the
partnership agreement, certificate of incorporation, by-laws, limited liability
company agreement or other constitutive documents of such Joint Venture, as each
of the same may be further amended, supplemented or otherwise modified in
accordance with this Agreement.
"JPMorgan": JPMorgan Chase Bank, a New York banking corporation.
"L/C Commitment Amount": $50,000,000.
"L/C Commitment Percentage": as to any L/C Participant at any time, the
percentage determined under paragraph (a) of the definition of "Revolving Credit
Commitment Percentage" in this Section 1.1.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the Letters of Credit and (b) the
aggregate amount of drawings under the Letters of Credit which have not then
been reimbursed pursuant to subsection 3.5(a).
"L/C Participants": the collective reference to all Lenders with
Revolving Credit Commitments (other than the Issuing Bank).
"Lenders": as defined in the preamble to this Agreement.
"Letters of Credit": as defined in subsection 3.1(a).
"Leverage Ratio": as defined in the definition of "Applicable Margin".
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority, preferential arrangement or other security
agreement of any kind or nature whatsoever (including, any conditional sale or
other title retention agreement and any Capital Lease having substantially the
same economic effect as any of the foregoing).
16
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Loan": a Revolving Credit Loan or a Term Loan and "Loans" shall mean
collectively the Revolving Credit Loans or the Term Loans or one or more of
them.
"Loan Documents": this Agreement, the Notes, the Guarantees, the
Security Documents, any confirmation of such Guarantees and Security Documents,
any Term Loan Addendum, the Intercreditor Agreement and the Applications.
"Loan Parties": the Borrower, the Co-Borrower, the Subsidiary
Guarantors and each other Affiliate of the Borrower that at the applicable time
is party to a Loan Document.
"Manta Ray": Manta Ray Gathering Company, L.L.C., a Delaware limited
liability company.
"▇▇▇▇▇ ▇▇▇▇ Clawback": the "clawback" and similar obligations incurred
by the Borrower and any Restricted Subsidiary under the ▇▇▇▇▇ ▇▇▇▇ Financing
Documents in an aggregate amount not to exceed $22,500,000 at any one time
outstanding.
"▇▇▇▇▇ ▇▇▇▇ Financing": the loans made to Gateway under the ▇▇▇▇▇ ▇▇▇▇
Financing Documents.
"▇▇▇▇▇ ▇▇▇▇ Financing Documents": (a) the Credit Agreement dated as of
August 15, 2002, among Gateway, as borrower, JPMorgan Chase Bank, individually
and as administrative agent, Wachovia Bank, National Association and Bank One,
N.A., as syndication agents, Fortis Capital Corp. and BNP Paribas, as
documentation agents, and the lenders party thereto, and (b) the other financing
documents (as identified therein); in the case of (a) and (b) above, as amended,
restated, renewed, replaced, supplemented or otherwise modified from time to
time.
"▇▇▇▇▇ ▇▇▇▇ Field": the oil and gas property known as the "▇▇▇▇▇ ▇▇▇▇
Field" located offshore Louisiana, in the Gulf of Mexico Outer Continental
Shelf, including Green Canyon Blocks 474, 518-520, 562-564, 606-608, 652, and
830.
"▇▇▇▇▇ ▇▇▇▇ Lenders": shall have the same meaning as the defined term
"Lenders" in the ▇▇▇▇▇ ▇▇▇▇ Financing Documents.
"▇▇▇▇▇ ▇▇▇▇ Platform": the Moses-type four-column tension leg platform
floating hull facility, pipelines, processing facilities, and appurtenances in
connection with the development of the ▇▇▇▇▇ ▇▇▇▇ Field constructed, installed
and owned by Gateway.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of
the Loan Parties, taken as a whole, to perform their collective obligations
under this Agreement, any of the Notes or any of the other Loan Documents or (c)
the rights of or benefits available to the Lenders, the Administrative Agent or
the Collateral Agent under this Agreement, any of the Notes or any of the other
Loan Documents.
17
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Material Environmental Amount": an amount payable by the Borrower
and/or its Subsidiaries in excess of $35,000,000 for remedial costs, compliance
costs, compensatory damages, punitive damages, fines, penalties or any
combination thereof.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"MIAGS": Matagorda Island Area Gathering System, a Texas joint venture.
"Multiemployer Plan": a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Non-Putable Debt Securities": debt securities of any Loan Party
(excluding any Guarantee Obligations with respect thereto), including the Senior
Notes, other than Putable Debt Securities.
"Non-Recourse Obligations": Indebtedness, Guarantee Obligations and
other obligations of any type (a) as to which neither the Borrower nor any
Restricted Subsidiary (i) is obligated to provide credit support in any form, or
(ii) is directly or indirectly liable, and (b) no default with respect to which
(including any rights which the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary) would permit (upon notice, lapse of
time or both) any holder of any Indebtedness or Guarantee Obligation of the
Borrower or any Restricted Subsidiary to declare a default on such Indebtedness
or Guarantee Obligation of the Borrower or any Restricted Subsidiary or cause
the payment of any such Indebtedness to be accelerated or payable prior to its
stated maturity or cause any such Guarantee Obligation to become payable, in the
case of (a) and (b) above, except for clawbacks and other Guarantee Obligations
permitted under this Agreement.
"Notes": the Revolving Credit Notes, the Initial Term Loan Notes and
the Additional Term Loan Notes.
"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and reimbursement obligations
in respect of Letters of Credit and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans
and all other obligations and liabilities of the Borrower to the Administrative
Agent, the Collateral Agent or to any Lender (or, in the case of Hedge
Agreements, any Affiliate of any Lender), whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any other
Loan Document, the Letters of Credit, any Hedge Agreement entered into with any
Lender or any Affiliate of any Lender or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including all fees, charges and disbursements of counsel to the Administrative
Agent, the Collateral Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise.
18
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Other Taxes": any and all present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies arising from
any payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement.
"Participants": as defined in subsection 11.6(b).
"Partnership": GulfTerra Energy Partners, L.P., a Delaware limited
partnership.
"Partnership Agreement": the Second Amended and Restated Agreement of
Limited Partnership of the Borrower among the partners of the Borrower effective
as of August 31, 2000 and as in effect on the Restatement Closing Date, as
amended, modified and supplemented from time to time in accordance with this
Agreement.
"PBGC": the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature (the
term "Person" shall not be deemed to include, however, any joint tenancy or
tenancy-in-common pursuant to which any property or assets may be owned in an
undivided interest).
"Petal": Petal Gas Storage, L.L.C., a Delaware limited liability
company.
"Petal Facilities" the salt-dome gas storage facilities located in
Hattiesburg, Mississippi.
"Petroleum": oil, gas and other liquid or gaseous hydrocarbons,
including all liquefiable hydrocarbons and other products which may be extracted
from gas and gas condensate by the processing thereof in a gas processing plant.
"Plan": any employee benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements": collectively, the Borrower Pledge Agreement, the
Subsidiary Pledge Agreement and any other pledge agreement executed and
delivered pursuant to Section 8.17.
"Poseidon": Poseidon Oil Pipeline Company, L.L.C., a Delaware limited
liability company.
"Poseidon Holding": Poseidon Pipeline Company, L.L.C., a Delaware
limited liability company.
19
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Preference Unit": a partnership interest in the Borrower representing
a fractional part of the partnership interests of all limited partners of the
Borrower and having the rights and obligations specified with respect to
Preference Units in the Partnership Agreement.
"Properties": the facilities and properties owned, leased or operated
by the Borrower or any of its Restricted Subsidiaries or any Joint Venture.
"Purchasing Lenders": as defined in subsection 11.6(c).
"Putable Debt Securities": debt securities of any Loan Party (excluding
any Guarantee Obligations with respect thereto) that provide rights of
repurchase or redemption to the holders thereof upon a Change of Control similar
to those provided to holders of the Senior Subordinated Notes upon a Change of
Control. Putable Debt Securities include the Senior Subordinated Notes but do
not include Indebtedness under this Agreement or the Senior Notes.
"Redesignation": any designation of a Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with the penultimate sentence of the
definition of "Unrestricted Subsidiary"; and any designation of an Unrestricted
Subsidiary or a Joint Venture as a Restricted Subsidiary in accordance with the
last sentence of the definition of "Restricted Subsidiary".
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Reimbursement Obligation": the obligation of the Borrower to reimburse
the Issuing Bank pursuant to subsection 3.5(a) for amounts drawn under the
Letters of Credit.
"Related Parties": with respect to any specified Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
"Required Lenders": at any time, Lenders the Total Credit Percentages
of which aggregate at least 51%.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the Chief Executive Officer, the Chief Operating
Officer, the President, the Chief Financial Officer, the Treasurer or any vice
president of the Borrower.
"Restatement Closing Date": the date on which the conditions set forth
in Section 6.1 are first satisfied or waived, which shall occur on or prior to
September 26, 2003.
"Restricted Payment": as defined in Section 8.7.
20
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Restricted Subsidiary": any Subsidiary of the Borrower other than an
Unrestricted Subsidiary. Subject to the right to redesignate certain Restricted
Subsidiaries as Unrestricted Subsidiaries in accordance with the definition of
"Unrestricted Subsidiary", all of the Subsidiaries of the Borrower as of the
date hereof other than Arizona Storage, GTM Arizona and MIAGS are Restricted
Subsidiaries. Notwithstanding the foregoing, any Subsidiary which guarantees the
Senior Subordinated Notes or the Senior Notes shall be a Restricted Subsidiary.
Any Subsidiary designated as an Unrestricted Subsidiary may be redesignated as a
Restricted Subsidiary with the consent of the Required Lenders as long as,
immediately after giving effect thereto, no Default or Event of Default has
occurred and is continuing and the Borrower would be in pro forma compliance
with the covenants set forth in Section 8.1 after giving effect thereto.
"Revolving Credit Commitment": as to any Revolving Credit Lender, the
obligation of such Revolving Credit Lender to make Revolving Credit Loans to
and/or issue or participate in Letters of Credit issued on behalf of the
Borrower hereunder in an aggregate principal and/or face amount at any one time
outstanding not to exceed the amount set forth opposite such Revolving Credit
Lender's name on Schedule I under the heading "Revolving Credit Commitment" or
in any assignment and acceptance pursuant to which such Revolving Credit Lender
becomes a party hereto, as such amount may be reduced from time to time in
accordance with the provisions of this Agreement.
"Revolving Credit Commitment Percentage": as to any Revolving Credit
Lender at any time, with respect to any credit to be extended under, payment or
prepayment to be made under, conversion or continuation under, participation in
a Letter of Credit issued under, or other matter with respect to, the Revolving
Credit Commitments, (a) a percentage, the numerator of which is such Lender's
Revolving Credit Commitment and the denominator of which is the aggregate
Revolving Credit Commitments then in effect or (b) if the Revolving Credit
Commitments have been terminated, as to any Lender at any time, a percentage,
the numerator of which is such Lender's Aggregate Outstanding Revolving Credit
Extensions of Credit and the denominator of which is the Aggregate Outstanding
Revolving Credit Extensions of Credit of all Lenders at such time.
"Revolving Credit Commitment Period": the period from and including the
Restatement Closing Date to but not including the Revolving Credit Termination
Date or such earlier date on which the Revolving Credit Commitments shall
terminate as provided herein.
"Revolving Credit Lender": any Lender having a Revolving Credit
Commitment or any Aggregate Outstanding Revolving Credit Extensions of Credit
hereunder.
"Revolving Credit Loans": as defined in Section 2.1(a).
"Revolving Credit Note": as defined in Section 2.2(e).
"Revolving Credit Termination Date": the third anniversary of the
Restatement Closing Date, as such termination date may from time to time be
extended pursuant to Section 2.7, and any other date on which the Revolving
Credit Commitments are terminated.
"Security Agreements": collectively, the General Partner Security
Agreement (G&A Agreement), the Borrower Security Agreement and the Subsidiary
Security Agreement.
21
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Security Documents": collectively, the Pledge Agreements and the
Security Agreements.
"Senior Note Indentures": (a) the Indenture dated July 3, 2003 among
the Borrower, the Co-Borrower and certain of their respective Subsidiaries
pursuant to which the 6-1/4% Senior Notes due 2010 were issued and (b) any other
Indenture pursuant to which Senior Notes are issued, each together with all
instruments and other agreements entered into by the Borrower, the Co-Borrower
or such Subsidiaries in connection therewith, as each may be amended,
supplemented or otherwise modified from time to time in accordance with this
Agreement.
"Senior Notes": collectively (a) the 6-1/4% Senior Notes due 2010 of
the Borrower and the Co-Borrower issued pursuant to a Senior Note Indenture and
(b) any other senior notes issued pursuant to any Senior Note Indenture.
"Senior Subordinated Note Indentures": (a) the Indenture dated as of
May 27, 1999 among the Borrower, the Co-Borrower, certain of their respective
Subsidiaries and the trustee named therein pursuant to which the 10-3/8% Senior
Subordinated Notes due 2009 were issued, (b) the Indenture dated as of May 17,
2001 among the Borrower, the Co-Borrower, certain of their respective
Subsidiaries and the trustee named therein pursuant to which the 8-1/2% Senior
Subordinated Notes due 2011 were issued, (c) the Indenture dated as of November
27, 2002 among the Borrower, the Co-Borrower, certain of their respective
Subsidiaries and the trustee named therein pursuant to which the 10-5/8% Senior
Subordinated Notes due 2012 were issued, (d) the Indenture dated March 24, 2003
among the Borrower, the Co-Borrower, certain of their respective Subsidiaries
and the trustee named therein pursuant to which the 8-1/2% Senior Subordinated
Notes due 2010 were issued, and (e) any other Indenture pursuant to which Senior
Subordinated Notes are issued, each together with all instruments and other
agreements entered into by the Borrower, the Co-Borrower or such Subsidiaries in
connection therewith, as each may be amended, supplemented or otherwise modified
from time to time in accordance with this Agreement.
"Senior Subordinated Notes": collectively (a) the 10-3/8% Senior
Subordinated Notes due 2009, (b) the 8-1/2% Senior Subordinated Notes due 2011,
(c) the 10-5/8% Senior Subordinated Notes due 2012, (d) the 8-1/2% Senior
Subordinated Notes due 2012 and (e) any other senior subordinated notes, in each
case of the Borrower and the Co-Borrower, issued pursuant to a Senior
Subordinated Note Indenture.
"Significant Subsidiary": any Subsidiary, together with its
Subsidiaries, the aggregate assets of which constitute 5% or more of the
consolidated total assets of the Borrower and its Subsidiaries or for which the
Consolidated EBITDA (mutatis mutandis) constitutes 5% or more of Consolidated
EBITDA for the previous fiscal year.
"Subsidiaries Guarantee": the Amended and Restated Subsidiaries
Guarantee made by the Subsidiary Guarantors in favor of the Administrative
Agent, for the benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, substantially
in the form of Exhibit F hereto, as the same may be amended, supplemented or
otherwise modified from time to time.
22
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
"Subsidiary Guarantors": collectively, Cameron Highway GP, Cameron
Highway I, Crystal Holding, First Reserve, Flextrend, GTM Alabama, GTM Field
Services, GTM GC, GTM Holding I, GTM Holding II, GTM Holding III, GTM Holding
IV, GTM Holding V, GTM Intrastate, GTM NGL Storage, GTM Oil Transport, GTM
Operating Company, GTM South Texas, GTM Texas Pipeline, Hattiesburg Sales,
Hattiesburg Storage, High Island, Manta Ray, Petal and Poseidon Holding, each
other Restricted Subsidiary and any other Subsidiary of the Borrower which, from
time to time, may become party to the Subsidiaries Guarantee. Notwithstanding
anything to the contrary in the Loan Documents, GulfTerra Energy Finance
Corporation shall be the Co-Borrower and not a Subsidiary Guarantor.
"Subsidiary Pledge Agreement": the Amended and Restated Subsidiary
Pledge Agreement made by each of the Subsidiary Guarantors (including any pledge
agreement executed and delivered pursuant to Section 8.17) in favor of the
Collateral Agent for the ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders, substantially in the form of Exhibit G hereto, as the same may be
amended, supplemented or otherwise modified from time to time.
"Subsidiary Security Agreement": the Amended and Restated Subsidiary
Security Agreement made by each of the Subsidiary Guarantors (including any
security agreement executed and delivered pursuant to Section 8.17) in favor of
the Collateral Agent for the ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders, substantially in the form of Exhibit H hereto, as the same may be
amended, supplemented or otherwise modified from time to time.
"Syndication Agent": as defined in the preamble to this Agreement.
"Taxes": any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Term Loan": as defined in Section 2.1(c).
"Term Loan Addendum": a Term Loan Addendum substantially in the form
attached hereto as Exhibit B.
"Term Loan Lender": any Lender having a Term Loan outstanding
hereunder.
"Term Loan Maturity Date": as to any Initial Term Loan, the Initial
Term Loan Maturity Date, and as to any Additional Term Loan, the applicable
Additional Term Loan Maturity Date.
23
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Term Loan Percentage": as to any Term Loan Lender at any time, the
percentage of the sum of the aggregate Additional Term Loan Commitments and the
aggregate Term Loans then constituted by the sum of its Additional Term Loan
Commitments and its Term Loans.
"Total Credit Percentage": as to any Lender at any time, the percentage
of the sum of the aggregate Revolving Credit Commitments, aggregate Additional
Term Loan Commitments and the aggregate Term Loans then constituted by the sum
of its Revolving Credit Commitment, Additional Term Loan Commitments and its
Term Loans (it being agreed that in the case of the termination or expiration of
the Revolving Credit Commitments, the aggregate Revolving Credit Commitment and
such Lender's Revolving Credit Commitment shall be determined by reference to
the Aggregate Outstanding Revolving Credit Extensions of Credit of all Lenders
and such Lender's Aggregate Outstanding Revolving Credit Extensions of Credit).
"Tranche": the collective reference to Eurodollar Loans the Interest
Periods with respect to all of which begin on the same date and end on the same
later date (whether or not such Revolving Credit Loans or Term Loans shall
originally have been made on the same day).
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an Alternate Base Rate Loan or a
Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
as the same may be amended from time to time.
"Unit": a Common Unit, a Preference Unit, or any other partnership
interest of a limited partner of the Borrower representing a fractional part of
the partnership interests of all limited partners of the Borrower, including the
Series B preference units, Series C units and Series F units issued by the
Borrower from time to time.
"Unrestricted Subsidiary": any Subsidiary of the Borrower (a) which
becomes a Subsidiary of the Borrower after the date hereof and, at the time it
becomes a Subsidiary, is designated as an Unrestricted Subsidiary, in each case
pursuant to a written notice from the Borrower to the Administrative Agent, (b)
which has acquired assets, including cash, from the Borrower or any Restricted
Subsidiary only as permitted pursuant to Section 8.6(a) and Section 8.8;
provided that the aggregate amount of non-cash assets that the Borrower and
Restricted Subsidiaries have contributed to Unrestricted Subsidiaries shall not
exceed $200,000,000, (c) which has no Indebtedness, Guarantee Obligations or
other obligations other than Non-Recourse Obligations and (d) which has not
guaranteed the Senior Subordinated Notes or the Senior Notes. Any Restricted
Subsidiary may be redesignated as an Unrestricted Subsidiary with the consent of
the Required Lenders as long as, after giving effect thereto, no Default or
Event of Default has occurred and is continuing and the Borrower would be in pro
forma compliance with the financial covenants in Section 8.1 after giving effect
thereto. Notwithstanding the foregoing, Arizona Storage, GTM Arizona and MIAGS
shall each be deemed to be an Unrestricted Subsidiary unless redesignated as a
Restricted Subsidiary in accordance with this Agreement.
24
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Withdrawal Liability": means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Day": any Business Day on which dealings in foreign currencies
and exchange between banks may be carried on in London, England.
SECTION 1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined
in this Agreement shall have the defined meanings when used in the
Notes or any certificate or other document made or delivered pursuant
hereto.
(b) The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes"
and "including" shall be deemed to be followed by the phrase "without
limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires
otherwise (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to
such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to
include such Person's successors and assigns (subject to any
restrictions on assignments set forth herein), (iii) the words
"herein", "hereof" and "hereunder", and words of similar import, shall
be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, and (iv) all references herein to
Articles, Sections, subsection, Exhibits, Annexes and Schedules shall
be construed to refer to Articles, Sections and subsections of, and
Exhibits, Annexes and Schedules to, this Agreement.
(c) Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if
the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
AMOUNT AND TERMS OF LOANS
SECTION 2.1 Loans and Commitments.
25
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(a) Subject to the terms and conditions hereof, each
Revolving Credit Lender severally agrees to make revolving credit loans
(the "Revolving Credit Loans") to the Borrower from time to time during
the Revolving Credit Commitment Period in an aggregate principal amount
at any one time outstanding which, when added to such Lender's
Revolving Credit Commitment Percentage of the then outstanding L/C
Obligations, does not exceed the amount of such Lender's Revolving
Credit Commitment, provided that no such Revolving Credit Loan shall be
made if, after giving effect thereto, Section 2.4 would be contravened.
During the Revolving Credit Commitment Period the Borrower may use the
Revolving Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof.
(b) The Initial Term Loan Lenders made, on the Initial
Term Loan Date, term loans (the "Initial Term Loans") to the Borrower
in an aggregate principal amount of $160,000,000. Once repaid, Initial
Term Loans may not be reborrowed.
(c) Subject to the terms and conditions hereof, from time
to time the Borrower, the Co-Borrower and the Administrative Agent may
enter into a Term Loan Addendum with additional financial institutions
or Lenders in order to permit the issuance of a series of additional
term loans (the "Additional Term Loans" and collectively, with the
Initial Term Loans, the "Term Loans") hereunder. Each such Term Loan
Addendum shall set forth the following terms with respect to such
series of Additional Term Loans: (i) the aggregate principal amount
thereof, (ii) the amortization thereof, if any, (iii) the Applicable
Margin, (iv) the Additional Term Loan Maturity Date, which date shall
be on or after the Initial Term Loan Maturity Date, (v) the Additional
Term Loan Closing Date, (vi) the Additional Term Loan Commitment for
each Additional Term Loan Lender party to such Term Loan Addendum and
(vii) the fees related thereto, if any; provided, however, that on any
date the aggregate principal amount of all series of Additional Term
Loans shall not exceed an amount equal to $500,000,000 less, as of the
date of such determination, the aggregate outstanding principal amount
of the Initial Term Loans. Subject to the terms and conditions hereof,
upon execution and delivery of the Term Loan Addendum as to Additional
Term Loans of any series, each Additional Term Loan Lender in respect
of such series severally agrees to make, on the Additional Term Loan
Closing Date for such series, Additional Term Loans to the Borrower in
an aggregate principal amount not to exceed such Additional Term Loan
Lender's Additional Term Loan Commitment for such series. Upon the
execution and delivery of each Term Loan Addendum by the Borrower, the
Co-Borrower, the Administrative Agent and the Additional Term Loan
Lenders in accordance with the terms of this Section 2.1(c), this
Agreement shall be supplemented and modified by the terms contained
therein and such Term Loan Addendum shall become a Loan Document
hereunder and no additional consent or approval shall be required from
the Required Lenders for the execution and effectiveness of such Term
Loan Addendum. Any series of Additional Term Loans made pursuant to
this Section 2.1(c) shall be in a minimum aggregate amount equal to
$10,000,000 or a whole multiple of $1,000,000 in excess thereof. No
Term Loan Lender shall be obligated to make any Additional Term Loans
unless it is a signatory to the Term Loan Addendum relating to such
series of Additional Term Loans.
26
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(d) In the event that the Applicable Margin set forth in
any Term Loan Addendum with respect to any series of Additional Term
Loans is more favorable or beneficial to the Term Loan Lenders for such
series of Additional Term Loans than the Applicable Margin with respect
to any Term Loans outstanding as of the effective date of such Term
Loan Addendum, the Applicable Margin with respect to all outstanding
Term Loans, without any further action on the part of the Borrower or
any further action or approval required of the Administrative Agent or
the Lenders, shall be deemed to be amended automatically to provide
that the Applicable Margin in such Term Loan Addendum shall apply to
all Term Loans outstanding immediately prior to the effective date of
such Term Loan Addendum.
(e) The Loans may from time to time be (i) Eurodollar
Loans, (ii) Alternate Base Rate Loans or (iii) a combination thereof,
as determined by the Borrower and notified to the Administrative Agent
in accordance with Sections 2.3 and 4.2, provided that no Loan shall be
made as a Eurodollar Loan after the day that is one month prior to the
Revolving Credit Termination Date or Term Loan Maturity Date, as
applicable.
(f) The revolving credit loans outstanding on the
Restatement Closing Date under the Existing Credit Agreement shall
continue to be outstanding and shall be continued as Revolving Credit
Loans under this Agreement.
SECTION 2.2. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay
to the Administrative Agent for the account of each (i) Revolving
Credit Lender the then unpaid principal amount of each Revolving Credit
Loan on the Revolving Credit Termination Date, (ii) Initial Term Loan
Lender (x) in semi-annual installments beginning on the date six months
following the Initial Term Loan Date and ending on the date six months
prior to the Initial Term Loan Maturity Date, an amount equal to
$2,500,000 for each installment and (y) the then unpaid principal
amount of each Initial Term Loan on the Initial Term Loan Maturity Date
and (iii) each Additional Term Loan Lender the amounts indicated in the
applicable Term Loan Addendum at such times as therein indicated.
(b) 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, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder; the
Type thereof; whether such Loan is a Term Loan or a Revolving Credit
Loan; for each Term Loan, whether such Term Loan is an Initial Term
Loan or Additional Term Loan; for each Additional Term Loan, the series
designation for such Additional Term Loan; and the Interest Period
applicable to each Loan made hereunder, (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 Administrative Agent hereunder for the account of the
Lenders and each Lender's share thereof.
27
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(d) The entries made in the accounts maintained pursuant
to paragraph (b) or (c) of this Section 2.2 shall be prima facie
evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Administrative
Agent to maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.
(e) Any Lender may request that the Revolving Credit
Loans or the Term Loans made by it be evidenced by a promissory note.
In such event, the Borrower shall prepare, execute and deliver to such
Lender a promissory note substantially in the form of Exhibit A-1
hereto (a "Revolving Credit Note"), or a promissory note substantially
in the form of Exhibit A-2 hereto (a "Initial Term Loan Note"), or a
promissory note substantially in the form of Exhibit A-3 hereto (a
"Additional Term Loan Note"), as applicable, payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its
registered assigns). Thereafter, the Loans evidenced by any such
promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 11.6) be represented by one or
more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.3 Procedure for Borrowing.
(a) The Borrower may borrow under the Revolving Credit
Commitments during the Revolving Credit Commitment Period on any
Working Day, if all or any part of the requested Revolving Credit Loans
are to be initially Eurodollar Loans, or on any Business Day,
otherwise, provided that the Borrower shall give the Administrative
Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, (i) three
Working Days prior to the requested Borrowing Date, if all or any part
of the requested Revolving Credit Loans are to be initially Eurodollar
Loans, or (ii) one Business Day prior to the requested Borrowing Date,
otherwise), specifying (w) the amount to be borrowed, (x) the requested
Borrowing Date, (y) whether the borrowing is to be of Eurodollar Loans,
Alternate Base Rate Loans or a combination thereof, and (z) if the
borrowing is to be entirely or partly of Eurodollar Loans, the
respective amounts of such Type of Revolving Credit Loan and the
respective lengths of the initial Interest Periods therefor. Each
borrowing under the Revolving Credit Commitments shall be in an amount
equal to i. in the case of Alternate Base Rate Loans, $500,000 or a
whole multiple thereof (or, if the then Available Revolving Credit
Commitments are less than $500,000, such lesser amount) and ii. in the
case of Eurodollar Loans, $1,000,000 or a whole multiple of $100,000 in
excess thereof. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Revolving Credit Lender
thereof. Each Revolving Credit Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for
the account of the Borrower at the office of the Administrative Agent
specified in Section 11.2 prior to 11:00 A.M., New York City time, on
the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the
account of the Borrower on the books of such office with the aggregate
of
28
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
the amounts made available to the Administrative Agent by the
Revolving Credit Lenders and in like funds as received by the
Administrative Agent.
(b) The Borrower may borrow under the Additional Term
Loan Commitments for a particular series of Additional Term Loans on
the applicable Additional Term Loan Closing Date, provided that the
Borrower shall give the Administrative Agent irrevocable notice (which
notice must be received by the Administrative Agent prior to 10:00
A.M., New York City time, on the applicable Additional Term Loan
Closing Date), specifying (x) the amount to be borrowed, (y) that such
Additional Term Loan shall be incurred on the Additional Term Loan
Closing Date and (z) that such borrowing is to be of Alternate Base
Rate Loans. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Additional Term Loan
Lender for such series of Additional Term Loans thereof. Each
Additional Term Loan Lender for such series of Additional Term Loans
will make the amount of its pro rata share of each borrowing available
to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in Section 11.2 prior to
2:00 P.M., New York City time, on the applicable Additional Term Loan
Closing Date in funds immediately available to the Administrative
Agent. Such borrowing will then be made available to the Borrower by
the Administrative Agent crediting the account of the Borrower on the
books of such office with the aggregate of the amounts made available
to the Administrative Agent by the Additional Term Loan Lenders for
such series of Additional Term Loans and in like funds as received by
the Administrative Agent.
SECTION 2.4 Limitations on Loans. No requested Revolving Credit
Loan shall be made if the sum of the Aggregate Outstanding Revolving Credit
Extensions of Credit (after giving effect to such requested Revolving Credit
Loan) would exceed the then aggregate Revolving Credit Commitments. The
aggregate amount of Additional Term Loans shall not exceed the aggregate of the
then-outstanding Additional Term Loan Commitments.
SECTION 2.5 Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the date hereof to the
Revolving Credit Termination Date, computed at the rate per annum equal to the
then Applicable Margin for the Commitment Fee as set forth under the column
heading "Applicable Margin for the Commitment Fee" of Annex I on the average
daily amount of the Available Revolving Credit Commitment of such Lender, during
the period for which payment is made, payable quarterly in arrears on the last
day of each March, June, September and December, commencing September 30, 2003,
and on the Revolving Credit Termination Date or such earlier date as the
Revolving Credit Commitments shall terminate as provided herein, commencing on
the first of such dates to occur after the date hereof.
SECTION 2.6 Termination or Reduction of Commitments.
(a) The Borrower shall have the right, upon not less than
five Business Days' notice to the Administrative Agent, to terminate
the Revolving Credit Commitments or, from time to time, to reduce the
amount of the Revolving Credit Commitments, provided that no such
termination or reduction shall be permitted if, after giving effect
thereto and to any prepayments of the Revolving Credit Loans made on
the effective date thereof, the
29
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
aggregate principal amount of the Revolving Credit Loans then
outstanding, when added to the then outstanding L/C Obligations, would
exceed the Revolving Credit Commitments then in effect. Any such
reduction shall be in an amount equal to $5,000,000 or a whole multiple
thereof.
(b) Any reduction of Revolving Credit Commitments
pursuant to subsection 2.6(a) above or 4.1(b) shall reduce permanently
the Revolving Credit Commitments then in effect.
(c) Any or all of the Additional Term Loan Commitments
for any series of Additional Term Loans remaining unused shall
automatically terminate at 5:00 P.M., New York City time, on the
applicable Additional Term Loan Closing Date.
SECTION 2.7 Extensions of Revolving Credit Termination Date.
The Borrower may, by irrevocable written notice to the Administrative Agent
received no later than 120 days prior to the Revolving Credit Termination Date
then in effect, request the Revolving Credit Lenders to extend such Revolving
Credit Termination Date to the date 364 days following such then scheduled
Revolving Credit Termination Date. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Revolving Credit Lender thereof.
Each Revolving Credit Lender may consent or refuse to consent to such change, in
its sole discretion, at any time on or prior to the date which is 60 days prior
to the Revolving Credit Termination Date then in effect. Upon the receipt by the
Administrative Agent of the written consent of each of the Revolving Credit
Lenders to such change in the Revolving Credit Termination Date on or prior to
2:00 p.m., New York time, on the date which is 60 days prior to the Revolving
Credit Termination Date then in effect, the Revolving Credit Termination Date
shall be changed to such subsequent date 364 days following the Revolving Credit
Termination Date then in effect, and the term "Revolving Credit Termination
Date" for all purposes of this Agreement and the other Loan Documents shall
thereupon be deemed to refer to such subsequent date. Any failure of a Revolving
Credit Lender to provide any such consent shall be deemed to be a refusal to
consent to such change.
SECTION 2.8 Co-Borrower's Obligations. The Co-Borrower is a party
hereto for purposes of providing co-extensive obligors (on a joint and several
basis) for the Obligations, although the parties acknowledge that the
Co-Borrower shall not have any substantial assets or other property. All
references in this Agreement and the other Loan Documents to the "Borrower"
shall be deemed to include a reference to the Co-Borrower, mutatis mutandis,
whether or not actual reference is made thereto; provided, that, without
limiting the generality of the foregoing, any obligations of any of the parties
hereto to the Borrower shall be deemed fulfilled with respect to the Co-Borrower
when fulfilled with respect to the Borrower.
ARTICLE III
LETTERS OF CREDIT
SECTION 3.1 Issuance of Letters of Credit.
(a) Subject to the terms and conditions hereof, the
Issuing Bank, in reliance on the agreements of the other Revolving
Credit Lenders set forth in subsection 3.3(a),
30
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
agrees to issue letters of credit (the "Letters of Credit") for the
account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by
the Issuing Bank; provided that the Issuing Bank shall have no
obligation to issue any Letter of Credit if, after giving effect to
such issuance, i. the L/C Obligations would exceed the L/C Commitment
or ii. the Available Revolving Credit Commitment would be less than
zero or iii. the Aggregate Outstanding Revolving Credit Extensions of
Credit would exceed the then aggregate Revolving Credit Commitments.
(b) Each Letter of Credit shall:
(i) be denominated in Dollars and shall be
either (A) a standby letter of credit issued to support
obligations of the Borrower or any Restricted Subsidiary,
contingent or otherwise, in connection with the working
capital and business needs of the Borrower or such Restricted
Subsidiary, as the case may be, in the ordinary course of
business, or (B) a commercial letter of credit issued in
respect of the purchase of goods or services by the Borrower
or any Restricted Subsidiary in the ordinary course of
business; and
(ii) expire no later than the earlier of (A) one
year after the date of issuance or renewal thereof in
accordance with the term of such Letter of Credit; provided
that any Letter of Credit with an expiry date occurring one
year after its issuance may be renewed for additional one-year
periods and (B) five Business Days prior to the Revolving
Credit Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the
State of New York.
(d) The Issuing Bank shall not at any time be obligated
to issue any Letter of Credit hereunder if such issuance would conflict
with, or cause the Issuing Bank or any L/C Participant to exceed any
limits imposed by, any applicable Requirement of Law.
(e) Letters of Credit issued under the Existing Credit
Agreement that are outstanding on the Restatement Closing Date shall be
deemed to be Letters of Credit issued under this Agreement on the
Restatement Closing Date.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The
Borrower may from time to time request that the Issuing Bank issue a Letter of
Credit by delivering to the Issuing Bank at its address for notices specified
herein an Application therefor, completed to the satisfaction of the Issuing
Bank, and such other certificates, documents and other papers and information as
the Issuing Bank may reasonably request. Upon receipt of any Application, the
Issuing Bank will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Bank be required to
issue any Letter of Credit earlier than three Business Days after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as
31
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
otherwise may be agreed by the Issuing Bank and the Borrower. The Issuing Bank
shall furnish a copy of such Letter of Credit to the Borrower promptly following
the issuance thereof.
SECTION 3.3 Participations and Payments in Respect of the Letters
of Credit.
(a) The Issuing Bank irrevocably agrees to grant and
hereby grants to each L/C Participant, and, to induce the Issuing Bank
to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the
Issuing Bank, on the terms and conditions hereinafter stated, for such
L/C Participant's own account and risk an undivided interest equal to
such L/C Participant's L/C Commitment Percentage in the Issuing Bank's
obligations and rights under each Letter of Credit issued hereunder and
the amount of each draft paid by the Issuing Bank thereunder.
(b) Each L/C Participant unconditionally and irrevocably
agrees with the Issuing Bank that, if a draft is paid under any Letter
of Credit for which the Issuing Bank is not reimbursed on the day of
such payment in full by the Borrower in immediately available funds,
such Revolving Credit Lender shall pay to the Issuing Bank upon demand
at the Issuing Bank's address for notices specified herein an amount
equal to such L/C Participant's L/C Commitment Percentage of the amount
of such draft, or any part thereof, which is not so reimbursed. Each
L/C Participant's obligation to make each such payment to the Issuing
Bank, and the Issuing Bank's right to receive the same, are absolute
and unconditional and shall not be affected by any circumstance
whatsoever, including, without limiting the effect of the foregoing,
the occurrence or continuance of a Default or Event of Default or the
failure of any other L/C Participant to make any payment under this
Section 3.3, and each L/C Participant further agrees that each such
payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each L/C Participant shall indemnify and hold
harmless the Issuing Bank from and against any and all losses,
liabilities (including, without limitation, liabilities for penalties),
actions, suits, judgments, demands, costs and expenses (including
reasonable attorneys' fees) resulting from any failure of such L/C
Participant to provide, or from any delay in providing, the Issuing
Bank with such L/C Participant's L/C Commitment Percentage of such
payment in accordance with the provisions of this Section 3.3, but no
L/C Participant shall be so liable for any such failure on the part of
any other L/C Participant.
(c) If any amount required to be paid by any L/C
Participant to the Issuing Bank pursuant to subsection 3.3(a) in
respect of any unreimbursed portion of any payment made by the Issuing
Bank under any Letter of Credit is paid to the Issuing Bank within two
Business Days after the date such payment is due, such L/C Participant
shall pay to the Issuing Bank on demand an amount equal to the product
of (i) such amount, times (ii) the daily average Federal funds rate, as
quoted by the Issuing Bank, during the period from and including the
date such payment is required to the date on which such payment is
immediately available to the Issuing Bank, times (iii) a fraction the
numerator of which is the number of days that elapse during such period
and the denominator of which is 360. If any such amount required to be
paid by any L/C Participant pursuant to subsection 3.3(a) is not in
fact made available to the Issuing Bank by such L/C
32
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Participant within two Business Days after the date such payment is
due, the Issuing Bank shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated
from such due date at the rate per annum applicable to Alternate Base
Rate Loans hereunder. A certificate of the Issuing Bank submitted to
any L/C Participant with respect to any amounts owing under this
Section 3.3 shall be conclusive in the absence of manifest error.
(d) Whenever, at any time after the Issuing Bank has made
payment under any Letter of Credit and has received from any L/C
Participant its pro rata share of such payment in accordance with
subsection 3.3(a), the Issuing Bank receives any payment related to
such Letter of Credit (whether directly from the Borrower or otherwise,
including proceeds of collateral applied thereto by the Issuing Bank),
or any payment of interest on account thereof, the Issuing Bank will
distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by
the Issuing Bank shall be required to be returned by the Issuing Bank,
such L/C Participant shall return to the Issuing Bank the portion
thereof previously distributed by the Issuing Bank to it.
SECTION 3.4 Fees, Commissions and Other Charges.
(a) The Borrower shall pay to the Administrative Agent,
for the account of the Issuing Bank, a fronting fee with respect to
each Letter of Credit for the period from and including the date of
issuance thereof to but not including the Expiry Date thereof, computed
at the rate of 0.15% per annum on the average daily amount of the
undrawn and unexpired amount of such Letter of Credit. Such fronting
fee shall be payable quarterly in advance on the date of issuance of
each Letter of Credit and on the last day of each March, June,
September and December thereafter, commencing September 30, 2003. Such
fee shall be nonrefundable.
(b) The Borrower shall pay to the Administrative Agent,
for the account of the Issuing Bank and the L/C Participants, a letter
of credit commission with respect to each Letter of Credit for the
period from and including the date of issuance thereof to but not
including the Expiry Date thereof, computed at the rate of the then
Applicable Margin for Eurodollar Loans per annum on the average daily
amount of the undrawn and unexpired amount of such Letter of Credit.
Such commission shall be payable to the L/C Participants to be shared
ratably among them in accordance with their respective L/C Commitment
Percentages. Such commission shall be payable quarterly in advance on
the date of issuance of each Letter of Credit and on the last day of
each March, June, September and December thereafter, commencing
September 30, 2003. Such fee shall be nonrefundable.
(c) In addition to the foregoing fees and commissions,
the Borrower shall pay or reimburse the Issuing Bank for such normal
and customary costs and expenses as are incurred or charged by the
Issuing Bank in issuing, effecting payment under, amending or otherwise
administering any Letter of Credit.
33
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(d) The Administrative Agent shall, promptly following
its receipt thereof, distribute to the Issuing Bank and the L/C
Participants all fees and commissions received by the Administrative
Agent for their respective accounts pursuant to this Section 3.4.
(e) The fees and commissions described in the preceding
paragraphs (a) and (b) shall be based on a 360 day year. If any amounts
in the preceding paragraphs (a) and (b) shall be payable on a day that
is not a Working Day, such amount shall be extended to the next
succeeding Working Day unless the result of such extension would be to
carry such amount into another calendar month in which event such
amount shall be payable on the immediately preceding Working Day.
SECTION 3.5 Reimbursement Obligation of the Borrower.
(a) The Borrower agrees to reimburse the Issuing Bank on
each date on which the Issuing Bank notifies the Borrower of the date
and amount of a draft presented under any Letter of Credit and paid by
the Issuing Bank for the amount of (i) such draft so paid and (ii) any
taxes, fees, charges or other costs or expenses incurred by the Issuing
Bank in connection with such payment. Each such payment shall be made
to the Issuing Bank at its address for notices specified herein in
lawful money of the United States of America and in immediately
available funds.
(b) Unless otherwise notified by the Borrower, each
drawing under a Letter of Credit shall constitute a request by the
Borrower to the Administrative Agent for a borrowing pursuant to
Section 2.3 of Revolving Credit Loans which are Alternate Base Rate
Loans in the amount of such drawing, subject to satisfaction of the
conditions set forth in Section 6.2. The Borrowing Date with respect to
such borrowing shall be the date of such drawing.
(c) Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this Section 3.5 from the date
such amounts become payable (whether at stated maturity, by
acceleration or otherwise) until payment in full at the rate which
would be payable on any outstanding Revolving Credit Loans which are
Alternate Base Rate Loans which were then overdue.
SECTION 3.6 Obligations Absolute.
(a) The Borrower's obligations under this Article III
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which
the Borrower may have or have had against the Issuing Bank or any
beneficiary of any Letter of Credit.
(b) The Borrower also agrees with the Issuing Bank that
the Issuing Bank shall not be responsible for, and the Borrower's
Reimbursement Obligations under subsection 3.5(a) shall not be affected
by, among other things, (i) the validity or genuineness of documents or
of any endorsements thereon, even though such documents shall in fact
prove to be invalid, fraudulent or forged, or (ii) any dispute between
or among the Borrower and any beneficiary of any Letter of Credit or
any other party to
34
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
which such Letter of Credit may be transferred or (iii) any claims
whatsoever of the Borrower against any beneficiary of any Letter of
Credit or any such transferee.
(c) The Issuing Bank shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with any
Letter of Credit, except for errors or omissions caused by the Issuing
Bank's gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted
by the Issuing Bank under or in connection with any Letter of Credit or
the related drafts or documents, if done in the absence of gross
negligence of willful misconduct and in accordance with the standards
of care specified in the Uniform Commercial Code of the State of New
York, shall be binding on the Borrower and shall not result in any
liability of the Issuing Bank to the Borrower.
SECTION 3.7 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing Bank shall
promptly notify the Borrower of the date and amount thereof. The responsibility
of the Issuing Bank to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
SECTION 3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Article III, the provisions of this Article III shall apply.
ARTICLE IV
GENERAL PROVISIONS FOR LOANS
SECTION 4.1 Optional and Mandatory Prepayments.
(a) The Borrower may on the last day of any Interest
Period with respect thereto (or at other times with the payment of
applicable breakage costs), in the case of Eurodollar Loans, or at any
time and from time to time, in the case of Alternate Base Rate Loans,
prepay the Revolving Credit Loans, the Initial Term Loans, the
Additional Term Loans of any series, or any combination thereof, in
whole or in part, without premium or penalty (except as set forth in
Section 4.1(e) below), upon at least four Business Days' irrevocable
notice to the Administrative Agent, specifying (i) the date and amount
of prepayment, (ii) whether the prepayment is of Eurodollar Loans,
Alternate Base Rate Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each, (iii) whether the
prepayment is of Revolving Credit Loans, Initial Term Loans, the
Additional Term Loans of any series, or any combination thereof, and,
if of a combination thereof, the amount allocable to each and (iv) if
the prepayment includes Term Loans, the amount allocable, if any, to
the Initial Term Loans or the Additional Term Loans of each series.
Upon receipt of any such notice the Administrative Agent shall promptly
notify each Applicable Lender thereof. If any such notice is given, the
35
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
amount specified in such notice shall be due and payable on the date
specified therein, with accrued interest to such date on the amount
prepaid in the case of prepayment of Term Loans. Partial prepayments
(x) of Revolving Credit Loans shall be in an aggregate principal amount
of $1,000,000 or a whole multiple thereof and (y) of any Term Loans
shall be in an aggregate principal amount of $5,000,000 or a whole
multiple thereof.
(b) If on any date (including any date on which a
certificate of a Responsible Officer of the Borrower is delivered
pursuant to subsection 7.2(b)) the sum of the Aggregate Outstanding
Revolving Credit Extensions of Credit then outstanding exceeds the then
aggregate Revolving Credit Commitments, then, without notice or demand,
the Borrower shall promptly prepay the Revolving Credit Loans in an
amount equal to such excess. The Borrower may, subject to the terms and
conditions of this Agreement, reborrow the amount of any prepayment
made under this subsection 4.1(b).
(c) The application of any prepayment of Initial Term
Loans or Additional Term Loans of any series pursuant to subsection
4.1(a) shall be made to the remaining installments of such Initial Term
Loans or Additional Term Loans of such series, as applicable, in the
inverse order of their maturity.
(d) The application of any prepayment pursuant to
subsection 4.1(b) shall be made first to Alternate Base Rate Loans and
second to Eurodollar Loans. Each prepayment of the Loans under
subsection 4.1(b) (other than Alternate Base Rate Loans) shall be
accompanied by accrued interest to the date of such prepayment on the
amount prepaid.
(e) With respect to any optional prepayment made by the
Borrower in connection with the Initial Term Loans on or before the
first anniversary of the Initial Term Loan Date, the Borrower shall pay
to the Administrative Agent, for the account of the applicable Initial
Term Loan Lenders, a prepayment in an amount (including principal and
premium) equal to 101% of the aggregate principal amount of the Initial
Term Loans to be prepaid as set forth pursuant to the notice of
prepayment provided to the Administrative Agent pursuant to Section
4.1(a) above plus all accrued, unpaid interest to the date of such
prepayment.
SECTION 4.2 Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert
Eurodollar Loans to Alternate Base Rate Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable
notice of such election, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period
with respect thereto. The Borrower may elect from time to time to
convert Alternate Base Rate Loans to Eurodollar Loans by giving the
Administrative Agent at least three Working Days' prior irrevocable
notice of such election. Any such notice of conversion to Eurodollar
Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Applicable Lender
thereof. All or any part of outstanding Eurodollar Loans and Alternate
Base Rate Loans may be converted as provided herein, provided that (i)
no
36
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Loan may be converted into a Eurodollar Loan when any Default or Event
of Default has occurred and is continuing and the Administrative Agent
has or the Required Lenders have determined that such a conversion is
not appropriate, (ii) any such conversion may only be made if, after
giving effect thereto, Section 4.3 shall not have been contravened and
(iii) no Loan may be converted into a Eurodollar Loan after the date
that is one month prior to the Revolving Credit Termination Date or
applicable Term Loan Maturity Date, as applicable.
(b) Any Eurodollar Loans may be continued as such upon
the expiration of the then current Interest Period with respect thereto
by the Borrower giving notice to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period"
set forth in Section 1.1, of the length of the next Interest Period to
be applicable to such Loans, provided that no Eurodollar Loan may be
continued as such (i) when any Default or Event of Default has occurred
and is continuing and the Administrative Agent has or the Required
Lenders have determined that such a continuation is not appropriate,
(ii) if, after giving effect thereto, Section 4.3 would be contravened
or (iii) after the date that is one month prior to the Revolving Credit
Termination Date or applicable Term Loan Maturity Date, as applicable,
and provided, further, that if the Borrower shall fail to give any
required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically converted to Alternate Base Rate Loans on
the last day of such then expiring Interest Period.
SECTION 4.3 Minimum Amounts of Tranches. All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, (a) the aggregate principal
amount of the Loans comprising each Tranche shall be equal to $2,000,000 or a
whole multiple of $100,000 in excess thereof, and (b) the number of Tranches
then outstanding shall not exceed eight.
SECTION 4.4 Interest Rates and Payment Dates.
(a) Each Eurodollar Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum
equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each Alternate Base Rate Loan shall bear interest at
a rate per annum equal to the Alternate Base Rate plus the Applicable
Margin.
(c) If all or a portion of (i) the principal amount of
any Loan, (ii) any interest payable thereon or (iii) any commitment fee
or other amount payable hereunder shall not be paid when due (whether
at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is the higher of
(A) the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this Section 4.4 plus 2% and (B) the Alternate
Base Rate plus 1%, in each case from the date of such non-payment until
such amount is paid in full (as well after as before judgment).
37
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c)
of this Section 4.4 shall be payable from time to time on demand.
(e) With respect to any Initial Term Loan, whether an
Alternate Base Rate Loan or a Eurodollar Loan, in the event that, on
any date, (i) the Borrower's senior, long-term unsecured debt rating
issued by S&P is less than BB+ and (ii) the Borrower's senior,
long-term unsecured debt rating issued by ▇▇▇▇▇'▇ is less than Ba2 or
the Borrower's senior secured debt rating issued by ▇▇▇▇▇'▇ is less
than Ba1, then on such date the Applicable Margin with respect to
Initial Term Loans that are Alternate Base Rate Loans shall be 3.25%
per annum and the Applicable Margin for Initial Term Loans that are
Eurodollar Loans shall be 4.50% per annum, which adjustment to the
Applicable Margin for Initial Term Loans shall become effective on the
date that such event occurs and the increase shall continue until the
date upon which (x) the Borrower's senior, long-term unsecured debt
rating issued by S&P is equal to or greater than BB+ and (y) the
Borrower's senior, long-term unsecured debt rating issued by ▇▇▇▇▇'▇ is
equal to or greater than Ba2 or the Borrower's senior secured debt
rating issued by ▇▇▇▇▇'▇ is equal to or greater than Ba1, on which date
the Applicable Margin for Initial Term Loans will return to 2.25% per
annum for Alternate Base Rate Loans and 3.50% per annum for Eurodollar
Loans.
SECTION 4.5 Computation of Interest and Fees.
(a) Interest on Alternate Base Rate Loans, commitment
fees and interest on overdue interest, commitment fees and other
amounts payable hereunder shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed.
Interest on Eurodollar Loans shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the Lenders of
each determination of a Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a change in the Alternate Base Rate or
the Eurocurrency Reserve Requirements shall become effective as of the
opening of business on the day on which such change becomes effective.
The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the
request of the Borrower, deliver to the Borrower a statement showing
the quotations used by the Administrative Agent in determining any
interest rate pursuant to subsection 4.4(a).
SECTION 4.6 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances
38
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Administrative Agent shall have received notice
from the Required Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Alternate Base Rate Loans, (y) any Loans that
were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be converted to or continued as Alternate Base Rate Loans
and (z) any outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to Alternate Base Rate Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans shall be made
or continued as such, nor shall the Borrower have the right to convert Loans to
Eurodollar Loans.
SECTION 4.7 Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Revolving
Credit Lenders hereunder, each payment by the Borrower on account of
any commitment fee payable pursuant to Section 2.5 hereunder and any
reduction of the Revolving Credit Commitments of the Lenders shall be
made pro rata according to the respective Revolving Credit Commitment
Percentages of the Revolving Credit Lenders. Each borrowing by the
Borrower from the Term Loan Lenders hereunder with respect to the
Additional Term Loans of any series shall be made pro rata according to
the respective Additional Term Loan Percentages applicable to such
Additional Term Loans of such Term Loan Lenders. Each payment
(including each prepayment) by the Borrower on account of principal of
and interest on (i) the Initial Term Loans or Additional Term Loans of
any series shall be made pro rata according to the respective
outstanding principal amounts of the Initial Terms Loans or the
Additional Term Loans of such series then held by the Term Loan
Lenders, or (ii) the Revolving Credit Loans shall be made pro rata
according to the respective outstanding principal amounts of the
Revolving Credit Loans then held by the Revolving Credit Lenders. All
payments (including prepayments) to be made by the Borrower hereunder
and under the Notes, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be
made prior to 12:00 Noon, New York City time, on the due date thereof
to the Administrative Agent, for the account of the Lenders, at the
Administrative Agent's office specified in Section 11.2, in Dollars and
in immediately available funds. The Administrative Agent shall
distribute such payments to the Applicable Lenders promptly upon
receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during
such extension and with respect to payments of
39
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
fees, such fees accruing during such extension shall be payable on the
next succeeding Business Day. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a Working Day, the maturity
thereof shall be extended to the next succeeding Working Day unless the
result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the
immediately preceding Working Day.
(b) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a Borrowing Date that such
Lender will not make the amount that would constitute its Applicable
Percentage of the borrowing on such date available to the
Administrative Agent, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent on
such Borrowing Date, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount.
If such amount is made available to the Administrative Agent on a date
after such Borrowing Date, such Lender shall pay to the Administrative
Agent on demand an amount equal to the product of (i) the daily average
Federal Funds Effective Rate during such period, times (ii) the amount
of such Lender's Applicable Percentage of such borrowing, times (iii) a
fraction the numerator of which is the number of days that elapse from
and including such Borrowing Date to the date on which such Lender's
Applicable Percentage of such borrowing shall have become immediately
available to the Administrative Agent and the denominator of which is
360. A certificate of the Administrative Agent submitted to any Lender
with respect to any amounts owing under this Section 4.7 shall be
conclusive in the absence of manifest error. If such Lender's
Applicable Percentage of such borrowing is not in fact made available
to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall be entitled to
recover such amount with interest thereon at the rate per annum
applicable to Alternate Base Rate Loans hereunder, on demand, from the
Borrower.
SECTION 4.8 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Alternate Base Rate Loans to Eurodollar
Loans shall forthwith be cancelled and (b) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Alternate Base
Rate Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then current Interest Period with respect thereto, the Borrower shall pay
to such Lender such amounts, if any, as may be required pursuant to Section
4.11.
SECTION 4.9 Requirements of Law.
(a) If the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof or compliance by
any Lender with any request or directive (whether or not having the
force of law) from any central bank or other Governmental Authority
made subsequent to the date hereof:
40
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(i) shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, any Note, any
Letter of Credit, any Application or any Eurodollar Loan made
by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for taxes covered by Section
4.10 and changes in the rate of tax on the overall net income
of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by,
any office of such Lender which is not otherwise included in
the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in the
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section 4.9, it shall promptly
notify the Borrower, through the Administrative Agent, of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this Section 4.9 submitted by such Lender, through the
Administrative Agent, to the Borrower shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Notes and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption
of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or
directive regarding capital adequacy (whether or not having the force
of law) from any Governmental Authority made subsequent to the date
hereof does or shall have the effect of reducing the rate of return on
such Lender's or such corporation's capital as a consequence of its
obligations hereunder or under any Letter of Credit to a level below
that which such Lender or such corporation could have achieved but for
such change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an
amount deemed by such Lender to be material, then from time to time,
after submission by such Lender to the Borrower (with a copy to the
Administrative Agent) of a written request therefor, the Borrower shall
pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
SECTION 4.10 Taxes.
(a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of
and without deduction for any Indemnified Taxes or Other Taxes;
provided that if the Borrower shall be required to deduct any
41
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Indemnified Taxes or Other Taxes from such payments, then (i) the sum
payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 4.10) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable
law.
(c) The Borrower shall indemnify the Administrative
Agent, each Lender and the Issuing Bank, within 10 days after written
demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, on or with respect to any payment by or on
account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section 4.10) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or the Issuing Bank, or by the Administrative
Agent on its own behalf or on behalf of a Lender or the Issuing Bank,
shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such
payment or other evidence of such payment reasonably satisfactory to
the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction
in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
(f) If the Administrative Agent or a Lender determines,
in its sole discretion, that it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to
this Section 4.10, it shall pay over such refund to the Borrower (but
only to the extent of indemnity payments made, or additional amounts
paid, by the Borrower under this Section 4.10 with respect to the Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental
42
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Authority with respect to such refund); provided, that the Borrower,
upon the request of the Administrative Agent or such Lender, agrees to
repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to
such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its
tax returns (or any other information relating to its taxes which it
deems confidential) to the Borrower or any other Person.
(g) The agreements in this Section 4.10 shall survive the
termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder. Each Person that shall become a Lender
or a Participant pursuant to Section 11.6 shall, upon the effectiveness
of the related transfer, be required to provide all of the forms and
statements required pursuant to this Section 4.10, provided that in the
case of a Participant such Participant shall furnish all such required
forms and statements to the Lender from which the related participation
shall have been purchased.
SECTION 4.11 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by the Borrower in
payment when due of the principal amount of or interest on any Eurodollar Loan,
(b) default by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (c)
default by the Borrower in making any prepayment after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (d) the
making of a prepayment of Eurodollar Loans on a day which is not the last day of
an Interest Period with respect thereto, including, without limitation, in each
case, any such loss or expense arising from the reemployment of funds obtained
by it or from fees payable to terminate the deposits from which such funds were
obtained. This covenant shall survive the termination of this Agreement and the
payment of the Notes and all other amounts payable hereunder.
SECTION 4.12 Lenders Obligation to Mitigate. Each Lender agrees
that, as promptly as practicable after it becomes aware that it has been or will
be affected by the occurrence of an event or the existence of a condition
described under Section 4.8 or subsection 4.9(a) or 4.10(a), it will, to the
extent not inconsistent with such Lender's internal policies, use its best
efforts (a) to provide written notice to the Borrower describing such condition
and the anticipated effect thereof and (b) to make, fund or maintain the
affected Eurodollar Loans of such Lender through another lending office of such
Lender if as a result thereof the additional moneys which would otherwise be
required to be paid in respect of such Loans pursuant to Section 4.8 or
subsection 4.9(a) or 4.10(a) would be materially reduced or the illegality or
other adverse circumstances which would otherwise require such payment pursuant
to Section 4.8 or subsection 4.9(a) or 4.10(a) would cease to exist and if, as
determined by such Lender, in its sole discretion, the making, funding or
maintaining of such Loans through such other lending office would not otherwise
adversely affect such Loans or such Lender. The Borrower hereby agrees to pay
all reasonable expenses incurred by any Lender in utilizing another lending
office of such Lender pursuant to this Section 4.12.
43
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 4.13 Acquisition; Disposition; Redesignation. If the
Borrower or any of its Restricted Subsidiaries acquires any Acquired Business or
makes any sale or disposition of any assets or property having a value in excess
of $20,000,000 permitted by this Agreement or there is a Redesignation of any
Subsidiary during any Calculation Period, Consolidated EBITDA, Consolidated
Tangible Net Worth, Consolidated Interest Expense, Consolidated Total Senior
Indebtedness and Consolidated Total Indebtedness for such Calculation Period
will be determined on a pro forma basis as if such Acquired Business were
acquired, such assets or property was sold or disposed of or such Redesignation
occurred, on the first day thereof. Such pro forma adjustments will be subject
to delivery to the Administrative Agent of a certificate of a Responsible
Officer of the Borrower. Such certificate may be delivered at any time with
respect to any Redesignation and at any time after the last day of the first
fiscal quarter of the Borrower to end after the related acquisition date with
respect to any Acquired Business or the related disposition date with respect to
any such sale or disposition. Each such certificate shall be accompanied by
supporting information and calculations with respect to each such Acquired
Business, sale or disposition or Redesignation and such other information as any
Lender, through the Administrative Agent, may reasonably request. For purposes
of determining satisfaction of Section 6.2(c), effect shall be given on the date
of determination to pro forma adjustments as described in this Section 4.13 with
respect to any Acquired Business that has been acquired as of such date.
SECTION 4.14 Redesignated Senior Indebtedness. The Borrower and
the Co-Borrower hereby designate all Obligations of the Borrower and its
Subsidiaries (including the Co-Borrower) under this Agreement and the other Loan
Documents as Designated Senior Debt, as such term is defined in the Senior
Subordinated Note Indentures.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower hereby represents and warrants to the Administrative Agent
and each Lender that:
SECTION 5.1 Financial Condition. The consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at December 31, 2002, and
the related consolidated statements of operations and of cash flows for the
fiscal year ended December 31, 2002, reported on by PricewaterhouseCoopers LLP,
copies of which have heretofore been furnished to each Lender, present fairly
the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the year then ended. The consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at June 30,
2003 and the related consolidated statements of operations and of cash flows for
the six months ended June 30, 2003, copies of which have heretofore been
furnished to each Lender, present fairly the consolidated financial condition of
the Borrower and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated cash flows for
the six-month period then ended. All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by such
accountants and as disclosed therein and, with respect to the June 30, 2003
44
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
financial statements, for the absence of footnotes and year-end adjustments).
Except as set forth on Schedule 5.1 or as permitted by subsection 8.4(c),
neither the Borrower nor any of its consolidated Subsidiaries had, at June 30,
2003, any material Guarantee Obligation, contingent liability or liability for
taxes, or any long-term lease or unusual forward or long-term commitment,
including any interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto.
Except as set forth on Schedule 5.1, during the period from June 30, 2003 to and
including the Restatement Closing Date there has been no sale, transfer or other
disposition by the Borrower or any of its Restricted Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Borrower and
its consolidated Subsidiaries at June 30, 2003.
SECTION 5.2 No Change. Since December 31, 2002 there has been no
development or event having, or that could reasonably be expected to have, a
Material Adverse Effect.
SECTION 5.3 Existence; Compliance with Law. Each of the Borrower
and its Restricted Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign corporation, limited
partnership or limited liability company, as the case may be, and, where
applicable, in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and is in compliance with all Requirements of Law
except, with respect to (a) - (d) above, to the extent that the failure to
comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
SECTION 5.4 Power; Authorization; Enforceable Obligations.
(a) The Borrower has the power and authority, and the
legal right, to make, deliver and perform this Agreement, the Notes and
the other Loan Documents to which it is a party and to borrow hereunder
and has taken all necessary action to authorize the borrowings on the
terms and conditions of this Agreement and the Notes and to authorize
the execution, delivery and performance of this Agreement, the Notes
and the other Loan Documents to which it is a party. No consent or
authorization of, filing with, notice to or other act by or in respect
of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or
the Notes or the Applications. This Agreement has been, and each Note
and the Applications will be, duly executed and delivered on behalf of
the Borrower. This Agreement constitutes, and each Note and each other
Loan Document to which the Borrower is a party when executed and
delivered will constitute, a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or
at law).
45
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(b) Each of the Subsidiary Guarantors has the power and
authority, and the legal right, to make, deliver and perform the Loan
Documents to which it is a party and has taken all necessary action to
authorize the execution, delivery and performance of the Loan Documents
to which it is a party. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority
or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which such Subsidiary Guarantor
is a party. Each of the Loan Documents to which such Subsidiary
Guarantor is a party will be duly executed and delivered on behalf of
such Subsidiary Guarantor. Each Loan Document to which such Subsidiary
Guarantor is a party will, when executed and delivered, constitute a
legal, valid and binding obligation of such Subsidiary Guarantor
enforceable against such Subsidiary Guarantor in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or at law).
SECTION 5.5 No Legal Bar. The execution, delivery and performance
of this Agreement, the Notes and the other Loan Documents, the borrowings
hereunder and the use of the proceeds thereof will not violate any Requirement
of Law or material Contractual Obligation of any Loan Party, or, to the best
knowledge of the Borrower, any Joint Venture of which any Capital Stock is
directly owned by any Loan Party, and will not result in, or require, the
creation or imposition of any Lien on any properties or revenues of any Loan
Party pursuant to any such Requirement of Law or Contractual Obligation.
SECTION 5.6 No Material Litigation. Except as set forth on
Schedule 5.6, no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its Subsidiaries, or,
to the best knowledge of the Borrower, any Joint Venture of which any Capital
Stock is owned directly by any Loan Party, or against any of its or their
respective properties or revenues (a) with respect to this Agreement, the Notes
or any of the other Loan Documents or any of the transactions contemplated
hereby or thereby or (b) which could reasonably be expected to have a Material
Adverse Effect.
SECTION 5.7 No Default. Neither any Loan Party nor, to the best
knowledge of the Borrower, any Joint Venture of which any Capital Stock is
directly owned by any Loan Party, is in default under or with respect to any of
its Contractual Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
SECTION 5.8 Ownership of Property; Liens. The Loan Parties have
good record and marketable title in fee simple to, or a valid leasehold interest
in, all their real property necessary for their operations as then conducted,
taken as a whole, and good title to, or a valid leasehold interest in, all their
other property necessary for their operations as then conducted, taken as a
whole, and none of such property necessary for their operations as then
conducted, taken as a whole, is subject to any Lien, except as permitted by this
Agreement.
46
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 5.9 Intellectual Property. The Borrower and each of its
Restricted Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). The use of such Intellectual Property by the Borrower
and its Restricted Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.10 Taxes. (a) Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports which, to the
knowledge of the Borrower, are required to be filed and has paid all Taxes
required to have been paid by it, except (i) Taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such
Subsidiary, as applicable, has set aside on its books adequate reserves or (ii)
to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect; (b) no Tax Lien has been filed, and (c) to the
knowledge of the Borrower, no claim is being asserted, with respect to any such
Tax.
SECTION 5.11 Federal Regulations. No part of the proceeds of any
Loans will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
Regulations of such Board of Governors. If requested by any Lender or the
Administrative Agent, the Borrower will furnish to the Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
SECTION 5.12 ERISA. No ERISA Event has occurred or is reasonably
expected to occur, that when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
have a Material Adverse Effect.
SECTION 5.13 Investment Company Act; Other Regulations. The
Borrower is not an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. The Borrower is not subject to regulation under any Federal or State
statute or regulation which limits its ability to incur Indebtedness.
SECTION 5.14 Subsidiaries. As of the Restatement Closing Date, (a)
the Persons set forth on Schedule 5.14 constitute all of the Subsidiaries of the
Borrower, all Joint Ventures in which the Borrower owns any interest, and the
percentage of the equity interests owned by the Borrower in each such Person as
of such date and (b) except for Arizona Storage, GTM Arizona and MIAGS, each of
the Subsidiaries listed on Schedule 5.14 is a Restricted Subsidiary.
SECTION 5.15 Purpose of Loans, Letters of Credit. The proceeds of
the Revolving Credit Loans shall be used by the Borrower (a) to refinance
Indebtedness under the Existing Credit Agreement and (b) for general corporate
purposes. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the
47
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Regulations of the Board of Governors of the Federal Reserve System, including
Regulations T, U, and X. The Letters of Credit shall be used for the purposes
described in subsection 3.1(b). The proceeds of any series of Additional Term
Loans shall be used for general corporate purposes, including the refinancing of
any existing Indebtedness of the Borrower.
SECTION 5.16 Environmental Matters. Except as set forth on
Schedule 5.16:
(a) To the best knowledge of the Borrower, the Properties
do not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i) constitute
or constituted a violation of, or (ii) give rise to liability under,
any Environmental Law, except in either case insofar as such violation
or liability, or any aggregation thereof, could not reasonably be
expected to result in the payment by a Loan Party of a Material
Environmental Amount.
(b) To the best knowledge of the Borrower, the Properties
and all operations at the Properties are in compliance, and have in the
period commencing six months prior to the date hereof been in
compliance, in all material respects with all applicable Environmental
Laws, and there is no contamination at, under or about the Properties
or violation of any Environmental Law with respect to the Properties or
the business operated by the Borrower or any of its Subsidiaries or any
Joint Venture (the "Business") which could materially interfere with
the continued operation of any material Property or which could
reasonably be expected to have a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries nor,
to the best knowledge of the Borrower, any Joint Venture has received
any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Properties or the
Business, nor does the Borrower have knowledge or reason to believe
that any such notice will be received or is being threatened except
insofar as such notice or threatened notice, or any aggregation
thereof, does not involve a matter or matters that is or could
reasonably be expected to result in the payment by a Loan Party of a
Material Environmental Amount.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be
expected to give rise to liability under, any applicable Environmental
Law except insofar as any such violation or liability referred to in
this paragraph, or any aggregation thereof, could not reasonably be
expected to result in the payment by a Loan Party of a Material
Environmental Amount.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the Borrower,
threatened, under any Environmental Law to which the Borrower or any
Subsidiary, or, to the best knowledge of the Borrower, any Joint
Venture, is or will be named as a party with respect to the Properties
or the
48
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business except insofar as such
proceeding, action, decree, order or other requirement, or any
aggregation thereof, could not reasonably be expected to result by a
Loan Party in the payment of a Material Environmental Amount.
(f) To the best knowledge of the Borrower, there has been
no release or threat of release of Materials of Environmental Concern
at or from the Properties, or arising from or related to the operations
of the Borrower or any Subsidiary or any Joint Venture, in connection
with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws except insofar as any such violation
or liability referred to in this paragraph, or any aggregation thereof,
could not reasonably be expected to result in the payment by a Loan
Party of a Material Environmental Amount.
(g) There are no Liens arising under or pursuant to any
Environmental Laws on any of the real properties or properties owned or
leased by any Loan Party, and no government actions have been taken or
are in process which could subject any of such properties to such Liens
and no Loan Party would be required to place any notice or restriction
relating to the presence of Hazardous Materials at any properties owned
by it in any deed to such properties, except, in each case, for Liens
permitted by this Agreement.
(h) There have been no environmental investigations,
studies, audits, tests, reviews or other analyses conducted by or which
are in the possession of any Loan Party in relation to any properties
or facility now or previously owned or leased by any Loan Party that
indicate facts that reasonably could be expected to cause a Material
Adverse Effect and have not been made available to the Lenders.
SECTION 5.17 Accuracy and Completeness of Information. The factual
statements contained in the financial statements (other than financial
projections) referred to in Section 5.1, the Loan Documents, the Confidential
Information Memorandum dated July 2003 and any other certificates or documents
furnished or to be furnished (but only, with respect to documents furnished
after the Restatement Closing Date, documents provided pursuant to Section
7.2(d)) to the Administrative Agent or the Lenders from time to time in
connection with this Agreement, taken as a whole, do not and will not, to the
knowledge of the Borrower, as of the date when made, contain any untrue
statement of a material fact or omit to state a material fact (other than
omissions that pertain to matters of a general economic nature, matters
generally known to the Administrative Agent or matters of public knowledge that
generally affect any of the industry segments included in the businesses of the
Loan Parties or any Joint Venture) necessary in order to make the statements
contained therein not misleading in light of the circumstances in which the same
were made, such knowledge qualification being given only with respect to factual
statements made by Persons other than the Borrower, and all financial
projections contained in any such document or certificate have been prepared in
good faith based upon assumptions believed by the Borrower to be reasonable.
49
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 5.18 Security Documents. The Pledge Agreements are each
effective to create in favor of the Collateral Agent, for the ratable benefit of
the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, a legal, valid and enforceable security
interest in the respective Interests described therein and proceeds thereof, and
the Pledge Agreements each constitute a fully perfected first Lien on, and
security interest in, all right, title and interest of the Borrower and the
Subsidiary Guarantors, respectively, in such Interests and Pledged Certificates
described therein and in proceeds thereof superior in right to any other Person
(subject to the Liens permitted pursuant to Section 8.3). Each Security
Agreement is effective to create in favor of the Collateral Agent, for the
ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, a legal, valid and
enforceable security interest in the respective collateral described therein and
proceeds thereof, and the Security Agreements constitute fully perfected, first
priority Liens on, and security interests in (subject to the Liens permitted
pursuant to Section 8.3), all right, title and interest of the Borrower and the
Subsidiary Guarantors in such collateral and the proceeds thereof superior in
right to any other Person other than Liens permitted hereby.
SECTION 5.19 Partnership Agreement.
(a) As of the Restatement Closing Date, the
Administrative Agent has received a complete copy of the Partnership
Agreement, and all amendments thereto, waivers, relating thereto and
other side letters or agreements affecting the terms thereof, which has
not been amended or supplemented, nor have any of the provisions
thereof been waived, except (i) pursuant to a written agreement or
instrument which has heretofore been consented to in writing by the
Required Lenders or (ii) in accordance with the provisions of this
Agreement.
(b) The Partnership Agreement has been duly executed and
delivered, to the Borrower's knowledge, by each of the other parties
thereto, is in full force and effect and constitutes a legal, valid and
binding enforceable obligation of each party thereto. The General
Partner is not in default in the performance of any of its obligations
thereunder in any material respect that would give any other party to
such Partnership Agreement a right to terminate such Partnership
Agreement.
SECTION 5.20 Senior Debt. The Obligations constitute "Senior Debt"
of the Borrower under and as defined in the Senior Subordinated Note Indentures.
The obligations of each Subsidiary Guarantor under the Loan Documents to which
it is a party constitute "Guarantor Senior Debt" of such Subsidiary Guarantor
under and as defined in the Senior Subordinated Note Indentures.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1 Conditions to Initial Extensions of Revolving Credit.
The agreement of each Revolving Credit Lender to make the initial extension of
revolving credit requested to be made by it was subject to the satisfaction,
immediately prior to or concurrently with the making of such extension of credit
on the Restatement Closing Date, of the following conditions precedent:
50
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly
authorized officer of the Borrower and the Co-Borrower, (ii) for the
account of each Revolving Credit Lender which requests the same, a
Revolving Credit Note executed and delivered by a duly authorized
officer of the Borrower and the Co-Borrower, and (iii) a confirmation
of each of the Guarantee and Security Documents, executed and delivered
by a duly authorized officer of each Loan Party thereto and
satisfactory in form to the Administrative Agent.
(b) Related Documents. The Administrative Agent shall
have received such documents and certificates as the Administrative
Agent or it counsel may reasonably request relating to the organization
and existence of the Borrower and the other Loan Parties, the
authorization of the Loans and any other legal matter relating to any
Loan Party, this Agreement, the other Loan Documents or the
transactions contemplated by this Agreement, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(c) Borrowing Certificate. The Administrative Agent shall
have received a certificate of the Borrower, dated as of the
Restatement Closing Date, substantially in the form of Exhibit I
hereto, with appropriate insertions and attachments, satisfactory in
form and substance to the Administrative Agent, executed by the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Treasurer or any Vice President of the Borrower and the
Secretary or any Assistant Secretary of the Borrower.
(d) Fees. The Administrative Agent and each Revolving
Credit Lender shall have received the fees to be received on the
Restatement Closing Date as separately agreed to between each of them
and the Borrower.
(e) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Revolving Credit Lender, the
executed legal opinions of Akin Gump, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel
to the Borrower and the other Loan Parties, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
in-house counsel to the Borrower and the other Loan Parties, each
addressed to the Administrative Agent and each Revolving Credit Lender
in form and substance reasonably satisfactory to the Administrative
Agent.
(f) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates, if any, representing the shares,
limited partner interests, and limited liability company interests
pledged pursuant to each of the Pledge Agreements, together with an
undated stock power for each such certificate executed in blank by a
duly authorized officer of the pledgor thereof. Each Instruction to
Register Pledge referred to in such Pledge Agreements shall have been
delivered to the Borrower and its applicable Subsidiaries, and each
Initial Transaction Statement referred to in such Pledge Agreements
shall have been delivered to the Administrative Agent, as are required
by any of the Pledge Agreements.
(g) Actions to Perfect Liens. The Administrative Agent
shall have received evidence in form and substance satisfactory to it
that all filings, recordings, registrations and other actions,
including, without limitation, the filing of duly completed financing
51
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
statements on form UCC-1 and amendments to financing statements on form
UCC-3, necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Liens created by the Security Documents shall
have been completed.
(h) Good Standing Certificates. The Administrative Agent
shall have received copies of certificates dated as of a recent date
from the Secretary of State or other appropriate authority of such
jurisdiction, evidencing the good standing of the Borrower and each
other Loan Party in each state where the ownership, lease or operation
of property or the conduct of business requires it to qualify as a
foreign corporation, partnership or limited liability company, as the
case may be.
(i) Litigation, Etc. No suit, action, investigation,
inquiry or other proceeding (including the enactment or promulgation of
a statute or rule) by or before any arbitrator or any Governmental
Authority shall be pending and no preliminary or permanent injunction
or order by a state or federal court shall have been entered (i) in
connection with any Loan Document or any of the transactions
contemplated hereby or thereby or (ii) which, in any such case could
reasonably be expected to have a Material Adverse Effect.
(j) Consents. All material governmental and third party
approvals (or arrangements satisfactory to the Revolving Credit Lenders
in lieu of such approvals) necessary or advisable in connection with
the transactions and financings contemplated hereby and by the other
Loan Documents and the continuing operations of the Borrowers and the
Restricted Subsidiaries shall have been obtained and be in full force
and effect.
(k) Material Adverse Effect. No event which has or could
reasonably be expected to have a Material Adverse Effect shall have
occurred.
(l) Financial Statements. The Administrative Agent shall
have received and shall have made available to the Lenders in an
electronic format (posted on Intralinks or other similar service),
complete copies of the financial statements described in Section 5.1.
(m) Accrued Interest and Fees. The Borrower shall have
paid to the Administrative Agent all unpaid interest, commitment fees
and letter of credit commissions accrued under the Existing Credit
Agreement through the Restatement Closing Date.
(n) Reallocation of Revolving Credit Loans; Assignments.
The Revolving Credit Lenders shall have reallocated the Revolving
Credit Loans outstanding under the Existing Credit Agreement
immediately prior to the Restatement Closing Date, and the Revolving
Credit Lenders and the lenders under this Agreement shall be deemed to
have made such assignments of the Revolving Credit Commitments among
themselves, as directed by the Administrative Agent in order to reflect
the Revolving Credit Commitments under this Agreement.
(o) Additional Matters. All corporate, company,
partnership and other proceedings, and all documents, instruments and
other legal matters in connection with
52
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
the transactions contemplated by this Agreement and the other Loan
Documents shall be reasonably satisfactory in form and substance to the
Revolving Credit Lenders, and the Revolving Credit Lenders shall have
received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or
thereby as any of them shall reasonably request.
SECTION 6.2 Conditions to Each Extension of Revolving Credit. The
agreement of each Revolving Credit Lender to make any extension of revolving
credit (including the renewal or extension of a Letter of Credit) requested to
be made by it on any date (including, without limitation, its initial extension
of revolving credit) is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and the other Loan
Parties in or pursuant to the Loan Documents shall be true and correct
in all material respects on and as of such date as if made on and as of
such date (unless such representations and warranties are stated to
relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of
such earlier date).
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Financial Covenants. At the time of and immediately
after giving effect to such extension of credit, the Borrower shall be
in compliance on a pro forma basis with Section 8.1.
Each borrowing of a Revolving Credit Loan by the Borrower hereunder,
and each issuance or renewal or extension of a Letter of Credit
hereunder, shall constitute a representation and warranty by the
Borrower as of the date of such extension of credit that the conditions
contained in this Section 6.2 have been satisfied; provided that with
respect to paragraph (c) above, such representation and warranty shall
be made by the Borrower in good faith based upon assumptions believed
by the Borrower to be reasonable.
SECTION 6.3 Conditions Precedent to Making the Additional Term
Loans. The agreement of each Additional Term Loan Lender to make on any
Additional Term Loan Closing Date any Additional Term Loans pursuant to a Term
Loan Addendum is subject to the satisfaction, immediately prior to or
concurrently with the making of such Additional Term Loans, of the following
conditions precedent:
(a) Term Loan Addendum. The Administrative Agent shall
have received (i) a Term Loan Addendum, executed and delivered by a
duly authorized officer of the Borrower and the Co-Borrower, (ii) for
the account of each Additional Term Loan Lender which requests the
same, an Additional Term Loan Note executed and delivered by a duly
authorized officer of the Borrower, (iii) a confirmation of each of the
Guarantees and Security Documents substantially in the form of Exhibit
C hereto,
53
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
executed and delivered by a duly authorized officer of each Loan Party
and (iv) such additional security documents reasonably requested by the
Administrative Agent.
(b) Borrowing Certificate. The Administrative Agent shall
have received a certificate of the Borrower, dated the Additional Term
Loan Closing Date, substantially in the form of Exhibit I hereto, with
appropriate insertions and attachments, satisfactory in form and
substance to the Administrative Agent, executed by the Chief Executive
Officer, Chief Operating Officer, Chief Financial Officer, President,
Treasurer or any Vice President of the Borrower and the Secretary or
any Assistant Secretary of the Borrower.
(c) Related Documents. The Administrative Agent shall
have received such documents and certificates as the Administrative
Agent or it counsel may reasonably request relating to the organization
and existence of the Borrower and the other Loan Parties, the
authorization of the Loans and any other legal matter relating to any
Loan Party, this Agreement, the applicable Term Loan Addendum, the
other Loan Documents or the transactions contemplated by this Agreement
and such Term Loan Addendum, all in form and substance satisfactory to
the Administrative Agent and its counsel.
(d) Fees. The Borrower shall have paid to (i) the
Administrative Agent and each Additional Term Loan Lender the fees to
be received on the closing date for such series of Additional Term
Loans, as separately agreed to between each of them and the Borrower
and (ii) the Administrative Agent all unpaid interest, commitment fees
and letter of credit commissions accrued under this Agreement through
the closing date for such series of Additional Term Loans.
(e) Good Standing Certificates. The Administrative Agent
shall have received copies of certificates dated as of a recent date
from the Secretary of State or other appropriate authority of such
jurisdiction, evidencing the good standing of the Borrower and each
other Loan Party in each state where the ownership, lease or operation
of property or the conduct of business requires it to qualify as a
foreign corporation, partnership or limited liability company, as the
case may be.
(f) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(g) Additional Matters. The Administrative Agent shall
have received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated by the
applicable Term Loan Addendum or by the other Loan Documents as it
shall reasonably request.
ARTICLE VII
AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments or Additional Term Loan Commitments remain in effect, any Term Loan,
Note or any Letter of Credit remains outstanding and unpaid or any other amount
is owing to any Lender or the
54
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Administrative Agent hereunder, the Borrower shall and (except in the case of
delivery of financial information, reports, and notices) shall cause each of its
Restricted Subsidiaries and, with respect to Section 7.11, each of its
Unrestricted Subsidiaries, to:
SECTION 7.1 Financial Statements. Furnish to the Administrative
Agent, with copies for the Lenders and the Collateral Agent:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such
year, setting forth in each case in comparative form the figures for
the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by PricewaterhouseCoopers LLP or other independent
certified public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of
each fiscal year of the Borrower, the unaudited consolidated and
consolidating balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated and consolidating statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
when considered in relation to the consolidated and consolidating
financial statements of the Borrower and its consolidated Subsidiaries
(subject to normal year-end audit adjustments);
(c) concurrently with the delivery of the financial
statements for any fiscal year described in paragraph (a) of this
Section 7.1, the unaudited consolidating balance sheets of the Borrower
and its consolidated Subsidiaries as at the end of such fiscal year and
the related unaudited consolidating statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
when considered in relation to the consolidating financial statements
of the Borrower and its consolidated Subsidiaries;
(d) as soon as available, but in any event within 120
days after the end of each fiscal year of each Joint Venture for which
the Borrower is required to file an audited balance sheet with the
Securities and Exchange Commission, a copy of such audited balance
sheet of such Joint Venture, as at the end of such year and the related
unaudited statements of income and retained earnings and of cash flows
of such Joint Venture, for such year, setting forth in each case in a
comparative form the figures for the previous year, reported on without
a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by independent certified public
accountants of nationally recognized standing; and
55
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(e) upon the request of any Lender, the unaudited balance
sheet of each Joint Venture whose distributions to Loan Parties or
Consolidated EBITDA (mutatis mutandis) constituted more than 15% of
Consolidated EBITDA for the previous quarter, as at the end of each
such quarter of such Joint Venture, and the related unaudited
consolidated statements of income and retained earnings and of cash
flows of such Joint Venture, for such month and the portion of the
fiscal year through the end of such month, setting forth in each case
in comparative form the figures for the previous year, in each case
received by the Borrower or any of its Subsidiaries during such fiscal
quarter;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and (except for any
financial statements of a Joint Venture) in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein and, with respect to unaudited interim financial statements,
for the absence of footnotes and year-end adjustments).
SECTION 7.2 Certificates; Other Information. Furnish to the
Administrative Agent, with copies for the Lenders and the Collateral Agent:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a), a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default relating to
accounting issues, except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 7.1(a) and 7.1(b), a certificate
of a Responsible Officer of the Borrower, (i) stating that, to the best
of such Officer's knowledge, the Borrower and its Subsidiaries during
such period have observed or performed all of their respective
covenants and other agreements, and satisfied every condition,
contained in this Agreement, the Notes and the other Loan Documents to
be observed, performed or satisfied by them, and that such Officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate, and (ii) setting forth in reasonable
detail the calculation of the covenants set forth in Section 8.1 for
the Calculation Period ending on the last day of such fiscal quarter;
(c) not later than thirty days after the beginning of
each fiscal year of the Borrower, a copy of the projections by the
Borrower of the operating budget and cash flow budget of the Borrower
for such fiscal year, such projections to be accompanied by a
certificate of a Responsible Officer to the effect that such
projections have been prepared on the basis of sound financial planning
practice and that such Officer has no reason to believe they are
incorrect or misleading in any material respect;
(d) within five days after the same are sent, copies of
all financial statements and reports which the Borrower sends to the
holders of its Capital Stock, and within five days after the same are
filed, copies of all financial statements and reports which the
56
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Borrower may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(e) upon the request of any Lender, and to the extent the
same have been received by the Borrower or any of its Subsidiaries, a
copy of the projections by each Joint Venture whose distributions to
Loan Parties or Consolidated EBITDA (mutatis mutandis) constituted more
than 15% of Consolidated EBITDA for the previous quarter and any of the
interests in which is directly owned by the Borrower or a Restricted
Subsidiary, as the case may be, of the operating budget and cash flow
budget of such Joint Venture for the succeeding fiscal year; and
(f) promptly, such additional financial and other
information concerning any Loan Party or (to the extent the Borrower or
any of its Restricted Subsidiaries has the legal right to provide such
information) any Unrestricted Subsidiary or Joint Venture as any Lender
may from time to time reasonably request.
SECTION 7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be, and except
where the failure to so pay, discharge or satisfy such obligations could not
reasonably be expected to have a Material Adverse Effect.
SECTION 7.4 Conduct of Business and Maintenance of Existence.
Except as permitted by this Agreement, preserve, renew and keep in full force
and effect its entity existence; take all reasonable action to maintain all
rights, privileges and franchises material to the Business; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
SECTION 7.5 Maintenance of Property; Insurance. (a) Keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted and (b) maintain, with
financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are customarily maintained by companies engaged in the
same or similar businesses operating in the same or similar locations; and
furnish to any Lender, upon written request, full information as to the
insurance carried.
SECTION 7.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and accounts in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Borrower and its Restricted Subsidiaries with officers and employees of the
Borrower and its Restricted Subsidiaries and with its independent certified
public accountants.
57
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 7.7 Notices. Promptly give notice to the Administrative
Agent, the Collateral Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit, or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any of its Subsidiaries that, if
adversely determined, could reasonably be expected to have a Material
Adverse Effect;
(c) as soon as possible and in any event within 30 days
after the Borrower knows or has reason to know thereof, the occurrence
of any ERISA Event that, alone or together with any other ERISA Events
that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
$35,000,000; and
(d) any development or event which could reasonably be
expected to have a Material Adverse Effect or cause the incurrence of
an environmental liability of any Loan Party in excess of the Material
Environmental Amount.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
SECTION 7.8 Environmental Laws.
(a) Comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain
and comply with and maintain, and ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by
applicable Environmental Laws, in each case except to the extent that
failure to do so could not reasonably be expected to have a Material
Adverse Effect;
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply with all lawful
orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being
contested in good faith by appropriate proceedings and, if adversely
determined, could not reasonably be expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless the
Administrative Agent, the Collateral Agent and the Lenders, and their
respective employees, agents, officers and directors, from and against
any and all claims, demands, penalties, fines, liabilities, settlements
and damages, and reasonable costs and expenses, of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in
any way relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the
Borrower, any of its Subsidiaries or the Properties, or any orders,
requirements or demands of Governmental Authorities related thereto,
including
58
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, REGARDLESS OF
WHETHER OR NOT SUCH INDEMNIFIED LIABILITIES ARE IN ANY WAY OR TO ANY
EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF
THE PARTY SEEKING INDEMNIFICATION THEREFORE; provided that the Borrower
shall have no obligation hereunder to the extent that any of the
foregoing arise out of the gross negligence or willful misconduct of
the party seeking indemnification therefor. The agreements in this
paragraph shall survive repayment of the Notes and all other amounts
payable hereunder.
SECTION 7.9 Maintenance of Liens of the Security Documents.
Promptly, upon the request of the Collateral Agent, at the Borrower's expense,
execute, acknowledge and deliver, or cause the execution, acknowledgement and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Security Documents or
otherwise deemed by the Collateral Agent necessary or desirable for the
continued validity, perfection and priority of the Liens on the collateral
covered thereby.
SECTION 7.10 Pledge of After-Acquired Property.
(a) With respect to any right, title or interest of any
Loan Party in any Capital Stock or other property of a type subject to
the Security Documents and acquired after the Restatement Closing Date,
promptly grant or cause to be granted to the Collateral Agent, for the
ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, a first Lien
of record on all such Capital Stock and property (other than such
Capital Stock and property subject to (i) prior Liens in existence at
the time of acquisition thereof and not created in anticipation of such
acquisition, in which case the Lien of the Lenders shall be of such
priority as is permitted by such prior Lien and (ii) other Liens that
are expressly permitted by this Agreement), upon terms substantially
the same as those set forth in the Security Documents, and satisfy the
conditions with respect thereto set forth in Section 6.1. The Borrower,
at its own expense, shall execute, acknowledge and deliver, or cause
its Restricted Subsidiaries to execute, acknowledge and deliver, and
thereafter register, file or record, or cause its Restricted
Subsidiaries to register, file or record, in an appropriate
governmental office, any document or instrument deemed by the
Collateral Agent to be necessary or desirable for the creation and
perfection of the foregoing Liens and deliver Uniform Commercial Code
searches in jurisdictions requested by the Collateral Agent with
respect to such Capital Stock and other property and legal opinions
requested by the Collateral Agent and shall pay, or cause to be paid,
all taxes and fees related to such registration, filing or recording.
(b) With respect to any new Restricted Subsidiary created
or acquired after the Restatement Closing Date by the Borrower,
promptly cause such Restricted Subsidiary to execute and deliver to the
Administrative Agent the Subsidiaries Guarantee, and, if requested by
the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to such Restricted Subsidiary and the Subsidiaries
Guarantee, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
59
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) Notwithstanding anything to the contrary in any Loan
Document, neither the Borrower nor any Restricted Subsidiary shall be
obligated to (i) pledge under the Loan Documents any of its equity
interest in any Joint Venture if such pledge is prohibited by any
Contractual Obligation or (ii) pledge under the Loan Documents any of
its real property except to the extent of any fixtures as and to the
extent specified in the Security Agreements.
(d) Notwithstanding anything to the contrary in any Loan
Document, if the Borrower or any Restricted Subsidiary has pledged its
interest in any Joint Venture and the Borrower or such Restricted
Subsidiary desires to make a contribution of or investment with such
interest to or in a second Joint Venture in accordance with subsection
8.8(f), the Lien held by the Lenders upon such interest shall terminate
as long as the interest held by the Borrower or Restricted Subsidiary
in the second Joint Venture shall be subject to a Lien under the Loan
Documents in accordance with subsection 8.8(f) unless otherwise agreed
by the Required Lenders.
SECTION 7.11 Agreements Respecting Unrestricted Subsidiaries.
(a) Operate each Unrestricted Subsidiary in such a manner
as to make it apparent to all creditors of such Unrestricted Subsidiary
that such Unrestricted Subsidiary is a legal entity separate and
distinct from the Borrower or any Restricted Subsidiary and as such is
solely responsible for its debts.
(b) In connection with any Indebtedness or Guarantee
Obligations incurred by each Unrestricted Subsidiary, (i) incur such
Indebtedness only on a basis which does not permit, allow or provide
for recourse to the Borrower or any Restricted Subsidiary, and (ii)
incur any such Indebtedness or Guarantee Obligations in excess of
$500,000 only under a loan agreement, note, lease, instrument or other
agreement that expressly states that such Indebtedness is being
incurred by such Unrestricted Subsidiary on a basis which is
non-recourse to the Borrower and its Restricted Subsidiaries, provided
that no such agreement, note, lease, instrument or other agreement
shall be required to include such statement if such agreement, note,
lease, instrument or other agreement was in effect on the date such
Subsidiary became an Unrestricted Subsidiary.
(c) Notwithstanding any provision of the Loan Documents
to the contrary, the Borrower and the Restricted Subsidiaries may incur
Guarantee Obligations consisting of guarantees of performance
obligations of Unrestricted Subsidiaries as long as such guarantees do
not constitute guarantees of payment.
SECTION 7.12 Amendments to Partnership Agreement. Deliver to the
Administrative Agent any amendments to the Partnership Agreement, written
waivers and consents relating thereto and other side letters or agreements in
writing affecting the terms thereof.
ARTICLE VIII
NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments or any Additional Term Loan Commitments remain in effect, any Loan,
Note or Letter of Credit
60
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
remains outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder, the Borrower shall not, and (except with respect
to Section 8.1) shall not permit any of its Restricted Subsidiaries to, directly
or indirectly:
SECTION 8.1 Financial Condition Covenants.
(a) Interest Coverage Ratio. Permit for any Calculation
Period the ratio of (i) Consolidated EBITDA for such period to (ii)
Consolidated Interest Expense for such period to be less than 2.0 to
1.0;
(b) Senior Leverage Ratio. Permit, on the last day of any
fiscal quarter of the Borrower, the ratio of (x) Consolidated Total
Senior Indebtedness at such date to (y) the Consolidated EBITDA for the
Calculation Period ending on such date to exceed 3.25 to 1.0; or
(c) Leverage Ratio. Permit, on the last day of any fiscal
quarter of the Borrower, the ratio of (x) the Consolidated Total
Indebtedness at such date to (y) the Consolidated EBITDA for the
Calculation Period ending on such date to exceed 5.25 to 1.0.
SECTION 8.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, unless (a) no Default shall have occurred and
be continuing at the time of or immediately after giving effect to the creation,
incurrence, assumption or existence of such Indebtedness and (b) immediately
after giving effect to the creation, incurrence or assumption of such
Indebtedness and the application of the proceeds thereof, the Borrower would be
in pro forma compliance with the covenants set forth in Section 8.1.
SECTION 8.3 Limitation on Liens. Create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the books of
the Borrower or its Restricted Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
61
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which,
in the aggregate, are not substantial in amount and which do not in any
case materially detract from the value of the property subject thereto
or materially interfere with the ordinary conduct of the business of
the Borrower or such Restricted Subsidiary;
(f) Liens created pursuant to construction, operating,
farmout and maintenance agreements, space lease agreements, Joint
Venture Charters and related documents (to the extent requiring a Lien
on the equity interest of the Borrower or any Restricted Subsidiary, as
the case may be, in the applicable Joint Venture is required
thereunder), division orders, contracts for sale, transportation or
exchange of oil and natural gas, unitization and pooling declarations
and agreements, area of mutual interest agreements and other similar
agreements, in each case having ordinary and customary terms and
entered into in the ordinary course of business by the Borrower and its
Restricted Subsidiaries;
(g) additional Liens securing Indebtedness and other
obligations not to exceed $10,000,000 at any one time outstanding;
(h) the Borrower and its Restricted Subsidiaries may
pledge on a non-recourse basis (i) their equity interest in Gateway to
secure Indebtedness of Gateway under the ▇▇▇▇▇ ▇▇▇▇ Financing Documents
and (ii) their equity interest in Cameron Highway to secure
Indebtedness of Cameron Highway under the Cameron Highway Financing
Documents;
(i) Liens on the Collateral securing the Guarantee
Obligations permitted by Section 8.4(e) on a pari passu basis with the
Liens on the Collateral securing the Obligations and guarantees
thereof, subject to the terms and provisions of the Intercreditor
Agreement;
(j) Liens created pursuant to the Loan Documents;
(k) Liens securing Indebtedness of any other Person
existing at the time such other Person is merged with or into or became
a Subsidiary of the Borrower or any Restricted Subsidiary or to which
any asset is subject existing at the time such asset is acquired by the
Borrower or any Restricted Subsidiary; provided that (A) such Liens are
not created in contemplation of or in connection with i. any Person
being merged with or into or becoming a Subsidiary of the Borrower or
any Restricted Subsidiary as described in clause (i) above, or ii. any
asset being acquired by the Borrower or any Restricted Subsidiary as
described in clause (ii) above, as the case may be, (B) such Liens
shall secure only those obligations which such Liens secure on the date
on which i. such Person merges into or becomes a Subsidiary of the
Borrower or any Restricted Subsidiary or ii. such asset is acquired by
the Borrower or any Restricted Subsidiary, as the case may be, and any
refinancing, refunding or replacement of such obligations (provided
that such refinancing, refunding or replacement does not result in an
increase in the amount of such obligations), and (C) such Liens shall
not apply to any property or assets of the Borrower or any of its
Subsidiaries or any Restricted Subsidiary other than property or assets
as to
62
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
which a Lien has been granted prior to the date on which i. such Person
merges into or becomes a Subsidiary or the Borrower or any Restricted
Subsidiary or ii. such asset is acquired by the Borrower or any
Restricted Subsidiary, as the case may be, and the proceeds thereof;
(l) Liens securing sale/leaseback transactions permitted
by Section 8.11;
(m) Liens securing Indebtedness or other obligations of
(i) any Restricted Subsidiary to the Borrower or Co-Borrower or (ii)
any Restricted Subsidiary to any other Restricted Subsidiary; or
(n) In connection with its obligations pursuant to any
construction management agreement, operating agreement or other similar
agreement entered into with a Joint Venture, each Restricted Subsidiary
may grant, on a non-recourse basis, a Lien on any of its easements,
rights of way, access permits or other similar rights located in the
Gulf of Mexico that have been granted to such Restricted Subsidiary by
the Minerals Management Service of the United States Department of the
Interior.
This Section 8.3 shall not restrict the ability of any Joint Venture or
Unrestricted Subsidiary to create, incur, assume or suffer to exist any Lien on
any of its property.
SECTION 8.4 Limitation on Guarantee Obligations. Create, incur,
assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations created pursuant to the Loan
Documents in respect of the Obligations;
(b) Guarantee Obligations of any Loan Party with respect
to the Indebtedness of any Unrestricted Subsidiary or Joint Venture,
incurred after the Restatement Closing Date in an aggregate amount not
to exceed $100,000,000 at any one time outstanding;
(c) Guarantee Obligations of the Borrower and its
Restricted Subsidiaries supporting obligations of the Borrower and/or
Restricted Subsidiaries;
(d) Guarantee Obligations of any Subsidiary Guarantor in
respect of the Senior Subordinated Notes, provided that such Guarantee
Obligations are subordinated to such Subsidiary Guarantor's obligations
under the Loan Documents to the same extent as the obligations of the
Borrower in respect of the Senior Subordinated Notes;
(e) Guarantee Obligations, in addition to those described
in clauses (f) and (g) of this Section 8.4, of up to $22,500,000 in the
aggregate incurred pursuant to the ▇▇▇▇▇ ▇▇▇▇ Clawback;
(f) Guarantee Obligations of any Subsidiary Guarantor in
respect of the Senior Notes; and
(g) Guarantee Obligations permitted by Section 7.11(c).
63
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 8.5 Limitations on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or make any material change in its
present method of conducting business, except:
(a) any Restricted Subsidiary may be merged or
consolidated with or into the Borrower (as long as the Borrower is the
surviving entity) or any one or more Restricted Subsidiaries which is a
Subsidiary Guarantor (provided that, if any of such Restricted
Subsidiaries is not wholly owned by the Borrower, the Restricted
Subsidiary or Restricted Subsidiaries in which the Borrower owns the
greatest interest shall be the continuing or surviving corporation);
(b) any Restricted Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other Restricted
Subsidiary which is a Subsidiary Guarantor and in which, if not wholly
owned by the Borrower, the Borrower owns at least the same percentage
interests as the Borrower owns in the transferor Restricted Subsidiary;
and
(c) the Borrower or any Restricted Subsidiary may enter
into a merger, consolidation or share exchange with any other Person so
long as:
(i) such transaction is permitted under Section
8.8;
(ii) such transaction shall be effected in such
manner so that (A) if the Borrower is a party to such
transaction, the Borrower is the surviving entity and (B)
otherwise, the Restricted Subsidiary shall be the continuing
or surviving entity or the continuing or surviving entity
shall become a Restricted Subsidiary;
(iii) at the time of such acquisition and after
giving effect thereto, no Default or Event of Default shall
have occurred and shall be continuing; and
(d) solely to effect any transaction permitted by
subsection 8.6(b).
The transactions permitted under this Section 8.5 shall be permitted
notwithstanding anything to the contrary in subsection 4(j) of the Borrower
Pledge Agreement and subsection 4(j) of the Subsidiary Pledge Agreement.
SECTION 8.6 Limitation on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or assets
(including receivables and leasehold interests), whether now owned or hereafter
acquired, except:
(a) as permitted by Section 8.5;
(b) as long as no Default or Event of Default has
occurred and is continuing or would result therefrom the Borrower and
the Restricted Subsidiaries may sell or otherwise dispose of property
having an aggregate value not in excess of $200,000,000;
64
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) the Borrower and its Restricted Subsidiaries may
enter into customary farmout and operating agreements and customary
agreements for exchanges of working interests;
(d) the Borrower and its Restricted Subsidiaries may sell
or otherwise dispose of any or all of their oil and gas interests;
(e) the Borrower and its Restricted Subsidiaries may
during the period commencing on the Restatement Closing Date to and
including the Revolving Credit Termination Date exchange assets with El
Paso (or a Subsidiary thereof) having a fair market value not to exceed
$50,000,000 in the aggregate for other assets as long as (i) each such
exchange is for fair market value and is on fair and reasonable terms
no less favorable to the Borrower or the applicable Restricted
Subsidiary, as the case may be, than it would obtain in an arm's length
transaction and (ii) the assets received in each such exchange become
Collateral to the extent required by the Loan Documents;
(f) the Borrower and its Restricted Subsidiaries may sell
or otherwise dispose of any Unrestricted Subsidiary;
(g) as permitted by Section 8.8; and
(h) the Borrower and its Restricted Subsidiaries may sell
or otherwise dispose of any equity interest in Cameron Highway,
provided that following any such sale or other disposition, the
Borrower and its Restricted Subsidiaries, in the aggregate, continue to
hold at least 30% of the outstanding equity interest in Cameron
Highway.
The transactions permitted under this Section 8.6 shall be permitted
notwithstanding anything to the contrary in subsection 4(j) of the Borrower
Pledge Agreement and subsection 4(j) of the Subsidiary Pledge Agreement.
SECTION 8.7 Limitation on Dividends. Declare or pay any dividend
or distribution on (other than dividends, including splits, payable solely in
non-mandatorily redeemable Capital Stock or mandatorily redeemable Capital Stock
that does not require redemption prior to the first anniversary of the Revolving
Credit Termination Date), or make any payment on account of, or set apart assets
for a sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower or any warrants or options to purchase any such Capital Stock,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Restricted Subsidiary (such declarations,
payments, setting apart, purchases, redemptions, defeasances, retirements,
acquisitions and distributions being herein called "Restricted Payments"),
except that:
(a) as long as no Default or Event of Default has
occurred and is continuing or would result therefrom, the Borrower may
make Restricted Payments (i) as permitted under the Partnership
Agreement on its Capital Stock, including its Series F Units and the
General Partnership Interest, or (ii) out of the net cash proceeds of
an issuance of Common Units or out of the net cash proceeds of an
issuance of Senior Notes or Senior Subordinated Notes, in each case
occurring within 120 days of such Restricted Payment;
65
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(b) the Borrower may exchange or convert Series C Units
for or into Common Units in accordance with the terms of the Series C
Units;
(c) the Borrower may issue Common Units in exchange for
Senior Notes, Senior Subordinated Notes or other debt securities in
connection with the conversion of any Series F Units in accordance with
the terms of the Series F Units; and
(d) acquisitions by officers, directors and other
representatives of the Borrower or the General Partner of Capital Stock
of the Borrower through cashless exercise of options pursuant to a
common unit option plan will not constitute a Restricted Payment.
SECTION 8.8 Limitation on Investments, Loans and Advances. Make
any advance, loan, extension of credit or capital contribution to, or purchase
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) capital contributions, loans or other investments
made by the Borrower to any Restricted Subsidiary which is a Subsidiary
Guarantor and by any Restricted Subsidiary to the Borrower or any
Restricted Subsidiary which is a Subsidiary Guarantor;
(d) capital contributions, loans or other investments by
Subsidiaries of the Borrower or any Joint Venture to or in the Borrower
or any Restricted Subsidiary, provided that no Default or Event of
Default shall have occurred and be continuing, or would occur as a
result of such investment;
(e) other non-hostile acquisitions of equity securities
of, or assets constituting a business unit of, any Person (an "Acquired
Business"), provided that (i) immediately prior to and after giving
effect to any such acquisition, no Default or Event of Default shall
have occurred or be continuing (whether under Section 8.17 or
otherwise), (ii) such acquisition is consummated in accordance with
applicable law, (iii) if such acquisition is of equity securities of a
Person, such Person becomes a Restricted Subsidiary, (iv) the Borrower
shall be in pro forma compliance with the covenants set forth in
Section 8.1 after giving effect to such acquisition and (v) the
Acquired Business shall not be subject to any material liabilities
which would be expressly prohibited by this Agreement after such
acquisition;
(f) the contribution by the Borrower or any Restricted
Subsidiary of the equity interests owned by it in a Joint Venture to
another Joint Venture or the investment by the Borrower or any
Restricted Subsidiary in another Joint Venture to the extent made with
equity interests in a Joint Venture owned by it as long as (i) the
Borrower or such Restricted Subsidiary receives in exchange equity
interests in such transferee Joint Venture and (ii) unless otherwise
agreed by the Required Lenders, if the transferred
66
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
equity interests are subject to a Lien under the Loan Documents, the
equity interests received in exchange become subject to a Lien under
the Loan Documents;
(g) capital contributions, loans, or other investments to
or in Gateway consisting of up to $55,000,000, in the aggregate, of
cash and other assets related to the ▇▇▇▇▇ ▇▇▇▇ Platform;
(h) capital contributions, loans, or other investments to
or in Cameron Highway consisting of up to $95,000,000, in the
aggregate, of cash and other assets related to the Cameron Highway Oil
Pipeline;
(i) capital contributions, loans or other investments in
Joint Ventures or Unrestricted Subsidiaries, in addition to those
otherwise permitted by subsections 8.8(a) through 8.8(h), in an
aggregate amount not to exceed $100,000,000 during any fiscal year of
the Borrower beginning with the fiscal year commencing on January 1,
2002, less the aggregate amount of Guarantee Obligations incurred
pursuant to Section 8.4(b) then outstanding; and
(j) capital contributions, loans or other investments in
a Person other than a Joint Venture or Unrestricted Subsidiary, in
addition to those otherwise permitted by Section 8.8(a) through (i)
above, in an aggregate amount not to exceed $5,000,000 for all such
Persons during any fiscal year of the Borrower beginning with the
fiscal year commencing on January 1, 2004.
SECTION 8.9 Limitation on Optional Payments and Modifications of
Debt Instruments and Other Agreements. Except to the extent no Default or Event
of Default has occurred and is continuing or could reasonably be expected to
result therefrom and it could not reasonably be expected to cause a Material
Adverse Effect:
(a) make any optional payment or prepayment on,
redemption of or purchase of, or voluntarily defease, or directly or
indirectly voluntarily or optionally purchase, redeem, retire or
otherwise acquire, the Senior Subordinated Notes, the Senior Notes or
any other Indebtedness or Guarantee Obligations (other than the
Obligations);
(b) amend, modify or change, or consent or agree to any
amendment, modification or change to, any of the right of payment
subordination terms of the Senior Subordinated Notes or the Senior
Subordinated Note Indentures;
(c) amend, modify, or change, or consent to any
amendment, modification or change to, any of the terms of the
Partnership Agreement or the Borrower's certificate of limited
partnership; or
(d) waive or otherwise relinquish any of its rights or
causes of action arising out of the Partnership Agreement or the
Borrower's certificate of limited partnership.
SECTION 8.10 Limitation on Transactions with Affiliates. Subject
to the rights set forth in Section 8.13, 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
67
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
transaction is (a) otherwise permitted under this Agreement, and (b) upon fair
and reasonable terms no less favorable to the Borrower or such Restricted
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate.
SECTION 8.11 Limitation on Sales and Leasebacks. Except for sales
or dispositions permitted under Section 8.6(b), enter into any arrangement with
any Person providing for the leasing by the Borrower or any Restricted
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Borrower or such Restricted Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of the Borrower or such
Restricted Subsidiary.
SECTION 8.12 Limitation on Changes in Fiscal Year. Permit the
fiscal year of the Borrower to end on a day other than December 31.
SECTION 8.13 Limitation on Lines of Business. Enter into any
business, either directly or through any Restricted Subsidiary or Joint Venture,
except for (a) gathering, transporting (by barge, pipeline, ship, truck or other
modes of hydrocarbon transportation), terminalling, storing, producing,
acquiring, developing, exploring for, processing, dehydrating, fractionating and
otherwise handling hydrocarbons, including constructing pipeline, platform,
dehydration, processing and other energy-related facilities, activities or
services reasonably related or ancillary thereto and any other business that
generates "qualifying income" as defined in section 7704(d) of the Code, as
amended and (b) other businesses as long as the consolidated total assets
principally relating to such other businesses, taken together, would not
constitute a "significant subsidiary" of the Borrower under Regulation S-X as
promulgated under the Securities Act of 1933, as amended.
SECTION 8.14 Corporate Documents. Permit the amendment or
modification of the limited liability company agreement or certificate of
formation or incorporation of any Restricted Subsidiary if such amendment could
reasonably be expected to have a Material Adverse Effect, or would authorize or
issue any Capital Stock not authorized or issued on the Restatement Closing
Date, except to the extent such authorization or issuance would have the same
substantive effect as any transaction permitted by Section 8.5 or 8.6.
SECTION 8.15 Compliance with ERISA. (a) Terminate any Plan, (b)
engage in any "prohibited transaction" (as defined in Section 4975 of the Code)
involving any Plan, or (c) incur or suffer to exist any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not waived
involving any Plan, except where such action or condition listed in (a) through
(c) above could not reasonably be expected to cause a Material Adverse Effect.
SECTION 8.16 Limitation on Restrictions Affecting Subsidiaries.
Enter into, or suffer to exist, any agreement with any Person, other than the
Lenders pursuant hereto and other than the arrangements described in Section
8.2, Section 8.3, Section 8.4(d), and Section 8.8 or which exist on the
Restatement Closing Date, which prohibits or limits the ability of any
Restricted Subsidiary to (a) pay dividends or make other distributions or pay
any Indebtedness owed to the Borrower or any Restricted Subsidiary, (b) make
loans or advances to or make other investments in the Borrower or any Restricted
Subsidiary, (c) transfer any of its properties or assets to the
68
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Borrower or any Restricted Subsidiary, (d) create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired.
SECTION 8.17 Creation of Restricted Subsidiaries. Create or
acquire any new Restricted Subsidiary of the Borrower or any of its Restricted
Subsidiaries, unless, immediately upon the creation or acquisition of any such
Restricted Subsidiary, (a) such Restricted Subsidiary shall become party to the
Subsidiaries Guarantee as a Subsidiary Guarantor pursuant to an addendum thereto
or other documentation in form and substance reasonably satisfactory to the
Administrative Agent, (b) such Restricted Subsidiary shall become party to the
Subsidiary Security Agreement as a grantor pursuant to an addendum thereto or
other documentation in form and substance reasonably satisfactory to the
Collateral Agent, and all actions required to perfect the Liens granted thereby,
all filings required thereunder and all consents necessitated thereby shall have
been taken, made or obtained, (c) all Capital Stock issued by such Restricted
Subsidiary owned by the Borrower or any other Restricted Subsidiary shall have
been pledged to the Collateral Agent pursuant to an addendum or amendment to the
Borrower Pledge Agreement, the Subsidiary Pledge Agreement or other
documentation in form and substance satisfactory to the Collateral Agent, (d)
all corporate, company, partnership or other proceedings, and all documents,
instruments and other legal matters in connection with the creation of such
Restricted Subsidiary and the transactions contemplated by this Section 8.17
shall be reasonably satisfactory in form and substance to the Administrative
Agent, and the Administrative Agent and the Collateral Agent shall have received
such other documents and legal opinions in respect of any aspect or consequence
of such creation or such transactions as it shall reasonably request and (e) no
Default or Event of Default shall have occurred and be continuing after giving
effect thereto.
SECTION 8.18 Hazardous Materials. Except to the extent that the
same could not reasonably be expected to have a Material Adverse Effect, permit
the manufacture, storage, transmission or presence of any Hazardous Materials
over or upon any of its properties except in accordance with all applicable
Requirements of Law or release, discharge or otherwise dispose of any Hazardous
Materials on any of its properties except that the Borrower and its Restricted
Subsidiaries may treat, store and transport petroleum, its derivatives,
by-products and other hydrocarbons, hydrogen sulfide and sulfur dioxide in the
ordinary course of their business.
SECTION 8.19 Actions by Joint Ventures. (a) Consent or agree to or
acquiesce in any Joint Venture the interests in which are owned directly by the
Borrower or a Restricted Subsidiary adversely changing its policy of making
distributions of available cash to partners, or (b) so long as any interest
therein is owned directly by the Borrower or a Restricted Subsidiary, consent or
agree to or acquiesce in any Joint Venture's taking any actions that could
reasonably be expected to have a Material Adverse Effect.
SECTION 8.20 Hedging Transactions. Enter into any interest rate,
cross-currency, commodity, equity or other security, swap, collar or similar
hedging agreement or purchase any option to purchase or sell or to cap any
interest rate, cross-currency, commodity, equity or other security, in any such
case, other than to hedge risk exposures in the operation of its business,
ownership of assets or the management of its liabilities.
69
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
ARTICLE IX
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Note or any Reimbursement Obligation which is not funded by a Loan when
due in accordance with the terms thereof or hereof; or the Borrower
shall fail to pay any interest on any Note, or any other amount payable
hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by
the Borrower or any other Loan Party herein or in any other Loan
Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) The Borrower shall default in the observance or
performance of any agreement contained in Article VIII or in Section
7.11; or any Loan Party that is a party thereto shall default in the
observance or performance of any agreement contained in Section 5(h),
(i), (j) or (o) of the Borrower Security Agreement or the Subsidiary
Security Agreement, or Section 4(b) of the Borrower Pledge Agreement or
Section 4(b) of the Subsidiary Pledge Agreement; or
(d) The Borrower or any other Loan Party shall default in
the observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Article IX), and such default shall
continue unremedied for a period of 30 days after the earlier of
receipt of written notice thereof from the Administrative Agent or any
Lender and the date upon which the Borrower was required to give notice
of such default as contained in Section 7.7(a); or
(e) Any Loan Party or any Restricted Subsidiary of the
Borrower shall (i) default in any payment of principal of or interest
on any Indebtedness (other than the Loans) or in the payment of any
Guarantee Obligation, beyond the period of grace (not to exceed 30
days), if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in
the observance or performance of any other agreement or condition
relating to any such Indebtedness or Guarantee Obligation or contained
in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation to
become payable; provided, however, that the aggregate principal amount
of Indebtedness and Guarantee Obligations with respect to which such
defaults shall have occurred shall equal or exceed $35,000,000; or
70
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(f) (i) Any Loan Party shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or any Loan Party
shall make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against any Loan Party any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against any Loan Party any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results
in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) any Loan Party shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) any Loan Party shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) an ERISA Event shall have occurred that, in the
reasonable opinion of the Required Lenders, when taken together with
all other ERISA Events that have occurred, could reasonably be expected
to result in a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered
against the Borrower or any of its Restricted Subsidiaries involving in
the aggregate a liability (not paid or fully covered by insurance) of
$35,000,000 or more, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 60
days from the entry thereof; or
(i) Except with respect to matters disclosed on Schedule
5.16, which matters shall not, in the aggregate, incur remediation
and/or environmental compliance expenses and/or fines, penalties or
other charges in excess of $55,000,000, if at any time any Loan Party
shall become liable for remediation and/or environmental compliance
expenses and/or fines, penalties or other charges which, in the
aggregate, are in excess of the Material Environmental Amount for any
Loan Party; or
(j) For any reason (other than any act on the part of the
Administrative Agent, the Collateral Agent or the Lenders or as
permitted by Section 11.18(d)) (i) any Security Document ceases to be
in full force and effect or any party thereto (other than the
Administrative Agent, the Collateral Agent or the Lenders) shall so
assert in writing or the Lien intended to be created by any Security
Document ceases to be or is not a valid and perfected Lien having the
priority contemplated thereby or (ii) any Guarantee ceases to be in
full force and effect or any party thereto (other than the
Administrative Agent, the Collateral Agent or the Lenders) shall so
assert in writing; or
71
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(k) A Change of Control shall occur, unless (i) at the
time of such Change of Control, for the 90-day period immediately prior
to such Change of Control, and immediately after such Change of
Control, the Borrower's senior unsecured debt rating is, or is
reconfirmed as applicable, at least Baa3 (or the equivalent) by ▇▇▇▇▇'▇
Investors Service, Inc. (or any successor to the rating agency business
thereof) and BBB- (or the equivalent) by Standard & Poor's Ratings
Group (or any successor to the rating agency business thereof), (ii)
the aggregate principal amount of Putable Debt Securities outstanding
at such time is less than the greater of (A) $250 million and (B) 30%
of the aggregate principal amount of Non-Putable Debt Securities
outstanding at such time, and (iii) no Default or Event of Default has
occurred and is then continuing; or
(l) Any Person that owns an equity interest in any Joint
Venture shall exercise its rights and remedies (other than dilution of
the equity interests owned by the Borrower and its Restricted
Subsidiaries in any Joint Venture pursuant to contractual dilution
provisions existing with respect to the Joint Ventures) with respect to
its Lien on any equity interest in such Joint Venture the equity
interest in which has been pledged to such Person; provided that the
amount of claims secured by such Lien shall equal or exceed $35,000,000
and such claim shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(m) The General Partner shall default in the observance
or performance of any provision of the Partnership Agreement and such
default could reasonably be expected to result in a Material Adverse
Effect; or
(n) the Senior Subordinated Notes or the guarantees
thereof shall cease, for any reason, to be validly subordinated to the
Obligations or the obligations of the Subsidiary Guarantors under the
Loan Documents to which they are parties, as the case may be, as
provided in the Senior Subordinated Note Indentures, or any Loan Party,
any Affiliate of any Loan Party, the trustee in respect of the Senior
Subordinated Notes or the holders of at least 25% in aggregate
principal amount of a series of such Senior Subordinated Notes shall so
assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Revolving Credit Commitments shall immediately terminate and
the Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Revolving Credit Commitments to be terminated
forthwith, whereupon the Revolving Credit Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement (including,
without limitation, all amounts of L/C Obligations,
72
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) and the Notes to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
If presentment for honor under any Letter of Credit shall not have occurred at
the time of an acceleration pursuant to the preceding sentence, the Borrower
shall at such time deposit in a cash collateral account opened by the Collateral
Agent an amount equal to the aggregate then undrawn and unexpired amount of the
Letters of Credit. The Borrower hereby grants to the Collateral Agent, for the
benefit of the Issuing Bank and the Lenders, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Loan Documents. Amounts held in such cash collateral account shall be
applied by the Collateral Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder and under the Notes. After all
such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the Notes shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrower. The Borrower shall execute and deliver to the Collateral Agent, for
the account of the Issuing Bank and the Lenders, such further documents and
instruments as the Collateral Agent may request to evidence the creation and
perfection of the within security interest in such cash collateral account.
Except as expressly provided above in this Section, presentment, demand,
protest, notice of intent to accelerate, notice of acceleration and all other
notices of any kind are hereby expressly waived.
ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION 10.1 Appointment. Each Lender hereby irrevocably
designates and appoints JPMorgan as the Administrative Agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes JPMorgan, as the Administrative Agent for such Lender, to
take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
SECTION 10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
SECTION 10.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (i) liable for any
73
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except for its or
such Person's own gross negligence or willful misconduct) or (ii) responsible in
any manner to any of the Lenders for any recitals, statements, representations
or warranties made by the Borrower or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or any other Loan Document or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, the Notes or any other Loan Document or for any
failure of the Borrower to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
SECTION 10.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement, the Notes and the other Loan Documents in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
SECTION 10.5 Notice of Default. The Administrative Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
SECTION 10.6 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors,
74
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Administrative Agent hereafter taken,
including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
SECTION 10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Total Credit Percentages in effect on the
date on which indemnification is sought under this Section, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Notes) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement,
any of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this Section 10.7 shall survive the payment of the Notes and all other amounts
payable hereunder.
SECTION 10.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to its Loans made or renewed by it and any
Note issued to it and with respect to the Letters of Credit, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent. The terms "Lender," "Lenders," "Revolving Credit Lenders,"
"Term Loan Lenders," and similar terms shall include the Administrative Agent in
its individual capacity as applicable.
75
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 10.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' written notice to the Lenders.
If the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
shall be approved by the Borrower, whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Notes. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement and the other
Loan Documents.
SECTION 10.10 Other Agents. None of the Lenders identified on the cover
page or the preamble of this Agreement as a "co-syndication agent" or a
"co-documentation agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified as a "co-syndication agent" or a "co-documentation agent" shall have
or be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders so
identified in deciding to enter into this Agreement or in taking or not taking
any action hereunder.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Amendments and Waivers. Neither this Agreement, any
Revolving Credit Note, any other Loan Document, nor any terms hereof or thereof
may be amended, supplemented or modified except in accordance with the
provisions of this Section 11.1. The Required Lenders may, or, with the written
consent of the Required Lenders, the Administrative Agent may, from time to
time, (a) enter into with the Borrower or the Loan party thereto written
amendments, supplements or modifications hereto and to the Revolving Credit
Notes and the other Loan Documents for the purpose of adding any provisions to
this Agreement or the Revolving Credit Notes or the other Loan Documents or
changing in any manner the rights of the Lenders or of the Borrower or any other
Loan Party hereunder or thereunder or waive in writing, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement,
the Notes or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall reduce the amount or extend the scheduled date
of maturity of any Revolving Credit Note or of any installment thereof, or
reduce the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or increase the amount or extend the
expiration date of any Lender's Revolving Credit Commitment, in each case
without the consent of each Lender affected thereby, or (ii) amend, modify or
waive any provision of this Section 11.1 or reduce the percentage specified in
the definition of Required Lenders, or consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement and the
other Loan Documents (except in a transaction permitted by Section 8.5), in each
case without the
76
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
written consent of all the Lenders, or (iii) amend, modify or waive any
provision of Article X without the written consent of the then Administrative
Agent, (iv) release the Lenders' Liens on all or substantially all of the
Collateral under the Security Documents without the consent of each Lender or
except to the extent relating to the Redesignation of any Restricted Subsidiary,
the sale or other disposition of any Restricted Subsidiary as otherwise
permitted by this Agreement or any other transaction permitted by this
Agreement, release any Guarantee. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Borrower, the Lenders, the Administrative Agent and all
future holders of the Revolving Credit Notes. In the case of any waiver, the
Borrower, the Lenders and the Administrative Agent shall be restored to their
former position and rights hereunder and under the outstanding Revolving Credit
Notes and any other Loan Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing; but no such waiver shall extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon
SECTION 11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower, the Collateral Agent
and the Administrative Agent, and as set forth in Schedule I hereto or to any
Term Loan Addendum or in any Assignment or Acceptance in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Notes:
The Borrower: GulfTerra Energy Partners, L.P.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
The Administrative Agent
or the Collateral Agent: JPMorgan Chase Bank
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
77
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
with a copy to: JPMorgan Chase Bank
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent,
the Collateral Agent or the Lenders pursuant to Section 2.3, 2.6, 2.7, 3.2, 4.1,
4.2 shall not be effective until received, provided, further, that the failure
by the Administrative Agent, the Collateral Agent or any Lender to provide a
copy to the Borrower's counsel shall not cause any notice to the Borrower to be
ineffective.
SECTION 11.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent, the Collateral
Agent or any Lender, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
SECTION 11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Notes.
SECTION 11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent and the Collateral Agent for all their
respective reasonable out-of-pocket costs and expenses incurred in connection
with the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement, the Notes and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the fees and disbursements of
counsel to the Administrative Agent and the Collateral Agent, (b) to pay or
reimburse each Lender, the Administrative Agent and the Collateral Agent for all
its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the Notes, the other Loan
Documents and any such other documents, including, without limitation, the fees
and disbursements of counsel to the Administrative Agent, to the Collateral
Agent and to the several Lenders, (c) to pay, indemnify, and hold each Lender,
the Administrative Agent and the Collateral Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the Notes, the other Loan
Documents and any such other documents, and to pay, indemnify, and hold each
Lender, the Administrative Agent, the Collateral Agent, the Co-Syndication
Agents, the Co-Documentation Agents, and their Affiliates, and their respective
directors, officers, employees, agents and advisors (each such person being
called an
78
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Indemnified Party") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments and suits, and
reasonable costs, expenses or disbursements, of any kind or nature whatsoever
with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the Notes and the other Loan Documents, the
use of the proceeds of the Loans, including the use and reliance on electronic,
telecommunications or other information or transmission systems in connection
with the Loan Documents (all the foregoing in this clause (d), collectively, the
"indemnified liabilities"), REGARDLESS OF WHETHER OR NOT SUCH INDEMNIFIED
LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY
NEGLIGENT ACT OR OMISSION OF ANY KIND BY AN INDEMNIFIED PARTY, provided, that
the Borrower shall have no obligation hereunder to an Indemnified Party with
respect to indemnified liabilities arising from (i) the gross negligence or
willful misconduct of such Indemnified Party or (ii) legal proceedings commenced
against an Indemnified Party by any security holder or creditor thereof arising
out of and based upon rights afforded any such security holder or creditor
solely in its capacity as such. The agreements in this Section shall survive
repayment of the Notes and all other amounts payable hereunder.
SECTION 11.6 Successors and Assigns; Participations; Purchasing
Lenders.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent, the
Collateral Agent, the Issuing Bank, all future holders of the Notes and
their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except
that (i) the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its right or obligation hereunder except
in accordance with this Section 11.6. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative
Agent, the Collateral Agent, the Issuing Bank and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any Lender may, without the consent of the Borrower,
the Administrative Agent, the Collateral Agent or the Issuing Bank and
after notice to the Borrower, sell participations to one or more banks
or other entities ("Participants") in all or a portion of such Lender's
rights and obligations under this Agreement and the other Loan
Documents (including all or a portion of its Revolving Credit
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Bank and the Collateral Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the
other Loan Documents. To the extent permitted by law, each
79
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Participant shall be entitled to the benefits of Section 11.7 as though
it were a Lender, provided such Participant agrees to be subject to
Section 11.7(a) as though it were a Lender. The Borrower also agrees
that each Participant shall be entitled to the benefits of Sections
4.9, 4.10 and 4.11 with respect to its participation in the Revolving
Credit Commitments, the Loans and the Letters of Credit outstanding
from time to time; provided, that no Participant shall be entitled to
receive any greater payment pursuant to such Sections than the
applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior
written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 4.10
unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 4.10(e) as though it were a Lender.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and the other Loan Documents and to
approve any amendment, modification or waiver of any provision of this
Agreement or the other Loan Documents; provided, that such agreement or
instrument may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver
described in clauses (i) to (v) of the proviso of subsection 11.1(b) to
the extent the Participant is directly affected thereby.
(c) Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to any
Lender, any Affiliate of a Lender or an Approved Fund and, as to any
Lender, with the consent of the Borrower and the Administrative Agent
(which in each case shall not be unreasonably withheld or, with respect
to the Borrower, shall not be required during the continuance of any
Event of Default), to one or more additional banks or financial
institutions or funds that regularly purchase loans ("Purchasing
Lenders") all or any part of its rights and obligations under this
Agreement and the Notes pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit J, executed by such Purchasing
Lender, such transferor Lender (and, in the case of a Purchasing Lender
that is not then a Lender, an Approved Fund or an Affiliate of a
Lender, by the Borrower and the Administrative Agent except to the
extent the Borrower's consent is not required hereunder) and delivered
to the Administrative Agent for its acceptance and recording in the
Register, provided that (i) no such assignment to an assignee (other
than any Lender, an Approved Fund or any Affiliate of any Lender) shall
be in an aggregate principal amount of less than $5,000,000, in the
case of Revolving Credit Loans, or $1,000,000, in the case of Term
Loans (in each case, other than in the case of an assignment of all of
a Lender's interest under this Agreement) and (ii) with respect to an
assignment involving Revolving Credit Notes, Revolving Credit Loans or
Revolving Credit Commitments, the assigning Revolving Credit Lender
shall have retained at least $5,000,000 of Revolving Credit Commitments
(unless it is assigning all of its Revolving Credit Commitments and
Revolving Credit Loans), in each case, unless otherwise agreed by the
Borrower and the Administrative Agent and provided, further that this
clause shall not be construed to prohibit the assignment or sale of a
proportionate part of all the assigning Lender's rights and obligations
in respect of one class of Commitments or Loans. For purposes of the
proviso contained in the preceding sentence, the amount described
therein shall be
80
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
aggregated in respect to each Lender and its related Affiliates, if
any. Each Purchasing Lender shall deliver to the Administrative Agent
an Administrative Questionnaire prior to the Transfer Effective Date.
Upon such execution, delivery, acceptance and recording, from and after
the Transfer Effective Date determined pursuant to such Assignment and
Acceptance, (x) the Purchasing Lender thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Revolving
Credit Commitment, if applicable, as set forth therein, and (y) the
transferor Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of a transferor Lender's rights and
obligations under this Agreement, such transferor Lender shall cease to
be a party hereto but shall continue to be entitled to the benefit of
the indemnity and expense reimbursement provisions of the Loan
Documents to the extent relating to matters during the time it was a
Lender). Such Assignment and Acceptance shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect
the addition of such Purchasing Lender and the resulting adjustment of
Total Credit Percentages arising from the purchase by such Purchasing
Lender of all or a portion of the rights and obligations of such
transferor Lender under this Agreement and any Note. On or prior to the
Transfer Effective Date determined pursuant to such Assignment and
Acceptance, the Borrower, at its own expense, shall execute and deliver
to the Administrative Agent in exchange for the Note of the transferor
Lender a new Revolving Credit Note, Initial Term Loan Note or
Additional Term Loan Note, as applicable, to the order of such
Purchasing Lender in an amount equal to the Revolving Credit Commitment
or Term Loan, as applicable, assumed by it pursuant to such Assignment
and Acceptance and, if the transferor Lender has retained Revolving
Credit Commitments or Term Loans, as applicable, hereunder, a new
Revolving Credit Note, Initial Term Loan Note or Additional Term Loan
Note, as applicable, to the order of the transferor Lender in an amount
equal to the Revolving Credit Commitment or Term Loans, as applicable,
retained by it hereunder. Such new Revolving Credit Notes, Initial Term
Loan Notes or Additional Term Loan Notes, as applicable, shall be dated
the Restatement Closing Date, Initial Term Loan Date or the date set
forth in the applicable Term Loan Addendum, as applicable, and shall
otherwise be in the form of the Revolving Credit Note, Initial Term
Loan Note or Additional Term Loan Note, as applicable, replaced
thereby. The Revolving Credit Notes, Initial Term Loan Note or
Additional Term Loan Note, as applicable, surrendered by the transferor
Lender shall be returned by the Administrative Agent to the Borrower
marked "cancelled."
(d) The Administrative Agent, on behalf of the Borrower,
shall maintain at its address referred to in Section 11.2 a copy of
each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the
Lenders and the Revolving Credit Commitment, if any, of and principal
amount of the Loans, owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent, the Collateral Agent
and the Lenders may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of
this Agreement, notwithstanding any notice to the contrary. Any
assignment of any Loan or other Obligations hereunder not evidenced by
a Note shall be effective only upon appropriate
81
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
entries with respect thereto being made in the Register. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by a transferor Lender and Purchasing Lender (and, in the case
of a Purchasing Lender that is not then a Lender or an Affiliate
thereof, by the Borrower and the Administrative Agent) together with
payment to the Administrative Agent of a registration and processing
fee of $4,000, the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) on the Transfer Effective Date
determined pursuant thereto record the information contained therein in
the Register and give notice of such acceptance and recordation to the
Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to
any Participant, Purchasing Lender, or counterparty (or its advisor) to
any swap, securitization or derivative transaction referencing or
involving any of the rights or obligations of such Lender under this
Agreement (each, a "Transferee") and any prospective Transferee any and
all information in such Lender's possession concerning the Borrower and
its Affiliates which has been delivered to such Lender by or on behalf
of the Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of the Borrower in connection with such
Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments
of Loans and Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests,
including, without limitation, any pledge or assignment by a Lender of
any Loan or Note to any Federal Reserve Bank in accordance with
applicable law without any notice to or consent of the Borrower or the
Administrative Agent.
SECTION 11.7 Adjustments; Set-off.
(a) If any Lender (a "benefitted Lender") shall at any
time receive any payment of all or part of its Loans or the
Reimbursement Obligations owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the
nature referred to in Article IX(i), or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans of the same
type or the Reimbursement Obligations owing to it, as the case may be,
or interest thereon, such benefitted Lender shall purchase for cash
from the other Lenders a participating interest in such portion of each
such other Lender's Loan or the Reimbursement Obligations owing to it,
or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefitted Lender,
82
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice
to the Borrower, any such notice being expressly waived by the Borrower
to the extent permitted by applicable law, upon any amount becoming due
and payable by the Borrower hereunder or under the Notes (whether at
the stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of the Borrower.
Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
SECTION 11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
SECTION 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent, the
Collateral Agent and the Lenders with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Administrative Agent, the Collateral Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
SECTION 11.11 Usury Savings Clause. It is the intention of the parties
hereto to comply with applicable usury laws (now or hereafter enacted);
accordingly, notwithstanding any provision to the contrary in this Agreement,
the Notes, any of the other Loan Documents or any other document related hereto,
in no event shall this Agreement or any such other document require the payment
or permit the collection of interest in excess of the maximum amount permitted
by such laws. If from any circumstances whatsoever, fulfillment of any provision
of this Agreement or of any other document pertaining hereto or thereto, shall
involve transcending the limit of validity prescribed by applicable law for the
collection or charging of interest, then, ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if from any such
circumstances the Administrative Agent, the Collateral Agent and the Lenders
shall ever receive anything of value as interest or deemed interest by
applicable law under this Agreement, the Notes, any of the other Loan Documents
or any other document pertaining hereto
83
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
or otherwise an amount that would exceed the highest lawful rate, such amount
that would be excessive interest shall be applied to the reduction of the
principal amount owing under the Notes or on account of any other indebtedness
of the Borrower, and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal of such indebtedness, such
excess shall be refunded to the Borrower. In determining whether or not the
interest paid or payable with respect to any indebtedness of the Borrower to the
Administrative Agent and the Lenders, under any specified contingency, exceeds
the Highest Lawful Rate (as hereinafter defined), the Borrower, the
Administrative Agent and the Lenders shall, to the maximum extent permitted by
applicable law, (a) characterize any non-principal payment as an expense, fee or
premium rather than as interest, (b) exclude voluntary prepayments and the
effects thereof, (c) amortize, prorate, allocate and spread the total amount of
interest throughout the full term of such indebtedness so that interest thereon
does not exceed the maximum amount permitted by applicable law, and/or (d)
allocate interest between portions of such indebtedness, to the end that no such
portion shall bear interest at a rate greater than that permitted by applicable
law.
To the extent that Section 303.001 et seq., as amended, of the Texas
Finance Code is relevant to the Administrative Agent and the Lenders for the
purpose of determining the Highest Lawful Rate, the Administrative Agent and the
Lenders hereby elect to determine the applicable rate ceiling under such Article
by the indicated (weekly) rate ceiling from time to time in effect. Nothing set
forth in this Section 11.11 is intended to or shall limit the effect or
operation of Section 11.12. In no event shall Chapter 346 of the Texas Finance
Code (which regulates certain revolving credit loan accounts) apply to this
Agreement or the Revolving Credit Notes.
For purposes of this Section 11.11, "Highest Lawful Rate" shall mean
the maximum rate of nonusurious interest that may be contracted for, charged,
taken, reserved or received on the Notes under laws applicable to the
Administrative Agent and the Lenders.
SECTION 11.12 Governing Law. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 11.13 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
84
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in Section 11.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary or
punitive damages (including, without limitation, damages arising from
the use of electronic, telecommunications or other information
transmissions systems in connection with the Loan Documents).
SECTION 11.14 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement, the Notes and the other Loan
Documents;
(b) none of the Administrative Agent, the Collateral
Agent nor any Lender has any fiduciary relationship with or duty to the
Borrower or any other Loan Party arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship
between Administrative Agent, the Collateral Agent and Lenders, on one
hand, and the Borrower and the other Loan Parties, on the other hand,
in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture exists among the Lenders or among
the Borrower and the other Loan Parties and the Lenders.
SECTION 11.15 Confidentiality. Each of the Administrative Agent, the
Collateral Agent and each Lender agrees that it will hold in confidence, any
information provided to such Person pursuant to this Agreement; provided, that
nothing in this Section 11.15 shall be deemed to prevent the disclosure by the
Administrative Agent, the Collateral Agent or any Lender of any such information
(a) to any Affiliate of a Lender that has entered into a Hedging Agreement with
the Borrower or to any of its or such Affiliate's employees, officers,
directors, accountants, attorneys or consultants (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such information and instructed to keep such information
confidential), (b) to any examiner or other Governmental Authority, (c) that has
been or is made public by GTM Energy Company, the Borrower or any of its
Subsidiaries or Affiliates or by any third party without breach of this
Agreement or that otherwise becomes generally available to the public other than
as a result of a disclosure in violation of this Section 11.15, (d) that is or
becomes available to any such Person from a third party on a non-confidential
basis, (e) that is required to be disclosed by any Requirement of Law, including
to any bank examiners or regulatory authorities, (f) that is required to be
disclosed by any court, agency, arbitrator or legislative body, or (g) to any
Transferee or proposed Transferee; provided,
85
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
further, that notwithstanding anything in this Agreement to the contrary, the
Borrower, the Administrative Agent, the Issuing Bank, the Collateral Agent, each
Lender and each Related Person may disclose to any and all Persons, without
limitation of any kind, the tax treatment and tax structure of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analysis) that are provided to it relating to such tax treatment and tax
structure; and nothing in the foregoing authorization shall apply to any
disclosure that would constitute a violation of applicable federal and state
securities laws.
SECTION 11.16 Waivers of Jury Trial. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 11.17 Acknowledgement Of No Claims, Offsets Or Defenses;
Release By The Loan Parties. THE BORROWER, ON BEHALF OF ITSELF AND EACH OF THE
OTHER LOAN PARTIES, ACKNOWLEDGES THAT NO LOAN PARTY NOR ANY OF THEIR RESPECTIVE
OWNERS, DIRECTORS, SUCCESSORS, ASSIGNS, AGENTS, OFFICERS, EMPLOYEES, AND
REPRESENTATIVES (COLLECTIVELY, THE "BORROWER AFFILIATES PARTIES") HAS ANY CLAIM,
DEMAND, RIGHT OF OFFSET, CAUSE OF ACTION IN LAW OR IN EQUITY, LIABILITY OR
DAMAGES OF ANY NATURE WHATSOEVER, WHETHER FIXED OR CONTINGENT (HEREINAFTER
COLLECTIVE CALLED "CLAIMS") THAT COULD BE ASSERTED IN CONNECTION WITH, OR WHICH
WOULD IN ANY OTHER MANNER BE RELATED TO, THE EXISTING CREDIT AGREEMENT OR ANY
PROMISSORY NOTES OR OTHER AGREEMENTS, TRANSACTIONS OR OTHER ACTIONS PRIOR TO THE
DATE HEREOF INVOLVING ANY OF THE BORROWER AFFILIATED PARTIES AND LENDERS (THE
"PRIOR AGREEMENTS AND ACTIVITIES"). NOTWITHSTANDING THE FOREGOING, HOWEVER,
BORROWER HEREBY AGREES THAT IN CONSIDERATION OF THE CREDIT EXTENDED TO BORROWER
UNDER THE LOAN DOCUMENTS AND AS A MATERIAL INDUCEMENT TO THE LENDERS TO ENTER
INTO SUCH LOAN DOCUMENTS AND EXTEND SUCH CREDIT TO BORROWER, BORROWER, ON BEHALF
OF ITSELF AND ALL OF THE OTHER BORROWER AFFILIATED PARTIES HEREBY RELEASES AND
FOREVER DISCHARGES, EACH LENDER, EACH SUBSEQUENT HOLDER OF ANY OF THE NOTES, AND
EACH AND ALL OF THEIR PARENT, SUBSIDIARY AND AFFILIATED ENTITIES PAST AND
PRESENT, AS WELL AS THEIR RESPECTIVE OWNERS, DIRECTORS, SUCCESSORS, ASSIGNS,
AGENTS, OFFICERS, EMPLOYEES, AND REPRESENTATIVES (COLLECTIVELY, THE "RELEASED
PARTIES"), OF AND FROM ANY AND ALL CLAIMS WHICH BORROWER AND THE OTHER BORROWER
AFFILIATED PARTIES MAY HAVE OR HEREAFTER ACQUIRE AGAINST ANY OR ALL OF THE
RELEASED PARTIES BY REASON OF, OR RELATED IN ANY WAY TO, THE PRIOR AGREEMENTS
AND ACTIVITIES.
SECTION 11.18 Releases.
(a) At such time as the Loans, the Reimbursement
Obligations and any other obligations under this Agreement shall have
been paid in full, the Revolving Credit Commitments have been
terminated and no Letters of Credit shall be outstanding, the
Collateral shall be released from the Liens created by the Loan
Documents, and all obligations (other than those expressly stated to
survive such termination) of the Administrative Agent, the Collateral
Agent and each Loan Party thereunder and under the other Loan Documents
shall terminate, all without delivery of any instrument or
86
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
performance of any act by any party, and all rights to the Collateral
shall revert to the respective Loan Parties. At the request and expense
of any Loan Party following any such termination, the Collateral Agent
shall deliver to such Loan Party any Collateral held by the Collateral
Agent under the Security Documents, and execute and deliver to such
Loan Party such documents as such Loan Party shall reasonably request
to evidence such termination.
(b) If any of the Collateral shall be sold, transferred
or otherwise disposed of by any Loan Party in a transaction permitted
by this Agreement or such Loan Party is designated as an Unrestricted
Subsidiary in accordance with the terms of this Agreement, then the
Lenders authorize the Collateral Agent, at the request and expense of
such Loan Party, to execute and deliver to such Loan Party all releases
or other documents reasonably necessary or desirable for the release of
the Liens created by the applicable Security Documents on such
Collateral. At the request and sole expense of the Borrower, the
Lenders authorize the Collateral Agent to release a Loan Party from its
obligations under the applicable Guarantee and Security Document(s) in
the event that all the Capital Stock of such Loan Party shall be sold,
transferred or otherwise disposed of in a transaction permitted by this
Agreement or such Loan Party becomes a Joint Venture or is designated
as an Unrestricted Subsidiary in accordance with the terms of this
Agreement, provided that the Borrower shall have delivered to the
Collateral Agent, at least five Business Days prior to the date of the
proposed release, a written request for release identifying the
relevant Loan Party and the terms of the transaction, sale or other
disposition in reasonable detail, including the price thereof and any
expenses in connection therewith, together with a certification by the
Borrower stating that such transaction is in compliance with this
Agreement and the other Loan Documents.
(c) Notwithstanding the provisions of Section 11.1(b)(v)
above, upon and at any time after the earlier of (a) the repayment in
full of the Initial Term Loans and (b) a written consent, amendment or
modification executed by each Initial Term Loan Lender as of the date
thereof, and delivered to the Administrative Agent, consenting or
agreeing to, or confirming, the substance of this Section 11.18(c), the
written consent of all Lenders shall be required only to release any
Guarantee of any Restricted Subsidiary that constitutes a Significant
Subsidiary and a release of any Guarantee of a Restricted Subsidiary
that does not constitute a Significant Subsidiary shall require the
written consent of only the Required Lenders.
(d) Upon the earlier of (a) the repayment in full of the
Initial Term Loans and (b) a written consent, amendment or modification
executed by each Initial Term Loan Lender as of the date thereof, and
delivered to the Administrative Agent, consenting or agreeing to, or
confirming, the substance of this Section 11.18(d), each of the EPEPC
Guarantee and the General Partner Guarantee shall automatically
terminate and be released by the Lenders and each of EPEPC Security
Agreement (G&A Agreement) and the General Partner Security Agreement
(G&A Agreement) shall automatically terminate and be released by the
Collateral Agent without any further action required by the Collateral
Agent, the Administrative Agent or the Lenders. At the request and
expense of the Loan Party to such Guarantees and Security Documents
following any such termination, the Collateral Agent or the
Administrative Agent, as applicable execute and
87
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
deliver to such Loan Party such documents as such Loan Party shall
reasonably request to evidence such termination.
SECTION 11.19 Intercreditor Agreement. Each Lender (including each
Purchasing Lender which becomes a Lender) consents and agrees to the provisions
of the Intercreditor Agreement, including the indemnity provisions set forth in
Section 6 thereof. The Lenders also hereby authorize and appoint the
Administrative Agent to act as their agent with respect to the execution and
delivery of the Intercreditor Agreement.
SECTION 11.20 Term Loan Addendums. Upon execution and delivery of any
Term Loan Addendum by the parties thereto, from and after the applicable
Additional Term Loan Closing Date set forth therein, each Additional Term Loan
Lender party thereto shall be a party to this Agreement and have the rights and
obligations of a Lender hereunder.
SECTION 11.21 Term Loan Amendments. No waiver and no amendment,
supplement or modification otherwise permitted by Section 11.1 shall (a) reduce
the amount or extend the scheduled date of maturity of any Term Loan or of any
installment thereof, or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or increase the
amount or extend the expiration date of any Lender's Term Loan Commitment, in
each case without the consent of each Lender affected thereby or amend, modify
or waive any provisions of this Section 11.21 without the consent of each Term
Loan Lender.
SECTION 11.22 Certain Permitted Transactions. Notwithstanding any
provision in the Loan Documents and without increasing the obligations of the
Lenders under Articles II and III of this Agreement, the Borrower and its
Subsidiaries shall have the right to consummate the following transactions:
(a) Petal Facilities. A sale leaseback arrangement with
respect to the Petal Facilities and intended improvements to be made
thereto in connection with the Firm Storage Services Agreement dated as
of December 22, 2000 by and between Petal Gas Storage and Southern
Company Services, Inc., provided that the obligations under such
arrangement or guarantee shall not exceed $140,000,000.
(b) GTM Management Offering. The transactions and matters
described in the GTM Management Registration Statements (collectively,
the "i-share Transactions"), including: (i) the offering and sale to
the public and El Paso of shares representing limited liability company
interests; (ii) the offering and sale by the Borrower to GTM Management
of limited partnership units designated as "i-units"; (iii) the
delegation by the General Partner of its authority (subject to certain
approval rights) to direct the management of the Borrower; (iv) the
payment by GTM Management of $0.5 million to El Paso for certain tax
indemnity obligations assumed by El Paso in connection with the i-share
Transactions; (v) the splitting, from time to time, of the outstanding
i-units contemporaneously with the payment of cash distributions to the
holders of Common Units; (vi) the distribution of additional shares to
the holders of GTM Management shares in connection with the unit splits
described in (b)(v) above; and (vii) the offering and sale, from time
to time, of additional i-units by the Borrower and of additional shares
88
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
by El Paso Energy Management as described in the El Paso Energy
Management Registration Statements.
(c) ▇▇▇▇▇▇▇▇ Conversion/Cash Buyout. The conversion of
the Borrower's Series F units pursuant to the terms thereof, including
(i) the tender of debt securities of the Borrower as all or part of the
aggregate conversion price, (ii) the payment of cash by the Borrower
instead of the issuance of Common Units if the conversion price is
below (1) a price specified by the Borrower or (2) $26 (as adjusted for
splits, recapitalizations, and similar occurrences), (iii) the
conversion into cash and/or Capital Stock in connection with specified
"Business Combinations" (as defined in the terms of the Series F units)
involving the Borrower, and (iv) the conversion into cash if the
Borrower is unable to convert the Series F Units into Common Units.
SECTION 11.23 Non-Recourse to General Partner. Upon and at any time
after the earlier of (a) the repayment in full of the Initial Term Loans and (b)
a written consent, amendment or modification executed by each Initial Term Loan
Lender as of the date thereof, and delivered to the Administrative Agent,
consenting or agreeing to, or confirming, the substance of this Section 11.23,
the General Partner shall not have any liability for any Obligations of the
Borrower, the Co-Borrower or Subsidiary Guarantor hereunder to the extent
relating to or arising out of any Revolving Credit Commitment, any Additional
Term Loan Commitment, any Loan, any Note or any Letter of Credit. Each Lender
executing this Agreement on the Restatement Closing Date waives and releases the
General Partner for all liability for any Obligations after the repayment in
full of the Initial Term Loans, which waiver and release are part of the
consideration for the Borrower's execution and delivery of this Agreement.
SECTION 11.24 Revolving Credit Commitments under the Existing Credit
Agreement. The undersigned that constitute a majority of the "Revolving Credit
Lenders" as defined under the Existing Credit Agreement, hereby agree and
acknowledge that the "Revolving Credit Commitments" as defined under the
Existing Credit Agreement shall be terminated on the Restatement Closing Date,
and hereby waive any right of the "Revolving Credit Lenders" as defined under
the Existing Credit Agreement to receive any prior notice of such termination.
Notice of termination given on the Restatement Closing Date to any other
"Revolving Credit Lender" as defined under the Existing Credit Agreement shall
constitute effective notice of termination of its "Revolving Credit Commitment"
as defined under the Existing Credit Agreement with respect to such Revolving
Credit Lender. Each Revolving Credit Lender that was a party to the Existing
Credit Agreement agrees to return to the Borrower, with reasonable promptness,
all "Notes" as defined under the Existing Credit Agreement that were delivered
by the Borrower to such Revolving Credit Lender under the Existing Credit
Agreement.
ARTICLE XII
THE COLLATERAL AGENT
SECTION 12.1 Appointment. Each Lender hereby irrevocably designates and
appoints JPMorgan as the Collateral Agent of such Lender under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes
JPMorgan, as the Collateral Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly
89
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
delegated to the Collateral Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Collateral Agent shall not have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Collateral Agent.
SECTION 12.2 Delegation of Duties. The Collateral Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Collateral Agent shall not
be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
SECTION 12.3 Exculpatory Provisions. Neither the Collateral Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Collateral Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Collateral Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
SECTION 12.4 Reliance by Collateral Agent. The Collateral Agent shall
be entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Collateral Agent. The Collateral
Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent. The Collateral Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Collateral Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders.
90
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SECTION 12.5 Notice of Default. The Collateral Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Collateral Agent has received notice from the
Administrative Agent, a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". The Collateral Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Administrative Agent or the Required Lenders; provided that unless and until the
Collateral Agent shall have received such directions, the Collateral Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders.
SECTION 12.6 Indemnification. The Lenders agree to indemnify the
Collateral Agent in its capacity as such (to the extent not reimbursed by the
Borrower and without limiting the obligation of the Borrower to do so), ratably
according to their respective Total Credit Percentages in effect on the date on
which indemnification is sought under this Section, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Collateral Agent in any way
relating to or arising out of this Agreement, any of the other Loan Documents or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Collateral Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Collateral Agent's gross
negligence or willful misconduct. The agreements in this Section 12.6 shall
survive the payment of the Loans and all other amounts payable hereunder.
SECTION 12.7 Successor Collateral Agent. The Collateral Agent may
resign as Collateral Agent upon 10 days' written notice to the Lenders. If the
Collateral Agent shall resign as Collateral Agent under this Agreement and the
other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall be
approved by the Borrower, whereupon such successor agent shall succeed to the
rights, powers and duties of the Collateral Agent, and the term "Collateral
Agent" shall mean such successor agent effective upon such appointment and
approval, and the former Collateral Agent's rights, powers and duties as
Collateral Agent shall be terminated, without any other or further act or deed
on the part of such former Collateral Agent or any of the parties to this
Agreement. After any retiring Collateral Agent's resignation as Collateral
Agent, the provisions of this Section shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Collateral Agent under
this Agreement and the other Loan Documents.
SECTION 12.8 Amendment. None of the terms or provisions of this Article
XII may be amended, modified or waived without the written consent of the then
Collateral Agent.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
91
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the Restatement Closing Date.
THE BORROWER & CO-BORROWER: GULFTERRA ENERGY PARTNERS, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
GULFTERRA ENERGY FINANCE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
Signature Page -1-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
ADMINISTRATIVE AGENT & LENDER: JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Signature Page -2-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SYNDICATION AGENT & LENDER: FORTIS CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Signature Page -3-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
CO-DOCUMENTATION AGENT & LENDER: BNP PARIBAS
By: /s/ ▇▇▇▇ ▇. ▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page -4-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
CO-DOCUMENTATION AGENT & LENDER: CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Signature Page -5-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
CO-DOCUMENTATION AGENT & LENDER: WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Signature Page -6-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
LENDERS: BANK ONE, NA (MAIN OFFICE, CHICAGO)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
Signature Page -7-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
BANK OF SCOTLAND
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
Signature Page -8-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
Signature Page -9-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ ▇▇▇▇▇▇▇ ▇. Main
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Main
Title: Senior Vice President
Signature Page -10-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Agent
Signature Page -11-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
Signature Page -12-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page -13-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
▇▇▇▇▇ FARGO BANK TEXAS, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page -14-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
CITICORP USA
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Signature Page -15-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
Signature Page -16-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate Director
Signature Page -17-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
CREDIT SUISSE FIRST BOSTON, ACTING THROUGH
ITS CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Associate
Signature Page -18-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
Title: Vice President
Signature Page -19-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
RZB FINANCE LLC, CONNECTICUT OFFICE
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Signature Page -20-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Signature Page -21-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
COMERICA BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Sr. Vice President
Signature Page -22-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
Signature Page -23-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
NATEXIS BANQUES POPULAIRES
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Title: Vice President and Group Manager
Signature Page -24-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
ROYAL BANK OF CANADA
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Signature Page -25-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
UFJ BANK LIMITED, NEW YORK
BRANCH
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title: Vice President
Signature Page -26-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
WESTLB AG, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
Credit Department
Signature Page -27-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
COMPASS BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page -28-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
Energy Lending
Signature Page -29-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
AMMC CDO I, LIMITED
By: American Money Management Corp., as
Collateral Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page -30-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
AMMC CDO II, LIMITED
By: American Money Management Corp., as
Collateral Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page -31-
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE I
1. Revolving Credit Lenders, Revolving Credit Commitments and
Revolving Credit Commitment Percentages:
------------------------------------------------------------------------------------------------------------
REVOLVING
REVOLVING CREDIT
REVOLVING CREDIT LENDER CREDIT COMMITMENT
NAME AND ADDRESS TITLE COMMITMENT PERCENTAGE
------------------------------------------------------------------------------------------------------------
JPMORGAN CHASE BANK Administrative Agent $36,000,000 5.1429%
▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇/▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Att: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
FORTIS CAPITAL CORP. Syndication Agent $36,000,000 5.1429%
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
BNP PARIBAS Co-Documentation Agent $36,000,000 5.1429%
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
CREDIT LYONNAIS NEW YORK BRANCH Co-Documentation Agent $36,000,000 5.1429%
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
Schedule I (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
------------------------------------------------------------------------------------------------------------
REVOLVING
REVOLVING CREDIT
REVOLVING CREDIT LENDER CREDIT COMMITMENT
NAME AND ADDRESS TITLE COMMITMENT PERCENTAGE
------------------------------------------------------------------------------------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION Co-Documentation Agent $36,000,000 5.1429%
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
BANK ONE, NA Managing Agent $33,000,000 4.7143%
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
BANK OF SCOTLAND Managing Agent $33,000,000 4.7143%
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with copy to:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
FLEET NATIONAL BANK Managing Agent $33,000,000 4.7143%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
THE ROYAL BANK OF SCOTLAND plc Managing Agent $33,000,000 4.7143%
New York Branch
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
Schedule I (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
------------------------------------------------------------------------------------------------------------
REVOLVING
REVOLVING CREDIT
REVOLVING CREDIT LENDER CREDIT COMMITMENT
NAME AND ADDRESS TITLE COMMITMENT PERCENTAGE
------------------------------------------------------------------------------------------------------------
THE BANK OF NOVA SCOTIA Managing Agent $33,000,000 4.7143%
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
SOCIETE GENERALE Managing Agent $33,000,000 4.7143%
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
SUNTRUST BANK Managing Agent $33,000,000 4.7143%
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ N.E.
10th Floor, MC 1929
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ FARGO BANK TEXAS, N.A. $30,000,000 4.2857%
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
CITICORP USA $25,000,000 3.5714%
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
DEUTSCHE BANK TRUST COMPANY AMERICAS $25,000,000 3.5714%
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: __________
Telephone: __________
Fax: ________________
------------------------------------------------------------------------------------------------------------
BAYERISCHE HYPO-UND VEREINSBANK AG, $25,000,000 3.5714%
NEW YORK BRANCH
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------
Schedule I (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
------------------------------------------------------------------------------------------------------------
REVOLVING
REVOLVING CREDIT
REVOLVING CREDIT LENDER CREDIT COMMITMENT
NAME AND ADDRESS TITLE COMMITMENT PERCENTAGE
------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
CREDIT SUISSE FIRST BOSTON $20,000,000 2.8571%
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ $20,000,000 2.8571%
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
RZB FINANCE LLC, CONNECTICUT OFFICE $20,000,000 2.8571%
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
BANK OF AMERICA, N.A. $15,000,000 2.1429%
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
COMERICA BANK $15,000,000 2.1429%
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P. $15,000,000 2.1429%
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: 212-_______
------------------------------------------------------------------------------------------------------------
NATEXIS BANQUES POPULAIRES $15,000,000 2.1429%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------
Schedule I (Page 4)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
------------------------------------------------------------------------------------------------------------
REVOLVING
REVOLVING CREDIT
REVOLVING CREDIT LENDER CREDIT COMMITMENT
NAME AND ADDRESS TITLE COMMITMENT PERCENTAGE
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Natexis Banques Populaires
1251 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: 212-_______
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
ROYAL BANK OF CANADA $15,000,000 2.1429%
New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Singh
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
UFJ BANK LIMITED, NEW YORK BRANCH $15,000,000 2.1429%
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Lad Perenyi
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
WESTLB AG, NEW YORK BRANCH $15,000,000 2.1429%
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
Schedule I (Page 5)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
------------------------------------------------------------------------------------------------------------
REVOLVING
REVOLVING CREDIT
REVOLVING CREDIT LENDER CREDIT COMMITMENT
NAME AND ADDRESS TITLE COMMITMENT PERCENTAGE
------------------------------------------------------------------------------------------------------------
COMPASS BANK $ 9,500,000 1.3571%
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇-▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
SOUTHWEST BANK OF TEXAS, N.A. $ 9,500,000 1.3571%
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
------------------------------------------------------------------------------------------------------------
TOTAL $700,000,000 100.0000%
------------------------------------------------------------------------------------------------------------
Schedule I (Page 6)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
2. Initial Term Loan Lenders, Outstanding Initial Term Loans and
Term Loan Percentages (as to Initial Term Loans):
----------------------------------------------------------------------------------------------------
INITIAL TERM LOAN LENDER, OUTSTANDING INITIAL TERM LOAN PERCENTAGE
NAME AND ADDRESS TERM LOAN (AS TO INITIAL TERM LOANS)
----------------------------------------------------------------------------------------------------
FORTIS CAPITAL CORP. $24,609,375 15.62500%
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
----------------------------------------------------------------------------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION $24,609,375 15.62500%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
----------------------------------------------------------------------------------------------------
SUNTRUST BANK $24,609,375 15.62500%
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ N.E.
3rd Floor, MC 1929
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
----------------------------------------------------------------------------------------------------
BANK OF SCOTLAND $ 9,843,750 6.25000%
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
----------------------------------------------------------------------------------------------------
SOUTHWEST BANK OF TEXAS, N.A. $ 6,890,625 4.37500%
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
----------------------------------------------------------------------------------------------------
PROMETHEUS INVESTMENT FUNDING NO. 1 LTD $ 4,921,875 3.12500%
______________
______________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
Schedule I (Page 7)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
----------------------------------------------------------------------------------------------------
INITIAL TERM LOAN LENDER, OUTSTANDING INITIAL TERM LOAN PERCENTAGE
NAME AND ADDRESS TERM LOAN (AS TO INITIAL TERM LOANS)
----------------------------------------------------------------------------------------------------
GOLDENTREE LOAN OPPORTUNITIES I, LIMITED $ 4,921,875 3.12500%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
ALLSTATE LIFE INSURANCE COMPANY $ 3,937,500 2.50000%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
NORSE CBO, LTD. $ 3,937,500 2.50000%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
GULF STREAM COMPASS CLO 2002-1 $ 2,968,750 1.88492%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
AMMC CDO II, LIMITED $ 2,953,125 1.87500%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
FIRST DOMINION FUNDING II $ 2,937,500 1.86508%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
APEX (IDM) CDO I, LTD. $ 2,563,953.33 1.62791%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
Schedule I (Page 8)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
----------------------------------------------------------------------------------------------------
INITIAL TERM LOAN LENDER, OUTSTANDING INITIAL TERM LOAN PERCENTAGE
NAME AND ADDRESS TERM LOAN (AS TO INITIAL TERM LOANS)
----------------------------------------------------------------------------------------------------
OCTAGON INVESTMENT PARTNERS III, LTD. $ 2,460,937.50 1.56250%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
AMMC CDO I, LIMITED $ 1,968,750 1.25000%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
MAGNETITE IV CLO, LTD $ 1,968,750 1.25000%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
CSAM FUNDING I $ 1,968,750 1.25000%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
FIRST DOMINION FUNDING III $ 1,968,750 1.25000%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
LONGHORN CDO II, LTD. $ 1,968,750 1.25000%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
ML INCOME STRATEGIES PORTFOLIO $ 1,968,750 1.25000%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
Schedule I (Page 9)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
----------------------------------------------------------------------------------------------------
INITIAL TERM LOAN LENDER, OUTSTANDING INITIAL TERM LOAN PERCENTAGE
NAME AND ADDRESS TERM LOAN (AS TO INITIAL TERM LOANS)
----------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ SENIOR FLOATING RATE FUND $ 1,968,750 1.25000%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
ELC (CAYMAN) LTD. CDO SERIES 1999-I $ 1,922,966.72 1.22093%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
ELC (CAYMAN) LTD. 2000-I $ 1,922,964.75 1.22093%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
▇▇▇▇▇ CLO LTD. 2000-I $ 1,922,964.75 1.22093%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
LONGHORN CDO (CAYMAN) LTD. $ 1,476,562.50 0.93750%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
OCTAGON INVESTMENT PARTNERS V, LTD. $ 1,476,562.50 0.93750%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
MASSMUTUAL HIGH YIELD PARTNERS II LLC $ 1,322,038.27 0.83939%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
Schedule I (Page 10)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
----------------------------------------------------------------------------------------------------
INITIAL TERM LOAN LENDER, OUTSTANDING INITIAL TERM LOAN PERCENTAGE
NAME AND ADDRESS TERM LOAN (AS TO INITIAL TERM LOANS)
----------------------------------------------------------------------------------------------------
SUFFIELD CLO, LIMITED $ 1,281,977.16 0.81395%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
AIMCO CLO SERIES 2001-A $ 984,375 0.62500%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
DEBT STRATEGIES FUND, INC. $ 984,375 0.62500%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
MASTER SENIOR FLOATING RATE TRUST $ 984,375 0.62500%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
SENIOR HIGH INCOME PORTFOLIO, INC. $ 984,375 0.62500%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
OCTAGON INVESTMENT PARTNERS II, LLC $ 984,375 0.62500%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
OCTAGON INVESTMENT PARTNERS IV, LTD. $ 984,375 0.62500%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
Schedule I (Page 11)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
----------------------------------------------------------------------------------------------------
INITIAL TERM LOAN LENDER, OUTSTANDING INITIAL TERM LOAN PERCENTAGE
NAME AND ADDRESS TERM LOAN (AS TO INITIAL TERM LOANS)
----------------------------------------------------------------------------------------------------
HARBOURVIEW CLO IV, LTD. $ 984,375 0.62500%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
WILBRAHAM CBO, LTD. $ 961,482.38 0.61047%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
MAPLEWOOD (CAYMAN) LIMITED $ 801,234.98 0.50872%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ CDO LTD $ 640,988.58 0.40698%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
ML GIS BANK LOAN INCOME PORTFOLIO $ 492,187.50 0.31250%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY $ 240,370.59 0.15262%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇ FOUNDATION $ 200,308.50 0.12718%
____________
____________
Attention:
Telephone: 713-
Fax: 713-
----------------------------------------------------------------------------------------------------
TOTAL $157,500,000.01 100.000%
----------------------------------------------------------------------------------------------------
Schedule I (Page 12)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
ANNEX I
--------------------------------------------------------------------
LEVERAGE RATIO is < 4.0
LEVERAGE RATIO is < 3.0 to 1.0 and > or = than
to 1.0 3.0 to 1.0
---------------------------------------------------------
Applicable Applicable
Applicable Margin for Applicable Margin for
Margin for REVOLVING Margin for REVOLVING
REVOLVING CREDIT REVOLVING CREDIT
CREDIT ALTERNATE CREDIT ALTERNATE
EURODOLLAR BASE RATE EURODOLLAR BASE RATE
RATING LOANS (per LOANS (per LOANS (per LOANS (per
LEVELS* annum): annum): annum): annum):
--------------------------------------------------------------------
RATING
LEVEL I: 1.00% 0.0% 1.25% 0.25%
--------------------------------------------------------------------
RATING
LEVEL II: 1.25% 0.25% 1.50% 0.50%
--------------------------------------------------------------------
RATING
LEVEL III: 1.50% 0.50% 1.75% 0.75%
--------------------------------------------------------------------
RATING
LEVEL IV: 1.75% 0.75% 2.00% 1.00%
--------------------------------------------------------------------
RATING
LEVEL V: 2.00% 1.00% 2.25% 1.25%
--------------------------------------------------------------------
--------------------------------------------------------------------------------------------
LEVERAGE RATIO is < 5.0
to 1.0 and > or = than LEVERAGE RATIO is > or = 5.0
4.0 to 1.0 to 1.0
-----------------------------------------------------------
Applicable
Applicable Applicable Applicable Margin for
Margin for Margin for Margin for REVOLVING
REVOLVING REVOLVING REVOLVING CREDIT Applicable
CREDIT CREDIT CREDIT ALTERNATE Margin for the
EURODOLLAR ALTERNATE BASE EURODOLLAR BASE RATE COMMITMENT
RATING LOANS (per RATE LOANS LOANS (per LOANS (per FEE*** (per
LEVELS* annum): (per annum): annum): annum): annum):
--------------------------------------------------------------------------------------------
RATING
LEVEL I: 1.50% 0.50% 1.75% 0.75% 0.30%
--------------------------------------------------------------------------------------------
RATING
LEVEL II: 1.75% 0.75% 2.00% 1.00% 0.375%
--------------------------------------------------------------------------------------------
RATING
LEVEL III: 2.00% 1.00% 2.25% 1.25% 0.50%
--------------------------------------------------------------------------------------------
RATING
LEVEL IV: 2.25% 1.25% 2.50% 1.50% 0.50%
--------------------------------------------------------------------------------------------
RATING
LEVEL V: 2.50% 1.50% 2.75% 1.75% 0.50%
--------------------------------------------------------------------------------------------
* Rating Levels are described below (the relevant Rating Level is
determined by the higher of the S&P and ▇▇▇▇▇'▇ ratings):
Rating Level I: If the Borrower's "senior debt" is rated equal to or greater
than BBB by S&P or Baa2 by ▇▇▇▇▇'▇****;
Rating Level II: If the Borrower's "senior debt" is rated equal to BBB- by S&P
or Baa3 by ▇▇▇▇▇'▇ but less than Rating Level I;
Rating Level III: If the Borrower's "senior debt" is rated equal to BB+ by S&P
or Ba1 by ▇▇▇▇▇'▇ but less than Rating Level II;
Rating Level IV: If the Borrower's "senior debt" is rated equal to BB by S&P or
Ba2 by ▇▇▇▇▇'▇ but less than Rating Levels I, II, and III; and
Rating Level V: If the Borrower's "senior debt" is rated equal to or less than
BB- by S&P or Ba3 by ▇▇▇▇▇'▇.
** For purposes of determining the Applicable Margin for any Revolving
Credit Eurodollar Loan the Rating Level shall be determined as of the
first day of the applicable Interest Period for such Loan.
*** For purposes of determining the Applicable Margin for the Commitment
Fee, the Rating Level for each calendar quarter shall be determined as
of the first day of such quarter.
**** The ratings referred to in each Rating Level indicate the ratings
applicable to the Borrower's senior secured credit facility (i.e.,
▇▇▇▇▇'▇ senior secured credit facility rating and S&P's senior secured
debt rating).
Annex I
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 5.1
GUARANTEE OBLIGATIONS,
CONTINGENT LIABILITIES AND DISPOSITIONS
1. Guarantee Obligations and Contingent Liabilities
1.1 Clawbacks
The Borrower is party to a sponsor agreement that constitutes
one of the ▇▇▇▇▇ ▇▇▇▇ Financing Documents. The Borrower's
obligations under such agreement are capped at $22.5 million.
The Borrower is party to a sponsor agreement under the Credit
Agreement to which Poseidon is party, as amended, restated or
otherwise modified through the date of this Agreement,
pursuant to which the Borrower guarantees Poseidon's
performance of its obligations under its limited liability
company agreement.
2. Dispositions or Acquisitions of Business Properties since June 30,
2002:
None
Schedule 5.1 (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 5.6
MATERIAL LITIGATION
Grynberg. In 1997, the Borrower (and others) were named defendants in
actions brought by ▇▇▇▇ ▇▇▇▇▇▇▇▇ on behalf of the U.S. Government under the
False Claims Act. Generally, these complaints allege an industry-wide conspiracy
to underreport the heating value as well as the volumes of the natural gas
produced from federal and Native American lands, which deprived the U.S.
Government of royalties. The plaintiff in this case seeks royalties that he
contends the government should have received had the volume and heating value of
natural gas produced from royalty properties been differently measured,
analyzed, calculated and reported, together with interest, treble damages, civil
penalties, expenses and future injunctive relief to require the defendants to
adopt allegedly appropriate gas measurement practices. No monetary relief has
been specified in this case. These matters have been consolidated for pretrial
purposes (In re: Natural Gas Royalties Qui Tam litigation, U.S. District Court
for the District of Wyoming, filed June 1997). In May 2001, the court denied the
defendants' motions to dismiss. Discovery is proceeding. Our costs and legal
exposure related to these lawsuits and claims are not currently determinable.
Will Price (formerly Quinque). The Borrower has also been named a
defendant in Quinque Operating Company, et al v. Gas Pipelines and Their
Predecessors, et al, filed in 1999 in the District Court of ▇▇▇▇▇▇▇ County,
Kansas. Quinque has been dropped as a plaintiff and Will Price has been added.
This class action complaint alleges that the defendants mismeasured natural gas
volumes and heating content of natural gas on non-federal and non-Native
American lands. The plaintiffs in this case seek certification of a nationwide
class of natural gas working interest owners and natural gas royalty owners to
recover royalties that the plaintiffs contend these owners should have received
had the volume and heating value of natural gas produced from their properties
been differently measured, analyzed, calculated and reported, together with
prejudgment and postjudgment interest, punitive damages, treble damages,
attorney's fees, costs and expenses, and future injunctive relief to require the
defendants to adopt allegedly appropriate gas measurement practices. No monetary
relief has been specified in this case. Plaintiffs' motion for class
certification was denied in April 2003. Plaintiffs filed another amended
petition to narrow the proposed class to royalty owners in Kansas, Wyoming and
Colorado and their motion was granted on July 28, 2003. Our costs and legal
exposure related to this lawsuit and claims are not currently determinable. In
connection with our April 2002 acquisition of the EPN Holding Company L.P. (now
known as GulfTerra Holding V, L.P.) assets, subsidiaries of El Paso Corporation
have agreed to indemnify us against all obligations related to existing legal
matters at the acquisition date, including the legal matters involving
Leapartners, L.P., City of Edinburg, Houston Pipe Line Company LP, and City of
Corpus Christi discussed below.
During 2000, Leapartners, L.P. filed a suit against El Paso Field
Services and others in the District Court of Loving County, Texas, alleging a
breach of contract to gather and process natural gas in areas of western Texas
related to an asset now owned by GulfTerra Holding III, L.L.C.. In May 2001, the
court ruled in favor of Leapartners and entered a judgment against El Paso Field
Services of approximately $10 million. El Paso Field Services has filed an
appeal with the Eighth Court of Appeals in El Paso, Texas. Briefs have been
filed and oral arguments were heard in November 2002. Review by the Court of
Appeals is expected in the third quarter of 2003.
Schedule 5.6 (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Also, GulfTerra Texas Pipeline L.P., (GulfTerra Texas, formerly known
as EPGT Texas Pipeline L.P.) now owned by GulfTerra Holding III, L.L.C., is
involved in litigation with the City of Edinburg concerning the City's claim
that GulfTerra Texas was required to pay pipeline franchise fees under a
contract the City had with Rio Grande Valley Gas Company, which was previously
owned by GulfTerra Texas and is now owned by Southern Union Gas Company. An
adverse judgment against Southern Union and GulfTerra Texas was rendered in
▇▇▇▇▇▇▇ County State District court in December 1998 and found a breach of
contract, and held both GulfTerra Texas and Southern Union jointly and severally
liable to the City for approximately $4.7 million. The judgment relies on the
single business enterprise doctrine to impose contractual obligations on
GulfTerra Texas and Southern Union's entities that were not parties to the
contract with the City. GulfTerra Texas has appealed this case to the Texas
Supreme Court seeking reversal of the judgment rendered against GulfTerra Texas.
The City seeks a remand to the trial court of its claim of tortious interference
against GulfTerra Texas. Briefs have been filed and oral arguments were held in
November 2002, and we are awaiting a decision.
In December 2000, a 30-inch natural gas pipeline jointly owned by
GulfTerra Intrastate, L.P. (GulfTerra Intrastate) now owned by GulfTerra Holding
III, L.L.C., and Houston Pipe Line Company LP ruptured in Mont Belvieu, Texas,
near Baytown, resulting in substantial property damage and minor physical
injury. GulfTerra Intrastate is the operator of the pipeline. Two lawsuits were
filed in the state district court in ▇▇▇▇▇▇▇▇ County, Texas by eight plaintiffs,
including two homeowners' insurers. The suits seek recovery for physical pain
and suffering, mental anguish, physical impairment, medical expenses, and
property damage.
Houston Pipe Line Company has been added as an additional defendant. In
accordance with the terms of the operating agreement, GulfTerra Intrastate has
agreed to assume the defense of and to indemnify Houston Pipe Line Company. As
of June 30, 2003, all but one claim has now been settled and these settlements
had no impact on our financial statements. The remaining claim relates solely to
property damages.
The City of Corpus Christi, Texas (the "City") is alleging that
GulfTerra Texas and various Coastal entities owe it monies for past obligations
under City ordinances that propose to tax GulfTerra Texas on its gross receipts
from local natural gas sales for the use of street rights-of-way. No lawsuit has
been filed to date. Some but not all of the GulfTerra Texas pipeline at issue
has been using the rights-of-way since the 1960's. In addition, the City demands
that GulfTerra Texas agree to a going-forward consent agreement in order for the
GulfTerra Texas pipeline and Coastal pipeline to have the right to remain in
City rights-of-way.
In August 2002, we acquired the Big Thicket assets, which consist of
the Vidor plant, the Silsbee compressor station and the Big Thicket gathering
system located in east Texas, for approximately $11 million from BP America
Production Company (BP). Pursuant to the purchase agreement, we have identified
environmental conditions that we are working with BP and appropriate regulatory
agencies to address. BP has agreed to indemnify us for exposure resulting from
activities related to the ownership or operation of these facilities prior to
our purchase (i) for a period of three years for non-environmental claims and
(ii) until one year following the completion of any environmental remediation
for environmental claims. Following expiration of these indemnity periods, we
are obligated to indemnify BP for environmental or non-environmental claims. We,
along with BP and various other defendants, have been named in
Schedule 5.6 (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
the following two lawsuits for claims based on activities occuring prior to our
purchase of these facilities.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, individually and on behalf of
the estate of ▇▇▇▇ ▇▇▇▇▇▇▇ v. GulfTerra GC, L.P., et, al. In June 2003, the
plaintiffs in this recently filed court action sued us in state district court
in ▇▇▇▇▇▇ County, Texas. The plaintiffs are the parents of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, a two year old child who died on April 15, 2002, allegedly as the
result of his exposure to arsenic, benzene and other harmful chemicals in the
water supply. Plaintiffs allege that several defendants are responsible for that
contamination, including us and BP. Our connection to the occurrences that are
the basis for this suit appears to be our August 2002 purchase of certain assets
from BP, including a facility in ▇▇▇▇▇▇ County, Texas known as the Silsbee
compressor station. Under the terms of the indemnity provisions in the Purchase
and Sale Agreement between GulfTerra and BP, GulfTerra requested that BP
indemnify GulfTerra for any exposure. BP has thus far declined assuming the
indemnity obligation. Our costs and legal exposure related to this lawsuit and
claims are not currently determinable.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, et. al., v. GulfTerra GC, L.P., et. al. In June 2003,
seventy-four residents of ▇▇▇▇▇▇ County, Texas, sued us and others in state
district court in ▇▇▇▇▇▇ County, Texas. The plaintiffs allege that they have
been exposed to hazardous chemicals, including arsenic and benzene, through
their water supply, and that the defendants are responsible for that exposure.
As with the ▇▇▇▇▇▇▇ case, our connection with the occurrences that are the basis
of this suit appears to be our August 2002 purchase of certain assets from BP,
including a facility known as the Silsbee compressor station, which is located
in ▇▇▇▇▇▇ County, Texas. Under the terms of the indemnity provisions in the
Purchase and Sale Agreement between us and BP, BP has agreed to indemnify us for
this matter.
Schedule 5.6 (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 5.14
SUBSIDIARIES AND JOINT VENTURES
Subsidiaries (all owned 100%) unless otherwise noted:
(All Delaware limited liability companies and limited partnerships unless
otherwise noted)
1. Arizona Gas Storage, L.L.C. (60.00%)
2. Cameron Highway Pipeline GP, L.L.C.
3. Cameron Highway Pipeline I., L.P.
4. Crystal Holding, L.L.C.
5. First Reserve Gas, L.L.C.
6. Flextrend Development Company, L.L.C.
7. GulfTerra Alabama Intrastate, L.L.C.
8. GulfTerra Arizona Gas, L.L.C.
9. GulfTerra Energy Finance Corporation (Co-Borrower)
10. GulfTerra Field Services, L.L.C.
11. GulfTerra GC, L.P.
12. GulfTerra Holding I, L.L.C.
13. GulfTerra Holding II, L.L.C.
14. GulfTerra Holding III, L.L.C.
15. GulfTerra Holding IV, L.P.
16. GulfTerra Holding V, L.P.
17. GulfTerra Intrastate, L.P.
18. GulfTerra NGL Storage, L.L.C.
19. GulfTerra Oil Transport, L.L.C.
20. GulfTerra Operating Company, L.L.C.
21. GulfTerra South Texas, L.P.
22. GulfTerra Texas Pipeline, L.P.
23. Hattiesburg Gas Storage Company, a Delaware general partnership
24. Hattiesburg Industrial Gas Sales, L.L.C.
25. High Island Offshore System, L.L.C.
26. Manta Ray Gathering Company, L.L.C.
27. Matagorda Island Area Gathering System, a Texas joint venture (83.00%)
28. Petal Gas Storage, L.L.C.
29. Poseidon Pipeline Company, L.L.C.
Joint Ventures:
1. Atlantis Offshore, L.L.C. 50.00%
2. Cameron Highway Oil Pipeline Company 50.00%
3. Poseidon Oil Pipeline Company, L.L.C. 36.00%
4. Deepwater Gateway, L.L.C. 50.00%
Schedule 5.14 (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 5.16
ENVIRONMENTAL MATTERS
1. Mercury contamination has been identified along the PG&E/GTT Pipeline
system (which now comprises a part of the EPGT Pipeline system) where
mercury meters are located or were previously located.
2. El Paso Corporation commissioned ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Harza in 2001 to
perform an evaluation of the GTT Pipeline System to evaluate potential
environmental issues and liabilities associated with 18 gas
treatment/processing/storage facilities and 92 compressor stations
within the GTT Pipeline System.
3. El Paso Corporation commissioned The IT Group in 2001 to perform a
pilot study within the GTT Pipeline System to identify and assess
remediation issues associated with mercury-containing manometers used
on the GTT pipeline system.
4. In August 2002, we acquired the Big Thicket assets, which consist of
the Vidor plant, the Silsbee compressor station and the Big Thicket
gathering system located in east Texas, for approximately $11 million
from BP America Production Company (BP). Pursuant to the purchase
agreement, we have identified environmental conditions that we are
working with BP and appropriate regulatory agencies to address. BP has
agreed to indemnify us for exposure resulting from activities related
to the ownership or operation of these facilities prior to our purchase
(i) for a period of three years for non-environmental claims and (ii)
until one year following the completion of any environmental
remediation for environmental claims. Following expiration of these
indemnity periods, we are obligated to indemnify BP for environmental
or non-environmental claims. We, along with BP and various other
defendants, have been named in the following two lawsuits for claims
based on activities occurring prior to our purchase of these
facilities.
Schedule 5.16 (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT A-1
FORM OF
REVOLVING CREDIT NOTE
$_________ New York, New York
September ___, 2003
FOR VALUE RECEIVED, the undersigned, GULFTERRA ENERGY
PARTNERS, L.P., a Delaware limited partnership (the "Borrower") and GULFTERRA
ENERGY FINANCE CORPORATION, a Delaware corporation (the "Co-Borrower"), hereby
jointly and severally, unconditionally promise to pay to the order of _____ (the
"Lender") at the office of JPMorgan Chase Bank located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in lawful money of the United States of America and in
immediately available funds, the principal amount of the lesser of (a) _________
($_______), and (b) the aggregate unpaid principal amount of all Revolving
Credit Loans made by the Lender to the undersigned pursuant to Section 2.1 of
the Credit Agreement hereinafter referred to, on the Revolving Credit
Termination Date (as defined in the Credit Agreement) such principal to be paid
on the date and in the amounts set forth in Section 2.2 of the Credit Agreement
and on such other dates and in such other amounts set forth in the Credit
Agreement.
Each of the undersigned further agrees to pay interest in like
money at such office on the unpaid principal amount hereof from time to time
from the date hereof at the applicable rate per annum set forth in Section 4.4
of the Credit Agreement until any such amount shall become due and payable
(whether at the stated maturity, by acceleration or otherwise), and thereafter
on such overdue amount at the rate per annum set forth in subsection 4.4(c) of
said Credit Agreement until paid in full (both before and after judgment).
Interest shall be payable in arrears on each Interest Payment Date commencing on
the first such date to occur after the date hereof, provided that interest
accruing pursuant to subsection 4.4(c) of the Credit Agreement shall be payable
on demand. In no event shall the interest payable hereon, whether before or
after maturity, exceed the maximum interest which, under applicable law, may be
charged on this Note, and this Note is expressly made subject to the provisions
of the Credit Agreement which more fully set out the limitations on how interest
accrues hereon.
The holder of this Note is authorized to record the date, type
and amount of each Revolving Credit Loan made by the Lender pursuant to Section
2.1 of said Credit Agreement, each continuation thereof, each conversion of all
or a portion thereof to another type, the date and amount of each payment or
prepayment of principal with respect thereto, and, in the case of Eurodollar
Loans, the length of each Interest Period with respect thereto, on the schedules
annexed hereto and made a part hereof, or on a continuation thereof which shall
be attached hereto and made a part hereof, which recordation shall constitute
prima facie evidence of the accuracy of the information recorded in the absence
of manifest error; provided that failure by the Lender to make any such
recordation on this Note shall not affect the obligations of the Borrower under
this Note or said Credit Agreement.
Exhibit A-1 (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
This Note is one of the Revolving Credit Notes referred to in
the Seventh Amended and Restated Credit Agreement, dated as of March 23, 1995,
as amended (the "Existing Credit Agreement"), as amended and restated through
September 26, 2003 (as further amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, the Co-Borrower, the
Lender, the other financial institutions parties thereto and JPMorgan Chase
Bank, as Administrative Agent, is entitled to the benefits thereof, is secured
as provided therein and is subject to optional and mandatory prepayment in whole
or in part as provided therein. Terms used herein which are defined in the
Credit Agreement shall have such defined meanings unless otherwise defined
herein or unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in said Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable
all as provided therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Note evidences existing indebtedness under the Existing
Credit Agreement (and its predecessors) and does not constitute payment of such
indebtedness, and such indebtedness continues in full force and effect, as
amended and restated in the Credit Agreement.
GULFTERRA ENERGY PARTNERS, L.P.
By:__________________________________
Name:________________________________
Title:_______________________________
GULFTERRA ENERGY FINANCE CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
Exhibit A-1 (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE A TO REVOLVING CREDIT NOTE
EURODOLLAR LOANS AND CONVERSIONS AND PAYMENTS WITH RESPECT TO EURODOLLAR LOANS
Amount of
Eurodollar Loans Amount of
Made or Eurodollar Loans
Converted from Interest Period and Paid or Converted Unpaid Principal
Alternate Base Eurodollar Rate with into Alternate Base Distribution Balance of Eurodollar Notation
Date Rate Loans Respect Thereto Rate Loans Loan (Yes/No) Loans Made By
---- ---------- --------------- ---------- ------------- ----- -------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
Schedule A to Revolving Credit Note (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE B TO REVOLVING CREDIT NOTE
ALTERNATE BASE RATE LOANS AND CONVERSIONS AND PAYMENTS
WITH RESPECT TO ALTERNATE BASE RATE LOANS
Amount of
Alternate Base Amount of
Rate Loans Made Alternate Base
or Converted Rate Loans Paid Unpaid Principal
from Eurodollar or Converted into Distribution Balance of Alternate Base
Date Loans Eurodollar Loans Loan (Yes/No) Rate Loans Notation Made By
---- ----- ---------------- ------------- ---------- ----------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- --------
Schedule B to Revolving Credit Note (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT A-2
FORM OF INITIAL TERM LOAN NOTE
$_________ New York, New York
September ___, 2003
FOR VALUE RECEIVED, the undersigned, GULFTERRA ENERGY
PARTNERS, L.P., a Delaware limited partnership (the "Borrower") and GULFTERRA
ENERGY FINANCE CORPORATION, a Delaware corporation (the "Co-Borrower"), hereby
jointly and severally, unconditionally promise to pay to the order of _____ (the
"Lender") at the office of JPMorgan Chase Bank located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in lawful money of the United States of America and in
immediately available funds, the principal amount of _________ ($_______), in
installments on the dates and in the principal amounts provided in Section 2.2
of the Credit Agreement hereinafter referred to, and on such other dates and in
such other amounts set forth in the Credit Agreement.
Each of the undersigned further agrees to pay interest in like
money at such office on the unpaid principal amount hereof from time to time
from the date hereof at the applicable rate per annum set forth in Section 4.4
of the Credit Agreement until any such amount shall become due and payable
(whether at the stated maturity, by acceleration or otherwise), and thereafter
on such overdue amount at the rate per annum set forth in subsection 4.4(c) of
said Credit Agreement until paid in full (both before and after judgment).
Interest shall be payable in arrears on each Interest Payment Date commencing on
the first such date to occur after the date hereof, provided that interest
accruing pursuant to subsection 4.4(c) of the Credit Agreement shall be payable
on demand. In no event shall the interest payable hereon, whether before or
after maturity, exceed the maximum interest which, under applicable law, may be
charged on this Note, and this Note is expressly made subject to the provisions
of the Credit Agreement which more fully set out the limitations on how interest
accrues hereon.
The holder of this Note is authorized to record the date, type
and amount of each Initial Term Loan made by the Lender pursuant to Section 2.1
of said Credit Agreement, each continuation thereof, each conversion of all or a
portion thereof to another type, the date and amount of each payment or
prepayment of principal with respect thereto, and, in the case of Eurodollar
Loans, the length of each Interest Period with respect thereto, on the schedules
annexed hereto and made a part hereof, or on a continuation thereof which shall
be attached hereto and made a part hereof, which recordation shall constitute
prima facie evidence of the accuracy of the information recorded in the absence
of manifest error; provided that failure by the Lender to make any such
recordation on this Note shall not affect the obligations of the Borrower under
this Note or said Credit Agreement.
This Note is one of the Initial Term Loan Notes referred to in
the Seventh Amended and Restated Credit Agreement, dated as of March 23, 1995,
as amended and restated through September 26, 2003 (as further amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, the Co-Borrower, the Lender, the other financial
institutions parties thereto and JPMorgan Chase Bank, as Administrative Agent,
is entitled to the benefits thereof, is secured as provided therein and is
subject to optional and
Exhibit A-2 (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
mandatory prepayment in whole or in part as provided therein. Terms used herein
which are defined in the Credit Agreement shall have such defined meanings
unless otherwise defined herein or unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in said Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable
all as provided therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
GULFTERRA ENERGY PARTNERS, L.P.
By:________________________________________
Name:______________________________________
Title:_____________________________________
GULFTERRA ENERGY FINANCE CORPORATION
By:________________________________________
Name:______________________________________
Title:_____________________________________
Exhibit A-2 (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE A TO INITIAL TERM LOAN NOTE
EURODOLLAR LOANS AND CONVERSIONS AND
PAYMENTS WITH RESPECT TO EURODOLLAR LOANS
Amount of Amount of
Eurodollar Loans Eurodollar Loans Paid
Made or Converted Interest Period and or Converted into Unpaid Principal
from Alternate Base Eurodollar Rate with Alternate Base Rate Distribution Balance of Eurodollar Notation
Date Rate Loans Respect Thereto Loans Loan (Yes/No) Loans Made By
---- ---------- --------------- ----- ------------- ----- -------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
Schedule A to Initial Term Loan Note (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE B TO INITIAL TERM LOAN NOTE
ALTERNATE BASE RATE LOANS AND CONVERSIONS AND PAYMENTS
WITH RESPECT TO ALTERNATE BASE RATE LOANS
Amount of
Alternate Base Amount of
Rate Loans Made Alternate Base
or Converted Rate Loans Paid Unpaid Principal
from Eurodollar or Converted into Distribution Balance of Alternate Base
Date Loans Eurodollar Loans Loan (Yes/No) Rate Loans Notation Made By
---- ----- ---------------- ------------- ---------- ----------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- --------
Schedule B to Initial Term Loan Note (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT A-3
FORM OF ADDITIONAL TERM LOAN NOTE
$_________ New York, New York
_______________, 200__
FOR VALUE RECEIVED, the undersigned, GULFTERRA ENERGY
PARTNERS, L.P., a Delaware limited partnership (the "Borrower") and GULFTERRA
ENERGY FINANCE CORPORATION, a Delaware corporation (the "Co-Borrower"), hereby
jointly and severally, unconditionally promise to pay to the order of _____ (the
"Lender") at the office of JPMorgan Chase Bank located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in lawful money of the United States of America and in
immediately available funds, the principal amount of _________ ($_______), in
installments on the dates and in the principal amounts provided in the that
certain Term Loan Supplement dated ______________, 200__ by and among the
Borrower, Co-Borrower, the Administrative Agent and the Additional Term Loan
Lenders party thereto (the "Term Loan Supplement"), and on such other dates and
in such other amounts set forth in the Credit Agreement hereinafter referred to.
Each of the undersigned further agrees to pay interest in like
money at such office on the unpaid principal amount hereof from time to time
from the date hereof at the applicable rate per annum set forth in Section 4.4
of the Credit Agreement until any such amount shall become due and payable
(whether at the stated maturity, by acceleration or otherwise), and thereafter
on such overdue amount at the rate per annum set forth in subsection 4.4(c) of
said Credit Agreement until paid in full (both before and after judgment).
Interest shall be payable in arrears on each Interest Payment Date commencing on
the first such date to occur after the date hereof, provided that interest
accruing pursuant to subsection 4.4(c) of the Credit Agreement shall be payable
on demand. In no event shall the interest payable hereon, whether before or
after maturity, exceed the maximum interest which, under applicable law, may be
charged on this Note, and this Note is expressly made subject to the provisions
of the Credit Agreement which more fully set out the limitations on how interest
accrues hereon.
The holder of this Note is authorized to record the date, type
and amount of each Additional Term Loan made by the Lender pursuant to Section
2.1 of said Credit Agreement and the Term Loan Supplement, each continuation
thereof, each conversion of all or a portion thereof to another type, the date
and amount of each payment or prepayment of principal with respect thereto, and,
in the case of Eurodollar Loans, the length of each Interest Period with respect
thereto, on the schedules annexed hereto and made a part hereof, or on a
continuation thereof which shall be attached hereto and made a part hereof,
which recordation shall constitute prima facie evidence of the accuracy of the
information recorded in the absence of manifest error; provided that failure by
the Lender to make any such recordation on this Note shall not affect the
obligations of the Borrower under this Note, the Term Loan Supplement or said
Credit Agreement.
This Note is one of the Additional Term Loan Notes referred to
in the Seventh Amended and Restated Credit Agreement, dated as of March 23,
1995, as amended and restated through September 26, 2003 (as further amended,
supplemented or otherwise modified from time
Exhibit A-3 (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
to time, the "Credit Agreement"), among the Borrower, the Co-Borrower, the
Lender, the other financial institutions parties thereto and JPMorgan Chase
Bank, as Administrative Agent, is entitled to the benefits thereof, is secured
as provided therein and is subject to optional and mandatory prepayment in whole
or in part as provided therein. Terms used herein which are defined in the
Credit Agreement shall have such defined meanings unless otherwise defined
herein or unless the context otherwise requires.
Upon the occurrence of any one or more of the Events of
Default specified in said Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable
all as provided therein.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
GULFTERRA ENERGY PARTNERS, L.P.
By:________________________________________
Name:______________________________________
Title:_____________________________________
GULFTERRA ENERGY FINANCE CORPORATION
By:________________________________________
Name:______________________________________
Title:_____________________________________
Exhibit A-3 (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE A TO ADDITIONAL TERM LOAN NOTE
EURODOLLAR LOANS AND CONVERSIONS AND
PAYMENTS WITH RESPECT TO EURODOLLAR LOANS
Amount of Amount of
Eurodollar Loans Eurodollar Loans Paid
Made or Converted Interest Period and or Converted into Unpaid Principal
from Alternate Base Eurodollar Rate with Alternate Base Rate Distribution Balance of Eurodollar Notation
Date Rate Loans Respect Thereto Loans Loan (Yes/No) Loans Made By
---- ---------- --------------- ----- ------------- ----- -------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
------ ------- ------- ------- -------- -------- --------
Schedule A to Additional Term Loan Note (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE B TO ADDITIONAL TERM LOAN NOTE
ALTERNATE BASE RATE LOANS AND CONVERSIONS AND PAYMENTS
WITH RESPECT TO ALTERNATE BASE RATE LOANS
Amount of
Alternate Base Amount of
Rate Loans Made Alternate Base
or Converted Rate Loans Paid Unpaid Principal
from Eurodollar or Converted into Distribution Balance of Alternate Base
Date Loans Eurodollar Loans Loan (Yes/No) Rate Loans Notation Made By
---- ----- ---------------- ------------- ---------- ----------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- ------------
----- ------- ------- ------- ------- --------
Schedule B to Additional Term Loan Note (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT B
[FORM OF TERM LOAN ADDENDUM]
Pursuant to subsection 2.1(c) of the Seventh Amended and Restated
Credit Agreement, dated as of March 23, 1995, as amended and restated through
September 26, 2003 (the "Credit Agreement"), among GulfTerra Energy Partners,
L.P., a Delaware limited partnership (the "Borrower"), GulfTerra Energy Finance
Corporation, a Delaware corporation (the "Co-Borrower"), the several banks and
other financial institutions from time to time parties thereto (the "Lenders"),
and JPMorgan Chase Bank, as administrative agent (the "Administrative Agent"),
the undersigned hereby execute this Term Loan Addendum dated as of ____________,
200_ (this "Addendum"). Capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
In consideration of the premises and the mutual covenants contained
herein, the parties hereto hereby agree as follows:
1. Subject to the terms and conditions hereof and in the Credit
Agreement, each Additional Term Loan Lender party to this Addendum agrees to
make, on the Additional Term Loan Closing Date, term loans (the "Series [___]
Additional Term Loans") to the Borrower in an aggregate principal amount not to
exceed such Lender's Additional Term Loan Commitment set forth on Schedule I
attached hereto under the heading "Additional Term Loan Commitment". Once
repaid, the Series [___] Additional Term Loans may not be reborrowed.
2. The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Additional Term Loan Lender party
to this Addendum (a) [Insert repayment terms] and (b) the then unpaid principal
amount of each Series [____] Additional Term Loan on the Additional Term Loan
Maturity Date (as defined below).
3. The "Applicable Margin" for the Series [___] Additional Term
Loans shall be [Insert pricing terms].
4. The "Additional Term Loan Maturity Date" for the Series [___]
Additional Term Loans shall be [Insert maturity date].
5. The "Additional Term Loan Closing Date" for the Series [____]
Additional Term Loans shall be the date on which the conditions set forth in
Section 6.4 of the Credit Agreement are first satisfied or waived in respect of
the Series ___ Additional Term Loans, which shall occur on or prior to
___________, 200__.
6. Each Additional Term Loan Lender party to this Addendum hereby
acknowledges that it has received and reviewed a copy (in execution form) of the
Credit Agreement, and agrees, effective as of the Additional Term Loan Closing
Date, to:
(a) join the Credit Agreement as an Additional Term Loan
Lender thereunder;
(b) be bound by all the terms in the Credit Agreement,
other Loan Documents existing as of the date hereof and any other Loan Document
to which it is a party; and
Exhibit B (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) perform all obligations required of it by the Credit
Agreement and any other Loan Document to which it is a party, including, if it
is organized under the laws of a jurisdiction outside the United States, its
obligation pursuant to Section 4.10 of the Credit Agreement to deliver the forms
prescribed by the Internal Revenue Service of the United States certifying as to
the Assignee's exemption from United States withholding taxes with respect to
all payments to be made to the Assignee under the Credit Agreement, or such
other documents as are necessary to indicate that all such payments are subject
to such tax at a rate reduced by an applicable tax treaty.
7. Subject to Article X of the Credit Agreement, each Additional
Term Loan Lender party to this Addendum hereby irrevocably designates and
appoints JPMorgan as the Administrative Agent of such Lender under the Credit
Agreement, this Addendum and the other Loan Documents, and each such Lender
irrevocably authorizes JPMorgan, as the Administrative Agent for such Lender, to
take such action on its behalf under the provisions of the Credit Agreement,
this Addendum and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent by
the terms of the Credit Agreement, this Addendum and the other Loan Documents,
together with such other powers as are reasonably incidental thereto.
8. Subject to Article XII of the Credit Agreement, each
Additional Term Loan Lender party to this Addendum hereby irrevocably designates
and appoints JPMorgan as the Collateral Agent of such Lender under the Credit
Agreement, this Addendum and the other Loan Documents, and each such Lender
irrevocably authorizes JPMorgan, as the Collateral Agent for such Lender, to
take such action on its behalf under the provisions of the Credit Agreement,
this Addendum and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Collateral Agent by the
terms of the Credit Agreement, this Addendum and the other Loan Documents,
together with such other powers as are reasonably incidental thereto.
9. Each Additional Term Loan Lender party to this Addendum hereby
consents and agrees (i) to the provisions of the Intercreditor Agreement,
including the indemnity provisions set forth in [Section 5] thereof and (ii)
that the address for notices under Section 11.1 of the Credit Agreement to such
Additional Term Loan Lender is specified in Schedule I attached hereto.
10. THIS ADDENDUM AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11. This Addendum may be executed by one or more of the parties to
this Addendum on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Addendum signed by all the parties shall
be lodged with the Borrower and the Administrative Agent.
IN WITNESS WHEREOF, the undersigned has executed this Addendum as of
the ___th day of _________, 200_.
Exhibit B (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
BORROWER:
GULFTERRA ENERGY PARTNERS, L.P.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
CO-BORROWER:
GULFTERRA ENERGY FINANCE CORPORATION
By:_________________________________________
Name:_______________________________________
Title:______________________________________
ADMINISTRATIVE AGENT:
JPMORGAN CHASE BANK,
as Administrative Agent
By:_________________________________________
Name:_______________________________________
Title:______________________________________
[ADDITIONAL TERM LOAN LENDERS]:
____________________________________________
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Exhibit B (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE I TO TERM LOAN ADDENDUM
FOR SERIES [ ] ADDITIONAL TERM LOANS
ADDITIONAL TERM LOAN LENDERS, ADDITIONAL TERM LOAN
COMMITMENTS AND ADDITONAL TERM LOAN COMMITMENT PERCENTAGES
----------------------------------------------------------------------
ADDITIONAL ADDITIONAL TERM
ADDITIONAL TERM LOAN LENDER TERM LOAN LOAN COMMITMENT
NAME AND ADDRESS FOR NOTICES TITLE COMMITMENT PERCENTAGE
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Schedule I to Term Loan Addendum (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT C
[FORM OF GUARANTEES AND SECURITY DOCUMENTS CONFIRMATION]
GUARANTEES AND SECURITY DOCUMENTS CONFIRMATION, dated as of September
25, 2003 (this "Confirmation"), to each of the following documents:
A. Amended and Restated EPEPC Guarantee, dated as of October 10,
2002, as amended and supplemented prior to the date hereof (the "EPEPC
Guarantee"), made by El Paso Energy Partners Company, L.L.C. ("EPEPC") in favor
of, among others, the Administrative Agent, the Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders (each as defined herein);
B. General Partner Guarantee, dated as of May 5, 2003 (the "GP
Guarantee" and, together with the EPEPC Guarantee, the "Guarantees"), made by
GulfTerra Energy Company, L.L.C., a Delaware limited liability company (the
"General Partner"), in favor of the Administrative Agent, the Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders; and
C. General Partner Security Agreement (G&A Agreement), dated as
of May 5, 2003, as amended and supplemented prior to the date hereof (the "GP
Security Agreement"), made by the General Partner in favor of JPMorgan Chase
Bank, as collateral agent (the "Collateral Agent") for the ratable benefit of
the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders;
(each as further amended, supplemented, waived, conformed or otherwise
modified from time to time, and including by this Confirmation, collectively,
the "Guarantees and Security Documents").
W I T N E S S E T H :
WHEREAS, concurrently with the execution of this Confirmation,
GulfTerra Energy Partners, L.P., a Delaware limited partnership (formerly El
Paso Energy Partners L.P.) (the "Borrower"), GulfTerra Energy Finance
Corporation (formerly El Paso Energy Partners Finance Corporation), a Delaware
corporation (the "Co-Borrower"), the Lenders parties thereto (the "Lenders"),
Fortis Capital Corp., as syndication agent, Credit Lyonnais New York Branch, BNP
Paribas and Wachovia Bank, National Association, as co-documentation agents, and
JPMorgan Chase Bank, as administrative agent (in such capacity, the
"Administrative Agent"), are entering into the Seventh Amended and Restated
Credit Agreement, dated as of March 23, 1995, as amended and restated as of
September 25, 2003 (and as may be further amended, modified or supplemented from
time to time, the "Credit Agreement"); and
WHEREAS, each of the signatories (other than the Administrative Agent
and the Collateral Agent) hereto is a party to one or more of the Guarantees and
Security Documents and wishes to acknowledge and confirm that (i) its
obligations, and the Liens and security interests created, under each of the
Guarantees and Security Documents to which it is a party continue in full force
and effect, unimpaired and undischarged, and (ii) the obligations guaranteed by
and secured by (or, in the case of the obligations of each of the Confirming
Parties (as defined below), other than the Borrower and the Co-Borrower under
the Security Documents, secured indirectly by) the Liens and security interests
created under each of the Guarantees and Security
Exhibit C (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Documents shall be the obligations of the Borrower and the Co-Borrower under the
Credit Agreement.
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to continue to make extensions of credit under the Credit Agreement,
each of the signatories hereto hereby agrees with the Administrative Agent and
the Collateral Agent, for the ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders, as follows:
1. Unless otherwise defined herein or in the Recitals and
introductory paragraphs, capitalized terms used herein shall have the respective
meanings assigned to them in the Credit Agreement and the other Loan Documents
(as defined in the Credit Agreement), as such other Loan Documents may be
amended, supplemented or modified hereby.
2. Each of EPEPC and the General Partner hereby confirm their
obligations under their respective Guarantees to guarantee as a primary obligor
to the Administrative Agent, the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, the prompt
and complete payment by the Borrower and the Co-Borrower when due of the
Obligations.
3. Each of EPEPC and the General Partner hereby consents to the
execution, delivery and performance of the Credit Agreement. Each of EPEPC and
the General Partner agrees that each reference to the "EPN Credit Agreement" in
each of the Guarantees and Security Documents to which it is a party shall be
deemed to be a reference to the Credit Agreement as defined herein.
4. The EPEPC Guarantee is hereby amended as follows:
(a) The definition of "Commitments" set forth in the
EPEPC Guarantee is hereby amended to read in its entirety as follows:
"Commitments": the "Revolving Loan Commitments" and the "Additional
Term Loan Commitments" as defined in the Credit Agreement.
(b) The definition of "Obligations" set forth in the
EPEPC Guarantee is amended to read in its entirety as follows:
"Obligations": (i) the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans
and interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like
proceeding, relating to any Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding)
the Notes and all other obligations and liabilities of any Borrower to
the Administrative Agent or the Lenders, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
Credit Agreement, the other Loan Documents or any other document made,
delivered or given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or any of the
Lenders) or otherwise and (ii) the ▇▇▇▇▇ ▇▇▇▇ Clawback.
(c) The terms "EPN Group Administrative Agents" and the
"EPN Group Lenders" as defined in the Recitals to the EPEPC Guarantee
are hereby amended to have
Exhibit C (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
the meanings ascribed to the terms "Administrative Agent" and "Lender",
respectively, defined in this Confirmation.
(d) All references to the terms "Senior Secured
Acquisition Term Loan Credit Agreement" are hereby deleted.
5. The GP Guarantee is hereby amended as follows:
(a) The definition of "Commitments" set forth in the GP
Guarantee is hereby amended to read in its entirety as follows:
"Commitments": the "Revolving Loan Commitments" and the "Additional
Term Loan Commitments" as defined in the Credit Agreement.
(b) The definition of "Obligations" set forth in the GP
Guarantee is amended to read in its entirety as follows: "Obligations":
(i) the unpaid principal of and interest on (including, without
limitation, interest accruing after the maturity of the Loans and
interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to any Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Notes and all
other obligations and liabilities of any Borrower to the Administrative
Agent or the Lenders, whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Credit
Agreement, the other Loan Documents or any other document made,
delivered or given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or any of the
Lenders) or otherwise and (ii) the ▇▇▇▇▇ ▇▇▇▇ Clawback.
(c) The terms the "EPN Group Administrative Agents" and
the "EPN Group Lenders" as defined in the Recitals to the GP Guarantee
are hereby amended to have the meanings ascribed to the terms
"Administrative Agent" and "Lender", respectively, defined in this
Confirmation.
6. The GP Security Agreement is hereby amended as follows:
(a) The terms "EPN Group Administrative Agents" and the
"EPN Group Lenders" as defined in GP Security Agreement are hereby
amended to have the meanings ascribed to the terms "Administrative
Agent" and "Lender", respectively, defined in this Confirmation.
(b) All references to the terms "Senior Secured
Acquisition Term Loan Credit Agreement" are hereby deleted.
7. Each of the signatories hereto (other than the Administrative
Agent and Collateral Agent) (a "Confirming Party") hereby agrees, with respect
to each Guarantee and Security Document that it has executed, that:
Exhibit C (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(a) all of its obligations, liabilities and indebtedness
under the Guarantees and Security Documents remain in full force and
effect on a continuous basis after giving effect to the Credit
Agreement and to this Confirmation;
(b) all of the Liens and security interests created and
arising under the Guarantees and Security Documents remain in full
force and effect on a continuous basis and having the same perfected
status and priority, after giving effect to the Credit Agreement and
this Confirmation, as collateral security for the Obligations and the
other obligations of such Confirming Party under the Guarantees and
Security Documents;
(c) all of the obligations, liabilities and indebtedness
of the Borrower under the Credit Agreement are continued in full force
and effect on a continuous basis, unpaid and undischarged, after giving
effect to the Credit Agreement;
(d) the perfected status and priority of each Lien and
security interest created under the Guarantees and Security Documents
continues in full force and effect on a continuous basis, unimpaired,
uninterrupted and undischarged, after giving effect to the Credit
Agreement, as collateral security for the Obligations (and the other
obligations of such Confirming Party under the Guarantees and Security
Documents.
8. Except as set forth in the proviso below, each Confirming
Party that is a party to any Guarantee or Security Document hereby confirms all
of its payment and performance obligations thereunder; provided, that
notwithstanding anything to the contrary in any Loan Document or any of the
Guarantees and Security Documents, the Co-Borrower is obligated under, and has
granted liens under, such Loan Documents as a co-obligor, jointly and severally
liable with the Borrower, and not as a Subsidiary Guarantor. The Obligations (as
defined in the Borrower Security Agreement) with respect to the Co-Borrower
relate to its obligations as a co-obligor with the Borrower and not as a
guarantor.
9. Each Confirming Party agrees that it shall take any action
reasonably requested by the Administrative Agent or the Collateral Agent in
order to confirm or effect the intent of this Confirmation. Each Confirming
Party agrees that it shall prepare updated schedules to the Guarantees and
Security Documents with respect to the information required to be provided by it
thereunder.
10. This Confirmation shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
11. This Confirmation may be executed by one or more of the
parties hereto on any number of separate counterparts (including by telecopy),
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
[SIGNATURE PAGE BEGINS ON NEXT PAGE]
Exhibit C (Page 4)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the undersigned have caused this Confirmation to be
executed and delivered by a duly authorized officer on the date first above
written.
GULFTERRA ENERGY COMPANY, L.L.C.
GULFTERRA ENERGY FINANCE CORPORATION
GULFTERRA ENERGY PARTNERS, L.P.
EL PASO ENERGY PARTNERS COMPANY, L.L.C.
By: ________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President and Chief Financial
Officer
Accepted and acknowledged as of
the date first above written:
JPMORGAN CHASE BANK,
as Administrative Agent and Collateral Agent
By: _________________________________
Name: _________________________________
Title: _________________________________
Exhibit C (Page 5)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT D
FORM AMENDED AND RESTATED
BORROWER SECURITY AGREEMENT
Exhibit D
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED
BORROWER PLEDGE AGREEMENT
AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT, dated as of September
26, 2003, made by GULFTERRA ENERGY PARTNERS, L.P., a Delaware limited
partnership (the "Pledgor"), in favor of JPMORGAN CHASE BANK, as collateral
agent (in such capacity, the "Collateral Agent"), for the ratable benefit of (a)
the banks and other financial institutions (the "Lenders") parties to the
Amended and Restated Credit Agreement, dated as of March 23, 1995 and as amended
and restated as of September 26, 2003 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among the Pledgor, GulfTerra
Energy Finance Corporation, a Delaware corporation, as the co-borrower
("Co-Borrower"), the Lenders and JPMORGAN CHASE BANK, as administrative agent
(in such capacity, the "Administrative Agent"), and (b) the ▇▇▇▇▇ ▇▇▇▇ Lenders
(as defined in the Credit Agreement).
W I T N E S S E T H :
WHEREAS, the Pledgor and the Collateral Agent are parties to that
certain Consolidated Amended and Restated Borrower Pledge Agreement dated as of
October 10, 2002 (as amended, supplemented and otherwise modified prior to the
date hereof, the "Existing Pledge Agreement");
WHEREAS, pursuant to the provisions of Section 7.10 of the Credit
Agreement, the Pledgor agreed that it would deliver, and would cause each Person
that is a party (or is required to be a party) to any Security Document, other
than the Collateral Agent, to deliver, amended and restated Security Documents,
together with supplemented and corrected schedules, exhibits or other documents,
if any, that are necessary to accurately reflect the collateral existing as of
the Closing Date that is pledged as security for the Obligations (as hereinafter
defined);
WHEREAS, the Pledgor is (a) the owner of a 100% limited liability
company interest in each of the limited liability companies listed on Schedule I
hereto (which, collectively and together with any other limited liability
company Subsidiary of the Pledgor formed or acquired after the date of this
Agreement whose ownership interests are owned of record by the Pledgor and will
be pledged to the Collateral Agent hereunder, are referred to herein as the
"LLCs"); (b) the owner of all of the limited partner interests in each of the
limited partnerships listed on Schedule I hereto (which, collectively and
together with any other limited or general partnership Subsidiary of the Pledgor
formed or acquired after the date of this Agreement whose ownership interests
are owned of record by the Pledgor and will be pledged to the Collateral Agent
hereunder, are referred to herein as the "Partnerships"); and (c) the legal and
beneficial owner of the shares of Pledged Stock (as hereinafter defined) issued
by the Co-Borrower (collectively, the Co-Borrower and any other corporate
Subsidiary of the Pledgor formed or acquired after the date of this Agreement
whose ownership interests are owned of record by the Pledgor and will be pledged
to the Collateral Agent hereunder are referred to herein as the "Corporations",
and collectively, the Corporations, the LLCs, the Partnerships and any other
type of Subsidiary of the Pledgor formed or acquired after the date of this
Agreement whose ownership interests are owned of record by the Pledgor and will
be pledged to the Collateral Agent hereunder, are referred to herein as the
"Subsidiaries");
Exhibit D (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
NOW, THEREFORE, in consideration of the premises and to comply with the
requirements of Section 7.10 of the Credit Agreement, the Pledgor hereby agrees
with the Collateral Agent, for the ratable benefit of the Group Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders, that the Existing Pledge Agreement is hereby amended and
restated to read in its entirety as follows:
1. DEFINED TERMS: As used in this Agreement, terms defined in the
Credit Agreement or in the recitals hereto shall have their defined meanings
when used herein, and the following terms shall have the following meanings:
"Account Debtor": a Person (other than the Borrower) obligated on an
Account, Chattel Paper or General Intangible.
"Agreement": this Amended and Restated Borrower Pledge Agreement, as
the same may from time to time be amended, supplemented or otherwise modified.
"Certificate of Formation": with respect to any LLC or Partnership that
is a limited partnership, its certificate of formation.
"Certificate of Incorporation": with respect to any Corporation, its
certificate or articles of incorporation, as applicable.
"Collateral": the Interests (including, without limitation, the Pledged
Certificates), the Pledged Stock and all Proceeds. The obligations of the Loan
Parties to provide Collateral are limited by paragraphs (c) and (d) of
subsection 7.10 of the Credit Agreement.
"Commitments": the "Revolving Loan Commitments" and "Additional Term
Loan Commitments" as defined in the Credit Agreement.
"Governing Documents": (a) with respect to any LLC, its Certificate of
Formation and its LLC Agreement; (b) with respect to any Partnership that is a
limited partnership, its Certificate of Formation and limited partnership
agreement; (c) with respect to any Partnership that is a general partnership,
its partnership agreement; (d) with respect to any Corporation, its Certificate
of Incorporation and by-laws, and (e) with respect to any other Non-Corporate
Subsidiary, its declaration of trust or other governing document.
"Interests": all right, title and interest, now existing or hereafter
acquired, of the Pledgor in the Non-Corporate Subsidiaries but
not any of its obligations from time to time as a member or
partner therein (unless the Collateral Agent shall become a
member or partner therein as a result of its exercise of
remedies pursuant to the terms hereof);
(ii) any and all moneys due and to become due to
the Pledgor now or in the future by way of a distribution made
to the Pledgor in its capacity as a member or partner of or
the owner of any limited liability company interest, limited
or general partner interest or other equity interest in any of
the Non-Corporate Subsidiaries or otherwise in respect of the
Pledgor's interest as a member of or partner in the
Non-Corporate
Exhibit D (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Subsidiaries or the owner of any limited liability company
interests, limited or general partner interests or other
equity interests in any of the Non-Corporate Subsidiaries;
(iii) any other property of any of the
Non-Corporate Subsidiaries to which the Pledgor now or in the
future may be entitled in its capacity as a member of, partner
in or owner of any limited liability company interest, limited
or general partner interest or other equity interest in any
such Non-Corporate Subsidiary by way of distribution, return
or otherwise;
(iv) any other claim which the Pledgor now has or
may in future acquire in its capacity as member of, partner in
or owner of any limited liability company interest, limited or
general partner interest or other equity interest in any of
the Non-Corporate Subsidiaries against any such Non-Corporate
Subsidiary and its property;
(v) to the extent not otherwise included, (A)
all Proceeds of any or all of the foregoing, and (B) all
Supporting Obligations (as such term is defined in the UCC)
with respect to the foregoing.
"LLC Agreement": with respect to any LLC, its limited liability company
agreement.
"Non-Corporate Subsidiaries": all Subsidiaries other than the
Corporations.
"Obligations": (i) the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Pledgor or the Co-Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Notes and all other
obligations and liabilities of the Pledgor and Co-Borrower to the Administrative
Agent or the Lenders, whether direct or indirect, absolute or contingent, due or
to become due, now existing or hereafter incurred, which may arise under, out
of, or in connection with, the Credit Agreement, the other Loan Documents or any
other document made, delivered or given in connection therewith, whether on
account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and disbursements of
counsel to the Administrative Agent or any of the Lenders) or otherwise, and
(ii) all obligations, liabilities and indebtedness of the Pledgor under and
pursuant to the ▇▇▇▇▇ ▇▇▇▇ Clawback.
"Pledged Certificates": the certificates of limited liability company
interests of the LLCs listed on Schedule I(A) hereto, together with all limited
liability company certificates, partnership interest certificates, stock
certificates, options or rights of any nature whatsoever that may be issued or
granted by any LLC to the Pledgor while this Agreement is in effect.
"Pledged Stock": the shares of capital stock listed on Schedule I(B)
hereto, together with all stock certificates, options or rights of any nature
whatsoever that may be
Exhibit D (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
issued or granted by the issue of such capital stock to the Pledgor while this
Agreement is in effect.
"Proceeds": All "proceeds" (as such term is defined in Section 9-102 of
the Uniform Commercial Code in effect in the State of New York on the date
hereof) including, without limitation, all income, gain, credit, distributions,
dividends and similar items from or with respect to the Interests (including,
without limitation, the Pledged Certificates) and the Pledged Stock, collections
thereon or distributions with respect thereto.
"UCC" or "Uniform Commercial Code": the Uniform Commercial Code from
time to time in effect in the State of New York.
2. ASSIGNMENT AND GRANT OF SECURITY INTEREST. As collateral
security for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of all the Obligations,
the Pledgor hereby delivers to the Collateral Agent all the Pledged Certificates
and all the Pledged Stock and sells, assigns, conveys, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, and hereby grants to the
Collateral Agent, for the ratable benefit of the Group Lenders and the ▇▇▇▇▇
▇▇▇▇ Lenders, a first security interest in, to and under the Collateral. The
Pledgor will cause each of the Subsidiaries to execute an Acknowledgement and
Consent substantially in the form of Exhibit B hereto. Interests in certain of
the Non-Corporate Subsidiaries may not be evidenced by certificates. In the case
of such Non-Corporate Subsidiaries, the Collateral Agent agrees that it will not
give any instructions to the Non-Corporate Subsidiaries pursuant to the
provisions of such Acknowledgement and Consent except upon the occurrence and
during the continuance of an Event of Default.
3. TRANSFER POWERS. Concurrently with the delivery to the
Collateral Agent of each Pledged Certificate and each certificate representing
one or more shares of Pledged Stock to the Collateral Agent, the Pledgor shall
deliver an undated transfer power covering each such certificate, duly executed
in blank by the Pledgor with, if the Collateral Agent so requests, signature
guaranteed.
4. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants that:
(a) the Pledgor has the power and authority and the legal
right to execute and deliver, to perform its obligations under, and to
grant the Lien on the Collateral pursuant to, this Agreement and has
taken all necessary action to authorize its execution, delivery and
performance of, and grant of the Lien on the Collateral pursuant to,
this Agreement;
(b) this Agreement constitutes a legal, valid and binding
obligation of the Pledgor enforceable against the Pledgor in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles;
Exhibit D (Page 4)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) the execution, delivery and performance of this
Agreement will not violate any provision of any Requirement of Law or
Contractual Obligation of the Pledgor and will not result in the
creation or imposition of any Lien on any of the properties or revenues
of the Pledgor pursuant to any Requirement of Law or Contractual
Obligation of the Pledgor, except as contemplated hereby;
(d) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority and
no consent of any other Person (including, without limitation, any
creditor of the Pledgor or any of the Subsidiaries), is required in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement;
(e) no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Pledgor, threatened by or against the Pledgor or
against any of the Collateral with respect to this Agreement or any of
the transactions contemplated hereby;
(f) the Pledgor is the record and beneficial owner of,
and has good and legal title to, the Interests and the Pledged Stock,
free of any and all Liens or options in favor of, or claims of, any
other Person, except the Liens created by this Agreement or permitted
under the Credit Agreement, and (i) all the Pledged Certificates have
been duly and validly issued and (ii) all the shares of Pledged Stock
have been duly and validly issued and are fully paid and nonassessable;
(g) upon delivery to the Collateral Agent of the Pledged
Certificates and the stock certificates evidencing the Pledged Stock
and upon the filing of the financing statements described on Schedule
II to this Agreement, the Lien granted pursuant to this Agreement will
constitute a valid, perfected first priority Lien on the Collateral
(except for any Liens on the Collateral permitted to exist under the
Credit Agreement), prior to all other Liens on the Collateral created
by the Pledgor and in existence on the date hereof, which will be
enforceable as such as against all creditors of the Pledgor and any
Persons purporting to purchase any Collateral from the Pledgor, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally. All action necessary or desirable to
perfect such security interest in each item of the Collateral requested
by the Collateral Agent, including the filing of financing statements
in the offices referred to on Schedule II to this Agreement has been or
will be duly taken;
(h) as of the Restatement Closing Date: (i) the name of
the Pledgor as indicated on the public record of the Pledgor's
jurisdiction of organization, which shows the Pledgor to have been
organized, is "GulfTerra Energy Partners, L.P."; (ii) the Pledgor's
mailing address is Four ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; (iii) the
Pledgor is a Delaware limited partnership, and the Pledgor's
organizational identification number in the State of Delaware is
2317845; (iv) the Pledgor was formerly known as "El Paso Energy
Partners, L.P." and as "Leviathan Gas Pipeline Partners, L.P."; and (v)
other than these names, the Pledgor has not used any other name or
trade name since September 15, 1998;
Exhibit D (Page 5)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(i) as of the Restatement Closing Date: (i) each of the
LLCs is a limited liability company duly formed and validly existing
under the laws of the State of Delaware, (ii) each of the Partnerships
is a general or limited partnership (as the case may be) duly formed
and validly existing under the laws of the State of Delaware, and (iii)
the Co-Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware; and
(j) each of the Subsidiaries has all the requisite power
and authority to own and operate its properties, to lease the
properties it operates and to carry on its business as now conducted
and is duly qualified as a foreign limited liability company or a
foreign corporation and in good standing in each jurisdiction in which
the character of its properties owned or the nature of the activities
conducted by it makes such qualification or licensing necessary, except
where failure to be so qualified could not have a Material Adverse
Effect. Except to the extent set forth on Schedule I(A) hereto, as of
the Restatement Closing Date, (i) the Pledgor is the sole owner of each
of the LLCs and the limited partner interests of the Partnerships, and
the nature of the Pledgor's interest in each of the LLCs and
Partnerships is as set forth on Schedule I(A) hereto; (ii) the shares
of Pledged Stock constitutes the Pledgor's percentage interest of all
the issued and outstanding shares of all classes of the capital stock
of each Corporation, as such percentage is set forth on Schedule I(B)
hereto; (iii) the list of certificates set forth on (I) Schedule I(A)
constitutes a full and complete list of all the certificates of limited
liability company interests of the LLCs owned by the Pledgor and (II)
Schedule I(B) constitutes a full and complete list of all of the issued
and outstanding shares of capital stock of any class of each corporate
or other Subsidiary beneficially owned by the Pledgor (whether or not
registered in the name of the Pledgor) and said Schedule I(B) correctly
identifies the respective class and par value of the shares comprising
such Pledged Stock and the respective number of shares (and registered
owners thereof) represented by each such certificate; and (iv) complete
and correct copies of the Governing Documents of each Subsidiary have
been delivered to the Collateral Agent.
5. COVENANTS. The Pledgor covenants and agrees with the
Collateral Agent that, from and after the date of this Agreement until the
Obligations are paid in full:
(a) If the Pledgor shall, as a result of its ownership of
the Collateral, become entitled to receive or shall receive any limited
liability company interest, any stock certificate or other certificate
(including, without limitation, any certificate representing a stock
dividend or distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights, whether in
addition to, in substitution of, as a conversion of, or in exchange for
Interests or any shares of the Pledged Stock, or otherwise in respect
thereof, the Pledgor shall accept the same as the Collateral Agent's
agent, hold the same in trust for the Collateral Agent and deliver the
same forthwith to the Collateral Agent in the exact form received, duly
indorsed by the Pledgor to the Collateral Agent, if required, together
with an undated stock power covering such certificate duly executed in
blank and with, if the Collateral Agent so requests, signature
guaranteed, to be held by the Collateral
Exhibit D (Page 6)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Agent hereunder as additional collateral security for the Obligations.
Any sums paid upon or in respect of the Pledged Stock upon the
liquidation or dissolution of any corporate or other Subsidiary, such
payments shall be paid over to the Collateral Agent to be held by it
hereunder as additional collateral security for the Obligations, and in
case any distribution of capital shall be made on or in respect of the
Collateral or any property shall be distributed upon or with respect to
the Collateral pursuant to the recapitalization or reclassification of
the capital of any of the Subsidiaries, or pursuant to the
reorganization thereof, the property so distributed shall be delivered
to the Collateral Agent to be held by it, subject to the terms hereof,
as additional collateral security for the Obligations. If any sums of
money or property so paid or distributed in respect of the Collateral
shall be received by the Pledgor, the Pledgor shall, until such money
or property is paid or delivered to the Collateral Agent, hold such
money or property in trust for the Collateral Agent, segregated from
other funds of the Pledgor, as additional collateral security for the
Obligations.
(b) The Pledgor will defend the right, title and interest
of the Collateral Agent in and to the Collateral against the claims and
demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written
request of the Collateral Agent, and at the sole expense of the
Pledgor, the Pledgor will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the
Collateral Agent may reasonably request for the purposes of obtaining
or preserving the full benefits of this Agreement and of the rights and
powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code
in effect in any jurisdiction with respect to the Lien granted hereby.
The Pledgor hereby authorizes the Collateral Agent, its counsel or its
representative, at any time and from time to time, to file financing
statements and amendments to financing statements that describe the
Collateral, in such jurisdictions as the Collateral Agent may deem
necessary or desirable in order to perfect or maintain the perfection
of the security interests granted by the Pledgor under this Agreement.
The Pledgor hereby further authorizes the Collateral Agent, its counsel
or its representative, at any time and from time to time, to file
continuation statements with respect to previously filed financing
statements. If any amount payable under or in connection with any of
the Collateral shall be or become evidenced by any promissory note or
other instrument, such note or instrument shall be immediately pledged
hereunder to the Collateral Agent, duly endorsed in a manner
satisfactory to the Collateral Agent.
(d) The Pledgor will advise the Collateral Agent
promptly, in reasonable detail, of any Lien or claim made or asserted
against any of the Collateral other than Liens created hereby and any
Lien or claim permitted under the Credit Agreement.
(e) The Pledgor agrees to pay, and to save the Collateral
Agent harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or
Exhibit D (Page 7)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
determined to be payable with respect to any of the Collateral or in
connection with any of the transactions contemplated by this Agreement.
(f) Promptly, but in no case later than 30 days after the
Pledgor forms (or acquires Capital Stock of) a Subsidiary that is to be
a Restricted Subsidiary, the Pledgor shall provide to the Collateral
Agent a supplement to this Agreement in the form of Exhibit A hereto,
which shall include a schedule supplementing Schedule I or Schedule II,
as the case may be, to pledge its ownership interests in such
Restricted Subsidiary to the Collateral Agent.
(g) The Pledgor recognizes that financing statements
pertaining to the Collateral have been or may be filed where the
Pledgor maintains any Collateral or is organized. Without limitation of
any other covenant herein, the Pledgor will not cause or permit (i) any
change to be made in its name, identity or corporate structure or (ii)
any change to the Pledgor's jurisdiction of organization, unless the
Pledgor shall have first (1) notified the Collateral Agent of such
change at least thirty (30) days prior to the effective date of such
change, and (2) taken all action reasonably requested by the Collateral
Agent for the purpose of maintaining the perfection and priority of the
Collateral Agent's security interests and rights under this Agreement.
In any notice furnished pursuant to this subsection, the Pledgor will
expressly state that the notice is required by this Agreement and
contains facts that may require additional filings of financing
statements or other notices for the purposes of continuing perfection
of the Collateral Agent's security interest in the Collateral.
6. CASH DISTRIBUTIONS; CASH DIVIDENDS; VOTING RIGHTS. Unless an
Event of Default shall have occurred and be continuing, the Pledgor shall be
permitted to receive (a) all cash distributions paid in the normal course of
business of the LLCs and to exercise all voting, member and manager rights with
respect to the Interests, and (b) all cash dividends paid in the normal course
of business of any corporate or other Subsidiary and consistent with past
practice, in respect of the Pledged Stock and to exercise all voting and
corporate rights with respect to the Pledged Stock; provided, however, that no
vote shall be cast or right exercised or other action taken which, in the
Collateral Agent's reasonable judgment, would (i) impair the Collateral in a
manner that would reasonably be expected to have a Material Adverse Effect or
(ii) result in a breach of any provision of the Credit Agreement, the Notes, any
other Loan Document or this Agreement.
7. RIGHTS OF THE COLLATERAL AGENT.
(a) If an Event of Default shall occur and be continuing,
(i) the Collateral Agent shall have the right to receive and shall
receive any and all cash distributions or dividends paid in respect of
the Collateral and make application thereof to the Obligations in such
order as it may determine, and (ii) to the extent permitted by
applicable law, all shares or certificates of or evidencing the
Interests and the Pledged Stock shall be registered in the name of the
Collateral Agent or its nominee, and (whether or not so registered) the
Collateral Agent or its nominee may thereafter exercise (A) all voting,
corporate, member, manager and other rights pertaining to the Interests
or the shares of the Pledged Stock, as the case may be, and (B) any and
all rights of conversion, exchange, subscription and any other
Exhibit D (Page 8)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
rights, privileges or options pertaining to the Interests or such
shares of the Pledged Stock, as the case may be, as if it were the
absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Interests or the Pledged
Stock upon the merger, consolidation, reorganization, recapitalization
or other fundamental change in the structure of any of the
Subsidiaries, or upon the exercise by the Pledgor or the Collateral
Agent of any right, privilege or option pertaining to such shares or
certificates of or evidencing the Interests or the Pledged Stock, and
in connection therewith, the right to deposit and deliver any and all
of the Interests or the Pledged Stock with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms
and conditions as it may determine), all without liability except to
account for property actually received by it, but the Collateral Agent
shall have no duty to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
(b) The rights of the Collateral Agent hereunder shall
not be conditioned or contingent upon the pursuit by the Collateral
Agent of any right or remedy against any Subsidiary, or against any
other Person which may be or become liable in respect of all or any
part of the Obligations or against any other collateral security
therefor, guarantee thereof or right of offset with respect thereto.
The Collateral Agent shall not be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any
delay in doing so, nor shall it be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Pledgor or
any other Person or to take any other action whatsoever with regard to
the Collateral or any part thereof.
8. COLLATERAL AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) The Pledgor hereby irrevocably constitutes and
appoints the Collateral Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of the
Pledgor and in the name of the Pledgor or in its own name, from time to
time in the Collateral Agent's discretion, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Agreement
and, without limiting the generality of the foregoing, hereby gives the
Collateral Agent the power and right, on behalf of the Pledgor without
notice to or assent by the Pledgor to do the following:
(i) upon the occurrence and continuation of an
Event of Default to ask, demand, collect, receive and give
acceptances and receipts for any and all moneys due and to
become due with respect to the Collateral and, in the name of
the Pledgor or its own name or otherwise, to take possession
of, endorse and collect any checks, drafts, notes, acceptances
or other instruments for the payment of moneys due with
respect to the Collateral and to file any claim or to take any
other action or proceeding in any court of law or equity or
otherwise as deemed appropriate by the Collateral Agent
Exhibit D (Page 9)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
for the purpose of collecting any and all such moneys due with
respect to the Collateral or whenever payable;
(ii) to pay or discharge taxes, liens, security
interests or other encumbrances levied or placed on or
threatened against the Collateral; and
(iii) upon the occurrence and during the
continuance of an Event of Default, (A) to direct any Person
liable for any payment to the Pledgor with respect to the
Collateral to make payment of any and all moneys due and to
become due thereunder directly to the Collateral Agent or as
the Collateral Agent shall direct; (B) to receive payment of
and receipt for any and all moneys, claims and other amounts
due and to become due at any time in respect of or arising out
of any Collateral; (C) to sign and indorse any invoices,
drafts against debtors, assignments, verifications and notices
in connection with accounts and other documents relating to
the Collateral; (D) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral and to
enforce any other right in respect of any Collateral; (E) to
defend any suit, action or proceeding brought against the
Pledgor with respect to any Collateral; (F) to settle,
compromise or adjust any suit, action or proceeding described
above and, in connection therewith, to give such discharges or
releases as the Collateral Agent may deem appropriate; and (G)
generally, to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral as
fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and to do, at the
Collateral Agent's option and the Pledgor's expense, at any
time, or from time to time, all acts and things which the
Collateral Agent deems necessary to protect, preserve or
realize upon the Collateral and the Collateral Agent's
security interest therein, in order to effect the intent of
this Agreement, all as fully and effectively as the Pledgor
might do.
The Pledgor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof.
(b) The powers conferred on the Collateral Agent
hereunder are solely to protect its interests in the Collateral and
shall not impose any duty upon it to exercise any such powers. The
Collateral Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither it nor
any of its officers, directors, employees or agents shall be
responsible to the Pledgor, any Subsidiary or to any other member or
partner of or owner of any limited or general partner interest, limited
liability company interest or other equity interest in any
Non-Corporate Subsidiary for any act or failure to act.
(c) The Pledgor also authorizes the Collateral Agent, at
any time and from time to time, to execute, in connection with the sale
provided for in Section 9 of this Agreement, any endorsements,
assignments or other instruments of conveyance or transfer with respect
to the Collateral.
Exhibit D (Page 10)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
9. REMEDIES. If an Event of Default shall occur and be
continuing, the Collateral Agent may exercise, in addition to all other rights
and remedies granted in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of
a secured party under the UCC. Without limiting the generality of the foregoing
and to the extent permitted by applicable law, the Collateral Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon the Pledgor, any of the Subsidiaries or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived), may in
such circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, assign, give option
or options to purchase or otherwise dispose of and deliver the Collateral or any
part thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at any
exchange, broker's board or elsewhere upon such terms and conditions as it may
deem advisable and at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk. The Collateral Agent
shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Pledgor, which right or equity is hereby waived or released. The Collateral
Agent shall apply any Proceeds from time to time held by it and the net proceeds
of any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind incurred therein
or incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Collateral Agent hereunder,
including, without limitation, reasonable attorneys' fees and disbursements, to
the payment in whole or in part of the Obligations, in such order as the
Collateral Agent may elect, and only after such application and after the
payment by the Collateral Agent of any other amount required by any provision of
law, including, without limitation, Section 9-615 of the UCC, need the
Collateral Agent account for the surplus, if any, to the Pledgor. To the extent
permitted by applicable law, the Pledgor waives all claims, damages and demands
it may acquire against the Collateral Agent arising out of the exercise by the
Collateral Agent of any of its rights hereunder except to the extent any thereof
arise solely from the willful misconduct of the Collateral Agent. If any notice
of a proposed sale or other disposition of Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition. The Pledgor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of Collateral are
insufficient to pay the Obligations and the fees and disbursements of any
attorneys employed by the Collateral Agent or any Lender to collect such
deficiency.
10. REGISTRATION RIGHTS; PRIVATE SALES.
(a) If the Collateral Agent shall determine to exercise
its right to sell any or all of the Interests or the Pledged Stock, as
the case may be, pursuant to paragraph 9 hereof, and if in the opinion
of the Collateral Agent it is necessary or advisable to have the
Interests or the Pledged Stock, as the case may be, or that portion
thereof to be sold, registered under the provisions of the Securities
Act of 1933, as amended (the "Securities Act"), the Pledgor will cause
the relevant Subsidiaries to (i) execute and deliver, and cause the
managers, directors or officers
Exhibit D (Page 11)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
of the relevant Subsidiaries to execute and deliver, all such
instruments and documents, and do or cause to be done all such other
acts as may be, in the opinion of the Collateral Agent, necessary or
advisable to register the Interests or the Pledged Stock, as the case
may be, or that portion thereof to be sold, under the provisions of the
Securities Act, (ii) use its best efforts to cause the registration
statement relating thereto to become effective and to remain effective
for a period of one year from the date of the first public offering of
the Interests, or that portion thereof to be sold, and (iii) make all
amendments thereto and/or to the related prospectus which, in the
opinion of the Collateral Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules
and regulations of the Securities and Exchange Commission applicable
thereto. The Pledgor agrees to cause the relevant Subsidiaries to
comply with the provisions of the securities or "Blue Sky" laws of any
and all jurisdictions which the Collateral Agent shall designate and to
make available to its security holders, as soon as practicable, an
earnings statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act.
(b) The Pledgor recognizes that the Collateral Agent may
be unable to effect a public sale of any or all the Interests, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to
acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. The Pledgor
acknowledges and agrees that any such private sale may result in prices
and other terms less favorable to the Collateral Agent than if such
sale were a public sale and agrees that such circumstances shall not,
in and of themselves, result in a determination that such sale was not
made in a commercially reasonable manner. The Collateral Agent shall be
under no obligation to delay a sale of any of the Interests or the
Pledged Stock, as the case may be, for the period of time necessary to
permit any of the relevant Subsidiaries to register such securities for
public sale under the Securities Act, or under applicable state
securities laws, even if such Subsidiaries would agree to do so.
(c) The Pledgor further agrees to use its best efforts to
do or cause to be done all such other acts as may be necessary to make
any sale or sales of all or any portion of the Interests or the Pledged
Stock pursuant to this Section valid and binding and in compliance with
any and all other applicable Requirements of Law. The Pledgor further
agrees that a continuing breach of any of the covenants contained in
this Section will cause irreparable injury to the Collateral Agent and
the Lenders, that the Collateral Agent and the Lenders have no adequate
remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section shall be specifically
enforceable against the Pledgor, and the Pledgor hereby waives and
agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of
Default has occurred.
11. LIMITATION ON DUTIES REGARDING COLLATERAL. The Collateral
Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in
Exhibit D (Page 12)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
its possession, under Section 9-207 of the UCC or otherwise, shall be to deal
with it in the same manner as the Collateral Agent deals with similar securities
and property for its own account. Neither the Collateral Agent nor any of its
directors, officers, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of the Pledgor or otherwise.
12. POWERS COUPLED WITH AN INTEREST. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
13. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. PARAGRAPH HEADINGS. The paragraph headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
15. NO WAIVER; CUMULATIVE REMEDIES; INTEGRATION. The Collateral
Agent shall not by any act (except by a written instrument pursuant to this
paragraph), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any Event of Default or
in any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Collateral Agent, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Collateral Agent of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy which
the Collateral Agent would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any rights or remedies provided by law. This Agreement
represents the agreement of the Pledgor and the Collateral Agent with respect to
the subject matter hereof and there are no promises or representations by the
Collateral Agent relative to the subject matter hereof not reflected herein.
16. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS; GOVERNING LAW.
None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Pledgor and the Collateral Agent, provided that any provision of this
Agreement that imposes an obligation solely on the Pledgor or provides a right
in favor solely of the Collateral Agent may be waived by the Collateral Agent in
a letter or agreement executed by the Collateral Agent or by facsimile
transmission from the Collateral Agent. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of the
Collateral Agent and its successors and assigns. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND
Exhibit D (Page 13)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. THE PLEDGOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT AGAINST IT 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, THE PLEDGOR
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE
PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT 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 THE PLEDGOR AT ITS
ADDRESS SET FORTH IN THE CREDIT AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF THE COLLATERAL AGENT OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE PLEDGOR IN ANY OTHER JURISDICTION.
18. WAIVERS.
(a) THE PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY ACTION DESCRIBED IN PARAGRAPH 17, OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT, AND AGREES NOT TO PLEAD OR CLAIM THE
SAME.
(b) EACH OF THE PLEDGOR AND THE COLLATERAL AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO ANY MATTER
ARISING DIRECTLY OR INDIRECTLY OUT OF OR WITH RESPECT TO THIS
AGREEMENT.
19. NOTICES. All notices, requests and demands to or upon the
Collateral Agent, the Pledgor or the Subsidiaries to be effective shall be in
writing (including by facsimile transmission), and, unless otherwise expressly
provided herein, shall be deemed to have been given or made when actually
delivered or, in the case of notice by facsimile transmission, when received,
addressed as set forth in the Credit Agreement, in the case of the Pledgor and
the Collateral Agent, or as set forth under such party's signature below, in the
case of the Subsidiaries. The Pledgor and the Subsidiaries may change their
respective addresses and transmission numbers by written notice to the
Collateral Agent.
Exhibit D (Page 14)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
20. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO SUBSIDIARIES. The
Pledgor hereby authorizes and instructs each of the Subsidiaries to comply with
any instruction received by it from the Collateral Agent in writing that (a)
states that an Event of Default has occurred and describes such Event of Default
and (b) is otherwise in accordance with the terms of this Agreement, without any
other or further instructions from the Pledgor, and the Pledgor agrees that the
Subsidiaries shall be fully protected in so complying.
21. RELEASE OF LIENS. Upon payment and satisfaction in full of the
Obligations, the Collateral Agent agrees, upon the written request of the
Pledgor and at the Pledgor's sole expense, to execute, record and file such
instruments and perform such acts as are necessary to release the Collateral
from the Lien and security interest of this Agreement or any assignment or other
security document entered into pursuant hereto.
22. THE COLLATERAL AGENT NOT A MEMBER. Nothing contained in this
Agreement shall be construed or interpreted (a) to transfer to the Collateral
Agent any of the obligations of a member, manager, partner or other owner of any
of the Subsidiaries or (b) to constitute the Collateral Agent a member, manager,
partner or other owner of any of the Subsidiaries.
23. COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
Exhibit D (Page 15)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
GULFTERRA ENERGY PARTNERS, L.P.
By: ________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
Exhibit D (Page 16)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Agreed to:
JPMORGAN CHASE BANK,
as Collateral Agent
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Exhibit D (Page 17)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE I
(A) LIMITED LIABILITY COMPANY AND PARTNERSHIP INTERESTS
--------------------------------------------------------------------------------
CERTIFICATE NUMBER EQUITY
ISSUER (IF ANY) INTEREST
--------------------------------------------------------------------------------
LLCS
Cameron Highway Pipeline GP, L.L.C. 100%
Crystal Holding, L.L.C. 100%
Flextrend Development Company, L.L.C. 100%
GulfTerra Alabama Intrastate, L.L.C. 100%
GulfTerra Field Services, L.L.C. 100%
GulfTerra Holding III, L.L.C. 100%
GulfTerra Oil Transport, L.L.C. 100%
GulfTerra Operating Company, L.L.C. 100%
High Island Offshore System, L.L.C. 100%
Manta Ray Gathering Company, L.L.C. 100%
Poseidon Oil Pipeline Company, L.L.C. 100%
PARTNERSHIPS
GulfTerra GC, L.P. 99% (entire limited
partner interest)
GulfTerra Intrastate, L.P. 99% (entire limited
partner interest)
Cameron Highway Pipeline I, L.P. 99% (entire limited
partner interest)
GulfTerra Texas Pipeline, L.P. 99% (entire limited
partner interest)
Schedule I to Exhibit D (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(B) DESCRIPTION OF PLEDGED STOCK
Stock No. of
Issuer Class of Stock* Certificate No. Shares
------------------------- ------------------ --------------- ------
Gulf Terra Energy Finance All of its capital
Corporation stock
---------------------
*Stock is assumed to be common stock unless otherwise indicated.
Schedule I to Exhibit D (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE II
UCC FILINGS
State Filing Office Document Filed
----- ------------- --------------
Delaware Secretary of State UCC-1
Schedule II to Exhibit D (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT A
[FORM OF PLEDGE AGREEMENT SUPPLEMENT]
PLEDGE AGREEMENT SUPPLEMENT, dated as of ________, 20__ (this
"Supplement"), made by GULFTERRA ENERGY PARTNERS, L.P., a Delaware limited
partnership (the "Pledgor"), in favor of JPMORGAN CHASE BANK, as collateral
agent (in such capacity, the "Collateral Agent"), for the ratable benefit of (a)
the banks and other financial institutions (the "Lenders") parties to the
Amended and Restated Credit Agreement, dated as of March 23, 1995 and as amended
and restated as of September 26, 2003 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among the Pledgor, GulfTerra
Energy Finance Corporation, a Delaware corporation, as the co-borrower
("Co-Borrower"), the Lenders and JPMORGAN CHASE BANK, as administrative agent
(in such capacity, the "Administrative Agent"), and (b) the ▇▇▇▇▇ ▇▇▇▇ Lenders
(as defined in the Credit Agreement).
1. Reference is hereby made to that Amended and Restated Borrower
Pledge Agreement, dated as of September 26, 2003, between Pledgor and the
Collateral Agent (as amended, supplemented or modified as of the date hereof,
the "Pledge Agreement"). Terms defined in the Pledge Agreement are used herein
as therein defined.
2. Pledgor has formed or acquired one or more new Subsidiaries,
as follows: [insert name, jurisdiction of formation, and type of entity for each
new Subsidiary] (whether one or more, the "New Issuer"). [ADD ONLY IF NEW ISSUER
IS A NON-CORPORATE SUBSIDIARY WITH UNCERTIFICATED EQUITY INTERESTS: Pledgor owns
a ___% [limited liability company/limited partnership/general partnership/other
interest in the New Issuer, and such interest in the New Issuer is
uncertificated.]
3. Pledgor hereby confirms and reaffirms the security interest in
the Collateral granted to the Collateral Agent for the ratable benefit of the
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders under the Pledge Agreement. As additional
collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of all the
Obligations(1) the Pledgor hereby (a) delivers to the Collateral Agent all the
Additional Pledged Certificates (as such term is hereinafter defined) and all
the Additional Pledged Stock (as such term is hereinafter defined), and (b)
sells, assigns, conveys, mortgages, pledges, hypothecates and transfers to the
Collateral Agent, and hereby grants to the Collateral Agent, for the ratable
benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, a first security interest in,
to and under the Additional Collateral (as such term is hereinafter defined). As
used herein, the term "Additional Pledged Certificates" means the certificates
of [limited liability company/limited partnership/general partnership/other]
interests of the Non-Corporate Subsidiaries (the "Additional Subsidiaries")
named on Schedule I(A) hereto (to the extent such interests are certificated),
which interests are listed on Schedule I(A) hereto, together with all limited
------------------
(1) Conform the following description of the additional collateral as
necessary, depending on what type of entity the Pledgor is acquiring.
Exhibit A to Exhibit D (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
liability company certificates, partnership interest certificates, stock
certificates, options or rights of any nature whatsoever that may be issued or
granted by any Additional Subsidiary to the Pledgor while the Pledge Agreement
is in effect. As used herein, the term "Additional Pledged Stock" means the
shares of capital stock listed on Schedule I(B) hereto, together with all stock
certificates, options or rights of any nature whatsoever that may be issued or
granted by the issuer of such shares of capital stock to the Pledgor while the
Pledge Agreement is in effect. As used herein, the term "Additional Collateral"
means the Additional Interests (as such term is hereinafter defined) (including,
without limitation, the Additional Pledged Certificates), the Additional Pledged
Stock, and all Additional Proceeds (as such term is hereinafter defined). As
used herein, the term "Additional Interests" means, collectively, the following:
(i) all right, title and interest, now existing or
hereafter acquired, of Pledgor in the Additional Subsidiaries, but not
any of Pledgor's obligations from time to time as a member, manager or
general or limited partner (unless the Collateral Agent shall become a
member, manager or general or limited partner as a result of this
exercise of remedies pursuant to the terms of the Pledge Agreement) in
any Additional Subsidiary;
(ii) any and all monies due and to become due to Pledgor,
now or in the future by way of a distribution made to Pledgor in its
capacity as a member or owner of any limited liability company interest
in the Additional Subsidiaries or otherwise in respect of Pledgor's
interest as a member, limited or general partner or other owner of any
equity interest in the Additional Subsidiaries;
(iii) any other property of any Additional Subsidiary to
which Pledgor now or in the future may be entitled in its capacity as a
member, limited or general partner or other owner of any equity
interest in such Additional Subsidiary by way of distribution, return
or otherwise;
(iv) any other claim which Pledgor now has or may in the
future acquire in its capacity as a member, limited or general partner
or other owner of any equity interest in any Additional Subsidiary and
its property; and
(v) to the extent not otherwise included, all (A)
Additional Proceeds of any or all of the foregoing, and (B) all
Supporting Obligations (as such term is defined in the UCC) with
respect to the foregoing.
As used herein, the term "Additional Proceeds" means all "proceeds" (as such
term is defined in Section 9-102 of the Uniform Commercial Code in effect in the
State of New York on the date hereof) and, in any event, shall include, without
limitation, all income, gain, credit, distributions, dividends and similar items
from or with respect to the Additional Interests (including, without limitation,
the Additional Pledged Certificates) and the Additional Pledged Stock,
collections thereon or distributions with respect thereto.
4. From and after the date of this Supplement, (a) the term
"Pledged Certificates" as used in the Pledge Agreement shall be amended to
include the Additional Pledged Certificates, (b) the term "Subsidiaries" as used
in the Pledge Agreement shall be amended to include the Additional Subsidiaries,
(c) the term "Pledged Stock" as used in the Pledge Agreement shall be amended to
include the Additional Pledged Stock, (d) the
Exhibit A to Exhibit D (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
term "Collateral" as used in the Pledge Agreement shall be amended to include
the Additional Collateral, and (e) the term "Proceeds" as used in the Pledge
Agreement shall be amended to include the Additional Proceeds.
5. The Pledgor will cause each of the New Issuers to execute an
Acknowledgement and Consent substantially in the form of Exhibit B to the Pledge
Agreement. Interests in certain of the Additional Subsidiaries may not be
evidenced by certificates. In the case of such Additional Subsidiaries, the
Collateral Agent agrees that it will not exercise its right under any such
Acknowledgement and Consent to give instructions to such Additional Subsidiaries
regarding the Pledgor's limited liability company, limited or general
partnership or other equity interest in such Additional Subsidiaries except upon
the occurrence and during the continuance of an Event of Default.
6. After giving effect to the amendments to the Pledge Agreement
set forth in the preceding paragraph, Pledgor hereby represents and warrants
that the representations and warranties contained in paragraph 4 of the Pledge
Agreement are true and correct on the date of this Supplement.
7. This Supplement is supplemental to the Pledge Agreement, forms
a part thereof and is subject to the terms thereof. [Schedule I and/or Schedule
II] to the Pledge Agreement shall hereby be deemed to include each item listed
on [Schedule I and/or Schedule II] to this Supplement.
Exhibit A to Exhibit D (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, Pledgor has caused this Supplement to be duly
executed and delivered in favor of the Collateral Agent on the date first set
forth above.
GULFTERRA ENERGY PARTNERS, L.P.
By: ____________________________
Name: ____________________________
Title: ____________________________
Address for Notices:
Four ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit A to Exhibit D (Page 4)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE I
(A) ADDITIONAL SUBSIDIARIES
Certificate Equity
Issuer Number Interest
------ ----------- --------
(B) DESCRIPTION OF ADDITIONAL PLEDGED STOCK
Stock
Class Certificate No. of
Issuer of Stock* No. Shares
------ --------- ----------- ------
------------------
*Stock is assumed to be common stock unless otherwise indicated.
Schedule I to Exhibit A to Exhibit D (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE II
ADDITIONAL UCC FILINGS
State Filing Office Document Filed
----- ------------- --------------
Schedule II to Exhibit A to Exhibit D (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT B
FORM OF ACKNOWLEDGEMENT AND CONSENT
[NAME OF NEW PLEDGED SUBSIDIARY] (the "Issuer") hereby acknowledges
receipt of a copy of the foregoing Supplement and the Pledge Agreement referred
to therein and agrees to be bound thereby and to comply with the terms thereof
insofar as such terms are applicable to it. The Issuer agrees to notify the
Collateral Agent promptly in writing of the occurrence of any of the events
described in paragraph 5(a) of the Pledge Agreement, as supplemented by such
Supplement. The Issuer further agrees that the terms of paragraph 10(c) of the
Pledge Agreement, as supplemented by such Supplement, shall apply to it, mutatis
mutandis, with respect to all actions that may be required of it under or
pursuant to or arising out of paragraph 10 of the Pledge Agreement, as
supplemented by such Supplement. The Issuer hereby also agrees that it will
comply with instructions originated by the Collateral Agent without the consent
of the Pledgor.
_______________, 200__
[NAME OF NEW PLEDGED SUBSIDIARY]
By:________________________________
Title:
Exhibit B to Exhibit D (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT E
FORM OF BORROWER SECURITY AGREEMENT
Exhibit E
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED
BORROWER SECURITY AGREEMENT
AMENDED AND RESTATED BORROWER SECURITY AGREEMENT, dated as of September
26, 2003, made by GULFTERRA ENERGY PARTNERS, L.P., a Delaware limited
partnership ("GTM"), and GULFTERRA ENERGY FINANCE CORPORATION, a Delaware
corporation ("GTM Finance", and, together with GTM, the "Borrowers") in favor of
JPMORGAN CHASE BANK, as collateral agent (in such capacity, the "Collateral
Agent"), for the ratable benefit of (a) the banks and other financial
institutions (the "Lenders") parties to the Amended and Restated Credit
Agreement, dated as of March 23, 1995 and as amended and restated as of
September 26, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among GTM, GTM Finance, the Lenders and JPMORGAN
CHASE BANK, as administrative agent (in such capacity, the "Administrative
Agent"), and (b) the ▇▇▇▇▇ ▇▇▇▇ Lenders (as defined in the Credit Agreement).
W I T N E S S E T H :
WHEREAS, GTM and the Collateral Agent are parties to that Consolidated
Amended and Restated Borrower Security Agreement, dated as of October 10, 2002
(as amended, supplemented and otherwise modified prior to the date hereof, the
"Existing Security Agreement");
WHEREAS, pursuant to the provisions of Section 7.10 of the Credit
Agreement, the Borrowers agreed that each of them would deliver, and would cause
each Person that is a party (or is required to be a party) to any Security
Document, other than the Collateral Agent, to deliver, amended and restated
Security Documents, together with supplemented and corrected schedules, exhibits
or other documents, if any, that are necessary to accurately reflect the
collateral existing as of the Restatement Closing Date that is pledged as
security for the Obligations (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and to comply with the
requirements of Section 7.10 of the Credit Agreement, each Borrower hereby
agrees with the Collateral Agent, for the ratable benefit of the Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders, that the Existing Security Agreement is hereby amended and
restated to read in its entirety as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms which
are defined in the Credit Agreement and used herein are so used as so defined;
the following terms which are defined in the Uniform Commercial Code in effect
in the State of New York on the date hereof are used herein as so defined:
Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents,
Electronic Chattel Paper, Equipment, Farm Products, General Intangibles,
Instruments, Inventory, Investment Property, Letter-of-Credit Rights, Payment
Intangibles, Supporting Obligations, Promissory Notes, Proceeds; and the
following terms shall have the following meanings:
Exhibit E (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Account Debtor": a Person (other than any Borrower) obligated on an
Account, Chattel Paper or General Intangible.
"Collateral": as defined in Section 2 of this Security Agreement. The
obligations of the Loan Parties to provide Collateral are limited by paragraphs
(c) and (d) of subsection 7.10 of the Credit Agreement.
"Commitments": the "Revolving Loan Commitments" and "Additional Term
Loan Commitments" as defined in the Credit Agreement.
"Obligations": (i) the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
any Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Notes and all other obligations and
liabilities of the Borrowers to the Administrative Agent or the Lenders, whether
direct or indirect, absolute or contingent, due or to become due, now existing
or hereafter incurred, which may arise under, out of, or in connection with, the
Credit Agreement, the other Loan Documents or any other document made, delivered
or given in connection therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all fees and disbursements of counsel to the Administrative
Agent or any of the Lenders) or otherwise, and (ii) all obligations, liabilities
and indebtedness of GTM under and pursuant to the ▇▇▇▇▇ ▇▇▇▇ Clawback.
"Patents": (a) all letters patent of the United States and all reissues
and extensions thereof, including, without limitation, any thereof referred to
in Schedule I hereto, and (b) all applications for letters patent of the United
States and all divisions, continuations and continuations-in-part thereof or any
other country, including, without limitation, any thereof referred to in
Schedule I hereto.
"Patent License": all agreements, whether written or oral, providing
for the grant by any Borrower of any right to manufacture, use or sell any
invention covered by a Patent, including, without limitation, any thereof
referred to in Schedule I hereto.
"Security Agreement": this Amended and Restated Borrower Security
Agreement, as amended, supplemented or otherwise modified from time to time.
"Trademarks": (a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service marks,
logos and other source or business identifiers, and the goodwill associated
therewith, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith, whether in the
United States Patent and Trademark Office or in any similar office or agency of
the United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any thereof
referred to in Schedule II hereto, and (b) all renewals thereof.
Exhibit E (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Trademark License": any agreement, written or oral, providing for the
grant by any Borrower of any right to use any Trademark, including, without
limitation, any thereof referred to in Schedule II hereto.
"UCC": the Uniform Commercial Code as from time to time in effect in
the State of New York.
"Vehicles": all cars, trucks, trailers, construction and earth moving
equipment and other vehicles covered by a certificate of title law of any state
and, in any event, shall include, without limitation, the vehicles listed on
Schedule III hereto and all tires and other appurtenances to any of the
foregoing.
2. GRANT OF SECURITY INTEREST. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, each of the
Borrowers hereby grants to the Collateral Agent for the ratable benefit of the
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, a security interest in all of the following
property now owned or at any time hereafter acquired by such Borrower or in
which such Borrower now has or at any time in the future may acquire any right,
title or interest (collectively, the "Collateral"):
(i) all Accounts;
(ii) all Chattel Paper (including, without
limitation, all Electronic Chattel Paper and all Tangible
Chattel Paper);
(iii) all Documents;
(iv) all Equipment;
(v) all General Intangibles (including, without
limitation, all Payment Intangibles);
(vi) all Instruments;
(vii) all Inventory;
(viii) all Investment Property (but excluding any
such Investment Property that is subject to the security
interests granted by GTM in the Borrower Pledge Agreement);
(ix) all Patents;
(x) all Patent Licenses;
(xi) all Trademarks;
(xii) all Trademark Licenses;
(xiii) all Vehicles;
Exhibit E (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(xiv) all Deposit Accounts other than payroll, withholding
tax and other fiduciary Deposit Accounts;
(xv) all Letter-of-Credit Rights;
(xvi) all Commercial Tort Claims;
(xvii) all Supporting Obligations;
(xviii) with respect only to any Borrower that is a
"transmitting utility" (as defined in the Uniform Commercial Code of
the State of Texas (the "Texas UCC")), any fixtures (as defined in the
Texas UCC) physically located in the State of Texas to the extent (but
only to the extent) that the filing in the Office of the Secretary of
State of the State of Texas a financing statement substantially in the
form of Exhibit A hereto would, under the Texas UCC, result in the
perfection of a security interest in such fixtures;
(xix) with respect only to any Borrower that is a
"transmitting utility" (as defined in the Uniform Commercial Code of
the State of New Mexico (the "New Mexico UCC")), any fixtures (as
defined in the New Mexico UCC) physically located in the State of New
Mexico to the extent (but only to the extent) that the filing in the
Office of the New Mexico Secretary of State of a financing statement
substantially in the form of Exhibit A hereto would, under the New
Mexico UCC, result in the perfection of a security interest in such
fixtures; and
(xx) to the extent not otherwise included, all Proceeds
and products of any and all of the foregoing;
except, in each case of clauses (i) - (xx) above, to the extent that (I) any
consent of any affiliate of any Borrower (other than a Subsidiary thereof) is
required for the grant of such security interest and such consent has not been
obtained after such Borrower has made a reasonable effort to seek such consent
and (II) any consent of any non-affiliated third party (other than a
Governmental Authority) is required for the grant of such security interest and
such consent has not been obtained (provided that such Borrower is under no duty
to seek such third-party consents); provided that (x) upon the receipt of any
such consent referred to in clauses (I) and (II) above, the security interest
granted herein shall automatically attach on such property and (y)
notwithstanding the foregoing, Accounts, Chattel Paper, Payment Intangibles and
Promissory Notes constitute Collateral in which each Borrower is granting a
security interest, as permitted by Sections 9-406 and 9-408 of the Uniform
Commercial Code in effect in the State of New York on the date hereof.
3. RIGHTS OF COLLATERAL AGENT AND LENDERS; LIMITATIONS ON
COLLATERAL AGENT'S AND LENDERS' OBLIGATIONS.
(a) BORROWERS REMAIN LIABLE UNDER ACCOUNTS. Anything
herein to the contrary notwithstanding, each Borrower shall remain
liable under each of its Accounts, Chattel Paper and Payment
Intangibles to observe and perform all the conditions and
Exhibit E (Page 4)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise to each such
Account, Chattel Paper or Payment Intangible. Neither the Collateral
Agent nor any of the Lenders shall have any obligation or liability
under any Account, Chattel Paper or Payment Intangible (or any
agreement giving rise thereto) by reason of or arising out of this
Security Agreement or the receipt by the Collateral Agent or any of the
Lenders of any payment relating to such Account, Chattel Paper or
Payment Intangible, nor shall the Collateral Agent or any of the
Lenders be obligated in any manner to perform any of the obligations of
any Borrower under or pursuant to any Account, Chattel Paper or Payment
Intangible (or any agreement giving rise thereto), to make any payment,
to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party
under any Account, Chattel Paper or Payment Intangible (or any
agreement giving rise thereto), to present or file any claim, to take
any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to it or to which it may be
entitled at any time or times.
(b) NOTICE TO ACCOUNT DEBTORS AND CONTRACTING PARTIES.
Upon the request of the Collateral Agent at any time after the
occurrence and during the continuance of an Event of Default, GTM shall
notify the Account Debtors that the applicable Accounts, Chattel Paper
and Payment Intangibles have been assigned to the Collateral Agent for
the ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders and that
payments in respect thereof shall be made directly to the Collateral
Agent. The Collateral Agent may in its own name or in the name of
others communicate with the Account Debtors to verify with them to its
satisfaction the existence, amount and terms of any Accounts, Chattel
Paper or Payment Intangibles.
(c) ANALYSIS OF ACCOUNTS, ETC. The Collateral Agent shall
have the right to make test verifications of the Accounts, Chattel
Paper and Payment Intangibles in any manner and through any medium that
it reasonably considers advisable, and each Borrower shall furnish all
such assistance and information as the Collateral Agent may require in
connection therewith. At any time and from time to time, upon the
Collateral Agent's request and at the expense of each Borrower, such
Borrower shall furnish to the Collateral Agent reports showing
reconciliations, aging and test verifications of, and trial balances
for, the Accounts, Chattel Paper and Payment Intangibles.
(d) COLLECTIONS ON ACCOUNT, ETC. The Collateral Agent
hereby authorizes each Borrower to collect the Accounts, Chattel Paper
and Payment Intangibles subject to the Collateral Agent's direction and
control, and the Collateral Agent may curtail or terminate said
authority at any time after the occurrence and during the continuance
of an Event of Default. If required by the Collateral Agent at any time
after the occurrence and during the continuance of an Event of Default,
any payments of Accounts, Chattel Paper and Payment Intangibles, when
collected by any Borrower, shall be forthwith (and, in any event,
within two Business Days) deposited by such Borrower in the exact form
received, duly indorsed by such Borrower to the Collateral Agent if
required, in a special collateral account maintained by the Collateral
Agent, subject to withdrawal by the Collateral Agent for the ratable
benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, as hereinafter
provided, and, until so turned over, shall be held by such Borrower in
trust for the
Exhibit E (Page 5)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Collateral Agent for the ratable benefit of the Lenders and the ▇▇▇▇▇
▇▇▇▇ Lenders, segregated from other funds of such Borrower. Each
deposit of any such Proceeds shall be accompanied by a report
identifying in reasonable detail the nature and source of the payments
included in the deposit. All Proceeds constituting collections of
Accounts while held by the Collateral Agent (or by any Borrower in
trust for the Collateral Agent for the ratable benefit of the Lenders
and the ▇▇▇▇▇ ▇▇▇▇ Lenders) shall continue to be collateral security
for all of the Obligations and shall not constitute payment thereof
until applied as hereinafter provided. At such intervals as may be
agreed upon by each Borrower and the Collateral Agent, or, if an Event
of Default shall have occurred and be continuing, at any time at the
Collateral Agent's election, the Collateral Agent shall apply all or
any part of the funds on deposit in said special collateral account on
account of the Obligations in such order as the Collateral Agent may
elect, and any part of such funds which the Collateral Agent elects not
so to apply and deems not required as collateral security for the
Obligations shall be paid over from time to time by the Collateral
Agent to each Borrower or to whomsoever may be lawfully entitled to
receive the same. At the Collateral Agent's request, each Borrower
shall deliver to the Collateral Agent all original and other documents
evidencing, and relating to, the agreements and transactions which gave
rise to the Accounts, including, without limitation, all original
orders, invoices and shipping receipts.
4. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants that:
(a) TITLE; NO OTHER LIENS. Except for the Lien granted to
the Collateral Agent for the ratable benefit of the Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders pursuant to this Security Agreement and the other
Liens permitted to exist on the Collateral pursuant to the Credit
Agreement, the Borrowers own each item of the Collateral free and clear
of any and all Liens or claims of others. No security agreement,
financing statement or other public notice with respect to all or any
part of the Collateral is on file or of record in any public office,
except such as may have been filed in favor of the Collateral Agent,
for the ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders,
pursuant to this Security Agreement or as may be permitted pursuant to
the Credit Agreement.
(b) PERFECTED FIRST PRIORITY LIENS. The Liens granted
pursuant to this Security Agreement constitute perfected Liens on the
Collateral in favor of the Collateral Agent, for the ratable benefit of
the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, which are (except for any Liens
on the Collateral which are permitted to exist pursuant to the Credit
Agreement) prior to all other Liens on the Collateral created by each
Borrower and in existence on the date hereof and which are enforceable
as such against all creditors of and purchasers from each Borrower and
against any owner or purchaser of the real property where any of the
Equipment is located and any present or future creditor obtaining a
Lien on such real property. All actions necessary or desirable to
perfect such security interest in each item of Collateral requested by
the Collateral Agent have been or will be duly taken.
(c) ACCOUNTS. The amount represented by each Borrower to
the Lenders from time to time as owing by each Account Debtor or by all
Account Debtors in respect of the
Exhibit E (Page 6)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Accounts, Chattel Paper and Payment Intangibles will at such time be,
to such Borrower's best knowledge, the correct amount actually owing by
such Account Debtor or Account Debtors thereunder. No amount payable to
any Borrower under or in connection with any Account is evidenced by
any Instrument or Chattel Paper which has not been delivered to the
Collateral Agent. The place where each of the Borrowers keeps its
records concerning the Accounts, Chattel Paper and Payment Intangibles
is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
(d) BORROWERS' NAMES, ETC. On the Restatement Closing
Date, (i) the name of GTM as indicated on the public record of GTM's
jurisdiction of organization, which shows GTM to have been organized,
is "GulfTerra Energy Partners, L.P."; (ii) the name of GTM Finance as
indicated on the public record of the GTM Finance's jurisdiction of
organization, which shows GTM Finance to have been organized, is
"GulfTerra Energy Finance Corporation"; (iii) the mailing address of
each of the Borrowers is ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
(iv) GTM is a Delaware limited partnership, and GTM's organizational
identification number in the State of Delaware is 2317845; (v) GTM
Finance is a Delaware corporation, and GTM Finance's organizational
identification number in the State of Delaware is 3036960; (vi) GTM was
formerly known as "El Paso Energy Partners, L.P." and as "Leviathan Gas
Pipeline Partners, L.P."; (vii) GTM Finance was formerly known as "El
Paso Energy Partners Finance Corporation" and as "Leviathan Finance
Corporation"; and (viii) other than the names listed in (vi) and (vii),
neither GTM nor GTM Finance has used any other name or trade name since
September 15, 1998.
(e) FARM PRODUCTS. As of the Restatement Closing Date,
none of the material Collateral constitutes, or is the Proceeds of,
Farm Products.
(f) PATENTS AND TRADEMARKS. Schedule I hereto includes
all Patents and Patent Licenses owned by each Borrower in its own name
as of the date hereof that are material to the Loan Parties taken as a
whole. Schedule II hereto includes all Trademarks and Trademark
Licenses owned by each Borrower in its own name as of the date hereof
that are material to the Loan Parties taken as a whole.
(g) VEHICLES. As of the Restatement Closing Date,
Schedule III is a complete and correct list of all Vehicles owned by
each Borrower that are material to the Loan Parties taken as a whole.
(h) GOVERNMENTAL OBLIGORS. None of the obligors on any
Borrower's material Accounts, Chattel Paper or Payment Intangibles, and
none of the parties to any Borrower's material contracts, is a
Governmental Authority.
(i) NO CHAPTER 35 FILINGS. No Borrower has filed a
security instrument with the Secretary of State of the State of Texas
electing to be covered by, or is otherwise subject to the requirements
and benefits of, Subchapter A of Chapter 35 of the Texas Business and
Commerce Code.
Exhibit E (Page 7)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
5. COVENANTS. Each Borrower covenants and agrees with the
Collateral Agent and the Lenders that, from and after the date of this Security
Agreement until the Obligations are paid in full and the Commitments are
terminated:
(a) FURTHER DOCUMENTATION; PLEDGE OF INSTRUMENTS AND
CHATTEL PAPER. At any time and from time to time, upon the written
request of the Collateral Agent, and at the sole expense of each
Borrower, such Borrower will promptly and duly execute and deliver such
further instruments and documents and take such further action as the
Collateral Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Security Agreement and of the
rights and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the Uniform
Commercial Code in effect in any jurisdiction with respect to the Liens
created hereby. Each Borrower hereby authorizes the Collateral Agent,
its counsel or its representative, at any time and from time to time,
to file financing statements and amendments to financing statements
that describe the collateral covered by such financing statements as
"all assets of the Borrower", "all personal property of the Borrower",
or words of similar effect, in such jurisdictions as the Collateral
Agent may deem necessary or desirable in order to perfect or maintain
the perfection of the security interests granted by such Borrower under
this Security Agreement. Each Borrower hereby further authorizes the
Collateral Agent, its counsel or its representative, at any time and
from time to time, to file continuation statements with respect to
previously filed financing statements. A photographic or other
reproduction of this Security Agreement shall be sufficient as a
financing statement for filing in any jurisdiction. If any amount
payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument or Chattel Paper, such Instrument or
Chattel Paper shall be immediately delivered to the Collateral Agent,
duly endorsed in a manner satisfactory to the Collateral Agent, to be
held as Collateral pursuant to this Security Agreement. Upon the
request of the Collateral Agent or any of the Lenders, each Borrower
shall take or cause to be taken all actions (other than any actions
required to be taken by the Collateral Agent or any of the Lenders)
necessary to cause the Collateral Agent to have "control" (within the
meaning of Sections 9-104, 9-105, 9-106, and 9-107 of the UCC) over any
Collateral constituting Deposit Accounts, Electronic Chattel Paper,
Investment Property or Letter-of-Credit Rights, and each Borrower shall
promptly notify the Collateral Agent and the Lenders of such Borrower's
acquisition of any such Collateral. With respect to any goods
constituting Collateral that are in the possession of a "bailee"
(within the meaning of Section 9-312 of the UCC), such Borrower shall
take or cause to be taken all actions (other than any actions required
to be taken by the Collateral Agent or any of the Lenders) necessary to
cause the Collateral Agent to have a perfected security interest in
such Collateral pursuant to the provisions of Section 9-312 of the UCC,
and such Borrower shall provide prompt notice to the Collateral Agent
and the Lenders of any such Collateral then in the possession of such a
"bailee".
(b) INDEMNIFICATION. Each Borrower agrees to pay and to
save the Collateral Agent and the Lenders harmless from any and all
liabilities and reasonable costs and expenses (including, without
limitation, legal fees and expenses), (i) with respect to, or resulting
from, any delay in paying, any and all excise, sales or other taxes
which may be payable or determined to be payable with respect to any of
the Collateral, (ii) with respect
Exhibit E (Page 8)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
to, or resulting from, any delay in complying with any Requirement of
Law applicable to any of the Collateral or (iii) in connection with any
of the transactions contemplated by this Security Agreement. In any
suit, proceeding or action brought by the Collateral Agent or any of
the Lenders under any Account, Chattel Paper or Payment Intangibles,
for any sum owing thereunder, or to enforce any provisions of any
Account, Chattel Paper or Payment Intangible, each Borrower will save,
indemnify and keep the Collateral Agent and such Lenders harmless from
and against all reasonable expense, loss or damage suffered by reason
of any defense, setoff, counterclaim, recoupment or reduction or
liability whatsoever of the Account Debtor or obligor thereunder,
arising out of a breach by any Borrower of any obligation thereunder or
arising out of any other agreement, indebtedness or liability at any
time owing to or in favor of such Account Debtor or obligor or its
successors from such Borrower.
(c) MAINTENANCE OF RECORDS. The Borrowers will keep and
maintain at their own cost and expense satisfactory and complete
records of the Collateral, including, without limitation, a record of
all payments received and all credits granted with respect to the
Accounts. For the Collateral Agent's and the Lenders' further security,
the Collateral Agent, for the RATABLE benefit of the Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders, shall have a security interest in all of the books
and records of the Borrowers pertaining to the Collateral, and the
Borrowers shall turn over any such books and records to the Collateral
Agent or to its representatives during normal business hours at the
request of the Collateral Agent.
(d) RIGHT OF INSPECTION. The Collateral Agent and the
Lenders shall at all times have full and free access during normal
business hours to all the books, correspondence and records of each
Borrower, and the Collateral Agent and the Lenders and their respective
representatives may examine the same, take extracts therefrom and make
photocopies thereof, and each Borrower agrees to render to the
Collateral Agent and the Lenders, at such Borrower's cost and expense,
such clerical and other assistance as may be reasonably requested with
regard thereto. The Collateral Agent and the Lenders and their
respective representatives shall at all times also have the right to
enter into and upon any premises where any of the Inventory or
Equipment is located for the purpose of inspecting the same, observing
its use or otherwise protecting its interests therein.
(e) LIMITATION ON LIENS ON COLLATERAL. Each Borrower will
not create, incur or permit to exist, will defend the Collateral
against, and will take such other action as is necessary to remove, any
Lien or claim on or to the Collateral, other than the Liens created
hereby and other than as permitted pursuant to the Credit Agreement,
and will defend the right, title and interest of the Collateral Agent
and the Lenders in and to any of the Collateral against the claims and
demands of all Persons whomsoever.
(f) LIMITATIONS ON MODIFICATIONS, WAIVERS, EXTENSIONS OF
THE AGREEMENTS GIVING RISE TO ACCOUNTS. Except to the extent the same
would not reasonably be expected to have a Material Adverse Effect,
each Borrower will not (i) except in accordance with the ordinary
business practices of the Borrowers, amend, modify, terminate or waive
any provision of any Chattel Paper or any agreement giving rise to an
Exhibit E (Page 9)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Account or Payment Intangible in any manner which could reasonably be
expected to materially adversely affect the value of any Chattel Paper,
Payment Intangible or Account as Collateral or (ii) fail to exercise
promptly and diligently each and every material right which it may have
under any Chattel Paper and each agreement giving rise to an Account or
Payment Intangible (other than any right of termination).
(g) MAINTENANCE OF EQUIPMENT. Each Borrower will maintain
each item of Equipment material to the conduct of its business in good
operating condition, ordinary wear and tear and immaterial impairments
of value and damage by the elements excepted.
(h) FURTHER IDENTIFICATION OF COLLATERAL. Each Borrower
will furnish to the Collateral Agent and the Lenders from time to time
statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as
the Collateral Agent may reasonably request, all in reasonable detail.
(i) NOTICES. Each Borrower will advise the Collateral
Agent and the Lenders promptly, in reasonable detail, at their
respective addresses set forth in the Credit Agreement, (i) of any Lien
(other than Liens created hereby or permitted under the Credit
Agreement) on, or claim asserted against, any of the Collateral and
(ii) of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of
the collateral subject to a Lien created pursuant to the Loan Documents
or on such Liens created thereby, taken as a whole.
(j) CHANGES IN LOCATIONS, NAME, ETC. Each Borrower
recognizes that financing statements pertaining to the Collateral have
been or may be filed where such Borrower maintains any Collateral or is
organized. Without limitation of any other covenant herein, no Borrower
will cause or permit (i) any change to be made in its name, identity or
corporate structure or (ii) any change to (A) the identity of any
warehouseman, common carrier, other third-party transporter, bailee or
any agent or processor in possession or control of any Collateral or
(B) such Borrower's jurisdiction of organization, unless such Borrower
shall have first (1) notified the Collateral Agent and the Lenders of
such change at least thirty (30) days prior to the effective date of
such change, and (2) taken all action reasonably requested by the
Collateral Agent or any of the Lenders for the purpose of maintaining
the perfection and priority of the Collateral Agent's security
interests under this Security Agreement. In any notice furnished
pursuant to this subsection, each Borrower will expressly state that
the notice is required by this Security Agreement and contains facts
that may require additional filings of financing statements or other
notices for the purposes of continuing perfection of the Collateral
Agent's security interest in the Collateral.
(k) PATENTS AND TRADEMARKS. Upon request of the
Collateral Agent, each Borrower shall execute and deliver any and all
agreements, instruments, documents, and papers as the Collateral Agent
may request to evidence the Collateral Agent's and the Lender's
security interest in any Patent or Trademark and the goodwill and
general intangibles of such Borrower relating thereto or represented
thereby, and each Borrower hereby constitutes the Collateral Agent its
attorney in fact to execute and file all such
Exhibit E (Page 10)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
writings for the foregoing purposes, all acts of such attorney being
hereby ratified and confirmed; such power being coupled with an
interest is irrevocable until the Obligations are paid in full and the
Commitments are terminated.
(l) COMMERCIAL TORT CLAIMS. If any Borrower shall at any
time hold or acquire a Commercial Tort Claim that satisfies the
requirements of the following sentence, then such Borrower shall,
within thirty (30) days after such Commercial Tort Claim satisfies such
requirements, notify the Collateral Agent and the Lenders in a writing
signed by such Borrower containing a brief description thereof, and
granting to the Collateral Agent in such writing (for the benefit of
the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders) a security interest therein and
in the Proceeds thereof, all upon the terms of this Security Agreement,
with such writing to be in form and substance satisfactory to the
Collateral Agent and the Lenders. The provisions of the preceding
sentence shall apply only to a Commercial Tort Claim that satisfies the
following requirements: (i) the monetary value claimed by or payable to
the applicable Borrower in connection with such Commercial Tort Claim
shall exceed $20,000,000, and either (ii) (A) such Borrower shall have
filed a law suit or counterclaim or otherwise commenced legal
proceedings (including, without limitation, arbitration proceedings)
against the Person against whom such Commercial Tort Claim is made, or
(B) such Borrower and the Person against whom such Commercial Tort
Claim is asserted shall have entered into a settlement agreement with
respect to such Commercial Tort Claim. In addition, to the extent that
the existence of any Commercial Tort Claim held or acquired by any
Borrower is disclosed by such Borrower in any public filing with the
Securities Exchange Commission or any successor thereto or analogous
Governmental Authority, or to the extent that the existence of any such
Commercial Tort Claim is disclosed in any press release issued by any
Borrower, then, upon the request of the Collateral Agent, such Borrower
shall, within thirty (30) days after such request is made, transmit to
the Collateral Agent and the Lenders a writing signed by such Borrower
containing a brief description of such Commercial Tort Claim and
granting to the Collateral Agent in such writing (for the benefit of
the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders) a security interest therein and
in the Proceeds thereof, all upon the terms of this Security Agreement,
with such writing to be in form and substance satisfactory to the
Collateral Agent and the Lenders.
6. COLLATERAL AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) POWERS. Each of the Borrowers hereby irrevocably
constitutes and appoints the Collateral Agent and any officer or agent
thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place
and stead of such Borrower and in the name of such Borrower or in its
own name, from time to time in the Collateral Agent's discretion, for
the purpose of carrying out the terms of this Security Agreement, to
take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to
accomplish the purposes of this Security Agreement, and, without
limiting the generality of the foregoing, each of the Borrowers hereby
gives the Collateral Agent the power and right, on behalf of such
Borrower, without notice to or assent by such Borrower, to do the
following:
Exhibit E (Page 11)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(i) in the case of any Account, Chattel Paper or
Payment Intangible, at any time when the authority of such
Borrower to collect the Accounts, Chattel Paper or Payment
Intangible has been curtailed or terminated pursuant to the
first sentence of Section 3(d) hereof, or in the case of any
other Collateral, at any time when any Event of Default shall
have occurred and is continuing, in the name of such Borrower
or its own name, or otherwise, to take possession of and
indorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any
Account, Instrument, General Intangible, Chattel Paper or
Payment Intangible, or with respect to any other Collateral
and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise deemed
appropriate by the Collateral Agent for the purpose of
collecting any and all such moneys due under any Account,
Instrument or General Intangible or with respect to any other
Collateral whenever payable;
(ii) to pay or discharge taxes and Liens levied
or placed on or threatened against the Collateral, to effect
any repairs or any insurance called for by the terms of this
Security Agreement and to pay all or any part of the premiums
therefor and the costs thereof; and
(iii) upon the occurrence and during the
continuance of any Event of Default, (A) to direct any Person
liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder
directly to the Collateral Agent or as the Collateral Agent
shall direct; (B) to ask or demand for, collect, receive
payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of
or arising out of any Collateral; (C) to sign and indorse any
invoices, freight or express bills, bills of lading, storage
or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with
any of the Collateral; (D) to commence and prosecute any
suits, actions or proceedings at law or in equity in any court
of competent jurisdiction to collect the Collateral or any
thereof and to enforce any other right in respect of any
Collateral; (E) to defend any suit, action or proceeding
brought against such Borrower with respect to any Collateral;
(F) to settle, compromise or adjust any suit, action or
proceeding described in clause (E) above and, in connection
therewith, to give such discharges or releases as the
Collateral Agent may deem appropriate; (G) to assign any
Patent or Trademark (along with the goodwill of the business
to which any such Trademark pertains), throughout the world
for such term or terms, on such conditions, and in such
manner, as the Collateral Agent shall in its sole discretion
determine; and (H) generally, to sell, transfer, pledge and
make any agreement with respect to or otherwise deal with any
of the Collateral as fully and completely as though the
Collateral Agent were the absolute owner thereof for all
purposes, and to do, at the Collateral Agent's option and such
Borrower's expense, at any time, or from time to time, all
acts and things which the Collateral Agent deems necessary to
protect, preserve or realize upon the Collateral and the
Collateral Agent's and the Lenders' Liens thereon and to
effect the intent of this Security Agreement, all as fully and
effectively as such Borrower might do.
Exhibit E (Page 12)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Each of the Borrowers hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. This power of
attorney is a power coupled with an interest and shall be irrevocable.
(b) OTHER POWERS. Each of the Borrowers also authorizes
the Collateral Agent and the Lenders, at any time and from time to
time, to execute, in connection with the sale provided for in Section 9
hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
(c) NO DUTY ON COLLATERAL AGENT OR LENDERS' PART. The
powers conferred on the Collateral Agent and the Lenders hereunder are
solely to protect the Collateral Agent's and the Lenders' interests in
the Collateral and shall not impose any duty upon the Collateral Agent
or any of the Lenders to exercise any such powers. The Collateral Agent
and the Lenders shall be accountable only for amounts that they
actually receive as a result of the exercise of such powers, and
neither they nor any of their officers, directors, employees or agents
shall be responsible to any Borrower for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct.
7. PERFORMANCE BY COLLATERAL AGENT OF BORROWERS' OBLIGATIONS. If
any Borrower fails to perform or comply with any of its agreements contained
herein and the Collateral Agent, as provided for by the terms of this Security
Agreement, shall itself perform or comply, or otherwise cause performance or
compliance, with such agreement, the expenses of the Collateral Agent incurred
in connection with such performance or compliance, together with interest
thereon at a rate per annum 3-1/2% above the Alternate Base Rate, shall be
payable by such Borrower to the Collateral Agent on demand and shall constitute
Obligations secured hereby.
8. PROCEEDS. In addition to the rights of the Collateral Agent
and the Lenders specified in Section 3(d) with respect to payments of Accounts,
it is agreed that if an Event of Default shall occur and be continuing (a) all
Proceeds received by each Borrower consisting of cash, checks and other
near-cash items shall be held by such Borrower in trust for the Collateral Agent
for the ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, segregated
from other funds of such Borrower, and shall, forthwith upon receipt by such
Borrower, be turned over to the Collateral Agent in the exact form received by
such Borrower (duly indorsed by such Borrower to the Collateral Agent, if
required), and (b) any and all such Proceeds received by the Collateral Agent
(whether from a Borrower or otherwise) may, in the sole discretion of the
Collateral Agent, be held by the Collateral Agent for the ratable benefit of the
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders as collateral security for, and/or then or at
any time thereafter may be applied by the Collateral Agent against, the
Obligations (whether matured or unmatured), such application to be in such order
as the Collateral Agent shall elect. Any balance of such Proceeds remaining
after the Obligations shall have been paid in full and the Commitments shall
have been terminated shall be paid over to such Borrower or to whomsoever may be
lawfully entitled to receive the same.
9. REMEDIES. If an Event of Default shall occur and be
continuing, the Collateral Agent, on behalf of the Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders, may exercise, in addition to all other rights and remedies granted to
them in this Security Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of
a
Exhibit E (Page 13)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
secured party under the UCC. Without limiting the generality of the foregoing,
the Collateral Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Borrower or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Collateral Agent or any of the Lenders
or elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Collateral Agent or any of the Lenders shall
have the right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption in any
Borrower, which right or equity is hereby waived or released. Each Borrower
further agrees, at the Collateral Agent's request, to assemble the Collateral
and make it available to the Collateral Agent at places which the Collateral
Agent shall reasonably select, whether at such Borrower's premises or elsewhere.
The Collateral Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Collateral Agent and the Lenders hereunder,
including, without limitation, reasonable attorneys' fees and disbursements, to
the payment in whole or in part of the Obligations, in such order as the
Collateral Agent may elect, and only after such application and after the
payment by the Collateral Agent of any other amount required by any provision of
law, including, without limitation, Section 9-615 of the UCC, need the
Collateral Agent account for the surplus, if any, to such Borrower. To the
extent permitted by applicable law, each Borrower waives all claims, damages and
demands it may acquire against the Collateral Agent or any of the Lenders
arising out of the exercise by them of any rights hereunder except to the extent
any thereof arise solely from the willful misconduct of the Collateral Agent. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition. Each Borrower shall remain
liable for any deficiency if the proceeds of any sale or other disposition of
the Collateral are insufficient to pay the Obligations and the fees and
disbursements of any attorneys employed by the Collateral Agent or any of the
Lenders to collect such deficiency.
10. LIMITATION ON DUTIES REGARDING PRESERVATION OF COLLATERAL. The
Collateral Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the UCC or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. Neither the
Collateral Agent, any of the Lenders, nor any of their respective directors,
officers, employees or agents shall be liable for failure to demand, collect or
realize upon all or any part of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of any Borrower or otherwise.
11. POWERS COUPLED WITH AN INTEREST. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
Exhibit E (Page 14)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
12. SEVERABILITY. Any provision of this Security Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
13. PARAGRAPH HEADINGS. The paragraph headings used in this
Security Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
14. NO WAIVER; CUMULATIVE REMEDIES. Neither the Collateral Agent
nor any of the Lenders shall by any act (except by a written instrument pursuant
to Section 15 hereof), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default or in any breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in exercising, on the part of the
Collateral Agent or any of the Lenders, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Collateral Agent or any of the Lenders of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Collateral Agent or such Lenders would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any rights or remedies provided by law.
15. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS; GOVERNING LAW.
None of the terms or provisions of this Security Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by each of the Borrowers and the Collateral Agent, provided that any
provision of this Security Agreement may be waived by the Collateral Agent in a
written letter or agreement executed by the Collateral Agent or by facsimile
transmission from the Collateral Agent. This Security Agreement shall be binding
upon the successors and assigns of each Borrower and shall inure to the benefit
of the Collateral Agent and the Lenders and their respective successors and
assigns. This Security Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
16. NOTICES. Notices hereunder may be given by mail or by
facsimile transmission, addressed or transmitted to the Person to which it is
being given at such Person's address or transmission number set forth in the
Credit Agreement and shall be effective (a) in the case of mail, 3 days after
deposit in the postal system, first class postage pre-paid and (b) in the case
of facsimile notices, when sent. Each Borrower may change its address and
transmission number by written notice to the Collateral Agent, and the
Collateral Agent or any of the Lenders may change its address and transmission
number by written notice to each Borrower and, in the case of any of the
Lenders, to the Collateral Agent.
17. AUTHORITY OF COLLATERAL AGENT. Each Borrower acknowledges that
the rights and responsibilities of the Collateral Agent under this Security
Agreement with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the Collateral Agent of any
Exhibit E (Page 15)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
option, right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Security Agreement shall, as among the
Collateral Agent, the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders be governed by the
Credit Agreement, the ▇▇▇▇▇ ▇▇▇▇ Financing Documents, and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Collateral Agent and each Borrower, the Collateral Agent shall be
conclusively presumed to be acting as agent for the Lenders, and the ▇▇▇▇▇ ▇▇▇▇
Lenders with full and valid authority so to act or refrain from acting, and no
Borrower shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
[Remainder of page intentionally left blank.]
Exhibit E (Page 16)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, each of the Borrowers has caused this Security
Agreement to be duly executed and delivered as of the date first above written.
GULFTERRA ENERGY PARTNERS, L.P.
By: __________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
GULFTERRA ENERGY FINANCE CORPORATION
By: __________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
Exhibit E (Page 17)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Agreed to:
JPMORGAN CHASE BANK,
as Collateral Agent
By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Exhibit E (Page 18)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE I
Patents and Patent Licenses
None
Schedule I to Exhibit E (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE II
Trademarks and Trademark Licenses
None
Schedule II to Exhibit E (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE III
Vehicles
None
Schedule III to Exhibit E (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT F
FORM OF SUBSIDIARIES GUARANTEE
Exhibit F
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED
SUBSIDIARIES GUARANTEE
AMENDED AND RESTATED SUBSIDIARIES GUARANTEE, dated as of September 26,
2003 (the "Subsidiaries Guarantee"), by each of the corporations, limited
liability companies, partnerships and other entities, as the case may be, that
are from time to time signatories hereto (the "Guarantors") in favor of the
Administrative Agent (as defined below) for the ratable benefit of the Lenders
and the ▇▇▇▇▇ ▇▇▇▇ Lenders (each as defined below).
W I T N E S S E T H :
WHEREAS, GulfTerra Energy Partners, L.P., a Delaware limited
partnership, as borrower ("GTM"), and GulfTerra Energy Finance Corporation, a
Delaware corporation, as co-borrower ("GTM Finance" and, together with GTM, the
"Borrowers") are parties to that certain Amended and Restated Credit Agreement,
dated as of March 23, 1995 and as amended and restated as of September 26, 2003
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement") among the Borrowers, JPMORGAN CHASE BANK, as administrative agent
(in such capacity, the "Administrative Agent") and the banks and other financial
institutions parties thereto (the "Lenders");
WHEREAS, certain of the Guarantors and the Administrative Agent are
parties to the Consolidated Amended and Restated Subsidiaries Guarantee, dated
as of October 10, 2002 (as amended, supplemented and otherwise modified prior to
the date hereof, the "Existing Subsidiary Guarantee");
WHEREAS, pursuant to the terms of the Credit Agreement and the other
Loan Documents, the Lenders have agreed to make certain Extensions of Credit (as
hereinafter defined) to or for the benefit of the Borrowers;
WHEREAS, the Borrowers are members of an affiliated group of entities
that includes each Guarantor;
WHEREAS, the Borrowers and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the Extensions of Credit; and
WHEREAS, pursuant to the provisions of Section 7.10 of the Credit
Agreement, each Borrower agreed that each Guarantor would be required to
guarantee all of the "Obligations" of the Borrowers under and as defined in the
Credit Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to comply with the requirements of Section 7.10 of the Credit Agreement,
each Guarantor hereby agrees with the Administrative Agent, for the ratable
benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, that the Existing Subsidiary
Guarantee is hereby amended and restated to read in its entirety as follows:
Exhibit F (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
1. DEFINED TERMS. As used in this Guarantee, terms defined in the
Credit Agreement are used herein as therein defined, and the following terms
shall have the following meanings:
"Adjusted Net Worth": of any Guarantor shall mean, as of any
date of determination thereof, the excess of (i) the amount of the
"present fair saleable value" of the assets of such Guarantor as of the
date of such determination, over (ii) the amount of all "liabilities of
such Guarantor, contingent or otherwise", as of the date of such
determination, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors.
"Commitments": the "Revolving Loan Commitments" and
"Additional Term Loan Commitments" as defined in the Credit Agreement.
"Determination Date": with respect to any Guarantor, the
earlier of (a) the date of commencement of a case under Title 11 of the
United States Code in which such Guarantor is a debtor and (b) the date
enforcement hereunder is sought with respect to such Guarantor.
"Extension of Credit": (i) all loans or advances made to the
Borrowers under any Loan Document, (ii) all letters of credit issued
for the account of either of the Borrowers under any Loan Document,
(iii) all bankers' acceptances created for the account of either of the
Borrowers under any Loan Document and (iv) all other extensions of
credit to or for the benefit of either of the Borrowers under any Loan
Document.
"Maximum Guaranteed Amount": for any Guarantor, as of the
Determination Date for such Guarantor, the sum of (i) an amount equal
to the sum of each Extension of Credit (or portion thereof) the
proceeds of which are used to make a Valuable Transfer (as defined
below) to such Guarantor plus interest on such amount at the rate
specified in the Credit Agreement, plus (ii) the greater of (I)
ninety-five percent (95%) of the Adjusted Net Worth of such Guarantor
at the date of the execution of this Guarantee before giving effect to
any Extensions of Credit made on such date and (II) ninety-five percent
(95%) of the Adjusted Net Worth of such Guarantor at the Determination
Date for such Guarantor. For purposes hereof, the proceeds of an
Extension of Credit (or portion thereof) are considered to be used to
make a "Valuable Transfer" to a Guarantor if such proceeds are used to
(i) make a loan, advance or capital contribution to such Guarantor,
(ii) acquire from such Guarantor debt securities or other obligations
of such Guarantor, (iii) acquire property, any interest in which is
transferred to such Guarantor (but only to the extent of the economic
benefit to such Guarantor of the interest so transferred), (iv)
purchase equity securities of such Guarantor or (v) otherwise confer,
directly or indirectly, an economic benefit on such Guarantor (but only
to the extent of such benefit).
"Obligations": (i) the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to any Borrower, whether or not a claim for
Exhibit F (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
post-filing or post-petition interest is allowed in such proceeding)
the Notes and all other obligations and liabilities of any Borrower to
the Administrative Agent or the Lenders, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter
incurred, which may arise under, out of, or in connection with, the
Credit Agreement, the other Loan Documents or any other document made,
delivered or given in connection therewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or any of the
Lenders) or otherwise and (ii) all obligations, liabilities and
indebtedness of GTM under and pursuant to the ▇▇▇▇▇ ▇▇▇▇ Clawback.
2. GUARANTEE. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Administrative
Agent and the Lenders and their respective successors, indorsees, transferees
and assigns, the prompt and complete payment by the Borrowers when due (whether
at the stated maturity, by acceleration or otherwise) of the Obligations of the
Borrowers, and each Guarantor further agrees to pay any and all expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by the Administrative Agent or any of the Lenders in
enforcing, or obtaining advice of counsel in respect of, any rights with respect
to, or collecting, any or all of the Obligations and/or enforcing any rights
with respect to, or collecting against, such Guarantor under this Guarantee;
provided, however, that, anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed such Guarantor's Maximum
Guaranteed Amount as determined at the Determination Date for such Guarantor;
and further provided, that the Maximum Guaranteed Amount for each Guarantor
hereunder shall in no event exceed the amount which can be guaranteed by such
Guarantor under applicable federal and state laws relating to the insolvency of
debtors.
(b) Each Guarantor agrees that the Obligations may at any
time and from time to time exceed the Maximum Guaranteed Amount of such
Guarantor or of all of the Guarantors without impairing this Guarantee
or affecting the rights and remedies of the Administrative Agent and
the Lenders hereunder.
(c) No payment or payments made by any Borrower, any of
the Guarantors, any other guarantor or any other Person or received or
collected by the Administrative Agent or any of the Lenders from any
Borrower, any of the Guarantors, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment or
payments other than payments made by such Guarantor in respect of the
Obligations or payments received or collected from such Guarantor in
respect of the Obligations, remain liable for the Obligations up to its
Maximum Guaranteed Amount until the Obligations are paid in full and
the Commitments are terminated.
(d) Each Guarantor agrees that whenever, at any time, or
from time to time, it shall make any payment to the Administrative
Agent or any of the Lenders on account of
Exhibit F (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
its liability hereunder, it will notify the Administrative Agent in
writing that such payment is made under this Guarantee for such
purpose.
3. RIGHT OF CONTRIBUTION. Each Guarantor hereby agrees that to
the extent that a Guarantor shall have paid more than its proportionate share of
any payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid its
proportionate share of such payment. Each Guarantor's right of contribution
shall be subject to the terms and conditions of Paragraph 5 hereof. The
provisions of this Paragraph 3 shall in no respect limit the obligations and
liabilities of any Guarantor to the Administrative Agent and the Lenders, and
each Guarantor shall remain liable to the Administrative Agent and the Lenders
for the full amount guaranteed by such Guarantor hereunder.
4. RIGHT OF SET-OFF. Each Guarantor hereby irrevocably authorizes
the Administrative Agent and each of the Lenders at any time and from time to
time without notice to such Guarantor or any other Guarantor, any such notice
being expressly waived by each Guarantor, to set-off and appropriate and apply
any and all deposits (general or special, time or demand, provisional or final),
in any currency, and any other credits, indebtedness or claims, in any currency,
in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Administrative Agent or such Lender
to or for the credit or the account of such Guarantor, or any part thereof in
such amounts as the Administrative Agent or such Lenders may elect, against and
on account of the obligations and liabilities of such Guarantor to the
Administrative Agent and the Lenders hereunder and claims of every nature and
description of the Administrative Agent and the Lenders against such Guarantor,
in any currency, whether arising hereunder, under the Credit Agreement, the
Notes, the other Loan Documents or otherwise, as such Lenders may elect, whether
or not the Administrative Agent or any of the Lenders has made any demand for
payment. Each of the Lenders agrees to notify such Guarantor promptly of any
such set-off and the application made by such Lenders or the Administrative
Agent, as the case may be, provided that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each of
the Lenders and the Administrative Agent under this paragraph are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which such Lenders may have.
5. NO SUBROGATION. Notwithstanding any payment or payments made
by any of the Guarantors hereunder or under any other Loan Document or any
set-off or application of funds of any of the Guarantors by any of the Lenders
or the Administrative Agent, no Guarantor shall be entitled to be subrogated to
any of the rights of the Administrative Agent or any of the Lenders against
either of the Borrowers or any other Guarantor or any collateral security or
guarantee or right of offset held by any of the Lenders or the Administrative
Agent for the payment of the Obligations or any guarantee thereof, nor shall any
Guarantor seek or be entitled to seek any contribution or reimbursement from
either of the Borrowers or any other Guarantor in respect of payments made by
such Guarantor hereunder or under any other Loan Document, until all amounts
owing to the Administrative Agent and the Lenders by the Borrowers on account of
the Obligations are paid in full and the Commitments are terminated. If any
amount shall be paid to any Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the Administrative Agent and
the Lenders, segregated from other funds of such Guarantor,
Exhibit F (Page 4)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
and shall, forthwith upon receipt by such Guarantor, be turned over to the
Administrative Agent in the exact form received by such Guarantor (duly indorsed
by such Guarantor to the Administrative Agent, if required), to be applied
against the Obligations, whether matured or unmatured, in such order as the
Administrative Agent may determine.
6. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF
RIGHTS. Each Guarantor shall remain obligated hereunder and under the other Loan
Documents to which it is a party notwithstanding that, without any reservation
of rights against any Guarantor and without notice to or further assent by any
Guarantor, any demand for payment of any of the Obligations or any guarantees
thereof made by the Administrative Agent or any of the Lenders may be rescinded
by such Person and any of the Obligations or any guarantees thereof continued,
and the Obligations, or the liability of any other Person upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any of the Lenders and the Credit
Agreement, the Notes, the other Loan Documents, any other collateral security
document or other guarantee or document in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent and/or any of the Lenders may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any of the Lenders for the payment of the Obligations
may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any of the Lenders shall have any obligation to
protect, secure, perfect or insure any Lien at any time held as security for the
Obligations or any guarantees thereof or for this Guarantee or any other Loan
Document or any property subject thereto. When making any demand hereunder or
under any other Loan Document against any of the Guarantors, the Administrative
Agent or any of the Lenders may, but shall be under no obligation to, make a
similar demand on either of the Borrowers or any other Guarantor or guarantor,
and any failure by the Administrative Agent or any of the Lenders to make any
such demand or to collect any payments from either of the Borrowers or any such
other Guarantor or guarantor or any release of such Borrower or such other
Guarantor or guarantor shall not relieve any of the Guarantors in respect of
which a demand or collection is not made or any of the Guarantors not so
released of their several obligations or liabilities hereunder and under the
other Loan Documents, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Administrative Agent or any of
the Lenders against any of the Guarantors. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
7. GUARANTEE ABSOLUTE AND UNCONDITIONAL. Each Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any of the Lenders upon this Guarantee or acceptance of this Guarantee or any
other Loan Document, the Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Guarantee; and all dealings between
either of the Borrowers or any of the Guarantors and the Administrative Agent or
any of the Lenders shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Guarantee and the other Loan Documents. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon either of the Borrowers or any of the
Guarantors with respect to the Obligations or any guarantee thereof.
Exhibit F (Page 5)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Each Guarantor understands and agrees that this Guarantee shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity, regularity or enforceability of the Credit Agreement, the
Notes, any of the other Loan Documents, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
of the Lenders, (b) any defense, set-off or counterclaim (other than a defense
of payment or performance) which may at any time be available to or be asserted
by the Borrowers against the Administrative Agent or any of the Lenders, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of the
Borrowers or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrowers for the
Obligations, or of such Guarantor under this Guarantee or any other Loan
Document, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against any Guarantor, the Administrative Agent and any of
the Lenders may, but shall be under no obligation to, pursue such rights and
remedies as it may have against the Borrowers or any other Person or against any
collateral security or guarantee for the Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any of the
Lenders to pursue such other rights or remedies or to collect any payments from
the Borrowers or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of
the Borrowers or any such other Person or any such collateral security,
guarantee or right of offset, shall not relieve such Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Administrative Agent or
any of the Lenders against such Guarantor. This Guarantee shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon each Guarantor and the successors and assigns thereof, and shall
inure to the benefit of the Administrative Agent and the Lenders, and their
respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of each Guarantor under this Guarantee shall
have been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrowers may be free from any Obligations.
8. REINSTATEMENT. This Guarantee shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by the Administrative Agent or any of the Lenders upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of either of the
Borrowers or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
either Borrower or any Guarantor or any substantial part of its property, or
otherwise, all as though such payments had not been made.
9. PAYMENTS. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in U.S. Dollars at the office of the Administrative Agent located
at One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
10. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby
represents and warrants that:
Exhibit F (Page 6)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(a) such Guarantor is duly organized, validly existing
and, as applicable, in good standing under the laws of the jurisdiction
of its organization and has the power and authority and the legal right
to own and operate its property, to lease the property it operates and
to conduct the business in which it is currently engaged;
(b) such Guarantor has the power and authority and the
legal right to execute and deliver, and to perform its obligations
under, this Guarantee, and has taken all necessary action to authorize
its execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding
obligation of such Guarantor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally; and
(d) On the date of execution of this Guarantee and upon
each Borrowing Date (i) the amount of the "present fair saleable value"
of the assets of each Guarantor that is a "Significant Subsidiary" as
defined in the Credit agreement (each a "Significant Guarantor") will,
as of each such date, exceed the amount of all "liabilities of such
Guarantor, contingent or otherwise", as of such date, as such quoted
terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (ii) the
present fair saleable value of the assets of each Significant Guarantor
will, as of such date, be greater than the amount that will be required
to pay the liability of such Guarantor on its debts as such debts
become absolute and matured, (iii) each Significant Guarantor will not
have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (iv) each Significant Guarantor will
be able to pay its debts as they mature. For purposes of this
subsection 10(d) "debt" means "liability on a claim", and "claim" means
any (x) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured; or (y) right to an equitable remedy for payment, whether or
not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or
unsecured. Each of the Guarantors shall be deemed to make the
representation contained in this subsection 10(d) on each Borrowing
Date.
Each Guarantor agrees that the foregoing representations and warranties
shall be deemed to have been made by such Guarantor on the date of each
borrowing by any of the Borrowers under the Credit Agreement on and as of such
date of borrowing as though made hereunder on and as of such date.
11. SEVERABILITY. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Exhibit F (Page 7)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
12. PARAGRAPH HEADINGS. The paragraph headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
13. NO WAIVER; CUMULATIVE REMEDIES. Neither the Administrative
Agent nor any of the Lenders shall by any act (except by a written instrument
pursuant to paragraph 14 hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms and conditions
hereof. No failure to exercise, nor any delay in exercising, on the part of the
Administrative Agent or any of the Lenders, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Administrative Agent or any of the Lenders of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent or such Lenders would otherwise have on
any future occasion. The rights and remedies herein provided are cumulative, may
be exercised singly or concurrently and are not exclusive of any rights or
remedies provided by law.
14. INTEGRATION; WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS;
GOVERNING LAW. This Guarantee represents the agreement of each Guarantor with
respect to the subject matter hereof and there are no promises or
representations by the Administrative Agent or any of the Lenders relative to
the subject matter hereof not reflected herein. None of the terms or provisions
of this Guarantee may be waived, amended or supplemented or otherwise modified
except by a written instrument executed by each Guarantor and the Administrative
Agent, provided that any provision of this Guarantee may be waived by the
Administrative Agent and the number of Lenders required by the Credit Agreement
in a letter or agreement executed by the Administrative Agent or by facsimile
transmission from the Administrative Agent. This Guarantee shall be binding upon
the successors and assigns of each Guarantor and shall inure to the benefit of
the Administrative Agent and the Lenders and their respective successors and
assigns. This Guarantee shall be governed by and be construed and interpreted in
accordance with the laws of the State of New York.
15. NOTICES. All notices, requests and demands to or upon the
Guarantors or the Administrative Agent or any of the Lenders to be effective
shall be in writing (including by telecopy) and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or three days after deposit in the mail, postage prepaid, or, in the
case of telecopy notice, when received, addressed to a party at the address
provided for such party in subsection 11.2 of the Credit Agreement.
16. AUTHORITY OF ADMINISTRATIVE AGENT. Each Guarantor acknowledges
that the rights and responsibilities of the Administrative Agent under this
Guarantee with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Guarantee shall, as between the Administrative Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Administrative Agent and such Guarantor, the Administrative Agent shall be
conclusively presumed to be acting as agent for the
Exhibit F (Page 8)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Lenders with full and valid authority so to act or refrain from acting, and no
Guarantor shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH GUARANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT AGAINST IT 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, SUCH GUARANTOR
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT 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 SUCH
GUARANTOR AT ITS ADDRESS SET FORTH IN SCHEDULE I HERETO. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY HOLDER OF A NOTE TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST SUCH GUARANTOR IN ANY OTHER JURISDICTION.
18. WAIVERS.
(a) EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY ACTION DESCRIBED IN PARAGRAPH 17, OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT, AND AGREES NOT TO PLEAD OR CLAIM THE
SAME.
(b) EACH OF EACH GUARANTOR AND THE ADMINISTRATIVE AGENT
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO ANY
MATTER ARISING DIRECTLY OR INDIRECTLY OUT OF OR WITH RESPECT TO THIS
AGREEMENT.
19. COUNTERPARTS. This Guarantee may be executed by one or more of
the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
[Remainder of page intentionally left blank.]
Exhibit F (Page 9)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee to be duly executed and delivered by its duly authorized
officer as of the day and year first above written.
CAMERON HIGHWAY PIPELINE GP, L.L.C.
CAMERON HIGHWAY PIPELINE I, L.P.
CRYSTAL HOLDING, L.L.C.
FIRST RESERVE GAS, L.L.C.
FLEXTREND DEVELOPMENT COMPANY, L.L.C.
GULFTERRA ALABAMA INTRASTATE, L.L.C
GULFTERRA FIELD SERVICES, L.L.C.
GULFTERRA GC, L.P.
GULFTERRA HOLDING I, L.L.C.
GULFTERRA HOLDING II, L.L.C.
GULFTERRA HOLDING III, L.L.C.
GULFTERRA HOLDING IV, L.P.
GULFTERRA HOLDING V, L.P.
GULFTERRA NGL STORAGE, L.L.C.
GULFTERRA INTRASTATE, L.P.
GULFTERRA OIL TRANSPORT, L.L.C.
GULFTERRA OPERATING COMPANY, L.L.C.
GULFTERRA SOUTH TEXAS, L.P.
GULFTERRA TEXAS PIPELINE, L.P.
HATTIESBURG GAS STORAGE COMPANY
BY: FIRST RESERVE GAS, L.L.C., in its capacity
as 50% general partner of Hattiesburg Gas
Storage Company; and
BY: HATTIESBURG INDUSTRIAL GAS SALES, L.L.C., in
its capacity as 50% general partner of
Hattiesburg Gas Storage Company
HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.
HIGH ISLAND OFFSHORE SYSTEM, L.L.C.
BY: GULFTERRA ENERGY PARTNERS, L.P., its sole
member
MANTA RAY GATHERING COMPANY, L.L.C.
PETAL GAS STORAGE, L.L.C.
POSEIDON PIPELINE COMPANY, L.L.C.
By: ____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
Exhibit F (Page 10)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Agreed to:
JPMORGAN CHASE BANK,
as Administrative Agent
By: _________________________________________
Name: _________________________________________
Title: _________________________________________
Exhibit F (Page 11)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE I
Addresses of Guarantors
Four ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule I to Exhibit F (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT A
ADDENDUM TO SUBSIDIARIES GUARANTEE
ADDENDUM, dated as of _____________, 200_ (this "Addendum"), to that
Amended and Restated Subsidiaries Guarantee, dated as of September 26, 2003 (as
amended, supplemented or otherwise modified prior to the date hereof, the
"Subsidiaries Guarantee"), made by each of the Guarantors listed below in favor
of the Administrative Agent for the ratable benefit of the Lenders and the ▇▇▇▇▇
▇▇▇▇ Lenders (each as defined in the Subsidiaries Guarantee). Unless otherwise
defined herein, terms defined in the Subsidiaries Guarantee are used herein as
therein defined.
W I T N E S S E T H :
WHEREAS, [NAME OF NEW GUARANTOR], [a _________ limited liability
company] [a _________________ corporation] [a __________________ partnership]
(the "New Guarantor"), has become a Subsidiary of the Borrowers; and
WHEREAS, pursuant to subsection 8.17 of the Credit Agreement, the New
Guarantor is required to become a party to the Subsidiaries Guarantee;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the New Guarantor hereby:
(i) agrees to all of the provisions of the Subsidiaries
Guarantee, and
(ii) effective on the date hereof, becomes a party to the
Subsidiaries Guarantee, as a Guarantor, with the same effect as if the
New Guarantor were an original signatory thereto (with the
representations and warranties contained therein being deemed to be
made by the New Guarantor as of the date hereof).
IN WITNESS WHEREOF, the New Guarantor has caused this Addendum to be
executed and delivered by its duly authorized officer as of the day and year
first above written.
[NAME OF NEW GUARANTOR]
By:__________________________________
Title:
Address:
Exhibit A to Exhibit F (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Each of the undersigned Guarantors hereby ratifies and confirms its
respective obligations under the Subsidiaries Guarantee, as supplemented by this
Addendum:
[List Names Existing Subsidiary Guarantors]
By: ___________________________________________
___________________________________________
___________________________________________
Exhibit A to Exhibit F (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT G
FORM OF SUBSIDIARY PLEDGE AGREEMENT
Exhibit G
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED
SUBSIDIARY PLEDGE AGREEMENT
AMENDED AND RESTATED SUBSIDIARY PLEDGE AGREEMENT, dated as of September
26, 2003, made by each of the corporations, limited liability companies,
partnerships and other entities, as the case may be, that are from time to time
signatory hereto (the "Pledgors"), in favor of JPMORGAN CHASE BANK, as
collateral agent (in such capacity, the "Collateral Agent") for the ratable
benefit of (a) the banks and other financial institutions (the "Lenders")
parties to the Amended and Restated Credit Agreement, dated as of March 23, 1995
and as amended and restated as of September 26, 2003 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement") among GulfTerra
Energy Partners, L.P., a Delaware limited partnership, as borrower ("GTM"),
GulfTerra Energy Finance Corporation, a Delaware corporation, as co-borrower
("GTM Finance"), the Lenders and JPMORGAN CHASE BANK, as administrative agent
(in such capacity, the "Administrative Agent"), and (b) the ▇▇▇▇▇ ▇▇▇▇ Lenders
(as defined in the Credit Agreement).
W I T N E S S E T H :
WHEREAS, certain of the Pledgors and the Collateral Agent are parties
to the Consolidated Amended and Restated Subsidiary Pledge Agreement, dated as
of October 10, 2002 (as amended, supplemented and otherwise modified prior to
the date hereof, the "Existing Subsidiary Pledge Agreement");
WHEREAS, pursuant to the provisions of Section 7.10 of the Credit
Agreement, the Pledgors have entered into and delivered to the Collateral Agent,
this Agreement;
WHEREAS, each Pledgor (a) owns the limited liability company interests
described on Schedule I hereto in the limited liability companies described
thereon (collectively referred to herein, together with any other limited
liability company interest owned or required by any Pledgor after the date of
this Agreement whose ownership interests are, pursuant to the provisions of the
Credit Agreement, required to be pledged to the Collateral Agent hereunder, as
the "LLCs") and (b) owns the partnership interests described on Schedule I
hereto in the general and limited partnerships described thereon (collectively
referred to herein, together with any other general or limited partnership
interest owned or acquired by any Pledgor after the date of this Agreement whose
partnership interests are, pursuant to the provisions of the Credit Agreement,
required to be pledged to the Collateral Agent hereunder, as the
"Partnerships");
WHEREAS, the Credit Agreement requires that the Capital Stock of
certain Subsidiaries of GTM that are controlled indirectly, through one or more
intermediaries, by GTM, be pledged to the Collateral Agent;
WHEREAS, the Pledgors own interests in certain of the Subsidiaries; and
WHEREAS, the making of this Agreement by the Pledgors are necessary or
convenient to the conduct, promotion, or attainment of the business of the
Pledgors;
NOW, THEREFORE, in consideration of the premises and to comply with the
requirements of Section 7.10 of the Credit Agreement, the Pledgors hereby agree
with the Collateral Agent, for
Exhibit G (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
the ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, that the Existing
Subsidiary Pledge Agreement is hereby amended and restated to read in its
entirety as follows:
1. DEFINED TERMS. As used in this Agreement terms defined in the
Credit Agreement or in the recitals hereto shall have their defined meanings
when used herein and the following terms shall have the following meanings:
"Account Debtor": A Person (other than the Pledgors) obligated on an
Account, Chattel Paper, General Intangible.
"Agreement": This Amended and Restated Subsidiary Pledge Agreement, as
the same may from time to time be amended, supplemented or otherwise modified.
"Certificate of Formation": With respect to any LLC or any Partnership
that is a limited partnership, its certificate of formation.
"Certificate of Incorporation": With respect to any Corporation, its
certificate or articles of incorporation, as applicable.
"Collateral": The Interests (including, without limitation, the Pledged
Certificates), the Pledged Stock and all Proceeds. The obligations of the
Pledgors to provide Collateral are limited by paragraphs (c) and (d) of
subsection 7.10 of the Credit Agreement.
"Corporations": Any corporate Subsidiary of GTM in which any Pledgor
owns Capital Stock and such Capital Stock is required to be pledged to the
Collateral Agent hereunder pursuant to the provisions of the Credit Agreement.
"Interests":
(i) All right, title and interest, now existing or
hereafter acquired, of each Pledgor in the Non-Corporate Subsidiaries
but not any of its obligations from time to time as a member or partner
therein (unless the Collateral Agent shall become a member or partner
therein as a result of its exercise of remedies pursuant to the terms
hereof);
(ii) any and all moneys due and to become due to each
Pledgor now or in the future by way of a distribution made to such
Pledgor in its capacity as a member or partner of or the owner of any
limited liability company interest, limited or general partner interest
or other equity interest in any of the Non-Corporate Subsidiaries or
otherwise in respect of each Pledgor's interest as a member of or
partner in the Non-Corporate Subsidiaries or the owner of any limited
liability company interests, limited or general partner interests or
other equity interests in any of the Non-Corporate Subsidiaries;
(iii) any other property of any of the Non-Corporate
Subsidiaries to which any Pledgor now or in the future may be entitled
in its capacity as a member of, partner in or owner of any limited
liability company interest, limited or general partner interest or
other equity interest in any such Non-Corporate Subsidiary by way of
distribution, return or otherwise;
Exhibit G (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(iv) any other claim which any Pledgor now has or may in
future acquire in its capacity as member of, partner in or owner of any
limited liability company interest, limited or general partner interest
or other equity interest in any of the Non-Corporate Subsidiaries
against any such Non-Corporate Subsidiary and its property;
(v) to the extent not otherwise included, (A) all
Proceeds of any or all of the foregoing, and (B) all Supporting
Obligations (as such term is defined in the UCC) with respect to the
foregoing.
"Governing Documents": (a) With respect to any LLC, its Certificate of
Formation and its LLC Agreement; (b) with respect to any Partnership that is a
limited partnership, its Certificate of Formation and limited partnership
agreement; (c) with respect to any Partnership that is a general partnership,
its partnership agreement; (d) with respect to any Corporation, its Certificate
of Incorporation and by-laws, and (e) with respect to any other Non-Corporate
Subsidiary, its declaration of trust or other governing document.
"LLC Agreement": With respect to any LLC, its limited liability company
agreement.
"Non-Corporate Subsidiaries": All Subsidiaries (other than the
Corporations) of GTM in which any Pledgor owns of record Capital Stock and such
Capital Stock is required to be pledged to the Collateral Agent hereunder
pursuant to the provisions of the Credit Agreement.
"Obligations": With respect to any Pledgor, all obligations,
liabilities and indebtedness of such Pledgor under and pursuant to the
Subsidiaries Guarantee.
"Pledged Certificates": The certificates of limited liability company
interests of the LLCs, certificates of partnership interests of the
Partnerships, and certificates of equity interests of the other Non-Corporate
Subsidiaries listed on Schedule I(A) hereto (if any), together with all limited
liability company certificates, partnership interest certificates, stock
certificates, equity interest certificates, options or rights of any nature
whatsoever that may be issued or granted by any LLC to any Pledgor while this
Agreement is in effect.
"Pledged Stock": The shares of capital stock listed on Schedule I(B)
hereto (if any), together with all stock certificates, options or rights of any
nature whatsoever that may be issued or granted by the issue of such capital
stock to any Pledgor while this Agreement is in effect.
"Proceeds": All "proceeds" (as such term is defined in Section 9-102 of
the Uniform Commercial Code in effect in the State of New York on the date
hereof) and, in any event, shall include, without limitation, all income, gain,
credit, distributions, dividends and similar items from or with respect to the
Interests (including, without limitation, the Pledged Certificates) and the
Pledged Stock, collections thereon or distributions with respect thereto.
"Subsidiaries": Collectively, the Corporations and the Non-Corporate
Subsidiaries.
"UCC" or "Uniform Commercial Code": The Uniform Commercial Code from
time to time in effect in the State of New York.
Exhibit G (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
2. ASSIGNMENT AND GRANT OF SECURITY INTEREST. As collateral
security for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of all the Obligations of
each Pledgor, such Pledgor hereby delivers to the Collateral Agent all the
Pledged Certificates and all the Pledged Stock and sells, assigns, conveys,
mortgages, pledges, hypothecates and transfers to the Collateral Agent, and
hereby grants to the Collateral Agent, for the ratable benefit of the Lenders
and the ▇▇▇▇▇ ▇▇▇▇ Lenders, a first security interest in, to and under the
Collateral of such Pledgor. The Pledgors will cause each of the Subsidiaries to
execute an Acknowledgement and Consent substantially in the form of Exhibit B
hereto. Interests in certain of the Non-Corporate Subsidiaries may not be
evidenced by certificates. In the case of such Non-Corporate Subsidiaries, the
Collateral Agent agrees that it will not give any instructions to the
Non-Corporate Subsidiaries pursuant to the provisions of such Acknowledgement
and Consent except upon the occurrence and during the continuance of an Event of
Default.
3. TRANSFER POWERS. Concurrently with the delivery to the
Collateral Agent of each Pledged Certificate and each certificate representing
one or more shares of Pledged Stock to the Collateral Agent, each Pledgor shall
deliver an undated transfer power covering each such certificate, duly executed
in blank by such Pledgor with, if the Collateral Agent so requests, signature
guaranteed.
4. REPRESENTATIONS AND WARRANTIES. Each Pledgor represents and
warrants that:
(a) each Pledgor has the power and authority and the
legal right to execute and deliver, to perform its obligations under,
and to grant the Lien on the Collateral pursuant to, this Agreement and
has taken all necessary action to authorize its execution, delivery and
performance of, and grant of the Lien on the Collateral pursuant to,
this Agreement;
(b) this Agreement constitutes a legal, valid and binding
obligation of each Pledgor enforceable against such Pledgor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles;
(c) the execution, delivery and performance of this
Agreement will not violate any provision of any Requirement of Law or
Contractual Obligation of any Pledgor and will not result in the
creation or imposition of any Lien on any of the properties or revenues
of any Pledgor pursuant to any Requirement of Law or Contractual
Obligation of such Pledgor, except as contemplated hereby;
(d) no consent or authorization of, filing with, or other
act by or in respect of, any arbitrator or Governmental Authority and
no consent of any other Person (including, without limitation, any
creditor of any Pledgor or any of the Subsidiaries), is required in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement;
Exhibit G (Page 4)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(e) each Pledgor is the record and beneficial owner of,
and has good and legal title to, the Interests and the Pledged Stock,
free of any and all Liens or options in favor of, or claims of, any
other Person, except the Liens created by this Agreement or permitted
under the Credit Agreement, and (i) all the Pledged Certificates have
been duly and validly issued and (ii) all the shares of Pledged Stock
have been duly and validly issued and are fully paid and nonassessable;
(f) upon delivery to the Collateral Agent of the Pledged
Certificates and the stock certificates evidencing the Pledged Stock
and upon the filing of the financing statements described on Schedule
II to this Agreement, the Lien granted pursuant to this Agreement will
constitute a valid, perfected first priority Lien on the Collateral
(except for any Liens on the Collateral permitted to exist under the
Credit Agreement), prior to all other Liens on the Collateral created
by such Pledgor and in existence on the date hereof, which will be
enforceable as such as against all creditors of such Pledgor and any
Persons purporting to purchase any Collateral from such Pledgor, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally. All action necessary or desirable to
perfect such security interest in each item of the Collateral requested
by the Collateral Agent, including the filing of financing statements
in the offices referred to on Schedule II to this Agreement has been or
will be duly taken;
(g) as of the Restatement Closing Date: (i) the name of
each Pledgor as indicated on the public record of such Pledgor's
jurisdiction of organization, which shows the Pledgor to have been
organized, is as set forth on Schedule III hereto; (ii) the mailing
address of each Pledgor is Four ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇;
(iii) with respect to each Pledgor, the type of entity of such Pledgor
and the organizational identification number in the State of Delaware
for such Pledgor is correctly set forth on Schedule III hereto; (iv) to
the extent indicated on Schedule III hereto, the Pledgors therein
identified were formerly known by the names set forth on Schedule III
hereto; and (v) other than such names, no Pledgor has used any other
name or trade name since September 15, 1998; and
(h) as of the Restatement Closing Date: (i) each of the
LLCs is a limited liability company duly formed and validly existing
under the laws of the State of Delaware, (ii) each of the Partnerships
is a general or limited partnership (as the case may be) duly formed
and validly existing under the laws of the State of Delaware, (iii)
each of the other Non-Corporate Subsidiaries is duly formed and validly
existing under the laws of its jurisdiction of formation, and (iv) each
of the Corporations is duly organized and validly existing under the
laws of the State of Delaware. Except as set forth on Schedule I as of
the Restatement Closing Date: (i) each Pledgor is the sole owner
(directly or through one or more wholly-owned Subsidiaries) of each of
the relevant LLCs, Partnerships, and other Non-Corporate Subsidiaries,
and the nature of each Pledgor's interest in each of the LLCs,
Partnerships and other Non-Corporate Subsidiaries is as set forth on
Schedule I(A) hereto; (ii) the shares of Pledged Stock constitutes each
Pledgor's percentage interest of all the issued and outstanding shares
of all classes of the capital stock of each Corporation, as such
percentage is set forth on Schedule I(B) hereto; (iii) the list of
certificates set forth on (A) Schedule I(A) constitutes
Exhibit G (Page 5)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
a full and complete list of all the certificates of limited liability
company interests of the LLCs, the certificates of partnership
interests of the Partnerships, and the certificates of equity interests
of the other Non-Corporate Subsidiaries, in each case owned by each
Pledgor, and (B) Schedule I(B) constitutes a full and complete list of
all of the issued and outstanding shares of capital stock of any class
of each corporate or other Subsidiary beneficially owned by each
Pledgor (whether or not registered in the name of such Pledgor) and
said Schedule I(B) correctly identifies the respective class and par
value of the shares comprising such Pledged Stock and the respective
number of shares (and registered owners thereof) represented by each
such certificate, and correct copies of the Governing Documents of each
Subsidiary have been delivered to the Collateral Agent.
5. COVENANTS. Each Pledgor covenants and agrees with the
Collateral Agent that, from and after the date of this Agreement until the
Obligations are paid in full:
(a) If a Pledgor shall, as a result of its ownership of
the Collateral, become entitled to receive or shall receive any limited
liability company interest, any stock certificate or other certificate
(including, without limitation, any certificate representing a stock
dividend or distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights, whether in
addition to, in substitution of, as a conversion of, or in exchange for
Interests or any shares of the Pledged Stock, or otherwise in respect
thereof, such Pledgor shall accept the same as the Collateral Agent's
agent, hold the same in trust for the Collateral Agent and deliver the
same forthwith to the Collateral Agent in the exact form received, duly
indorsed by such Pledgor to the Collateral Agent, if required, together
with an undated stock power covering such certificate duly executed in
blank and with, if the Collateral Agent so requests, signature
guaranteed, to be held by the Collateral Agent hereunder as additional
collateral security for the Obligations. Any sums paid upon or in
respect of the Pledged Stock upon the liquidation or dissolution of any
corporate or other Subsidiary, such payments shall be paid over to the
Collateral Agent to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital
shall be made on or in respect of the Collateral or any property shall
be distributed upon or with respect to the Collateral pursuant to the
recapitalization or reclassification of the capital of any of the
Subsidiaries, or pursuant to the reorganization thereof, the property
so distributed shall be delivered to the Collateral Agent to be held by
it, subject to the terms hereof, as additional collateral security for
the Obligations. If any sums of money or property so paid or
distributed in respect of the Collateral shall be received by any
Pledgor, such Pledgor shall, until such money or property is paid or
delivered to the Collateral Agent, hold such money or property in trust
for the Collateral Agent, segregated from other funds of such Pledgor,
as additional collateral security for the Obligations.
(b) The Pledgors will defend the right, title and
interest of the Collateral Agent in and to the Collateral against the
claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written
request of the Collateral Agent, and at the sole expense of the
Pledgors, the Pledgors will promptly and
Exhibit G (Page 6)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
duly execute and deliver such further instruments and documents and
take such further actions as the Collateral Agent may reasonably
request for the purposes of obtaining or preserving the full benefits
of this Agreement and of the rights and powers herein granted,
including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code in effect in
any jurisdiction with respect to the Lien granted hereby. Each Pledgor
hereby authorizes the Collateral Agent, its counsel or its
representative, at any time and from time to time, to file financing
statements and amendments to financing statements that describe the
Collateral, in such jurisdictions as the Collateral Agent may deem
necessary or desirable in order to perfect or maintain the perfection
of the security interests granted by each Pledgor under this Agreement.
Each Pledgor hereby further authorizes the Collateral Agent, its
counsel or its representative, at any time and from time to time, to
file continuation statements with respect to previously filed financing
statements. If any amount payable under or in connection with any of
the Collateral shall be or become evidenced by any promissory note or
other instrument, such note or instrument shall be immediately pledged
hereunder to the Collateral Agent, duly endorsed in a manner
satisfactory to the Collateral Agent.
(d) The Pledgors will advise the Collateral Agent
promptly, in reasonable detail, of any Lien or claim made or asserted
against any of the Collateral other than Liens created hereby and any
Lien or claim permitted under the Credit Agreement.
(e) The Pledgors agree to pay, and to save the Collateral
Agent harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Agreement.
(f) Promptly, but in no case later than 30 days after any
Pledgor forms (or acquires Capital Stock of) a Subsidiary that is to be
a Restricted Subsidiary, such Pledgor shall provide to the Collateral
Agent a supplement to this Agreement in the form of Exhibit A hereto,
which shall include a schedule supplementing Schedule I, Schedule II,
or Schedule III, as the case may be, to pledge its ownership interests
in such Restricted Subsidiary to the Collateral Agent.
(g) Each Pledgor recognizes that financing statements
pertaining to the Collateral have been or may be filed where such
Pledgor maintains any Collateral or is organized. Without limitation of
any other covenant herein, each Pledgors will not cause or permit (i)
any change to be made in its name, identity or corporate structure or
(ii) any change to such Pledgor's jurisdiction of organization, unless
such Pledgor shall have first (1) notified the Collateral Agent of such
change at least thirty (30) days prior to the effective date of such
change, and (2) taken all action reasonably requested by the Collateral
Agent for the purpose of maintaining the perfection and priority of the
Collateral Agent's security interests and rights under this Agreement.
In any notice furnished pursuant to this subsection, such Pledgor will
expressly state that the notice is required by this Agreement and
contains facts that may require additional filings of financing
statements or other notices for the purposes of continuing perfection
of the Collateral Agent's security interest in the Collateral.
Exhibit G (Page 7)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
6. CASH DISTRIBUTIONS; CASH DIVIDENDS; VOTING RIGHTS. Unless an
Event of Default shall have occurred and be continuing, each Pledgor shall be
permitted to receive (a) all cash distributions paid in the normal course of
business of the LLCs and to exercise all voting, member and manager rights with
respect to the Interests, and (b) all cash dividends paid in the normal course
of business of any corporate or other Subsidiary and consistent with past
practice, in respect of the Pledged Stock and to exercise all voting and
corporate rights with respect to the Pledged Stock; provided, however, that no
vote shall be cast or right exercised or other action taken which, in the
Collateral Agent's reasonable judgment, would (i) impair the Collateral in a
manner that would reasonably be expected to have a Material Adverse Effect or
(ii) result in a breach of any provision of the Credit Agreement, the Notes, any
other Loan Document or this Agreement.
7. RIGHTS OF THE COLLATERAL AGENT.
(a) If an Event of Default shall occur and be continuing,
(i) the Collateral Agent shall have the right to receive and shall
receive any and all cash distributions or dividends paid in respect of
the Collateral and make application thereof to the Obligations in such
order as it may determine, and (ii) to the extent permitted by
applicable law, all shares or certificates of or evidencing the
Interests and the Pledged Stock shall be registered in the name of the
Collateral Agent or its nominee, and (whether or not so registered) the
Collateral Agent or its nominee may thereafter exercise (A) all voting,
corporate, member, manager and other rights pertaining to the Interests
or the shares of the Pledged Stock, as the case may be, and (B) any and
all rights of conversion, exchange, subscription and any other rights,
privileges or options pertaining to the Interests or such shares of the
Pledged Stock, as the case may be, as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its
discretion any and all of the Interests or the Pledged Stock upon the
merger, consolidation, reorganization, recapitalization or other
fundamental change in the structure of any of the Subsidiaries, or upon
the exercise by any Pledgor or the Collateral Agent of any right,
privilege or option pertaining to such shares or certificates of or
evidencing the Interests or the Pledged Stock, and in connection
therewith, the right to deposit and deliver any and all of the
Interests or the Pledged Stock with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and
conditions as it may determine), all without liability except to
account for property actually received by it, but the Collateral Agent
shall have no duty to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
(b) The rights of the Collateral Agent hereunder shall
not be conditioned or contingent upon the pursuit by the Collateral
Agent of any right or remedy against any Subsidiary, or against any
other Person which may be or become liable in respect of all or any
part of the Obligations or against any other collateral security
therefor, guarantee thereof or right of offset with respect thereto.
The Collateral Agent shall not be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any
delay in doing so, nor shall it be under any obligation to sell or
otherwise dispose of any Collateral upon the request of any Pledgor or
any other Person or to take any other action whatsoever with regard to
the Collateral or any part thereof.
Exhibit G (Page 8)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
8. COLLATERAL AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) Each Pledgor hereby irrevocably constitutes and
appoints the Collateral Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of
such Pledgor and in the name of such Pledgor or in its own name, from
time to time in the Collateral Agent's discretion, for the purpose of
carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments
which may be necessary or desirable to accomplish the purposes of this
Agreement and, without limiting the generality of the foregoing, hereby
gives the Collateral Agent the power and right, on behalf of such
Pledgor without notice to or assent by such Pledgor to do the
following:
(i) upon the occurrence and continuation of an
Event of Default to ask, demand, collect, receive and give
acceptances and receipts for any and all moneys due and to
become due with respect to the Collateral and, in the name of
such Pledgor or its own name or otherwise, to take possession
of, endorse and collect any checks, drafts, notes, acceptances
or other instruments for the payment of moneys due with
respect to the Collateral and to file any claim or to take any
other action or proceeding in any court of law or equity or
otherwise as deemed appropriate by the Collateral Agent for
the purpose of collecting any and all such moneys due with
respect to the Collateral or whenever payable;
(ii) to pay or discharge taxes, liens, security
interests or other encumbrances levied or placed on or
threatened against the Collateral; and
(iii) upon the occurrence and during the
continuance of an Event of Default, (A) to direct any Person
liable for any payment to any Pledgor with respect to the
Collateral to make payment of any and all moneys due and to
become due thereunder directly to the Collateral Agent or as
the Collateral Agent shall direct; (B) to receive payment of
and receipt for any and all moneys, claims and other amounts
due and to become due at any time in respect of or arising out
of any Collateral; (C) to sign and indorse any invoices,
drafts against debtors, assignments, verifications and notices
in connection with accounts and other documents relating to
the Collateral; (D) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral and to
enforce any other right in respect of any Collateral; (E) to
defend any suit, action or proceeding brought against any
Pledgor with respect to any Collateral; (F) to settle,
compromise or adjust any suit, action or proceeding described
above and, in connection therewith, to give such discharges or
releases as the Collateral Agent may deem appropriate; and (G)
generally, to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral as
fully and completely as though the Collateral Agent were the
absolute owner thereof for all purposes, and to do, at the
Collateral Agent's option and at such Pledgor's expense, at
any time, or from time to time, all acts and things which the
Collateral Agent deems necessary to protect, preserve or
realize upon the Collateral and the Collateral Agent's
security interest therein, in
Exhibit G (Page 9)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
order to effect the intent of this Agreement, all as fully and
effectively as the Pledgors might do.
Each Pledgor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof.
(b) The powers conferred on the Collateral Agent
hereunder are solely to protect its interests in the Collateral and
shall not impose any duty upon it to exercise any such powers. The
Collateral Agent shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither it nor
any of its officers, directors, employees or agents shall be
responsible to any Pledgor, any Subsidiary or to any other member or
partner of or owner of any limited or general partner interest, limited
liability company interest or other equity interest in any
Non-Corporate Subsidiary for any act or failure to act.
(c) Each Pledgor also authorizes the Collateral Agent, at
any time and from time to time, to execute, in connection with the sale
provided for in Section 9 of this Agreement, any endorsements,
assignments or other instruments of conveyance or transfer with respect
to the Collateral.
9. REMEDIES. If an Event of Default shall occur and be
continuing, the Collateral Agent may exercise, in addition to all other rights
and remedies granted in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of
a secured party under the UCC. Without limiting the generality of the foregoing
and to the extent permitted by applicable law, the Collateral Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon any Pledgor, any of the Subsidiaries or any other Person (all and each of
which demands, defenses, advertisements and notices are hereby waived), may in
such circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, assign, give option
or options to purchase or otherwise dispose of and deliver the Collateral or any
part thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over the counter market, at any
exchange, broker's board or elsewhere upon such terms and conditions as it may
deem advisable and at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk. The Collateral Agent
shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
any Pledgor, which right or equity is hereby waived or released. The Collateral
Agent shall apply any Proceeds from time to time held by it and the net proceeds
of any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind incurred therein
or incidental to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Collateral Agent hereunder,
including, without limitation, reasonable attorneys' fees and disbursements, to
the payment in whole or in part of the Obligations, in such order as the
Collateral Agent may elect, and only after such application and after the
payment by the Collateral Agent of any other amount required by any provision of
law, including, without limitation, Section 9-615 of the UCC, need the
Collateral Agent account for the surplus, if any, to any Pledgor. To the extent
Exhibit G (Page 10)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
permitted by applicable law, each Pledgor waives all claims, damages and demands
it may acquire against the Collateral Agent arising out of the exercise by the
Collateral Agent of any of its rights hereunder except to the extent any thereof
arise solely from the willful misconduct of the Collateral Agent. If any notice
of a proposed sale or other disposition of Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition. The Pledgors shall remain liable for any
deficiency if the proceeds of any sale or other disposition of Collateral are
insufficient to pay the Obligations and the fees and disbursements of any
attorneys employed by the Collateral Agent or any of the Lenders to collect such
deficiency.
10. REGISTRATION RIGHTS; PRIVATE SALES.
(a) If the Collateral Agent shall determine to exercise
its right to sell any or all of the Interests or the Pledged Stock, as
the case may be, pursuant to paragraph 9 hereof, and if in the opinion
of the Collateral Agent it is necessary or advisable to have the
Interests or the Pledged Stock, as the case may be, or that portion
thereof to be sold, registered under the provisions of the Securities
Act of 1933, as amended (the "SECURITIES ACT"), each Pledgor will cause
the relevant Subsidiaries to (i) execute and deliver, and cause the
managers, directors or officers of the relevant Subsidiaries to execute
and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the opinion of the Collateral
Agent, necessary or advisable to register the Interests or the Pledged
Stock, as the case may be, or that portion thereof to be sold, under
the provisions of the Securities Act, (ii) use its best efforts to
cause the registration statement relating thereto to become effective
and to remain effective for a period of one year from the date of the
first public offering of the Interests, or that portion thereof to be
sold, and (iii) make all amendments thereto and/or to the related
prospectus which, in the opinion of the Collateral Agent, are necessary
or advisable, all in conformity with the requirements of the Securities
Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Each Pledgor agrees to cause the
relevant Subsidiaries to comply with the provisions of the securities
or "Blue Sky" laws of any and all jurisdictions which the Collateral
Agent shall designate and to make available to its security holders, as
soon as practicable, an earnings statement (which need not be audited)
which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) Each Pledgor recognizes that the Collateral Agent may
be unable to effect a public sale of any or all the Interests, by
reason of certain prohibitions contained in the Securities Act and
applicable state securities laws or otherwise, and may be compelled to
resort to one or more private sales thereof to a restricted group of
purchasers which will be obliged to agree, among other things, to
acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. Each Pledgor
acknowledges and agrees that any such private sale may result in prices
and other terms less favorable to the Collateral Agent than if such
sale were a public sale and agrees that such circumstances shall not,
in and of themselves, result in a determination that such sale was not
made in a commercially reasonable manner. The Collateral Agent shall be
under no obligation to delay a sale of any of the Interests or the
Pledged Stock, as the case may be, for the period of time necessary to
permit any of the relevant Subsidiaries to
Exhibit G (Page 11)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
register such securities for public sale under the Securities Act, or
under applicable state securities laws, even if such Subsidiaries would
agree to do so.
(c) Each Pledgor further agrees to use its best efforts
to do or cause to be done all such other acts as may be necessary to
make any sale or sales of all or any portion of the Interests or the
Pledged Stock pursuant to this Section valid and binding and in
compliance with any and all other applicable Requirements of Law. Each
Pledgor further agrees that a continuing breach of any of the covenants
contained in this Section will cause irreparable injury to the
Collateral Agent and the Lenders, that the Collateral Agent and the
Lenders have no adequate remedy at law in respect of such breach and,
as a consequence, that each and every covenant contained in this
Section shall be specifically enforceable against any Pledgor, and each
Pledgor hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants except for a defense
that no Event of Default has occurred.
11. LIMITATION ON DUTIES REGARDING COLLATERAL. The Collateral
Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the UCC
or otherwise, shall be to deal with it in the same manner as the Collateral
Agent deals with similar securities and property for its own account. Neither
the Collateral Agent nor any of its directors, officers, employees or agents
shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of any Pledgor or
otherwise.
12. POWERS COUPLED WITH AN INTEREST. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
13. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. PARAGRAPH HEADINGS. The paragraph headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
15. NO WAIVER; CUMULATIVE REMEDIES; INTEGRATION. The Collateral
Agent shall not by any act (except by a written instrument pursuant to this
paragraph), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any Event of Default or
in any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Collateral Agent, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Collateral Agent of any right or remedy hereunder on
any one occasion shall not be construed as a bar to any right or remedy which
the Collateral Agent would otherwise have on any future occasion. The rights and
Exhibit G (Page 12)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any rights or remedies provided by law. This Agreement
represents the agreement of the Pledgors and the Collateral Agent with respect
to the subject matter hereof and there are no promises or representations by the
Collateral Agent relative to the subject matter hereof not reflected herein.
16. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS; GOVERNING LAW.
None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
each of the Pledgors and the Collateral Agent, provided that any provision of
this Agreement that imposes an obligation solely on a Pledgor or provides a
right in favor solely of the Collateral Agent may be waived by the Collateral
Agent in a letter or agreement executed by the Collateral Agent or by facsimile
transmission from the Collateral Agent. This Agreement shall be binding upon the
successors and assigns of the Pledgors and shall inure to the benefit of the
Collateral Agent and its successors and assigns. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH PLEDGOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT AGAINST IT 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 PLEDGOR
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT 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 EACH PLEDGOR AT THE
ADDRESS SET FORTH FOR GTM IN THE CREDIT AGREEMENT. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF THE COLLATERAL AGENT OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY PLEDGOR IN ANY OTHER JURISDICTION.
18. WAIVERS.
(a) EACH PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY ACTION DESCRIBED IN PARAGRAPH 17, OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN INCONVENIENT COURT, AND AGREES NOT TO PLEAD OR CLAIM THE
SAME.
Exhibit G (Page 13)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(b) EACH OF THE PLEDGORS AND THE COLLATERAL AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO ANY MATTER
ARISING DIRECTLY OR INDIRECTLY OUT OF OR WITH RESPECT TO THIS
AGREEMENT.
19. NOTICES. All notices, requests and demands to or upon the
Collateral Agent, the Pledgors or the Subsidiaries to be effective shall be in
writing (including by facsimile transmission), and, unless otherwise expressly
provided herein, shall be deemed to have been given or made when actually
delivered or, in the case of notice by facsimile transmission, when received,
addressed as set forth in the Credit Agreement, in the case of the Pledgors and
the Collateral Agent, or as set forth under such party's signature below, in the
case of the Subsidiaries. The Pledgors and the Subsidiaries may change their
respective addresses and transmission numbers by written notice to the
Collateral Agent.
20. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO SUBSIDIARIES.
Each Pledgor hereby authorizes and instructs each of the Subsidiaries to comply
with any instruction received by it from the Collateral Agent in writing that
(a) states that an Event of Default has occurred and describes such Event of
Default and (b) is otherwise in accordance with the terms of this Agreement,
without any other or further instructions from any Pledgor, and the Pledgors
agree that the Subsidiaries shall be fully protected in so complying.
21. RELEASE OF LIENS. Upon payment and satisfaction in full of the
Obligations, the Collateral Agent agrees, upon the written request of each of
the Pledgors and at the Pledgors' sole expense, to execute, record and file such
instruments and perform such acts as are necessary to release the Collateral
from the Lien and security interest of this Agreement or any assignment or other
security document entered into pursuant hereto.
22. THE COLLATERAL AGENT NOT A MEMBER. Nothing contained in this
Agreement shall be construed or interpreted (a) to transfer to the Collateral
Agent any of the obligations of a member, manager, partner or other owner of any
of the Subsidiaries or (b) to constitute the Collateral Agent a member, manager,
partner or other owner of any of the Subsidiaries.
23. COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
[Remainder of page intentionally left blank.]
Exhibit G (Page 14)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered as of the date first above written.
CAMERON HIGHWAY PIPELINE GP, L.L.C.
CAMERON HIGHWAY PIPELINE I, L.P.
CRYSTAL HOLDING, L.L.C.
FIRST RESERVE GAS, L.L.C.
FLEXTREND DEVELOPMENT COMPANY, L.L.C.
GULFTERRA ALABAMA INTRASTATE, L.L.C
GULFTERRA FIELD SERVICES, L.L.C.
GULFTERRA GC, L.P.
GULFTERRA HOLDING I, L.L.C.
GULFTERRA HOLDING II, L.L.C.
GULFTERRA HOLDING III, L.L.C.
GULFTERRA HOLDING IV, L.P.
GULFTERRA HOLDING V, L.P.
GULFTERRA NGL STORAGE, L.L.C.
GULFTERRA INTRASTATE, L.P.
GULFTERRA OIL TRANSPORT, L.L.C.
GULFTERRA OPERATING COMPANY, L.L.C.
GULFTERRA SOUTH TEXAS, L.P.
GULFTERRA TEXAS PIPELINE, L.P.
HATTIESBURG GAS STORAGE COMPANY
BY: FIRST RESERVE GAS, L.L.C., in its capacity as
50% general partner of Hattiesburg Gas
Storage Company; and
BY: HATTIESBURG INDUSTRIAL GAS SALES, L.L.C., in
its capacity as 50% general partner of
Hattiesburg Gas Storage Company
HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.
HIGH ISLAND OFFSHORE SYSTEM, L.L.C.
BY: GULFTERRA ENERGY PARTNERS, L.P., its sole
member
MANTA RAY GATHERING COMPANY, L.L.C.
PETAL GAS STORAGE, L.L.C.
POSEIDON PIPELINE COMPANY, L.L.C.
By: _____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
Exhibit G (Page 15)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Agreed to:
JPMORGAN CHASE BANK,
as Collateral Agent
By: _______________________________
Name: _______________________________
Title: _______________________________
Exhibit G (Page 16)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE I
(A) LIMITED LIABILITY COMPANY INTERESTS, PARTNERSHIP INTERESTS, AND
INTERESTS IN OTHER NON-CORPORATE SUBSIDIARIES
-------------------------------------------------------------------------------------------------------------------
Description of Equity
Certificate Interest and Name of
Defined Term Type of Entity Number Pledgor owing Equity
Name of Issuer for Issuer of Issuer (if any) Interest
-------------------------------------------------------------------------------------------------------------------
LIMITED LIABILITY COMPANIES
-------------------------------------------------------------------------------------------------------------------
First Reserve Gas, L.L.C. "First Reserve" Delaware limited 100% of limited liability
liability company company interest directly
owned Crystal Holding
-------------------------------------------------------------------------------------------------------------------
GulfTerra Arizona Gas, "GTM Arizona" Delaware limited 100% of limited liability
L.L.C. liability company company interest directly
owned by GTM Field Services
-------------------------------------------------------------------------------------------------------------------
GulfTerra Holding I, L.L.C. "GTM Holding I" Delaware limited 100% of limited liability
liability company company interest directly
owned by GTM GC
-------------------------------------------------------------------------------------------------------------------
GulfTerra Holding II, "GTM Holding II" Delaware limited 100% of limited liability
L.L.C. liability company company interest directly
owned by GTM Holding IV
-------------------------------------------------------------------------------------------------------------------
GulfTerra NGL Storage, "GTM NGL" Delaware limited 100% of limited liability
L.L.C. liability company company interest directly
owned by Crystal Holding
-------------------------------------------------------------------------------------------------------------------
Hattiesburg Industrial Gas "Hattiesburg Delaware limited 100% of limited liability
Sales, L.L.C. Sales" liability company company interest directly
owned by First Reserve
-------------------------------------------------------------------------------------------------------------------
Petal Gas Storage, L.L.C "Petal" Delaware limited 100% of limited liability
liability company company interest directly
owned by Crystal Holding
-------------------------------------------------------------------------------------------------------------------
PARTNERSHIPS
-------------------------------------------------------------------------------------------------------------------
Cameron Highway Pipeline "CHP I" Delaware limited 1% general partnership
I, L.P. partnership interest owned directly by
CHP GP; 99% limited
partnership interest owned
directly by GTM
-------------------------------------------------------------------------------------------------------------------
GulfTerra GC, L.P. "GTM GC" Delaware limited 1% general partnership
partnership interest owned directly
GTM Oil Transport; 99%
limited partnership
interest owned directly by
GTM
-------------------------------------------------------------------------------------------------------------------
Schedule I to Exhibit G (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------------------------------------------------------------------------------------
Description of Equity
Certificate Interest and Name of
Defined Term Type of Entity Number Pledgor owing Equity
Name of Issuer for Issuer of Issuer (if any) Interest
-------------------------------------------------------------------------------------------------------------------
GulfTerra Holding IV, L.P. "GTM Holding IV" Delaware limited 1% general partnership
partnership interest owned directly by
GTM Holding I; 99% limited
partnership interest owned
directly by GTM GC
-------------------------------------------------------------------------------------------------------------------
GulfTerra Holding V, L.P. "GTM Holding V" Delaware limited 1% general partnership
partnership interest owned directly by
GTM Holding II; 99% limited
partnership interest owned
directly by GTM Holding IV
-------------------------------------------------------------------------------------------------------------------
GulfTerra Intrastate, L.P. "GTM Intrastate" Delaware limited 1% general partnership
partnership interest owned directly by
GTM Holding III; 99%
limited partnership
interest owned directly by
GTM
-------------------------------------------------------------------------------------------------------------------
GulfTerra South Texas, L.P. "GTM South Texas" Delaware limited .804% general partnership
partnership interest owned directly by
GTM Oil Transport; 99.196%
limited partnership
interest owned directly by
GTM GC
-------------------------------------------------------------------------------------------------------------------
GulfTerra Texas Pipeline, "GTM Texas Delaware limited 1% general partnership
L.P. Pipeline" partnership interest owned directly by
GTM Holding III; 99%
limited partnership
interest owned directly by
GTM
-------------------------------------------------------------------------------------------------------------------
Hattiesburg Gas Storage "Hattiesburg Delaware general 50% general partnership
Company Storage" partnership interest owned directly by
First Reserve; 50% general
partnership interest owned
directly by Hattiesburg
Sales
-------------------------------------------------------------------------------------------------------------------
(B) DESCRIPTION OF PLEDGED STOCK
Issuer Class of Stock* Stock Certificate No. No. of Shares
---------------------------------------------------------------------
[None] N/A N/A N/A
------------------
*Stock is assumed to be common stock unless otherwise indicated.
Schedule I to Exhibit G (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE II
UCC FILINGS
State Filing Office Document Filed
----- ------------- --------------
Delaware Secretary of State UCC-1
(with respect to all Pledgors)
Schedule II to Exhibit G (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE III
INFORMATION REGARDING THE PLEDGORS
Organizational
Identification
Name of each Pledgor on Number in
Public Record of Pledgor's Defined Term for such Jurisdiction of Former Name
Jurisdiction of Organization Type of Entity Pledgor Organization (if any)
------------------------------------------------------------------------------------------------------------------------------------
Cameron Highway Pipeline GP, Delaware limited liability "Cameron Highway GP" 3672523
L.L.C. company
------------------------------------------------------------------------------------------------------------------------------------
Cameron Highway Pipeline I, Delaware limited partnership "Cameron Highway I" 3642223
L.P.
------------------------------------------------------------------------------------------------------------------------------------
Crystal Holding, L.L.C. Delaware limited liability "Crystal Holding" 3258369 El Paso Partners
company Acquisition, L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
First Reserve Gas, L.L.C. Delaware limited liability "First Reserve" 2227809 First Reserve Gas Company
company
------------------------------------------------------------------------------------------------------------------------------------
Flextrend Development Delaware limited liability "Flextrend" 2510310 Acquired by merger:
Company, L.L.C. company ▇▇▇▇▇ Bank Gathering Company,
L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Alabama Intrastate, Delaware limited liability "GTM Alabama" 3605929 EPN Alabama Intrastate,
L.L.C. company L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Field Services, Delaware limited liability "GTM Field Services" 2747220 Delos Offshore Company,
L.L.C. company L.L.C. and EPN Field
Services, L.L.C.
Acquired by merger: ANR
Central Gulf Gathering
Company, L.L.C., Argo,
L.L.C., Argo I, L.L.C., Argo
II, L.L.C., East Breaks
Gathering Company, L.L.C.,
El Paso Energy Partners
Deepwater, L.L.C., El Paso
Hub Services, L.L.C.,
El Paso San ▇▇▇▇, L.L.C., VK
Deepwater Gathering Company,
L.L.C. and VK-Main Pass
Gathering Company, L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
Schedule III Exhibit G (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Organizational
Identification
Name of each Pledgor on Number in
Public Record of Pledgor's Defined Term for such Jurisdiction of Former Name
Jurisdiction of Organization Type of Entity Pledgor Organization (if any)
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra GC, L.P. Delaware limited partnership "GTM GC" 2324709 Green Canyon Pipe Line
Company, L.L.C., Green
Canyon Pipe Line Company,
L.P. and EPN Gulf Coast, L.P.
Acquired by merger: El Paso
Intrastate-Alabama, Inc.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Holding I, L.L.C. Delaware limited liability "GTM Holding I" 3505818 EPN GP Holding I, L.L.C.
company
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Holding II, L.L.C. Delaware limited liability "GTM Holding II" 3499172 EPN GP Holding, L.L.C.
company
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Holding III, L.L.C. Delaware limited liability "GTM Holding III" 3499171 EPN Pipeline GP Holding,
company L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Holding IV, L.P. Delaware limited partnership "GTM Holding IV" 3505820 EPN Holding Company I, L.P.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Holding V, L.P. Delaware limited partnership "GTM ▇▇▇▇▇▇▇ ▇" ▇▇▇▇▇▇▇ EPN Holding Company, L.P.
Acquired by merger: El Paso
Texas Field Services, L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Intrastate, L.P. Delaware limited partnership "GTM Intrastate" 0931567 Cornerstone Pipeline
Company, El Paso Energy
Intrastate Company and
El Paso Energy Intrastate,
L.P.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra NGL Storage, L.L.C. Delaware limited liability "GTM NGL Storage" 3151447 Crystal Properties and
company Trading, L.L.C. and EPN NGL
Storage, L.L.C.
Acquired by merger: Crystal
Properties and Trading
Company
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Oil Transport, Delaware limited liability "GTM Oil Transport" 2408384 Leviathan Oil Transport
L.L.C. company Systems, L.L.C. and El Paso
Energy Partners Oil
Transport, L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Operating Company, Delaware limited liability "GTM Operating Company" 3063154 Leviathan Operating Company,
L.L.C. company L.L.C. and El Paso Energy
Partners Operating Company,
L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
Schedule III Exhibit G (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Organizational
Identification
Name of each Pledgor on Number in
Public Record of Pledgor's Defined Term for such Jurisdiction of Former Name
Jurisdiction of Organization Type of Entity Pledgor Organization (if any)
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra South Texas, L.P. Delaware limited partnership "GTM South Texas" 3564426 El Paso South Texas, L.P.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Texas Pipeline, Delaware limited liability "GTM Texas Pipeline" 2120073 PG&E Texas Pipeline, L.P.
L.P. company and EPGT Texas Pipeline, L.P.
Acquired by merger: Seahawk
Transmission Company and
EPGT Texas LDC, L.P.
------------------------------------------------------------------------------------------------------------------------------------
Hattiesburg Gas Storage Delaware general partnership "Hattiesburg Storage"
Company
------------------------------------------------------------------------------------------------------------------------------------
Hattiesburg Industrial Gas Delaware limited partnership "Hattiesburg Sales" 2058929 Hattiesburg Industrial Gas
Sales, L.L.C. Sales Company
------------------------------------------------------------------------------------------------------------------------------------
High Island Offshore System, Delaware limited liability "High Island" 2999070 High Island Offshore System
L.L.C. company
------------------------------------------------------------------------------------------------------------------------------------
Manta Ray Gathering Company, Delaware limited liability "Manta Ray" 2324708
L.L.C. company
------------------------------------------------------------------------------------------------------------------------------------
Petal Gas Storage, L.L.C. Delaware limited liability "Petal" 2310880 Petal Gas Storage Company
company
------------------------------------------------------------------------------------------------------------------------------------
Poseidon Pipeline Company, Delaware limited liability "Poseidon Holding" 2487652
L.L.C. company
------------------------------------------------------------------------------------------------------------------------------------
Schedule III Exhibit G (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT A
[FORM OF SUBSIDIARY PLEDGE AGREEMENT SUPPLEMENT]
SUBSIDIARY PLEDGE AGREEMENT SUPPLEMENT, dated as of ________, 20__
(this "Supplement"), made by __________________(the "Pledgor"), in favor of
JPMORGAN CHASE BANK, as collateral agent (in such capacity, the "Collateral
Agent") for the ratable benefit of (a) the banks and other financial
institutions (the "Lenders") parties to the Seventh Amended and Restated Credit
Agreement, dated as of March 23, 1995 and as amended and restated as of
September 26, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among GulfTerra Energy Partners, L.P., a Delaware
limited partnership ("GTM"), GulfTerra Energy Finance Corporation, a Delaware
corporation ("GTM Finance"), the Lenders and the JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "Administrative Agent") and (b) the
▇▇▇▇▇ ▇▇▇▇ Lenders (as defined in the Credit Agreement).
1. Reference is hereby made to that certain Amended and Restated
Subsidiary Pledge Agreement, dated as of September 26, 2003, among the Pledgors
therein identified and the Collateral Agent (as amended, supplemented or
modified as of the date hereof, the "Subsidiary Pledge Agreement"). Terms
defined in the Subsidiary Pledge Agreement are used herein as therein defined.
2. Pledgor has formed or acquired one or more new Subsidiaries,
as follows: [insert name, jurisdiction of formation, and type of entity for each
new Subsidiary] (whether one or more, the "New Issuer"). [ADD ONLY IF NEW ISSUER
IS A NON-CORPORATE SUBSIDIARY WITH UNCERTIFICATED EQUITY INTERESTS: Pledgor owns
a ___% [limited liability company/limited partnership/general partnership/other
interest in the New Issuer, and such interest in the New Issuer is
uncertificated.]
3. Pledgor hereby confirms and reaffirms the security interest in
the Collateral granted to the Collateral Agent for the ratable benefit of the
Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders under the Subsidiary Pledge Agreement. As
additional collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of all the Obligations(2) the Pledgor hereby (a) delivers to the
Collateral Agent all the Additional Pledged Certificates (as such term is
hereinafter defined) and all the Additional Pledged Stock (as such term is
hereinafter defined), and (b) sells, assigns, conveys, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, and hereby grants to the
Collateral Agent, for the ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders, a first security interest in, to and under the Additional Collateral
(as such term is hereinafter defined). As used herein, the term "Additional
Pledged Certificates" means the certificates of [limited liability
company/limited partnership/general partnership/other] interests of the
Non-Corporate Subsidiaries (the "Additional Subsidiaries") named on Schedule
I(A) hereto (to the extent such interests are certificated), which interests are
listed on Schedule I(A), together with all limited liability company
certificates, partnership interest certificates, stock certificates, equity
interest
----------------------
(2) Conform the following description of the additional collateral as
necessary, depending on what type of entity the Pledgor is acquiring.
Exhibit A to Exhibit G (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
certificates, options or rights of any nature whatsoever that may be issued or
granted by any Additional Subsidiary to a Pledgor while the Subsidiary Pledge
Agreement is in effect. As used herein, the term "Additional Pledged Stock"
means the shares of capital stock listed on Schedule I(B) hereto, together with
all stock certificates, options or rights of any nature whatsoever that may be
issued or granted by the issuer of such shares of capital stock to a Pledgor
while the Subsidiary Pledge Agreement is in effect. As used herein, the term
"Additional Collateral" means the Additional Interests (as such term is
hereinafter defined) (including, without limitation, the Additional Pledged
Certificates), the Additional Pledged Stock, and all Additional Proceeds (as
such term is hereinafter defined). As used herein, the term "Additional
Interests" means, collectively, the following:
(i) all right, title and interest, now existing or
hereafter acquired, of Pledgor in the Additional Subsidiaries, but not
any of Pledgor's obligations from time to time as a member, manager or
general or limited partner (unless the Collateral Agent shall become a
member, manager or general or limited partner as a result of this
exercise of remedies pursuant to the terms of the Subsidiary Pledge
Agreement) in any Additional Subsidiary;
(ii) any and all monies due and to become due to Pledgor,
now or in the future by way of a distribution made to Pledgor in its
capacity as a member or owner of any limited liability company interest
in the Additional Subsidiaries or otherwise in respect of Pledgor's
interest as a member, limited or general partner or other owner of any
equity interest in the Additional Subsidiaries;
(iii) any other property of any Additional Subsidiary to
which Pledgor now or in the future may be entitled in its capacity as a
member, limited or general partner or other owner of any equity
interest in such Additional Subsidiary by way of distribution, return
or otherwise;
(iv) any other claim which Pledgor now has or may in the
future acquire in its capacity as a member, limited or general partner
or other owner of any equity interest in any Additional Subsidiary and
its property; and
(v) to the extent not otherwise included, all (A)
Additional Proceeds of any or all of the foregoing, and (B) all
Supporting Obligations (as such term is defined in the UCC) with
respect to the foregoing.
As used herein, the term "Additional Proceeds" means all "proceeds" (as such
term is defined in Section 9-102 of the Uniform Commercial Code in effect in the
State of New York on the date hereof) and, in any event, shall include, without
limitation, all income, gain, credit, distributions, dividends and similar items
from or with respect to the Additional Interests (including, without limitation,
the Additional Pledged Certificates) and the Additional Pledged Stock,
collections thereon or distributions with respect thereto.
4. From and after the date of this Supplement, (a) the term
"Pledged Certificates" as used in the Subsidiary Pledge Agreement shall be
amended to include the Additional Pledged Certificates, (b) the term
"Subsidiaries" as used in the Subsidiary Pledge Agreement shall be amended to
include the Additional Subsidiaries, (c) the term "Pledged Stock" as used in the
Exhibit A to Exhibit G (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Subsidiary Pledge Agreement shall be amended to include the Additional Pledged
Stock, (d) the term "Collateral" as used in the Subsidiary Pledge Agreement
shall be amended to include the Additional Collateral, and (e) the term
"Proceeds" as used in the Subsidiary Pledge Agreement shall be amended to
include the Additional Proceeds.
5. The Pledgor will cause each of the New Issuers to execute an
Acknowledgement and Consent substantially in the form of Exhibit B to the
Subsidiary Pledge Agreement. Interests in certain of the Additional Subsidiaries
may not be evidenced by certificates. In the case of such Additional
Subsidiaries, the Collateral Agent agrees that it will not exercise its right
under any such Acknowledgement and Consent to give instructions to such
Additional Subsidiaries regarding such Pledgor's limited liability company,
limited or general partnership or other equity interest in such Additional
Subsidiaries except upon the occurrence and during the continuance of an Event
of Default.
6. After giving effect to the amendments to the Subsidiary Pledge
Agreement set forth in the preceding paragraph, Pledgor hereby represents and
warrants that the representations and warranties contained in paragraph 4 of the
Subsidiary Pledge Agreement are true and correct on the date of this Supplement.
7. This Supplement is supplemental to the Subsidiary Pledge
Agreement, forms a part thereof and is subject to the terms thereof. [Schedule
I, Schedule II and/or Schedule III] to the Subsidiary Pledge Agreement shall
hereby be deemed to include each item listed on [Schedule I, Schedule II and/or
Schedule III] to this Supplement.
IN WITNESS WHEREOF, Pledgor has caused this Supplement to be duly
executed and delivered in favor of the Collateral Agent on the date first set
forth above.
[___________________]
By: ___________________________________
Title: ________________________________
Exhibit A to Exhibit G (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE I
(A) ADDITIONAL SUBSIDIARIES
Description of Equity
Defined Certificate Interest and Name of
Term for Type of Entity Number Pledgor owing Equity
Name of Issuer Issuer of Issuer (if any) Interest
-------------- -------- -------------- ----------- ---------------------
(B) DESCRIPTION OF ADDITIONAL PLEDGED STOCK
Stock
Class Certificate No. of
Issuer of Stock* No. Shares
------ --------- ----------- ------
------------------
*Stock is assumed to be common stock unless otherwise indicated.
Schedule I to Exhibit A to Exhibit G (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE II
ADDITIONAL UCC FILINGS
State Filing Office Document Filed
----- ------------- --------------
Schedule I to Exhibit A to Exhibit G (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE III
INFORMATION REGARDING THE PLEDGOR
Name of Pledgor on Organizational
Public Record of Identification
Pledgor's Jurisdiction of Defined Term for Number in the Former Name
Organization Type of Entity Pledgor State of Delaware (if any)
------------------------- -------------- ---------------- ----------------- -----------
Schedule III to Exhibit A to Exhibit G (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT B
Form of Acknowledgement and Consent
[NAME OF NEW PLEDGED SUBSIDIARY] (the "Issuer") hereby acknowledges
receipt of a copy of the foregoing Supplement and the Subsidiary Pledge
Agreement referred to therein and agrees to be bound thereby and to comply with
the terms thereof insofar as such terms are applicable to it. The Issuer agrees
to notify the Collateral Agent promptly in writing of the occurrence of any of
the events described in paragraph 5(a) of the Subsidiary Pledge Agreement, as
supplemented by such Supplement. The Issuer further agrees that the terms of
paragraph 10(c) of the Subsidiary Pledge Agreement, as supplemented by such
Supplement, shall apply to it, mutatis mutandis, with respect to all actions
that may be required of it under or pursuant to or arising out of paragraph 10
of the Subsidiary Pledge Agreement, as supplemented by such Supplement. The
Issuer hereby also agrees that it will comply with instructions originated by
the Collateral Agent without the consent of any Pledgor.
_______________, [2003]
[NAME OF NEW PLEDGED SUBSIDIARY]
By: _______________________________
Title:
Exhibit B to Exhibit G (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT H
FORM OF SUBSIDIARY SECURITY AGREEMENT
Exhibit H
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED
SUBSIDIARY SECURITY AGREEMENT
AMENDED AND RESTATED SUBSIDIARY SECURITY AGREEMENT, dated as of
September 26, 2003, made by the entities identified on Schedule IV hereto,
(individually a "Grantor", and collectively the "Grantors"), in favor of
JPMORGAN CHASE BANK, as collateral agent (in such capacity, the "Collateral
Agent"), for the ratable benefit of (a) the banks and other financial
institutions (the "Lenders") parties to the Amended and Restated Credit
Agreement, dated as of March 23, 1995 and as amended and restated as of
September 26, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among GulfTerra Energy Partners, L.P., a Delaware
limited partnership, as the borrower ("GTM"), GulfTerra Energy Finance
Corporation, a Delaware corporation, as the co-borrower ("GTM Finance" and,
together with GTM, the "Borrowers"), the Lenders and JPMORGAN CHASE BANK, as
administrative agent (in such capacity, the "Administrative Agent"), and (b) the
▇▇▇▇▇ ▇▇▇▇ Lenders (as defined in the Credit Agreement).
W I T N E S S E T H :
WHEREAS, certain of the Grantors and the Collateral Agent are parties
to that Consolidated Amended and Restated Security Agreement, dated as of
October 10, 2002 (as amended, supplemented and otherwise modified prior to the
date hereof, the "Existing Security Agreement");
WHEREAS, the making of this Security Agreement by each Grantor is
necessary or convenient to the conduct, promotion, or attainment of the business
of such Grantor; and
WHEREAS, pursuant to the provisions of Section 7.10 of the Credit
Agreement, the Borrowers agreed that they would deliver, and would cause each
Person that is a party (or is required to be a party) to any Security Document,
other than the Collateral Agent, to deliver, amended and restated Security
Documents, together with supplemented and corrected schedules, exhibits or other
documents, if any, that are necessary to accurately reflect the collateral
existing as of the Restatement Closing Date that is pledged as security for GTM
and GTM Finance's obligations under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and to comply with the
requirements of Section 7.10 of the Credit Agreement, each Grantor hereby agrees
with the Collateral Agent, for the ratable benefit of the Lenders and the ▇▇▇▇▇
▇▇▇▇ Lenders, that the Existing Security Agreement is hereby amended and
restated to read in its entirety as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms which
are defined in the Credit Agreement and used herein are so used as so defined;
the following terms which are defined in the Uniform Commercial Code in effect
in the State of New York on the date hereof are used herein as so defined:
Accounts, Chattel Paper, Commercial Tort Claims, Deposit Accounts, Documents,
Electronic Chattel Paper, Equipment, Farm Products, General Intangibles,
Instruments, Inventory, Investment Property, Letter-of-Credit Rights, Payment
Intangibles, Supporting Obligations, Promissory Notes, Proceeds; and the
following terms shall have the following meanings:
Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
"Account Debtor": a Person (other than any Grantor) obligated on an
Account, Chattel Paper, or General Intangible.
"Collateral": as defined in Section 2 of this Security Agreement. The
obligations of the Grantors to provide Collateral are limited by paragraphs (c)
and (d) of subsection 7.10 of the Credit Agreement.
"Obligations": with respect to any Grantor, all obligations,
liabilities and indebtedness of such Grantor under and pursuant to the
Subsidiaries Guarantee.
"Patents": (a) all letters patent of the United States and all reissues
and extensions thereof, including, without limitation, any thereof referred to
in Schedule I hereto, and (b) all applications for letters patent of the United
States and all divisions, continuations and continuations-in-part thereof or any
other country, including, without limitation, any thereof referred to in
Schedule I hereto.
"Patent License": all agreements, whether written or oral, providing
for the grant by any Grantor of any right to manufacture, use or sell any
invention covered by a Patent, including, without limitation, any thereof
referred to in Schedule I hereto.
"Security Agreement": this Amended and Restated Subsidiary Security
Agreement, as amended, supplemented or otherwise modified from time to time.
"Subsidiary Pledge Agreement": the Amended and Restated Subsidiary
Pledge Agreement dated as of even date herewith made by the Pledgors party
thereto in favor of JPMorgan Chase Bank for the ratable benefit of the Lenders
and the ▇▇▇▇▇ ▇▇▇▇ Lenders.
"Trademarks": (a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service marks,
logos and other source or business identifiers, and the goodwill associated
therewith, now existing or hereafter adopted or acquired, all registrations and
recordings thereof, and all applications in connection therewith, whether in the
United States Patent and Trademark Office or in any similar office or agency of
the United States, any State thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any thereof
referred to in Schedule II hereto, and (b) all renewals thereof.
"Trademark License": any agreement, written or oral, providing for the
grant by any Grantor of any right to use any Trademark, including, without
limitation, any thereof referred to in Schedule II hereto.
"UCC": the Uniform Commercial Code as from time to time in effect in
the State of New York.
"Vehicles": all cars, trucks, trailers, construction and earth moving
equipment and other vehicles covered by a certificate of title law of any state
and, in any event, shall include, without limitation, the vehicles listed on
Schedule III hereto and all tires and other appurtenances to any of the
foregoing.
Exhibit H (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
2. GRANT OF SECURITY INTEREST. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations of the relevant
Grantor, each Grantor hereby grants to the Collateral Agent, for the ratable
benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, a security interest in all of
the following property now owned or at any time hereafter acquired by such
Grantor or in which such Grantor now has or at any time in the future may
acquire any right, title or interest (collectively, the "Collateral"):
(i) all Accounts;
(ii) all Chattel Paper (including, without
limitation, all Electronic Chattel Paper and all Tangible
Chattel Paper);
(iii) all Documents;
(iv) all Equipment;
(v) all General Intangibles (including, without
limitation, all Payment Intangibles);
(vi) all Instruments;
(vii) all Inventory;
(viii) all Investment Property (but excluding any
such Investment Property that is subject to the security
interests granted by any Grantor in the Subsidiary Pledge
Agreement);
(ix) all Patents;
(x) all Patent Licenses;
(xi) all Trademarks;
(xii) all Trademark Licenses;
(xiii) all Vehicles;
(xiv) all Deposit Accounts other than payroll,
withholding tax and other fiduciary Deposit Accounts;
(xv) all Letter-of-Credit Rights;
(xvi) all Commercial Tort Claims;
(xvii) all Supporting Obligations;
(xviii) with respect only to any Grantor that is a
"transmitting utility" (as defined in the Uniform Commercial
Code of the State of Texas (the "Texas
Exhibit H (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
UCC")), any fixtures (as defined in the Texas UCC) physically
located in the State of Texas to the extent (but only to the
extent) that the filing in the Office of the Secretary of
State of the State of Texas of a financing statement
substantially in the form of Exhibit A hereto would, under the
Texas UCC, result in the perfection of a security interest in
such fixtures;
(xix) with respect only to any Grantor that is a
"transmitting utility" (as defined in the Uniform Commercial
Code of the State of New Mexico (the "New Mexico UCC")), any
fixtures (as defined in the New Mexico UCC) physically located
in the State of New Mexico to the extent (but only to the
extent) that the filing in the Office of the New Mexico
Secretary of State of a financing statement substantially in
the form of Exhibit A hereto would, under the New Mexico UCC,
result in the perfection of a security interest in such
fixtures;
(xx) with respect only to any Grantor that is a
"transmitting utility" (as defined in the Uniform Commercial
Code of the State of Alabama (the "Alabama UCC")), any
fixtures (as defined in the Alabama UCC) physically located in
the State of Alabama to the extent (but only to the extent)
that the filing in the Office of the Alabama Secretary of
State of a financing statement substantially in the form of
Exhibit A hereto would, under the Alabama UCC, result in the
perfection of a security interest in such fixtures; and
(xxi) to the extent not otherwise included, all
Proceeds and products and all of the foregoing;
except, in each case of clauses (i) - (xxi) above, to the extent that (I) any
consent of any affiliate of any Grantor (other than the Borrowers, a Subsidiary
of such Grantor or a Subsidiary of the Borrowers) is required for the grant of
such security interest and such consent has not been obtained after such Grantor
has made a reasonable effort to seek such consent and (II) any consent of any
non-affiliated third party (other than a Governmental Authority) is required for
the grant of such security interest and such consent has not been obtained
(provided that such Grantor is under no duty to seek such third-party consents);
provided that (x) upon the receipt of any such consent referred to in clauses
(I) and (II) above, the security interest granted herein shall automatically
attach on such property and (y) notwithstanding the foregoing, Accounts, Chattel
Paper, Payment Intangibles and Promissory Notes constitute Collateral in which
each Grantor is granting a security interest, as permitted by Sections 9-406 and
9-408 of the Uniform Commercial Code in effect in the State of New York on the
date hereof.
3. RIGHTS OF COLLATERAL AGENT AND LENDERS; LIMITATIONS ON
COLLATERAL AGENT'S AND LENDERS' OBLIGATIONS.
(a) GRANTORS REMAINS LIABLE UNDER ACCOUNTS. Anything
herein to the contrary notwithstanding, each Grantor shall remain
liable under each of the Accounts, Chattel Paper, and Payment
Intangibles to observe and perform all the conditions and obligations
to be observed and performed by it thereunder, all in accordance with
the terms of any agreement giving rise to each such Account, Chattel
Paper or Payment Intangible. Neither the Collateral Agent nor any of
the Lenders shall have any obligation
Exhibit H (Page 4)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
or liability under any Account, Chattel Paper or Payment Intangible (or
any agreement giving rise thereto) by reason of or arising out of this
Security Agreement or the receipt by the Collateral Agent or any of the
Lenders of any payment relating to such Account, Chattel Paper or
Payment Intangible, nor shall the Collateral Agent or any of the
Lenders be obligated in any manner to perform any of the obligations of
any Grantor under or pursuant to any Account, Chattel Paper or Payment
Intangible (or any agreement giving rise thereto), to make any payment,
to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party
under any Account, Chattel Paper or Payment Intangible (or any
agreement giving rise thereto), to present or file any claim, to take
any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to it or to which it may be
entitled at any time or times.
(b) NOTICE TO ACCOUNT DEBTORS. Upon the request of the
Collateral Agent at any time after the occurrence and during the
continuance of an Event of Default, each Grantor shall notify the
Account Debtors that the applicable Accounts, Chattel Paper, and
Payment Intangibles have been assigned to the Collateral Agent for the
ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders and that
payments in respect thereof shall be made directly to the Collateral
Agent. The Collateral Agent may in its own name or in the name of
others communicate with the Account Debtors to verify with them to its
satisfaction the existence, amount and terms of any Accounts, Chattel
Paper, or Payment Intangibles.
(c) ANALYSIS OF ACCOUNTS, ETC. The Collateral Agent shall
have the right to make test verifications of the Accounts, Chattel
Paper and Payment Intangibles in any manner and through any medium that
it reasonably considers advisable, and each Grantor shall furnish all
such assistance and information as the Collateral Agent may require in
connection therewith. At any time and from time to time, upon the
Collateral Agent's request and at the expense of each Grantor, such
Grantor shall furnish to the Collateral Agent reports showing
reconciliations, aging and test verifications of, and trial balances
for, the Accounts, Chattel Paper and Payment Intangibles.
(d) COLLECTIONS ON ACCOUNT, ETC. The Collateral Agent
hereby authorizes each Grantor to collect the Accounts, Chattel Paper
and Payment Intangibles subject to the Collateral Agent's direction and
control, and the Collateral Agent may curtail or terminate said
authority at any time after the occurrence and during the continuance
of an Event of Default. If required by the Collateral Agent at any time
after the occurrence and during the continuance of an Event of Default,
any payments of Accounts, Chattel Paper and Payment Intangibles, when
collected by any Grantor, shall be forthwith (and, in any event, within
two Business Days) deposited by such Grantor in the exact form
received, duly indorsed by such Grantor to the Collateral Agent if
required, in a special collateral account maintained by the Collateral
Agent, subject to withdrawal by the Collateral Agent for the ratable
benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, as hereinafter
provided, and, until so turned over, shall be held by such Grantor in
trust for the Collateral Agent for the ratable benefit of the Lenders
and the ▇▇▇▇▇ ▇▇▇▇ Lenders, segregated from other funds of such
Grantor. Each deposit of any such Proceeds shall be accompanied by a
report identifying in reasonable detail the nature and source of the
Exhibit H (Page 5)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
payments included in the deposit. All Proceeds constituting collections
of Accounts while held by the Collateral Agent (or by any Grantor in
trust for the Collateral Agent for the ratable benefit of the Lenders
and the ▇▇▇▇▇ ▇▇▇▇ Lenders) shall continue to be collateral security
for all of the Obligations and shall not constitute payment thereof
until applied as hereinafter provided. At such intervals as may be
agreed upon by each Grantor and the Collateral Agent, or, if an Event
of Default shall have occurred and be continuing, at any time at the
Collateral Agent's election, the Collateral Agent shall apply all or
any part of the funds on deposit in said special collateral account on
account of the Obligations in such order as the Collateral Agent may
elect, and any part of such funds which the Collateral Agent elects not
so to apply and deems not required as collateral security for the
Obligations shall be paid over from time to time by the Collateral
Agent to each Grantor or to whomsoever may be lawfully entitled to
receive the same. At the Collateral Agent's request, each Grantor shall
deliver to the Collateral Agent all original and other documents
evidencing, and relating to, the agreements and transactions which gave
rise to the Accounts, including, without limitation, all original
orders, invoices and shipping receipts.
4. REPRESENTATIONS AND WARRANTIES. Each Grantor hereby represents
and warrants that:
(a) TITLE; NO OTHER LIENS. Except for the Lien granted to
the Collateral Agent for the ratable benefit of the Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders pursuant to this Security Agreement and the other
Liens permitted to exist on the Collateral pursuant to the Credit
Agreement, each Grantor owns each item of the Collateral free and clear
of any and all Liens or claims of others. No security agreement,
financing statement or other public notice with respect to all or any
part of the Collateral is on file or of record in any public office,
except such as may have been filed in favor of the Collateral Agent,
for the ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders,
pursuant to this Security Agreement or as may be permitted pursuant to
the Credit Agreement.
(b) PERFECTED FIRST PRIORITY LIENS. The Liens granted
pursuant to this Security Agreement constitute perfected Liens on the
Collateral in favor of the Collateral Agent, for the ratable benefit of
the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, which are (except for any Liens
on the Collateral which are permitted to exist pursuant to the Credit
Agreement) prior to all other Liens on the Collateral created by each
Grantor and in existence on the date hereof and which are enforceable
as such against all creditors of and purchasers from each Grantor and
against any owner or purchaser of the real property where any of the
Equipment is located and any present or future creditor obtaining a
Lien on such real property. All action necessary or desirable to
perfect such security interest in each item of the Collateral requested
by the Collateral Agent, including the filing of financing statements
in the offices referred to on Schedule II hereto, has been or will be
duly taken.
(c) ACCOUNTS. The amount represented by each Grantor to
the Lenders from time to time as owing by each Account Debtor or by all
Account Debtors in respect of the Accounts, Chattel Paper, and Payment
Intangibles will at such time be, to such Grantor's best knowledge, the
correct amount actually owing by such Account Debtor or Account
Exhibit H (Page 6)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Debtors thereunder. No amount payable to each Grantor under or in
connection with any Account is evidenced by any Instrument or Chattel
Paper which has not been delivered to the Collateral Agent. The place
where each Grantor keeps its records concerning the Accounts, Chattel
Paper and Payment Intangibles is Four ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇.
(d) GRANTOR'S NAME, ETC. As of the Restatement Closing
Date: (a) the name of each Grantor as indicated on the public record of
such Grantor's jurisdiction of organization, which shows such Grantor
to have been organized, is as set forth on Schedule IV hereto; (b) the
mailing address of each Grantor is Four ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇; (c) with respect to each Grantor, the type of entity of such
Grantor and the organizational identification number for such Grantor
in such Grantor's jurisdiction of organization is correctly set forth
on Schedule IV hereto; (d) to the extent indicated on Schedule IV
hereto, the Grantors therein identified were formerly known by the
names set forth on Schedule IV hereto; and (e) other than such names,
no Grantor has used any other name or trade name since September 15,
1998.
(e) FARM PRODUCTS. As of the Restatement Closing Date,
none of the material Collateral constitutes, or is the Proceeds of,
Farm Products.
(f) PATENTS AND TRADEMARKS. Schedule I hereto includes
all Patents and Patent Licenses owned by each Grantor in its own name
as of the date hereof that are material to the Loan Parties taken as a
whole. Schedule II hereto includes all Trademarks and Trademark
Licenses owned by each Grantor in its own name as of the date hereof
that are material to the Loan Parties taken as a whole.
(g) VEHICLES. As of the Restatement Closing Date,
Schedule III is a complete and correct list of all Vehicles owned by
each Grantor that are material to the Loan Parties taken as a whole.
(h) GOVERNMENTAL OBLIGORS. None of the obligors on any
Grantor's material Accounts, Chattel Paper or Payment Intangibles, and
none of the parties to any of Grantor's material contracts, is a
Governmental Authority.
(i) POWER AND AUTHORITY; AUTHORIZATION. Each Grantor has
the power and authority and the legal right to execute and deliver, to
perform its obligations under, and to grant the Lien on the Collateral
pursuant to, this Security Agreement and has taken all necessary action
to authorize its execution, delivery and performance of, and grant of
the Lien on the Collateral pursuant to, this Security Agreement.
(j) ENFORCEABILITY. This Security Agreement constitutes a
legal, valid and binding obligation of each Grantor enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally.
(k) NO CHAPTER 35 FILINGS. No Grantor has filed a
security instrument with the Secretary of State of the State of Texas
electing to be covered by, or is otherwise
Exhibit H (Page 7)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
subject to the requirements and benefits of, Subchapter A of Chapter 35
of the Texas Business and Commerce Code.
(l) TRANSMITTING UTILITIES. As of the Restatement Closing
Date, (X) each of the Grantors listed on Schedule VI hereto is a Person
primarily engaged in (i) transmitting goods by pipeline, (ii)
transmitting gas, or (iii) producing and transmitting gas, and (Y) such
Grantor owns goods and pipelines located in the jurisdictions indicated
on such Schedule VI.
5. COVENANTS. Each Grantor covenants and agrees with the
Collateral Agent and each of the Lenders that, from and after the date of this
Security Agreement until the Obligations are paid in full and the Commitments
are terminated:
(a) FURTHER DOCUMENTATION; PLEDGE OF INSTRUMENTS AND
CHATTEL PAPER. At any time and from time to time, upon the written
request of the Collateral Agent, and at the sole expense of each
Grantor, such Grantor will promptly and duly execute and deliver such
further instruments and documents and take such further action as the
Collateral Agent may reasonably request for the purpose of obtaining or
preserving the full benefits of this Security Agreement and of the
rights and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the Uniform
Commercial Code in effect in any jurisdiction with respect to the Liens
created hereby. Each Grantor hereby authorizes the Collateral Agent,
its counsel or its representative, at any time and from time to time,
to file financing statements and amendments to financing statements
that describe the collateral covered by such financing statements as
"all assets of the Grantor", "all personal property of the Grantor", or
words of similar effect, in such jurisdictions as the Collateral Agent
may deem necessary or desirable in order to perfect or maintain the
perfection of the security interests granted by such Grantor under this
Security Agreement. Each Grantor hereby further authorizes the
Collateral Agent, its counsel or its representative, at any time and
from time to time, to file continuation statements with respect to
previously filed financing statements. A photographic or other
reproduction of this Security Agreement shall be sufficient as a
financing statement for filing in any jurisdiction. If any amount
payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument or Chattel Paper, such Instrument or
Chattel Paper shall be immediately delivered to the Collateral Agent,
duly endorsed in a manner satisfactory to the Collateral Agent, to be
held as Collateral pursuant to this Security Agreement. Upon the
request of the Collateral Agent or any of the Lenders, each Grantor
shall take or cause to be taken all actions (other than any actions
required to be taken by the Collateral Agent or any of the Lenders)
necessary to cause the Collateral Agent to have "control" (within the
meaning of Sections 9-104, 9-105, 9-106, and 9-107 of the UCC) over any
Collateral constituting Deposit Accounts, Electronic Chattel Paper,
Investment Property, or Letter-of-Credit Rights, and each Grantor shall
promptly notify the Collateral Agent and each of the Lenders of such
Grantor's acquisition of any such Collateral. With respect to any goods
constituting Collateral that are in the possession of a "bailee"
(within the meaning of Section 9-312 of the UCC), each Grantor shall
take or cause to be taken all actions (other than any actions required
to be taken by the Collateral Agent or any of the Lenders) necessary to
cause the Collateral Agent to have a perfected security interest in
Exhibit H (Page 8)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
such Collateral pursuant to the provisions of Section 9-312 of the UCC,
and such Grantor shall provide prompt notice to the Collateral Agent
and each of the Lenders of any such Collateral then in the possession
of such a "bailee".
(b) INDEMNIFICATION. Each Grantor agrees to pay and to
save the Collateral Agent and each of the Lenders harmless from any and
all liabilities and reasonable costs and expenses (including, without
limitation, legal fees and expenses), (i) with respect to, or resulting
from, any delay in paying, any and all excise, sales or other taxes
which may be payable or determined to be payable with respect to any of
the Collateral, (ii) with respect to, or resulting from, any delay in
complying with any Requirement of Law applicable to any of the
Collateral or (iii) in connection with any of the transactions
contemplated by this Security Agreement. In any suit, proceeding or
action brought by the Collateral Agent or the Lenders under any
Account, Chattel Paper, or Payment Intangibles, for any sum owing
thereunder, or to enforce any provisions of any Account, Chattel Paper,
or Payment Intangible, each Grantor will save, indemnify and keep the
Collateral Agent and the Lenders harmless from and against all
reasonable expense, loss or damage suffered by reason of any defense,
setoff, counterclaim, recoupment or reduction or liability whatsoever
of the Account Debtor or obligor thereunder, arising out of a breach by
any Grantor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to or in favor
of such Account Debtor or obligor or its successors from such Grantor.
(c) MAINTENANCE OF RECORDS. Each Grantor will keep and
maintain (or cause to be kept and maintained) at its own cost and
expense satisfactory and complete records of the Collateral, including,
without limitation, a record of all payments received and all credits
granted with respect to the Accounts. For the Collateral Agent's and
the Lenders' further security, the Collateral Agent, for the ratable
benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, shall have a
security interest in all of each Grantor's books and records pertaining
to the Collateral, and each Grantor shall turn over any such books and
records to the Collateral Agent or to its representatives during normal
business hours at the request of the Collateral Agent.
(d) RIGHT OF INSPECTION. The Collateral Agent and the
Lenders shall at all times have full and free access during normal
business hours to all the books, correspondence and records of each
Grantor, and the Collateral Agent and the Lenders and their respective
representatives may examine the same, take extracts therefrom and make
photocopies thereof, and each Grantor agrees to render to the
Collateral Agent and the Lenders, at such Grantor's cost and expense,
such clerical and other assistance as may be reasonably requested with
regard thereto. The Collateral Agent and the Lenders and their
respective representatives shall at all times also have the right to
enter into and upon any premises where any of the Inventory or
Equipment is located for the purpose of inspecting the same, observing
its use or otherwise protecting its interests therein.
(e) LIMITATION ON LIENS ON COLLATERAL. Each Grantor will
not create, incur or permit to exist, will defend the Collateral
against, and will take such other action as is necessary to remove, any
Lien or claim on or to the Collateral, other than the Liens created
hereby and other than as permitted pursuant to the Credit Agreement,
and will
Exhibit H (Page 9)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
defend the right, title and interest of the Collateral Agent and the
Lenders in and to any of the Collateral against the claims and demands
of all Persons whomsoever.
(f) LIMITATIONS ON MODIFICATIONS, WAIVERS, EXTENSIONS OF
AGREEMENTS GIVING RISE TO ACCOUNTS. Except to the extent the same would
not reasonably be expected to have a Material Adverse Effect, each
Grantor will not (i) except in accordance with the ordinary business
practices of such Grantor, amend, modify, terminate or waive any
provision of any Chattel Paper or any agreement giving rise to an
Account or Payment Intangible in any manner which could reasonably be
expected to materially adversely affect the value of such Chattel
Paper, Payment Intangible or Account as Collateral or (ii) fail to
exercise promptly and diligently each and every material right which it
may have under any Chattel Paper and each agreement giving rise to an
Account or Payment Intangible (other than any right of termination).
(g) MAINTENANCE OF EQUIPMENT. Each Grantor will maintain
each item of Equipment material to the conduct of its business in good
operating condition, ordinary wear and tear and immaterial impairments
of value and damage by the elements excepted.
(h) FURTHER IDENTIFICATION OF COLLATERAL. Each Grantor
will furnish to the Collateral Agent and the Lenders from time to time
statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as
the Collateral Agent may reasonably request, all in reasonable detail.
(i) NOTICES. Each Grantor will advise the Collateral
Agent and the Lenders promptly, in reasonable detail, at their
respective addresses set forth in the Credit Agreement, (i) of any Lien
(other than Liens created hereby or permitted under the Credit
Agreement) on, or claim asserted against, any of the Collateral and
(ii) of the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of
the collateral subject to a Lien created pursuant to the Loan Documents
or on such Liens created thereby, taken as a whole
(j) CHANGES IN LOCATIONS, NAME, ETC. Each Grantor
recognizes that financing statements pertaining to the Collateral have
been or may be filed where such Grantor maintains any Collateral or is
organized. Without limitation of any other covenant herein, each
Grantor will not cause or permit (i) any change to be made in its name,
identity or corporate structure or (ii) any change to (A) the identity
of any warehouseman, common carrier, other third-party transporter,
bailee or any agent or processor in possession or control of any
Collateral or (B) such Grantor's jurisdiction of organization, unless
such Grantor shall have first (1) notified the Collateral Agent and the
Lenders of such change at least thirty (30) days prior to the effective
date of such change, and (2) taken all action reasonably requested by
the Collateral Agent or any of the Lenders for the purpose of
maintaining the perfection and priority of the Collateral Agent's
security interests under this Security Agreement. In any notice
furnished pursuant to this subsection, each Grantor will expressly
state that the notice is required by this Security Agreement and
contains facts that may require additional filings of
Exhibit H (Page 10)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
financing statements or other notices for the purposes of continuing
perfection of the Collateral Agent's security interest in the
Collateral.
(k) PATENTS AND TRADEMARKS. Upon request of the
Collateral Agent, each Grantor shall execute and deliver any and all
agreements, instruments, documents, and papers as the Collateral Agent
may request to evidence the Collateral Agent's and the Lender's
security interest in any Patent or Trademark and the goodwill and
general intangibles of such Grantor relating thereto or represented
thereby, and each Grantor hereby constitutes the Collateral Agent its
attorney in fact to execute and file all such writings for the
foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power being coupled with an interest is irrevocable
until the Obligations are paid in full and the Commitments are
terminated.
(l) COMMERCIAL TORT CLAIMS. If any Grantor shall at any
time hold or acquire a Commercial Tort Claim that satisfies the
requirements of the following sentence, such Grantor shall, within
thirty (30) days after such Commercial Tort Claim satisfies such
requirements, notify the Collateral Agent and the Lenders in a writing
signed by such Grantor containing a brief description thereof, and
granting to the Collateral Agent in such writing (for the benefit of
the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders) a security interest therein and
in the Proceeds thereof, all upon the terms of this Security Agreement,
with such writing to be in form and substance satisfactory to the
Collateral Agent and the Lenders. The provisions of the preceding
sentence shall apply only to a Commercial Tort Claim that satisfies the
following requirements: (i) the monetary value claimed by or payable to
the relevant Grantor in connection with such Commercial Tort Claim
shall exceed $20,000,000, and either (ii) (A) such Grantor shall have
filed a law suit or counterclaim or otherwise commenced legal
proceedings (including, without limitation, arbitration proceedings)
against the Person against whom such Commercial Tort Claim is made, or
(B) such Grantor and the Person against whom such Commercial Tort Claim
is asserted shall have entered into a settlement agreement with respect
to such Commercial Tort Claim. In addition, to the extent that the
existence of any Commercial Tort Claim held or acquired by any Grantor
is disclosed by GTM or any Grantor in any public filing with the
Securities Exchange Commission or any successor thereto or analogous
Governmental Authority, or to the extent that the existence of any such
Commercial Tort Claim is disclosed in any press release issued by GTM
or any Grantor, then, upon the request of the Collateral Agent, the
relevant Grantor shall, within thirty (30) days after such request is
made, transmit to the Collateral Agent and the Lenders a writing signed
by such Grantor containing a brief description of such Commercial Tort
Claim and granting to the Collateral Agent in such writing (for the
benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders) a security interest
therein and in the Proceeds thereof, all upon the terms of this
Security Agreement, with such writing to be in form and substance
satisfactory to the Collateral Agent and the Lenders.
6. COLLATERAL AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) POWERS. Each Grantor hereby irrevocably constitutes
and appoints the Collateral Agent and any officer or agent thereof,
with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place
and
Exhibit H (Page 11)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
stead of such Grantor and in the name of such Grantor or in its own
name, from time to time in the Collateral Agent's discretion, for the
purpose of carrying out the terms of this Security Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the
purposes of this Security Agreement, and, without limiting the
generality of the foregoing, each Grantor hereby gives the Collateral
Agent the power and right, on behalf of such Grantor, without notice to
or assent by such Grantor, to do the following:
(i) in the case of any Account, Chattel Paper or
Payment Intangible, at any time when the authority of such
Grantor to collect the Accounts, Chattel Paper or Payment
Intangible has been curtailed or terminated pursuant to the
first sentence of Section 3(d) hereof, or in the case of any
other Collateral, at any time when any Event of Default shall
have occurred and is continuing, in the name of such Grantor
or its own name, or otherwise, to take possession of and
indorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any
Account, Instrument, General Intangible, Chattel Paper, or
Payment Intangible, or with respect to any other Collateral
and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise deemed
appropriate by the Collateral Agent for the purpose of
collecting any and all such moneys due under any Account,
Instrument, or General Intangible or with respect to any other
Collateral whenever payable;
(ii) to pay or discharge taxes and Liens levied
or placed on or threatened against the Collateral, to effect
any repairs or any insurance called for by the terms of this
Security Agreement and to pay all or any part of the premiums
therefor and the costs thereof; and
(iii) upon the occurrence and during the
continuance of any Event of Default, (A) to direct any Person
liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder
directly to the Collateral Agent or as the Collateral Agent
shall direct; (B) to ask or demand for, collect, receive
payment of and receipt for, any and all moneys, claims and
other amounts due or to become due at any time in respect of
or arising out of any Collateral; (C) to sign and indorse any
invoices, freight or express bills, bills of lading, storage
or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with
any of the Collateral; (D) to commence and prosecute any
suits, actions or proceedings at law or in equity in any court
of competent jurisdiction to collect the Collateral or any
thereof and to enforce any other right in respect of any
Collateral; (E) to defend any suit, action or proceeding
brought against any Grantor with respect to any Collateral;
(F) to settle, compromise or adjust any suit, action or
proceeding described in clause (E) above and, in connection
therewith, to give such discharges or releases as the
Collateral Agent may deem appropriate; (G) to assign any
Patent or Trademark (along with the goodwill of the business
to which any such Trademark pertains), throughout the world
for such term or terms, on such conditions, and in such
manner, as the Collateral Agent shall in its sole discretion
determine; and (H) generally, to sell, transfer, pledge and
make any agreement
Exhibit H (Page 12)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Collateral Agent were
the absolute owner thereof for all purposes, and to do, at the
Collateral Agent's option and such Grantor's expense, at any
time, or from time to time, all acts and things which the
Collateral Agent deems necessary to protect, preserve or
realize upon the Collateral and the Collateral Agent's and the
Lenders' Liens thereon and to effect the intent of this
Security Agreement, all as fully and effectively as such
Grantor might do.
Each Grantor hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable.
(b) OTHER POWERS. Each Grantor also authorizes the
Collateral Agent and the Lenders, at any time and from time to time, to
execute, in connection with the sale provided for in Section 9 hereof,
any endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral.
(c) NO DUTY ON COLLATERAL AGENT OR LENDERS' PART. The
powers conferred on the Collateral Agent and the Lenders hereunder are
solely to protect the Collateral Agent's and the Lenders' interests in
the Collateral and shall not impose any duty upon the Collateral Agent
or any of the Lenders to exercise any such powers. The Collateral Agent
and the Lenders shall be accountable only for amounts that they
actually receive as a result of the exercise of such powers, and
neither they nor any of their officers, directors, employees or agents
shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct.
7. PERFORMANCE BY COLLATERAL AGENT OF THE GRANTOR'S OBLIGATIONS.
If any Grantor fails to perform or comply with any of its agreements contained
herein and the Collateral Agent, as provided for by the terms of this Security
Agreement, shall itself perform or comply, or otherwise cause performance or
compliance, with such agreement, the expenses of the Collateral Agent incurred
in connection with such performance or compliance, together with interest
thereon at a rate per annum 3-1/2% above the Alternate Base Rate, shall be
payable by such Grantor to the Collateral Agent on demand and shall constitute
Obligations secured hereby.
8. PROCEEDS. In addition to the rights of the Collateral Agent
and the Lenders specified in Section 3(d) with respect to payments of Accounts,
it is agreed that if an Event of Default shall occur and be continuing (a) all
Proceeds received by each Grantor consisting of cash, checks and other near-cash
items shall be held by such Grantor in trust for the Collateral Agent for the
ratable benefit of the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders, segregated from other
funds of such Grantor, and shall, forthwith upon receipt by such Grantor, be
turned over to the Collateral Agent in the exact form received by such Grantor
(duly indorsed by such Grantor to the Collateral Agent, if required), and (b)
any and all such Proceeds received by the Collateral Agent (whether from a
Grantor or otherwise) may, in the sole discretion of the Collateral Agent, be
held by the Collateral Agent for the ratable benefit of the Lenders and the
▇▇▇▇▇ ▇▇▇▇ Lenders as collateral security for, and/or then or at any time
thereafter may be applied by the Collateral Agent against, the Obligations
(whether matured or unmatured), such application to be in such order as the
Collateral Agent shall elect. Any balance of such Proceeds remaining after
Exhibit H (Page 13)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
the Obligations shall have been paid in full and the Commitments shall have been
terminated shall be paid over to such Grantor or to whomsoever may be lawfully
entitled to receive the same.
9. REMEDIES. If an Event of Default shall occur and be
continuing, the Collateral Agent, on behalf of the Lenders and the ▇▇▇▇▇ ▇▇▇▇
Lenders, may exercise, in addition to all other rights and remedies granted to
them in this Security Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies of
a secured party under the UCC. Without limiting the generality of the foregoing,
the Collateral Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or otherwise dispose of and
deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, at any
exchange, broker's board or office of the Collateral Agent or any of the Lenders
or elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Collateral Agent or any of the Lenders shall
have the right upon any such public sale or sales, and, to the extent permitted
by law, upon any such private sale or sales, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption in any
Grantor, which right or equity is hereby waived or released. Each Grantor
further agrees, at the Collateral Agent's request, to assemble the Collateral
and make it available to the Collateral Agent at places which the Collateral
Agent shall reasonably select, whether at such Grantor's premises or elsewhere.
The Collateral Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Collateral Agent and the Lenders hereunder,
including, without limitation, reasonable attorneys' fees and disbursements, to
the payment in whole or in part of the Obligations, in such order as the
Collateral Agent may elect, and only after such application and after the
payment by the Collateral Agent of any other amount required by any provision of
law, including, without limitation, Section 9-615 of the UCC, need the
Collateral Agent account for the surplus, if any, to such Grantor. To the extent
permitted by applicable law, each Grantor waives all claims, damages and demands
it may acquire against the Collateral Agent or any of the Lenders arising out of
the exercise by them of any rights hereunder except to the extent any thereof
arise solely from the willful misconduct of the Collateral Agent. If any notice
of a proposed sale or other disposition of Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition. Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay the Obligations and the fees and disbursements of any
attorneys employed by the Collateral Agent or any of the Lenders to collect such
deficiency.
10. LIMITATION ON DUTIES REGARDING PRESERVATION OF COLLATERAL. The
Collateral Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the UCC or otherwise, shall be to deal with it
Exhibit H (Page 14)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
in the same manner as the Collateral Agent deals with similar property for its
own account. Neither the Collateral Agent, any of the Lenders, nor any of their
respective directors, officers, employees or agents shall be liable for failure
to demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of any Grantor or otherwise.
11. POWERS COUPLED WITH AN INTEREST. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
12. SEVERABILITY. Any provision of this Security Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
13. PARAGRAPH HEADINGS. The paragraph headings used in this
Security Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
14. NO WAIVER; CUMULATIVE REMEDIES. Neither the Collateral Agent
nor any of the Lenders shall by any act (except by a written instrument pursuant
to Section 15 hereof), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any Default
or Event of Default or in any breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in exercising, on the part of the
Collateral Agent or any of the Lenders, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Collateral Agent or any of the Lenders of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which the
Collateral Agent or any such Lenders would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
15. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS; GOVERNING LAW.
None of the terms or provisions of this Security Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by each of the Grantors and the Collateral Agent, provided that any
provision of this Security Agreement may be waived by the Collateral Agent in a
written letter or agreement executed by the Collateral Agent or by facsimile
transmission from the Collateral Agent. This Security Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Collateral Agent and the Lenders and their respective successors and
assigns. This Security Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
16. NOTICES. Notices hereunder may be given by mail or by
facsimile transmission, addressed or transmitted to the Person to which it is
being given at such Person's address or transmission number set forth in the
Credit Agreement and shall be effective (a) in the case of
Exhibit H (Page 15)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
mail, 3 days after deposit in the postal system, first class postage pre-paid
and (b) in the case of facsimile notices, when sent. Each Grantor may change its
address and transmission number by written notice to the Collateral Agent, and
the Collateral Agent or any of the Lenders may change its address and
transmission number by written notice to each Grantor and, in the case of any of
the Lenders, to the Collateral Agent.
17. AUTHORITY OF COLLATERAL AGENT. Each Grantor acknowledges that
the rights and responsibilities of the Collateral Agent under this Security
Agreement with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the Collateral Agent of any option, right, request,
judgment or other right or remedy provided for herein or resulting or arising
out of this Security Agreement shall, as among the Collateral Agent, the Lenders
and the ▇▇▇▇▇ ▇▇▇▇ Lenders be governed by the Credit Agreement, the ▇▇▇▇▇ ▇▇▇▇
Financing Documents and by such other agreements with respect thereto as may
exist from time to time among them, but, as between the Collateral Agent and
each Grantor, the Collateral Agent shall be conclusively presumed to be acting
as agent for the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders with full and valid
authority so to act or refrain from acting, and no Grantor shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.
18. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH GRANTOR
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT TO WHICH
IT IS A PARTY OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF MAY BE BROUGHT AGAINST IT 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 AND SUCH OTHER LOAN DOCUMENTS, EACH
GRANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
GRANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT 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 SUCH GRANTOR AT ITS
ADDRESS SET FORTH UNDER ITS SIGNATURE BELOW. NOTHING HEREIN AND IN SUCH OTHER
LOAN DOCUMENTS SHALL AFFECT THE RIGHT OF THE COLLATERAL AGENT OR ANY HOLDER OF A
NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR OT COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH GRANTOR IN ANY OTHER JURISDICTION.
19. WAIVERS.
(a) EACH GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY ACTION DESCRIBED IN PARAGRAPH 18, OR THAT SUCH PROCEEDING WAS
BROUGHT IN AN
Exhibit H (Page 16)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
INCONVENIENT COURT, AND AGREES NOT TO PLEAD OR CLAIM THE SAME.
(b) EACH GRANTOR AND THE COLLATERAL AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO ANY MATTER
ARISING DIRECTLY OR INDIRECTLY OUT OF OR WITH RESPECT TO THIS
AGREEMENT.
[Remainder of page intentionally left blank.]
Exhibit H (Page 17)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, each of the undersigned has caused this Security
Agreement to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
CAMERON HIGHWAY PIPELINE GP, L.L.C.
CAMERON HIGHWAY PIPELINE I, L.P.
CRYSTAL HOLDING, L.L.C.
FIRST RESERVE GAS, L.L.C.
FLEXTREND DEVELOPMENT COMPANY, L.L.C.
GULFTERRA ALABAMA INTRASTATE, L.L.C
GULFTERRA FIELD SERVICES, L.L.C.
GULFTERRA GC, L.P.
GULFTERRA HOLDING I, L.L.C.
GULFTERRA HOLDING II, L.L.C.
GULFTERRA HOLDING III, L.L.C.
GULFTERRA HOLDING IV, L.P.
GULFTERRA HOLDING V, L.P.
GULFTERRA NGL STORAGE, L.L.C.
GULFTERRA INTRASTATE, L.P.
GULFTERRA OIL TRANSPORT, L.L.C.
GULFTERRA OPERATING COMPANY, L.L.C.
GULFTERRA SOUTH TEXAS, L.P.
GULFTERRA TEXAS PIPELINE, L.P.
HATTIESBURG GAS STORAGE COMPANY
BY: FIRST RESERVE GAS, L.L.C., in its capacity as 50%
general partner of Hattiesburg Gas Storage
Company; and
BY: HATTIESBURG INDUSTRIAL GAS SALES, L.L.C., in its
capacity as 50% general partner of Hattiesburg
Gas Storage Company
HATTIESBURG INDUSTRIAL GAS SALES, L.L.C.
HIGH ISLAND OFFSHORE SYSTEM, L.L.C.
BY: GULFTERRA ENERGY PARTNERS, L.P., its sole member
MANTA RAY GATHERING COMPANY, L.L.C.
PETAL GAS STORAGE, L.L.C.
POSEIDON PIPELINE COMPANY, L.L.C.
By: _____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Chief Financial Officer
Exhibit H (Page 18)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Agreed to:
JPMORGAN CHASE BANK,
as Collateral Agent
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Exhibit H (Page 19)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE I
Patents and Patent Licenses
None
Schedule I to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE II
Trademarks and Trademark Licenses
None
Schedule II to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE III
Vehicles
None
Schedule III to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE IV
Grantors
Organizational
Identification
Name of each Grantor on Number in
Public Record of Grantor's Defined Term for such Jurisdiction of Former Name
Jurisdiction of Organization Type of Entity Grantor Organization (if any)
------------------------------------------------------------------------------------------------------------------------------------
Cameron Highway Pipeline GP, Delaware limited liability "Cameron Highway GP" 3672523
L.L.C. company
------------------------------------------------------------------------------------------------------------------------------------
Cameron Highway Pipeline I, Delaware limited partnership "Cameron Highway I" 3642223
L.P.
------------------------------------------------------------------------------------------------------------------------------------
Crystal Holding, L.L.C. Delaware limited liability "Crystal Holding" 3258369 El Paso Partners
company Acquisition, L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
First Reserve Gas, L.L.C. Delaware limited liability "First Reserve" 2227809 First Reserve Gas Company
company
------------------------------------------------------------------------------------------------------------------------------------
Flextrend Development Delaware limited liability "Flextrend" 2510310 Acquired by merger: ▇▇▇▇▇
Company, L.L.C. company Bank Gathering Company,
L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Alabama Intrastate, Delaware limited liability "GTM Alabama" 3605929 EPN Alabama Intrastate,
L.L.C. company L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Field Services, Delaware limited liability "GTM Field Services" 2747220 Delos Offshore Company,
L.L.C. company L.L.C. and EPN Field
Services, L.L.C.
Acquired by merger: ANR
Central Gulf Gathering
Company, L.L.C., Argo,
L.L.C., Argo I, L.L.C., Argo
II, L.L.C., East Breaks
Gathering Company, L.L.C.,
El Paso Energy Partners
Deepwater, L.L.C., El Paso
Hub Services, L.L.C.,
El Paso San ▇▇▇▇, L.L.C., VK
Deepwater Gathering Company,
L.L.C. and VK-Main Pass
Gathering Company, L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
Schedule IV to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Organizational
Identification
Name of each Grantor on Number in
Public Record of Grantor's Defined Term for such Jurisdiction of Former Name
Jurisdiction of Organization Type of Entity Grantor Organization (if any)
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra GC, L.P. Delaware limited partnership "GTM GC" 2324709 Green Canyon Pipe Line
Company, L.L.C., Green
Canyon Pipe Line Company,
L.P. and EPN Gulf Coast, L.P.
Acquired by merger: El Paso
Intrastate-Alabama, Inc.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Holding I, L.L.C. Delaware limited liability "GTM Holding I" 3505818 EPN GP Holding I, L.L.C.
company
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Holding II, L.L.C. Delaware limited liability "GTM Holding II" 3499172 EPN GP Holding, L.L.C.
company
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Holding III, L.L.C. Delaware limited liability "GTM Holding III" 3499171 EPN Pipeline GP Holding,
company L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Holding IV, L.P. Delaware limited partnership "GTM Holding IV" 3505820 EPN Holding Company I, L.P.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Holding V, L.P. Delaware limited partnership "GTM ▇▇▇▇▇▇▇ ▇" ▇▇▇▇▇▇▇ EPN Holding Company, L.P.
Acquired by merger: El Paso
Texas Field Services, L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Intrastate, L.P. Delaware limited partnership "GTM Intrastate" 0931567 Cornerstone Pipeline
Company, El Paso Energy
Intrastate Company and
El Paso Energy Intrastate,
L.P.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra NGL Storage, L.L.C. Delaware limited liability "GTM NGL Storage" 3151447 Crystal Properties and
company Trading, L.L.C. and EPN NGL
Storage, L.L.C.
Acquired by merger: Crystal
Properties and Trading
Company
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Oil Transport, Delaware limited liability "GTM Oil Transport" 2408384 Leviathan Oil Transport
L.L.C. company Systems, L.L.C. and El Paso
Energy Partners Oil
Transport, L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Operating Company, Delaware limited liability "GTM Operating 3063154 Leviathan Operating Company,
L.L.C. company Company" L.L.C. and El Paso Energy
Partners Operating Company,
L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
Schedule IV to Exhibit H (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Organizational
Identification
Name of each Grantor on Number in
Public Record of Grantor's Defined Term for such Jurisdiction of Former Name
Jurisdiction of Organization Type of Entity Grantor Organization (if any)
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra South Texas, L.P. Delaware limited partnership "GTM South Texas" 3564426 El Paso South Texas, L.P.
------------------------------------------------------------------------------------------------------------------------------------
GulfTerra Texas Pipeline, Delaware limited liability "GTM Texas Pipeline" 2120073 PG&E Texas Pipeline, L.P.
L.P. company and EPGT Texas Pipeline, L.P.
Acquired by merger: Seahawk
Transmission Company and
EPGT Texas LDC, L.P.
------------------------------------------------------------------------------------------------------------------------------------
Hattiesburg Gas Storage Delaware general partnership "Hattiesburg Storage"
Company
------------------------------------------------------------------------------------------------------------------------------------
Hattiesburg Industrial Gas Delaware limited partnership "Hattiesburg Sales" 2058929 Hattiesburg Industrial Gas
Sales, L.L.C. Sales Company
------------------------------------------------------------------------------------------------------------------------------------
High Island Offshore System, Delaware limited liability "High Island" 2999070 High Island Offshore System
L.L.C. company
------------------------------------------------------------------------------------------------------------------------------------
Manta Ray Gathering Company, Delaware limited liability "Manta Ray" 2324708
L.L.C. company
------------------------------------------------------------------------------------------------------------------------------------
Petal Gas Storage, L.L.C. Delaware limited liability "Petal" 2310880 Petal Gas Storage Company
company
------------------------------------------------------------------------------------------------------------------------------------
Poseidon Pipeline Company, Delaware limited liability "Poseidon Holding" 2487652
L.L.C. company
------------------------------------------------------------------------------------------------------------------------------------
Schedule IV to Exhibit H (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE V
UCC FILINGS
STATE FILING OFFICE DOCUMENT FILED
---------------------------------------------------------------------------------------------------------------------------
Delaware (with respect to all Grantors except Hattiesburg Secretary of State UCC-1
Gas Storage Company)
---------------------------------------------------------------------------------------------------------------------------
Texas (with respect to Hattiesburg Gas Storage Company) Secretary of State UCC-1
---------------------------------------------------------------------------------------------------------------------------
Texas (with respect to GTM South Texas, GTM Intrastate, Secretary of State UCC-1 as a transmitting utility filing
GTM GC, and GTM Texas Pipeline )
---------------------------------------------------------------------------------------------------------------------------
New Mexico (with respect to GTM GC ) Secretary of State UCC-1 as a transmitting utility filing
---------------------------------------------------------------------------------------------------------------------------
Alabama (with respect to GTM Alabama) Secretary of State UCC-1 as a transmitting utility filing
---------------------------------------------------------------------------------------------------------------------------
Schedule V to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE VI
Transmitting Utilities
JURISDICTION(S)
WHERE GRANTOR'S
GOODS AND PIPELINES
NAME OF EACH GRANTOR TYPE OF ENTITY ARE LOCATED
--------------------------------------------------------------------------------------------------
GulfTerra Intrastate, L.P. Delaware limited partnership Texas
--------------------------------------------------------------------------------------------------
GulfTerra Texas Pipeline, L.P. Delaware limited partnership Texas
--------------------------------------------------------------------------------------------------
GulfTerra GC, L.P. Delaware limited partnership Texas & New Mexico
--------------------------------------------------------------------------------------------------
GulfTerra South Texas, L.P. Delaware limited partnership Texas
--------------------------------------------------------------------------------------------------
GulfTerra Alabama Intrastate, L.L.C. Delaware limited liability company Alabama
--------------------------------------------------------------------------------------------------
Schedule VI to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT A
ADDENDUM TO SUBSIDIARY SECURITY AGREEMENT
ADDENDUM, dated as of _____________, 200_ (this "Addendum"), to that
Amended and Restated Subsidiary Security Agreement, dated as of September [__],
2003 (as amended, supplemented or otherwise modified prior to the date hereof,
the "Security Agreement"), made by each of the Grantors listed below in favor of
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, as collateral agent (in such capacity, the "Collateral
Agent") for the Lenders and the ▇▇▇▇▇ ▇▇▇▇ Lenders referred to in the Security
Agreement. Unless otherwise defined herein, terms defined in the Security
Agreement are used herein as therein defined.
W I T N E S S E T H :
WHEREAS, [NAME OF NEW GRANTOR], [a _________ limited liability company]
[a _________________ corporation] [a __________________ partnership] (the "New
Grantor"), has become a Subsidiary of one of the Borrowers; and
WHEREAS, pursuant to subsection 8.17 of the Credit Agreement, the New
Grantor is required to become a party to the Security Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the New Grantor hereby:
(i) agrees to all of the provisions of the Security
Agreement, and
(ii) effective on the date hereof, becomes a party to the
Security Agreement, as a Grantor, with the same effect as if the New
Grantor were an original signatory thereto (with the representations
and warranties contained therein being deemed to be made by the New
Grantor as of the date hereof);
(iii) represents and warrants as follows:
(a) Schedule I hereto includes all Patents and
Patent Licenses owned by New Grantor in its own name as of the
date hereof. Schedule II hereto includes all Trademarks and
Trademark Licenses owned by New Grantor in its own name as of
the date hereof. To the best of New Grantor's knowledge, each
Patent and Trademark is valid, subsisting, unexpired,
enforceable and has not been abandoned. Except as set forth in
either such Schedule, none of such Patents and Trademarks is
the subject of any licensing or franchise agreement. No
holding, decision or judgment has been rendered by any
Governmental Authority which would limit, cancel or question
the validity of any Patent or Trademark. No action or
proceeding is pending (i) seeking to limit, cancel or question
the validity of any Patent or Trademark, or (ii) which, if
adversely determined, would have a material adverse effect on
the value of any Patent or Trademark;
Exhibit A to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(b) Schedule III hereto is a complete and
correct list of all Vehicles owned by New Grantor;
(c) As of the date hereof: (i) the name of New
Grantor as indicated on the public record of New Grantor's
jurisdiction of organization, which shows New Grantor to have
been organized, is as set forth on Schedule IV hereto; (ii)
the mailing address of New Grantor is [_________________];
(iii) the type of entity of New Grantor and the organizational
identification number for New Grantor in New Grantor's
jurisdiction of organization is correctly set forth on
Schedule IV hereto; (iv) to the extent indicated on Schedule
IV hereto, New Grantor was formerly known by the names set
forth on Schedule IV hereto; and (v) other than such names,
New Grantor has not used any other name or trade name;
(d) All action necessary or desirable to perfect
the Liens and security interest in each item of New Grantor's
Collateral requested by the Collateral Agent, including the
filing of financing statements in the offices referred to on
Schedule V hereto, has been or will be duly taken; and
(e) To the extent indicated on Schedule VI
attached hereto, New Grantor is a Person primarily engaged in
(i) transmitting goods by pipeline, (ii) transmitting gas, or
(iii) producing and transmitting gas, and (ii) New Grantor
owns goods and pipelines located in the jurisdictions
indicated on such Schedule VI.
IN WITNESS WHEREOF, the New Grantor has caused this Addendum to be
executed and delivered by its duly authorized officer as of the day and year
first above written.
[NAME OF NEW GRANTOR]
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
Address:
Exhibit A to Exhibit H (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Each of the undersigned Guarantors hereby ratifies and confirms its
respective obligations under the Subsidiaries Guarantee, as supplemented by this
Addendum:
[List Names of Existing Subsidiary Guarantors]
By: ________________________________________
Name: ________________________________________
Title: ________________________________________
Exhibit A to Exhibit H (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Schedule I to
Subsidiary Security Agreement
Addendum
Patents and Patent Licenses
Schedule I to Exhibit A to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Schedule II to
Subsidiary Security Agreement
Addendum
Trademarks and Trademark Licenses
Schedule II to Exhibit A to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Schedule III to
Subsidiary Security Agreement
Addendum
Vehicles
Schedule III to Exhibit A to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Schedule IV to
Subsidiary Security Agreement
Addendum
Grantors
Organizational
Name of each Grantor on Identification
Public Record of Defined Number in
Grantor's Jurisdiction of Term for such Jurisdiction of Former Name
Organization Type of Entity Grantor Organization (if any)
--------------------------------------------------------------------------------------------------------------
Schedule VI to Exhibit A to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Schedule V to
Subsidiary Security Agreement
Addendum
UCC FILINGS
STATE FILING OFFICE DOCUMENT FILED
-------------------------------------------------------------------
Schedule V to Exhibit A to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Schedule VI to
Subsidiary Security Agreement
Addendum
Transmitting Utilities
JURISDICTION(S) WHERE
GRANTOR'S GOODS
NAME OF EACH GRANTOR TYPE OF ENTITY AND PIPELINES ARE LOCATED
-------------------------------------------------------------------------------------------
Schedule VI to Exhibit A to Exhibit H (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT I
[FORM OF BORROWING CERTIFICATE]
Pursuant to subsection 6.3(e) of the Seventh Amended and
Restated Credit Agreement, dated as of March 23, 1995, as amended and restated
through September 26, 2003 (the "Credit Agreement"), among GulfTerra Energy
Partners, L.P., a Delaware limited partnership (the "Borrower"), GulfTerra
Energy Finance Corporation, a Delaware corporation (the "Co-Borrower"), the
several banks and other financial institutions from time to time parties thereto
(the "Lenders"), and JPMorgan Chase Bank, as administrative agent (the
"Administrative Agent"), the undersigned hereby certifies as follows:
The representations and warranties made by the Borrower in or
pursuant to each of the Loan Documents to which it is a party are true
and correct in all material respects on and as of the date hereof as if
made on and as of the date hereof and after giving effect to the Loans
requested to be made pursuant to the Credit Agreement (unless stated to
relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of
such earlier date); and
Immediately prior to and immediately after the making of the
Loans requested to be made pursuant to the Agreement on the date
hereof, no Default or Event of Default will have occurred and will be
continuing under the Credit Agreement.
At the time of and immediately after the making of the Loans
requested to be made pursuant to the Credit Agreement on the date
hereof, the Borrower is in pro forma compliance with Section 8.1 of the
Credit Agreement; provided, however, that the foregoing certification
contained in this paragraph 3 is made by the Borrower in good faith
based upon assumptions believed by the Borrower to be reasonable.
[only if this certificate is delivered in connection with an
Additional Term Loan] [Immediately after the making of any Additional
Term Loan requested to be made pursuant to the Credit Agreement on the
date hereof, the aggregate principal amount of all outstanding
Additional Term Loans does not exceed an amount equal to $500,000,000
less, as of the time of such determination, the aggregate outstanding
principal amount of the Initial Term Loans.]
Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
Exhibit I (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of the ___th day of _________, 2002.
GULFTERRA ENERGY PARTNERS, L.P.
By: ___________________________
Name:
Title:
GULFTERRA ENERGY FINANCE CORPORATION
By: ___________________________
Name:
Title:
Exhibit I (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT J
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Seventh Amended and Restated Credit Agreement,
dated as of March 23, 1995, as amended and restated through September 26, 2003
(as further amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among GulfTerra Energy Partners, L.P., a Delaware limited
partnership (the "Borrower"), GulfTerra Energy Finance Corporation, a Delaware
corporation (the "Co-Borrower"), the Lenders named therein and JPMorgan Chase
Bank, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent"). Terms defined in the Credit Agreement are used herein
with the same meanings.
_________ (the "Assignor") and _________ (the "Assignee") agree as
follows:
(a) The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), a ___% interest (the "Assigned Interest")
in and to the Assignor's rights and obligations under the Credit Agreement with
respect to the credit facility contained in the Credit Agreement as are set
forth on Schedule 1 in a principal amount as set forth on Schedule 1.
(b) The Assignor (i) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that it is the legal and
beneficial owner of the interest conveyed and it has not created any adverse
claim upon the interest being assigned by it hereunder and that such interest is
free and clear of any such adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower, any of its Subsidiaries or any other obligor or the performance
or observance by the Borrower, any of its Subsidiaries or any other obligor of
any of their respective obligations under the Credit Agreement or any other Loan
Document or any other instrument or document furnished pursuant hereto or
thereto; and (iii) attaches the Note(s) held by it evidencing the Assigned
Interest and requests that the Administrative Agent exchange such Note(s) for a
new Note or Notes payable to the Assignor and (if the Assignor has retained any
interest in the Credit Agreement) a new Note or Notes payable to the Assignee in
the respective amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Effective Date).
(c) The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 5.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it will, independently and without reliance upon the Assignor, the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time,
Exhibit J (Page 1)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (iv) appoints and authorizes the
Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative
Agent and the Collateral Agent by the terms thereof, together with such powers
as are incidental thereto; (v) agrees that it will be bound by the provisions of
the Credit Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to Section 4.10
of the Credit Agreement to deliver the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's exemption from
United States withholding taxes with respect to all payments to be made to the
Assignee under the Credit Agreement, or such other documents as are necessary to
indicate that all such payments are subject to such tax at a rate reduced by an
applicable tax treaty; and (vi) agrees that the address for notices pursuant to
Section 11.2 of the Credit Agreement to the Assignee is set forth on Schedule I.
(d) The effective date of this Assignment and Acceptance shall be
_________, _____ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to
subsection 11.6(f) of the Credit Agreement, effective as of the Effective Date
(which shall not, unless otherwise agreed to by the Administrative Agent, be
earlier than five Business Days after the date of such acceptance and recording
by the Administrative Agent).
(e) Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.
(f) From and after the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
(g) This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
Exhibit J (Page 2)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
Schedule 1
to
Assignment and Acceptance
relating to the Seventh Amended and Restated Credit Agreement,
dated as of March 23, 1995, as amended and restated through September 26, 2003,
among GulfTerra Energy Partners, L.P., GulfTerra Energy Finance Corporation,
the Lenders named therein, and JPMorgan Chase Bank,
as administrative agent for the Lenders (in such capacity, the "Administrative
Agent")
Name of Assignor: ______________________________________________________________
Name of Assignee: ______________________________________________________________
Effective Date of Assignment: __________________________________________________
Principal Amount of Revolving Loan Assigned: ___________________________________
Principal Amount of Initial Term Loan Assigned: ________________________________
Principal Amount of Series [___] Additional Term Loan Assigned: ________________
Revolving Credit Commitment Percentage Assigned: [(to at least fifteen decimals)
(shown as a percentage of aggregate principal amount of all Lenders)]: _________
________________________________________________________________________________
Address for Notice to Assignee: ________________________________________________
________________________________________________
________________________________________________
Accepted:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, as Administrative Agent
By: _______________________________
Name: _______________________________
Title: _______________________________
[ASSIGNOR] [ASSIGNEE]
By: _______________________________ By: __________________________
Name: _______________________________ Name: __________________________
Title: _______________________________ Title: __________________________
Consented To:
GULFTERRA ENERGY PARTNERS, L.P.
By: _______________________________
Name: _______________________________
Title: _______________________________
Exhibit J (Page 3)
SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT