Exhibit 10.11
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REVOLVING CREDIT AGREEMENT
dated as of April 24, 2003
among
KANEB PIPE LINE OPERATING PARTNERSHIP, L.P.
as Borrower
KANEB PIPE LINE PARTNERS, L.P.
as KPP
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK
as Administrative Agent
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SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
A DIVISON OF SUNTRUST CAPITAL MARKETS, INC.
and
BANC ONE CAPITAL MARKETS, INC.,
as Joint Lead Arrangers and Book Managers
BANK ONE, NA
as Syndication Agent
BNP PARIBAS
FLEET NATIONAL BANK
and
KEYBANK NATIONAL ASSOCIATION,
as Co-Documentation Agents
TABLE OF CONTENTS
Page
Article I DEFINITIONS; CONSTRUCTION
Section 1.1. Definitions..........................................................................................1
Section 1.2. Classifications of Loans and Borrowings.............................................................20
Section 1.3. Accounting Terms and Determination..................................................................20
Section 1.4. Terms Generally.....................................................................................20
Article II AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1. The Revolving Credit Facility.......................................................................21
Section 2.2. The Loans...........................................................................................21
Section 2.3. Procedure for Borrowings............................................................................21
Section 2.4. Funding of Borrowings...............................................................................22
Section 2.5. Interest Elections..................................................................................22
Section 2.6. Reduction and Termination of Commitments............................................................23
Section 2.7. Repayment of Loans..................................................................................24
Section 2.8. Evidence of Indebtedness............................................................................24
Section 2.9. Prepayments.........................................................................................24
Section 2.10. Interest on Loans..................................................................................25
Section 2.11. Fees...............................................................................................25
Section 2.12. Computation of Interest and Fees...................................................................26
Section 2.13. Inability to Determine Interest Rates..............................................................26
Section 2.14. Illegality.........................................................................................27
Section 2.15. Increased Costs....................................................................................27
Section 2.16. Funding Indemnity..................................................................................28
Section 2.17. Taxes..............................................................................................29
Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs........................................30
Section 2.19. Letters of Credit..................................................................................32
Section 2.20. Mitigation of Obligations; Replacement of Lenders..................................................36
Section 2.21. Increase of Commitments; Additional Lenders........................................................37
Article III CONDITIONS PRECEDENT TO LOANS
Section 3.1. Conditions To Effectiveness.........................................................................38
Section 3.2. Each Credit Event...................................................................................40
Section 3.3. Delivery of Documents...............................................................................40
Article IV REPRESENTATIONS AND WARRANTIES
Section 4.1. Existence; Power....................................................................................41
Section 4.2. Organizational Power; Authorization; Enforceability.................................................41
Section 4.3. Governmental Approvals; No Conflicts................................................................41
Section 4.4. Financial Statements................................................................................42
Section 4.5. Litigation and Environmental Matters................................................................42
Section 4.6. Compliance with Laws and Agreements.................................................................42
Section 4.7. Investment Company Act, Etc.........................................................................42
Section 4.8. Taxes...............................................................................................43
Section 4.9. Margin Regulations..................................................................................43
Section 4.10. ERISA..............................................................................................43
Section 4.11. Ownership of Property..............................................................................43
Section 4.12. Disclosure.........................................................................................44
Section 4.13. Labor Relations....................................................................................44
Section 4.14. Insolvency.........................................................................................44
Section 4.15. Subsidiaries, Significant Affiliates and Guarantors................................................44
Article V AFFIRMATIVE COVENANTS
Section 5.1. Financial Statements and Other Information..........................................................45
Section 5.2. Notices of Material Events..........................................................................46
Section 5.3. Existence; Conduct of Business......................................................................47
Section 5.4. Compliance with Laws, Etc...........................................................................47
Section 5.5. Payment of Obligations..............................................................................47
Section 5.6. Books and Records...................................................................................47
Section 5.7. Visitation, Inspection, Etc.........................................................................47
Section 5.8. Maintenance of Properties; Insurance................................................................48
Section 5.9. Use of Proceeds.....................................................................................48
Section 5.10. Additional Subsidiaries............................................................................48
Article VI FINANCIAL COVENANTS
Section 6.1. Leverage Ratio......................................................................................48
Section 6.2. Consolidated EBITDA to Consolidated Interest Expense................................................49
Section 6.3. Consolidated Net Worth..............................................................................49
Article VII NEGATIVE COVENANTS
Section 7.1. Indebtedness........................................................................................49
Section 7.2. Negative Pledge.....................................................................................50
Section 7.3. Fundamental Changes.................................................................................51
Section 7.4. Investments, Loans, Etc.............................................................................51
Section 7.5. Restricted Payments.................................................................................52
Section 7.6. Sale of Assets......................................................................................53
Section 7.7. Transactions with Affiliates........................................................................53
Section 7.8. Restrictive Agreements..............................................................................53
Section 7.9. Sale and Leaseback Transactions.....................................................................54
Section 7.10. Hedging Agreements.................................................................................54
Section 7.11. Amendment to Material Documents....................................................................54
Section 7.12. Accounting Changes.................................................................................54
Article VIII KPP GUARANTEe
Section 8.1. Guarantee...........................................................................................54
Section 8.2. Guaranteed Obligations Not Waived...................................................................55
Section 8.3. Guarantee of Payment................................................................................55
Section 8.4. No Discharge or Diminishment of Guarantee...........................................................56
Section 8.5. Defenses of Borrower Waived.........................................................................56
Section 8.6. Agreement to Pay; Subordination.....................................................................56
Section 8.7. Information.........................................................................................57
Section 8.8. Termination.........................................................................................57
Article IX EVENTS OF DEFAULT
Section 9.1. Events of Default...................................................................................57
Article X THE ADMINISTRATIVE AGENT
Section 10.1. Appointment of Administrative Agent................................................................60
Section 10.2. Nature of Duties of Administrative Agent...........................................................60
Section 10.3. Lack of Reliance on the Administrative Agent.......................................................61
Section 10.4. Certain Rights of the Administrative Agent.........................................................61
Section 10.5. Reliance by Administrative Agent...................................................................62
Section 10.6. The Administrative Agent in its Individual Capacity................................................62
Section 10.7. Successor Administrative Agent.....................................................................62
Section 10.8. Authorization to Execute other Loan Documents......................................................63
Article XI MISCELLANEOUS
Section 11.1. Notices............................................................................................63
Section 11.2. Waiver; Amendments.................................................................................65
Section 11.3. Expenses; Indemnification..........................................................................66
Section 11.4. Successors and Assigns.............................................................................67
Section 11.5. Governing Law; Jurisdiction; Consent to Service of Process.........................................70
Section 11.6. WAIVER OF JURY TRIAL...............................................................................70
Section 11.7. Right of Setoff....................................................................................71
Section 11.8. Counterparts; Integration..........................................................................71
Section 11.9. Survival...........................................................................................71
Section 11.10. Severability......................................................................................72
Section 11.11. Confidentiality...................................................................................72
Section 11.12. Interest Rate Limitation..........................................................................73
Section 11.13. Waiver of Effect of Corporate Seal................................................................73
Annex I Commitments
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Schedules
Schedule I - Applicable Margin and Applicable Commitment Fee Percentage
Schedule II - Existing Indebtedness
Schedule 4.5 - Environmental Matters
Schedule 4.15 - Subsidiaries
Schedule 7.1 - Existing Subsidiary Indebtedness
Schedule 7.2 - Existing Liens
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Subsidiary Guarantee Agreement
Exhibit D - Form of Notice of Borrowing
Exhibit E - Form of Continuation/Conversion
Exhibit F - Form of Opinion
Exhibit G Form of Compliance Certificate
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered into
as of April __, 2003, by and among KANEB PIPE LINE OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership (the "Borrower"), KANEB PIPE LINE PARTNERS, L.P.,
a Delaware limited partnership ("KPP"), the banks and other financial
institutions from time to time party hereto (the "Lenders") and SUNTRUST BANK,
in its capacity as administrative agent for the Lenders (the "Administrative
Agent") and as issuing bank (the "Issuing Bank").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders establish a
$400,000,000 revolving credit facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement (including,
without limitation, the guaranty and other agreements of KPP set forth herein),
the Lenders and the Issuing Bank to the extent of their respective Commitments
as defined herein, are willing severally to establish the requested revolving
credit facility and letter of credit subfacility in favor of the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Borrower, KPP, the Lenders, the Issuing Bank and the
Administrative Agent agree as follows:
Article I
DEFINITIONS; CONSTRUCTION
Section 1.1. Definitions.
In addition to the other terms defined herein, the following terms used
herein shall have the meanings herein specified (to be equally applicable to
both the singular and plural forms of the terms defined):
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i)
LIBOR for such Interest Period by (ii) a percentage equal to 1.00 minus the
Eurodollar Reserve Percentage.
"Administrative Agent" shall have the meaning set forth in the opening
paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to each
Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly
completed by such Lender.
"Affiliate" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person. For the
purposes of this definition, "Control" shall mean the power, directly or
indirectly, either to (i) vote 5% or more of securities having ordinary
voting power for the election of directors (or persons performing similar
functions) of a Person or (ii) direct or cause the direction of the
management and policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. The terms "Controlled by"
and "under common Control with" have meanings correlative thereto.
"Aggregate Commitments" shall mean, collectively, all Commitments of
all Lenders at any time outstanding.
"Applicable Commitment Fee Percentage" shall mean, with respect to the
commitment fee, a percentage per annum determined by reference to the
applicable Reference Rating in effect on such date as set forth on Schedule
I; provided, that a change in the Applicable Commitment Fee Percentage
resulting from a change in the Reference Rating or Leverage Ratio shall be
effective on the day on which either rating agency changes its rating or on
the third day after which KPP is required to deliver the financial
statements required by Section 5.1(a) or (b) and the compliance certificate
required by Section 5.1(c), as applicable, and shall continue until the day
prior to the day that a further change becomes effective; provided, that if
KPP shall have failed to deliver the financial statements and certificate
described above, the Applicable Commitment Fee Percentage shall be based on
the highest Leverage Ratio until such time as such financial statements and
certificate are delivered, at which time the Applicable Commitment Fee
Percentage shall be determined as provided above. Notwithstanding the
foregoing, the Applicable Commitment Fee Percentage from the Closing Date
until further change in accordance herewith shall be 0.25% per annum.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative
Questionnaire submitted by such Lender or such other office of such Lender
(or an Affiliate of such Lender) as such Lender may from time to time
specify to the Administrative Agent and the Borrower as the office by which
its Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean, as of any date, with respect to all
Loans outstanding on any date or the letter of credit fee, as the case may
be, the percentage per annum determined by reference to the applicable
Reference Rating and Leverage Ratio in effect on such date as set forth on
Schedule I; provided, that a change in the Applicable Margin resulting from
a change in the Reference Rating or Leverage Ratio shall be effective on
the day on which either rating agency changes its rating or on the third
day after which KPP is required to deliver the financial statements
required by Section 5.1(a) or (b) and the compliance certificate required
by Section 5.1(c), as applicable, and shall continue until the day prior to
the day that a further change becomes effective; provided, that if KPP
shall have failed to deliver the financial statements and certificate
described above, the Applicable Margin shall be based on the highest
Leverage Ratio until such time as such financial statements and certificate
are delivered, at which time the Applicable Margin shall be determined as
provided above. Notwithstanding the foregoing, the Applicable Margin from
the Closing Date until further change in accordance herewith shall be
1.125% per annum with respect to Eurodollar Loans and 0% with respect to
Base Rate Loans.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party the
consent of which is required by Section 11.4(b)) and accepted by the
Administrative Agent, in the form of Exhibit B attached hereto or any other
form approved by the Administrative Agent.
"Base Rate" shall mean the higher of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (ii) the Federal Funds
Rate as in effect from time to time plus one-half of one percent (0.50%).
The Administrative Agent's prime lending rate is a reference rate and does
not necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate.
Each change in the Administrative Agent's prime lending rate shall be
effective from and including the date such change is publicly announced as
being effective.
"Borrower" shall have the meaning in the introductory paragraph
hereof.
"Borrowing" shall mean a borrowing consisting of Loans of the same
Type, made, converted or continued on the same date and in case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"Bridge Loan Agreement" shall mean that certain Bridge Loan Agreement,
dated as of December 24, 2002, by and among the Borrower, KPP, the lenders
from time to time parties thereto and SunTrust Bank, as Administrative
Agent.
"Business Day" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia and New York, New
York are authorized or required by law to close and (ii) if such day
relates to a Borrowing of, a payment or prepayment of principal or interest
on, a conversion of or into, or an Interest Period for, a Eurodollar Loan
or a notice with respect to any of the foregoing, any day on which dealings
in Dollars are carried on in the London interbank market.
"Capital Lease Obligations" of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"Change in Control" shall mean the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in a
single transaction or a series of related transactions) of all or
substantially all of the assets of KPP or the General Partner to any other
Person or "group" (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder in
effect on the date hereof), (ii) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or "group" (within the
meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date
hereof) (other than, in the case of the General Partner, by the Investor
Group) of sufficient Equity Interests in KPP or the General Partner to
Control KPP or the General Partner, as the case may be; or (iii) occupation
of a majority of the seats (other than vacant seats) on the board of
directors of the General Partner by Persons who were neither (A) nominated
by the current board of directors or (B) appointed by directors so
nominated. For the purposes of this definition, "Control" shall mean the
power, directly or indirectly, either to (i) vote 50% or more of securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of a Person or (ii) direct or cause the
direction of the management and policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. The terms
"Controlled by" and "under common Control with" have meanings correlative
thereto.
"Change in Law" shall mean (i) the adoption of any applicable law,
rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending
Office) or the Issuing Bank (or for purposes of Section 2.19(b), by such
Lender's or the Issuing Bank's holding company, if applicable) with any
request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.
"Charges" shall have the meaning set forth in Section 11.12.
"Closing Date" shall mean the date on which the conditions precedent
set forth in Section 3.1 have been satisfied or waived in accordance with
Section 11.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Commitment" shall mean, with respect to each Lender, the obligation
of such Lender to make Loans to the Borrower and to participate in Letters
of Credit in an aggregate principal amount not exceeding the amount set
forth with respect to such Lender on Annex I, as such Annex may be amended
pursuant to Section 2.21 or 11.4.
"Compliance Certificate" shall mean a certificate from a Responsible
Officer of the Borrower, in the form of, and containing the certifications
set forth in, the certificate attached hereto as Exhibit G, including,
without limitation, (i) certifying as to whether a Default or Event of
Default has occurred and is continuing on the date of such certificate, and
if a Default or an Event of Default then has occurred and is continuing,
specifying the details thereof and the action that the Borrower has taken
or proposes to take with respect thereto, (ii) setting forth in reasonable
detail calculations demonstrating compliance with Article VI, (iii) stating
whether any change in GAAP or the application thereof affecting the
calculations described in clause (ii) above has occurred since the date of
the audited financial statements of KPP referred to in Section 4.4 and, if
any change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate, (iv) the financial
statements fairly represent, in all material respects, the financial
condition, results of operations, shareholders' equity and cash flows of
the KPP and its Subsidiaries in accordance with GAAP at such date and for
such period, subject only to normal year-end audit adjustments and the
absence of footnotes in the case of unaudited financial statements and (v)
since the date of the financial statements of KPP referred to in Section
4.4, there has been no change which has had or could reasonably be expected
to have a Material Adverse Effect.
"Consolidated EBITDA" shall mean, for KPP and its Subsidiaries for any
period, an amount equal to the sum of (i) Consolidated Net Income for such
period plus (ii) to the extent deducted in determining Consolidated Net
Income for such period, (A) Consolidated Interest Expense, (B) income tax
expense, (C) depreciation and amortization and (D) all other non-cash
charges, determined on a consolidated basis in accordance with GAAP in each
case for such period.
"Consolidated Interest Expense" shall mean, for KPP and its
Subsidiaries for any period determined on a consolidated basis in
accordance with GAAP, the sum of (i) total interest expense, (other than in
respect of Permitted Non-Recourse Debt) including without limitation the
interest component of any payments in respect of Capital Lease Obligations
capitalized or expensed during such period (whether or not actually paid
during such period) plus (ii) the net amount payable (or minus the net
amount receivable) under Hedging Agreements during such period (whether or
not actually paid or received during such period).
"Consolidated Net Income" shall mean, for any period, the sum of (i)
the net income (or loss) of KPP and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, but (A)
excluding therefrom (to the extent otherwise included therein) (1) any
extraordinary gains or losses, (2) any gains attributable to write-ups of
assets, (3) any equity interest of KPP or any Subsidiary of KPP in the
unremitted earnings of any Person that is not a Subsidiary other than ST
Linden, L.L.C. and (4) any income of any Person other than KPP or the
Borrower for such period if (x) such Person has any Permitted Non-Recourse
Indebtedness outstanding owing to any Person other than KPP or a
wholly-owned Subsidiary of KPP and (y) such income is not received in cash
by KPP or the Borrower, as the case may be, during such period, and (B)
including therein (to the extent not otherwise included therein) any income
(or loss) of any Person or attributable to any assets if such income
accrued prior to the date that (x) such Person became a Subsidiary or was
merged into or consolidated with KPP or any Subsidiary of KPP or (y) such
assets were acquired by KPP or any Subsidiary, as the case may be, plus
(ii) the net income (or loss) of the General Partner in such period
attributable to the General Partner's interest in the Borrower, determined
in accordance with GAAP.
"Consolidated Net Worth" shall mean as of any date the sum of (x)
total partners' capital of KPP and its consolidated Subsidiaries as at such
date, excluding the effects of any write-ups after December 31, 2002 of
assets owned by KPP and its consolidated Subsidiaries as of the date of
this Agreement plus (y) minority interests of the General Partner in the
Borrower, in each case determined in accordance with GAAP.
"Consolidated Total Debt" shall mean, as of any date of determination,
all Indebtedness of KPP and its Subsidiaries, excluding Indebtedness of the
type described in clause (xi) of the definition of Indebtedness.
"Constituent Documents" shall mean, for any Person, the documents for
its formation and organization, which, for example, (i) for a corporation
are its corporate charter and bylaws, (ii) for a partnership is its
partnership agreement, (iii) for a limited liability company are its
certificate of organization and regulations, and (iv) for a trust is the
trust agreement or indenture under which it is created.
"Credit Exposure" shall mean, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Loans and LC
Exposure.
"Credit Rating" of any Person shall mean the ratings assigned by S&P
and ▇▇▇▇▇'▇ to the senior unsecured non-credit enhanced long-term debt of
such Person. For purposes hereof, if the ratings assigned by S&P and
▇▇▇▇▇'▇ are not comparable (i.e., a "split rating"), and (i) the ratings
differential is less than two levels, then the higher of such two ratings
shall control or (ii) the ratings differential is two levels or more, then
the ratings one below the higher of such two ratings shall control, unless
either rating is below BBB- (in the case of S&P) or Baa3 (in the case of
▇▇▇▇▇'▇), in which case the lower of the two ratings shall control. If the
rating system of S&P or ▇▇▇▇▇'▇ shall change, or if either rating agency
shall cease to be in the business of rating corporate debt obligations, the
Borrower, the Lenders and the Administrative Agent shall negotiate in good
faith to amend this Schedule to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Margin and the
Applicable Commitment Fee Percentage shall be determined by reference to
the Credit Rating most recently in effect prior to any such change or
cessation. If after a reasonable time the parties cannot agree to a
mutually acceptable amendment, the Applicable Margin and the Applicable
Commitment Fee Percentage shall be determined by reference to Level IV.
"Default" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section
2.10(b).
"Distribution" shall mean, with respect to any Equity Interests issued
by a Person (i) the retirement, redemption, purchase or other acquisition
for value of those Equity Interests, (ii) the declaration or payment of any
dividend or distribution on or with respect to those Equity Interests,
(iii) any Investment by that Person in the holder of any of those Equity
Interests, and (iv) any other payment by that Person with respect to those
Equity Interests.
"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines,
natural resource damages, penalties or indemnities), of KPP or any
Subsidiary directly or indirectly resulting from or based upon (i) any
actual or alleged violation of any Environmental Law, (ii) the generation,
use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (iii) any actual or alleged exposure to any Hazardous
Materials, (iv) the Release or threatened Release of any Hazardous
Materials or (v) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of
the foregoing.
"Equity Event" shall mean (i) the contribution in cash of capital to
KPP or any Subsidiary of KPP by any Person other than KPP or a Wholly-Owned
Subsidiary of KPP or any Subsidiary of KPP, or (ii) any issuance of Equity
Interests by KPP or any Subsidiary of KPP to any Person other than KPP or
any Subsidiary of KPP or a Wholly-Owned Subsidiary of KPP.
"Equity Interests" shall mean, (i) with respect to a corporation,
shares of capital stock of such corporation or any other interest
convertible or exchangeable into any such interest, (ii) with respect to a
limited liability company, a membership interest in such company, (iii)
with respect to a partnership, a partnership interest in such partnership,
and (iv) with respect to any other Person, an interest in such Person
analogous to interests described in clauses (i) through (iii).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with KPP, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for the 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" shall mean (i) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to
a Plan (other than an event for which the 30-day notice period is waived);
(ii) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (iii) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (iv) the incurrence
by KPP or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (v) the receipt by KPP
or any ERISA Affiliate from the PBGC or a plan administrator appointed by
the PBGC of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (vi) the incurrence
by KPP or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or
(vii) the receipt by KPP or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from KPP or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of the
maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which
the Administrative Agent is subject with respect to the Adjusted LIBO Rate
pursuant to regulations issued by the Board of Governors of the Federal
Reserve System (or any Governmental Authority succeeding to any of its
principal functions) with respect to eurocurrency funding (currently
referred to as "eurocurrency liabilities" under Regulation D). Eurodollar
Loans shall be deemed to constitute eurocurrency funding and to be subject
to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under Regulation D. The Eurodollar Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Event of Default" shall have the meaning set forth in Article IX.
"Excluded Affiliate" shall mean, for any Person (the "first Person"),
any other Person (the "second Person") in which the first Person owns
Equity Interests and where the second Person (i) has no Indebtedness other
than Permitted Non-Recourse Debt and (ii) the sole purpose of which is to
engage in the acquisition, construction, development and/or operation
activities financed or refinanced with such Permitted Non-Recourse Debt.
"Excluded Subsidiary" shall mean any Subsidiary of KPP that is an
Excluded Affiliate.
"Excluded Taxes" shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (i)
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, (ii) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which any
Lender is located and (iii) in the case of a Foreign Lender, any
withholding tax that (A) is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement,
(B) is imposed on amounts payable to such Foreign Lender at any time that
such Foreign Lender designates a new lending office, other than taxes that
have accrued prior to the designation of such lending office that are
otherwise not Excluded Taxes, and (C) is attributable to such Foreign
Lender's failure to comply with Section 2.17(e).
"Existing Indebtedness" shall mean the Indebtedness described on
Schedule II of this Agreement.
"Existing Revolving Credit Agreement" shall mean that certain
Revolving Credit Agreement, dated as of December 28, 2000, by and among the
Borrower, KPP, the lenders from time to time parties thereto and SunTrust
Bank, as Administrative Agent.
"Fair Market Value" shall mean, with respect to any Equity Interest or
other property or asset, the price obtainable for such Equity Interest or
other property or asset in an arm's-length sale between an informed and
willing purchaser under no compulsion to purchase and an informed and
willing seller under no compulsion to sell.
"Fee Letters" shall mean (i) that certain letter agreement, dated
March 13, 2003, between the Borrower and SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a
division of SunTrust Capital Markets, Inc., relating to certain fees and
expenses payable in connection with this Agreement and (ii) that certain
letter agreement, dated as of March 13, 2003 between the Borrower and Banc
One Capital Markets, Inc., relating to certain fees and expenses payable in
connection with this Agreement.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds
brokers, as published by the Federal Reserve Bank of New York on the next
succeeding Business Day or if such rate is not so published for any
Business Day, the Federal Funds Rate for such day shall be the average
rounded upwards, if necessary, to the next 1/100th of 1% of the quotations
for such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent.
"Foreign Lender" shall mean any Lender that is not a United States
Person under Section 7701(a)(3) of the Code.
"Foreign Subsidiary" shall mean any Subsidiary of KPP that is not
organized under the law of the United States of America or any state or
territory thereof.
"GAAP" shall mean generally accepted accounting principles in the
United States applied on a consistent basis and subject to the terms of
Section 1.3.
"General Partner" shall mean Kaneb Pipe Line Company LLC, a Delaware
limited liability company.
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
"Granting Lender" shall have the meaning set forth in Section 11.4(e).
"Guarantee" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness of any other
Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation, direct or indirect, of the
guarantor (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to
purchase (or to advance or supply funds for the purchase of) any security
for the payment thereof, (ii) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or
other obligation of the payment thereof, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (iv) as an account party in respect of
any letter of credit or letter of guaranty issued in support of such
Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guarantee shall be deemed to be an amount equal
to the stated or determinable amount of the primary obligation in respect
of which Guarantee is made or, if not so stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder) as determined by such Person in
good faith. The term "Guarantee" used as a verb has a corresponding
meaning.
"Guaranteed Obligations" shall have the meaning set forth in Section
8.01.
"Guarantor" shall mean KPP and each party to the Subsidiary Guarantee
Agreement.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Agreements" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity agreements and
other similar agreements or arrangements designed to protect against
fluctuations in interest rates, currency values or commodity values, in
each case to which KPP or any Subsidiary of KPP is a party.
"Indebtedness" of any Person shall mean, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the deferred purchase
price of property or services (other than trade payables incurred in the
ordinary course of business; provided, that for purposes of Section 9.1(f)
trade payables overdue by more than 120 days shall be included in this
definition except to the extent that any of such trade payables are being
disputed in good faith and by appropriate measures), (iv) all obligations
of such Person under any conditional sale or other title retention
agreement(s) relating to property acquired by such Person, (v) all Capital
Lease Obligations of such Person and all obligations in respect of the
unpaid principal amount or component of all obligations under Synthetic
Leases, (vi) all obligations, contingent or otherwise, of such Person in
respect of letters of credit, acceptances or similar extensions of credit,
(vii) all Guarantees of such Person of the type of Indebtedness described
in clauses (i) through (v) above, (viii) all Indebtedness of a third party
secured by any Lien on property owned by such Person, whether or not such
Indebtedness has been assumed by such Person, (ix) all obligations of such
Person, contingent or otherwise, to purchase, redeem, retire or otherwise
acquire for value any common stock of such Person, (x) all Off-Balance
Sheet Liabilities, and (xi) all obligations under any Hedging Agreement.
The Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner or a
joint venturer, except to the extent that the terms of such Indebtedness
provide that such Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning set forth in Section 11.3(b).
"Information Memorandum" shall mean the Confidential Information
Memorandum dated March 2003, relating to KPP, the Borrower and the
transactions contemplated by this Agreement and the other Loan Documents.
"Interest Coverage Ratio" shall mean for any period of four
consecutive fiscal quarters of KPP, the ratio of (i) Consolidated EBITDA
for such period to (ii) Consolidated Interest Expense for such period.
"Interest Period" shall mean with respect to any Eurodollar Borrowing,
a period of one, two, three or six months; provided, that:
(i) the initial Interest Period for such Borrowing shall commence
on the date of such Borrowing (including the date of any conversion
from a Borrowing of another Type), and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other
than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless such Business Day falls in
another calendar month, in which case such Interest Period would end
on the next preceding Business Day;
(iii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month;
(iv) no Interest Period may extend beyond the Termination Date.
"Investment" shall mean, in respect of any Person, any loan, advance,
extension of credit or capital contribution to that Person, any other
investment in that Person, or any purchase or commitment to purchase any
Equity Interest or Indebtedness issued by that Person or substantially all
of the assets or a division or other business unit of that Person.
"Investor Group" shall mean Kaneb Services, LLC and its Subsidiaries.
"Issuing Bank" shall mean SunTrust Bank or any other Lender that has
agreed to issue Letters of Credit, each in its capacity as an issuer of
Letters of Credit pursuant to Section 2.19.
"LC Commitment" shall mean that portion of the Aggregate Commitments
that may be used by the Borrower for the issuance of Letters of Credit in
an aggregate face amount not to exceed $50,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii)
the aggregate amount of all LC Disbursements that have not been reimbursed
by or on behalf of the Borrower at such time. The LC Exposure of any Lender
shall be its Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning set forth in the introductory
paragraph hereof and shall include, where appropriate, each additional
Lender that joins this Agreement pursuant to Sections 2.21 or 11.4.
"Letter of Credit" shall mean any stand-by letter of credit issued
pursuant to Section 2.19 by the Issuing Bank for the account of the
Borrower pursuant to the LC Commitment.
"Leverage Ratio" shall mean, as of any date, the ratio of (i)
Consolidated Total Debt as of such date to (ii) Consolidated EBITDA for the
four consecutive Fiscal Quarters ending on or immediately prior to such
date.
"LIBOR" shall mean, for any applicable Interest Period with respect to
any Eurodollar Loan, the British Bankers' Association Interest Settlement
Rate per annum for deposits in Dollars for a period equal to such Interest
Period appearing on the display designated as Page 3750 on the Dow ▇▇▇▇▇
Markets Service (or such other page on that service or such other service
designated by the British Bankers' Association for the display of such
Association's Interest Settlement Rates for Dollar deposits) as of 11:00
a.m. (London, England time) on the day that is two Business Days prior to
the first day of the Interest Period or if such Page 3750 is unavailable
for any reason at such time, the rate which appears on the Reuters Screen
ISDA Page as of such date and such time; provided, that if the
Administrative Agent determines that the relevant foregoing sources are
unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum
at which deposits in Dollars are offered to the Administrative Agent two
(2) Business Days preceding the first day of such Interest Period by
leading banks in the London interbank market as of 10:00 a.m. (New York
time) for delivery on the first day of such Interest Period, for the number
of days comprised therein and in an amount comparable to the amount of the
Eurodollar Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest, financing
statement, lien (statutory or otherwise), charge, encumbrance,
hypothecation, assignment, deposit arrangement, or other arrangement having
the practical effect of the foregoing or any preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention
agreement and any capital lease having the same economic effect as any of
the foregoing).
"Loan" shall mean a loan made by a Lender to the Borrower under its
Commitment, which may either be a Base Rate Loan or a Eurodollar Loan.
"Loan Documents" shall mean, collectively, this Agreement, the Notes
(if any), the Subsidiary Guarantee Agreement, the LC Documents, all Notices
of Borrowing, all Notices of Conversion/Continuation and any and all other
instruments, agreements, documents and writings executed in connection with
any of the foregoing.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Material Adverse Effect" shall mean, with respect to any event, act,
condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation
or proceeding), whether singularly or in conjunction with any other event
or events, act or acts, condition or conditions, occurrence or occurrences
whether or not related, a material adverse change in, or a material adverse
effect on, (i) the business, results of operations, financial condition,
assets, liabilities or prospects of the Borrower or of KPP and its
Subsidiaries taken as a whole, (ii) the ability of any Loan Party to
perform any of its obligations under the Loan Documents, (iii) the rights
and remedies of the Administrative Agent, the Issuing Bank and the Lenders
under any of the Loan Documents or (iv) the legality, validity or
enforceability of any of the Loan Documents.
"Material Indebtedness" shall mean Indebtedness (other than the Loans)
or obligations in respect of one or more Hedging Agreements of any one or
more of KPP and its Subsidiaries in an aggregate principal amount exceeding
$10,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of KPP or any Subsidiary of KPP in
respect to any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that KPP or such
Subsidiary would be required to pay if such Hedging Agreement were
terminated at such time.
"Maximum Rate" shall have the meaning set forth in Section 11.12.
"▇▇▇▇▇'▇" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean, with respect to any sale, transfer,
conveyance, lease or other disposition (including by way of merger,
consolidation or sale-leaseback) of any assets of KPP or any Significant
Affiliate (including, without limitation, any Equity Interest owned by KPP
or such Significant Affiliate), the aggregate amount of cash received, as
the case may be, by (x) KPP or the Borrower or (y) any Significant
Affiliate and legally available to be distributed to KPP or the Borrower in
the form of dividends or distributions in connection with such transaction
after, in each case, deducting therefrom (i) payments made in respect of
any Indebtedness to the extent that such payments are required to be made
(other than under the Loan Documents) as a result of or in connection with
such transaction by applicable law or the terms of any contractual
agreement relating to such Indebtedness, (ii) reasonable and customary
transaction costs, and (iii) the amount of taxes paid or reserved for
payment by KPP or such Significant Affiliate in connection with or as a
result of such transaction.
"Non-Recourse" shall mean, with respect to any Person as applied to
any Indebtedness (i) that such Person is not directly or indirectly liable
to make any payments with respect to such Indebtedness, (ii) that such
Indebtedness (or portion thereof) does not constitute Indebtedness of such
Person other than to the extent of recourse to such Person's Equity
Interests in the Person primarily incurring such Indebtedness (or any
shareholder, partner, member or participant of such Person) and that (iii)
such Indebtedness (or portion thereof) is not secured by a Lien on any
asset of such Person other than such Person's Equity Interests in the
Person primarily incurring such Indebtedness or any shareholder, partner,
member, participant or other owner, directly or indirectly, of such Person
or the Person the obligations of which were guaranteed.
"Note" shall mean a promissory note of the Borrower payable to the
order of a requesting Lender in the principal amount of such Lender's
commitment, in substantially the form of Exhibit A.
"Notice of Borrowing" shall have the meaning set forth in Section 2.3.
"Notice of Conversion/Continuation" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.5(b)
hereof.
"Obligations" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender pursuant to or in
connection with this Agreement or any other Loan Document, including
without limitation, all principal, interest (including any interest
accruing after the filing of any petition in bankruptcy or the commencement
of any insolvency, reorganization or like proceeding relating to the
Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees,
expenses, indemnification and reimbursement payments, costs and expenses
(including all fees and expenses of counsel to the Administrative Agent,
the Issuing Bank and any Lender incurred pursuant to this Agreement or any
other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, and all obligations arising under Hedging Agreements owing to
the Administrative Agent, any Lender or any of their Affiliates relating to
the foregoing to the extent permitted hereunder, and all obligations and
liabilities incurred in connection with collecting and enforcing the
foregoing, together with all renewals, extensions, modifications or
refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts
or notes receivable sold by such Person, (ii) any liability of such Person
under any sale and leaseback transactions that do not create a liability on
the balance sheet of such Person or (iii) any obligation arising with
respect to any other transaction which is the functional equivalent of or
takes the place of borrowing but that does not constitute a liability on
the balance sheet of such Person.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement or
any other Loan Document.
"Participant" shall have the meaning set forth in Section 11.4(c).
"Payment Office" shall mean the office of the Administrative Agent
located at ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
location as to which the Administrative Agent shall have given written
notice to the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar
functions.
"Permitted Encumbrances" shall mean
(i) Liens imposed by law for taxes not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens arising by
operation of law in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the
ordinary course of business;
(v) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or materially interfere with the ordinary conduct of
business of the Borrower and its Subsidiaries taken as a whole; and
(vi) Liens granted in favor of the Administrative Agent for the
benefit of the Lenders.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
(or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States), in each case maturing
within one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of
acquisition thereof, of S&P or ▇▇▇▇▇'▇ and in either case maturing
within six months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States or any state
thereof which has a combined capital and surplus and undivided profits
of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (i) above and
entered into with a financial institution satisfying the criteria
described in clause (iii) above; and
(v) mutual funds investing solely in any one or more of the
Permitted Investments described in clauses (i) through (iv) above.
"Permitted Non-Recourse Debt" shall mean Indebtedness of any Person
(other than any Loan Party) that is Non-Recourse to any Loan Party and is
used by such Person to acquire, construct, develop and/or operate assets
not owned by KPP or any Significant Affiliate as of the date hereof or to
refinance other Permitted Non-Recourse Debt.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other
entity, or any Governmental Authority.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
KPP or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA. "Pro Rata Share" shall mean with respect to any
Commitment of any Lender at any time, and all Loans, other Credit Exposure
or any payments or prepayments related thereto, a percentage, the numerator
of which shall be such Lender's Commitment (or if such Commitments have
been terminated or expired or the Loans have been declared to be due and
payable, such Lender's Credit Exposure), and the denominator of which shall
be the sum of such Commitments of all Lenders (or if such Commitments have
been terminated or expired or the Loans have been declared to be due and
payable, the sum of the Credit Exposures of all Lenders).
"Reference Parties" shall mean KPP and the Borrower.
"Reference Ratings" shall mean the Credit Ratings of the Reference
Party with the lowest Credit Rating.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time,
and any successor regulations.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to time,
and any successor regulations.
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding more than
51% of the aggregate outstanding Credit Exposure and unused Commitments at
such time or if the Lenders have no Loans or Letters of Credit outstanding,
then Lenders holding more than 51% of the Commitments.
"Requirement of Law" for any Person shall mean the articles or
certificate of incorporation, bylaws, partnership certificate and
agreement, or limited liability company certificate of organization and
agreement, as the case may be, and other organizational and governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of a Governmental Authority, in each case applicable to or
binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer" shall mean, with respect to any Person, any of
the president, the chief executive officer, the chief operating officer,
the chief financial officer, the treasurer or a vice president of such
Person or such other representative of such Person as may be designated in
writing by any one of the foregoing with the consent of the Administrative
Agent.
"Restricted Payment" shall have the meaning set forth in Section 7.5.
"S&P" shall mean Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SPV" shall have the meaning set forth in Section 11.4(c).
"Significant Affiliate" shall mean each Person (i) in which KPP's
direct and indirect Investments in such Person constitute more than 10% of
the total assets of KPP and its consolidated Subsidiaries, (ii) in which
KPP's and its Subsidiaries' share of the total assets (after intercompany
eliminations) of such Person exceed 10% of the total assets of KPP and its
consolidated Subsidiaries, or (iii) in which the equity of KPP and its
Subsidiaries in the income from continuing operations of such Person before
income taxes, extraordinary items and cumulative effects of changes in
accounting principles exceeds 10% of such income of KPP and its
consolidated Subsidiaries.
"Significant Subsidiary" shall mean any Subsidiary of KPP that is a
Significant Affiliate.
"Senior Notes Indenture" shall mean that certain Indenture, dated on
or about February 21, 2002, between the Borrower and JPMorgan Chase Bank,
as trustee, with respect to the issuance of the Borrower's 7.750% Senior
Unsecured Notes due 2012.
"Subsidiary" shall mean, with respect to any Person (the "parent"),
any corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements
if such financial statements were prepared in accordance with GAAP as of
such date, as well as any other corporation, partnership, joint venture,
limited liability company, association or other entity (i) of which
securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power, or in the case of a
partnership, more than 50% of the general partnership interests are, as of
such date, owned, Controlled or held, or (ii) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent. Unless
otherwise indicated, all references to "Subsidiary" hereunder shall mean a
Subsidiary of KPP, and shall include, without limitation, the Borrower.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit C, made by the Guarantors
(other than KPP) in favor of the Administrative Agent for the benefit of
the Lenders.
"Synthetic Lease" shall mean a lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease"
by the lessee pursuant to Statement of Financial Accounting Standards No.
13, as amended and (ii) the lessee will be entitled to various tax and
other benefits ordinarily available to owners (as opposed to lessees) of
like property.
"Synthetic Lease Obligations" shall mean, with respect to any Person,
the sum of (i) all remaining rental obligations of such Person as lessee
under Synthetic Leases which are attributable to principal and, without
duplication, (ii) all rental and purchase price payment obligations of such
Person under such Synthetic Leases assuming such Person exercises the
option to purchase the lease property at the end of the lease term.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Termination Date" shall mean the earliest of (i) the date three years
from the date of this Agreement, (ii) the date on which the Commitments are
terminated pursuant to Section 2.6 and (iii) the date on which all amounts
outstanding under this Agreement have been declared or have automatically
become due and payable (whether by acceleration or otherwise).
"Type", when used in reference to a Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"Wholly-Owned Subsidiary" shall mean any Subsidiary of a Person, all
of the issued and outstanding Equity Interests of which are directly or
indirectly owned by such Person, excluding (i) any general partner
interests owned by the General Partner in any such Subsidiary that is a
partnership and (ii) any directors' qualifying shares or similar type of
Equity Interests, as applicable.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2. Classifications of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to by
Type (e.g., a "Eurodollar Loan" or "Base Rate Loan"). Borrowings also may be
classified and referred to by Type (e.g., "Eurodollar Borrowing" or "Base Rate
Borrowing").
Section 1.3. Accounting Terms and Determination.
Unless otherwise defined or specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall be
made, and all financial statements required to be delivered hereunder shall be
prepared, in accordance with GAAP as in effect from time to time, applied on a
basis consistent (except for such changes approved by KPP's independent public
accountants) with the most recent audited consolidated financial statement of
KPP delivered pursuant to Section 5.1(a); provided, that if KPP notifies the
Administrative Agent that KPP wishes to amend any covenant in Article VI to
eliminate the effect of any change in GAAP on the operation of such covenant (or
if the Administrative Agent notifies KPP that the Required Lenders wish to amend
Article VI for such purpose), then KPP's compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such notice is withdrawn or such covenant
is amended in a manner satisfactory to KPP and the Required Lenders.
Section 1.4. Terms Generally.
The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". In the computation of periods of time
from a specified date to a later specified date, the word "from" means "from and
including" and the word "to" means "to but excluding". Unless the context
requires otherwise (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as it was originally executed or as it
may from time to time be amended, restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (ii) any reference herein to any Person shall be construed to
include such Person's successors and permitted assigns, (iii) the words
"hereof", "herein" and "hereunder" and words of similar import shall be
construed to refer to this Agreement as a whole and not to any particular
provision hereof, (iv) all references to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement and (v) all references to a specific time shall be
construed to refer to the time in the city and state of the Administrative
Agent's principal office, unless otherwise indicated.
Article II AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1. The Revolving Credit Facility.
Subject to and upon the terms and conditions herein set forth, (i) the
Lenders hereby establish in favor of the Borrower a revolving credit facility
pursuant to which each Lender severally agrees (to the extent of such Lender's
Commitment) to make Loans to the Borrower in accordance with Section 2.2, (ii)
the Issuing Bank agrees to issue Letters of Credit in accordance with Section
2.19, and (iii) each Lender agrees to purchase a participation interest in the
Letters of Credit pursuant to the terms and conditions hereof; provided, that in
no event shall the aggregate principal amount of all outstanding Credit Exposure
exceed at any time the Aggregate Commitments from time to time in effect.
Section 2.2. The Loans.
Subject to the terms and conditions set forth herein, each Lender severally
agrees to make Loans, ratably in proportion to its Pro Rata Share, to the
Borrower, from time to time from the date hereof until the Termination Date, in
an aggregate principal amount outstanding at any time that will not result in
(i) such Lender's Credit Exposure exceeding such Lender's Commitment or (ii) the
sum of the aggregate Credit Exposures of all Lenders exceeding the Aggregate
Commitments. Until the Termination Date, the Borrower shall be entitled to
borrow, prepay and reborrow Loans in accordance with the terms and conditions of
this Agreement.
Section 2.3. Procedure for Borrowings.
The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing substantially
in the form of Exhibit D (a "Notice of Borrowing") (x) prior to 11:00 a.m. (New
York time) one Business Day prior to the requested date of each Base Rate
Borrowing and (y) prior to 11:00 a.m. (New York time) three Business Days prior
to the requested date of each Eurodollar Borrowing. Each Notice of Borrowing
shall be irrevocable and shall specify: (i) the aggregate principal amount of
such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day),
(iii) the Type of such Loan comprising such Borrowing and (iv) in the case of a
Eurodollar Borrowing, the duration of the initial Interest Period applicable
thereto (subject to the provisions of the definition of Interest Period). Each
Borrowing shall consist entirely of Base Rate Loans or Eurodollar Loans, as the
Borrower may request. The aggregate principal amount of each Eurodollar
Borrowing shall be not less than $5,000,000 or a larger multiple of $1,000,000,
and the aggregate principal amount of each Base Rate Borrowing shall not be less
than $1,000,000 or a larger multiple of $100,000; provided, that Base Rate Loans
made pursuant to Section 2.19(d) may be made in lesser amounts as provided
therein. At no time shall the total number of Eurodollar Borrowings outstanding
at any time exceed five. Promptly following the receipt of a Notice of Borrowing
in accordance herewith, the Administrative Agent shall advise each Lender of the
details thereof and the amount of such Lender's Loan to be made as part of the
requested Borrowing.
Section 2.4. Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately
available funds by 11:00 a.m. (New York time) to the Administrative Agent
at the Payment Office. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts that it
receives, in like funds by the close of business on such proposed date, to
an account maintained by the Borrower with the Administrative Agent or at
the Borrower's option, by effecting a wire transfer of such amounts to an
account designated by the Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any
Lender prior to 5 p.m. (New York time) one Business Day prior to the date
of a Borrowing in which such Lender is participating that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made
such amount available to the Administrative Agent on such date, and the
Administrative Agent, in reliance on such assumption, may make available to
the Borrower on such date a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such
Lender on the date of such Borrowing, the Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender
together with interest at the Federal Funds Rate for up to two days and
thereafter at the rate specified for such Borrowing. If such Lender does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount
to the Administrative Agent together with interest at the rate specified
for such Borrowing. Nothing in this subsection shall be deemed to relieve
any Lender from its obligation to fund its Pro Rata Share of any Borrowing
hereunder or to prejudice any rights which the Borrower may have against
any Lender as a result of any default by such Lender hereunder.
(c) All Borrowings shall be made by the Lenders on the basis of their
respective Pro Rata Shares. No Lender shall be responsible for any default
by any other Lender in its obligations hereunder, and each Lender shall be
obligated to make its Loans provided to be made by it hereunder, regardless
of the failure of any other Lender to make its Loans hereunder.
Section 2.5. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Notice of
Borrowing. Thereafter, the Borrower may elect to convert such Borrowing
into a different Type or to continue such Borrowing, and in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided
in this Section. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding Loans
comprising such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in the form
of Exhibit E attached hereto (a "Notice of Conversion/Continuation") that
is to be converted or continued, as the case may be, (x) prior to 10:00
a.m. (New York time) one Business Day prior to the requested date of a
conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m. (New York
time) three Business Days prior to a continuation of or conversion into a
Eurodollar Borrowing. Each such Notice of Conversion/Continuation shall be
irrevocable and shall specify (i) the Borrowing to which such Notice of
Continuation/Conversion applies and, if different options are being elected
with respect to different portions thereof, the portions thereof that are
to be allocated to each resulting Borrowing (in which case the information
to be specified pursuant to clauses (iii) and (iv) shall be specified for
each resulting Borrowing); (ii) the effective date of the election made
pursuant to such Notice of Continuation/Conversion, which shall be a
Business Day, (iii) whether the resulting Borrowing is to be a Base Rate
Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing is
to be a Eurodollar Borrowing, the Interest Period applicable thereto after
giving effect to such election, which shall be a period contemplated by the
definition of "Interest Period". If any such Notice of
Continuation/Conversion requests a Eurodollar Borrowing but does not
specify an Interest Period, the Borrower shall be deemed to have selected
an Interest Period of one month. The principal amount of any resulting
Borrowing shall satisfy the minimum borrowing amount for Eurodollar
Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of any
Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such
Borrowing to a Base Rate Borrowing. No Borrowing may be converted into, or
continued as, a Eurodollar Borrowing if a Default or an Event of Default
has occurred and is continuing, unless the Administrative Agent and each of
the Lenders shall have otherwise consented in writing. No conversion of any
Eurodollar Loans shall be permitted except on the last day of the Interest
Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
Section 2.6. Reduction and Termination of Commitments.
(a) Unless previously terminated, all Commitments (including LC
Commitments) shall terminate on the Termination Date.
(b) Upon at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) to the Administrative
Agent (which notice shall be irrevocable), the Borrower may reduce the
Aggregate Commitments in part or terminate the Aggregate Commitments in
whole; provided, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Commitment of each Lender, (ii) any
partial reduction pursuant to this Section 2.6 shall be in an amount of at
least $5,000,000 and any larger multiple of $1,000,000, and (iii) no such
reduction shall be permitted that would reduce the Aggregate Commitments to
an amount less than the outstanding Credit Exposures of all Lenders. Any
such reduction in the Aggregate Commitments below the aggregate principal
amount of the LC Commitment shall result in an equal reduction to the LC
Commitment.
Section 2.7. Repayment of Loans.
The outstanding principal amount of all Loans shall be due and payable
(together with accrued and unpaid interest thereon) on the Termination Date.
Section 2.8. Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice
appropriate records evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable thereon and paid to
such Lender from time to time under this Agreement. The Administrative
Agent shall maintain appropriate records in which shall be recorded (i) the
Commitment of each Lender, (ii) the amount of each Loan made hereunder by
each Lender, the Type thereof and the Interest Period applicable thereto,
(iii) the date of each continuation thereof pursuant to Section 2.5, (iv)
the date of each conversion of all or a portion thereof to another Type
pursuant to Section 2.5, (v) the date and amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and
amount of any sum received by the Administrative Agent hereunder from the
Borrower in respect of the Loans and each Lender's Pro Rata Share thereof.
The entries made in such records shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded;
provided, that the failure or delay of any Lender or the Administrative
Agent in maintaining or making entries into any such record or any error
therein shall not in any manner affect the obligation of the Borrower to
repay the Loans (both principal and unpaid accrued interest) of such Lender
in accordance with the terms of this Agreement.
(b) At the request of any Lender at any time, the Borrower agrees that
it will execute and deliver to such Lender a Note, payable to the order of
such Lender.
Section 2.9. Prepayments.
The Borrower shall have the right at any time and from time to time to
prepay any Borrowing, in whole or in part, without premium or penalty, by giving
irrevocable written notice (or telephonic notice promptly confirmed in writing)
to the Administrative Agent no later than (i) in the case of prepayment of any
Eurodollar Borrowing, 11:00 a.m. (New York time) not less than three Business
Days prior to any such prepayment, and (ii) in the case of any prepayment of any
Base Rate Borrowing, not less than one Business Day prior to the date of such
prepayment. Each such notice shall be irrevocable and shall specify the proposed
date of such prepayment and the principal amount of each Borrowing or portion
thereof to be prepaid. Upon receipt of any such notice, the Administrative Agent
shall promptly notify each affected Lender of the contents thereof and of such
Lender's Pro Rata Share of any such prepayment. If such notice is given, the
aggregate amount specified in such notice shall be due and payable on the date
designated in such notice, together with accrued interest to such date on the
amount so prepaid in accordance with Section 2.10(c); provided, that if a
Eurodollar Borrowing is prepaid on a date other than the last day of an Interest
Period applicable thereto, the Borrower shall also pay all amounts required
pursuant to Section 2.16. Each partial prepayment of any Loan shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the
same Type pursuant to Section 2.2. Each prepayment of a Borrowing shall be
applied ratably to the Loans comprising such Borrowing.
Section 2.10. Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan at the Base
Rate in effect from time to time and on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such
Loan, plus, in each case, the Applicable Margin in effect from time to
time.
(b) If an Event of Default has occurred and is continuing, at the
option of the Required Lenders, the Borrower shall pay interest ("Default
Interest") with respect to all Eurodollar Loans at the rate otherwise
applicable for the then-current Interest Period plus an additional 2% per
annum until the last day of such Interest Period, and thereafter, and with
respect to all Base Rate Loans and all other Obligations hereunder (other
than Loans), at an all-in rate in effect for Base Rate Loans, plus an
additional 2% per annum.
(c) Interest on the principal amount of all Loans shall accrue from
and including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be
payable quarterly in arrears on the last day of each March, June, September
and December and on the Termination Date. Interest on all outstanding
Eurodollar Loans shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of any Eurodollar Loans having an
Interest Period in excess of three months, on each day that occurs every
three months, after the initial date of such Interest Period, and on the
Termination Date. Interest on any Loan that is converted into a Loan of
another Type or that is repaid or prepaid shall be payable on the date of
such conversion or on the date of any such repayment or prepayment (on the
amount repaid or prepaid) thereof. All Default Interest shall be payable on
demand.
(d) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder and shall promptly notify the Borrower
and the Lenders of such rate in writing (or by telephone, promptly
confirmed in writing). Any such determination shall be conclusive and
binding for all purposes, absent manifest error.
Section 2.11. Fees.
(a) Agency Fees. The Borrower shall pay to the Administrative Agent
for its own account fees in the amounts and at the times agreed upon by the
Borrower in the Fee Letter described in clause (i) of the definition of
"Fee Letters".
(b) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee which shall accrue at
the Applicable Commitment Fee Percentage (determined daily in accordance
with Schedule I) on the daily amount of the unused Commitment of such
Lender from the date hereof until the Termination Date. Accrued commitment
fees shall be payable in arrears on the last day of each March, June,
September and December, commencing on the first such date to occur after
the date hereof, and on the Termination Date.
(c) Letter of Credit Fee. The Borrower agrees to pay (i) to the
Administrative Agent, for the account of each Lender, a letter of credit
fee with respect to its participation in each Letter of Credit, which shall
accrue at a rate per annum equal to the Applicable Margin for Eurodollar
Loans then in effect on the average daily amount of such Lender's LC
Exposure attributable to such Letter of Credit during the period from and
including the date of issuance of each Letter of Credit to but excluding
the date on which such Letter of Credit expires or is drawn in full
(including without limitation any LC Exposure that remains outstanding
after the Termination Date) and (ii) to the Issuing Bank for its own
account a fronting fee, which shall accrue at the rate of 0.125% per annum
on the average daily amount of the LC Exposure from the Closing Date
through the Termination Date (or until the date that such Letter of Credit
is irrevocably cancelled, whichever is later), as well as the Issuing
Bank's standard fees with respect to issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.
Notwithstanding the foregoing, if the Required Lenders elect to increase
interest on the Loans to the Default Interest pursuant to Section 2.10(b),
the letter of credit fees payable pursuant to clause (i) above shall
automatically be increased by an additional 2% per annum.
(d) Upfront Fees. The Borrower shall pay to the Administrative Agent,
for the benefit of the Lenders, the upfront fee previously agreed upon by
the Borrower and the Administrative Agent, which shall be due and payable
on the Closing Date.
(e) Accrued fees shall be payable quarterly in arrears on the last day
of each March, June, September and December, commencing on June 30, 2003
and on the Termination Date (and if later, the date the Loans and LC
Exposure shall be repaid in their entirety; provided further, that any such
fees accruing after the Termination Date shall be payable on demand.
Section 2.12. Computation of Interest and Fees.
Interest based on the Administrative Agent's prime rate pursuant to clause
(i) of the definition of "Base Rate" shall be computed on the basis of a year of
365 days (or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All other interest
and all fees shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but excluding the
last day). Each determination by the Administrative Agent of an interest rate or
fee hereunder shall be made in good faith and, except for manifest error, shall
be final, conclusive and binding for all purposes.
Section 2.13. Inability to Determine Interest Rates.
If prior to the commencement of any Interest Period for any Eurodollar
Borrowing, (i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant interbank market, adequate means do not
exist for ascertaining LIBOR for such Interest Period, or (ii) the
Administrative Agent shall have received notice from the Required Lenders that
the Adjusted LIBO Rate does not adequately and fairly reflect the cost to such
Lenders (or Lender, as the case may be) of making, funding or maintaining their
Eurodollar Loans for such Interest Period, the Administrative Agent shall give
written notice (or telephonic notice, promptly confirmed in writing) to the
Borrower and to the Lenders as soon as practicable thereafter. Until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Loans or to continue or convert outstanding Loans
as or into Eurodollar Loans shall be suspended and (ii) all such affected Loans
shall be converted into Base Rate Loans on the last day of the then current
Interest Period applicable thereto unless the Borrower prepays such Loans in
accordance with this Agreement.
Section 2.14. Illegality.
If any Change in Law shall make it unlawful or impossible for any Lender to
make, maintain or fund any Eurodollar Loan and such Lender shall so notify the
Administrative Agent, the Administrative Agent shall promptly give notice
thereof to the Borrower and the other Lenders, whereupon until such Lender
notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such suspension no longer exist, the obligation of such Lender to make
Eurodollar Loans, or to continue or convert outstanding Loans as or into
Eurodollar Loans, shall be suspended. In the case of the making of a Eurodollar
Borrowing, such Lender's Loan shall be made as a Base Rate Loan as part of the
same Borrowing for the same Interest Period, and, if the affected Eurodollar
Loan is then outstanding, such Loan shall be converted to a Base Rate Loan
either (i) on the last day of the then current Interest Period applicable to
such Eurodollar Loan if such Lender may lawfully continue to maintain such Loan
to such date or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding
the foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good faith exercise
of its discretion.
Section 2.15. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement that is not otherwise included in the
determination of the Adjusted LIBO Rate hereunder against assets of,
deposits with or for the account of, or credit extended by, any Lender
(except any such reserve requirement reflected in the Adjusted LIBO
Rate) or the Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or the
eurodollar interbank market any other condition affecting this
Agreement or any Eurodollar Loans made by such Lender or any Letter of
Credit or any participation therein; and the result of either of the
foregoing is to increase the cost to such Lender of making, converting
into, continuing or maintaining a Eurodollar Loan or to increase the
cost to such Lender or the Issuing Bank of participating in or issuing
any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal,
interest or any other amount), then the Borrower shall promptly pay,
upon written notice from and demand by such Lender on the Borrower
(with a copy of such notice and demand to the Administrative Agent),
to the Administrative Agent for the account of such Lender, within
five Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender or
the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that on or
after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on
such Lender's or the Issuing Bank's capital (or on the capital of such
Lender's or the Issuing Bank's parent corporation) as a consequence of its
obligations hereunder or under or in respect of any Letter of Credit to a
level below that which such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation could have achieved but for such
Change in Law (taking into consideration such Lender's or the Issuing
Bank's policies or the policies of such Lender's or the Issuing Bank's
parent corporation with respect to capital adequacy) then, from time to
time, within five (5) Business Days after receipt by the Borrower of
written demand by such Lender (with a copy thereof to the Administrative
Agent), the Borrower shall pay to such Lender such additional amounts as
will compensate such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's parent corporation, as the case may
be, specified in subsection (a) or (b) of this Section shall be delivered
to the Borrower (with a copy to the Administrative Agent) and shall be
conclusive, absent manifest error. The Borrower shall pay any such Lender
or the Issuing Bank, as the case may be, such amount or amounts within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver
of such Lender's or the Issuing Bank's right to demand such compensation
Section 2.16. Funding Indemnity.
In the event of (i) the payment of any principal of a Eurodollar Loan other
than on the last day of the Interest Period applicable thereto (including as a
result of an Event of Default), (ii) the conversion or continuation of a
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto, or (iii) the failure by the Borrower to borrow, prepay, convert or
continue any Eurodollar Loan on the date specified in any applicable notice
(regardless of whether such notice is withdrawn or revoked), then, in any such
event, the Borrower shall compensate each Lender, within five Business Days
after written demand from such Lender, for any loss, cost or expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (A) the amount of interest that would have accrued on the
principal amount of such Eurodollar Loan if such event had not occurred at the
Adjusted LIBO Rate applicable to such Eurodollar Loan for the period from the
date of such event to the last day of the then current Interest Period therefor
(or in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Eurodollar Loan) over (B) the
amount of interest that would accrue on the principal amount of such Eurodollar
Loan for the same period if the Adjusted LIBO Rate were set on the date such
Eurodollar Loan were prepaid or converted or the date on which the Borrower
failed to borrow, convert or continue such Eurodollar Loan. A certificate as to
any additional amount payable under this Section 2.16 submitted to the Borrower
by any Lender (with a copy to the Administrative Agent) shall be conclusive,
absent manifest error.
Section 2.17. Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided, that if the Borrower
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, any
Lender or the Issuing Bank (as the case may be) shall receive an amount
equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within five (5) Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid
by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any
obligation of the Borrower hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) 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) Each Foreign Lender represents and warrants to the Administrative
Agent and the Borrower that, as of the date such Lender becomes a party to
this Agreement, such Lender is entitled to an exemption from withholding
tax under the Code or any treaty to which the United States is a party with
respect to payments under this Agreement, and each Foreign Lender shall
deliver to the Borrower (with a copy to the Administrative Agent), at the
time or times prescribed by applicable law, such properly completed and
executed documentation prescribed by applicable law or reasonably requested
by the Borrower as will permit such payments to be made without withholding
or at a reduced rate. Without limiting the generality of the foregoing,
each Foreign Lender agrees that it will deliver to the Administrative Agent
and the Borrower (or in the case of a Participant, to the Lender from which
the related participation shall have been purchased), as appropriate, two
(2) duly completed copies of (i) Internal Revenue Service Form W-8 ECI, or
any successor form thereto, certifying that the payments received from the
Borrower hereunder are effectively connected with such Foreign Lender's
conduct of a trade or business in the United States; or (ii) Internal
Revenue Service Form W-8 BEN, or any successor form thereto, certifying
that such Foreign Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces the rate of withholding
tax on payments of interest; or (iii) Internal Revenue Service Form W-8
BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the
Foreign Lender qualifies as "portfolio interest" exempt from U.S.
withholding tax under Code section 871(h) or 881(c), and (B) stating that
(1) the Foreign Lender is not a bank for purposes of Code section
881(c)(3)(A), or the obligation of the Borrower hereunder is not, with
respect to such Foreign Lender, a loan agreement entered into in the
ordinary course of its trade or business, within the meaning of that
section; (2) the Foreign Lender is not a 10% shareholder of the Borrower
within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the
Foreign Lender is not a controlled foreign corporation that is related to
the Borrower within the meaning of Code section 881(c)(3)(C); or (iv) such
other Internal Revenue Service forms as may be applicable to the Foreign
Lender, including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall
deliver to the Borrower and the Administrative Agent such forms on or
before the date that it becomes a party to this Agreement (or in the case
of a Participant, on or before the date such Participant purchases the
related participation). In addition, each such Foreign Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Foreign Lender. Each such Foreign Lender shall
promptly notify the Borrower and the Administrative Agent at any time that
it determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the Internal Revenue Service for such purpose).
Section 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 12:00 noon on the date when due in immediately
available funds, free and clear of any defenses, rights or set-off,
counterclaim, or withholding or deduction of taxes. Any amounts received
after such time on any date may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding Business Day
for purposes of calculating interest thereon. All such payments shall be
made to the Administrative Agent at the Payment Office, except payments to
be made directly to the Issuing Bank as expressly provided herein and
except that payments pursuant to Sections 2.15, 2.16 and 2.17 and 11.3
shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of
any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be made payable for the period of such extension. All
payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such
funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii)
second, towards payment of principal and unreimbursed LC Disbursements then
due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal and unreimbursed LC Disbursements then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements that
would result in such Lender receiving payment of a greater proportion of
the aggregate amount of its Loans and participations in LC Disbursements
and accrued interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion (each a
"Purchasing Lender") shall purchase (for cash at face value) participations
in the Loans and participations in LC Disbursements of other Lenders to the
extent necessary so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal
of and accrued interest on their respective Loans and participations in LC
Disbursements; provided, that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered or
the Purchasing Lender is otherwise required to return or restore any such
payment, such participations shall be rescinded and each other Lender
shall, promptly after request from the Administrative Agent or the
Purchasing Lender, return to the Purchasing Lender the purchase price for
such participation to the extent of such recovery or the amount otherwise
returned or restored by the Purchasing Lender, without interest, and (ii)
the provisions of this subsection shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this subsection shall apply). The
Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against
the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the Issuing Bank, as the case may be, the amount or
amounts due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand
the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.4(a) or 11.3(d), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such
Sections until all such unsatisfied obligations are fully paid.
Section 2.19. Letters of Credit.
(a) Prior to the Termination Date, the Issuing Bank, in reliance upon
the agreements of the other Lenders pursuant to Section 2.19(d), agrees to
issue, at the request of the Borrower, Letters of Credit for the account of
the Borrower on the terms and conditions hereinafter set forth; provided,
that (i) each Letter of Credit shall expire on the earlier of (A) the date
one year after the date of issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is five (5) Business Days prior to the
Termination Date; (ii) each Letter of Credit shall be in a stated amount of
at least $100,000; and (iii) the Borrower may not request any Letter of
Credit, if, after giving effect to such issuance (A) the aggregate LC
Exposure would exceed the LC Commitment or (B) the aggregate LC Exposure,
plus the aggregate outstanding Loans of all Lenders would exceed the
Aggregate Commitments. Upon the issuance of each Letter of Credit each
Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Issuing Bank without recourse a participation
in such Letter of Credit equal to such Lender's Pro Rata Share of the
aggregate amount available to be drawn under such Letter of Credit. Each
issuance of a Letter of Credit shall be deemed to utilize the Commitment of
each Lender by an amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower
shall give the Issuing Bank and the Administrative Agent irrevocable
written notice at least three (3) Business Days prior to the requested date
of such issuance specifying the date (which shall be a Business Day) such
Letter of Credit is to be issued (or amended, extended or renewed, as the
case may be), the expiration date of such Letter of Credit, the amount of
such Letter of Credit , the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. In addition to the satisfaction of the
conditions in Article III, the issuance of such Letter of Credit (or any
amendment which increases the amount of such Letter of Credit) will be
subject to the further conditions that such Letter of Credit shall be in
such form and contain such terms as the Issuing Bank shall approve and that
the Borrower shall have executed and delivered any additional applications,
agreements and instruments relating to such Letter of Credit as the Issuing
Bank shall reasonably require; provided, that in the event of any conflict
between such applications, agreements or instruments and this Agreement,
the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any Letter of
Credit, the Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received such
notice and if not, the Issuing Bank will provide the Administrative Agent
with a copy thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately preceding
the date the Issuing Bank is to issue the requested Letter of Credit (1)
directing the Issuing Bank not to issue the Letter of Credit because such
issuance is not then permitted hereunder because of the limitations set
forth in Section 2.19(a) or that one or more conditions specified in
Article III are not then satisfied, then, subject to the terms and
conditions hereof, the Issuing Bank shall, on the requested date, issue
such Letter of Credit in accordance with the Issuing Bank's usual and
customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following
its receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing
Bank has made or will make a LC Disbursement thereunder; provided, that any
failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Lenders
with respect to such LC Disbursement. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the Issuing Bank for any LC
Disbursements paid by the Issuing Bank in respect of such drawing, without
presentment, demand or other formalities of any kind. Unless the Borrower
shall have notified the Issuing Bank and the Administrative Agent prior to
11:00 a.m. (New York time) on the Business Day immediately prior to the
date on which such drawing is honored that the Borrower intends to
reimburse the Issuing Bank for the amount of such drawing in funds other
than from the proceeds of Loans, the Borrower shall be deemed to have
timely given a Notice of Borrowing to the Administrative Agent requesting
the Lenders to make a Base Rate Borrowing on the date on which such drawing
is honored in an exact amount due to the Issuing Bank; provided, that for
purposes solely of such Borrowing, the conditions precedents set forth in
Section 3.2 hereof shall not be applicable. The Administrative Agent shall
notify the Lenders of such Borrowing in accordance with Section 2.3, and
each Lender shall make the proceeds of its Base Rate Loan included in such
Borrowing available to the Administrative Agent for the account of the
Issuing Bank in accordance with Section 2.4. The proceeds of such Borrowing
shall be applied directly by the Administrative Agent to reimburse the
Issuing Bank for such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as determined
in the sole discretion of the Administrative Agent), or is not, made in
accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata
Share of such LC Disbursement on and as of the date which such Base Rate
Borrowing should have occurred. Each Lender's obligation to fund its
participation shall be absolute and unconditional and shall not be affected
by any circumstance, including without limitation (i) any setoff,
counterclaim, recoupment, defense or other right that such Lender or any
other Person may have against the Issuing Bank or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default
or the termination of the Aggregate Commitments, (iii) any adverse change
in the condition (financial or otherwise) of KPP, the Borrower or any
Subsidiary, (iv) any breach of this Agreement by the Borrower or any other
Lender, (v) any amendment, renewal or extension of any Letter of Credit or
(vi) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. On the date that such participation is
required to be funded, each Lender shall promptly transfer, in immediately
available funds, the amount of its participation to the Administrative
Agent for the account of the Issuing Bank. Whenever, at any time after the
Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the
Administrative Agent or the Issuing Bank, as the case may be, will
distribute to such Lender its Pro Rata Share of such payment; provided,
that if such payment is required to be returned for any reason to the
Borrower or to a trustee, receiver, liquidator, custodian or similar
official in any bankruptcy proceeding, such Lender will return to the
Administrative Agent or the Issuing Bank any portion thereof previously
distributed by the Administrative Agent or the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to subsection (d) of this Section 2.19 on the
due date therefor, such Lender shall pay interest to the Issuing Bank
(through the Administrative Agent) on such amount from such due date to the
date such payment is made at a rate per annum equal to the Federal Funds
Rate; provided, that if such Lender shall fail to make such payment to the
Issuing Bank within three (3) Business Days of such due date, then,
retroactively to the due date, such Lender shall be obligated to pay
interest on such amount at the Default Rate.
(g) If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders demanding the deposit of cash collateral
pursuant to this subsection, the Borrower shall deposit in an account with
the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Issuing Bank and the Lenders, an amount in cash equal to
the LC Exposure as of such date plus any accrued and unpaid fees thereon;
provided, that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (g) or
(h) of Section 9.1. Such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Borrower agrees to execute any documents
and/or certificates that may be necessary to effectuate the intent of this
subsection. Other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole discretion
of the Administrative Agent and at the Borrower's risk and expense, such
deposits shall not bear interest. Interest and profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it had not been reimbursed and to the extent so
applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the Borrower
under this Agreement and the other Loan Documents. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of
the occurrence of an Event of Default, such amount (to the extent not so
applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived.
(h) Promptly following the end of each Fiscal Quarter, the Issuing
Bank shall deliver (through the Administrative Agent) to each Lender and
the Borrower a report describing the aggregate Letters of Credit
outstanding at the end of such Fiscal Quarter. Upon the request of any
Lender from time to time, the Issuing Bank shall deliver to such Lender any
other information reasonably requested by such Lender with respect to each
Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements hereunder
shall be absolute, unconditional and irrevocable and shall be performed
strictly in accordance with the terms of this Agreement under all
circumstances whatsoever and irrespective of any of the following
circumstances:
(i) Any lack of validity or enforceability of any Letter of
Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or other right
which the Borrower or any Subsidiary or Affiliate of the Borrower may
have at any time against a beneficiary or any transferee of any Letter
of Credit (or any Persons or entities for whom any such beneficiary or
transferee may be acting), any Lender (including the Issuing Bank) or
any other Person, whether in connection with this Agreement or the
Letter of Credit or any document related hereto or thereto or any
unrelated transaction;
(iii) Any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document to the Issuing Bank that
does not comply with the terms of such Letter of Credit;
(v) Any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide
a right of setoff against, the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any
Related Party of any of the foregoing shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective of
any of the circumstances referred to above), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided, that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any actual direct
damages (as opposed to special, indirect (including claims for lost profits or
other consequential damages), or punitive damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by the Issuing Bank's failure to
exercise due care when determining whether drafts or other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree, that in the absence of gross negligence or willful misconduct
on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised due care in
each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents
presented that appear on their face to be in substantial compliance with the
terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform Customs and
Practices for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended from time to time,
and, to the extent not inconsistent therewith, the governing law of this
Agreement set forth in Section 11.5.
Section 2.20. Mitigation of Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
2.17, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the sole judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
under Section 2.15 or Section 2.17, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all costs and expenses incurred by any Lender in connection
with such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority of the account of any Lender pursuant to Section
2.17, or if any Lender defaults in its obligation to fund Loans hereunder,
then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the
restrictions set forth in Section 11.4(b) all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender); provided, that (i) the
Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not be unreasonably withheld,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal amount of all Loans owed to it, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from
the assignee (in the case of such outstanding principal and accrued
interest) and from the Borrower (in the case of all other amounts) and
(iii) in the case of a claim for compensation under Section 2.15 or
payments required to be made pursuant to Section 2.17, such assignment will
result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply.
Section 2.21. Increase of Commitments; Additional Lenders.
(a) So long as no Event of Default has occurred and is continuing,
from time to time after the Closing Date, Borrower may, upon written notice
to the Administrative Agent, who shall promptly notify the Lenders, propose
to increase the Aggregate Commitments up to an amount not to exceed
$450,000,000 (the amount of any such increase, the "Additional Commitment
Amount"). Each Lender shall have the right for a period of 15 days
following receipt of such notice, to elect by written notice to the
Borrower and the Administrative Agent to increase its Commitment by a
principal amount equal to its Pro Rata Share of the Additional Commitment
Amount. In the event that the aggregate amount to which the Lenders are
willing to increase the Commitments is less than the Additional Commitment
Amount based on the written notices delivered by the Lenders to the
Administrative Agent, the Administrative Agent shall offer to the Lenders
who have agreed to increase their Commitments the opportunity to further
increase their Commitments up to an amount equal to the Additional
Commitment Amount. Each such Lender shall promptly respond in writing to
the Administrative Agent of whether it will agree to further increase its
Commitment and by what amount it will agree to further increase its
Commitment. Within five (5) Business Days after receipt of all responses
from such Lenders, the Administrative Agent shall inform the Borrower and
all Lenders in writing of the amount by which each Lender will increase its
Commitment. No Lender (or any successor thereto) shall have any obligation
to increase its Commitment or its other obligations under this Agreement
and the other Loan Documents, and any decision by a Lender to increase its
Commitment shall be made in its sole discretion independently from any
other Lender. Decisions to increase a Commitment must be affirmatively
communicated in writing and shall not be presumed based upon a failure to
respond to Borrower's request.
(b) If the existing Lenders do not elect to increase the Aggregate
Commitments by the Additional Commitment Amount pursuant to subsection (a)
of this Section, the Borrower shall have the right, within ninety days (90)
after receipt of such notice from the Administrative Agent, to obtain
additional Commitments from one or more other banks or financial
institutions (each, an "Additional Lender") to the extent necessary to
increase the Aggregate Commitments by the Additional Commitment Amount;
provided, however, that each Additional Lender must (i) be acceptable to
the Administrative Agent and (ii) become a party to this Agreement pursuant
to a joinder agreement in form and substance satisfactory to the
Administrative Agent. The sum of the increases in the Commitments of the
existing Lenders pursuant to subsection (a) plus the Commitments of the
Additional Lenders shall not in the aggregate exceed the Additional
Commitment Amount.
(c) Increases in the aggregate amount of the Commitments pursuant to
this Section 2.21 shall become effective upon the receipt by the
Administrative Agent of each agreement in form and substance satisfactory
to the Administrative Agent signed by the Borrower, by each Additional
Lender and by each other Lender whose Commitment is to be increased,
setting forth the new Commitments of such Lenders and setting forth the
agreement of each Additional Lender to become a party to this Agreement and
to be bound by all the terms and provisions hereof, together with such
evidence of appropriate corporate authorization on the part of the Borrower
with respect to the increase in the Commitments and such opinions of
counsel for the Borrower with respect to the increase in the Commitments as
the Administrative Agent may reasonably request. Upon the acceptance of any
such agreement by the Administrative Agent, the Aggregate Commitments shall
automatically be increased by the amount of the Commitments added through
such agreement and Annex I shall automatically be deemed amended to reflect
the Commitments of all Lenders after giving effect to the addition of such
Commitments.
(d) Upon any increase in the aggregate amount of the Commitments
pursuant to this Section 2.21 that is not pro rata among all Lenders, (x)
effective upon such increase, the Borrower shall be deemed to have prepaid
all outstanding Loans in their entirety and reborrowed Loans from the
Lenders in proportion to their respective Commitments after giving effect
to such increase and (y) effective upon such increase, the amount of the
participations held by each Lender in each Letter of Credit then
outstanding shall be deemed adjusted such that, after giving effect to such
adjustments, the Lenders shall hold participations in each such Letter of
Credit in the proportion its respective Commitment bears to the aggregate
Commitments after giving effect to such increase.
Article III CONDITIONS PRECEDENT TO LOANS
Section 3.1. Conditions To Effectiveness.
The obligations of the Lenders to make Loans and the obligation of the
Issuing Bank to issue any Letter of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 11.2).
(a) The Administrative Agent shall have received all fees and other
amounts due and payable under the Loan Documents and the Fee Letters on or
prior to the Closing Date, including reimbursement or payment of all
out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent) required to be
reimbursed or paid by the Borrower, under any Loan Document or the Fee
Letters.
(b) The Administrative Agent (or its counsel) shall have received the
following, each in the form specified or, if no form is specified, in form
and substance satisfactory to the Administrative Agent:
(i) a counterpart of this Agreement signed by or on behalf of
each party thereto or written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement;
(ii) if requested by any Lender, a Note payable to such Lender,
duly executed by the Borrower;
(iii) a counterpart of the Subsidiary Guarantee Agreement, duly
executed by each Guarantor;
(iv) a certificate of the Secretary or Assistant Secretary of the
General Partner and each Loan Party, attaching and certifying copies
of its Constituent Documents and of the resolutions of its board of
directors (or other comparable authorizations), authorizing the
execution, delivery and performance of the Loan Documents to which it
is a party and certifying the name, title and true signature of each
officer of the General Partner and such Loan Party executing the Loan
Documents to which it is a party;
(v) certificates of good standing or existence, as the case may
be, from the Secretary of State of the jurisdiction of organization of
the General Partner and each Loan Party and each other jurisdiction
where the General Partner or each such Loan Party is (x) required to
be qualified to do business as a foreign corporation, partnership or
limited liability company, as the case may be, or (y) owns, leases or
operates common carrier pipeline assets;
(vi) a favorable written opinion of Fulbright & ▇▇▇▇▇▇▇▇, L.L.P.,
counsel to the General Partner and the Loan Parties, addressed to the
Administrative Agent and each of the Lenders, substantially in the
form of Exhibit F;
(vii) a certificate, dated the Closing Date and signed by a
Responsible Officer of the Borrower, confirming compliance with the
conditions set forth in clauses (i) and (ii) of Section 3.2;
(viii) a certificate of the Secretary or Assistant Secretary of
the Borrower, attaching and certifying copies of all consents,
approvals, authorizations, registrations and filings and orders
required or advisable to be made or obtained under any Requirement of
Law, or by any contractual or legal obligation of the General Partner
or each Loan Party, in connection with the execution, delivery,
performance, validity and enforceability of the Loan Documents or any
of the transactions contemplated thereby, and such consents,
approvals, authorizations, registrations, filings and orders shall be
in full force and effect and all applicable waiting periods shall have
expired and no investigation or inquiry by any Governmental Authority
regarding any transaction contemplated hereby shall be ongoing;
(ix) Copies of the audited consolidated financial statements of
KPP and its Subsidiaries for the fiscal years ending December 31,
2000, 2001 and 2002;
(x) a duly executed Notice of Borrowing;
(xi) a duly executed funds disbursement agreement;
(xii) evidence that all outstanding "Obligations" (as defined in
the Existing Revolving Credit Agreement) will be repaid in full upon
funding of the initial Loan and that the Existing Revolving Credit
Agreement will be terminated on the Closing Date, in form and
substance satisfactory to the Administrative Agent
(xiii) evidence that all outstanding "Obligations" (as defined in
the Bridge Loan Agreement) will be repaid in full upon funding of the
initial Loan and that the Bridge Loan Agreement will be terminated on
the Closing Date, in form and substance satisfactory to the
Administrative Agent; and
(xiv) certificates of insurance issued on behalf of insurers of
the Borrower and all Guarantors, describing in reasonable detail the
types and amounts of insurance (property and liability) maintained by
the Borrower and all Guarantors.
Section 3.2. Each Credit Event.
The obligation of each Lender to make a Loan on the occasion of any
Borrowing and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit is subject to the satisfaction of the following conditions:
(i) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default or Event of Default shall have
occurred and be continuing; and
(ii) all representations and warranties of each Loan Party set forth
in the Loan Documents to which each such Loan Party is a party shall be
true and correct in all material respects on and as of the date of such
Borrowing or the date of issuance, amendment, extension or renewal of such
Letter of Credit, in each case before and after giving effect thereto;
(iii) since the date of the financial statements of KPP described in
Section 4.4, there shall have been no change which has had or could
reasonably be expected to have a Material Adverse Effect;
(iv) the Administrative Agent shall have received Notice of Borrowing,
duly completed, executed and delivered in accordance with the terms hereof;
and
(v) the Administrative Agent shall have received such other documents,
certificates, information or legal opinions as the Administrative Agent or
the Required Lenders may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent or the Required
Lenders.
Each Borrowing and each issuance, amendment, extension or renewal of any
Letter of Credit shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in clauses (i) and
(ii) of this Section 3.2.
Section 3.3. Delivery of Documents.
All Loan Documents, certificates, legal opinions and other documents
referred to in this Article III shall, unless otherwise specified, be delivered
to the Administrative Agent for the account of each Lender and, except for the
Notes, in sufficient counterparts or copies for each Lender and shall be in form
and substance satisfactory in all respects to the Administrative Agent.
Article IV REPRESENTATIONS AND WARRANTIES
Each of the Borrower and KPP represents and warrants to the Administrative
Agent and each Lender as follows:
Section 4.1. Existence; Power.
The General Partner and each Loan Party and each of its Subsidiaries (i) is
duly organized, validly existing and in good standing as a corporation,
partnership or limited liability company under the laws of the jurisdiction of
its organization, (ii) has all requisite power and authority to carry on its
business as now conducted, and (iii) is duly qualified to do business and is in
good standing in each jurisdiction where such qualification is required, except
where a failure to be so qualified could not reasonably be expected to result in
a Material Adverse Effect.
Section 4.2. Organizational Power; Authorization; Enforceability.
The execution, delivery and performance by the General Partner and each
Loan Party of the Loan Documents to which it is a party are within the General
Partner's or such Loan Party's organizational powers and have been duly
authorized by all necessary organizational, and if required, stockholder, member
or partner (as applicable), action. This Agreement has been duly executed and
delivered by the General Partner, KPP and the Borrower, and constitutes, and
each other Loan Document to which any Loan Party is a party, when executed and
delivered by such Loan Party, will constitute, the legal, valid and binding
obligation of KPP, the Borrower or such Loan Party (as the case may be),
enforceable against KPP, the Borrower or such Loan Party (as the case may be) in
accordance with its respective terms.
Section 4.3. Governmental Approvals; No Conflicts.
The execution, delivery and performance by each Loan Party of each Loan
Document to which it is a party (i) do not require any consent or approval of,
registration or filing with, or any action by, any Governmental Authority,
except those as have been obtained or made and are in full force and effect,
(ii) will not violate any Requirements of Law or the Constituent Documents of
such Loan Party or any of its Subsidiaries or any judgment, order or ruling of
any Governmental Authority, (iii) will not violate or result in a default under
any indenture, material agreement or other material instrument binding on such
Loan Party or any of its Subsidiaries or any of its assets or give rise to a
right thereunder to require any payment to be made by such Loan Party or any of
its Subsidiaries and (iv) will not result in the creation or imposition of any
Lien on any asset of such Loan Party or any of its Subsidiaries, except Liens
(if any) created under the Loan Documents.
Section 4.4. Financial Statements.
The Borrower has furnished to each Lender the audited consolidated balance
sheet of KPP and its Subsidiaries as of December 31, 2002 and the related
consolidated statements of income, shareholders' equity and cash flows for the
fiscal year then ended prepared by KPMG LLP, certified by a Responsible Officer
of KPP. Such financial statements fairly present the consolidated financial
condition of KPP and its Subsidiaries as of such date and the consolidated
results of operations for such period in conformity with GAAP consistently
applied. Since December 31, 2002, there have been no changes with respect to KPP
and its Subsidiaries or the Borrower which have had or could reasonably be
expected to have, singly or in the aggregate, a Material Adverse Effect.
Section 4.5. Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before any
arbitrators or Governmental Authorities is pending against or, to the
knowledge of the Borrower, threatened against or affecting any Loan Party
or any of its Subsidiaries (i) that could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect or (ii)
that in any manner draws into question the validity or enforceability of
this Agreement or any other Loan Document.
(b) Except for the matters set forth on Schedule 4.5, no Loan Party
nor any of its Subsidiaries (i) has failed to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other
approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability, where any such event or circumstance described in
clauses (i) through (iv) above (A) could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect or (B)
in any manner draws into question the validity or enforceability of this
Agreement or any other Loan Document.
Section 4.6. Compliance with Laws and Agreements.
Each Loan Party and each of its Subsidiaries is in compliance with (i) all
Requirements of Law and all judgments, decrees and orders of any Governmental
Authority, and (ii) all indentures, agreements or other instruments binding upon
it or its properties, except where non-compliance, either singly or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 4.7. Investment Company Act, Etc.
Neither KPP nor any of its Subsidiaries is (i) an "investment company", as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended, (ii) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended or (iii)
otherwise subject to any other regulatory scheme limiting its ability to incur
debt or requiring any approval or consent from or registration or filing with,
any Governmental Authority in connection herewith.
Section 4.8. Taxes.
KPP and its Subsidiaries and each other Person the taxes of which KPP or
any Subsidiary of KPP could become liable have timely filed or caused to be
filed all Federal income tax returns and all other material tax returns that are
required to be filed by them, and have paid all taxes shown to be due and
payable on such returns or on any assessments made against it or its property
and all other taxes, fees or other charges imposed on it or any of its property
by any Governmental Authority, except (i) to the extent the failure to do so
would not have a Material Adverse Effect or (ii) where the same are currently
being contested in good faith by appropriate proceedings and for which KPP or
such Subsidiary, as the case may be, has set aside on its books adequate
reserves in accordance with GAAP. The charges, accruals and reserves on the
books of KPP and its Subsidiaries in respect of such taxes are adequate, and no
tax liabilities that could be materially in excess of the amount so provided are
anticipated.
Section 4.9. Margin Regulations.
None of the proceeds of any of the Loans will be used, directly or
indirectly, for "purchasing" or "carrying" any "margin stock" with the
respective meanings of each of such terms under Regulation U as now and from
time to time hereafter in effect or for any purpose that violates the provisions
of the Regulation U. Neither KPP nor its Subsidiaries is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying "margin stock."
Section 4.10. ERISA.
No ERISA Event has occurred or is reasonably expected to occur that, when
taken together with all other such ERISA Events, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$5,000,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $5,000,000 the fair market value of the assets of
all such underfunded Plans.
Section 4.11. Ownership of Property.
(a) Each Loan Party and its Subsidiaries has good title to, or valid
leasehold interests in, all of its real and personal property material to
the operation of its business, including all such properties reflected in
the most recent audited consolidated balance sheet of KPP referred to in
Section 4.4 or purported to have been acquired by KPP or any Subsidiary
after said date (except as sold or otherwise disposed of in the ordinary
course of business), in each case free and clear of Liens, other than Liens
permitted under Section 7.2. All leases that individually or in the
aggregate are material to the business or operations of KPP and its
Subsidiaries are valid and subsisting and are in full force.
(b) Each Loan Party and its Subsidiaries owns, or is licensed, or
otherwise has the right, to use, all patents, trademarks, service marks,
tradenames, copyrights and other intellectual property material to its
business, and the use thereof by such Loan Party and its Subsidiaries does
not infringe on the rights of any other Person, except for any such
infringements that, individually or in the aggregate, would not have a
Material Adverse Effect.
Section 4.12. Disclosure.
The Borrower has disclosed to the Lenders all agreements, instruments and
corporate or other restrictions to which each Loan Party or any of its
Subsidiaries is subject, and all other matters known to any of them, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor any of the
reports (including without limitation all reports that the Borrower is required
to file with the Securities and Exchange Commission), financial statements,
certificates or other information furnished by or on behalf of any Loan Party to
the Administrative Agent or any Lender in connection with the negotiation or
syndication of this Agreement or any other Loan Document or delivered hereunder
or thereunder (as modified or supplemented by any other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, taken as a whole, in
light of the circumstances under which they were made, not misleading; provided,
that with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.
Section 4.13. Labor Relations.
There are no strikes, lockouts or other material labor disputes or
grievances against any Loan Party or any of its Subsidiaries, or, to the
Borrower's knowledge, threatened against or affecting any Loan Party or any of
its Subsidiaries, and no significant unfair labor practice, charges or
grievances are pending against the Borrower or any of its Subsidiaries, or to
the Borrower's knowledge, threatened against any of them before any Governmental
Authority. All payments due from any Loan Party or any of its Subsidiaries
pursuant to the provisions of any collective bargaining agreement have been paid
or accrued as a liability on the books of such Loan Party or such Subsidiary (as
applicable), except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect.
Section 4.14. Insolvency.
After giving effect to the execution and delivery of the Loan Documents,
the making of the Loans under this Agreement, neither KPP nor any of its
Subsidiaries will be "insolvent," within the meaning of such term as defined in
ss. 101 of Title 11 of the United States Code, as amended from time to time, or
be unable to pay its debts generally as such debts become due, or have an
unreasonably small capital to engage in any business or transaction, whether
current or contemplated
Section 4.15. Subsidiaries, Significant Affiliates and Guarantors.
Schedule 4.15 sets forth the name of, the ownership interest of KPP in, the
jurisdiction of incorporation or organization of, and the type of, each
Subsidiary of KPP and each Significant Affiliate and identifies each Subsidiary
of KPP and each Significant Affiliate that is a Guarantor, in each case, as of
the date hereof.
Article V AFFIRMATIVE COVENANTS
KPP and the Borrower (as applicable) covenant and agree that so long as any
Lender has a Commitment hereunder or the principal of and interest on any Loan
or any fee or any other amount payable hereunder remains unpaid:
Section 5.1. Financial Statements and Other Information.
The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 100 days after the
end of each fiscal year of KPP, a copy of the annual audited report for
such fiscal year for KPP and its Subsidiaries, containing a consolidated
balance sheet of KPP and its Subsidiaries as of the end of such fiscal year
and the related consolidated statements of income, stockholders' equity and
cash flows (together with all footnotes thereto) of KPP and its
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail and reported on by KPMG LLP or other independent public
accountants of nationally recognized standing (without a "going concern" or
like qualification, exception or explanation and without any qualification
or exception as to scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition
and the results of operations of KPP and its Subsidiaries for such fiscal
year on a consolidated basis in accordance with GAAP and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with GAAP;
(b) as soon as available and in any event within 55 days after the end
of each of the first three fiscal quarters of each fiscal year of KPP, an
unaudited consolidated balance sheet of KPP and its Subsidiaries as of the
end of such fiscal quarter and the related unaudited consolidated
statements of income and cash flows of KPP and its Subsidiaries for such
fiscal quarter and the then elapsed portion of such fiscal year, setting
forth in each case in comparative form the figures for the corresponding
quarter and the corresponding portion of KPP's previous fiscal year, all
certified by a Responsible Officer of KPP as presenting fairly in all
material respects the financial condition and results of operations of KPP
and its Subsidiaries on a consolidated basis in accordance with GAAP,
subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in subsections (a) and (b) above, a Compliance Certificate
signed by a Responsible Officer of the Borrower;
(d) concurrently with the delivery of the financial statements
referred to in subsection (a) above, a certificate of the accounting firm
that reported on such financial statements stating whether it obtained any
knowledge during the course of its examination of such financial statements
of any Default or Event of Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed with
the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all functions of said Commission, or with any national
securities exchange, or distributed by KPP or the Borrower to its security
holders generally;
(f) promptly after the same shall be filed with the Internal Revenue
Service, copies of IRS Form 8886 (or any successor form) related to the tax
structure and tax treatment of the transactions contemplated by this
Agreement; and
(g) promptly following any request therefor, such other information
regarding the results of operations, business affairs and financial
condition of KPP, the Borrower or of their respective Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
Section 5.2. Notices of Material Events.
The Borrower will furnish to the Administrative Agent and each Lender
prompt written notice of the following, in each case, accompanied by a written
statement of a Responsible Officer of the Borrower setting forth the details of
the event or development requiring such notice and any action taken or proposed
to be taken with respect thereto:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or, to the
knowledge of KPP or the Borrower, affecting any Loan Party or any
Subsidiary of any Loan Party that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which any
Loan Party or any Subsidiary of any Loan Party (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license
or other approval required under any Environmental Law, (ii) becomes
subject to any Environmental Liability, (iii) receives notice of any claim
with respect to any Environmental Liability, or (iv) becomes aware of any
basis for any Environmental Liability and in each of the preceding clauses,
which individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of KPP and its Subsidiaries in an aggregate amount
exceeding $5,000,000; and
(e) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Section 5.3. Existence; Conduct of Business.
KPP and the Borrower will, and will cause each of its Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and maintain in full
force and effect its legal existence and its respective rights, licenses,
permits, privileges, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business and will continue to engage in the same
business as presently conducted or such other businesses that are reasonably
related thereto; provided, that nothing in this Section shall prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 7.3.
Section 5.4. Compliance with Laws, Etc.
KPP and the Borrower will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations and requirements of any Governmental
Authority applicable to its properties, except where the failure to do so,
either individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
Section 5.5. Payment of Obligations.
KPP and the Borrower will, and will cause each of its Subsidiaries to, pay
and discharge at or before maturity, all of its obligations and liabilities
(including without limitation all tax liabilities and claims that could result
in a statutory Lien) before the same shall become delinquent or in default,
except where (i) the validity or amount thereof is being contested in good faith
by appropriate proceedings, (ii) KPP or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (iii)
the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
Section 5.6. Books and Records.
KPP and the Borrower will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and correct entries shall
be made of all dealings and transactions in relation to its business and
activities to the extent necessary to prepare the consolidated financial
statements of Borrower in conformity with GAAP.
Section 5.7. Visitation, Inspection, Etc.
KPP and the Borrower will, and will cause each of its Subsidiaries to,
permit any representative of the Administrative Agent or any Lender, to visit
and inspect its properties, to examine its books and records and to make copies
and take extracts therefrom, and to discuss its affairs, finances and accounts
with any of its officers and with its independent certified public accountants,
all at such reasonable times and as often as the Administrative Agent or any
Lender may reasonably request after reasonable prior notice to KPP; provided,
however, if an Event of Default has occurred and is continuing, no prior notice
shall be required.
Section 5.8. Maintenance of Properties; Insurance.
KPP and the Borrower will, and will cause each of its Subsidiaries to, (i)
keep and maintain all property material to the conduct of its business in good
working order and condition, except for ordinary wear and tear and except where
the failure to do so, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect and (ii) maintain
with financially sound and reputable insurance companies, insurance with respect
to its properties and business, and the properties and business of its
Subsidiaries, against loss or damage of the kinds customarily insured against by
companies in the same or similar businesses operating in the same or similar
locations.
Section 5.9. Use of Proceeds.
The Borrower will use the proceeds of all Loans to refinance existing
Indebtedness on the Closing Date and thereafter to fund acquisitions permitted
hereunder, to provide for working capital and general corporate purposes of the
Borrower and its Subsidiaries. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that would violate any rule or
regulation of the Board of Governors of the Federal Reserve System, including
Regulation T, U or X. All Letters of Credit will be used for general corporate
purposes.
Section 5.10. Additional Subsidiaries.
If any additional Significant Subsidiary (other than any Excluded
Subsidiary and any Foreign Subsidiary) is acquired or formed after the date
hereof, KPP will, within ten business days after such Significant Subsidiary is
acquired or formed, notify the Administrative Agent and the Lenders thereof and
will cause such Significant Subsidiary to become a Guarantor by executing
agreements in the form of Annex I to Exhibit C and will cause such Significant
Subsidiary to deliver simultaneously therewith such certificates, documents,
opinions of counsel and other information regarding such Guarantor and the
enforceability against such Guarantor of the Subsidiary Guarantee Agreement as
the Administrative Agent may reasonably request.
Article VI FINANCIAL COVENANTS
KPP and the Borrower (as applicable) covenant and agree that so long as any
Lender has a Commitment hereunder or the principal of or interest on or any Loan
remains unpaid or any fee or any other amount payable hereunder remains unpaid:
Section 6.1. Leverage Ratio.
KPP and its Subsidiaries will maintain at all times a Leverage Ratio of not
more than 4.25:1.00; provided, however, that if the Borrower consummates within
a six-month period one or more acquisitions permitted under Section 7.4 with an
aggregate purchase price in excess of $50,000,000 (collectively, the "Adjustment
Acquisition"), then KPP and its Subsidiaries may maintain at all time during the
period beginning on the date of the Adjustment Acquisition and ending on the
last day of the second fiscal quarter ending thereafter (the "Adjusted Ratio
Period") a Leverage Ratio in excess of 4.25:1.00 but not more than 4.50:1.00;
provided, further, that no acquisition shall be counted toward requirements of
more than one Adjusted Ratio Period.
Section 6.2. Consolidated EBITDA to Consolidated Interest Expense.
KPP and its Subsidiaries will maintain a ratio of Consolidated EBITDA to
Consolidated Interest Expense of not less than 3.00:1.00, measured, in each
case, for the four-fiscal quarter period ending on the last day of each fiscal
quarter.
Section 6.3. Consolidated Net Worth.
KPP will not permit its Consolidated Net Worth at any time to be less than
an amount equal to (i) 80% of the Consolidated Net Worth as at December 31,
2002, plus (ii) 80% of the Net Cash Proceeds of any Equity Event by KPP or any
of its Subsidiaries.
Article VII NEGATIVE COVENANTS
Each of KPP and the Borrower covenants and agrees that so long as any
Lender has a Commitment hereunder or the principal of or interest on any Loan or
any Letter of Credit remains unpaid, outstanding or unreimbursed, or any fee or
any other amount payable hereunder remains unpaid:
Section 7.1. Indebtedness.
KPP and the Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents and, until the
application of the proceeds of the initial Loans, the Indebtedness
outstanding under the Bridge Loan Agreement and the Existing Revolving
Credit Agreement; and
(b) Indebtedness of Subsidiaries of KPP (other than the Borrower)
existing on the date hereof and set forth on Schedule 7.1 and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof (immediately prior to giving effect to
such extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof;
(c) Indebtedness of Subsidiaries of KPP (other than the Borrower)
incurred to finance the acquisition, construction or improvement of any
fixed or capital assets, including Capital Lease Obligations, and any
Indebtedness assumed in connection with the acquisition of any such assets
or secured by a Lien on any such assets prior to the acquisition thereof;
provided, that such Indebtedness is incurred prior to or within 90 days
after such acquisition or the completion of such construction or
improvements or extensions, renewals, and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
(immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted average life thereof;
provided further, that the aggregate principal amount of such Indebtedness
does not exceed $25,000,000 at any time outstanding;
(d) Indebtedness of Subsidiaries of KPP (other than the Borrower)
owing to the Borrower or any other Subsidiary; provided, that any such
Indebtedness that is owed to a Subsidiary that is not a Guarantor shall be
subject to Section 7.4;
(e) Guarantees by Subsidiaries of KPP (other than the Borrower) of
Indebtedness of the Borrower or any other Subsidiary; provided, that
Guarantees by any Loan Party of Indebtedness of any Subsidiary that is not
a Guarantor shall be subject to Section 7.4;
(f) Indebtedness of any Person which becomes a Subsidiary after the
date of this Agreement; provided, that such Indebtedness exists at the time
that such Person becomes a Subsidiary and is not created in contemplation
of or in connection with such Person becoming a Subsidiary;
(g) Indebtedness in respect of Hedging Obligations permitted by
Section 7.10;
(h) other unsecured Indebtedness of Subsidiaries of KPP (other than
the Borrower) in an aggregate principal amount not to exceed $25,000,000 at
any time outstanding; and
(i) other unsecured Indebtedness of the Borrower or KPP, the
incurrence of which does not otherwise result in the occurrence of a
Default or an Event of Default.
Section 7.2. Negative Pledge.
KPP and the Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or suffer to exist any Lien on any of its assets or
property now owned or hereafter acquired, except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of KPP or any Subsidiary of KPP
existing on the date hereof set forth on Schedule 7.2; provided, that such
Lien shall not apply to any other property or asset of KPP or any such
Subsidiary;
(c) purchase money Liens upon or in any fixed or capital assets to
secure the purchase price or the cost of construction or improvement of
such fixed or capital assets or to secure Indebtedness incurred solely for
the purpose of financing the acquisition, construction or improvement of
such fixed or capital assets (including Liens securing Capital Lease
Obligations); provided, that (i) such Lien secures Indebtedness permitted
by Section 7.1(c) or (i), (ii) such Lien attaches to such asset
concurrently or within 90 days after the acquisition, improvement or
completion of the construction thereof; (iii) such Lien does not extend to
any other asset; and (iv) the Indebtedness secured thereby does not exceed
the cost of acquiring, constructing or improving such fixed or capital
assets;
(d) any Lien (i) existing on any asset of any Person at the time such
Person becomes a Subsidiary of KPP, (ii) existing on any asset of any
Person at the time such Person is merged with or into KPP or any Subsidiary
of KPP or (iii) existing on any asset prior to the acquisition thereof by
KPP or any Subsidiary of KPP; provided, that any such Lien was not created
in the contemplation of any of the foregoing and any such Lien secures only
those obligations which it secures on the date that such Person becomes a
Subsidiary or the date of such merger or the date of such acquisition; and
(e) extensions, renewals, or replacements of any Lien referred to in
subsections (a) through (d) of this Section; provided, that the principal
amount of the Indebtedness secured thereby is not increased and that any
such extension, renewal or replacement is limited to the assets originally
encumbered thereby.
Section 7.3. Fundamental Changes.
(a) KPP and the Borrower will not, and will not permit any Subsidiary
to, merge into or consolidate into any other Person, or permit any other
Person to merge into or consolidate with it, or sell, lease, transfer or
otherwise dispose of (in a single transaction or a series of transactions)
all or substantially all of its assets (in each case, whether now owned or
hereafter acquired) or all or substantially all of the stock of any of its
Subsidiaries (in each case, whether now owned or hereafter acquired) or
liquidate or dissolve; provided, that if at the time thereof and
immediately after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing (i) any Subsidiary of the Borrower
may merge with a Person if such Subsidiary is the surviving Person, (ii)
any Subsidiary may merge into another Subsidiary; provided, that if any
party to such merger is a Guarantor, the Guarantor shall be the surviving
Person, (iii) any Subsidiary of the Borrower may sell, transfer, lease or
otherwise dispose of all or substantially all of its assets to the Borrower
or to a Guarantor and (iv) any Subsidiary (other than a Guarantor) may
liquidate or dissolve if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is
not materially disadvantageous to the Lenders.
(b) KPP and the Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of the type
conducted by KPP and its Subsidiaries on the date hereof and businesses
reasonably related thereto.
Section 7.4. Investments, Loans, Etc.
KPP and the Borrower will not, and will not permit any Subsidiary to,
purchase, hold or acquire (including pursuant to any merger with any Person that
was not a wholly-owned Subsidiary prior to such merger), any common stock,
evidence of indebtedness or other securities (including any option, warrant, or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person (all of the foregoing being collectively called "Investments"),
except:
(a) Investments (other than Permitted Investments) existing on the
date hereof (including Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guarantees constituting Indebtedness permitted by Section 7.1;
provided, that the aggregate principal amount of Indebtedness of
Subsidiaries that are not Guarantors that are Guaranteed by any Loan Party
shall be subject to the limitation set forth in subsection (d) hereof;
(d) Investments made by KPP in or to any Subsidiary and by any
Subsidiary to the Borrower or in or to another Subsidiary; provided, that
the aggregate amount of Investments by Loan Parties in or to, and
Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a
Guarantor (including all such Investments and Guarantees existing on the
Closing Date) shall not exceed $100,000,000 at any time outstanding;
(e) other Investments made by KPP or any Subsidiary of KPP (in each
case, whether directly or indirectly, through one or more Subsidiaries of
KPP or one or more Excluded Affiliates), provided, that for any such
Investment of at least $50,000,000 individually, and for each such
Investment of at least $10,000,000 individually if the aggregate of all
such Investments during any fiscal year of KPP shall have exceeded
$75,000,000, KPP shall first have provided to the Administrative Agent
financial statements of KPP and its consolidated Subsidiaries
demonstrating, to the reasonable satisfaction of the Administrative Agent,
that after giving pro forma effect to such Investment, KPP shall continue
to be in compliance with Article VI hereof;
(f) loans or advances to employees, officers or directors of KPP or
any Subsidiary of KPP in the ordinary course of business for travel,
relocation and related expenses; provided, however, that the aggregate
amount of all such loans and advances does not exceed $1,000,000 at any
time; and
(g) pursuant to Hedging Agreements permitted by Section 7.10.
Section 7.5. Restricted Payments.
KPP and the Borrower will not, and will not permit any Subsidiary to, make
or agree to make, directly or indirectly, any Distribution, or make any payment
on account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, retirement, defeasance or other acquisition of, any
Equity Interests or Indebtedness subordinated to the Obligations of the Borrower
or any options, warrants, or other rights to purchase Equity Interests or such
Indebtedness, whether now or hereafter outstanding (each, a "Restricted
Payment"), except for (i) Distributions payable by KPP solely in its Equity
Interests, (ii) Restricted Payments made by any Subsidiary of KPP to KPP or to
another Subsidiary of KPP and (iii) cash Distributions paid on, and cash
redemptions of, the Equity Interests of KPP or the Borrower; provided, that no
Default or Event of Default has occurred and is continuing, or would result
after giving pro forma effect to such Distribution or redemption, at the time
such Distribution is paid or redemption is made.
Section 7.6. Sale of Assets.
KPP and the Borrower will not, and will not permit any Subsidiary (other
than any Excluded Subsidiary) to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, whether now owned
or hereafter acquired, except:
(a) dispositions of inventory in the ordinary course of business;
(b) dispositions of other assets in the ordinary course of business
having a Fair Market Value of not more than $25,000,000 in the aggregate
during any fiscal year of KPP and not more than $50,000,000 in the
aggregate from the date hereof until the date three years following the
date of this Agreement; and
(c) dispositions of assets the proceeds of which are reinvested in
other assets used by or useful to KPP or such Significant Affiliate in
conducting its customary business if (A) a binding purchase, subscription
or similar agreement relating to such reinvestment is entered into within
60 days after the receipt of all or substantially all of the cash proceeds
from the disposition of such assets,(B) the Net Cash Proceeds from such
disposition are so reinvested within 120 days after the receipt of such
cash proceeds and (C) the Required Lenders approve the reinvestment of
proceeds from the sale of assets (other than inventory) in excess of
$50,000,000.
Section 7.7. Transactions with Affiliates.
KPP and the Borrower will not, and will not permit any Subsidiary to, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (i) in the ordinary course of
business at prices and on terms and conditions not less favorable to KPP or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties, (ii) transactions between or among KPP and its wholly-owned
Subsidiaries that are Loan Parties, but not involving any other Affiliates and
(iii) any Restricted Payment permitted by Section 7.5.
Section 7.8. Restrictive Agreements.
KPP and the Borrower will not, and will not permit any Subsidiary (other
than any Excluded Subsidiary) to, directly or indirectly, enter into, incur or
permit to exist any agreement (i) that prohibits, restricts or imposes any
condition upon the ability of any Subsidiary of KPP to make Distributions with
respect to its Equity Interests, to make or repay loans or advances to Borrower
or any Guarantor, to guarantee Indebtedness of Borrower or any Guarantor or to
transfer any of its property or assets to Borrower or any Guarantor, or (ii)
contains any prohibitions or restrictions on KPP or such Subsidiary that are
more restrictive than the covenants contained in this Agreement or the Senior
Notes Indenture; provided, that (A) the foregoing shall not apply to
restrictions or conditions imposed by law or by this Agreement, any other Loan
Document and the Senior Notes Indenture and (B) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of any Subsidiary of KPP pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale is permitted
hereunder.
Section 7.9. Sale and Leaseback Transactions.
KPP and the Borrower will not, and will not permit any Subsidiary (other
than any Excluded Subsidiary) to, enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred.
Section 7.10. Hedging Agreements.
KPP and the Borrower will not, and will not permit any Subsidiary to, enter
into any Hedging Agreement, other than Hedging Agreements entered into in the
ordinary course of business to hedge or mitigate risks to which KPP or any such
Subsidiary is exposed in the conduct of its business or the management of its
liabilities. Solely for the avoidance of doubt, KPP acknowledges that a Hedging
Agreement entered into for speculative purposes or of a speculative nature
(which shall be deemed to include any Hedging Agreement under which KPP or any
Subsidiary of KPP is or may become obliged to make any payment (A) in connection
with the purchase by any third party of any common stock or any Indebtedness or
(B) as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Agreement entered into in the ordinary course of
business to hedge or mitigate risks.
Section 7.11. Amendment to Material Documents.
KPP and the Borrower will not, and will not permit any Subsidiary to,
amend, modify or waive any of its rights in a manner materially adverse to the
Lenders under its Constituent Documents.
Section 7.12. Accounting Changes.
KPP and the Borrower will not, and will not permit any Subsidiary to, make
any significant change in accounting treatment or reporting practices, except as
required by GAAP, or change the fiscal year of KPP or of any such Subsidiary,
except to change the fiscal year of any such Subsidiary to conform its fiscal
year to that of KPP.
Article VIII KPP GUARANTEE
The Borrower is a direct and wholly-owned Subsidiary of KPP, and KPP will
derive substantial benefit from the making of the Loans by the Lenders. As
consideration therefor and in order to induce the Lenders to make Loans, KPP
agrees as follows:
Section 8.1. Guarantee.
KPP unconditionally guarantees, jointly with the other Guarantors and
severally, as a primary obligor and not merely as a surety, (i) the due and
punctual payment of (A) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (B) each payment required to be made by the Borrower hereunder in
respect of any Letter of Credit, when and as due, including payments in respect
of reimbursement or disbursements, interest thereon and obligations to provide
cash collateral, and (C) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the other Loan Parties to
the Administrative Agent and the Lenders under this Agreement the other Loan
Documents, (ii) the due and punctual performance of all covenants, agreements,
obligations and liabilities of the other Loan Parties under or pursuant to this
Agreement and the other Loan Documents; and (iii) the due and punctual payment
and performance of all obligations of the Borrower, monetary or otherwise, under
each Hedging Agreement entered into with a counterparty that was a Lender or an
Affiliate of a Lender at the time such Hedging Agreement was entered into
related to the Indebtedness incurred hereunder (all the monetary and other
obligations referred to in the preceding clauses (i) through (iii) being
collectively called the "Guaranteed Obligations"). KPP further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in part, without
notice to or further assent from it, and that it will remain bound upon its
guarantee notwithstanding any extension or renewal of any Guaranteed Obligation.
Section 8.2. Guaranteed Obligations Not Waived.
To the fullest extent permitted by applicable law, KPP waives presentment
to, demand of payment from and protest to the other Loan Parties of any of the
Guaranteed Obligations, and also waives notice of acceptance of its guarantee
and notice of protest for nonpayment. To the fullest extent permitted by
applicable law, the obligations of KPP hereunder shall not be affected by (i)
the failure of the Administrative Agent or any Lender to assert any claim or
demand or to enforce or exercise any right or remedy against the Borrower or any
other Guarantor under the provisions of this Agreement, any other Loan Document
or otherwise, (ii) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, this Agreement, any other Loan
Document or any other agreement, including with respect to any other Guarantor
under the Subsidiary Guarantee Agreement, or (iii) the failure to perfect any
security interest in, or the release of, any of the security held by or on
behalf of the Administrative Agent or any Lender.
Section 8.3. Guarantee of Payment.
KPP further agrees that its guarantee constitutes a guarantee of payment
when due and not of collection, and waives any right to require that any resort
be had by the Administrative Agent or any Lender to any of the security held for
payment of the Guaranteed Obligations or to any balance of any deposit account
or credit on the books of the Administrative Agent or any Lender in favor of the
Borrower or any other Person.
Section 8.4. No Discharge or Diminishment of Guarantee.
The obligations of KPP hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Guaranteed Obligations), including
any claim of waiver, release, surrender, alteration or compromise of any of the
Guaranteed Obligations, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of KPP
hereunder shall not be discharged or impaired or otherwise affected by the
failure of the Administrative Agent or any Lender to assert any claim or demand
or to enforce any remedy under this Agreement, any other Loan Document or any
other agreement, by any waiver or modification of any provision of any thereof,
by any default, failure or delay, willful or otherwise, in the performance of
the Guaranteed Obligations, or by any other act or omission that may or might in
any manner or to any extent vary the risk of KPP or that would otherwise operate
as a discharge of a guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Guaranteed Obligations).
Section 8.5. Defenses of Borrower Waived.
To the fullest extent permitted by applicable law, KPP waives any defense
based on or arising out of any defense of any Loan Party or the unenforceability
of the Guaranteed Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of any Loan Party, other than the
final and indefeasible payment in full in cash of the Guaranteed Obligations.
The Administrative Agent and the Lenders may, at their election, foreclose on
any security held by one or more of them by one or more judicial or nonjudicial
sales, accept an assignment of any such security in lieu of foreclosure,
compromise or adjust any part of the Guaranteed Obligations, make any other
accommodation with the other Loan Parties or any other guarantor, without
affecting or impairing in any way the liability of KPP hereunder except to the
extent the Guaranteed Obligations have been fully, finally and indefeasibly paid
in cash. Pursuant to applicable law, KPP waives any defense arising out of any
such election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other right
or remedy of KPP against the Borrower or any other Guarantor or guarantor, as
the case may be, or any security.
Section 8.6. Agreement to Pay; Subordination.
In furtherance of the foregoing and not in limitation of any other right
that the Administrative Agent or any Lender has at law or in equity against KPP
by virtue hereof, upon the failure of the Borrower or any other Loan Party to
pay any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, KPP hereby
promises to and will forthwith pay, or cause to be paid, to the Administrative
Agent for the benefit of the Lenders in cash the amount of such unpaid
Guaranteed Obligations. Upon payment by KPP of any sums to the Administrative
Agent, all rights of KPP against any Loan Party arising as a result thereof by
way of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Guaranteed Obligations. In
addition, any indebtedness of any other Loan Party now or hereafter held by KPP
is hereby subordinated in right of payment to the prior payment in full in cash
of the Guaranteed Obligations. If any amount shall erroneously be paid to KPP on
account of (i) such subrogation, contribution, reimbursement, indemnity or
similar right or (ii) any such indebtedness of such Loan Party, such amount
shall be held in trust for the benefit of the Administrative Agent and the
Lenders and shall forthwith be paid to the Administrative Agent to be credited
against the payment of the Guaranteed Obligations, whether matured or unmatured,
in accordance with the terms of the Loan Documents.
Section 8.7. Information.
KPP assumes all responsibility for being and keeping itself informed of the
other Loan Parties' financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations
and the nature, scope and extent of the risks that KPP assumes and incurs
hereunder, and agrees that none of the Administrative Agent or the Lenders will
have any duty to advise KPP of information known to it or any of them regarding
such circumstances or risks.
Section 8.8. Termination.
The guarantees made hereunder (i) shall terminate when all Obligations have
been paid in full in cash and the Lenders have no further commitment to lend
under this Agreement, the LC Exposure has been reduced to zero and the Issuing
Bank has no further obligation to issue Letters of Credit under this Agreement
and (ii) shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of any Guaranteed Obligation is
rescinded or must otherwise be restored by any Lender or any Guarantor upon the
bankruptcy or reorganization of the Borrower, any Guarantor or otherwise. In
connection with the foregoing, the Administrative Agent shall execute and
deliver to KPP or KPP's designee, at KPP's expense, any documents or instruments
that KPP shall reasonably request from time to time to evidence such termination
and release.
Article IX EVENTS OF DEFAULT
Section 9.1. Events of Default.
If any of the following events (each an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or of any
reimbursement obligations in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount payable under subsection (a) of
Section 9.1) payable under this Agreement or any other Loan Document, when
and as the same shall become due and payable, and such failure shall
continue unremedied for a period of 3 Business Days; or
(c) any representation or warranty made or deemed made by or on behalf
of any Loan Party in or in connection with this Agreement or any other Loan
Document (including the Schedules attached thereto) and any amendments or
modifications hereof or waivers hereunder, or in any certificate, report,
financial statement or other document submitted to the Administrative Agent
or the Lenders by any Loan Party or any representative of any Loan Party
pursuant to or in connection with this Agreement or any other Loan Document
shall prove to be incorrect in any material respect when made or deemed
made or submitted; or
(d) the Borrower or KPP, as applicable, shall fail to observe or
perform any covenant or agreement contained in Section 5.2(a) or 5.3 (with
respect to KPP's or the Borrower's existence) or Article VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in any Loan Document (other than those referred to in
subsections (a), (b) and (d) above), and such failure shall remain
unremedied for 30 days after the earlier of (i) any officer of the Borrower
becomes aware of such failure, or (ii) notice thereof shall have been given
to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower, KPP or any Significant Affiliate (whether as primary
obligor or as guarantor or other surety) shall fail to pay any principal of
or premium or interest on any Material Indebtedness that is outstanding,
when and as the same shall become due and payable (whether at scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified
in the agreement or instrument evidencing such Indebtedness; or any other
event shall occur or condition shall exist under any agreement or
instrument relating to such Indebtedness and shall continue after the
applicable grace period, if any, specified in such agreement or instrument,
if the effect of such event or condition is to accelerate, or permit the
acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable; or required to be
prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or any offer to prepay,
redeem, purchase or defease such Indebtedness shall be required to be made,
in each case prior to the stated maturity thereof; or
(g) the Borrower, KPP or any Significant Affiliate shall (i) commence
a voluntary case or other proceeding or file any petition seeking
liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of its
property, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in
subsection (i) of this Section, (iii) apply for or consent to the
appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower, KPP or any such Significant Affiliate or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors, or (vi) take any action
for the purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower, KPP or any Significant Affiliate or its
debts, or any substantial part of its assets, under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in
effect or (ii) the appointment of a custodian, trustee, receiver,
liquidator or other similar official for the Borrower, KPP or any
Significant Affiliate or for a substantial part of its assets, and in any
such case, such proceeding or petition shall remain undismissed for a
period of 60 days or an order or decree approving or ordering any of the
foregoing shall be entered; or
(i) the Borrower, KPP or any Significant Subsidiary shall become
unable to pay, shall admit in writing its inability to pay, or shall fail
to pay, its debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in liability to the
Borrower and the Subsidiaries in an aggregate amount exceeding $5,000,000;
or
(k) any judgment or order for the payment of money in excess of
$5,000,000 in the aggregate shall be rendered against the Borrower, KPP or
any Significant Affiliate, and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or (ii)
there shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be rendered against the
Borrower, KPP or any Significant Affiliate that could reasonably be
expected to have a Material Adverse Effect, and there shall be a period of
30 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(m) a Change in Control shall occur or exist; or
(n) any "Event of Default" under any other Loan Document shall occur;
or
(o) any provision of the Subsidiary Guarantee Agreement shall for any
reason cease to be valid and binding on, or enforceable against, any
Guarantor, or any Guarantor shall so state in writing, or any provision of
Article VIII shall for any reason cease to be valid and binding on, or
enforceable against KPP, or KPP shall so state in writing; or any Guarantor
shall seek to terminate its obligations under the Loan Documents;
then, and in every such event (other than an event with respect to KPP or the
Borrower described in subsection (g) or (h) of this Section) and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and upon the written request of the Required Lenders shall, by notice to the
Borrower, take any or all of the following actions, at the same or different
times: (i) terminate the Commitments, whereupon the Commitment of each Lender
shall terminate immediately; (ii) declare the principal of and any accrued
interest on the Loans, and all other Obligations owing hereunder, to be,
whereupon the same shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; (iii) exercise all remedies contained in any
other Loan Document, and (iv) exercise any other remedies available at law or in
equity; and that, if an Event of Default specified in either subsection (g) or
(h) shall occur, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon, and all
fees, and all other Obligations shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
Article X THE ADMINISTRATIVE AGENT
Section 10.1. Appointment of Administrative Agent.
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent and authorizes it to take such actions on its behalf
and to exercise such powers as are delegated to the Administrative Agent
under this Agreement and the other Loan Documents, together with all such
actions and powers that are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder or under the
other Loan Documents by or through any one or more sub-agents or
attorneys-in-fact appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent or attorney-in-fact may perform any and all of
its duties and exercise its rights and powers through their respective
Related Parties. The exculpatory provisions set forth in this Article shall
apply to any such sub-agent or attorney-in-fact and the Related Parties of
the Administrative Agent, any such sub-agent and any such attorney-in-fact
and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative
Agent may agree at the request of the Required Lenders to act for the
Issuing Bank with respect thereto; provided, that the Issuing Bank shall
have all the benefits and immunities (i) provided to the Administrative
Agent in this Article X with respect to any acts taken or omissions
suffered by the Issuing Bank in connection with Letters of Credit issued by
it or proposed to be issued by it and the application and agreements for
letters of credit pertaining to the Letters of Credit as fully as if the
term "Administrative Agent" as used in this Article X included the Issuing
Bank with respect to such acts or omissions and (ii) as additionally
provided in this Agreement with respect to the Issuing Bank
(c) Each Lender hereby designates Bank One, NA, as Syndication Agent,
and BNP Paribas, Fleet National Bank and KeyBank National Association, each
as Co-Documentation Agent. Each Lender and the Loan Parties agree that the
Syndication Agent and the Co-Documentation Agents shall have no duties or
obligations under any Loan Documents to the Administrative Agent, any
Lender or any Loan Party.
Section 10.2. Nature of Duties of Administrative Agent.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth in this Agreement and the other Loan Documents.
Without limiting the generality of the foregoing, (i) the Administrative Agent
shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default or an Event of Default has occurred and is continuing, (ii)
the Administrative Agent shall not have any duty to take any discretionary
action or exercise any discretionary powers, except those discretionary rights
and powers expressly contemplated by the Loan Documents that the Administrative
Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 11.2), and (iii) except as expressly set
forth in the Loan Documents, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it, its sub-agents or attorneys-in-fact with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 11.2) or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall not be responsible for the negligence or misconduct of any
sub-agents or attorneys-in-fact selected by it. The Administrative Agent shall
not be deemed to have knowledge of any Default or Event of Default unless and
until written notice thereof (which notice shall include an express reference to
such event being a "Default" or "Event of Default" hereunder) is given to the
Administrative Agent by the Borrower or any Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (A)
any statement, warranty or representation made in or in connection with any Loan
Document, (B) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (C)
the performance or observance of any of the covenants, agreements, or other
terms and conditions set forth in any Loan Document, (D) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any other
agreement, instrument or document, or (E) the satisfaction of any condition set
forth in Article III or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent may consult with legal counsel (including counsel for
the Borrower) concerning all matters pertaining to such duties.
Section 10.3. Lack of Reliance on the Administrative Agent.
Each of the Lenders and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders and the Issuing Bank also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it has deemed appropriate, continue to make
its own decisions in taking or not taking of any action under or based on this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
Section 10.4. Certain Rights of the Administrative Agent.
If the Administrative Agent shall request instructions from the Required
Lenders with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have
received instructions from such Lenders; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 10.5. Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed, sent or made by the proper Person. The Administrative
Agent may also rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person and shall not incur any liability
for relying thereon. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or not taken
by it in accordance with the advice of such counsel, accountants or experts.
Section 10.6. The Administrative Agent in its Individual Capacity.
The bank serving as the Administrative Agent shall have the same rights and
powers under this Agreement and any other Loan Document in its capacity as a
Lender as any other Lender and may exercise or refrain from exercising the same
as though it were not the Administrative Agent; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity. The bank acting as the Administrative Agent and its
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.
Section 10.7. Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrower and may be removed at any time with
or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor
Administrative Agent, subject to the approval by the Borrower provided that
no Default or Event of Default shall have occurred and be continuing at
such time. If no successor Administrative Agent shall have been so
appointed, and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of resignation or the
Required Lenders' removal of the Agent, then the retiring Administrative
Agent may, on behalf of the Lenders and the Issuing Bank, appoint a
successor Administrative Agent, which shall be a commercial bank organized
under the laws of the United States of America or any state thereof or a
bank which maintains an office in the United States, having a combined
capital and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent
hereunder by a successor, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. If within 45
days after written notice is given of the retiring Administrative Agent's
resignation or removal under this Section 10.7 no successor Administrative
Agent shall have been appointed and shall have accepted such appointment,
then on such 45th day (i) the retiring Administrative Agent's resignation
or removal shall become effective, (ii) the retiring Administrative Agent
shall thereupon be discharged from its duties and obligations under the
Loan Documents and (iii) the Required Lenders shall thereafter perform all
duties of the retiring Administrative Agent under the Loan Documents until
such time as the Required Lenders appoint a successor Administrative Agent
as provided above. After any retiring Administrative Agent's resignation
hereunder, the provisions of this Article X shall continue in effect for
the benefit of such retiring Administrative Agent and its representatives
and agents in respect of any actions taken or not taken by any of them
while it was serving as the Administrative Agent.
Section 10.8. Authorization to Execute other Loan Documents.
Each Lender hereby authorizes the Administrative Agent to execute on behalf
of all Lenders all Loan Documents other than this Agreement.
Article XI MISCELLANEOUS
Section 11.1. Notices.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to
any party herein to be effective shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered
mail or sent by telecopy, as follows:
To the Borrower: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To KPP: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative
Agent: SunTrust Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number:
With a copy to: SunTrust Bank
Agency Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. E./ 25th Floor
Atlanta, Georgia 30308
Attention: Ms. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
King & Spalding
191 Peachtree Street, N.E.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Bank: SunTrust Bank ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇. E./Mail Code 3706
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇ Telecopy Number: (404)
588-8129
To any other Lender: the address set forth in the Administrative
Questionnaire
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
such notices and other communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for overnight (next-day)
delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date
deposited into the mails or if delivered, upon delivery; provided, that
notices delivered to the Administrative Agent or the Issuing Bank shall not
be effective until actually received by such Person at its address
specified in this Section 11.1.
(b) Any agreement of the Administrative Agent and the Lenders herein
to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent
and the Lenders shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Borrower to give such notice
and the Administrative Agent and Lenders shall not have any liability to
the Borrower or other Person on account of any action taken or not taken by
the Administrative Agent or the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of the Borrower to repay the Loans and all
other Obligations hereunder shall not be affected in any way or to any
extent by any failure of the Administrative Agent and the Lenders to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent and the Lenders of a confirmation which
is at variance with the terms understood by the Administrative Agent and
the Lenders to be contained in any such telephonic or facsimile notice.
Section 11.2. Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing Bank
or any Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between the Borrower and the
Administrative Agent or any Lender, shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power or any
abandonment or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power hereunder or thereunder. The rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights
or remedies provided by law. No waiver of any provision of this Agreement
or any other Loan Document or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be
permitted by subsection (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or the issuance of a Letter of Credit shall not be
construed as a waiver of any Default or Event of Default, regardless of
whether the Administrative Agent, the Issuing Bank or any Lender may have
had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement or the
other Loan Documents, nor consent to any departure by any Loan Party
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower and the Required Lenders or the Borrower
and the Administrative Agent with the consent of the Required Lenders and
then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, that no
amendment or waiver shall: (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or LC Disbursement or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent
of each Lender affected thereby, (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or LC Disbursement or
interest thereon or any fees hereunder or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date for the termination
or reduction of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.18(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this
Section or the definition of "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders which are required to
waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the consent of each Lender; (vi)
release any guarantor or limit the liability of any such guarantor under
any guaranty agreement, without the written consent of each Lender; (vii)
release all or substantially all collateral (if any) securing any of the
Obligations, without the written consent of each Lender; provided further,
that no such agreement shall amend, modify or otherwise affect the rights,
duties or obligations of the Administrative Agent or the Issuing Bank
without the prior written consent of the Administrative Agent.
Notwithstanding the foregoing, any provision of this Agreement may be
amended by an agreement in writing entered into by the Borrower, the
Required Lenders and the Administrative Agent if (i) by the terms of such
agreement the Commitment of each Lender not consenting to the amendment
provided for therein shall terminate (but such Lender shall continue to be
entitled to the benefits of Sections 2.15, 2.16, and 2.17 and 11.3) upon
the effectiveness of such amendment and (ii) at the time such amendment
becomes effective, each Lender not consenting thereto receives payment in
full principal of and interest accrued on each Loan made by it and all
other amounts owing to it or accrued for its account under this Agreement
and is released from its obligations hereunder.
Section 11.3. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and
expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the
Administrative Agent and its Affiliates, in connection with the syndication
of the credit facilities provided for herein, the preparation and
administration of the Loan Documents and any amendments, modifications or
waivers thereof (whether or not the transactions contemplated in this
Agreement or any other Loan Document shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter
of Credit or any demand for payment thereunder and (iii) all out-of-pocket
costs and expenses (including, without limitation, the reasonable fees,
charges and disbursements of outside counsel and the allocated cost of
inside counsel) incurred by the Administrative Agent, the Issuing Bank or
any Lender in connection with the enforcement or protection of its rights
in connection with this Agreement, including its rights under this Section,
or in connection with the Loans made or any Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters
of Credit.
(b) The Borrower shall indemnify the Administrative Agent, each
Issuing Bank and each Lender, and each Related Party of any of the
foregoing (each, an "Indemnitee") against, and hold each of them harmless
from, any and all costs, losses, liabilities, claims, damages and related
expenses, including the fees, charges and disbursements of any counsel for
any Indemnitee, which may be incurred by or asserted against any Indemnitee
arising out of, in connection with or as a result of (i) the execution or
delivery of this Agreement or any other agreement or instrument
contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of any of the
transactions contemplated hereby, (ii) any Loan or Letter of Credit or any
actual or proposed use of the proceeds therefrom (including any refusal by
any Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property
owned by the Borrower or any Subsidiary or any Environmental Liability
related in any way to the Borrower or any Subsidiary or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any
of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided, that the
Borrower shall not be obligated to indemnify any Indemnitee for any of the
foregoing arising primarily out of such Indemnitee's gross negligence or
willful misconduct as determined by a court of competent jurisdiction in a
final, nonappealable judgment. The foregoing provisions shall be in
addition to any right that Indemnitee shall have at common law or
otherwise. No Indemnitee shall be liable for any damages arising from the
use by others of information or others obtained through internet,
Intralinks(R), or other similar transmission services in connection with
this Agreement. No Indemnitee shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to the Borrower or any other
Loan Party arising out of, related to or in connection with the
transactions contemplated by the Loan Documents, except to the extent that
such liability shall be finally judicially determined by a court of
competent jurisdiction to have resulted from such Indemnitee's gross
negligence or willful misconduct. No Indemnitee shall be responsible or
liable for special, indirect, consequential or punitive damages which may
be alleged to arise in any manner in connection with this Agreement or the
Loan Documents or any transaction contemplated hereby. The foregoing
indemnification and limitation on liability shall survive and continue for
the benefit of the Indemnitees.
(c) The Borrower shall pay, and hold the Administrative Agent and each
of the Lenders harmless from and against, any and all present and future
stamp, documentary, and other similar taxes with respect to this Agreement
and any other Loan Documents, any collateral described therein, or any
payments due thereunder, and save the Administrative Agent and each Lender
harmless from and against any and all liabilities with respect to or
resulting from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required
to be paid to the Administrative Agent or the Issuing Bank under subsection
(a), (b) or (c) above, each Lender severally agrees to pay to the
Administrative Agent or the Issuing Bank, as the case may be, such Lender's
Pro Rata Share (determined as of the time that the unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided, that the
unreimbursed expense or indemnified payment, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against
the Administrative Agent or the Issuing Bank, in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower, KPP and
all Significant Affiliates shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages)
arising out of, in connection with or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the transactions contemplated
therein, any Loan or any Letter of Credit or the use of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly after
written demand therefor.
Section 11.4. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative
Agent and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more assignees all or
a portion of its rights and obligations under this Agreement and the other
Loan Documents (including all or a portion of its Commitment and the Loans
at the time owing to it and including non-pro rata assignments of its
Commitments and related Loans); provided, that (i) except in the case of an
assignment to a Lender or an Affiliate of a Lender, each of the Borrower
and the Administrative Agent (and, in the case of an assignment of all or a
portion of a Commitment) must give their prior written consent (which
consent shall not be unreasonably withheld or delayed), (ii) except in the
case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire amount of the assigning Lender's Commitment
hereunder or an assignment while an Event of Default has occurred and is
continuing, the amount of the Commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $1,000,000 (unless the
Borrower and the Administrative Agent shall otherwise consent), (iii) each
partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender's rights and obligations with respect to any
Commitment and the Loans related thereto under this Agreement and the other
Loan Documents, (iv) the assigning Lender and the assignee shall execute
and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee payable by the assigning
Lender or the assignee (as determined between such Persons) in an amount
equal to $1,000 and (v) such assignee, if it is not a Lender, shall deliver
a duly completed Administrative Questionnaire to the Administrative Agent;
provided, that any consent of the Borrower otherwise required hereunder
shall not be required if an Event of Default has occurred and is
continuing. Upon the execution and delivery of the Assignment and
Acceptance and payment by such assignee to the assigning Lender of an
amount equal to the purchase price agreed between such Persons, such
assignee shall become a party to this Agreement and any other Loan
Documents to which such assigning Lender is a party and, to the extent of
such interest assigned by such Assignment and Acceptance, shall have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender shall be released from its obligations hereunder to a corresponding
extent (and, in the case of an Assignment and Acceptance covering all of
the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 2.15, 2.16 and 2.17 and 11.3. Upon the
consummation of any such assignment hereunder, the assigning Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements
to have new Notes issued if so requested by either or both the assigning
Lender or the assignee. Any assignment or other transfer by a Lender that
does not fully comply with the terms of this subsection (b) shall be
treated for purposes of this Agreement as a sale of a participation
pursuant to subsection (c) below.
(c) Any Lender may at any time, without the consent of the Borrower or
the Administrative Agent or the Issuing Bank sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a
portion of its 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 its obligations hereunder, and (iii) the Borrower, the
Administrative Agent and the other Lenders 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. Any
agreement between such Lender and the Participant with respect to such
participation shall provide that such Lender shall retain the sole right
and responsibility to enforce this Agreement and the other Loan Documents
and the right to approve any amendment, modification or waiver of this
Agreement and the other Loan Documents; provided, that such participation
agreement may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver of this
Agreement described in the first proviso of Section 11.2(b) that affects
the Participant. The Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent
as if it were a Lender hereunder and had acquired its interest by
assignment pursuant to subsection (b); provided, that no Participant shall
be entitled to receive any greater payment under Section 2.15 or 2.17 than
the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant unless the sale of such
participation is made with the Borrower's prior written consent. To the
extent permitted by law, the Borrower agrees that each Participant shall be
entitled to the benefits of Section 2.18 as though it were a Lender,
provided, that such Participant agrees to share with the Lenders the
proceeds thereof in accordance with Section 2.18 as fully as if it were a
Lender hereunder. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the
Borrower is notified of such participation sold to such Participant and
such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement and its Notes (if
any) to secure its obligations to a Federal Reserve Bank without complying
with this Section; provided, that no such pledge or assignment shall
release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.
(e) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
(an "SPV"), identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Borrower, the option to provide
to the Borrower all or any part of any Loan that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided, that (i) nothing herein shall constitute a commitment by any SPV
to make any Loan and (ii) if an SPV elects not to exercise such option or
otherwise fails to provide all or any part of any Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The
making of a Loan by an SPV hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if such Loan were made by such
Granting Lender. Each party hereto hereby agrees that no SPV shall be
liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with the Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to
the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPV, it
will not institute against, or join any other Person in instituting
against, such SPV any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings under the laws of the United States or any
State. Notwithstanding anything to the contrary in this Section 11.4, any
SPV may (i) with notice to, but without the prior written consent of, the
Borrower and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the
Granting Lender or to any financial institutions (consented to by the
Borrower and the Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPV to support the funding or
maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPV. As this Section 11.4(e) applies to any
particular SPV, this Section may not be amended without the written consent
of such SPV.
Section 11.5. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of New York.
(b) Each of the Borrower and KPP hereby irrevocably and
unconditionally submits, for itself and its property, to the non-exclusive
jurisdiction of the United States District Court of the Southern District
of New York, and of the Supreme Court of the State of New York sitting in
New York County and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan
Document or the transactions contemplated hereby or thereby, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York
state court or, to the extent permitted by applicable law, such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement or any other Loan Document shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against the Borrower or its properties in the
courts of any jurisdiction.
(c) Each of the Borrower and KPP irrevocably and unconditionally
waives any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding described in subsection (b) of
this Section and brought in any court referred to in subsection (b) of this
Section. Each of the parties hereto irrevocably waives, to the fullest
extent permitted by applicable law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service
of process in the manner provided for notices in Section 11.1. Nothing in
this Agreement or in any other Loan Document will affect the right of any
party hereto to serve process in any other manner permitted by law.
Section 11.6. WAIVER OF JURY TRIAL.
EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (i) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 11.7. Right of Setoff.
In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, each Lender and the Issuing Bank
shall have the right, at any time or from time to time upon the occurrence and
during the continuance of an Event of Default, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, to set off and apply against all deposits (general
or special, time or demand, provisional or final) of the Borrower at any time
held or other obligations at any time owing by such Lender and the Issuing Bank
to or for the credit or the account of the Borrower against any and all
Obligations held by such Lender or the Issuing Bank, as the case may be,
irrespective of whether such Lender or the Issuing Bank shall have made demand
hereunder and although such Obligations may be unmatured. Each Lender and the
Issuing Bank agree promptly to notify the Administrative Agent and the Borrower
after any such set-off and any application made by such Lender and the Issuing
Bank, as the case may be; provided, that the failure to give such notice shall
not affect the validity of such set-off and application. Each Lender and the
Issuing Bank agrees to apply all amounts collected from any such set-off to the
Obligations before applying such amounts to any other Indebtedness or other
obligations owed by the Borrower and any of its Subsidiaries to such Lender or
Issuing Bank.
Section 11.8. Counterparts; Integration.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. This Agreement, the other Loan Documents and the Fee
Letters constitute the entire agreement among the parties hereto and thereto
regarding the subject matters hereof and thereof and supersede all prior
agreements and understandings, oral or written, regarding such subject matters.
Section 11.9. Survival.
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17, and 11.3 and Article X shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof. All representations and warranties made
herein, in the certificates, reports, notices, and other documents delivered
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the other Loan Documents, and the making of the Loans and the
issuance of the Letters of Credit.
Section 11.10. Severability.
Any provision of this Agreement or any other Loan Document held to be
illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or
unenforceability without affecting the legality, validity or enforceability of
the remaining provisions hereof or thereof; and the illegality, invalidity or
unenforceability of a particular provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.11. Confidentiality.
Each of the Administrative Agent, the Issuing Bank and each Lender agrees
to take normal and reasonable precautions to maintain the confidentiality of any
information designated in writing as confidential and provided to it by KPP or
any Subsidiary of KPP, except that such information may be disclosed (i) to any
Related Party of the Administrative Agent, the Issuing Bank or any such Lender,
including without limitation accountants, legal counsel and other advisors, (ii)
to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (iii) to the extent requested by any regulatory agency or
authority, (iv) to the extent that such information becomes publicly available
other than as a result of a breach of this Section 11.11, or which becomes
available to the Administrative Agent, the Issuing Bank, any Lender or any
Related Party of any of the foregoing on a nonconfidential basis from a source
other than KPP or any Subsidiary of KPP, (v) in connection with the exercise of
any remedy hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder, and (vi) subject to provisions
substantially similar to this Section 11.11, to any actual or prospective
assignee, Participant or counterparty (or their advisors) to any swap,
securitization or derivative transaction referenced to credit or other risks or
events arising under this Agreement or any other Loan Document, or (vii) with
the consent of the Borrower. Any Person required to maintain the confidentiality
of any information as provided for in this Section 11.11 shall be considered to
have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such information as such
Person would accord its own confidential information. Notwithstanding anything
herein to the contrary, any party to this Agreement (and any employee,
representative, or other agent of any party to this Agreement) may disclose to
any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including opinions or other tax analyses) that are provided to it
relating to such tax treatment and tax structure.
Section 11.12. Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees, charges and other
amounts which may be treated as interest on such Loan under applicable law
(collectively, the "Charges"), shall exceed the maximum lawful rate of interest
(the "Maximum Rate") that may be contracted for, charged, taken, received or
reserved by a Lender holding such Loan in accordance with applicable law, the
rate of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section 11.12 shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been
received by such Lender.
Section 11.13. Waiver of Effect of Corporate Seal.
The Borrower represents and warrants that neither it nor any other Loan
Party is required to affix its corporate seal to this Agreement or any other
Loan Document pursuant to any requirement of law or regulation, agrees that this
Agreement is delivered by Borrower under seal and waives any shortening of the
statute of limitations that may result from not affixing the corporate seal to
this Agreement or such other Loan Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
KANEB PIPE LINE OPERATING PARTNERSHIP, L.P.
By KANEB PIPE LINE COMPANY LLC,
General Partner
By //s//
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman of the Board
KANEB PIPE LINE PARTNERS, L.P.
By KANEB PIPE LINE COMPANY LLC,
General Partner
By //s//
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman of the Board
SUNTRUST BANK,
as Administrative Agent and as a Lender
By //s//
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Managing Director