1
EXHIBIT 10.24
EXECUTION COUNTERPART
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
among
LEVIATHAN GAS PIPELINE PARTNERS, L.P.,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
THE CHASE MANHATTAN BANK,
as Administrative Agent
and
ING (U.S.) CAPITAL CORPORATION,
as Co-Arranger
Dated as of March 23, 1995,
as amended and restated
through March 26, 1996,
as further amended and restated
through December 13, 1996
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.1 Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.2 Revolving Credit Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.3 Procedure for Revolving Credit Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.4 Limitations on Revolving Credit Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.5 Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.6 Termination or Reduction of Revolving Credit Commitments . . . . . . . . . . . . . . . . . . . . . . . 24
2.7 Extensions of Revolving Credit Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.8 Limitations on Distribution Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3. LETTERS OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.1 Issuance of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.2 Procedure for Issuance of Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.3 Participations and Payments in Respect of the Letters of Credit . . . . . . . . . . . . . . . . . . . 26
3.4 Fees, Commissions and Other Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.5 Reimbursement Obligation of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.6 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
3.7 Letter of Credit Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.8 Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.1 Optional and Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.2 Conversion and Continuation Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.3 Minimum Amounts of Tranches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.4 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.5 Computation of Interest and Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.6 Inability to Determine Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.7 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4.8 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.9 Requirements of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.10 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.11 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.12 Lenders Obligation to Mitigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.13 Certain Permitted Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
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SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.1 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.2 No Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.3 Existence; Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5.4 Power; Authorization; Enforceable Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.5 No Legal Bar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.6 No Material Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
5.7 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.8 Ownership of Property; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.9 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.10 No Burdensome Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.12 Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.14 Investment Company Act; Other Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.15 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.16 Purpose of Revolving Credit Loans, Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . 40
5.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
5.18 Accuracy and Completeness of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.19 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.20 Pipeline Partnership Agreements, Management Agreement, etc. . . . . . . . . . . . . . . . . . . . . 42
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.1 Conditions to Initial Extensions of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.2 Conditions to Each Extension of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 7. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.1 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.2 Certificates; Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.3 Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.4 Conduct of Business and Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.5 Maintenance of Property; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.6 Inspection of Property; Books and Records; Discussions . . . . . . . . . . . . . . . . . . . . . . . . 53
7.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.8 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.9 Maintenance of Liens of the Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.10 Pledge of After-Acquired Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.11 Agreements Respecting Unrestricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.12 Commodity Hedging Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.13 Pipeline Partnership Agreements, Management Agreement, etc. . . . . . . . . . . . . . . . . . . . . 56
SECTION 8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
8.1 Financial Condition Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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8.2 Limitation on Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.3 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.4 Limitation on Guarantee Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.5 Limitations on Fundamental Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.6 Limitation on Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.7 Limitation on Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.8 Limitation on Investments, Loans and Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.9 Limitation on Optional Payments and Modifications of Debt Instruments and Other Agreements . . . . . . 63
8.10 Limitation on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
8.11 Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.12 Limitation on Changes in Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.13 Limitation on Lines of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.14 Corporate Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.15 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.16 Limitation on Restrictions Affecting Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.17 Creation of Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
8.18 Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.19 Holding Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.20 No Voluntary Termination of Pipeline Partnership Agreements . . . . . . . . . . . . . . . . . . . . . 66
8.21 Actions by Joint Ventures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.22 Hedging Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 10. THE ADMINISTRATIVE AGENT AND CO-ARRANGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.4 Reliance by Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.6 Non-Reliance on Administrative Agent and Other Lenders . . . . . . . . . . . . . . . . . . . . . . . 72
10.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.8 Administrative Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.9 Successor Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.10 Co-Arranger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
11.4 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
11.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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11.6 Successors and Assigns; Participations; Purchasing Lenders . . . . . . . . . . . . . . . . . . . . . 76
11.7 Adjustments; Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
11.10 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.11 Usury Savings Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
11.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.13 Submission To Jurisdiction; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.14 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
11.15 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.16 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
11.17 ACKNOWLEDGEMENT OF NO CLAIMS, OFFSETS OR DEFENSES; RELEASE BY THE LOAN PARTIES . . . . . . . . . . . 82
11.18 Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
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Schedules
Schedule I Lenders, Commitments and Commitment Percentages
Schedule II Description of Manta Ray Gathering System
Schedule 5.1 Guarantee Obligations, Contingent Liabilities and
Dispositions
Schedule 5.6 Litigation
Schedule 5.15 Subsidiaries and Joint Ventures
Schedule 5.17 Environmental Matters
Exhibits
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Confirmation of Guarantees and Security
Documents
Exhibit C Form of Borrower Pledge Agreement
Exhibit D Form of Borrower Security Agreement
Exhibit E Form of Leviathan Guarantee
Exhibit F Form of Leviathan Pledge Agreement (Limited
Liability Companies)
Exhibit G Form of Leviathan Pledge Agreement (General Partner
Interest)
Exhibit H Form of Leviathan Security Agreement (Management
Agreement)
Exhibit I [Reserved]
Exhibit J Form of Subsidiaries Guarantee
Exhibit K Form of Subsidiary Security Agreement
Exhibit L Form of Borrowing Certificate
Exhibit M Form of Assignment and Acceptance
Exhibit N Form of Environmental Compliance Certificate
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March
23, 1995, as amended and restated through March 26, 1996, as further amended and
restated through December 20, 1996 (this "Agreement"), among LEVIATHAN GAS
PIPELINE PARTNERS, L.P., a Delaware limited partnership (the "Borrower"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), THE CHASE MANHATTAN BANK, a New York banking
corporation, as administrative agent for the Lenders hereunder (in such
capacity, the "Administrative Agent") and ING (U.S.) CAPITAL CORPORATION, a
Delaware corporation, as co-arranger for the Lenders ("ING" or the
"Co-Arranger").
W I T N E S S E T H :
WHEREAS, the Borrower, certain of the Lenders, the Administrative
Agent (as successor to Chemical Bank) and ING (in its capacity as co-agent
thereunder) are parties to the Amended and Restated Credit Agreement, dated as
of March 23, 1995, as amended and restated through March 26, 1996 (and as
further amended prior to the date hereof, the "Existing Credit Agreement");
WHEREAS, the Borrower has requested that the Existing Credit
Agreement be amended and restated (a) to provide for additional financial
institutions as lenders (the "New Lenders"), (b) to increase the aggregate
revolving credit commitments to $300,000,000, (c) to eliminate the term loan
facility, and (d) otherwise to amend the Existing Credit Agreement and restate
it in its entirety as more fully set forth herein;
WHEREAS, the Lenders, the Administrative Agent and ING are
willing to so amend and restate the Existing Credit Agreement, and the New
Lenders are willing to become parties hereto, but only on the terms and subject
to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree that on the Closing
Date (as hereinafter defined) the Existing Credit Agreement shall be amended
and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"Additional Clawbacks": as defined in subsection 8.4(e).
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (i) vote 10% or more of the
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securities having ordinary voting power for the election of directors of
such Person or (ii) direct or cause the direction of the management and
policies of such Person, whether by contract or otherwise.
"Aggregate Outstanding Revolving Credit Extensions of Credit": as
to any Lender at any time, an amount equal to the sum of (a) the
aggregate principal amount of all Revolving Credit Loans made by such
Lender then outstanding and (b) such Lender's Commitment Percentage of
the L/C Obligations then outstanding.
"Agreement": the Existing Credit Agreement, as amended and
restated by this Agreement, as further amended, supplemented or
otherwise modified from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect
on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by
the Administrative Agent as its prime rate in effect at its principal
office in New York City (each change in the Prime Rate to be effective
on the date such change is publicly announced); "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) a fraction, the numerator of which is one and the denominator
of which is one minus the C/D Reserve Percentage and (b) the C/D
Assessment Rate; "Three-Month Secondary CD Rate" shall mean, for any
day, the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be a
Business Day, the next preceding Business Day) by the Board of Governors
of the Federal Reserve System (the "Board") through the public
information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Board, be published
in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such
day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money
center banks in New York City received at approximately 10:00 A.M., New
York City time, on such day (or, if such day shall not be a Business
Day, on the next preceding Business Day) by the Administrative Agent
from three New York City negotiable certificate of deposit dealers of
recognized standing selected by it; "C/D Assessment Rate" means for any
day as applied to any Revolving Credit Loan, the net annual assessment
rate (rounded upward to the nearest 1/100th of 1%) determined by Chase
to be payable on such day to the Federal Deposit Insurance Corporation
or any successor ("FDIC") for FDIC's insuring time deposits made in
Dollars at offices of Chase in the United States; and "Federal Funds
Effective Rate" shall mean, for any day, the weighted average of the
rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for the
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day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. If for any
reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable to ascertain the Base CD Rate or the Federal Funds Effective
Rate, or both, for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with
the terms thereof, the Alternate Base Rate shall be determined without
regard to clause (b) or (c), or both, of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate shall be effective on the effective day of
such change in the Prime Rate, the Three-Month Secondary CD Rate or the
Federal Funds Effective Rate, respectively.
"Alternate Base Rate Loans": Revolving Credit Loans the rate of
interest applicable to which is based upon the Alternate Base Rate.
"Annualized EBITDA": (a) at any date of determination thereof
prior to April 30, 1997, the product of (i) Consolidated EBITDA for the
period of two consecutive fiscal quarters ended on September 30, 1996
times (ii) two, and (b) at any date of determination thereof from and
after April 30, 1997 but prior to May 31, 1997, the product of (i)
Consolidated EBITDA for the period of three consecutive fiscal quarters
ended on December 31, 1996 times (ii) 4/3.
"Applicable Margin": for each Type of Revolving Credit Loan and
the Commitment Fee payable pursuant to subsection 2.5 at any time, the
rate per annum based on the ratio of Consolidated Total Indebtedness of
the Borrower at such time to Consolidated EBITDA for the most recently
ended Calculation Period (the "Leverage Ratio") as set forth under the
relevant column heading below:
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Eurodollar Alternate Base Commitment
Leverage Ratio Loans Rate Loans Fee
-------------- ---------- -------------- ----------
Less than or equal to 2.5 .625% 0% .250%
Greater than 2.5 but less .750% 0% .250%
than or equal to 3.0
Greater than 3.0 but less 1.00% 0% .300%
than or equal to 3.5
Greater than 3.5 but less 1.25% 0% .375%
than 4.0
Greater than or equal to 4.0 1.50% 0% .375%
The Applicable Margin and Commitment Fee for any date shall be
determined by reference to the Leverage Ratio as of the last day of the
fiscal quarter most recently ended as of such date and for the
Calculation Period ended on such last day, and any change (x) shall
become effective upon the delivery to the Administrative Agent of a
certificate of a Responsible Officer of the Borrower (which certificate
may be delivered prior to delivery of the relevant financial statements
or may be incorporated in the certificate delivered pursuant to
subsection 7.2(b)) with respect to the financial statements to be
delivered pursuant to subsection 7.1 for the most recently ended fiscal
quarter (a) setting forth in reasonable detail the calculation of the
Leverage Ratio at the end of such fiscal quarter and (b) stating that
the signer has reviewed the terms of this Agreement and other Loan
Documents and has made, or caused to be made under his or her
supervision, a review in reasonable detail of the transactions and
condition of the Borrower and the Restricted Subsidiaries during the
accounting period, and that the signer does not have knowledge of the
existence as at the date of such officers' certificate of any Event of
Default or Default, and (y) shall apply (i) in the case of the Alternate
Base Rate Loans, to Alternate Base Rate Loans outstanding on such
delivery date or made on and after such delivery date and (ii) in the
case of the Eurodollar Loans, to Eurodollar Loans made on and after such
delivery date. It is understood that the foregoing certificate of a
Responsible Officer shall be permitted to be delivered prior to, but in
no event later than, the time of the actual delivery of the financial
statements required to be delivered pursuant to subsection 7.1.
Notwithstanding the foregoing, at any time prior to which the first
certificate is required to be delivered under subsection 7.2(b) (or
prior to the time a certificate as described in this definition is first
delivered to the Administrative Agent) and at any time during which the
Borrower has failed to deliver the certificate required under subsection
7.2(b) with respect to a fiscal quarter following the date the delivery
thereof is due, the Leverage Ratio shall be deemed, solely for the
purposes of this definition, to be greater than 4.5 until such time as
Borrower shall deliver such compliance certificate.
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"Application": an application, in such form as the Issuing Bank
may specify, requesting the Issuing Bank to open a Letter of Credit.
"Available Revolving Credit Commitment": as to any Lender at any
time, an amount equal to the excess, if any, of (a) the amount of such
Lender's Revolving Credit Commitment over (b) such Lender's Aggregate
Outstanding Revolving Credit Extensions of Credit.
"Borrower Pledge Agreement": the Amended and Restated Pledge and
Security Agreement made by the Borrower in favor of the Administrative
Agent for the benefit of the Lenders, substantially in the form of
Exhibit C hereto, as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrower Security Agreement": the Amended and Restated Security
Agreement made by the Borrower in favor of the Administrative Agent for
the benefit of the Lenders, substantially in the form of Exhibit D
hereto, as the same may be amended, supplemented or otherwise modified
from time to time.
"Borrowing Date": any Business Day specified in a notice pursuant
to subsection 2.3 or 3.2 as a date on which the Borrower requests the
Lenders to make Loans or the Issuing Bank to issue a Letter of Credit
hereunder.
"Business": as defined in subsection 5.17.
"Business Day": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by
law to close.
"Calculation Period": each period of four consecutive fiscal
quarters of the Borrower.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants or options to
purchase any of the foregoing. In addition, with respect to the Borrower
"Capital Stock" shall include the Preference Units, the Common Units and
the General Partnership Interest.
"Cash Equivalents": (i) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any
state of the United States of America or any political subdivision of
any such state or any public instrumentality thereof maturing within one
year from the date of acquisition thereof and, at the time of
acquisition, having the highest rating obtainable from either Standard &
Poor's Ratings Services (or any successor
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statistical rating organization) ("S&P"), or ▇▇▇▇▇'▇ Investors Service,
Inc. (or any successor statistical rating organization) ("Moody's");
(iii) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having the highest
rating obtainable from either S&P or Moody's; (iv) certificates of
deposit or banker's acceptances maturing within one year from the date
of acquisition thereof issued by (x) any Lender, (y) any commercial bank
organized under the laws of the United States of America or any state
thereof or the District of Columbia having combined capital and surplus
of not less than $250,000,000 or (z) any bank which has a short-term
commercial paper rating meeting the requirements of clause (iii) above
(any such Lender or bank, a "Qualifying Lender"); (v) eurodollar time
deposits having a maturity of less than one year purchased directly from
any Lender (whether such deposit is with such Lender or any other Lender
hereunder) or issued by any Qualifying Lender; and (vi) repurchase
agreements and reverse repurchase agreements with a term of not more
than 14 days with any Qualifying Lender relating to marketable direct
obligations issued or unconditionally guaranteed by the United States.
"C/D Reserve Percentage": for any day as applied to any Alternate
Base Rate Loan, that percentage (expressed as a decimal) which is in
effect on such day, as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) (the "Board"), for determining
the maximum reserve requirement for a Depositary Institution (as defined
in Regulation D of the Board) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"Change in Control": the acquisition by any Person or two or more
Persons acting in concert (other than the management of DeepTech as of
the Closing Date and the shareholders of DeepTech as of the Closing
Date) of beneficial ownership (within the meaning of Rule 13d-3,
promulgated by the Securities and Exchange Commission and now in effect
under the Securities Exchange Act of 1934, as amended) of 50% or more of
the issued and outstanding shares of voting stock of DeepTech.
"Chase": The Chase Manhattan Bank.
"Closing Date": the date on which the conditions set forth in
subsection 6.1 are first satisfied or waived, which shall occur on or
prior to December 31, 1996.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral": the "Collateral" as defined in the several Security
Documents.
"Commitment Percentage": as to any Lender at any time, with
respect to any credit to be extended under, payment or prepayment to be
made under, conversion or continuation under, participation in a Letter
of Credit issued under, or other matter with respect to, the Revolving
Credit Commitments, a percentage, the numerator of which is such
Lender's Revolving Credit Commitment and the denominator of which is the
aggregate Revolving Credit Commitments then in effect.
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"Commodity Hedging Program: any hedge agreement designed to
protect the Borrower or any of its Subsidiaries against fluctuations in
Petroleum prices.
"Common Unit": a partnership interest of a limited partner of the
Borrower representing a fractional part of the partnership interests of
all limited partners of the Borrower and having the rights and
obligations specified with respect to Common Units in the Partnership
Agreement.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes
the Borrower and which is treated as a single employer under Section 414
of the Code.
"Confirmation of Guarantees and Security Documents": the
Confirmation of the Guarantees and the Security Documents, substantially
in the form of Exhibit B.
"Consolidated EBITDA": for any period, the Consolidated Net
Income ((i) including earnings and losses from discontinued operations,
except to the extent that any such losses represent reserves for losses
attributable to the planned disposition of material assets, (ii)
excluding extraordinary gains, and gains and losses arising from the
sale of material assets, and (iii) including other non-recurring losses)
for such period, plus (x) the aggregate amount of cash distributions
received by the Borrower and its consolidated Subsidiaries (excluding
Unrestricted Subsidiaries) from unconsolidated entities, Unrestricted
Subsidiaries or Joint Ventures, and (y) to the extent reflected as a
charge in the statement of Consolidated Net Income for such period, the
sum of (a) interest expense, amortization of debt discount and debt
issuance costs (including the write-off of such costs in connection with
prepayments of debt) and commissions, discounts and other fees and
charges associated with standby letters of credit, (b) taxes measured by
income accrued as an expense during such period, (c) depreciation,
depletion, and amortization expense, and (d) non-cash compensation
expense resulting from the accounting treatment applied, in accordance
with GAAP, to management's equity interest minus the equity of the
Borrower and its consolidated Subsidiaries (excluding Unrestricted
Subsidiaries) in the earnings of unconsolidated entities.
"Consolidated Net Income": for any period, the net income or net
loss of the Borrower and its consolidated Subsidiaries (excluding
Unrestricted Subsidiaries) for such period determined in accordance with
GAAP on a consolidated basis.
"Consolidated Net Worth": as of the date of determination, all
items which in conformity with GAAP would be included under
shareholders' equity on a consolidated balance sheet of the Borrower and
its consolidated Subsidiaries (excluding Unrestricted Subsidiaries) at
such date.
"Consolidated Tangible Net Worth": as of the date of
determination, Consolidated Net Worth after deducting therefrom the
following:
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(a) goodwill, including any amounts (however designated on the
balance sheet) representing the cost of acquisitions of Subsidiaries in
excess of underlying tangible assets;
(b) patents, trademarks, copyrights;
(c) leasehold improvements not recoverable at the expiration
of a lease; and
(d) deferred charges (including, but not limited to,
unamortized debt discount and expense, organization expenses and
experimental and development expenses, but excluding prepaid expenses).
"Consolidated Total Capitalization": as to any Person at any
time, the sum of (a) all amounts which would be included in
stockholders' equity, partners' capital or any other equity accounts on
a consolidated balance sheet of such Person and its consolidated
Subsidiaries (excluding, in the case of the Borrower, Unrestricted
Subsidiaries) at such time prepared in accordance with GAAP, and (b) the
Consolidated Total Indebtedness of such Person at such time.
"Consolidated Total Indebtedness": as to any Person at any time,
all Indebtedness of such Person and its consolidated Subsidiaries
(excluding, in the case of the Borrower, Unrestricted Subsidiaries) at
such time.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"DeepTech": DeepTech International Inc., a Delaware corporation.
"Default": any of the events specified in Section 9, whether or
not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Demand Charge Rearrangement": any amendment, supplement,
replacement, renewal, cancellation or other modification to any
agreement effective prior to March 1, 1996, between the Borrower and/or
any of its Subsidiaries and ▇▇▇▇▇▇ Offshore, Inc., relating to oil and
gas properties in which ▇▇▇▇▇▇ Offshore, Inc. owns an interest and which
properties are located in the Garden Banks, Ship Shoal, Viosca ▇▇▇▇▇ or
▇▇▇▇▇ Bank area of the Outer Continental Shelf; provided that, the
Borrower and the Restricted Subsidiaries shall not make any payments or
distributions of cash or other property to or for the benefit of ▇▇▇▇▇▇
Offshore, Inc. in connection with the Demand Charge Rearrangement.
"Distribution Loan": a Revolving Credit Loan the proceeds of
which are used to pay, in whole or in part, distributions on the
Preference Units, the Common Units or the General Partnership Interest.
To the extent any "Distribution Loans" (as
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defined in the Existing Credit Agreement) were outstanding on the
Closing Date and were refinanced with the proceeds of Revolving Credit
Loans hereunder, such Revolving Credit Loans shall be deemed to be
Distribution Loans under this Agreement.
"Documents": as defined in subsection 5.20(b).
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Environmental Laws": any and all foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of
human health or the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes into the environment
including, without limitation, ambient air, surface water, ground water,
or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling
of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes, as now or may at any time hereafter be
in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of
the Federal Reserve System or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of such Board) maintained by
a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the rate at which Chase is offered Dollar deposits at or about
10:00 A.M., New York City time, two Working Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of
its Eurodollar Loans are then being conducted 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 its Eurodollar Loan to be
outstanding during such Interest Period.
"Eurodollar Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurodollar Rate.
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"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"▇▇▇▇▇ Bank": ▇▇▇▇▇ Bank Gathering Company, L.L.C., a Delaware
limited liability company.
"Existing Credit Agreement": as defined in the recitals hereto.
"Expiry Date": with respect to any Letter of Credit at any time,
the then stated expiration date of such Letter of Credit as set forth in
such Letter of Credit.
"FASB 121": Statement of Financial Accounting Standards No. 121
of the Financial Accounting Standards Board, as the same may be amended
and interpreted by the Financial Accounting Standards Board.
"FERC": the Federal Energy Regulatory Commission and any
successor thereto.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Flextrend": Flextrend Development Company, L.L.C., a Delaware
limited liability company.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Garden Banks Write-Down": any write-offs or charges pursuant to
FASB 121 as a result of investments in the Subject Properties known as
Garden Banks 117.
"General Partner": Leviathan in its capacity as the general
partner of the Borrower.
"General Partnership Interest": all general partnership interests
in the Borrower.
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"Governmental Approval": any authorization, consent, approval,
license, lease, ruling, permit, tariff, rate, certification, exemption,
filing, variance, claim, order, judgment, decree, publication, notice
to, declaration of or with or registration by or with any Governmental
Authority.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Green Canyon": Green Canyon Pipe Line Company, L.L.C., a
Delaware limited liability company.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The amount
of any Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may
be liable are not stated or determinable, in which case the amount of
such Guarantee Obligation shall be such guaranteeing person's maximum
reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guarantees": collectively, the Leviathan Guarantee and the
Subsidiaries Guarantee.
"Hazardous Materials": any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances, petroleum
products (including crude oil or
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any fraction thereof), defined or regulated as such in or under any
Environmental Law.
"HIOS": High Island Offshore System, a Delaware general
partnership.
"Incurrence Limitation": (a) on any date of determination prior
to May 30, 1997, the greater of (i) $250,000,000 and (ii) the product of
(x) 3.25 multiplied by (y) the Annualized EBITDA on such date of
determination, and (b) from and after May 30, 1997, an amount not to
exceed the product of (i) 3.25 multiplied by (ii) the Consolidated
EBITDA for the most recently ended Calculation Period for which
financial statements have been delivered pursuant to subsection 7.1.
"Indebtedness": of any Person at any date, (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in
the ordinary course of business and payable in accordance with customary
practices and which in any event are no more than 120 days past due or,
if more than 120 days past due, are being contested in good faith and
adequate reserves with respect thereto have been made on the books, of
such Person), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all
obligations of such Person under Financing Leases, (d) all obligations
of such Person in respect of outstanding letters of credit (other than
commercial letters of credit with an initial maturity date of less than
90 days), acceptances and similar obligations issued or created for the
account of such Person and (e) all liabilities secured by any Lien on
any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan,
the last day of each March, June, September and December, commencing
December 31, 1996, (b) as to any Eurodollar Loan having an Interest
Period of three months or less, the last day of such Interest Period,
and (c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day which is three months or a whole multiple
thereof, after the first day of such Interest Period and the last day of
such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its
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notice of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to
the Administrative Agent not less than three Working Days prior to
the last day of the then current Interest Period with respect
thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Working Day, such
Interest Period shall be extended to the next succeeding Working
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Working
Day;
(2) any Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date shall end on the
Revolving Credit Termination Date;
(3) any Interest Period pertaining to a Eurodollar Loan
that begins on the last Working Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Working Day of a calendar month; and
(4) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Revolving Credit Loan.
"Issuing Bank": Chase, in its capacity as issuer of any Letter of
Credit.
"Joint Venture": any Person in which the Borrower and/or its
Subsidiaries hold less than a majority of the equity interests, and
which does not constitute a Subsidiary of the Borrower, whether direct
or indirect.
"L/C Commitment Amount": $40,000,000.
"L/C Commitment Percentage": as to any L/C Participant at any
time, the percentage determined under paragraph (a) of the definition of
"Commitment Percentage" in this subsection 1.1.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the Letters of Credit
and (b) the
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aggregate amount of drawings under the Letters of Credit which have not
then been reimbursed pursuant to subsection 3.5(a).
"L/C Participants": the collective reference to all Lenders with
Revolving Credit Commitments (other than the Issuing Bank).
"Lenders": as defined in the preamble to this Agreement.
"Letters of Credit": as defined in subsection 3.1(a).
"Leverage Ratio": as defined in the definition of "Applicable
Margin".
"Leviathan": Leviathan Gas Pipeline Company, a Delaware
corporation.
"Leviathan Guarantee": the Amended and Restated Guarantee made by
Leviathan in favor of the Administrative Agent, for the benefit of the
Lenders, substantially in the form of Exhibit E hereto, as the same may
be amended, supplemented or otherwise modified from time to time.
"Leviathan Pledge Agreement (LLC)": the Amended and Restated
Pledge and Security Agreement made by Leviathan in favor of the
Administrative Agent for the benefit of the Lenders, substantially in
the form of Exhibit F hereto, with respect to Leviathan's limited
liability company interests in the Subsidiaries, as the same may be
amended, supplemented or otherwise modified from time to time.
"Leviathan Pledge Agreement (GP)": the Amended and Restated
Pledge Agreement made by Leviathan in favor of the Administrative Agent
for the benefit of the Lenders, substantially in the form of Exhibit G
hereto, with respect to Leviathan's General Partnership Interest, as the
same may be amended, supplemented or otherwise modified from time to
time.
"Leviathan Pledge Agreements": collectively, the Leviathan Pledge
Agreement (LLC) and the Leviathan Pledge Agreement (GP).
"Leviathan Security Agreement": the Amended and Restated Security
Agreement, made by Leviathan in favor of the Administrative Agent for
the benefit of the Lenders, substantially in the form of Exhibit H
hereto, as the same may be amended, supplemented or otherwise modified
from time to time.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority, preferential arrangement
or other security agreement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic
effect as any of the foregoing).
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"Loan Documents": this Agreement, the Revolving Credit Notes, the
Guarantees, the Security Documents, the Applications and the
Confirmation of Guarantees and Security Documents.
"Loan Parties": the Borrower, Leviathan, the Subsidiary
Guarantors and each other Affiliate of the Borrower or Leviathan that
from time to time is party to a Loan Document.
"LOTS: Leviathan Oil Transport Systems, L.L.C., a Delaware
limited liability company.
"Majority Lenders": at any time, the holders of at least 50% of
the aggregate Revolving Credit Commitments then in effect.
"Management Agreement": the First Amended and Restated Management
Agreement, dated as of June 27, 1994, between DeepTech and the General
Partner, as amended by the First Amendment thereto dated as of January
1, 1995, and as further amended, modified or supplemented from time to
time in accordance with subsection 8.9.
"Manta Ray": Manta Ray Gathering Company, L.L.C., a Delaware
limited liability company.
"Manta Ray Gathering System": the assets described on Schedule II
and any additional natural gas pipelines and related facilities designed
to gather natural gas volumes in the Ship Shoal, South Timbalier, Grand
Isle, ▇▇▇▇▇ Bank, Green Canyon and other areas.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Restricted Subsidiaries taken as a
whole, (b) the ability of any Loan Party to perform its obligations
under this Agreement or any of the Revolving Credit Notes or any of the
other Loan Documents or (c) the validity or enforceability of this
Agreement or any of the Revolving Credit Notes or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder.
"Material Environmental Amount": an amount payable by the
Borrower and/or its Subsidiaries in excess of $5,000,000 for remedial
costs, compliance costs, compensatory damages, punitive damages, fines,
penalties or any combination thereof.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any
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Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Nautlilus Pipeline System": the natural gas pipelines and
related facilities designed to transport natural gas volumes from Ship
Shoal Block 207 to points onshore in Garden City, St. ▇▇▇▇ ▇▇▇▇▇▇,
Louisiana.
"Nautilus/Manta Ray Ventures": one or more limited liability
companies formed or to be formed by the Borrower, Shell Seahorse
Company, Marathon Gas Transmission Inc. and certain of their affiliates,
the purpose of each of which shall be to acquire, construct and operate
the Manta Ray Gathering System and the Nautilus Pipeline System.
"Net Debt Proceeds": 100% of the cash proceeds from the
incurrence by the Borrower or any of its Restricted Subsidiaries of any
Indebtedness pursuant to subsection 8.2(f), net of all reasonable
out-of-pocket fees (including investment banking fees), commissions,
costs and other reasonable out-of-pocket expenses incurred in connection
with such issuance or sale. For purposes of calculating "Net Debt
Proceeds", fees, commissions and other costs and expenses payable to the
Borrower or any of its Affiliates shall be disregarded.
"Net Equity Proceeds": 100% of the cash proceeds from the
issuance or sale by the Borrower or any of its Restricted Subsidiaries
of any equity securities, net of all reasonable out-of-pocket fees
(including investment banking fees), commissions, costs and other
reasonable out-of-pocket expenses incurred in connection with such
issuance or sale. For purposes of calculating "Net Equity Proceeds",
fees, commissions and other costs and expenses payable to the Borrower
or any of its Affiliates shall be disregarded.
"Non-Recourse Obligations": Indebtedness, Guarantee Obligations
and other obligations of any type (a) as to which neither the Borrower
nor any Restricted Subsidiary (i) is obligated to provide credit support
in any form, or (ii) is directly or indirectly liable, and (b) no
default with respect to which (including any rights which the holders
thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any holder
of any Indebtedness or Guarantee Obligation of the Borrower or any
Restricted Subsidiary to declare a default on such Indebtedness or
Guarantee Obligation of the Borrower or any Restricted Subsidiary or
cause the payment of any such Indebtedness to be accelerated or payable
prior to its stated maturity or cause any such Guarantee Obligation to
become payable.
"Participants": as defined in subsection 11.6(b).
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"Partnership Agreement": the Amended and Restated Agreement of
Limited Partnership of the Borrower among the partners of the Borrower
substantially in the form previously provided to the Lenders, as
amended, modified and supplemented from time to time in accordance with
subsection 8.9.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted L/C Obligations": at any time the aggregate then
undrawn and unexpired amount of all then outstanding letters of credit
issued for the account of the Borrower or any of its Restricted
Subsidiaries (other than the Letters of Credit) plus the aggregate
amount of drawings under any letters of credit issued for the account of
the Borrower or any of its Restricted Subsidiaries which have not then
been reimbursed, provided that the sum of such amounts shall not exceed
$1,000,000, provided that all such obligations shall be unsecured.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
other entity of whatever nature.
"Petroleum": oil, gas and other liquid or gaseous hydrocarbons,
including, without limitation, all liquefiable hydrocarbons and other
products which may be extracted from gas and gas condensate by the
processing thereof in a gas processing plant.
"Pipeline Partnership Agreement": with respect to each Joint
Venture, the partnership agreement, certificate of incorporation,
by-laws, limited liability company agreement or other constitutive
documents of such Joint Venture, as each of the same may be further
amended, supplemented or otherwise modified in accordance with
subsection 8.9.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreements": collectively, the Borrower Pledge Agreement,
the Leviathan Pledge Agreements and any other pledge agreement executed
and delivered pursuant to subsection 8.17.
"Poseidon": Poseidon Pipeline Company, L.L.C., a Delaware limited
liability company.
"Poseidon Venture": Poseidon Oil Pipeline Company, L.L.C., a
Delaware limited liability company.
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"Preference Unit": a partnership interest in the Borrower
representing a fractional part of the partnership interests of all
limited partners of the Borrower and having the rights and obligations
specified with respect to Preference Units in the Partnership Agreement.
"Properties": the facilities and properties owned, leased or
operated by the Borrower or any of its Subsidiaries or any Joint
Venture.
"Purchasing Lenders": as defined in subsection 11.6(c).
"Redesignated Subsidiary": as defined in subsection 7.11(c).
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Bank pursuant to subsection 3.5(a) for amounts
drawn under the Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or .20
of PBGC Reg. Section 2615.
"Required Lenders": at any time, the holders of at least 60% of
the aggregate Revolving Credit Commitments then in effect.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Reserve Report": a report in form and substance reasonably
satisfactory to the Administrative Agent certified, in the case of the
report delivered as of December 31 in any year, by Netherland ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇ or another independent petroleum engineer
acceptable to the Administrative Agent and, in the case of the report
delivered as of June 30 in any year, by the principal financial officer
of the Borrower, setting forth (a) the amount of and projected
production of Petroleum from the proven Petroleum reserves attributable
to the Subject Properties and (b) the projected future net income taking
into account sales revenues, lease operating expenses, associated
production taxes and capital costs, and setting forth the net present
value attributable to such reserves attributable to the Subject
Properties as of
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the date of such report (in each case determined using pricing
assumptions reasonably satisfactory to the Administrative Agent).
"Responsible Officer": the Chief Executive Officer, the Chief
Operating Officer, the President, the Chief Financial Officer, the
Treasurer or any vice president of the General Partner or the Borrower.
"Restricted Payment": as defined in subsection 8.7.
"Restricted Subsidiary": any Subsidiary of the Borrower other
than an Unrestricted Subsidiary. Subject to the right to redesignate
certain Restricted Subsidiaries as Unrestricted Subsidiaries in
accordance with clause (a)(i) of the definition of "Unrestricted
Subsidiary", all of the Subsidiaries of the Borrower as of the date
hereof are Restricted Subsidiaries.
"Revolving Credit Commitment": as to any Lender, the obligation
of such Lender to make Revolving Credit Loans to and/or issue or
participate in Letters of Credit issued on behalf of the Borrower
hereunder in an aggregate principal and/or face amount at any one time
outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule I under the heading "Revolving Credit Commitment", as
such amount may be reduced from time to time in accordance with the
provisions of this Agreement.
"Revolving Credit Commitment Period": the period from and
including the date hereof to but not including the Revolving Credit
Termination Date or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
"Revolving Credit Termination Date": the third anniversary of the
Closing Date, as such termination date may from time to time be extended
pursuant to subsection 2.7, and any other date on which the Revolving
Credit Commitments are terminated.
"Security Agreements": collectively, the Borrower Security
Agreement, the Leviathan Security Agreement and the Subsidiary Security
Agreements.
"Sailfish": Sailfish Pipeline Company, L.L.C., a Delaware limited
liability company.
"Security Documents": collectively, the Pledge Agreements and the
Security Agreements.
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"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Stingray": Stingray Pipeline Company, a Louisiana general
partnership.
"Stingray Holding": Stingray Holding, L.L.C., a Delaware limited
liability company.
"Subject Properties": the Properties containing Petroleum in
which Borrower or any Restricted Subsidiary owns an interest, including,
but not limited to, those known as Viosca ▇▇▇▇▇ 817, Garden Banks 72 and
Garden Banks 117 in the Gulf of Mexico.
"Subsidiaries Guarantee": the Amended and Restated Subsidiaries
Guarantee made by the Subsidiary Guarantors in favor of the
Administrative Agent, for the benefit of the Lenders, substantially in
the form of Exhibit J hereto, as the same may be amended, supplemented
or otherwise modified from time to time.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Subsidiary Guarantors": collectively, ▇▇▇▇▇ Bank, Flextrend,
Green Canyon, LOTS, Manta Ray, Poseidon, Stingray Holding, Tarpon, THC,
TOGT, TOPC, VK Deepwater, VK Main Pass, Sailfish and any other
Subsidiary of the Borrower which, from time to time, may become party to
the Subsidiaries Guarantee.
"Subsidiary Security Agreement": each Security Agreement made by
each of the Subsidiary Guarantors (including any security agreement
executed and delivered pursuant to subsection 8.17) in favor of the
Administrative Agent for the benefit of the Lenders, substantially in
the form of Exhibit K hereto, as the same may be amended, supplemented
or otherwise modified from time to time.
"Tarpon": Tarpon Transmission Company, a Texas corporation.
"THC": Transco Hydrocarbons Company, L.L.C., a Delaware limited
liability company.
"TOGT": Texam Offshore Gas Transmission, L.L.C., a Delaware
limited liability company.
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"TOPC": Transco Offshore Pipeline Company, L.L.C., a Delaware
limited liability company.
"Tranche": the collective reference to Eurodollar Loans the
Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Revolving Credit Loans
shall originally have been made on the same day).
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Revolving Credit Loan, its nature as an
Alternate Base Rate Loan or a Eurodollar Loan.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Unrestricted Subsidiary": any Subsidiary of the Borrower (a)
which (i) in the case of any Subsidiary which owns an interest in
Stingray, HIOS, UTOS or Viosca ▇▇▇▇▇, is designated by the Borrower in a
written notice to the Administrative Agent after the date hereof as an
Unrestricted Subsidiary, or (ii) becomes a Subsidiary of the Borrower
after the date hereof and at the time it becomes a Subsidiary, is
designated as an Unrestricted Subsidiary, in each case under subclause
(i) or (ii) of this clause (a) pursuant to a written notice from the
Borrower to the Administrative Agent, (b) which has not acquired any
assets (other than cash made available pursuant to this Agreement) from
the Borrower or any Restricted Subsidiary, and (c) which has no
Indebtedness, Guarantee Obligations or other obligations other than
Non-Recourse Obligations or Guarantee Obligations permitted pursuant to
subsections 8.4(d) and (e) to the extent the applicable guarantor has
guaranteed payment of the obligations of the Borrower under this
Agreement.
"UTOS": U-T Offshore System, a Delaware general partnership.
"Viosca ▇▇▇▇▇": ▇▇▇▇▇▇ ▇▇▇▇▇ Gathering Company, a Delaware joint
venture.
"VK Deepwater": VK Deepwater Gathering Company, L.L.C., a
Delaware limited liability company.
"VK Main Pass": VK-Main Pass Gathering Company, L.L.C., a
Delaware limited liability company.
"West Cameron": West Cameron Dehydration Company, L.L.C., a
Delaware limited liability company.
"Working Day": any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London,
England.
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1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Revolving Credit Notes or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in the Revolving Credit Notes, and any
certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Borrower and its Subsidiaries not defined in subsection
1.1 and accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") to the Borrower from time to time during the
Revolving Credit Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to such Lender's Commitment Percentage of
the then outstanding L/C Obligations, does not exceed the amount of such
Lender's Revolving Credit Commitment, provided that no such Revolving Credit
Loan shall be made if, after giving effect thereto, subsection 2.4 would be
contravened, and provided, further, that no such Revolving Credit Loan which
would be a Distribution Loan shall be made if, after giving effect thereto,
subsection 2.8 would be contravened. During the Revolving Credit Commitment
Period the Borrower may use the Revolving Credit Commitments by borrowing,
prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) Alternate Base Rate Loans or (iii) a combination
thereof, as determined by the Borrower and notified to the Administrative Agent
in accordance with subsections 2.3 and 4.2, provided that no Revolving Credit
Loan shall be made as a Eurodollar Loan after the day that is one month prior
to the Revolving Credit Termination Date.
(c) The revolving credit loans outstanding on the Closing Date
under the Existing Credit Agreement shall continue to be outstanding and shall
be continued under this Agreement.
2.2 Revolving Credit Notes. The Revolving Credit Loans made by
each Lender shall be evidenced by a promissory note of the Borrower,
substantially in the form of
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Exhibit A, with appropriate insertions as to payee, date and principal amount
(a "Revolving Credit Note"), payable to the order of such Lender and in a
principal amount equal to the lesser of (a) the amount of the initial Revolving
Credit Commitment of such Lender and (b) the aggregate unpaid principal amount
of all Revolving Credit Loans made by such Lender. Each Lender is hereby
authorized to record the date, Type and amount of each Revolving Credit Loan
made by such Lender, each continuation thereof, each conversion of all or a
portion thereof to another Type, the date and amount of each payment or
prepayment of principal thereof, whether such Revolving Credit Loan is a
Distribution Loan and, in the case of Eurodollar Loans, the length of each
Interest Period with respect thereto, on the schedules annexed to and
constituting a part of its Revolving Credit Note, and any such recordation
shall constitute prima facie evidence of the accuracy of the information so
recorded, provided that failure by any Lender to make any such recordation
shall not affect the obligations of the Borrower under the Revolving Credit
Notes or this Agreement. Each Revolving Credit Note shall (x) be dated the
Closing Date, (y) be stated to mature on the Revolving Credit Termination Date,
and (z) provide for the payment of interest in accordance with subsection 4.4.
2.3 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Working Day, if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Loans, or on any Business
Day, otherwise, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, (a) three Working Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially Eurodollar Loans, or (b) one Business Day prior to
the requested Borrowing Date, otherwise), specifying (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to
be of Eurodollar Loans, Alternate Base Rate Loans or a combination thereof,
(iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
respective amounts of such Type of Revolving Credit Loan and the respective
lengths of the initial Interest Periods therefor, and (v) whether such
requested Revolving Credit Loans are Distribution Loans. Each borrowing under
the Revolving Credit Commitments shall be in an amount equal to (x) in the case
of Alternate Base Rate Loans, $500,000 or a whole multiple thereof (or, if the
then Available Revolving Credit Commitments are less than $500,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple
of $100,000 in excess thereof. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Lender thereof.
Each Lender will make the amount of its pro rata share of each borrowing
available to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified in subsection 11.2 prior to 11:00
A.M., New York City time, on the Borrowing Date requested by the Borrower in
funds immediately available to the Administrative Agent. Such borrowing will
then be made available to the Borrower by the Administrative Agent crediting
the account of the Borrower on the books of such office with the aggregate of
the amounts made available to the Administrative Agent by the Lenders and in
like funds as received by the Administrative Agent.
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2.4 Limitations on Revolving Credit Loans. No requested
Revolving Credit Loan shall be made if the sum of the Aggregate Outstanding
Revolving Credit Extensions of Credit (after giving effect to such requested
Revolving Credit Loan) plus the aggregate amount of Additional Clawbacks then
outstanding plus the aggregate amount of Permitted L/C Obligations outstanding
immediately prior to giving effect to such Revolving Credit Loan would exceed
the lesser of (a) the then aggregate Revolving Credit Commitments or (b) the
Incurrence Limitation then in effect.
2.5 Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee for the
period from and including the date hereof to the Revolving Credit Termination
Date, computed at the rate per annum equal to:
(a) the then Applicable Margin therefor as set forth under the
column heading "Commitment Fee" on the average daily amount of the lesser of:
(i) the Available Revolving Credit Commitment of such Lender or (ii) an amount
equal to such Lender's Commitment Percentage of (x) the Incurrence Limitation
then in effect minus (y) the Aggregate Outstanding Revolving Credit Extensions
of Credit, plus
(b) 1/8% on the average daily amount equal to such Lender's
Commitment Percentage of (i) the Revolving Credit Commitments minus (ii) the
Incurrence Limitation then in effect,
during the period for which payment is made, payable quarterly in arrears on
the last day of each March, June, September and December, commencing December
31, 1996 and on the Revolving Credit Termination Date or such earlier date as
the Revolving Credit Commitments shall terminate as provided herein, commencing
on the first of such dates to occur after the date hereof.
2.6 Termination or Reduction of Revolving Credit Commitments.
(a) The Borrower shall have the right, upon not less than five Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments, provided that no such termination or reduction shall be permitted
if, after giving effect thereto and to any prepayments of the Revolving Credit
Loans made on the effective date thereof, the aggregate principal amount of the
Revolving Credit Loans then outstanding, when added to the then outstanding L/C
Obligations, would exceed the Revolving Credit Commitments then in effect. Any
such reduction shall be in an amount equal to $1,000,000 or a whole multiple
thereof.
(b) Any reduction of Revolving Credit Commitments pursuant to
subsection 2.6(a) above or 4.1(b) shall reduce permanently the Revolving Credit
Commitments then in effect.
2.7 Extensions of Revolving Credit Termination Date. The
Borrower may, by irrevocable written notice to the Administrative Agent
received no later than 120 days
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prior to the Revolving Credit Termination Date then in effect, request the
Lenders to change such Revolving Credit Termination Date to the date 364 days
following such then scheduled Revolving Credit Termination Date. Upon receipt
of any such notice, the Administrative Agent shall promptly notify each Lender
thereof. Each Lender may consent or refuse to consent to such change, in its
sole discretion, at any time on or prior to the date which is 60 days prior to
the Revolving Credit Termination Date then in effect. Upon the receipt by the
Administrative Agent of the written consent of each of the Lenders to such
change in the Revolving Credit Termination Date on or prior to 2:00 p.m., New
York time, on the date which is 60 days prior to the Revolving Credit
Termination Date then in effect, the Revolving Credit Termination Date shall be
changed to such subsequent date 364 days following the Revolving Credit
Termination Date then in effect, and the term "Revolving Credit Termination
Date" for all purposes of this Agreement and the other Loan Documents shall
thereupon be deemed to refer to such subsequent date.
2.8 Limitations on Distribution Loans. The proceeds of each
Distribution Loan must be applied to the payment of distributions on the
Preference Units, the Common Units or the General Partner Interest on the
Borrowing Date for such Distribution Loans. The aggregate principal amount of
Distribution Loans at any time outstanding shall not exceed $7,500,000. To the
extent that any Distribution Loans are outstanding at any time, any repayment
of principal of any Revolving Credit Loan by the Borrower at such time shall be
deemed to be a repayment of the principal of such Distribution Loans.
SECTION 3. LETTERS OF CREDIT
3.1 Issuance of Letters of Credit. (a) Subject to the terms
and conditions hereof, the Issuing Bank, in reliance on the agreements of the
other Lenders set forth in subsection 3.3(a), agrees to issue letters of credit
(the "Letters of Credit") for the account of the Borrower on any Business Day
during the Revolving Credit Commitment Period in such form as may be approved
from time to time by the Issuing Bank; provided that the Issuing Bank shall
have no obligation to issue any Letter of Credit if, after giving effect to
such issuance, (1) the L/C Obligations would exceed the L/C Commitment or (2)
the Available Revolving Credit Commitment would be less than zero or (3) the
Aggregate Outstanding Revolving Credit Extensions of Credit plus the aggregate
amount of Additional Clawbacks then outstanding plus the aggregate amount of
Permitted L/C Obligations then outstanding would exceed the lesser of (i) the
then aggregate Revolving Credit Commitments or (ii) the Incurrence Limitation
then in effect.
(b) Each Letter of Credit shall:
(1) be denominated in Dollars and shall be either (A) a
standby letter of credit issued to support obligations of the Borrower
or any Restricted Subsidiary, contingent or otherwise, in connection
with the working capital and business needs of the Borrower or such
Restricted Subsidiary, as the case may be, in the ordinary course of
business, or (B) a commercial letter of credit issued in respect of the
purchase of
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goods or services by the Borrower or any Restricted Subsidiary in the
ordinary course of business; and
(2) expire no later than the earlier of (A) one year after the
date of issuance or renewal thereof in accordance with the term of such
Letter of Credit; provided that any Letter of Credit with a one-year
tenure may be renewed for additional one-year periods and (B) five days
prior to the Revolving Credit Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York.
(d) The Issuing Bank shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Bank or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
(e) Letters of Credit issued under the Existing Credit
Agreement which are outstanding on the Closing Date shall be deemed to be
Letters of Credit issued under this Agreement on the Closing Date.
3.2 Procedure for Issuance of Letters of Credit. The Borrower
may from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Bank, and
such other certificates, documents and other papers and information as the
Issuing Bank may reasonably request. Upon receipt of any Application, the
Issuing Bank will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Bank be required to
issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and
other papers and information relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may be agreed by
the Issuing Bank and the Borrower. The Issuing Bank shall furnish a copy of
such Letter of Credit to the Borrower promptly following the issuance thereof.
3.3 Participations and Payments in Respect of the Letters of
Credit. (a) The Issuing Bank irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Bank to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Bank, on the terms
and conditions hereinafter stated, for such L/C Participant's own account and
risk an undivided interest equal to such L/C Participant's L/C Commitment
Percentage in the Issuing Bank's obligations and rights under each Letter of
Credit issued hereunder and the amount of each draft paid by the Issuing Bank
thereunder.
(b) Each L/C Participant unconditionally and irrevocably
agrees with the Issuing Bank that, if a draft is paid under any Letter of
Credit for which the Issuing Bank is not reimbursed on the day of such payment
in full by the Borrower in immediately available
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funds, such Lender shall pay to the Issuing Bank upon demand at the Issuing
Bank's address for notices specified herein an amount equal to such L/C
Participant's L/C Commitment Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed. Each L/C Participant's obligation to
make each such payment to the Issuing Bank, and the Issuing Bank's right to
receive the same, are absolute and unconditional and shall not be affected by
any circumstance whatsoever, including, without limiting the effect of the
foregoing, the occurrence or continuance of a Default or Event of Default or
the failure of any other L/C Participant to make any payment under this
subsection, and each L/C Participant further agrees that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever. Each L/C Participant shall indemnify and hold harmless the Issuing
Bank from and against any and all losses, liabilities (including, without
limitation, liabilities for penalties), actions, suits, judgments, demands,
costs and expenses (including reasonable attorneys' fees) resulting from any
failure of such L/C Participant to provide, or from any delay in providing, the
Issuing Bank with such L/C Participant's L/C Commitment Percentage of such
payment in accordance with the provisions of this subsection, but no L/C
Participant shall be so liable for any such failure on the part of any other
L/C Participant.
(c) If any amount required to be paid by any L/C Participant
to the Issuing Bank pursuant to subsection 3.3(a) in respect of any
unreimbursed portion of any payment made by the Issuing Bank under any Letter
of Credit is paid to the Issuing Bank within one Business Day after the date
such payment is due, such L/C Participant shall pay to the Issuing Bank on
demand an amount equal to the product of (i) such amount, times (ii) the daily
average Federal funds rate, as quoted by the Issuing Bank, during the period
from and including the date such payment is required to the date on which such
payment is immediately available to the Issuing Bank, times (iii) a fraction
the numerator of which is the number of days that elapse during such period and
the denominator of which is 360. If any such amount required to be paid by any
L/C Participant pursuant to subsection 3.3(a) is not in fact made available to
the Issuing Bank by such L/C Participant within one Business Day after the date
such payment is due, the Issuing Bank shall be entitled to recover from such
L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to Alternate Base Rate Loans
hereunder. A certificate of the Issuing Bank submitted to any L/C Participant
with respect to any amounts owing under this subsection shall be conclusive in
the absence of manifest error.
(d) Whenever, at any time after the Issuing Bank has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with subsection 3.3(a), the
Issuing Bank receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Bank), or any payment of interest on account
thereof, the Issuing Bank will distribute to such L/C Participant its pro rata
share thereof; provided, however, that in the event that any such payment
received by the Issuing Bank shall be required to be returned by the Issuing
Bank, such L/C Participant shall return to the Issuing Bank the portion thereof
previously distributed by the Issuing Bank to it.
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3.4 Fees, Commissions and Other Charges. (a) The Borrower
shall pay to the Administrative Agent, for the account of the Issuing Bank, a
fronting fee with respect to each Letter of Credit for the period from and
including the date of issuance thereof to but not including the Expiry Date
thereof, computed at the rate of 1/8 of 1% per annum on the average daily
amount of the undrawn and unexpired amount of such Letter of Credit. Such
fronting fee shall be payable quarterly in advance on the date of issuance of
each Letter of Credit and on the last day of each March, June, September and
December thereafter. Such fee shall be nonrefundable.
(b) The Borrower shall pay to the Administrative Agent, for
the account of the Issuing Bank and the L/C Participants, a letter of credit
commission with respect to each Letter of Credit for the period from and
including the date of issuance thereof to but not including the Expiry Date
thereof, computed at the rate of the then Applicable Margin for Eurodollar
Loans per annum on the average daily amount of the undrawn and unexpired amount
of such Letter of Credit. Such commission shall be payable to the L/C
Participants to be shared ratably among them in accordance with their
respective L/C Commitment Percentages. Such commission shall be payable
quarterly in advance on the date of issuance of each Letter of Credit and on
the last day of each March, June, September and December thereafter. Such fee
shall be nonrefundable.
(c) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Bank for such normal and customary
costs and expenses as are incurred or charged by the Issuing Bank in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(d) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Bank and the L/C Participants all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
(e) The fees and commissions described in the preceding
paragraphs (a) and (b) shall be based on a 360 day year. If any amounts in the
preceding paragraphs (a) and (b) shall be payable on a day that is not a
Working Day, such amount shall be extended to the next succeeding Working Day
unless the result of such extension would be to carry such amount into another
calendar month in which event such amount shall be payable on the immediately
preceding Working Day.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Bank on each date on which the Issuing Bank
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by the Issuing Bank for the amount of (i) such draft
so paid and (ii) any taxes, fees, charges or other costs or expenses incurred
by the Issuing Bank in connection with such payment. Each such payment shall be
made to the Issuing Bank at its address for notices specified herein in lawful
money of the United States of America and in immediately available funds.
(b) Unless otherwise notified by the Borrower, each drawing
under a Letter of Credit shall constitute a request by the Borrower to the
Administrative Agent for a borrowing
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pursuant to subsection 2.3 of Revolving Credit Loans which are Alternate Base
Rate Loans in the amount of such drawing, subject to satisfaction of the
conditions set forth in subsection 6.2. The Borrowing Date with respect to such
borrowing shall be the date of such drawing.
(c) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection from the date such amounts become
payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate which would be payable on any outstanding Alternate
Base Rate Loans which were then overdue.
3.6 Obligations Absolute. (a) The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Bank or any
beneficiary of any Letter of Credit.
(b) The Borrower also agrees with the Issuing Bank that the
Issuing Bank shall not be responsible for, and the Borrower's Reimbursement
Obligations under subsection 3.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or (ii) any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or (iii) any claims whatsoever of the Borrower
against any beneficiary of any Letter of Credit or any such transferee.
(c) The Issuing Bank shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the Issuing Bank's gross
negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by
the Issuing Bank under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence of
willful misconduct and in accordance with the standards of care specified in
the Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Bank to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the Issuing Bank shall promptly notify
the Borrower of the date and amount thereof. The responsibility of the Issuing
Bank to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
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SECTION 4. GENERAL PROVISIONS FOR LOANS
4.1 Optional and Mandatory Prepayments. (a) The Borrower may
on the last day of any Interest Period with respect thereto, in the case of
Eurodollar Loans, or at any time and from time to time, in the case of
Alternate Base Rate Loans, prepay the Revolving Credit Loans, in whole or in
part, without premium or penalty, upon at least four Business Days' irrevocable
notice to the Administrative Agent, specifying the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans, Alternate Base
Rate Loans or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein. Partial prepayments shall be in an aggregate principal
amount of $1,000,000 or a whole multiple thereof.
(b) Upon the incurrence or issuance of any Indebtedness
pursuant to subsection 8.2(f)(i), the Borrower shall, without notice or demand,
immediately prepay the Revolving Credit Loans, and the Revolving Credit
Commitments shall be subject to automatic reduction, in an aggregate amount
equal to (i) 50% of the Net Debt Proceeds of such Indebtedness plus (ii) any
additional amount necessary to comply with the requirements of subsections 2.4
and 8.1(d).
(c) If on any date (including any date on which a certificate
of a Responsible Officer of the Borrower is delivered pursuant to subsection
7.2(b)) the sum of the Aggregate Outstanding Revolving Credit Extensions of
Credit plus the aggregate amount of Additional Clawbacks then outstanding plus
the aggregate amount of Permitted L/C Obligations then outstanding exceeds the
lesser of (i) the then aggregate Revolving Credit Commitments or (ii) the then
applicable Incurrence Limitation, then, without notice or demand, the Borrower
shall, on such date, prepay the Revolving Credit Loans in an amount equal to
such excess. The Borrower may, subject to the terms and conditions of this
Agreement, reborrow the amount of any prepayment made under subsection 4.1(c).
(d) The application of any prepayment pursuant to subsections
4.1(b) and (c) shall be made first to Alternate Base Rate Loans and second to
Eurodollar Loans. Each prepayment of the Loans under subsections 4.1(b) and (c)
(other than Alternate Base Rate Loans) shall be accompanied by accrued interest
to the date of such prepayment on the amount prepaid.
4.2 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to Alternate Base Rate
Loans by giving the Administrative Agent at least two Business Days' prior
irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert Alternate
Base Rate Loans to Eurodollar Loans by giving the Administrative Agent at least
three Working Days' prior irrevocable notice of such election. Any such notice
of conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or
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Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans and Alternate Base Rate Loans may be converted as provided
herein, provided that (i) no Revolving Credit Loan may be converted into a
Eurodollar Loan when any Default or Event of Default has occurred and is
continuing and the Administrative Agent has or the Required Lenders have
determined that such a conversion is not appropriate, (ii) any such conversion
may only be made if, after giving effect thereto, subsection 4.3 shall not have
been contravened and (iii) no Revolving Credit Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Revolving Credit
Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection
1.1, of the length of the next Interest Period to be applicable to such
Revolving Credit Loans, provided that no Eurodollar Loan may be continued as
such (i) when any Default or Event of Default has occurred and is continuing
and the Administrative Agent has or the Required Lenders have determined that
such a continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 4.3 would be contravened or (iii) after the date that is one month
prior to the Revolving Credit Termination Date and provided, further, that if
the Borrower shall fail to give any required notice as described above in this
paragraph or if such continuation is not permitted pursuant to the preceding
proviso such Revolving Credit Loans shall be automatically converted to
Alternate Base Rate Loans on the last day of such then expiring Interest
Period.
4.3 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Revolving Credit Loans hereunder and all selections of
Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, (a) the aggregate
principal amount of the Revolving Credit Loans comprising each Tranche shall be
equal to $2,000,000 or a whole multiple of $100,000 in excess thereof, and (b)
the number of Tranches then outstanding shall not exceed eight.
4.4 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
day plus the Applicable Margin.
(b) Each Alternate Base Rate Loan shall bear interest at a
rate per annum equal to the Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) the principal amount of any
Revolving Credit Loan, (ii) any interest payable thereon or (iii) any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is the higher of (A) the
rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2% and (B) the Alternate Base Rate plus 1%,
in each case from the date of such non-payment until such amount is paid in
full (as well after as before judgment).
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(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
4.5 Computation of Interest and Fees. (a) Interest on
Alternate Base Rate Loans, commitment fees and interest on overdue interest,
commitment fees and other amounts payable hereunder shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. Interest on Eurodollar Loans shall be calculated on the basis of a
360-day year for the actual days elapsed. The Administrative Agent shall as
soon as practicable notify the Borrower and the Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from
a change in the Alternate Base Rate or the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the Borrower and the Lenders of the effective date and the amount of
each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 4.4(a).
4.6 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Revolving Credit Loans
during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to
the Borrower and the Lenders as soon as practicable thereafter. If such notice
is given (x) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Alternate Base Rate Loans, (y) any Revolving
Credit Loans that were to have been converted on the first day of such Interest
Period to Eurodollar Loans shall be converted to or continued as Alternate Base
Rate Loans and (z) any outstanding Eurodollar Loans shall be converted, on the
first day of such Interest Period, to Alternate Base Rate Loans. Until such
notice has been withdrawn by the Administrative Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower have the right
to convert Revolving Credit Loans to Eurodollar Loans.
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4.7 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee hereunder and any reduction of the Revolving Credit
Commitments of the Lenders shall be made pro rata according to the respective
Commitment Percentages of the Lenders. Each payment (including each
prepayment) by the Borrower on account of principal of and interest on the
Revolving Credit Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Credit Loans then held by the
Lenders. All payments (including prepayments) to be made by the Borrower
hereunder and under the Revolving Credit Notes, whether on account of
principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders,
at the Administrative Agent's office specified in subsection 11.2, in Dollars
and in immediately available funds. The Administrative Agent shall distribute
such payments to the Lenders promptly upon receipt in like funds as received.
If any payment hereunder (other than payments on the Eurodollar Loans) becomes
due and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension and with respect to payments of fees, such fees accruing during
such extension shall be payable on the next succeeding Business Day. If any
payment on a Eurodollar Loan becomes due and payable on a day other than a
Working Day, the maturity thereof shall be extended to the next succeeding
Working Day unless the result of such extension would be to extend such payment
into another calendar month, in which event such payment shall be made on the
immediately preceding Working Day.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a Borrowing Date that such Lender will not
make the amount that would constitute its Commitment Percentage of the
borrowing on such date available to the Administrative Agent, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such Borrowing Date, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such Borrowing Date, such Lender shall pay to the
Administrative Agent on demand an amount equal to the product of (i) the daily
average Federal Funds Effective Rate during such period, times (ii) the amount
of such Lender's Commitment Percentage of such borrowing, times (iii) a
fraction the numerator of which is the number of days that elapse from and
including such Borrowing Date to the date on which such Lender's Commitment
Percentage of such borrowing shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's Commitment Percentage of such borrowing is not in fact made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall be entitled to recover
such amount with interest thereon at the rate per annum applicable to Alternate
Base Rate Loans hereunder, on demand, from the Borrower.
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4.8 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Alternate Base Rate Loans to Eurodollar
Loans shall forthwith be cancelled and (b) such Lender's Revolving Credit Loans
then outstanding as Eurodollar Loans, if any, shall be converted automatically
to Alternate Base Rate Loans on the respective last days of the then current
Interest Periods with respect to such Revolving Credit Loans or within such
earlier period as required by law. If any such conversion of a Eurodollar Loan
occurs on a day which is not the last day of the then current Interest Period
with respect thereto, the Borrower shall pay to such Lender such amounts, if
any, as may be required pursuant to subsection 4.11.
4.9 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Revolving Credit Note, any Letter of
Credit, any Application or any Eurodollar Loan made by it, or change the
basis of taxation of payments to such Lender in respect thereof (except
for taxes covered by subsection 4.10 and changes in the rate of tax on
the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or issuing or participating in
the Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes
entitled to claim any additional amounts pursuant to this subsection, it shall
promptly notify the Borrower, through the Administrative Agent, of the event by
reason of which it has become so entitled. A certificate as to any additional
amounts payable pursuant to this subsection submitted by such Lender, through
the Administrative Agent, to the Borrower shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Revolving Credit Notes and all other amounts payable
hereunder.
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(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender for such reduction.
4.10 Taxes. (a) All payments made by the Borrower under this
Agreement and the Revolving Credit Notes shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding, in the case of
the Administrative Agent and each Lender, net income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or
such Lender, as the case may be, as a result of a present or former connection
between the jurisdiction of the government or taxing authority imposing such
tax and the Administrative Agent or such Lender (excluding a connection arising
solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or enforced, this
Agreement or the Revolving Credit Notes) or any political subdivision or taxing
authority thereof or therein (all such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions and withholdings being hereinafter called
"Taxes"). If any Taxes are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under the Revolving Credit
Notes, the amounts so payable to the Administrative Agent or such Lender shall
be increased to the extent necessary to yield to the Administrative Agent or
such Lender (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement
and the Revolving Credit Notes. Whenever any Taxes are payable by the Borrower,
as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any Taxes
when due to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Administrative Agent and the Lenders
for any incremental taxes, interest or penalties that may become payable by the
Administrative Agent or any Lender as a result of any such failure. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Revolving Credit Notes and all other amounts payable
hereunder.
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(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative
Agent (A) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor applicable form, as the case may
be, and (B) an Internal Revenue Service Form W-8 or W-9, or successor
applicable form, as the case may be;
(ii) deliver to the Borrower and the Administrative
Agent two further copies of any such form or certification on or before
the date that any such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be requested by
the Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to subsection 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a
Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
4.11 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in payment
when due of the principal amount of or interest on any Eurodollar Loan, (b)
default by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (c)
default by the Borrower in making any prepayment after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (d) the
making of a prepayment of Eurodollar Loans on a day which is not the last day
of an Interest Period with respect thereto, including, without limitation, in
each case, any such loss or expense arising from the reemployment of funds
obtained by it or from fees payable to terminate the deposits from which such
funds were obtained. This covenant shall survive the termination of this
Agreement and the payment of the Revolving Credit Notes and all other amounts
payable hereunder.
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4.12 Lenders Obligation to Mitigate. Each Lender agrees that,
as promptly as practicable after it becomes aware that it has been or will be
affected by the occurrence of an event or the existence of a condition
described under subsection 4.8, 4.9(a) or 4.10(a), it will, to the extent not
inconsistent with such Lender's internal policies, use its best efforts (a) to
provide written notice to the Borrower describing such condition and the
anticipated effect thereof and (b) to make, fund or maintain the affected
Eurodollar Loans of such Lender through another lending office of such Lender
if as a result thereof the additional moneys which would otherwise be required
to be paid in respect of such Revolving Credit Loans pursuant to subsection
4.8, 4.9 or 4.10(a) would be materially reduced or the illegality or other
adverse circumstances which would otherwise require such payment pursuant to
subsection 4.8, 4.9(a) or 4.10(a) would cease to exist and if, as determined by
such Lender, in its sole discretion, the making, funding or maintaining of such
Revolving Credit Loans through such other lending office would not otherwise
adversely affect such Revolving Credit Loans or such Lender. The Borrower
hereby agrees to pay all reasonable expenses incurred by any Lender in
utilizing another lending office of such Lender pursuant to this subsection
4.12.
4.13 Certain Permitted Transactions. Notwithstanding any
provision in the Loan Documents (but subject to subsection 8.10), the Borrower
and its Subsidiaries shall have the right to consummate any of the transactions
described in subsection 8.6(c).
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Co-Arranger and the
Lenders to enter into this Agreement and to make the Revolving Credit Loans and
issue or participate in the Letters of Credit, the Borrower hereby represents
and warrants to the Administrative Agent, the Co-Arranger and each Lender that:
5.1 Financial Condition. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 1995, and the
related consolidated statement of operations and of cash flows for the fiscal
year ended December 31, 1995, reported on by Price Waterhouse, copies of which
have heretofore been furnished to each Lender, present fairly the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at
each such date, and the consolidated results of their operations and their
consolidated cash flows for the year then ended. The consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at September 30, 1996 and
the related consolidated statements of operations and of cash flows for the
three and nine months ended September 30, 1996, copies of which have heretofore
been furnished to each Lender, present fairly the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as at each such
date, and the consolidated results of their operations and their consolidated
cash flows for the three- and nine-month periods then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants and as disclosed therein and,
with respect to the September 30, 1996 financial statements, for the absence of
footnotes and year-end adjustments). Except as set forth on Schedule 5.1,
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neither the Borrower nor any of its consolidated Subsidiaries had, at the date
of the most recent balance sheet referred to above, any material Guarantee
Obligation, contingent liability or liability for taxes, or any long-term lease
or unusual forward or long-term commitment, including, without limitation, any
interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto. Except as set
forth on Schedule 5.1, during the period from September 30, 1996 to and
including the Closing Date there has been no sale, transfer or other
disposition by the Borrower or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Borrower
and its consolidated Subsidiaries at September 30, 1996.
5.2 No Change. Since September 30, 1996 (a) there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect and (b) no dividends or other distributions have been
declared, paid or made upon the Capital Stock of the Borrower except as
permitted by subsection 8.7, nor has any of the Capital Stock of the Borrower
been redeemed, retired, purchased or otherwise acquired for value by the
Borrower or any of its Subsidiaries.
5.3 Existence; Compliance with Law. Each of the Borrower and
its Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has the power and
authority, and the legal right, to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation, limited
partnership or limited liability company, as the case may be, and, where
applicable, in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations. (a) The
Borrower has the power and authority, and the legal right, to make, deliver and
perform this Agreement, the Revolving Credit Notes and the other Loan Documents
to which it is a party and to borrow hereunder and has taken all necessary
action to authorize the borrowings on the terms and conditions of this
Agreement and the Revolving Credit Notes and to authorize the execution,
delivery and performance of this Agreement, the Revolving Credit Notes and the
other Loan Documents to which it is a party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or the Revolving Credit Notes or the
Applications. This Agreement has been, and each Revolving Credit Note and the
Applications will be, duly executed and delivered on behalf of the Borrower.
This Agreement constitutes, and each Revolving Credit Note and each other Loan
Document to which the Borrower is a party when executed and delivered will
constitute, a legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency,
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reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(b) Each of the Subsidiary Guarantors has the power and
authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party and has taken all necessary action to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents to which such
Subsidiary Guarantor is a party. Each of the Loan Documents to which such
Subsidiary Guarantor is a party will be duly executed and delivered on behalf
of such Subsidiary Guarantor. Each Loan Document to which such Subsidiary
Guarantor is a party will, when executed and delivered, constitute a legal,
valid and binding obligation of such Subsidiary Guarantor enforceable against
such Subsidiary Guarantor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
5.5 No Legal Bar. The execution, delivery and performance of
this Agreement, the Revolving Credit Notes and the other Loan Documents, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of any Loan Party, or, to the best
knowledge of the Borrower, any Joint Venture any of the interests in which is
owned by a Restricted Subsidiary, and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation.
5.6 No Material Litigation. Except as set forth on Schedule
5.6, no litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries, or, to the
best knowledge of the Borrower, any Joint Venture any of the interests in which
is owned by a Restricted Subsidiary, or against any of its or their respective
properties or revenues (a) with respect to this Agreement, the Revolving Credit
Notes or any of the other Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected to
have a Material Adverse Effect.
5.7 No Default. No Loan Party, and, to the best knowledge of
the Borrower, no Joint Venture any of the interests in which is owned by a
Restricted Subsidiary, is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
5.8 Ownership of Property; Liens. Each of the Borrower and its
Restricted Subsidiaries has good record and marketable title in fee simple to,
or a valid leasehold interest in, all its real property necessary for its
operations as then conducted, and good title
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to, or a valid leasehold interest in, all its other property, and none of such
property necessary for its operations as then conducted is subject to any Lien
except as permitted by subsection 8.3.
5.9 Intellectual Property. The Borrower and each of its
Restricted Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, technology, know-how and processes necessary for the
conduct of its business as currently conducted except for those the failure to
own or license which could not have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does the
Borrower know of any valid basis for any such claim. The use of such
Intellectual Property by the Borrower and its Restricted Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, do not have a Material Adverse Effect.
5.10 No Burdensome Restrictions. The Borrower, in good faith,
does not believe any Requirement of Law or Contractual Obligation of the
Borrower or any of its Restricted Subsidiaries could reasonably be expected to
have a Material Adverse Effect.
5.11 Taxes. Each of the Borrower and its Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the Borrower,
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no claim is being asserted,
with respect to any such tax, fee or other charge.
5.12 Federal Regulations. No part of the proceeds of any
Revolving Credit Loans will be used for "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of such Board of Governors. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said Regulation
U.
5.13 ERISA. No Loan Party has or is a party to, or has any
matured or contingent obligations under, any Plans.
5.14 Investment Company Act; Other Regulations. The Borrower is
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject
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to regulation under any Federal or State statute or regulation which limits
its ability to incur Indebtedness.
5.15 Subsidiaries. The Persons set forth on Schedule 5.15
constitute all of the Subsidiaries of the Borrower, and all Joint Ventures in
which the Borrower owns any interest, as of the Closing Date, and the
percentage of the equity interests owned by the Borrower in each such Person as
of such date. Each of the Subsidiaries listed on Schedule 5.15 is as of the
Closing Date a Restricted Subsidiary.
5.16 Purpose of Revolving Credit Loans, Letters of Credit. The
proceeds of the Revolving Credit Loans shall be used by the Borrower (a) in an
amount not to exceed $7,500,000 at any time outstanding, for Distribution
Loans, (b) to refinance Indebtedness under the Existing Credit Agreement and
(c) for general corporate purposes. The Letters of Credit shall be used for the
purposes described in subsection 3.1(b).
5.17 Environmental Matters. Except as set forth on Schedule
5.17:
(a) To the best knowledge of the Borrower, the Properties do
not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i) constitute
or constituted a violation of, or (ii) give rise to liability under, any
Environmental Law, except in either case insofar as such violation or
liability, or any aggregation thereof, could not reasonably be expected
to result in the payment of a Material Environmental Amount.
(b) To the best knowledge of the Borrower, the Properties and
all operations at the Properties are in compliance, and have in the
period commencing six months prior to the date hereof been in
compliance, in all material respects with all applicable Environmental
Laws, and there is no contamination at, under or about the Properties or
violation of any Environmental Law with respect to the Properties or the
business operated by the Borrower or any of its Subsidiaries or any
Joint Venture (the "Business") which could materially interfere with the
continued operation of any material Property or which could reasonably
be expected to have a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries nor, to
the best knowledge of the Borrower or any Joint Venture, has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business,
nor does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened except insofar as such
notice or threatened notice, or any aggregation thereof, does not
involve a matter or matters that is or could reasonably be expected to
result in the payment of a Material Environmental Amount.
(d) To the best knowledge of the Borrower, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of,
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or in a manner or to a location which could reasonably be expected to
give rise to liability under, any Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or
disposed of at, on or under any of the Properties in violation of, or in
a manner that could reasonably be expected to give rise to liability
under, any applicable Environmental Law except insofar as any such
violation or liability referred to in this paragraph, or any aggregation
thereof, could not reasonably be expected to result in the payment of a
Material Environmental Amount.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Borrower, threatened,
under any Environmental Law to which the Borrower or any Subsidiary, or,
to the best knowledge of the Borrower, any Joint Venture, is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business except insofar as such
proceeding, action, decree, order or other requirement, or any
aggregation thereof, could not reasonably be expected to result in the
payment of a Material Environmental Amount.
(f) To the best knowledge of the Borrower, there has been no
release or threat of release of Materials of Environmental Concern at or
from the Properties, or arising from or related to the operations of the
Borrower or any Subsidiary or any Joint Venture, in connection with the
Properties or otherwise in connection with the Business, in violation of
or in amounts or in a manner that could give rise to liability under
Environmental Laws except insofar as any such violation or liability
referred to in this paragraph, or any aggregation thereof, could not
reasonably be expected to result in the payment of a Material
Environmental Amount.
(g) There are no Liens arising under or pursuant to any
Environmental Laws on any of the real properties or properties owned or
leased by any Loan Party, and no government actions have been taken or
are in process which could subject any of such properties to such Liens
and no Loan Party would be required to place any notice or restriction
relating to the presence of Hazardous Materials at any properties owned
by it in any deed to such properties.
(h) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or which are in
the possession of any Loan Party in relation to any properties or
facility now or previously owned or leased by any Loan Party which have
not been made available to the Lenders.
5.18 Accuracy and Completeness of Information. The factual
statements contained in the financial statements (other than financial
projections) referred to in subsection 5.1, the Loan Documents, and any other
certificates or documents furnished or to be furnished (but only, with respect
to documents furnished after the Closing Date, documents provided pursuant to
subsection 7.2(d)) to the Administrative Agent, the Co-Arranger
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or the Lenders from time to time in connection with this Agreement, taken as a
whole, do not and will not, to the knowledge of the Borrower, as of the date
when made, contain any untrue statement of a material fact or omit to state a
material fact (other than omissions that pertain to matters of a general
economic nature, matters generally known to the Administrative Agent or matters
of public knowledge that generally affect any of the industry segments included
in the Business of the Borrower, its Subsidiaries or any Joint Venture)
necessary in order to make the statements contained therein not misleading in
light of the circumstances in which the same were made, such knowledge
qualification being given only with respect to factual statements made by
Persons other than the Borrower, and all financial projections contained in any
such document or certificate have been prepared in good faith based upon
assumptions believed by the Borrower to be reasonable.
5.19 Security Documents. The Pledge Agreements are each
effective to create in favor of the Administrative Agent, for the ratable
benefit of the Lenders, a legal, valid and enforceable security interest in the
respective Interests described therein and proceeds thereof, and the Pledge
Agreements each constitute a fully perfected first Lien on, and security
interest in, all right, title and interest of the Borrower and Leviathan,
respectively, in such Interests and Pledged Certificates and in proceeds
thereof superior in right to any other Person. Each Security Agreement is
effective to create in favor of the Administrative Agent, for the ratable
benefit of the Lenders, a legal, valid and enforceable security interest in the
respective collateral described therein and proceeds thereof, and the Security
Agreements constitute fully perfected, first priority Liens on, and security
interests in (subject to the Liens permitted pursuant to subsection 8.3), all
right, title and interest of the Borrower and the Subsidiary Guarantors in such
collateral and the proceeds thereof superior in right to any other Person other
than Liens permitted hereby.
5.20 Pipeline Partnership Agreements, Management Agreement,
etc. (a) As of the Closing Date, the Administrative Agent has received, with a
copy for each Lender, a complete copy of each of the Pipeline Partnership
Agreements of each Joint Venture any of the interests in which is owned by a
Restricted Subsidiary and all amendments thereto, waivers relating thereto and
other side letters or agreements affecting the terms thereof.
(b) As of the Closing Date, the Administrative Agent has
received a complete copy of the Partnership Agreement, the Management Agreement
and each credit agreement to which any Joint Venture any of the interests in
which is owned by a Restricted Subsidiary is a party (including all exhibits,
schedules and disclosure letters referred to therein or delivered pursuant
thereto, if any) and all amendments thereto, waivers, relating thereto and
other side letters or agreements affecting the terms thereof (collectively,
such agreements and documents described in paragraphs (a) and (b) of this
subsection 5.20 are referred to as the "Documents"). None of the Documents has
been amended or supplemented, nor have any of the provisions thereof been
waived, except (i) pursuant to a written agreement or instrument which has
heretofore been consented to in writing by the Required Lenders or (ii) in
accordance with the provisions of this Agreement.
(c) Except as disclosed on Schedule 5.6, each of the Documents
has been duly executed and delivered by each of the Borrower and its
Subsidiaries party thereto and, to the
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Borrower's knowledge, by each of the other parties thereto, is in full force
and effect and constitutes a legal, valid and binding enforceable obligation of
each of the Borrower and its Subsidiaries party thereto and, to the Borrower's
knowledge, each other party thereto. None of the Borrower or any of its
Subsidiaries party to any of the Documents, is in default in the performance of
any of its obligations thereunder in any material respect which would give any
other party to such Document a right to accelerate payment of amounts due
under, or terminate, such Document.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extensions of Credit. The agreement
of each Lender to make the initial extension of credit requested to be made by
it is subject to the satisfaction, immediately prior to or concurrently with
the making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized
officer of the Borrower, with a counterpart for each Lender, (ii) for
the account of each Lender, a Revolving Credit Note conforming to the
requirements hereof and executed and delivered by a duly authorized
officer of the Borrower, (iii) respective Supplements to the Borrower
Pledge Agreement and Leviathan Pledge Agreement (LLC), executed and
delivered by a duly authorized officer of the Borrower and Leviathan,
respectively, with a counterpart or a conformed copy for each Lender,
(iv) an Addendum to Subsidiaries Guarantees, executed and delivered by a
duly authorized officer of Sailfish, with a counterpart or a conformed
copy for each Lender, (v) a Supplement to Subsidiary Security Agreement,
executed and delivered by a duly authorized officer of Sailfish, with a
counterpart or a conformed copy for each Lender, and (vi) the
Confirmation of Guarantees and Security Documents, executed and
delivered by a duly authorized officer of each Loan Party thereto, with
a counterpart or a conformed copy for each Lender.
(b) Related Agreements. The Administrative Agent shall have
received true and correct copies, certified as to authenticity by the
Borrower, of the Partnership Agreement, the certificate of limited
partnership of the Borrower, the Management Agreement, the limited
liability company agreement, or certificate of incorporation and
by-laws, as the case may be, of each Subsidiary, the Pipeline
Partnership Agreement of each Joint Venture and each agreement
evidencing, securing or under which is issued Indebtedness of any of the
Joint Ventures under their respective credit facilities, and such other
documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any debt
instrument, security agreement or other material contract to which any
Joint Venture may be a party.
(c) Borrowing Certificate. The Administrative Agent shall have
received with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date,
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substantially in the form of Exhibit L, with appropriate insertions and
attachments, satisfactory in form and substance to the Administrative
Agent, executed by the Chief Executive Officer, Chief Operating Officer,
Chief Financial Officer, President, Treasurer or any Vice President of
the Borrower and the Secretary or any Assistant Secretary of the
Borrower.
(d) Partnership Proceedings of the Borrower. The
Administrative Agent shall have received, with a counterpart for each
Lender, a copy of the resolutions, in form and substance satisfactory to
the Administrative Agent, of the Board of Directors of the General
Partner authorizing on behalf of the Borrower (i) the execution,
delivery and performance of this Agreement, the Revolving Credit Notes
and the other Loan Documents to which the Borrower is a party, (ii) the
borrowings contemplated hereunder and (iii) the granting by the Borrower
of the Liens created pursuant to the Security Documents to which it is a
party, certified by the Secretary or an Assistant Secretary of the
General Partner on behalf of the Borrower as of the Closing Date, which
certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded.
(e) Borrower Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate
of the Borrower, dated the Closing Date, as to the incumbency and
signature of the officers of the Borrower executing any Loan Document,
satisfactory in form and substance to the Administrative Agent, executed
by the Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, President, Treasurer or any Vice President and the Secretary or
any Assistant Secretary of the Borrower.
(f) Corporate Proceedings of Leviathan. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy of
the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of Leviathan authorizing
(i) the execution, delivery and performance of the Loan Documents to
which Leviathan is a party and (ii) the granting by it of the Liens
created pursuant to the Security Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of Leviathan as of
the Closing Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(g) Leviathan Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate
of Leviathan, dated the Closing Date, as to the incumbency and signature
of the officers of Leviathan executing any Loan Document, satisfactory
in form and substance to the Administrative Agent, executed by the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Treasurer or any Vice President and the Secretary or any
Assistant Secretary of Leviathan.
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(h) Proceedings of Subsidiaries. The Administrative Agent
shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Managing Member or the Board of Directors, as applicable,
of each Subsidiary of the Borrower which is a party to a Loan Document
authorizing (i) the execution, delivery and performance of the Loan
Documents to which it is a party and (ii) the granting by it of the
Liens created pursuant to the Security Documents to which it is a party,
certified by the Secretary or an Assistant Secretary of such Subsidiary
as of the Closing Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded.
(i) Subsidiary Incumbency Certificates. The Administrative
Agent shall have received, with a counterpart for each Lender, a
certificate of each Subsidiary of the Borrower which is a Loan Party,
dated the Closing Date, as to the incumbency and signature of the
officers of such Subsidiary executing any Loan Document, satisfactory in
form and substance to the Administrative Agent, executed by the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Treasurer or any Vice President and the Secretary or any
Assistant Secretary of each such Subsidiary.
(j) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies
of the certificate of incorporation and by-laws of Leviathan and the
certificate of formation or certificate of incorporation, as the case
may be, of each Subsidiary of the Borrower, certified as of the Closing
Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of Leviathan or such Subsidiary, as the case may be
(or if such document has been previously delivered to a Lender under the
Existing Credit Agreement, a bring-down certificate that such document
since its delivery under the Existing Credit Agreement has not been
amended, supplemented or otherwise modified).
(k) Consents, Licenses and Approvals. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate
of a Responsible Officer of the Borrower (i) attaching copies of all
consents, authorizations and filings referred to in subsection 5.4, and
(ii) stating that such consents, licenses and filings are in full force
and effect, and each such consent, authorization and filing shall be in
form and substance satisfactory to the Administrative Agent.
(l) Fees. The Administrative Agent, the Co-Arranger and each
Lender shall have received the fees to be received on the Closing Date
as separately agreed to between each of them and the Borrower.
(m) Legal Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, the executed legal opinion
of Akin, Gump, Strauss,
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▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel to the Borrower and the other Loan
Parties, in form and substance reasonably satisfactory to the Lenders.
(n) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates, if any, representing the shares
and limited liability company interests pledged pursuant to each of the
Pledge Agreements, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the
pledgor thereof. Each Instruction to Register Pledge referred to in such
Pledge Agreements shall have been delivered to the Borrower and its
Subsidiaries, and each Initial Transaction Statement referred to in such
Pledge Agreements shall have been delivered to the Administrative Agent,
as are required by any of the Pledge Agreements.
(o) Actions to Perfect Liens. The Administrative Agent shall
have received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on form
UCC-1 and amendments to financing statements on form UCC-3, necessary
or, in the opinion of the Administrative Agent, desirable to perfect the
Liens created by the Security Documents shall have been completed.
(p) Insurance. (i) The Administrative Agent shall have
received evidence in form and substance satisfactory to it and all of
the requirements of subsection 7.5 shall have been satisfied.
(ii) The Lenders shall have received a schedule detailing, and
shall be satisfied with, the amount, coverage and carriers of the
insurance carried by the Borrower, the Restricted Subsidiaries and
Leviathan.
(q) Good Standing Certificates. The Administrative Agent shall
have received copies of certificates dated as of a recent date from the
Secretary of State or other appropriate authority of such jurisdiction,
evidencing the good standing of the Borrower and each other Loan Party
in each state where the ownership, lease or operation of property or the
conduct of business requires it to qualify as a foreign corporation,
partnership or limited liability company, as the case may be.
(r) No Violation. The consummation of the transactions
contemplated hereby shall not contravene, violate or conflict with, nor
involve any Lender in any violation of, any Requirement of Law.
(s) Litigation, Etc. No suit, action, investigation, inquiry
or other proceeding (including, without limitation, the enactment or
promulgation of a statute or rule) by or before any arbitrator or any
Governmental Authority shall be pending and no preliminary or permanent
injunction or order by a state or federal court shall have been entered
(i) in connection with any Loan
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Document or any of the transactions contemplated hereby or thereby or
(ii) which, in any such case could have a Material Adverse Effect.
(t) Consents. All material governmental and third party
approvals (or arrangements satisfactory to the Lenders in lieu of such
approvals) necessary or advisable in connection with the transactions
and financings contemplated hereby and by the other Loan Documents and
the continuing operations of the Borrower, the Subsidiaries and the
Joint Ventures (including, without limitation, any consent of other
partners of and lenders to any Joint Venture) shall have been obtained
and be in full force and effect.
(u) Material Adverse Effect. No event which has or could have
a Material Adverse Effect shall have occurred.
(v) No Defaults. There shall exist no event of default (or
condition which would constitute an event of default with the giving of
notice or the passage of time) under any material Capital Stock,
financing agreements, lease agreements, partnership agreements or other
material contracts of the Borrower or the Subsidiaries or, to the
knowledge of the Borrower, any Joint Venture.
(w) Tax and Labor Matters. The Lenders shall be satisfied with
the status of all labor, tax, employee benefit and health and safety
matters involving the Borrower and the Restricted Subsidiaries.
(x) Financial Statements. The Administrative Agent shall have
received, with a counterpart for each Lender, complete copies of the
financial statements described in subsection 5.1.
(y) Commodity Hedging Program. The Administrative Agent shall
have received, with a counterpart for each Lender, a report on the
status of the Commodity Hedging Programs of the Borrower covering the
Borrower's interest in production from the Subject Properties in amounts
and for periods reasonably satisfactory to the Administrative Agent.
(z) Accrued Interest, Fees and Term Loans. The Borrower shall
have paid to the Administrative Agent all unpaid interest, commitment
fees and letter of credit commissions accrued and all term loans
outstanding under the Existing Credit Agreement through the Closing
Date.
(aa) Reallocation of Revolving Credit Loans. The Lenders shall
have reallocated the Revolving Credit Loans outstanding under this
Agreement immediately prior to the Closing Date as directed by the
Administrative Agent in order to reflect the Revolving Credit
Commitments under this Agreement.
(bb) Additional Matters. All corporate, company, partnership
and other proceedings, and all documents, instruments and other legal
matters in connection
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with the transactions contemplated by this Agreement and the other Loan
Documents shall be reasonably satisfactory in form and substance to the
Lenders, and the Lenders shall have received such other documents and
legal opinions in respect of any aspect or consequence of the
transactions contemplated hereby or thereby as any of them shall
reasonably request.
6.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit (including the renewal or extension
of a Letter of Credit) requested to be made by it on any date (including,
without limitation, its initial extension of credit) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and the other Loan
Parties in or pursuant to the Loan Documents shall be true and correct
in all material respects on and as of such date as if made on and as of
such date (unless such representations and warranties are stated to
relate to a specific earlier date, in which case such representations
and warranties shall be true and correct in all material respects as of
such earlier date).
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Additional Matters. The Administrative Agent shall have
received such other documents and legal opinions in respect of any
aspect or consequence of the transactions contemplated hereby or by the
other Loan Documents as it shall reasonably request.
Each borrowing by the Borrower hereunder, and each issuance or renewal or
extension of a Letter of Credit hereunder, shall constitute a representation
and warranty by the Borrower as of the date of such extension of credit or such
conversion that the conditions contained in this subsection 6.2 have been
satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments remain in effect, any Revolving Credit Note or any Letter of Credit
remains outstanding and unpaid or any other amount is owing to any Lender, the
Administrative Agent or the Co-Arranger hereunder, the Borrower shall and
(except in the case of delivery of financial information, reports and notices)
shall cause each of its Restricted Subsidiaries and, with respect to
subsections 7.3 and 7.11, each of its Unrestricted Subsidiaries, to:
7.1 Financial Statements. Furnish to the Administrative Agent,
with a copy for each Lender:
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(a) as soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and retained earnings and of cash flows for such
year, setting forth in each case in comparative form the figures for the
previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of
the audit, by Price Waterhouse or other independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated and
consolidating balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated and consolidating statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter, setting forth in each case in comparative form
the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects when considered in relation
to the consolidated and consolidating financial statements of the
Borrower and its consolidated Subsidiaries (subject to normal year-end
audit adjustments);
(c) concurrently with the delivery of the financial statements
for any fiscal year described in paragraph (a) of this subsection 7.1,
the unaudited consolidating balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year and the
related unaudited consolidating statements of income and retained
earnings and of cash flows of the Borrower and its consolidated
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects when
considered in relation to the consolidating financial statements of the
Borrower and its consolidated Subsidiaries;
(d) as soon as available, a copy of the consolidated balance
sheet of DeepTech and its consolidated Subsidiaries as at the end of
each fiscal year of DeepTech and the related consolidated statements of
income and retained earnings and of cash flows for such year;
(e) as soon as available, the unaudited consolidated balance
sheet of DeepTech and its consolidated Subsidiaries as at the end of
each of the first three quarterly periods of each fiscal year of
DeepTech, and the related unaudited consolidated statements of income
and retained earnings and of cash flows of DeepTech and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year through
the end of such quarter;
(f) as soon as available, but in any event within 120 days
after the end of each fiscal year of each material Joint Venture any of
the interests in which is owned by a Restricted Subsidiary, a copy of
the audited balance sheet of such Joint Venture,
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as at the end of such year and the related unaudited statements of
income and retained earnings and of cash flows of such Joint Venture,
for such year, setting forth in each case in a comparative form the
figures for the previous year, reported on without a "going concern" or
like qualification or exception, or qualification arising out of the
scope of the audit, by independent certified public accountants of
nationally recognized standing; and
(g) concurrently with the delivery of the financial statements
referred to in subsection 7.1(b), the unaudited balance sheet of each
Joint Venture any of the interests in which is owned by a Restricted
Subsidiary, as at the end of each such quarter of such Joint Venture,
and the related unaudited consolidated statements of income and retained
earnings and of cash flows of such Joint Venture, for such month and the
portion of the fiscal year through the end of such month, setting forth
in each case in comparative form the figures for the previous year, in
each case received by the Borrower or any of its Subsidiaries during
such fiscal quarter;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and (except for the
financial statements of any Joint Venture) in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein and, with respect to unaudited interim financial statements,
for the absence of footnotes and year-end adjustments).
7.2 Certificates; Other Information. Furnish to the
Administrative Agent, with a copy for each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default relating to accounting
issues, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a certificate of a
Responsible Officer of the Borrower, (i) stating that, to the best of
such Officer's knowledge, the Borrower and its Subsidiaries during such
period have observed or performed all of their respective covenants and
other agreements, and satisfied every condition, contained in this
Agreement and in the Revolving Credit Notes and the other Loan Documents
to be observed, performed or satisfied by them, and that such Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate, and (ii) setting forth (x) the ratio of
Consolidated Total Indebtedness of the Borrower at the last day of the
most recent fiscal quarter covered by such certificate to Consolidated
EBITDA for the Calculation Period ending on the last day of such fiscal
quarter and (y) the Incurrence Limitation as of the last day of the most
recent fiscal quarter covered by such certificate;
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(c) not later than thirty days prior to the end of each fiscal
year of the Borrower, a copy of the projections by the Borrower of the
operating budget and cash flow budget of the Borrower for the succeeding
fiscal year, such projections to be accompanied by a certificate of a
Responsible Officer to the effect that such projections have been
prepared on the basis of sound financial planning practice and that such
Officer has no reason to believe they are incorrect or misleading in any
material respect;
(d) within five days after the same are sent, copies of all
financial statements and reports which the Borrower sends to the holders
of its Capital Stock, and within five days after the same are filed,
copies of all financial statements and reports which the Borrower may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority;
(e) upon the request of any Lender, and to the extent the same
have been received by the Borrower or any of its Subsidiaries, a copy of
the projections by each Joint Venture any of the interests in which is
owned by a Restricted Subsidiary, as the case may be, of the operating
budget and cash flow budget of such Joint Venture for the succeeding
fiscal year;
(f) upon the request of any Lender, and to the extent the same
have been received by the Borrower or any of its Subsidiaries, within
thirty days of the end of each of the quarterly periods of each fiscal
year of each Joint Venture any of the interests in which is owned by a
Restricted Subsidiary, a list of all shippers that have used such Joint
Venture during such quarterly period and the volumes and revenues
attributable to each such shipper;
(g) upon the request of any Lender, and to the extent the same
have been received by the Borrower or any of its Subsidiaries, copies of
all compliance certificates delivered by each Joint Venture any of the
interests in which is owned by a Restricted Subsidiary, pursuant to any
credit agreement to which such Joint Venture is a party;
(h) upon the request of any Lender, within five days after the
same are received by the Borrower, a copy of any FERC Form 2 for any
Joint Venture any of the interests in which is owned by a Restricted
Subsidiary;
(i) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate signed by the President,
Chief Executive Officer, Chief Operating Officer or Chief Financial
Officer of the Borrower in the form of Exhibit N hereto. Further, if
requested by the Required Lenders (by notice to the Administrative
Agent, which will give notice of such request to the Borrower and each
Lender), the Borrower shall permit and cooperate with an environmental
and safety review made in connection with the operations of Borrower's
properties once during each fiscal year of the Borrower, by independent
environmental consultants chosen by the Borrower and acceptable to the
Required Lenders, which review shall,
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if requested by such Lender or Lenders, be arranged and supervised by
environmental legal counsel for the Lenders, all at the Borrower's cost
and expense. The consultant shall render a verbal or written report, as
specified by the Lenders, based upon such review, at the Borrower's cost
and expense. Notwithstanding anything in this paragraph (i) to the
contrary, the maximum amount of cost and expense for which the Borrower
shall be responsible with respect to any such review in any fiscal year
shall be $25,000;
(j) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a Reserve Report, at the Borrower's
cost and expense;
(k) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a statement of production
by blocks of oil and gas setting forth on a monthly basis average sales
price received for the Subject Properties;
(l) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a throughput report
setting forth the throughputs of each pipeline owned by the Borrower;
and
(m) promptly, such additional financial and other information
concerning any Loan Party, any Unrestricted Subsidiary or any Joint
Venture as any Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be, and except
where the failure to so pay, discharge or satisfy such obligations could not
reasonably be expected to have a Material Adverse Effect.
7.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event fire, casualty, public liability and product liability)
as are usually insured against in the same general area by companies engaged in
the same or a similar business; and furnish to each Lender, upon
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written request, full information as to the insurance carried. Upon demand by
any Lender (by notice to the Administrative Agent, which shall give notice of
such demand to the Borrower and each Lender) any insurance policies covering
Collateral shall be endorsed to provide that such policies may not be cancelled
or reduced or affected in any material manner for any reason without 15 days
prior notice to the Lenders. The Borrower shall, and shall cause each of its
Restricted Subsidiaries to, at all times maintain liability and other insurance
in accordance with and in the amounts set forth on the schedule delivered
pursuant to subsection 6.1(p)(ii), which insurance shall be by financially
sound and reputable insurers.
7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and accounts in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of any Lender to visit and inspect any of its properties
and examine and make abstracts from any of its books and records at any
reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Restricted Subsidiaries with officers and employees of the
Borrower and its Restricted Subsidiaries and with its independent certified
public accountants.
7.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any
of its Subsidiaries in which the amount involved is $5,000,000 or more
and not covered by insurance or in which injunctive or similar relief is
sought;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan; and
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(e) any development or event which could reasonably be
expected to have a Material Adverse Effect or cause the incurrence of an
environmental liability in excess of the Material Environmental Amount.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
7.8 Environmental Laws.
(a) Comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain
and comply with and maintain, and ensure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable
Environmental Laws except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws
except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings could not
reasonably be expected to have a Material Adverse Effect; and
(c) Defend, indemnify and hold harmless the Administrative
Agent, the Co-Arranger and the Lenders, and their respective employees,
agents, officers and directors, from and against any and all claims,
demands, penalties, fines, liabilities, settlements and damages, and
reasonable costs and expenses, of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating
to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Borrower, any of
its Subsidiaries or the Properties, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing arise out of the gross
negligence or willful misconduct of the party seeking indemnification
therefor. The agreements in this paragraph shall survive repayment of
the Revolving Credit Notes and all other amounts payable hereunder.
7.9 Maintenance of Liens of the Security Documents. Promptly,
upon the request of the Administrative Agent, at the Borrower's expense,
execute, acknowledge and deliver, or cause the execution, acknowledgement and
delivery of, and thereafter register, file or record, or cause to be
registered, filed or recorded, in an appropriate governmental office, any
document or instrument supplemental to or confirmatory of the Security
Documents or otherwise deemed by the Administrative Agent necessary or
desirable for the continued validity, perfection and priority of the Liens on
the collateral covered thereby.
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7.10 Pledge of After-Acquired Property. With respect to any
right, title or interest of any Loan Party in any Capital Stock or other
property of a type subject to the Security Documents and acquired after the
Closing Date, promptly grant or cause to be granted to the Administrative
Agent, for the benefit of the Lenders, a first Lien of record on all such
Capital Stock and property (other than such Capital Stock and property subject
to (i) prior Liens in existence at the time of acquisition thereof and not
created in anticipation of such acquisition, in which case the Lien of the
Lenders shall be of such priority as is permitted by such prior Lien and (ii)
other Liens that are expressly permitted by this Agreement), upon terms
substantially the same as those set forth in the Security Documents, and
satisfy the conditions with respect thereto set forth in subsection 6.1. The
Borrower, at its own expense, shall execute, acknowledge and deliver, or cause
its Restricted Subsidiaries to execute, acknowledge and deliver, and thereafter
register, file or record, or cause its Restricted Subsidiaries to register,
file or record, in an appropriate governmental office, any document or
instrument deemed by the Administrative Agent to be necessary or desirable for
the creation and perfection of the foregoing Liens and deliver Uniform
Commercial Code searches in jurisdictions requested by the Administrative Agent
with respect to such Capital Stock and other property and legal opinions
requested by the Administrative Agent and shall pay, or cause to be paid, all
taxes and fees related to such registration, filing or recording.
7.11 Agreements Respecting Unrestricted Subsidiaries. (a)
Operate each Unrestricted Subsidiary in such a manner as to make it apparent to
all creditors of such Unrestricted Subsidiary that such Unrestricted Subsidiary
is a legal entity separate and distinct from the Borrower or any Restricted
Subsidiary and as such is solely responsible for its debts, and such manner
shall include, but shall not be limited to, the maintenance of a separate board
of directors for such Unrestricted Subsidiary.
(b) In connection with any Indebtedness, Guarantee Obligations
or other obligations incurred by each Unrestricted Subsidiary, (i) incur such
Indebtedness only on a basis which does not permit, allow or provide for
recourse to the Borrower or any Restricted Subsidiary, and (ii) incur any such
Indebtedness, Guarantee Obligations or other obligations in excess of $500,000
only under a loan agreement, note, lease, instrument or other contractual
obligation that expressly states that such Indebtedness is being incurred by
such Unrestricted Subsidiary on a basis which is non-recourse to the Borrower
and its Restricted Subsidiaries, provided that no such agreement, note, lease,
instrument or other Obligation shall be required to include such statement if
such agreement, note, lease, instrument or other obligation was in effect on
the date such Subsidiary became an Unrestricted Subsidiary.
(c) If any Subsidiary which owns an interest in Stingray,
HIOS, UTOS, Viosca ▇▇▇▇▇ (a "Redesignated Subsidiary") is designated as an
Unrestricted Subsidiary by the Borrower after the date hereof as contemplated
in clause (a) of the definition of "Unrestricted Subsidiary", cause such
Redesignated Subsidiary to immediately repay or redeem for cash at par all
capital contributions, loans or other investments made by the Borrower and the
Restricted Subsidiaries in or to such Redesignated Subsidiary with the proceeds
of Revolving Credit Loans during the six months immediately prior to such
designation, such repayment or redemption to be accompanied by a certificate of
the chief
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financial officer of the Borrower showing in reasonable detail the calculation
of the amount of such investments and the amount of such repayment or
redemption.
7.12 Commodity Hedging Programs. Enter into Commodity Hedging
Programs covering the Borrower's interest in production of the Subject
Properties in amounts and for periods reasonably satisfactory to the
Administrative Agent.
7.13 Pipeline Partnership Agreements, Management Agreement,
etc. Deliver to the Administrative Agent (a) any amendments to the Documents
previously delivered, written waivers relating thereto and other side letters
or agreements in writing affecting the terms thereof and (b) any Documents
relating to any new Joint Venture any of the interests in which is owned by a
Restricted Subsidiary.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Revolving Credit
Commitments remain in effect, any Revolving Credit Note or any Letter of Credit
remains outstanding and unpaid or any other amount is owing to any Lender, the
Administrative Agent or the Co-Arranger hereunder, the Borrower shall not, and
(except with respect to subsection 8.1) shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
8.1 Financial Condition Covenants.
(a) Tangible Net Worth. Permit Consolidated Tangible Net Worth
at any time (the "date of determination") to be less than an amount
equal to the sum of (i) $165,000,000 plus (ii) an amount equal to 75% of
Net Equity Proceeds during the period from March 1, 1996 to the date of
determination less (iii) any write- offs of assets or other expenses or
charges relating to the Demand Charge Rearrangement and the amount of
the Garden Banks Write-Down; provided that such write-offs or charges
shall be taken in the fiscal year 1996 or 1997 and shall not exceed in
the aggregate $7,500,000 with respect to the Demand Charge Rearrangement
and $20,000,000 with respect to the Garden Banks Write-Down.
(b) Ratio of Debt to Capitalization. Permit the ratio of (i)
Consolidated Total Indebtedness of the Borrower at any time to (ii)
Consolidated Total Capitalization at such time plus the Garden Banks
Write-Down, expressed as a percentage, to exceed 65%.
(c) Debt Service Coverage Ratio. Permit for any Calculation
Period the ratio of (i) Consolidated EBITDA for such period to (ii) the
interest expense, both expensed and capitalized, of the Borrower and its
Restricted Subsidiaries for such period to be less than 2.5 to 1.0.
(d) Ratio of Loans to EBITDA. Permit, at any date of
determination thereof:
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(i) prior to May 31, 1997, the ratio of (x) the sum of
the Aggregate Outstanding Revolving Credit Extensions of Credit
plus the aggregate amount of Additional Clawbacks then
outstanding to (y) the Annualized EBITDA at such date of
determination to exceed 3.25 to 1.0, and
(ii) on or after May 31, 1997, the ratio of (x) the sum
of the Aggregate Outstanding Revolving Credit Extensions of
Credit plus the aggregate amount of Additional Clawbacks then
outstanding to (y) the Consolidated EBITDA on for the most
recently ended Calculation Period to exceed 3.25 to 1.0.
(e) Leverage Ratio. Permit, at any date of determination
thereof:
(i) prior to May 31, 1997, the ratio of (x)
Consolidated Total Indebtedness of the Borrower and its
Restricted Subsidiaries at such date of determination to (y) the
Annualized EBITDA at such date of determination to exceed 4.0 to
1.0; and
(ii) on or after May 31, 1997, the ratio of (x)
Consolidated Total Indebtedness of the Borrower and its
Restricted Subsidiaries at such date of determination to (y) the
Consolidated EBITDA for the most recently ended Calculation
Period to exceed 4.0 to 1.0.
8.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of the Borrower to any Subsidiary Guarantor,
and of any Subsidiary Guarantor to the Borrower;
(c) as of any day, Indebtedness constituting any portion of
Permitted L/C Obligations determined as of such day;
(d) Indebtedness permitted pursuant to subsection 8.8;
(e) subordinated Indebtedness of the Borrower in an aggregate
principal amount not in excess of $25,000,000 provided that (i) no
principal payments are or could be required on such Indebtedness prior
to March 31, 2002 and (ii) such Indebtedness is subordinated to the
prior payment of all obligations of the Borrower under the Loan
Documents on terms satisfactory to the Administrative Agent; and
(f) senior or subordinated Indebtedness (in addition to the
subordinated Indebtedness permitted in subsection 8.2(e)) of the
Borrower provided that (i) 50% of the Net Debt Proceeds thereof are
applied to the payment of the Revolving Loans pursuant to subsection
4.1(b), (ii) no principal payments are required on such Indebtedness on
or prior to March 31, 2002, in the case of senior Indebtedness, or
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September 30, 2002, in the case of subordinated Indebtedness, (iii) in
the case of subordinated Indebtedness, such Indebtedness is subordinated
to the prior payment of all obligations of the Borrower under the Loan
Documents on terms satisfactory to the Administrative Agent and (iv) in
the case of senior Indebtedness, such Indebtedness may be secured and
guaranteed on a ratable and pari passu basis with the obligations of the
Loan Parties under the Guarantees and the Security Documents if the
Administrative Agent has approved the intercreditor arrangements related
thereto, which approval shall not be unreasonably withheld or delayed.
For the purposes of clauses (e) and (f) of this subsection 8.2, the Borrower
shall designate in writing to the Administrative Agent at the time of the
incurrence of the Indebtedness whether such Indebtedness is being incurred
pursuant to (e) or (f) of this subsection 8.2.
Except as otherwise permitted by this Agreement, the Borrower may not use the
proceeds of any Indebtedness permitted by this subsection to pay or make any
Restricted Payment.
8.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Restricted Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self- insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or such Restricted Subsidiary;
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(f) Liens created pursuant to construction, operating and
maintenance agreements, space lease agreements, Pipeline Partnership
Agreements (to the extent requiring a Lien on the equity interest of the
Borrower or any Restricted Subsidiary, as the case may be, in the
applicable Joint Venture is required thereunder) and other similar
agreements, in each case having ordinary and customary terms and entered
into in the ordinary course of business by the Borrower and its
Restricted Subsidiaries;
(g) additional Liens securing Indebtedness and other
obligations not to exceed $100,000 at any one time outstanding;
(h) Liens on the Collateral to the extent permitted by clause
(iv) of subsection 8.2(f); and
(i) Liens on the equity interest of Sailfish in the
Nautilus/Manta Ray Ventures to the extent required by the security
agreement executed in connection with the contribution agreements of
certain Restricted Subsidiaries with repect to the Nautilus/Manta Ray
Ventures as in effect on the date of formation of such Joint Ventures.
This subsection shall not restrict the ability of any Joint Venture or
Unrestricted Subsidiary to create, incur, assume or suffer to exist any Lien on
any of its property.
8.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations created pursuant to the Loan
Documents;
(b) Guarantee Obligations of the Borrower incurred after the
Closing Date in an aggregate amount not to exceed $100,000 at any one
time outstanding;
(c) Guarantee Obligations constituting performance guarantees
provided in the ordinary course of business by the Borrower and its
Restricted Subsidiaries supporting obligations of Restricted
Subsidiaries which obligations have been incurred in the ordinary course
of business (including in connection with the operation, construction or
acquisition of pipelines, platforms and related facilities);
(d) Guarantee Obligations in an aggregate amount not to exceed
$9,300,000 at any one time outstanding incurred pursuant to clawback and
other similar arrangements;
(e) Guarantee Obligations, in addition to those described in
clause (d) of this subsection 8.4, incurred pursuant to clawback and
other similar arrangements (such additional Guarantee Obligations,
"Additional Clawbacks"), provided that, prior to and after giving effect
to the incurrence thereof, no Default or Event of Default shall have
occurred and be continuing;
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(f) as of any day, Guarantee Obligations constituting any
portion of Permitted L/C Obligations determined as of such day; and
(g) Guarantee Obligations to the extent permitted by clause
(iv) of subsection 8.2(f).
8.5 Limitations on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business, except:
(a) any Restricted Subsidiary may be merged or consolidated
with or into any one or more Restricted Subsidiaries which is a
Subsidiary Guarantor (provided that, if any of such Restricted
Subsidiaries is not wholly owned by the Borrower and the General
Partner, the Restricted Subsidiary or Restricted Subsidiaries in which
the Borrower owns the greatest interest shall be the continuing or
surviving corporation);
(b) any Restricted Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to any other Restricted Subsidiary which is a
Subsidiary Guarantor and in which, if not wholly owned by the Borrower
and the General Partner, the Borrower owns at least the same percentage
interests as the Borrower owns in the transferor Restricted Subsidiary;
and
(c) any Restricted Subsidiary may enter into a merger,
consolidation or share exchange with any other Person so long as:
(i) such transaction is permitted under subsection 8.8;
(ii) such transaction shall be effected in such manner
so that the Restricted Subsidiary shall be the continuing or
surviving entity; and
(iii) at the time of such acquisition and after giving
effect thereto, no Default or Event of Default shall have
occurred and shall be continuing; and
(d) solely to effect any transaction permitted by subsection
8.6(b).
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except:
(a) as permitted by subsection 8.5;
(b) as long as no Default or Event of Default has occurred and
is continuing or would result therefrom the Borrower and the Restricted
Subsidiaries may sell or otherwise dispose of property in any fiscal
year having an aggregate value not in
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excess of 5% of Consolidated Tangible Net Worth calculated on the last
day of the prior fiscal quarter;
(c) the sale and purchase of certain contracts, pipelines and
related assets in accordance with the terms of that certain Letter
Agreement, dated as of February 14, 1996, among Manta Ray Gathering
Systems Inc., Poseidon, the Poseidon Venture and Texaco Trading and
Transportation Inc., as amended or supplemented from time to time
provided that such amendment or supplement does not reflect a material
revision of the transactions set forth in such Letter Agreement; and
(d) the transfer to the Nautilus/Manta Ray Ventures of certain
contracts and pipelines and related assets constituting the Manta Ray
Gathering System as a capital contribution by the Borrower or any
Restricted Subsidiary to the Nautilus/Manta Ray Ventures as required by
the applicable Pipeline Partnership Agreements of the Nautilus/Manta Ray
Ventures.
8.7 Limitation on Dividends. Declare or pay any dividend on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Borrower or any
warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the Borrower or any Restricted Subsidiary (such declarations, payments, setting
apart, purchases, redemptions, defeasances, retirements, acquisitions and
distributions being herein called "Restricted Payments"), except that as long
as no Default or Event of Default has occurred and is continuing or would
result therefrom, the Borrower may make Restricted Payments once each fiscal
quarter consisting of cash distributions in accordance with the terms of the
Partnership Agreement on its Preference Units, its Common Units and the General
Partnership Interest.
8.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) capital contributions, loans or other investments made by
the Borrower to any Restricted Subsidiary which is a Subsidiary
Guarantor and by any Restricted Subsidiary to the Borrower;
(d) capital contributions, loans or other investments in
Subsidiaries and Joint Ventures and investments permitted by subsection
8.5(c), provided that such investments shall be permitted only to the
extent that (A) (i) such investments made
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during any fiscal year do not exceed $15,000,000 in the aggregate and
are made from funds constituting "Cash from Operations" (as defined in
the Partnership Agreement) for such fiscal year and the "Minimum
Quarterly Distribution" (as defined in the Partnership Agreement) for
all Preference Units for any previous calendar quarter shall have been
paid in full, or (ii) such investments are made from (without
duplication of investments permitted in other clauses of this subsection
8.8) proceeds of public offerings of Preference Units or Common Units,
and proceeds of extraordinary distributions made by Joint Ventures any
of the interests of which is owned by a Restricted Subsidiary or
proceeds of distributions made by other Joint Ventures or any
Unrestricted Subsidiaries to the Borrower and/or Restricted
Subsidiaries, in each case received after the date hereof, and (B) in
any such case, no Default or Event of Default shall have occurred and be
continuing, or would occur as a result of such investment and no such
investment shall be made from the proceeds of the Revolving Credit
Loans;
(e) capital contributions, loans or other investments by
Subsidiaries of the Borrower or any Joint Venture to or in the Borrower
or any Restricted Subsidiary, provided that no Default or Event of
Default shall have occurred and be continuing, or would occur as a
result of such investment;
(f) capital contributions or other investments by the Borrower
or any Restricted Subsidiary to any Joint Venture any of the interests
in which are owned by a Restricted Subsidiary in accordance with the
terms of the constitutive documents of such Joint Venture, provided in
each such case that (x) no Default or Event of Default has occurred and
is continuing or would result therefrom, and (y) such Joint Venture
exists as of the Closing Date or such capital contributions or other
investments are made by funds raised pursuant to clause (d), (g) or (h)
of this subsection 8.8;
(g) capital contributions, loans or other investments to the
extent made with the proceeds of public offerings of Preference Units or
Common Units for the purposes described in the offering documents for
such public offerings;
(h) capital contributions, loans or other investments made
from cash which would otherwise be required to be distributed to the
holders of the Preference Units, the Common Units or the General
Partnership Interest pursuant to the Partnership Agreement;
(i) other acquisitions of equity securities of, or assets
constituting a business unit of, any Person, provided that, immediately
prior to and after giving effect to any such acquisition, no Default or
Event of Default shall have occurred or be continuing (whether under
subsection 8.17 or otherwise);
(j) capital contributions, loans or other investments made
with the proceeds of dispositions made pursuant to subsections 8.6(b);
and
(k) investments described in subsection 8.6(d).
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Notwithstanding the foregoing, the aggregate amount of the investments made in
Joint Ventures pursuant to paragraphs (d), (f) and (h) above shall not exceed
$25,000,000 in any fiscal year.
8.9 Limitation on Optional Payments and Modifications of Debt
Instruments and Other Agreements. (a) Make any optional payment or prepayment
on, redemption of or purchase of, or voluntarily defease, or directly or
indirectly voluntarily or optionally purchase, redeem, retire or otherwise
acquire, any Indebtedness or Guarantee Obligations (other than the Revolving
Credit Loans), or make any payment under or on account of the Management
Agreement except as required pursuant to the terms thereof, (b) amend, modify
or change, or consent or agree to any amendment, modification or change to, any
of the terms of any Indebtedness or Guarantee Obligations (other than any such
amendment, modification or change which would extend the maturity or reduce the
amount of any payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon), except to the extent the same
could not reasonably be expected to have a Material Adverse Effect, (c) amend,
modify or change, or consent to any amendment, modification or change to, any
of the terms of, the Partnership Agreement, the Borrower's certificate of
limited partnership, the Management Agreement or any Pipeline Partnership
Agreement, except to the extent the same could not reasonably be expected to
have a Material Adverse Effect, or (d) waive or otherwise relinquish any of its
rights or causes of action arising out of the Partnership Agreement, the
Borrower's certificate of limited partnership, the Conveyance Agreement, the
Management Agreement or any Pipeline Partnership Agreement, except to the
extent the same could not reasonably be expected to have a Material Adverse
Effect. Notwithstanding any provision contained in this subsection 8.9, the
Borrower and its Restricted Subsidiaries shall have the absolute right to amend
any Pipeline Partnership Agreement to the extent necessary or reasonably
appropriate to evidence the substitution, replacement or other changes of
Partners in any Joint Venture not in violation of subsection 8.19 or subsection
8.22.
8.10 Limitation on Transactions with Affiliates. Subject to the
rights set forth in subsection 8.13, enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate unless such transaction is (a)
otherwise permitted under this Agreement, and (b) except for the Management
Agreement, upon fair and reasonable terms no less favorable to the Borrower or
such Restricted Subsidiary, as the case may be, than it would obtain in a
comparable arm's length transaction with a Person which is not an Affiliate,
provided that, notwithstanding the foregoing, the Borrower and its Subsidiaries
may enter into any arrangements deemed reasonable by them in connection with
the Demand Charge Rearrangement.
8.11 Limitation on Sales and Leasebacks. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Restricted Subsidiary of real or personal property which has been or is to be
sold or transferred by the Borrower or such Restricted Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Borrower or such Restricted Subsidiary.
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8.12 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Borrower to end on a day other than December 31.
8.13 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary or Joint Venture, except for those
businesses in which the Borrower and its Subsidiaries and the Joint Ventures
are engaged on the date of this Agreement.
8.14 Corporate Documents. Permit the amendment or modification
of the limited liability company agreement or certificate of formation or
incorporation of any Restricted Subsidiary if such amendment could reasonably
be expected to have a Material Adverse Effect, or would authorize or issue any
Capital Stock not authorized or issued on the Closing Date, except to the
extent such authorization or issuance would have the same substantive effect as
any transaction permitted by subsection 8.5 or 8.6.
8.15 Compliance with ERISA. (a) Terminate any Plan so as to
result in any material liability to PBGC, (b) engage in any "prohibited
transaction" (as defined in Section 4975 of the Code) involving any Plan which
could result in a material liability for an excise tax or civil penalty in
connection therewith, (c) incur or suffer to exist any material "accumulated
funding deficiency" (as defined in Section 302 of ERISA), whether or not waived
involving any Plan, or (d) allow or suffer to exist any event or condition,
which presents a material risk of incurring a material liability to PBGC by
reason of termination of any such Plan.
8.16 Limitation on Restrictions Affecting Subsidiaries. Enter
into, or suffer to exist, any agreement with any Person, other than the Lenders
pursuant hereto and other than the arrangements described in subsections
8.2(c), (e) and (f) and 8.4(d) and (e) or which exist on the date hereof, which
prohibits or limits the ability of any Restricted Subsidiary to (a) pay
dividends or make other distributions or pay any Indebtedness owed to the
Borrower or any Restricted Subsidiary, (b) make loans or advances to or make
other investments in the Borrower or any Restricted Subsidiary, (c) transfer
any of its properties or assets to the Borrower or any Restricted Subsidiary,
(d) transfer any of its properties or assets to the Borrower or any Restricted
Subsidiary or (e) create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired.
8.17 Creation of Restricted Subsidiaries. Create or acquire any
new Restricted Subsidiary of the Borrower or any of its Restricted
Subsidiaries, unless, immediately upon the creation or acquisition of any such
Restricted Subsidiary, (a) such Restricted Subsidiary shall become party to the
Subsidiaries Guarantee as a Subsidiary Guarantor pursuant to an addendum
thereto or other documentation in form and substance reasonably satisfactory to
the Administrative Agent, (b) such Restricted Subsidiary shall become party to
the Subsidiary Security Agreement as a grantor pursuant to an addendum thereto
or other documentation in form and substance reasonably satisfactory to the
Administrative Agent, and all actions required to perfect the Liens granted
thereby, all filings required thereunder and all consents necessitated thereby
shall have been taken, made or obtained, (c) all Capital Stock issued by such
Restricted Subsidiary owned by the Borrower
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or any other Restricted Subsidiary shall have been pledged to the
Administrative Agent pursuant to an addendum or amendment to the Borrower
Pledge Agreement or other documentation in form and substance satisfactory to
the Administrative Agent, (d) all corporate, company, partnership or other
proceedings, and all documents, instruments and other legal matters in
connection with the creation of such Restricted Subsidiary and the transactions
contemplated by this subsection 8.17 shall be reasonably satisfactory in form
and substance to the Administrative Agent, and the Administrative Agent shall
have received such other documents and legal opinions in respect of any aspect
or consequence of such creation or such transactions as it shall reasonably
request and (e) no Default or Event of Default shall have occurred and be
continuing after giving effect thereto.
8.18 Hazardous Materials. Except to the extent that the same
could not reasonably be expected to have a Material Adverse Effect, permit the
manufacture, storage, transmission or presence of any Hazardous Materials over
or upon any of its properties except in accordance with all applicable
Requirements of Law or release, discharge or otherwise dispose of any Hazardous
Materials on any of its properties except that the Borrower and its Restricted
Subsidiaries may treat, store and transport petroleum, its derivatives,
by-products and other hydrocarbons, hydrogen sulfide and sulfur dioxide in the
ordinary course of their business.
8.19 Holding Companies. Notwithstanding any other provisions of
this Agreement and the other Loan Documents, permit any Restricted Subsidiary
which is a general partner in or owner of a general partnership interest in a
Joint Venture to incur or suffer to exist any obligations or indebtedness of
any kind, whether contingent or fixed (excluding any contingent liability of
such Restricted Subsidiary to creditors of such Joint Venture arising solely as
a result of its status as a general partner or owner of such Joint Venture and
Guarantee Obligations referred to in subsections 8.4(d), 8.4(e) and 8.4(g)) or
create or suffer to exist any Liens, in each case except to the extent any such
obligations, indebtedness or Liens arise under or pursuant to the Pipeline
Partnership Agreement for such Joint Venture as in effect on the Closing Date
(or, if later, the date of acquisition or formation of such Joint Venture) or
the Loan Documents or are otherwise permitted by the Loan Documents; or permit
any Restricted Subsidiary which is a general partner in or owner of a general
partnership interest in a Joint Venture to acquire any property or asset after
the Closing Date (or, if later, the date of acquisition or formation of such
Joint Venture) except for distributions made to it by such Joint Venture; or
permit any Restricted Subsidiary which is a general partner in or owner of a
general partnership interest in a Joint Venture to engage in any business or
activity other than holding the general partnership interest in (or other
ownership interest) such Joint Venture held by it on the Closing Date (or, if
later, the date of formation of such Joint Venture).
8.20 No Voluntary Termination of Pipeline Partnership
Agreements. Permit any Restricted Subsidiary which is a partner in, or owner of
any interest in, any Joint Venture to voluntarily terminate any Pipeline
Partnership Agreement to the extent permitted thereunder.
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8.21 Actions by Joint Ventures. (a) Consent or agree to or
acquiesce in any Joint Venture the interests in which are owned by a Restricted
Subsidiary changing its policy of making distributions of available cash to
partners, or (b) so long as any interest therein is owned by a Restricted
Subsidiary, consent or agree to or acquiesce in any Joint Venture's taking any
actions that could reasonably be expected to have a Material Adverse Effect.
8.22 Hedging Transactions. Enter into any interest rate,
cross-currency, commodity, equity or other security, swap, collar or similar
hedging agreement or purchase any option to purchase or sell or to cap any
interest rate, cross-currency, commodity, equity or other security, in any such
case, other than to hedge risk exposures in the operation of its business,
ownership of assets or the management of its liabilities.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Revolving Credit Note or any Reimbursement Obligation which is not
funded by a Loan when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Revolving
Credit Note, or any other amount payable hereunder, within five days
after any such interest or other amount becomes due in accordance with
the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any certificate, document or financial or other
statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on
or as of the date made or deemed made; or
(c) (i) The Borrower shall default in the observance or
performance of any agreement contained in Section 8 (other than
subsections 8.1(a) or (b)) or in subsection 7.11; or any Loan Party
shall default in the observance or performance of any agreement
contained in Section 5(h), (i), (j) or (o) of the Borrower Security
Agreement or the Subsidiary Security ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇(▇), (▇),
(▇) or (m) of the Leviathan Security Agreement, Section 9(j) of the
Leviathan Guarantee, Section 4(b) of the Borrower Pledge Agreement or
the Leviathan Pledge Agreement (LLC) or Section 5(b) of the Leviathan
Pledge Agreement (GP); or (ii) the Borrower shall default in the
observance or performance of the agreement contained in subsections
8.1(a) or (b) and such default shall continue unremedied for a period of
15 days; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days after receipt of written
notice thereof from the Administrative Agent or any Lender; or
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(e) Any Loan Party or any Restricted Subsidiary of the
Borrower shall (i) default in any payment of principal of or interest on
any Indebtedness (other than the Revolving Credit Notes) or in the
payment of any Guarantee Obligation, beyond the period of grace (not to
exceed 30 days), if any, provided in the instrument or agreement under
which such Indebtedness or Guarantee Obligation was created; or (ii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation to
become payable; provided, however, that the aggregate principal amount
of Indebtedness and Guarantee Obligations with respect to which such
defaults shall have occurred shall equal or exceed $5,000,000; or
(f) Any Joint Venture shall (i) default in any payment of
principal of or interest of any Indebtedness or in the payment of any
Guarantee Obligation, in each case under their respective credit
facilities, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur
or condition exist, and as a result of which default or other event or
condition such Indebtedness shall become due prior to its stated
maturity or such Guarantee Obligation shall become payable; provided,
however, that with respect to any Joint Venture, the aggregate principal
amount of Indebtedness and Guarantee Obligations with respect to which
such defaults shall have occurred shall equal or exceed $5,000,000; or
(g) (i) Any Loan Party or any Restricted Subsidiary of the
Borrower shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or any Loan Party or any Subsidiary of
the Borrower shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against any Loan Party or
any Restricted Subsidiary of the Borrower any case, proceeding or other
action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against any Loan Party or any
Restricted
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Subsidiary of the Borrower any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results
in the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) any Loan Party or any Restricted
Subsidiary of the Borrower shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) any Loan
Party or any Restricted Subsidiary of the Borrower shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay
its debts as they become due; or
(h) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with
respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or
conditions, if any, could have a Material Adverse Effect; or
(i) One or more judgments or decrees shall be entered against
the Borrower or any of its Restricted Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of
$5,000,000 or more, and all such judgments or decrees shall not have
been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof;
(j) If at any time the Borrower or any Restricted Subsidiary
shall become liable for remediation and/or environmental compliance
expenses and/or fines, penalties or other charges which, in the
aggregate, are in excess of the Material Environmental Amount for any
Loan Party and the Restricted Subsidiaries; or
(k) For any reason (other than any act on the part of the
Administrative Agent or the Lenders) any Security Document or any
Guarantee ceases to be in full force and effect or any party thereto
(other than the Administrative Agent or the Lenders) shall so assert in
writing or the Lien intended to be created by any Security
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Document ceases to be or is not a valid and perfected Lien having the
priority contemplated thereby; or
(l) DeepTech and its Subsidiaries, shall, directly or
indirectly, legally and beneficially own less than 51% of each class of
Capital Stock of Leviathan having ordinary power (other than Capital
Stock having such power only by reason of the happening of a
contingency) to vote in elections of directors of Leviathan; or DeepTech
and its Subsidiaries shall cease to own legally and beneficially (i) the
General Partnership Interest representing at least 1.00% of all general,
limited, common and other interests in the Borrower, and (ii) a limited
partnership interest in the Borrower representing at least 22% of all
general, limited, common and other interests in the Borrower, in the
case of clause (i) free and clear of all Liens except for the Liens
created by the Security Documents and Liens permitted by subsection
8.2(f)(iv); or there shall be a Change in Control; or DeepTech or one of
its direct or indirect Subsidiaries shall cease to be the sole general
partner of the Borrower; or
(m) Except in connection with transactions permitted by
subsection 8.5 and 8.6(b), the Borrower shall cease to own legally and
beneficially at least the percentage of the managing limited liability
company or other equity interest in each Restricted Subsidiary of the
Borrower which is a limited liability company owned by it on the date
hereof (or, if later, the date of acquisition or formation of such
Subsidiary); or Leviathan and the Borrower together shall cease to own
legally and beneficially the percentage of the equity interest in each
Restricted Subsidiary of the Borrower owned by it on the date hereof
(or, if later, the date of acquisition or formation of such Subsidiary);
or
(n) Any Person (other than any Lender) shall exercise its
rights and remedies with respect to its Lien on any equity interest of
(i) Sailfish or (ii) on any Joint Venture the equity interest in which
has been pledged to such Person; provided that in the case of clause
(ii), the amount of claims secured by such Lien shall equal or exceed
$5,000,000 and such claim shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof;
or
(o) (i) The Management Agreement shall cease to be in full
force and effect prior to the end of the initial term thereof
substantially as in effect on the date hereof; or (ii) DeepTech shall
default in the observance or performance of any material provision of
the Management Agreement;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (g) above with respect to the Borrower,
automatically the Revolving Credit Commitments shall immediately terminate and
the Revolving Credit Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Revolving Credit Notes shall immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of
the following actions may be taken: (i)
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with the consent of the Required Lenders, the Administrative Agent may, or
upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower declare the Revolving Credit Commitments to be
terminated forthwith, whereupon the Revolving Credit Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Revolving
Credit Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) and the
Revolving Credit Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable. If presentment for honor under any
Letter of Credit shall not have occurred at the time of an acceleration
pursuant to the preceding sentence, the Borrower shall at such time deposit in
a cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of the Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Bank and the Lenders, a security interest in such cash collateral to
secure all obligations of the Borrower under this Agreement and the other Loan
Documents. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the Revolving Credit Notes.
After all such Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrower hereunder and under the Revolving Credit Notes
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrower. The Borrower shall execute and
deliver to the Administrative Agent, for the account of the Issuing Bank and
the Lenders, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of the within security
interest in such cash collateral account. Except as expressly provided above in
this Section, presentment, demand, protest, notice of intent to accelerate,
notice of acceleration and all other notices of any kind are hereby expressly
waived.
SECTION 10. THE ADMINISTRATIVE AGENT AND CO-ARRANGER
10.1 Appointment. Each Lender hereby irrevocably designates and
appoints The Chase Manhattan Bank as the Administrative Agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes The Chase Manhattan Bank, as the Administrative Agent
for such Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto.Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties,
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obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the Revolving Credit Notes or any other Loan Document or for any failure of the
Borrower to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of the Borrower.
10.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Revolving Credit Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Revolving Credit Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate or it shall first be indemnified
to its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the Revolving
Credit Notes and the other Loan Documents in accordance with a request of the
Required Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders
of the Revolving Credit Notes.
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10.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including any review of the affairs
of the Borrower, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower which
may come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitment Percentages in effect on the
date on which indemnification is sought under this subsection, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Revolving Credit Notes) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the
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transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's gross negligence or willful misconduct. The agreements
in this subsection shall survive the payment of the Revolving Credit Notes and
all other amounts payable hereunder.
10.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to its Loans made or renewed by it and any
Revolving Credit Note issued to it and with respect to the Letters of Credit,
the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not the Administrative Agent. The terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders, which successor agent
shall be approved by the Borrower, whereupon such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Revolving Credit Notes.
After any retiring Administrative Agent's resignation as Administrative Agent,
the provisions of this subsection shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.
10.10 Co-Arranger. Each Lender hereby irrevocably designates and
appoints ING (U.S.) Capital Corporation ("ING") as the Co-Arranger of such
Lender under this Agreement. In acting as Co-Arranger under this Agreement, ING
shall have no duties or functions except as expressly set forth herein and,
with respect to its actions as Co-Arranger, shall be entitled to all of the
rights, indemnities and obligations as are set forth in this Section 10 for the
benefit of the Administrative Agent, mutatis mutandis.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement, any
Revolving Credit Note, any other Loan Document, nor any terms hereof or thereof
may be amended, supplemented or modified except in accordance with the
provisions of this subsection. The
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Required Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
or the Loan party thereto written amendments, supplements or modifications
hereto and to the Revolving Credit Notes and the other Loan Documents for the
purpose of adding any provisions to this Agreement or the Revolving Credit
Notes or the other Loan Documents or changing in any manner the rights of the
Lenders or of the Borrower or any other Loan Party hereunder or thereunder or
(b) waive in writing, on such terms and conditions as the Required Lenders or
the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of this Agreement or the Revolving Credit Notes or the
other Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement or
modification shall (i) reduce the amount or extend the scheduled date of
maturity of any Revolving Credit Note or of any installment thereof, or reduce
the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or increase the amount or extend the
expiration date of any Lender's Revolving Credit Commitment, in each case
without the consent of each Lender affected thereby, or (ii) amend, modify or
waive any provision of this subsection or reduce the percentage specified in
the definition of Required Lenders or Majority Lenders, or consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, in each case without the
written consent of all the Lenders, or (iii) amend, modify or waive any
provision of Section 10 without the written consent of the then Administrative
Agent or (iv) release the Lenders' Liens on all or substantially all of the
Collateral under the Security Documents without the consent of each Lender. Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Revolving
Credit Notes. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the outstanding Revolving Credit Notes and any other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in Schedule I in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Revolving Credit Notes:
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The Borrower: Leviathan Gas Pipeline Partners, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy
to: Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇,
L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
The
Administrative
Agent: The Chase Manhattan Bank
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy:(▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 3.2, 2.6, 2.7, 2.11, 4.1 or 4.2
shall not be effective until received, provided, further, that the failure by
the Administrative Agent, the Co-Arranger or any Lender to provide a copy to
the Borrower's counsel shall not cause any notice to the Borrower to be
ineffective.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the Revolving Credit Notes.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any
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amendment, supplement or modification to, this Agreement and the Revolving
Credit Notes and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including, without
limitation, the fees and disbursements of counsel to the Administrative Agent,
(b) to pay or reimburse each Lender and the Administrative Agent for all its
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the Revolving Credit Notes, the other Loan
Documents and any such other documents, including, without limitation, the fees
and disbursements of counsel to the Administrative Agent and to the several
Lenders, (c) to pay, indemnify, and hold each Lender and the Administrative
Agent harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the Revolving Credit Notes, the other Loan Documents and any
such other documents, and (d) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments and suits, and
reasonable costs, expenses or disbursements, of any kind or nature whatsoever
with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the Revolving Credit Notes and the other Loan
Documents, the use of the proceeds of the Revolving Credit Loans (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
REGARDLESS OF WHETHER OR NOT SUCH INDEMNIFIED LIABILITIES ARE IN ANY WAY OR TO
ANY EXTENT CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY
KIND BY THE ADMINISTRATIVE AGENT OR ANY LENDER, provided, that the Borrower
shall have no obligation hereunder to the Administrative Agent or any Lender
with respect to indemnified liabilities arising from (i) the gross negligence
or willful misconduct of the Administrative Agent or any such Lender or (ii)
legal proceedings commenced against the Administrative Agent or any such Lender
by any security holder or creditor thereof arising out of and based upon rights
afforded any such security holder or creditor solely in its capacity as such.
The agreements in this subsection shall survive repayment of the Revolving
Credit Notes and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations; Purchasing
Lenders. (a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Lenders, the Administrative Agent, all future holders of the
Revolving Credit Notes and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights or obligations under
this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, and after notice to the
Borrower, at any time sell to one or more banks or other entities
("Participants") participating interests in any Revolving Credit Loan owing to
such Lender, any Revolving Credit Note held by such Lender, any Revolving
Credit Commitment of such Lender or any other interest of such Lender hereunder
and under the other Loan Documents. In the event of any such sale by a
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Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Revolving Credit Note
for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. The Borrower
agrees that if amounts outstanding under this Agreement and the Revolving
Credit Notes are due or unpaid, or shall have been declared or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement and any Revolving
Credit Note to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement or any Revolving
Credit Note, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 11.7(a) as fully as if it were a
Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 4.9, 4.10 and 4.11 with respect to its
participation in the Revolving Credit Commitments, the Revolving Credit Loans
and the Letters of Credit outstanding from time to time; provided, that no
Participant shall be entitled to receive any greater amount pursuant to such
subsections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to any
Lender or any successor or affiliate thereof and, with the consent of the
Borrower and the Administrative Agent (which in each case shall not be
unreasonably withheld), to one or more additional banks or financial
institutions ("Purchasing Lenders") all or any part of its rights and
obligations under this Agreement and the Revolving Credit Notes pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit M, executed by
such Purchasing Lender, such transferor Lender (and, in the case of a
Purchasing Lender that is not then a Lender or an affiliate thereof, by the
Borrower and the Administrative Agent) and delivered to the Administrative
Agent for its acceptance and recording in the Register. Upon such execution,
delivery, acceptance and recording, from and after the Transfer Effective Date
determined pursuant to such Assignment and Acceptance, (x) the Purchasing
Lender thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with a Revolving Credit Commitment as set forth therein, and (y) the
transferor Lender thereunder shall, to the extent provided in such Assignment
and Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of a transferor Lender's rights and obligations under this Agreement, such
transferor Lender shall cease to be a party hereto). Such Assignment and
Acceptance shall be deemed to amend this Agreement to the extent, and only to
the extent, necessary to reflect the addition of such Purchasing Lender and the
resulting adjustment of Commitment Percentages arising from the purchase by
such Purchasing Lender of all or a portion of the rights and obligations of
such transferor Lender under this Agreement and the Revolving Credit Notes.
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On or prior to the Transfer Effective Date determined pursuant to such
Assignment and Acceptance, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent in exchange for the Revolving Credit Note
of the transferor Lender a new Revolving Credit Note to the order of such
Purchasing Lender in an amount equal to the Revolving Credit Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the transferor Lender
has retained Revolving Credit Commitments hereunder, a new Revolving Credit
Note to the order of the transferor Lender in an amount equal to the Revolving
Credit Commitment retained by it hereunder. Such new Revolving Credit Notes
shall be dated the Closing Date, and shall otherwise be in the form of the
Revolving Credit Note replaced thereby. The Revolving Credit Notes surrendered
by the transferor Lender shall be returned by the Administrative Agent to the
Borrower marked "cancelled".
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at its address referred to in subsection 11.2 a copy of each
Assignment and Acceptance delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the Revolving
Credit Commitment of, and principal amount of the Revolving Credit Loans owing
to, each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Revolving Credit Loan recorded
therein for all purposes of this Agreement, notwithstanding any notice to the
contrary. Any assignment of any Revolving Credit Loan or other Obligation
hereunder not evidenced by a Revolving Credit Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by a transferor Lender and Purchasing Lender (and, in the case of a Purchasing
Lender that is not then a Lender or an affiliate thereof, by the Borrower and
the Administrative Agent) together with payment to the Administrative Agent of
a registration and processing fee of $4,000, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the Transfer
Effective Date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Purchasing Lender (each, a "Transferee") and any prospective
Transferee any and all financial information in such Lender's possession
concerning the Borrower and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower in connection
with such Lender's credit evaluation of the Borrower and its Affiliates prior
to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Revolving Credit Loans and Revolving Credit Notes relate only to absolute
assignments and that such provisions do not
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prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Revolving Credit Loan
or Revolving Credit Note to any Federal Reserve Bank in accordance with
applicable law.
11.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its Loans or
the Reimbursement Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in Section
9(i), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans of the same type or the Reimbursement Obligations owing to it,
as the case may be, or interest thereon, such benefitted Lender shall purchase
for cash from the other Lenders a participating interest in such portion of
each such other Lender's Loan or the Reimbursement Obligations owing to it, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder or under the Revolving Credit Notes (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the
Borrower. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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11.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
11.11 Usury Savings Clause. It is the intention of the parties
hereto to comply with applicable usury laws (now or hereafter enacted);
accordingly, notwithstanding any provision to the contrary in this Agreement,
the Revolving Credit Notes, any of the other Loan Documents or any other
document related hereto, in no event shall this Agreement or any such other
document require the payment or permit the collection of interest in excess of
the maximum amount permitted by such laws. If from any circumstances
whatsoever, fulfillment of any provision of this Agreement or of any other
document pertaining hereto or thereto, shall involve transcending the limit of
validity prescribed by applicable law for the collection or charging of
interest, then, ipso facto, the obligation to be fulfilled shall be reduced to
the limit of such validity, and if from any such circumstances the
Administrative Agent and the Lenders shall ever receive anything of value as
interest or deemed interest by applicable law under this Agreement, the
Revolving Credit Notes, any of the other Loan Documents or any other document
pertaining hereto or otherwise an amount that would exceed the highest lawful
rate, such amount that would be excessive interest shall be applied to the
reduction of the principal amount owing under the Revolving Credit Notes or on
account of any other indebtedness of the Borrower, and not to the payment of
interest, or if such excessive interest exceeds the unpaid balance of principal
of such indebtedness, such excess shall be refunded to the Borrower. In
determining whether or not the interest paid or payable with respect to any
indebtedness of the Borrower to the Administrative Agent and the Lenders, under
any specified contingency, exceeds the Highest Lawful Rate (as hereinafter
defined), the Borrower, the Administrative Agent and the Lenders shall, to the
maximum extent permitted by applicable law, (a) characterize any non-principal
payment as an expense, fee or premium rather than as interest, (b) exclude
voluntary prepayments and the effects thereof, (c) amortize, prorate, allocate
and spread the total amount of interest throughout the full term of such
indebtedness so that interest thereon does not exceed the maximum amount
permitted by applicable law, and/or (d) allocate interest between portions of
such indebtedness, to the end that no such portion shall bear interest at a
rate greater than that permitted by applicable law.
To the extent that Article 5069-1.04 of the Texas Revised Civil
Statutes is relevant to the Administrative Agent and the Lenders for the
purpose of determining the Highest Lawful Rate, the Administrative Agent and
the Lenders hereby elect to determine the applicable rate ceiling under such
Article by the indicated (weekly) rate ceiling from time to time in effect.
Nothing set forth in this subsection 11.11 is intended to or shall limit the
effect or operation of subsection 11.12.
For purposes of this subsection 11.11, "Highest Lawful Rate"
shall mean the maximum rate of nonusurious interest that may be contracted for,
charged, taken, reserved or received on the Revolving Credit Notes under laws
applicable to the Administrative Agent and the Lenders.
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11.12 GOVERNING LAW. THIS AGREEMENT AND THE REVOLVING CREDIT
NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND
THE REVOLVING CREDIT NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.13 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgement
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 11.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary or punitive
damages.
11.14 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Revolving Credit Notes
and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower or any other Loan
Party arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between Administrative Agent
and Lenders, on one hand, and the Borrower and the other Loan Parties,
on the other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
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(c) no joint venture exists among the Lenders or among the
Borrower and the other Loan Parties and the Lenders.
11.15 Confidentiality. Each of the Administrative Agent, the
Co-Arranger and each Lender agrees that it will hold in confidence, any
information provided to such Person pursuant to this Agreement; provided, that
nothing in this subsection 11.15 shall be deemed to prevent the disclosure by
the Administrative Agent, the Co-Arranger or any Lender of any such information
(a) to any employee, officer, director, accountant, attorney or consultant of
such Person, or any examiner or other Governmental Authority, (b) that has been
or is made public by Leviathan, the Borrower or any of its Subsidiaries or
Affiliates or by any third party without breach of this Agreement or that
otherwise becomes generally available to the public other than as a result of a
disclosure in violation of this subsection 11.15, (c) that is or becomes
available to any such Person from a third party on a non-confidential basis,
(d) that is required to be disclosed by any Requirement of Law, including to
any bank examiners or regulatory authorities, (e) that is required to be
disclosed by any court, agency, arbitrator or legislative body, or (f) to any
Transferee or proposed Transferee.
11.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT, THE CO-ARRANGER AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR THE REVOLVING CREDIT NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
11.17 ACKNOWLEDGEMENT OF NO CLAIMS, OFFSETS OR DEFENSES; RELEASE
BY THE LOAN PARTIES. BORROWER, ON BEHALF OF ITSELF AND EACH OF THE OTHER LOAN
PARTIES, ACKNOWLEDGES THAT NO LOAN PARTY NOR ANY OF THEIR RESPECTIVE OWNERS,
DIRECTORS, SUCCESSORS, ASSIGNS, AGENTS, OFFICERS, EMPLOYEES, AND
REPRESENTATIVES (COLLECTIVELY, THE "BORROWER AFFILIATES PARTIES") HAS ANY
CLAIM, DEMAND, RIGHT OF OFFSET, CAUSE OF ACTION IN LAW OR IN EQUITY, LIABILITY
OR DAMAGES OF ANY NATURE WHATSOEVER, WHETHER FIXED OR CONTINGENT (HEREINAFTER
COLLECTIVE CALLED "CLAIMS") THAT COULD BE ASSERTED IN CONNECTION WITH, OR WHICH
WOULD IN ANY OTHER MANNER BE RELATED TO, THE EXISTING CREDIT AGREEMENT OR ANY
PROMISSORY NOTES OR OTHER AGREEMENTS, TRANSACTIONS OR OTHER ACTIONS PRIOR TO
THE DATE HEREOF INVOLVING ANY OF THE BORROWER AFFILIATED PARTIES AND LENDERS
("THE PRIOR AGREEMENTS AND ACTIVITIES"). NOTWITHSTANDING THE FOREGOING,
HOWEVER, BORROWER HEREBY AGREES THAT IN CONSIDERATION OF THE CREDIT EXTENDED TO
BORROWER UNDER THE LOAN DOCUMENTS AND AS A MATERIAL INDUCEMENT TO THE LENDERS
TO ENTER INTO SUCH LOAN DOCUMENTS AND EXTEND SUCH CREDIT TO BORROWER, BORROWER,
ON BEHALF OF ITSELF AND ALL OF THE OTHER BORROWER AFFILIATED PARTIES HEREBY
RELEASES AND FOREVER DISCHARGES, EACH LENDER,
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EACH SUBSEQUENT HOLDER OF ANY OF THE REVOLVING CREDIT NOTES, AND EACH AND ALL
OF THEIR PARENT, SUBSIDIARY AND AFFILIATED CORPORATIONS PAST AND PRESENT, AS
WELL AS THEIR RESPECTIVE OWNERS, DIRECTORS, SUCCESSORS, ASSIGNS, AGENTS,
OFFICERS, EMPLOYEES, AND REPRESENTATIVES (COLLECTIVELY, THE "RELEASED
PARTIES"), OF AND FROM ANY AND ALL CLAIMS WHICH BORROWER AND THE OTHER BORROWER
AFFILIATED PARTIES MAY HAVE OR HEREAFTER ACQUIRE AGAINST ANY OR ALL OF THE
RELEASED PARTIES BY REASON OF, OR RELATED IN ANY WAY TO, THE PRIOR AGREEMENTS
AND ACTIVITIES.
11.18 Releases. (a) At such time as the Revolving Credit
Loans, the Reimbursement Obligations and any other obligations under this
Agreement shall have been paid in full, the Revolving Credit Commitments have
been terminated and no Letters of Credit shall be outstanding, the Collateral
shall be released from the Liens created by the Loan Documents, and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Loan Party thereunder and under the other
Loan Documents shall terminate, all without delivery of any instrument or
performance of any act by any party, and all rights to the Collateral shall
revert to the respective Loan Parties. At the request and expense of any Loan
Party following any such termination, the Administrative Agent shall deliver to
such Loan Party any Collateral held by the Administrative Agent under the
Security Documents, and execute and deliver to such Loan Party such documents
as such Loan Party shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or
otherwise disposed of by any Loan Party in a transaction permitted by this
Agreement or such Loan Party is designated as an Unrestricted Subsidiary in
accordance with the terms of this Agreement, then the Lenders authorize the
Administrative Agent, at the request and expense of such Loan Party, to execute
and deliver to such Loan Party all releases or other documents reasonably
necessary or desirable for the release of the Liens created by the applicable
Security Documents on such Collateral. At the request and sole expense of the
Borrower, the Lenders authorize the Administrative Agent to release a Loan
Party from its obligations under the applicable Security Document in the event
that all the Capital Stock of such Loan Party shall be sold, transferred or
otherwise disposed of in a transaction permitted by this Agreement or such Loan
Party is designated as an Unrestricted Subsidiary in accordance with the terms
of this Agreement, provided that the Borrower shall have delivered to the
Administrative Agent, at least five Business Days prior to the date of the
proposed release, a written request for release identifying the relevant Loan
Party and the terms of the sale or other disposition in reasonable detail,
including the price thereof and any expenses in connection therewith, together
with a certification by the Borrower stating that such transaction is in
compliance with this Agreement and the other Loan Documents.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
LEVIATHAN GAS PIPELINE PARTNERS,
L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent and
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ING (U.S.)
CAPITAL CORPORATION,
as Co-Arranger and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇
Title: Managing Director
DEN NORSKE BANK AS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
92
▇▇▇▇▇ FARGO BANK TEXAS, N.A.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Vice President
MEESPIERSON N.V.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANK OF SCOTLAND
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANQUE PARIBAS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ Pascal Poupelle
-------------------------------------
Name: Pascal Poupelle
Title: Senior Vice President
▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
ARAB BANKING CORPORATION (B.S.C.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CREDIT AGRICOLE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇, F.V.P.
Title: Head of Corporate Banking,
Chicago
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ M. D. ▇▇▇▇▇
-------------------------------------
Name: M. D. ▇▇▇▇▇
Title: Agent
HIBERNIA NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
94
SCHEDULE II
DESCRIPTION OF MANTA RAY GATHERING SYSTEM