CREDIT AGREEMENT
Dated as of December 16, 1998
Among
BUCKEYE PIPE LINE COMPANY, L.P.,
as Borrower,
BUCKEYE PARTNERS, L.P.,
as Guarantor,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation Agent
and
THE LENDERS SIGNATORY HERETO
$100,000,000 REVOLVING CREDIT FACILITY
TABLE OF CONTENTS
ARTICLE I
Definitions and Accounting Matters
Page
----
Section 1.01 Terms Defined Above............................................1
Section 1.02 Certain Defined Terms..........................................1
Section 1.03 Accounting Terms and Determinations...........................16
ARTICLE II
Commitments
Section 2.01 Loans and Letters of Credit...................................17
Section 2.02 Borrowings, Continuations and Conversions of
Revolving Credit Loans; Letters of Credit.....................18
Section 2.03 Changes of Commitments........................................20
Section 2.04 Fees..........................................................21
Section 2.05 Several Obligations...........................................22
Section 2.06 Notes.........................................................22
Section 2.07 Prepayments...................................................23
Section 2.08 Assumption of Risks...........................................23
Section 2.09 Obligation to Reimburse and to Prepay.........................24
Section 2.10 Lending Offices...............................................25
ARTICLE III Payments of Principal and Interest
Section 3.01 Repayment of Loans............................................26
Section 3.02 Interest......................................................26
ARTICLE IV
Payments; Pro Rata Treatment; Computations; Etc.
Section 4.01 Payments......................................................27
Section 4.02 Pro Rata Treatment............................................27
Section 4.03 Computations..................................................27
-i-
Section 4.04 Non-receipt of Funds by the Agent.............................28
Section 4.05 Set-off, Sharing of Payments, Etc.............................28
Section 4.06 Taxes.........................................................29
ARTICLE V
Capital Adequacy
Section 5.01 Additional Costs..............................................32
Section 5.02 Limitation on LIBOR Loans.....................................33
Section 5.03 Illegality....................................................34
Section 5.04 Base Rate Loans Pursuant to Sections 5.01, 5.02 and 5.03......34
Section 5.05 Compensation..................................................34
Section 5.06 Replacement Lenders...........................................35
ARTICLE VI
Conditions Precedent
Section 6.01 Initial Funding...............................................36
Section 6.02 Initial and Subsequent Loans and Letters of Credit............37
Section 6.03 Conditions Precedent for the Benefit of Lenders...............38
Section 6.04 No Waiver.....................................................38
ARTICLE VII
Representations and Warranties
Section 7.01 Existence.....................................................38
Section 7.02 Financial Condition...........................................38
Section 7.03 Litigation....................................................39
Section 7.04 No Breach.....................................................39
Section 7.05 Authority.....................................................39
Section 7.06 Approvals.....................................................39
Section 7.07 Use of Loans..................................................40
Section 7.08 ERISA.........................................................40
Section 7.09 Taxes.........................................................41
Section 7.10 Titles, etc...................................................41
Section 7.11 No Material Misstatements.....................................42
Section 7.12 Investment Company Act........................................42
Section 7.13 Public Utility Holding Company Act............................42
-ii-
Section 7.14 Subsidiaries..................................................42
Section 7.15 Location of Business and Offices..............................42
Section 7.16 Defaults......................................................42
Section 7.17 Environmental Matters.........................................42
Section 7.18 Compliance with the Law.......................................43
Section 7.19 Insurance.....................................................44
Section 7.20 Material Agreements...........................................44
Section 7.21 Partnership Agreement.........................................44
Section 7.22 Ownership of Parties..........................................44
ARTICLE VIII
Affirmative Covenants
Section 8.01 Reporting Requirements........................................45
Section 8.02 Litigation....................................................46
Section 8.03 Maintenance, Etc..............................................47
Section 8.04 Environmental Matters.........................................47
Section 8.05 Further Assurances............................................48
Section 8.06 Performance of Obligations....................................48
Section 8.07 ERISA Information and Compliance..............................48
Section 8.08 Year 2000 Compatibility.......................................49
ARTICLE IX
Negative Covenants
Section 9.01 Debt..........................................................49
Section 9.02 Liens.........................................................50
Section 9.03 Investments, Loans and Advances...............................50
Section 9.04 Distributions and Redemptions.................................51
Section 9.05 Sales and Leasebacks..........................................51
Section 9.06 Nature of Business............................................52
Section 9.07 Limitation on Leases..........................................52
Section 9.08 Mergers, Etc..................................................52
Section 9.09 Proceeds of Notes; Letters of Credit..........................52
Section 9.10 ERISA Compliance..............................................52
Section 9.11 Sale or Discount of Receivables...............................54
Section 9.12 Funded Debt Ratio.............................................54
Section 9.13 Fixed Charge Coverage Ratio...................................54
Section 9.14 Sale of Properties............................................54
Section 9.15 Environmental Matters.........................................54
Section 9.16 Transactions with Affiliates..................................54
Section 9.17 Partnership Agreements........................................54
Section 9.18 Senior Notes..................................................55
-iii-
ARTICLE X
Events of Default; Remedies
Section 10.01 Events of Default............................................55
Section 10.02 Remedies.....................................................57
ARTICLE XI
The Agent
Section 11.01 Appointment, Powers and Immunities...........................57
Section 11.02 Reliance by Agent............................................58
Section 11.03 Defaults.....................................................58
Section 11.04 Rights as a Lender...........................................58
Section 11.05 INDEMNIFICATION..............................................59
Section 11.06 Non-Reliance on Agent and other Lenders......................59
Section 11.07 Action by Agent..............................................59
Section 11.08 Resignation or Removal of Agent..............................60
ARTICLE XII
Miscellaneous
Section 12.01 Waiver.......................................................60
Section 12.02 Notices......................................................60
Section 12.03 Payment of Expenses, Indemnities, etc........................61
Section 12.04 Amendments, Etc..............................................63
Section 12.05 Successors and Assigns.......................................63
Section 12.06 Assignments and Participations...............................63
Section 12.07 Invalidity...................................................65
Section 12.08 Counterparts.................................................65
Section 12.09 References...................................................65
Section 12.10 Survival.....................................................65
Section 12.11 Captions.....................................................65
Section 12.12 NO ORAL AGREEMENTS...........................................66
Section 12.13 GOVERNING LAW; SUBMISSION TO JURISDICTION....................66
Section 12.14 Interest.....................................................67
Section 12.15 Confidentiality..............................................68
Section 12.16 EXCULPATION PROVISIONS.......................................68
-iv-
ANNEXES, EXHIBITS AND SCHEDULES
Annex I - List of Percentage Shares and Revolving Credit Commitments
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Swing Line Note
Exhibit B - Form of Borrowing, Continuation and Conversion Request
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Assignment Agreement
Exhibit E - Unrestricted Subsidiaries designated on the Closing Date
Schedule 7.02 - Liabilities
Schedule 7.03 - Litigation
Schedule 7.10 - Titles, etc.
Schedule 7.14 - Subsidiaries and Partnerships
Schedule 7.17 - Environmental Matters
Schedule 7.21 - Material Agreements
Schedule 9.01 - Debt
Schedule 9.02 - Liens
Schedule 9.03 - Investments, Loans and Advances
-vi-
THIS CREDIT AGREEMENT dated as of December 16, 1998 is among: BUCKEYE
PIPE LINE COMPANY, L.P., a limited partnership formed under the laws of the
State of Delaware (the "Borrower"); BUCKEYE PARTNERS, L.P., a limited
partnership formed under the laws of the State of Delaware ("Buckeye Partners");
each of the lenders that is a signatory hereto or which becomes a signatory
hereto as provided in Section 12.06 (individually, together with its successors
and assigns, a "Lender" and, collectively, the "Lenders"); FIRST UNION NATIONAL
BANK, a national banking association (in its individual capacity, "First
Union"), as administrative agent for the Lenders (in such capacity, together
with its successors in such capacity, the "Agent"); and THE FIRST NATIONAL BANK
OF CHICAGO, a national banking association, as documentation agent.
R E C I T A L S
A. The Borrower has requested that the Lenders provide certain loans to
and extensions of credit on behalf of the Borrower; and
B. The Lenders have agreed to make such loans and extensions of credit
subject to the terms and conditions of this Agreement.
C. In consideration of the mutual covenants and agreements herein
contained and of the loans, extensions of credit and commitments hereinafter
referred to, the parties hereto agree as follows:
ARTICLE I
Definitions and Accounting Matters
Section 1.01 Terms Defined Above. As used in this Agreement, the terms
"Agent," "Borrower," "Buckeye Partners," "Lender," "Lenders," and "First Union"
shall have the meanings indicated above.
Section 1.02 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all terms defined in this Article I or in
other provisions of this Agreement in the singular to have equivalent meanings
when used in the plural and vice versa):
"Additional Costs" shall have the meaning assigned such term in Section
5.01(a).
"Affected Loans" shall have the meaning assigned such term in Section
5.04.
"Affiliate" of any Person shall mean (i) any Person directly or
indirectly controlled by, controlling or under common control with such first
Person, (ii) any director or officer of such first Person or of any Person
referred to in clause (i) above and (iii) if any Person in clause (i) above is
an individual, any member of the immediate family (including parents, spouse and
children) of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any Person who is
controlled by any such member or trust. For purposes of this definition, any
Person which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation or 10%
or more of the partnership or other ownership interests of any other Person
(other than as a limited partner of such other Person) will be deemed to
"control" (including, with its correlative meanings, "controlled by" and "under
common control with") such corporation or other Person.
"Agreement" shall mean this Credit Agreement, as the same may from time
to time be amended or supplemented.
"Aggregate Revolving Credit Commitments" at any time shall equal the
sum of the Revolving Credit Commitments of the Lenders ($100,000,000), as the
same may be reduced pursuant to Section 2.03(a).
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the lending office of such Lender (or an Affiliate of such Lender)
designated for such Type of Loan on the signature pages hereof or such other
offices of such Lender (or of an Affiliate of such Lender) as such Lender may
from time to time specify to the Agent and the Borrower as the office by which
its Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean for each period identified below the
applicable per annum percentage set forth at the appropriate intersection in the
table shown below, based on the Funded Debt Ratio, for the four quarterly
periods ending on and determined as of the immediately preceding Quarterly Date:
--------------------------------------------------------------------------------
Funded Debt Ratio Base Rate Loan LIBOR Loan
--------------------------------------------------------------------------------
Greater than or equal to 4.5:1.0 0.000% 1.000%
--------------------------------------------------------------------------------
Less than 4.5:1.0, but greater 0.000% 0.775%
than or equal to 4.0:1.0
--------------------------------------------------------------------------------
Less than 4.0:1.0, but greater 0.000% 0.525%
than or equal to 3.5:1.0
--------------------------------------------------------------------------------
Less than 3.5:1.0, but greater 0.000% 0.400%
than or equal to 3.0:1.0
--------------------------------------------------------------------------------
Less than 3.0:1.0, but greater 0.000% 0.325%
than or equal to 2.5:1.0
--------------------------------------------------------------------------------
Less than 2.5:1.0 0.000% 0.250%
--------------------------------------------------------------------------------
The Applicable Margin shall be established following each Quarterly Date (each,
a "Determination Date"). Any change in the Applicable Margin following each
Determination Date shall be determined based upon the information and
computations set forth in the Compliance Certificate furnished to the Agent
pursuant to Section 8.01, subject to review and approval of such computations by
the Agent. Each change in the Applicable Margin shall be effective as of the
fifth Business Day following the date such Compliance Certificate and related
financial statements are received (including, without limitation, in respect of
LIBOR Loans then outstanding notwithstanding that such change occurs during an
Interest Period), and shall remain in effect until the date that is the fifth
-2-
Business Day following the first to occur of the date on which a new Compliance
Certificate (i) is delivered for which a change in the Applicable Margin occurs
or (ii) is required to be delivered; provided, however; if the Borrower shall
fail to deliver any required Compliance Certificate within the time period
required by Section 8.01, then, five Business Days after delivery of notice to
the Borrower by the Agent of non-receipt of such Compliance Certificate, the
Applicable Margin shall be the highest percentage amount stated for each Type of
Loan as set forth in the above table until the appropriate Compliance
Certificate is so delivered. From the Closing Date to the first Determination
Date, the Applicable Margin for LIBOR Loans shall be 0.325%.
"Assignment" shall have the meaning assigned such term in Section
12.06(b).
"Base Rate" shall mean, with respect to any Base Rate Loan, for any
day, the higher of (i) the Federal Funds Rate for any such day plus 1/2 of 1% or
(ii) the Prime Rate for such day. Each change in any interest rate provided for
herein based upon the Base Rate resulting from a change in the Base Rate shall
take effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans that bear interest at rates based
upon the Base Rate.
"BMC" shall mean Buckeye Management Company, a Delaware corporation.
"Borrower Partnership Agreement" shall mean the Amended and Restated
Agreement of Limited Partnership of Buckeye Pipe Line Company, L.P., dated as of
December 23, 1986, as amended from time to time.
"Buckeye Partners Partnership Agreement" shall mean the Amended and
Restated Agreement of Limited Partnership of Buckeye Partners dated as of July
17, 1998, as amended from time to time.
"Business Day" shall mean any day other than a day on which commercial
banks are authorized or required to close in New York and, where such term is
used in the definition of "Quarterly Date" or if such day relates to a borrowing
or continuation of, a payment or prepayment of principal of or interest on, or a
conversion of or into, or the Interest Period for, a LIBOR Loan or a notice by
the Borrower with respect to any such borrowing or continuation, payment,
prepayment, conversion or Interest Period, any day which is also a day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Change of Control" shall mean either (i) a change resulting when any
Unrelated Person or any Unrelated Persons acting together which would constitute
a Group together with any Affiliates thereof (in each case also constituting
Unrelated Persons) shall at any time Beneficially Own more than 50% of the
aggregate voting power of all classes of Voting Stock of BMC, (ii) BMC or a
wholly-owned Subsidiary of BMC shall cease to own 100% of the general
partnership interest of Buckeye Partners, (iii) BMC shall cease to own 100% of
the outstanding stock of Buckeye Pipe Line Company on a fully diluted basis, or
(iv) Buckeye Pipe Line Company shall cease to own 100% of the general
partnership interest of the Borrower. As used herein (a) "Beneficially Own"
means "beneficially own" as defined in Rule 13d-3 of the Securities Exchange Act
of 1934, as amended, or any successor provision thereto; provided, however,
that, for purposes of this definition, (a) a Person shall not be deemed to
Beneficially Own securities tendered pursuant to a tender or exchange
-3-
offer made by or on behalf of such Person or any of such Person's Affiliates
until such tendered securities are accepted for purchase or exchange; (b)
"Group" means a "group" for purposes of Section 13(d) of the Securities Exchange
Act of 1934, as amended; (c) "Unrelated Person" means at any time any Person
other than (A) Glenmoor, Ltd. and the stockholders thereof as of the date
hereof, (B) their respective spouses, lineal descendants, and spouses of their
lineal descendants, (C) the estates of the Persons described in clauses (A) and
(B), and (D) trusts established solely for the benefit of any Person or Persons
described in clauses (A) and (B); and (d) "Voting Stock" of any Person shall
mean capital stock of such Person which ordinarily has voting power for the
election of directors (or persons performing similar functions) of such Person,
whether at all times or only so long as no senior class of securities has such
voting power by reason of any contingency.
"Closing Date" shall mean December 16, 1998.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and any successor statute.
"Commitment" shall mean, for any Lender, its obligation to make
Revolving Credit Loans and to participate in Swing Line Loans as provided in
Section 2.01(b) and Letters of Credit as provided in Section 2.01(c), up to such
Lender's Revolving Credit Commitment.
"Compliance Certificate" shall mean a certificate from the Borrower or
Buckeye Partners substantially in the form of Exhibit C.
"Consolidated Net Income" shall mean, with respect to any Person for
any period, the aggregate of the net income (or loss) of such Person and its
Consolidated Subsidiaries after allowances for taxes for such period, determined
on a consolidated basis in accordance with GAAP; provided that there shall be
excluded from such net income (to the extent otherwise included therein) the
following: (i) the net income of any other Person in which such Person or any of
its Consolidated Subsidiaries has an interest (which interest does not cause the
net income of such other Person to be consolidated with the net income of such
Person and its Consolidated Subsidiaries in accordance with GAAP), except to the
extent of the amount of dividends or distributions actually paid in such period
by such other Person to such Person or to a Consolidated Subsidiary of such
Person, as the case may be; (ii) the net income (but not loss) of any
Consolidated Subsidiary of such Person to the extent that the declaration or
payment of dividends or similar distributions or transfers or loans by that
Consolidated Subsidiary is not at the time permitted by operation of the terms
of its charter or any agreement, instrument or Governmental Requirement
applicable to such Consolidated Subsidiary, or is otherwise restricted or
prohibited in each case determined in accordance with GAAP; (iii) the net income
(or loss) of any other Person acquired in a pooling-of-interests transaction for
any period prior to the date of such transaction; (iv) any extraordinary gains
or losses, including gains or losses attributable to Property sales not in the
ordinary course of business; and (v) the cumulative effect of a change in
accounting principles resulting in any gains or losses attributable to writeups
or write downs of assets or liabilities.
"Consolidated Subsidiaries" shall mean each Subsidiary of any Person
(whether now existing or hereafter created or acquired) the financial statements
of which shall be (or should have been) consolidated with the financial
statements of such Person in accordance with GAAP.
-4-
"Debt" shall mean, for any Person the sum of the following (without
duplication): (i) all obligations of such Person for borrowed money or evidenced
by bonds, debentures, notes or other similar instruments (including principal,
interest, fees and charges); (ii) all obligations of such Person (whether
contingent or otherwise) in respect of bankers' acceptances, letters of credit,
surety or other bonds and similar instruments; (iii) all obligations of such
Person to pay the deferred purchase price of Property or services (other than
for borrowed money); (iv) all obligations under leases which shall have been, or
should have been, in accordance with GAAP, recorded as capital leases in respect
of which such Person is liable (whether contingent or otherwise); (v) all
obligations under operating leases which require such Person or its Affiliate to
make rental payments over the term of such lease, based on the purchase price or
appraised value of the Property subject to such lease plus a marginal interest
rate, and used primarily as a financing vehicle for, or to monetize, such
Property; (vi) all Debt (as described in the other clauses of this definition)
and other obligations of others secured by a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person; (vii) all Debt (as described
in the other clauses of this definition) and other obligations of others
guaranteed by such Person or in which such Person otherwise assures a creditor
against loss of the debtor or obligations of others; (viii) all obligations or
undertakings of such Person to maintain or cause to be maintained the financial
position or covenants of others or to purchase the Debt or Property of others;
(ix) obligations to deliver goods or services not in the ordinary course of
business in consideration of advance payments; (x) obligations to pay for goods
or services not in the ordinary course of business whether or not such goods or
services are actually received or utilized by such Person; (xi) any capital
stock of such Person in which such Person has a mandatory obligation to redeem
such stock; (xii) any Debt of a Special Entity for which such Person is liable
either by agreement or because of a Governmental Requirement; and (xiii) all
obligations of such Person under Hedging Agreements.
"Default" shall mean an Event of Default or an event which with notice
or lapse of time or both would become an Event of Default.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean for any Person for any period, the sum of
Consolidated Net Income for such period plus the following expenses or charges
to the extent deducted from Consolidated Net Income in such period: interest,
taxes, depreciation, depletion and amortization; provided, however, with respect
to the Borrower, if during any period the Borrower acquires any Person and such
Person becomes a Restricted Affiliate or the Borrower acquires all or
substantially all of the assets of any Person, the EBITDA attributable to such
Person or assets for such period determined on a pro forma basis (which
determination, in each case, shall be subject to the approval of the Required
Lenders, not to be unreasonably withheld) may be included in EBITDA for the
calculation of the Funded Debt Ratio.
"Environmental Laws" shall mean any and all Governmental Requirements
pertaining to health or the environment in effect in any and all jurisdictions
in which the Borrower or any Subsidiary is conducting or at any time has
conducted business, or where any Property of the Borrower or any Subsidiary is
located, including without limitation, the Oil Pollution Act of 1990 ("OPA"),
the Clean Air Act, as amended, the Comprehensive Environmental, Response,
Compensation, and Liability Act of 1980 ("CERCLA"), as amended, the Federal
Water Pollution
-5-
Control Act, as amended, the Occupational Safety and Health Act of 1970, as
amended, the Resource Conservation and Recovery Act of 1976 ("RCRA"), as
amended, the Safe Drinking Water Act, as amended, the Toxic Substances Control
Act, as amended, the Superfund Amendments and Reauthorization Act of 1986, as
amended, the Hazardous Materials Transportation Act, as amended, and other
environmental conservation or protection laws. The term "oil" shall have the
meaning specified in OPA, the terms "hazardous substance" and "release" (or
"threatened release") have the meanings specified in CERCLA, and the terms
"solid waste" and "disposal" (or "disposed") have the meanings specified in
RCRA; provided, however, that (i) in the event either OPA, CERCLA or RCRA is
amended so as to broaden the meaning of any term defined thereby, such broader
meaning shall apply subsequent to the effective date of such amendment and (ii)
to the extent the laws of the state in which any Property of the Borrower or any
Subsidiary is located establish a meaning for "oil," "hazardous substance,"
"release," "solid waste" or "disposal" which is broader than that specified in
either OPA, CERCLA or RCRA, such broader meaning shall apply.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time and any successor statute.
"ERISA Affiliate" shall mean each trade or business (whether or not
incorporated) which together with the Borrower or any Subsidiary would be deemed
to be a "single employer" within the meaning of section 4001(b)(1) of ERISA or
subsections (b), (c), (m) or (o) of section 414 of the Code.
"ERISA Event" shall mean (i) a "Reportable Event" described in Section
4043 of ERISA and the regulations issued thereunder, (ii) the withdrawal of the
Borrower, any Subsidiary or any ERISA Affiliate from a Plan during a plan year
in which it was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, (iii) the filing of a notice of intent to terminate a Plan or the
treatment of a Plan amendment as a termination under Section 4041 of ERISA, (iv)
the institution of proceedings to terminate a Plan by the PBGC or (v) any other
event or condition which might constitute grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Plan.
"Event of Default" shall have the meaning assigned such term in Section
10.01.
"Excepted Liens" shall mean:
(i) Prior Liens;
(ii) statutory Liens incidental to the conduct of business or
the ownership of Properties of the Borrower and the Restricted
Affiliates (including Liens in connection with worker's compensation,
unemployment insurance and other like laws (other than ERISA Liens),
warehousemen's and mechanics' and materialmen's liens and statutory
landlord's liens) which in each case are incurred in the ordinary
course of business and not in connection with the borrowing of money,
the obtaining of advances or credit or the payment of the deferred
purchase price of Property and which do not in any event materially
impair the value or use of the Property encumbered thereby in the
operation of the businesses of the Borrower and the Restricted
Affiliates; provided in each case, that the obligation secured is
-6-
not overdue or, if overdue, (i) is being contested by the Borrower or a
Restricted Affiliate on a timely basis in good faith and in appropriate
proceedings, and the Borrower or a Restricted Affiliate has established
adequate reserves therefor in accordance with GAAP on the books of the
Borrower or such Restricted Affiliate or (ii) such Liens in the
aggregate do not secure obligations in the aggregate in excess of
$1,000,000;
(iii) the right reserved to, or vested in, any municipality or
public authority or in any other Person by the terms of any right,
power, franchise, privilege, grant, license, permit, easement or lease
or by any provision of law, to terminate such right, power, franchise,
privilege, grant, license, permit, easement or lease or to purchase or
recapture, or to designate a purchaser of, any of the Properties or
assets of the Borrower and the Restricted Affiliates;
(iv) the lien of taxes and assessments which are not at the
time delinquent;
(v) the lien of taxes and assessments which are delinquent,
but the validity of which is being diligently contested at the time by
the Borrower or any of the Restricted Affiliates in good faith,
provided that the Borrower or such Restricted Affiliate shall have
established such reserves in such amounts as may be required under
GAAP;
(vi) any lien or privilege vested in any grantor, lessor or
licensor or permittor for rent or other charges due or for any other
obligations or acts to be performed, the payment of which rent or other
charges or performance of which other obligations or acts is required
under leases, easements, rights-of-way, leases, licenses, franchises,
privileges, grants or permits, so long as payment of such rent or the
performance of such other obligations or acts is not delinquent or the
requirement for such payment or performance is being contested in good
faith by appropriate proceedings;
(vii) defects and irregularities in the titles to its
Properties which do not in the aggregate have a Material Adverse
Effect;
(viii) easements, exceptions or reservations in any Property
of the Borrower or any of the Restricted Affiliates granted or reserved
for the purpose of pipelines, roads, the removal of oil, gas, coal or
other minerals, and other like purposes or for the joint or common use
of real Property, facilities and equipment, which do not in the
aggregate have a Material Adverse Effect;
(ix) rights reserved to or vested in any grantor, lessor,
licensor, municipality or public authority to control or regulate any
Property of the Borrower or any of the Restricted Affiliates or to use
any such Property, provided, that the Borrower or such Restricted
Affiliate shall not be in default in respect of any material obligation
(except that the Borrower or such Restricted Affiliate may be
contesting any such obligation in good faith) to such grantor, lessor,
licensor, municipality or public authority; and provided, further, the
such control, regulation or use will not in the aggregate have a
Material Adverse Effect;
(x) any obligations or duties to any municipality or public
authority with respect to any lease, easement, right-of-way, license,
franchise, privilege, permit or grant;
-7-
(xi) the Liens of any judgments in an aggregate amount not in
excess of $500,000, or the Lien of any judgment the execution of which
has been stayed, or which has been appealed and secured, if necessary,
by the filing of an appeal bond;
(xii) Liens or burdens imposed by any law or governmental
regulation, including, without limitation, those imposed by
environmental and zoning laws, ordinances, and regulations; provided,
in each case, the Borrower or any of the Restricted Affiliates is not
in default in any material obligation (except that the Borrower or such
Restricted Affiliate may be contesting any such obligation in good
faith) to such person in respect of such Property; provided, further,
that the existence of such Liens and burdens do not in the aggregate
have a Material Adverse Effect;
(xiii) any pledge or deposit to secure payment of workers'
compensation or insurance premiums, or in connection with tenders,
bids, contracts or leases; or any deposits to secure public or
statutory obligations; any pledge or deposit in connection with
contracts with or made at the request of the United States America or
any state or agency or political subdivision thereof or for any
purposes similar to any of those referred to in this clause (xiii);
provided, in each case, the Borrower or such Restricted Affiliate is
not in default in any material obligation (except that the Borrower or
such Restricted Affiliate may be contesting any such obligation in good
faith) in respect thereof;
(xiv) the making of a deposit with or the giving of any form
of security to any governmental agency or any body created or approved
by law or governmental regulation in order to entitle the Borrower of
any of the Restricted Affiliates to maintain self-insurance;
(xv) Liens securing Debt of the Borrower or any of the
Restricted Affiliates incurred or assumed in connection with the
construction or acquisition of capital Improvements; provided that such
Debt would be permitted under Section 9.01(e) hereof, and provided,
further, that any such Lien shall not extend to any Property other than
Property the construction or acquisition of which is financed by such
Debt;
(xvi) Liens securing all or any part of the purchase price, or
securing Debt of the Borrower or any of the Restricted Affiliates
incurred or assumed to pay all or any part of the purchase price of
Property acquired by the Borrower or the Restricted Affiliates, or
Liens existing on such Property immediately prior to its acquisition,
including, without limitation, the Liens described in clause (xv) of
this definition, provided, that (i) that any such Liens shall extend
solely to the Property so acquired, (ii) the principal amount of Debt
secured by any such Lien shall not exceed 100% of the fair market value
of such Property (as reasonably determined by the Board of Directors of
the General Partner) at the time of acquisition, (iii) any such Lien
not existing on such Property immediately prior to its acquisition
shall be created at the time of acquisition of such Property or within
60 days thereafter and (iv) the aggregate amount of all outstanding
Debt secured by such Liens shall be permitted under Section 9.01(e);
-8-
(xv) Liens arising in connection with Sale-Leaseback
Transactions permitted under Section 9.05; provided that such Lien
shall not extend to any Property other than Property being leased; and
(xvi) any Lien of the Trustee encumbering the Defeasance Trust
(as defined in the Defeasance Trust Agreement) and all funds and
securities therein for the benefit of the holders of the Defeased
Notes.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight federal funds transactions with a
member of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if the date for which such rate is
to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate charged to the Agent on such day on such transactions as determined by the
Agent.
"Fee Letter" shall mean that certain letter agreement from FUCM and
First Union to the Borrower dated August 28, 1998 concerning certain fees in
connection with this Agreement and any agreements or instruments executed in
connection therewith, as the same may be amended or replaced from time to time.
"Financial Statements" shall mean the financial statement or statements
of Buckeye Partners and its Consolidated Subsidiaries described or referred to
in Section 7.02.
"FUCM" shall mean First Union Capital Markets, a division of Wheat
First Securities, Inc., a Virginia corporation.
"Funded Debt" shall mean for any Person, Debt of such Person, less all
obligations of such Person to pay the deferred purchase price of Property or
services obtained in the ordinary course of business.
"Funded Debt Ratio" shall mean the ratio (calculated quarterly at the
end of each fiscal quarter) of (i) the consolidated Funded Debt of Buckeye
Partners (excluding Unrestricted Subsidiaries and Affiliates of Buckeye Partners
that are not Restricted Affiliates) for the four fiscal quarters ending on such
date to (ii) the consolidated EBITDA of Buckeye Partners (excluding Unrestricted
Subsidiaries and Affiliates of Buckeye Partners that are not Restricted
Affiliates) for such four fiscal quarters.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"General Partner" shall mean Buckeye Pipe Line Company, a Delaware
corporation, general partner of the Borrower.
-9-
"Governmental Authority" shall include the country, the state, county,
city and political subdivisions in which any Person or such Person's Property is
located or which exercises valid jurisdiction over any such Person or such
Person's Property, and any court, agency, department, commission, board, bureau
or instrumentality of any of them including monetary authorities which exercises
valid jurisdiction over any such Person or such Person's Property. Unless
otherwise specified, all references to Governmental Authority herein shall mean
a Governmental Authority having jurisdiction over, where applicable, the
Borrower, its Subsidiaries or any of their Property or the Agent, any Lender or
any Applicable Lending Office.
"Governmental Requirement" shall mean any law, statute, code,
ordinance, order, determination, rule, regulation, judgment, decree, injunction,
franchise, permit, certificate, license, authorization or other directive or
requirement (whether or not having the force of law), including, without
limitation, Environmental Laws, energy regulations and occupational, safety and
health standards or controls, of any Governmental Authority.
"Guarantor" shall mean Buckeye Partners and any other Person that
executes a Guaranty Agreement.
"Guaranty Agreement" shall mean an agreement executed by each Guarantor
in form and substance satisfactory to the Agent unconditionally guaranteeing
payment of the Indebtedness, as the same may be amended, modified or
supplemented from time to time.
"Hedging Agreements" shall mean any commodity, interest rate or
currency swap, cap, floor, collar, forward agreement or other exchange or
protection agreements or any option with respect to any such transaction.
"Highest Lawful Rate" shall mean, with respect to each Lender, the
maximum nonusurious interest rate, if any, that at any time or from time to time
may be contracted for, taken, reserved, charged or received on the Notes or on
other Indebtedness under laws applicable to such Lender which are presently in
effect or, to the extent allowed by law, under such applicable laws which may
hereafter be in effect and which allow a higher maximum nonusurious interest
rate than applicable laws now allow.
"Indebtedness" shall mean any and all amounts owing or to be owing by
the Borrower, the Guarantors or any Restricted Affiliate to the Agent, the
Issuing Bank and/or the Lenders in connection with the Loan Documents, the
Letter of Credit Agreements, and any Hedging Agreements now or hereafter arising
between the Borrower and any Lender or its Affiliate and permitted by the terms
of this Agreement and all renewals, extensions and/or rearrangements of any of
the foregoing.
"Indemnified Parties" shall have the meaning assigned such term in
Section 12.03(a)(ii).
"Indemnity Matters" shall mean any and all actions, suits, proceedings
(including any investigations, litigation or inquiries), claims, demands and
causes of action made or threatened against a Person and, in connection
therewith, all losses, liabilities, damages (excluding, however, indirect and
consequential damages and lost profits) or reasonable costs and expenses of any
kind
-10-
or nature whatsoever incurred by such Person whether caused by the sole or
concurrent negligence of such Person seeking indemnification.
"Indenture" shall mean that certain Amended and Restated Indenture
dated as of December 16, 1997 between the Borrower and PNC Bank, National
Association, as Trustee, as amended and supplemented from time to time.
"Initial Funding" shall mean the funding of the initial Loans or
issuance of the initial Letters of Credit upon satisfaction of the conditions
set forth in Sections 6.01 and 6.02.
"Interest Period" shall mean, with respect to any LIBOR Loan, the
period commencing on the date such LIBOR Loan is made and ending on the
numerically corresponding day in the first, second, third or sixth calendar
month thereafter, as the Borrower may select as provided in Section 2.02 (or
such longer period as may be requested by the Borrower and agreed to by the
Required Lenders), except that each Interest Period which commences on the last
Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period may end after the
Revolving Credit Termination Date; (ii) no Interest Period for any LIBOR Loan
may end after the due date of any installment, if any, provided for in Section
3.01 to the extent that such LIBOR Loan would need to be prepaid prior to the
end of such Interest Period in order for such installment to be paid when due;
(iii) each Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day (or, if such next
succeeding Business Day falls in the next succeeding calendar month, on the next
preceding Business Day); and (iv) no Interest Period shall have a duration of
less than one month and, if the Interest Period for any LIBOR Loans would
otherwise be for a shorter period, such Loans shall not be available hereunder.
"Issuing Bank" shall mean First Union or any other Lender agreed to
between the Borrower and the Agent to issue Letters of Credit.
"LC Commitment" at any time shall mean $20,000,000.
"LC Exposure" at any time shall mean the aggregate face amount of all
undrawn and uncancelled Letters of Credit and the aggregate of all amounts drawn
under all Letters of Credit and not yet reimbursed.
"Letter of Credit Agreements" shall mean the written agreements with
the Issuing Bank, as issuing lender for any Letter of Credit, executed in
connection with the issuance by the Issuing Bank of the Letters of Credit, such
agreements to be on the Issuing Bank's customary form for letters of credit of
comparable amount and purpose as from time to time in effect or as otherwise
agreed to by the Borrower and the Issuing Bank.
-11-
"Letters of Credit" shall mean the letters of credit issued pursuant to
Section 2.01(c) and all reimbursement obligations pertaining to any such letters
of credit, and "Letter of Credit" shall mean any one of the Letters of Credit
and the reimbursement obligations pertaining thereto.
"LIBOR" shall mean the rate of interest determined on the basis of the
rate for deposits in Dollars for a period equal to the applicable Interest
Period commencing on the first day of such Interest Period appearing on Dow
▇▇▇▇▇ Market Service Page 3750 as of 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period. In the event that
such rate does not appear on Dow ▇▇▇▇▇ Market Service Page 3750, "LIBOR" shall
be determined by the Agent to be the rate per annum at which deposits in Dollars
are offered by leading reference banks in the London interbank market to First
Union at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of the applicable Interest Period for a period equal to such Interest
Period and in an amount substantially equal to the amount of the applicable
Loan.
"LIBOR Loans" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "LIBOR Rate".
"LIBOR Rate" shall mean, with respect to any LIBOR Loan, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
the Agent to be equal to the quotient of (i) LIBOR for such Loan for the
Interest Period for such Loan divided by (ii) 1 minus the Reserve Requirement
for such Loan for such Interest Period.
"Lien" shall mean any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and whether such
obligation or claim is fixed or contingent, and including but not limited to the
lien or security interest arising from a mortgage, encumbrance, pledge, security
agreement, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights of way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances affecting Property. For the
purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to be
the owner of any Property which it has acquired or holds subject to a
conditional sale agreement, or leases under a financing lease or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person in a transaction intended to create a financing.
"Loan Documents" shall mean this Agreement, the Notes, the Letters of
Credit, the Guaranty Agreement, the Letter of Credit Agreements, the Fee Letter,
and any and all other agreements or instruments now or hereafter executed and
delivered by the Borrower or any other Person (other than participation or
similar agreements between any Lender and any other lender or creditor with
respect to any Indebtedness pursuant to this Agreement) in connection with, or
as security for or guarantee of the payment or performance of the Notes or this
Agreement, or reimbursement obligations under the Letters of Credit, as such
agreements may be amended, supplemented or restated from time to time.
"Loans" shall mean the loans as provided for by Sections 2.01(a) and
(b). "Loans" shall include the Revolving Credit Loans and the Swing Line Loans.
-12-
"Material Adverse Effect" shall mean any material and adverse effect on
(i) the financial condition or results of operations of the Borrower, the
Restricted Subsidiaries, and Buckeye Partners, taken as a whole, different from
those reflected in the Financial Statements or from the facts represented or
warranted in any Loan Document, or (ii) the ability of the Borrower, the
Restricted Subsidiaries and Buckeye Partners, taken as a whole, to carry out
their business as at the Closing Date or as proposed as of the Closing Date to
be conducted or meet their obligations under the Loan Documents on a timely
basis.
"Multiemployer Plan" shall mean a Plan defined as such in Section 3(37)
or 4001(a)(3) of ERISA.
"Notes" shall mean the Notes provided for by Section 2.06, together
with any and all renewals, extensions for any period, increases, rearrangements,
substitutions or modifications thereof. The "Notes" shall include the Revolving
Credit Notes and the Swing Line Note.
"Other Taxes" shall have the meaning assigned such term in Section
4.06(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions.
"Percentage Share" shall mean the percentage of the Aggregate Revolving
Credit Commitments to be provided by a Lender under this Agreement as indicated
on Annex I hereto, as modified from time to time to reflect any assignments
permitted by Section 12.06(b).
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization or
government or any agency, instrumentality or political subdivision thereof, or
any other form of entity.
"Plan" shall mean any employee pension benefit plan, as defined in
Section 3(2) of ERISA, which (i) is currently or hereafter sponsored, maintained
or contributed to by the Borrower, any Subsidiary or an ERISA Affiliate or (ii)
was at any time during the preceding six calendar years sponsored, maintained or
contributed to, by the Borrower, any Subsidiary or an ERISA Affiliate.
"Post-Default Rate" shall mean, in respect of any principal of any Loan
or any other amount payable by the Borrower under this Agreement or any other
Loan Document , a rate per annum during the period commencing on the date of
occurrence of an Event of Default until such amount is paid in full or all
Events of Default are cured or waived equal to 2% per annum above the Base Rate
as in effect from time to time plus the Applicable Margin (if any), but in no
event to exceed the Highest Lawful Rate; provided however, for a LIBOR Loan, the
"Post-Default Rate" for such principal shall be, for the period commencing on
the date of occurrence of an Event of Default and ending on the earlier to occur
of the last day of the Interest Period therefor or the date all Events of
Default are cured or waived, 2% per annum above the interest rate for such Loan
as provided in Section 3.02(a)(ii), but in no event to exceed the Highest Lawful
Rate.
"Prime Rate" shall mean the rate of interest from time to time
announced publicly by the Agent at the Principal Office as its prime commercial
lending rate. Such rate is set by the Agent as
-13-
a general reference rate of interest, taking into account such factors as the
Agent may deem appropriate, it being understood that many of the Agent's
commercial or other loans are priced in relation to such rate, that it is not
necessarily the lowest or best rate actually charged to any customer and that
the Agent may make various commercial or other loans at rates of interest having
no relationship to such rate.
"Principal Office" shall mean the principal office of the Agent,
presently located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Prior Liens" shall mean any Liens not created by the Borrower or any
Restricted Affiliate, which at any time are Liens upon the lands over which the
Borrower or any Restricted Affiliate holds easements or rights-of-way for
Pipeline purposes, or upon Properties with respect to which the Borrower's or
such Restricted Affiliate's interest is subordinate to any such Lien, and which
do not secure bonds, notes, other indebtedness, taxes, assessments or other
charges which have been assumed or guaranteed by the Borrower or any Restricted
Affiliate or for which the Borrower or any Restricted Affiliate has otherwise
become liable or on which the Borrower or any Restricted Affiliate customarily
pays interest charges.
"Property" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Quarterly Dates" shall mean the last Business Day of each March, June,
September and December, in each year, the first of which shall be December 31,
1998.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be amended or
supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
after the Closing Date in any Governmental Requirement (including Regulation D)
or the adoption or making after such date of any interpretations, directives or
requests applying to a class of lenders (including such Lender or its Applicable
Lending Office) of or under any Governmental Requirement (whether or not having
the force of law) by any Governmental Authority charged with the interpretation
or administration thereof.
"Required Lenders" shall mean, at any time while no Loans are
outstanding, Lenders having at least fifty-one percent (51%) of the Aggregate
Commitments and, at any time while Loans are outstanding, Lenders holding at
least fifty-one percent (51%) of the outstanding aggregate principal amount of
the Loans and LC Exposure (without regard to any sale by a Lender of a
participation in any Loan under Section 12.06(c)).
"Required Payment" shall have the meaning assigned such term in Section
4.04.
"Reserve Requirement" shall mean, for any Interest Period for any LIBOR
Loan, the average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during such
Interest Period under Regulation D by member banks of the Federal Reserve System
in New York City with deposits exceeding one billion Dollars against
-14-
"Eurocurrency liabilities" (as such term is used in Regulation D). Without
limiting the effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks by reason of any
Regulatory Change against (i) any category of liabilities which includes
deposits by reference to which LIBOR is to be determined as provided in the
definition of "LIBOR" or (ii) any category of extensions of credit or other
assets which include a LIBOR Loan.
"Responsible Officer" shall mean, as to any Person, the Chief Executive
Officer, the President or any Vice President of such Person and, with respect to
financial matters, the term "Responsible Officer" shall include the Chief
Financial Officer of such Person. Unless otherwise specified, all references to
a Responsible Officer herein shall mean a Responsible Officer of the Borrower.
"Restricted Affiliates" shall mean the Restricted Subsidiaries, Buckeye
Tank Terminals, L.P., Everglades Pipe Line Company, L.P., Laurel Pipe Line
Company, L.P., and Buckeye Pipe Line Company of Michigan, L.P.
"Restricted Subsidiary" shall mean a Subsidiary of the Borrower or
Buckeye Partners that has not been designated by the Board of Directors of the
General Partner or of the general partner of Buckeye Partners, at its creation
or acquisition, as an Unrestricted Subsidiary. The Borrower or Buckeye Partners
may thereafter redesignate an Unrestricted Subsidiary as a Restricted Subsidiary
and it will thereafter be a Restricted Subsidiary; provided, that such
Restricted Subsidiary may not thereafter be redesignated as an Unrestricted
Subsidiary, and provided, further, that no Subsidiary may be designated as an
Unrestricted Subsidiary at any time other than at its creation. To qualify as a
Restricted Subsidiary, such Subsidiary shall be in a line of business as is
permitted for the Borrower under the Borrower Partnership Agreement or for
Buckeye Partners under the Buckeye Partners Partnership Agreement and shall have
executed a Guaranty Agreement, and at the time such Subsidiary is designated as
a Restricted Subsidiary no Default shall exist or result from such designation.
"Revolving Credit Commitment" shall mean, as to each Lender, the amount
set forth opposite such Lender's name on Annex I under the caption "Revolving
Credit Commitment" (as the same may be reduced pursuant to Section 2.03(a) pro
rata to each Lender based on its Percentage Share), as modified from time to
time to reflect any assignments permitted by Section 12.06(b).
"Revolving Credit Loans" shall mean Loans made pursuant to Section
2.01(a).
"Revolving Credit Notes" shall mean the promissory note or notes
(whether one or more) of the Borrower described in Section 2.06 and being in the
form of Exhibit A-1.
"Revolving Credit Termination Date" shall mean the earlier to occur of
(i) the fifth anniversary of the Closing Date or (ii) the date that the
Commitments are sooner terminated pursuant to Sections 2.03(a) or 10.02.
"Sale-Leaseback Attributable Debt" shall mean, as to any particular
lease relating to a Sale-Leaseback Transaction, the amount of the net sale
proceeds derived from the sale or transfer to the Borrower or any Restricted
Affiliate of the Property involved.
-15-
"Sale-Leaseback Transaction" shall mean a transaction or series of
transactions pursuant to which the Borrower or any Restricted Affiliate shall
sell or transfer to any Person any Property, whether now owned or hereafter
acquired, and as part of the same transaction or series of transactions, the
Borrower or any Restricted Affiliate shall rent or lease as lessee, or similarly
acquire the right to possession or use of, such property or one or more
Properties which it intends to use for the same purpose or purposes as such
Property.
"SEC" shall mean the Securities and Exchange Commission or any
successor Governmental Authority.
"Senior Notes" shall mean the 6.98% Series 1997A notes in the aggregate
principal amount of $125,000,000, the 6.89% Series 1997B notes in the aggregate
principal amount of $100,000,000, the 6.95% Series 1997C notes in the aggregate
principal amount of $10,000,000, and the 6.96% Series 1997D notes in the
aggregate principal amount of $5,000,000, each due December 16, 2024 and issued
pursuant to the Indenture.
"Special Entity" shall mean any joint venture, limited liability
company or partnership, general or limited partnership or any other type of
partnership or company other than a corporation in which Buckeye Partners or one
or more of its other Subsidiaries is a member, owner, partner or joint venturer
and owns, directly or indirectly, at least a majority of the equity of such
entity or controls such entity, but excluding any tax partnerships that are not
classified as partnerships under state law. For purposes of this definition, any
Person which owns directly or indirectly an equity investment in another Person
which allows the first Person to manage or elect managers who manage the normal
activities of such second Person will be deemed to "control" such second Person
(e.g. a sole general partner controls a limited partnership).
"Subsidiary" shall mean (i) any corporation of which at least a
majority of the outstanding shares of stock having by the terms thereof ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned or
controlled by the Borrower or Buckeye Partners or one or more of their
Subsidiaries or by the Borrower or Buckeye Partners and one or more of their
Subsidiaries and (ii) any Special Entity. Unless otherwise indicated herein,
each reference to the term "Subsidiary" shall mean a Subsidiary of the
Guarantor.
"Swing Line Commitment" shall mean, for the Swing Line Lender, its
obligation to make Swing Line Loans up to $5,000,000.
"Swing Line Facility" shall mean the facility pursuant to Section
2.01(b).
"Swing Line Lender" shall mean First Union or such other Lender as
Agent, Borrower and such Lender shall agree.
"Swing Line Loans" shall mean the Loans made pursuant to Section
2.01(b).
-16-
"Swing Line Note" shall mean the promissory note or notes (whether one
or more) of the Borrower described in Section 2.01(b) and being substantially in
the form of Exhibit A-2.
"Taxes" shall have the meaning assigned such term in Section 4.06(a).
"Type" shall mean, with respect to any Loan, a Base Rate Loan or a
LIBOR Loan.
"Unrestricted Subsidiary" shall mean those Persons listed on Exhibit E
and any Subsidiary of the Borrower that has been designated by the Board of
Directors of the General Partner as an "Unrestricted Subsidiary" at the time of
its creation or acquisition; provided that no Debt or other obligation of such
Unrestricted Subsidiary may be assumed or guaranteed by the Borrower or any
Restricted Subsidiary, nor may any asset of the Borrower or any Restricted
Subsidiary, directly or indirectly, contingently or otherwise, become encumbered
or otherwise subject to the satisfaction thereof.
Section 1.03 Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all determinations with respect to accounting matters hereunder
shall be made, and all financial statements and certificates and reports as to
financial matters required to be furnished to the Agent or the Lenders hereunder
shall be prepared, in accordance with GAAP, applied on a basis consistent with
the audited financial statements of the Borrower referred to in Section 7.02
(except for changes concurred with by the Borrower's independent public
accountants).
ARTICLE II
Commitments
Section 2.01 Loans and Letters of Credit.
(a) Revolving Credit Loans. Each Lender severally agrees, on
the terms and conditions of this Agreement, to make loans to the
Borrower during the period from and including (i) the Closing Date or
(ii) such later date that such Lender becomes a party to this Agreement
as provided in Section 12.06(b), to and up to, but excluding, the
Revolving Credit Termination Date in an aggregate principal amount at
any one time outstanding up to, but not exceeding, the amount of such
Lender's Revolving Credit Commitment as then in effect; provided,
however, that the aggregate principal amount of all such Revolving
Credit Loans by all Lenders hereunder at any one time outstanding, plus
the LC Exposure, plus the amount outstanding under the Swing Line
Facility shall not exceed the Aggregate Revolving Credit Commitments.
Subject to the terms of this Agreement, during the period from the
Closing Date to and up to, but excluding, the Revolving Credit
Termination Date, the Borrower may borrow, repay and reborrow the
amount described in this Section 2.01(a).
(b) Swing Line Loans.
(i) Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the
revolving facility under Section 2.01(a) above in
-17-
an efficient manner and to minimize the transfer of funds
between the Agent and the Lenders, the Swing Line Lender shall
make available Swing Line Loans to the Borrower at the
election of Borrower prior to the Revolving Credit Termination
Date. The Swing Line Lender shall not make any Swing Line Loan
pursuant hereto (i) if the Borrower is not in compliance with
all the conditions to the making of Loans set forth in this
Agreement, (ii) if after giving effect to such Swing Line
Loan, the outstanding Swing Line Loans exceed the Swing Line
Commitment, or (iii) if after giving effect to such Swing Line
Loan, the sum of all Revolving Credit Loans and Swing Line
Loans then outstanding, plus LC Exposure exceeds the Aggregate
Revolving Credit Commitments. Loans made pursuant to this
Section 2.01(b) shall be limited to Loans bearing interest at
the Base Rate or such other rate of interest as agreed upon by
the Borrower and the Swing Line Lender. The indebtedness of
the Borrower to the Swing Line Lender resulting from the
advances under this Section 2.01(b) shall be evidenced by the
Swing Line Note made by the Borrower, which Swing Line Note
shall be in a principal amount equal to the Swing Line
Commitment.
(ii) Subject to the terms of this Agreement, during
the period from the Closing Date to but excluding, the
Revolving Credit Termination Date, the Borrower may borrow,
repay and reborrow Swing Line Loans under this Section
2.01(b). Each repayment of a Swing Line Loan shall be in
integral multiples of $100,000 or the unpaid amount of the
Swing Line Loans outstanding. The minimum outstanding amount
of Swing Line Loans shall be $100,000.
(iii) If the Borrower instructs the Swing Line Lender
to debit its demand deposit account in an amount of any
payment with respect to a Swing Line Loan, or the Swing Line
Lender otherwise receives repayment after 12:00 noon Charlotte
time, on a Business Day, such payment shall be deemed received
on the next Business Day.
(iv) The Borrower and each Lender which is or may
become a party hereto acknowledge that all Swing Line Loans
are to be made solely by the Swing Line Lender to the
Borrower, but that each Lender shall share the risk of loss
with respect to such Loans in an amount equal to such Lender's
Percentage Share of such Swing Line Loan. Upon demand made by
the Swing Line Lender, each Lender (including the Swing Line
Lender) shall, according to its Percentage Share of such Swing
Line Loan, promptly provide to the Swing Line Lender its
purchase price therefor in an amount equal to its Percentage
Share therein, in which case such Swing Line Loan shall be
deemed from and after such date a Loan made under Section
2.01(a). The obligation of each Lender to so provide its
purchase price to the Swing Line Lender shall be absolute and
unconditional and shall not be affected by the occurrence of
an Event of Default or any other occurrence or event.
(c) Letters of Credit. During the period from and including
the Closing Date to, but excluding, the Revolving Credit Termination
Date, the Issuing Bank, as issuing bank for the Lenders, agrees to
extend credit for the account of the Borrower at any time and from
-18-
time to time by issuing, renewing, extending or reissuing Letters of
Credit; provided however, the LC Exposure at any one time outstanding
shall not exceed the lesser of (i) the LC Commitment or (ii) the
Aggregate Revolving Credit Commitments, as then in effect, minus the
aggregate principal amount of all Loans then outstanding. The Lenders
shall participate in such Letters of Credit according to their
respective Percentage Shares. Each of the Letters of Credit shall (i)
be issued by the Issuing Bank, (ii) contain such terms and provisions
as are reasonably required by the Issuing Bank, (iii) be for the
account of the Borrower and (iv) expire not later than the earlier of
(A) one year from the date of issuance or (B) five days before the
Revolving Credit Termination Date.
(d) Limitation on Types of Loans. Subject to the other terms
and provisions of this Agreement, at the option of the Borrower, the
Loans (other than Swing Line Loans) may be Base Rate Loans or LIBOR
Loans; provided that, without the prior written consent of the Required
Lenders, no more than five (5) LIBOR Loans may be outstanding at any
time.
Section 2.02 Borrowings, Continuations and Conversions of Revolving
Credit Loans; Letters of Credit.
(a) Borrowings. The Borrower shall give the Agent (which shall
promptly notify the Lenders) advance notice as hereinafter provided of
each borrowing under Section 2.01(a), which shall specify (i) the
aggregate amount of such borrowing, (ii) the Type and (iii) the date
(which shall be a Business Day) of the Loans to be borrowed, and (iv)
(in the case of LIBOR Loans) the duration of the Interest Period
therefor.
(b) Minimum Amounts. All Base Rate Loan borrowings (other than
Swing Line Loans) shall be in amounts of at least $1,000,000 or the
remaining balance of the Aggregate Revolving Credit Commitments, if
less, or any whole multiple of $1,000,000 in excess thereof, and all
LIBOR Loans shall be in amounts of at least $5,000,000 or any whole
multiple of $1,000,000 in excess thereof. All Swing Line Loans shall be
in amounts of at least $100,000 or any whole multiple of $100,000 in
excess thereof.
(c) Notices. All borrowings, continuations and conversions
shall require advance written notice to the Agent (which shall promptly
notify the Lenders) in the form of Exhibit B (or telephonic notice
promptly confirmed by such a written notice), which in each case shall
be irrevocable, from the Borrower to be received by the Agent not later
than 10:00 a.m. Charlotte time on the date of each Base Rate Loan
borrowing and not later than 10:00 a.m. Charlotte time at least three
Business Days prior to the date of each LIBOR Loan borrowing,
continuation or conversion. Without in any way limiting the Borrower's
obligation to confirm in writing any telephonic notice, the Agent may
act without liability upon the basis of telephonic notice believed by
the Agent in good faith to be from the Borrower prior to receipt of
written confirmation. In each such case, the Borrower hereby waives the
right to dispute the Agent's record of the terms of such telephonic
notice except in the case of gross negligence or willful misconduct by
the Agent.
(d) Continuation Options. Subject to the provisions made in
this Section 2.02(d), the Borrower may elect to continue all or any
part of any LIBOR Loan beyond the expiration
-19-
of the then current Interest Period relating thereto by giving advance
notice as provided in Section 2.02(c) to the Agent (which shall
promptly notify the Lenders) of such election, specifying the amount of
such Loan to be continued and the Interest Period therefor. In the
absence of such a timely and proper election, the Borrower shall be
deemed to have elected to convert such LIBOR Loan to a Base Rate Loan
pursuant to Section 2.02(e). All or any part of any LIBOR Loan may be
continued as provided herein, provided that (i) any continuation of any
such Loan shall be (as to each Loan as continued for an applicable
Interest Period) in amounts of at least $5,000,000 or any whole
multiple of $1,000,000 in excess thereof and (ii) no Default shall have
occurred and be continuing. If a Default shall have occurred and be
continuing, each LIBOR Loan shall be converted to a Base Rate Loan on
the last day of the Interest Period applicable thereto.
(e) Conversion Options. The Borrower may elect to convert all
or any part of any LIBOR Loan on the last day of the then current
Interest Period relating thereto to a Base Rate Loan by giving advance
notice to the Agent (which shall promptly notify the Lenders) of such
election. Subject to the provisions made in this Section 2.02(e), the
Borrower may elect to convert all or any part of any Base Rate Loan
(other than a Swing Line Loan) at any time and from time to time to a
LIBOR Loan by giving advance notice as provided in Section 2.02(c) to
the Agent (which shall promptly notify the Lenders) of such election.
All or any part of any outstanding Loan may be converted as provided
herein, provided that (i) any conversion of any Base Rate Loan into a
LIBOR Loan shall be (as to each such Loan into which there is a
conversion for an applicable Interest Period) in amounts of at least
$5,000,000 or any whole multiple of $1,000,000 in excess thereof and
(ii) no Default shall have occurred and be continuing. If a Default
shall have occurred and be continuing, no Base Rate Loan may be
converted into a LIBOR Loan.
(f) Advances. Not later than 11:00 a.m. Charlotte time for
LIBOR Loans and 1:00 p.m. Charlotte time for Base Rate Loans on the
date specified for each borrowing hereunder, each Lender shall make
available the amount of the Loan to be made by it on such date to the
Agent, to an account which the Agent shall specify, in immediately
available funds, for the account of the Borrower. The amounts so
received by the Agent shall, subject to the terms and conditions of
this Agreement, be made available to the Borrower by depositing the
same, in immediately available funds, in an account of the Borrower,
designated by the Borrower and maintained at the Principal Office.
(g) Letters of Credit. The Borrower shall give the Issuing
Bank advance notice to be received by the Issuing Bank not later than
11:00 a.m. Charlotte time not less than three (3) Business Days prior
thereto of each request for the issuance, and at least ten (10)
Business Days prior to the date of the renewal or extension, of a
Letter of Credit hereunder which request shall specify (i) the amount
of such Letter of Credit, (ii) the date (which shall be a Business Day)
such Letter of Credit is to be issued, renewed or extended, (iii) the
duration thereof, (iv) the name and address of the beneficiary thereof,
(v) the form of the Letter of Credit and (vi) such other information as
the Agent may reasonably request, all of which shall be reasonably
satisfactory to the Agent. Subject to the terms and conditions of this
Agreement, on the date specified for the issuance, renewal or extension
of a Letter of Credit, the Agent shall issue, renew or extend such
Letter of Credit to the beneficiary thereof.
-20-
In conjunction with the issuance of each Letter of Credit, the
Borrower shall execute a Letter of Credit Agreement. In the event of
any conflict between any provision of a Letter of Credit Agreement and
this Agreement, the Borrower, the Issuing Bank, the Agent and the
Lenders hereby agree that the provisions of this Agreement shall
govern.
The Issuing Bank will send to the Borrower and each Lender,
immediately upon issuance of any Letter of Credit, or an amendment
thereto, a true and complete copy of such Letter of Credit, or such
amendment thereto.
Section 2.03 Changes of Commitments.
(a) The Borrower shall have the right to terminate or to
reduce the amount of the Aggregate Revolving Credit Commitments at any
time, or from time to time, upon not less than three (3) Business Days'
prior notice to the Agent (which shall promptly notify the Lenders) of
each such termination or reduction, which notice shall specify the
effective date thereof and the amount of any such reduction (which
shall not be less than $2,000,000 or any whole multiple of $2,000,000
in excess thereof) and shall be irrevocable and effective only upon
receipt by the Agent.
(b) The Aggregate Revolving Credit Commitments once terminated
or reduced may not be reinstated.
Section 2.04 Fees.
(a) Facility Fee. The Borrower shall pay to the Agent for the
account of each Lender a facility fee equal to the product of the
Aggregate Revolving Credit Commitments times the applicable per annum
percentage set forth at the appropriate intersection in the table shown
below based on the Funded Debt Ratio for the four quarterly periods
ending and determined as of the immediately preceding Quarterly Date:
----------------------------------------------------------------
Funded Debt Ratio Facility Fee Percentage
----------------------------------------------------------------
Greater than or equal to 4.5:1.0 0.250%
----------------------------------------------------------------
Less than 4.5:1.0, but greater 0.225%
than or equal to 4.0:1.0
----------------------------------------------------------------
Less than 4.0:1.0, but greater 0.225%
than or equal to 3.5:1.0
----------------------------------------------------------------
Less than 3.5:1.0, but greater 0.175%
than or equal to 3.0:1.0
----------------------------------------------------------------
Less than 3.0:1.0, but greater 0.125%
than or equal to 2.5:1.0
----------------------------------------------------------------
Less than 2.5:1.0 0.100%
----------------------------------------------------------------
-21-
The applicable facility fee percentage shall be established as of each
Quarterly Date (the "Determination Date"). Any change in the applicable
facility fee percentage following each Determination Date shall be
determined based upon the computations set forth in the Compliance
Certificate furnished to the Agent pursuant to Section 8.01, subject to
review and approval of such computations by the Agent; provided,
however, if the Borrower shall fail to deliver a Compliance Certificate
within the time period required by Section 8.01, then, five Business
Days after delivery of notice to the Borrower by the Agent of
non-receipt of such Compliance Certificate, the applicable facility fee
percentage shall be the highest percentage amount set forth in the
above table until the appropriate Compliance Certificate is so
delivered.
Accrued facility fees shall be payable quarterly in arrears on each
Quarterly Date and on the earlier of the date the Aggregate Revolving
Credit Commitments are terminated or the Revolving Credit Termination
Date.
(b) Letter of Credit Fees.
(i) The Borrower agrees to pay the Agent, for the account of
each Lender, commissions for issuing the Letters of Credit on the daily
average amount outstanding of the maximum liability of the Issuing Bank
existing from time to time under such Letter of Credit (calculated
separately for each Letter of Credit) at a rate per annum equal to the
Applicable Margin then in effect for LIBOR Loans. Each Letter of Credit
shall be deemed to be outstanding up to the full face amount of the
Letter of Credit until the Issuing Bank has received the canceled
Letter of Credit or a written cancellation of the Letter of Credit from
the beneficiary of such Letter of Credit in form and substance
acceptable to the Issuing Bank, or for any reductions in the amount of
the Letter of Credit (other than from a drawing), written notification
from the beneficiary of such Letter of Credit. Such commissions are
payable quarterly in arrears on each Quarterly Date and upon
cancellation or expiration of each such Letter of Credit.
(ii) The Borrower agrees to pay the Issuing Bank, for its own
account, an issuing fee for issuing Letters of Credit on the daily
average outstanding of the maximum liability of the Issuing Bank
existing from time to time under such Letter of Credit (calculated
separately for each Letter of Credit) at the rate of 0.125% per annum,
payable quarterly in arrears on each Quarterly Date and upon
cancellation or expiration of each such Letter of Credit.
(iii) In addition to the fees in Subsections 2.04(b)(i) and
(ii), the Borrower agrees to pay the Issuing Bank on demand the Issuing
Bank's customary letter of credit fees, including, without limitation,
amendment fees, negotiation and drawing fees, and other fees
customarily payable with respect to each Letter of Credit.
(c) Fee Letter. The Borrower shall pay to FUCM for its account
such other fees as are set forth in the Fee Letter on the dates
specified therein to the extent not paid prior to the Closing Date.
-22-
Section 2.05 Several Obligations. The failure of any Lender to
make any Loan to be made by it or to provide funds for disbursements or
reimbursements under Letters of Credit on the date specified therefor shall not
relieve any other Lender of its obligation to make its Loan or provide funds on
such date, but no Lender shall be responsible for the failure of any other
Lender to make a Loan to be made by such other Lender or to provide funds to be
provided by such other Lender.
Section 2.06 Notes.
(a) Revolving Credit Notes. The Revolving Credit Loans (other
than Swing Line Loans) made by each Lender shall be evidenced by a
single promissory note of the Borrower in substantially the form of
Exhibit A-1, dated (i) the Closing Date or (ii) the effective date of
an Assignment pursuant to Section 12.06(b), payable to the order of
such Lender in a principal amount equal to its Revolving Credit
Commitment as originally in effect and otherwise duly completed and
such substitute Notes as required by Section 12.06(b). The date,
amount, Type, interest rate and Interest Period of each Loan made by
each Lender, and all payments made on account of the principal thereof,
shall be recorded by such Lender on its books for its Note, and, prior
to any transfer may be endorsed by such Lender on the schedule attached
to such Note or any continuation thereof or on any separate record
maintained by such Lender. Failure to make any such notation or to
attach a schedule shall not affect any Lender's or the Borrower's
rights or obligations in respect of such Loans or affect the validity
of such transfer by any Lender of its Note.
(b) Swing Line Note. The Swing Line Loans made by the Swing
Line Lender shall be evidenced by a single promissory note of the
Borrower substantially in the form of Exhibit A-2, dated the Closing
Date, payable to the order of the Swing Line Lender in a principal
amount equal to the Swing Line Commitment and otherwise duly completed.
Section 2.07 Prepayments.
(a) Voluntary Prepayments. The Borrower may prepay the Base
Rate Loans upon not less than one (1) Business Day's prior notice to
the Agent (which shall promptly notify the Lenders), which notice shall
specify the prepayment date (which shall be a Business Day) and the
amount of the prepayment (which shall be at least $1,000,000 or whole
multiples of $500,000 in excess thereof for Revolving Credit Loans that
are Base Rate Loans and at least $500,000 or whole multiples of
$100,000 in excess thereof for Swing Line Loans, or the remaining
aggregate principal balance outstanding on the Notes prepaid) and shall
be irrevocable and effective only upon receipt by the Agent, provided
that interest on the principal prepaid, accrued to the prepayment date,
shall be paid on the prepayment date. The Borrower may prepay LIBOR
Loans on the same conditions as for Base Rate Loans (except that prior
notice to the Agent shall be not less than three (3) Business Days for
LIBOR Loans and such payment shall be at least $5,000,000 or whole
multiples of $1,000,000 in excess thereof) and in addition such
prepayments of LIBOR Loans shall be subject to the terms of Section
5.05 and shall be in an amount equal to all of the LIBOR Loans for the
Interest Period prepaid.
-23-
(b) Mandatory Prepayments. If, after giving effect to any
termination or reduction of the Aggregate Revolving Credit Commitments
pursuant to Section 2.03(a), the outstanding aggregate principal amount
of the Loans plus the LC Exposure exceeds the Aggregate Revolving
Credit Commitments, the Borrower shall (i) prepay the Revolving Credit
Loans on the date of such termination or reduction in an aggregate
principal amount equal to the excess, together with interest on the
principal amount paid accrued to the date of such prepayment, (ii) if
any excess remains after prepaying all Revolving Credit Loans, prepay
the Swing Line Loans on the date of such termination or reduction in an
aggregate principal amount equal to such remaining excess, together
with interest on the principal amount paid accrued to the date of such
prepayment, and (iii) if any excess remains after prepaying all of the
Loans because of LC Exposure, pay to the Agent on behalf of the Lenders
an amount equal to the excess to be held as cash collateral as provided
in Section 2.09(b) hereof.
(c) Generally. Prepayments permitted or required under this
Section 2.07 shall be without premium or penalty, except as required
under Section 5.05 for prepayment of LIBOR Loans. Any prepayments on
the Loans may be reborrowed subject to the then effective Aggregate
Revolving Credit Commitments.
Section 2.08 Assumption of Risks. The Borrower assumes all
risks of the acts or omissions of any beneficiary of any Letter of Credit or any
transferee thereof with respect to its use of such Letter of Credit. Neither the
Issuing Bank (except in the case of gross negligence or willful misconduct on
the part of the Issuing Bank or any of its agents or employees), its
correspondents nor any Lender shall be responsible for the validity, sufficiency
or genuineness of certificates or other documents or any endorsements thereon,
even if such certificates or other documents should in fact prove to be invalid,
insufficient, fraudulent or forged; for errors, omissions, interruptions or
delays in transmissions or delivery of any messages by mail, telex, or
otherwise, whether or not they be in code; for errors in translation or for
errors in interpretation of technical terms; the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason;
the failure of any beneficiary or any transferee of any Letter of Credit to
comply fully with conditions required in order to draw upon any Letter of
Credit; or for any other consequences arising from causes beyond the Issuing
Bank's control or the control of the Issuing Bank's correspondents. In addition,
neither the Issuing Bank, the Agent nor any Lender shall be responsible for any
error, neglect, or default of any of the Issuing Bank's correspondents; and none
of the above shall affect, impair or prevent the vesting of any of the Issuing
Bank's, the Agent's or any Lender's rights or powers hereunder or under the
Letter of Credit Agreements, all of which rights shall be cumulative. The
Issuing Bank and its correspondents may accept certificates or other documents
that appear on their face to be in order, without responsibility for further
investigation of any matter contained therein regardless of any notice or
information to the contrary. In furtherance and not in limitation of the
foregoing provisions, the Borrower agrees that any action, inaction or omission
taken or not taken by the Issuing Bank or by any correspondent for the Issuing
Bank in good faith in connection with any Letter of Credit, or any related
drafts, certificates, documents or instruments, shall be binding on the Borrower
and shall not put the Issuing Bank or its correspondents under any resulting
liability to the Borrower.
-24-
Section 2.09 Obligation to Reimburse and to Prepay.
(a) If a disbursement by the Issuing Bank is made under any
Letter of Credit, the Borrower shall pay to the Agent within two (2)
Business Days after notice of any such disbursement is received by the
Borrower, the amount of each such disbursement made by the Issuing Bank
under the Letter of Credit (if such payment is not sooner effected as
may be required under this Section 2.09 or under other provisions of
the Letter of Credit), together with interest on the amount disbursed
from and including the date of disbursement until payment in full of
such disbursed amount at a varying rate per annum equal to (i) the then
applicable interest rate for Base Rate Loans through the second
Business Day after notice of such disbursement is received by the
Borrower and (ii) thereafter, the Post-Default Rate for Base Rate Loans
(but in no event to exceed the Highest Lawful Rate) for the period from
and including the third Business Day following the date of such
disbursement to and including the date of repayment in full of such
disbursed amount. The obligations of the Borrower under this Agreement
with respect to each Letter of Credit shall be absolute, unconditional
and irrevocable and shall be paid or performed strictly in accordance
with the terms of this Agreement under all circumstances whatsoever,
including, without limitation, but only to the fullest extent permitted
by applicable law, the following circumstances: (i) any lack of
validity or enforceability of this Agreement, any Letter of Credit or
any of the other Loan Documents; (ii) any amendment or waiver of
(including any default), or any consent to departure from this
Agreement (except to the extent permitted by any amendment or waiver),
any Letter of Credit or any of the other Loan Documents; (iii) the
existence of any claim, set-off, defense or other rights which the
Borrower may have at any time against the beneficiary of any Letter of
Credit or any transferee of any Letter of Credit (or any Persons for
whom any such beneficiary or any such transferee may be acting), the
Issuing Bank, the Agent, any Lender or any other Person, whether in
connection with this Agreement, any Letter of Credit, the other Loan
Documents, the transactions contemplated hereby or any unrelated
transaction; (iv) any statement, certificate, draft, notice or any
other document presented under any Letter of Credit proves to have been
forged, fraudulent, insufficient or invalid in any respect or any
statement therein proves to have been untrue or inaccurate in any
respect whatsoever; (v) payment by the Issuing Bank under any Letter of
Credit against presentation of a draft or certificate which appears on
its face to comply, but does not comply, with the terms of such Letter
of Credit; and (vi) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
Notwithstanding anything in this Agreement to the contrary, the
Borrower will not be liable for payment or performance that results
from the gross negligence or willful misconduct of the Issuing Bank,
except (i) where the Borrower or any Subsidiary actually recovers the
proceeds for itself or the Issuing Bank of any payment made by the
Issuing Bank in connection with such gross negligence or willful
misconduct or (ii) in cases where the Agent makes payment to the named
beneficiary of a Letter of Credit.
(b) In the event of the occurrence of any Event of Default, a
payment or prepayment pursuant to Section 2.07(b) or the maturity of
the Notes, whether by acceleration or otherwise, an amount equal to the
LC Exposure (or the excess in the case of Section 2.07(b)) shall be
deemed to be forthwith due and owing by the Borrower to the Issuing
Bank,
-25-
the Agent and the Lenders as of the date of any such occurrence; and
the Borrower's obligation to pay such amount shall be absolute and
unconditional, without regard to whether any beneficiary of any such
Letter of Credit has attempted to draw down all or a portion of such
amount under the terms of a Letter of Credit, and, to the fullest
extent permitted by applicable law, shall not be subject to any defense
or be affected by a right of set-off, counterclaim or recoupment which
the Borrower may now or hereafter have against any such beneficiary,
the Issuing Bank, the Agent, the Lenders or any other Person for any
reason whatsoever. Such payments shall be held by the Issuing Bank on
behalf of the Lenders as cash collateral securing the LC Exposure in an
account or accounts at the Principal Office; and the Borrower hereby
grants to and by its deposit with the Agent grants to the Agent a
security interest in such cash collateral. In the event of any such
payment by the Borrower of amounts contingently owing under outstanding
Letters of Credit and in the event that thereafter drafts or other
demands for payment complying with the terms of such Letters of Credit
are not made prior to the respective expiration dates thereof, the
Agent agrees, if no Event of Default has occurred and is continuing or
if no other amounts are outstanding under this Agreement, the Notes or
the other Loan Documents, to remit to the Borrower amounts for which
the contingent obligations evidenced by the Letters of Credit have
ceased.
(c) Each Lender severally and unconditionally agrees that it
shall promptly reimburse the Issuing Bank an amount equal to such
Lender's Percentage Share of any disbursement made by the Issuing Bank
under any Letter of Credit that is not reimbursed according to this
Section 2.09.
Section 2.10 Lending Offices. The Loans of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Loans of such Type.
ARTICLE III
Payments of Principal and Interest
Section 3.01 Repayment of Loans.
(a) Revolving Credit Loans. On the Revolving Credit Termination Date
the Borrower shall repay the outstanding aggregate principal and accrued and
unpaid interest under the Notes.
(b) Generally. The Borrower will pay to the Agent, for the account of
each Lender, the principal payments required by this Section 3.01.
Section 3.02 Interest.
(a) Interest Rates. The Borrower will pay to the Agent, for
the account of each Lender or the Swing Line Lender, as appropriate,
interest on the unpaid principal amount of each Loan made by such
Lender for the period commencing on the date such Loan is made to, but
excluding, the date such Loan shall be paid in full, at the following
rates per annum:
-26-
(i) if such a Loan is a Base Rate Loan, the Base Rate
(as in effect from time to time) plus the Applicable Margin, but in no
event to exceed the Highest Lawful Rate; and
(ii) if such a Loan is a LIBOR Loan, for each
Interest Period relating thereto, the LIBOR Rate for such Loan plus the
Applicable Margin (as in effect from time to time), but in no event to
exceed the Highest Lawful Rate.
(b) Post-Default Rate. Notwithstanding the foregoing, the
Borrower will pay to the Agent, for the account of each Lender interest
at the applicable Post-Default Rate on any principal of any Loan made
by such Lender, and (to the fullest extent permitted by law) on any
other amount payable by the Borrower hereunder, under any Loan Document
or under any Note held by such Lender to or for account of such Lender,
for the period commencing on the date of an Event of Default until the
same is paid in full or all Events of Default are cured or waived.
(c) Due Dates. Accrued interest on Base Rate Loans shall be
payable on each Quarterly Date commencing on December 31, 1998, and
accrued interest on each LIBOR Loan shall be payable on the last day of
the Interest Period therefor and, if such Interest Period is longer
than three months at three-month intervals following the first day of
such Interest Period, except that interest payable at the Post-Default
Rate shall be payable from time to time on demand and interest on any
LIBOR Loan that is converted into a Base Rate Loan (pursuant to Section
5.04) shall be payable on the date of conversion (but only to the
extent so converted). Any accrued and unpaid interest on the Loans
shall be paid on the Revolving Credit Termination Date.
(d) Determination of Rates. Promptly after the determination
of any interest rate provided for herein or any change therein, the
Agent shall notify the Lenders to which such interest is payable and
the Borrower thereof. Each determination by the Agent of an interest
rate or fee hereunder shall, except in cases of manifest error, be
final, conclusive and binding on the parties.
ARTICLE IV
Payments; Pro Rata Treatment; Computations; Etc.
Section 4.01 Payments. Except to the extent otherwise provided
herein, all payments of principal, interest and other amounts to be made by the
Borrower under this Agreement, the Notes and the Letter of Credit Agreements
shall be made in Dollars, in immediately available funds, to the Agent at such
account as the Agent shall specify by notice to the Borrower from time to time,
not later than 11:00 a.m. Charlotte time on the date on which such payments
shall become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day). Such payments
shall be made without (to the fullest extent permitted by applicable law)
defense, set-off or counterclaim. Each payment received by the Agent under this
Agreement or any Note for account of a Lender shall be paid promptly to such
Lender in
-27-
immediately available funds. Except as otherwise provided in the definition of
"Interest Period", if the due date of any payment under this Agreement or any
Note would otherwise fall on a day which is not a Business Day such date shall
be extended to the next succeeding Business Day and interest shall be payable
for any principal so extended for the period of such extension. At the time of
each payment to the Agent of any principal of or interest on any borrowing, the
Borrower shall notify the Agent of the Loans to which such payment shall apply.
In the absence of such notice the Agent may specify the Loans to which such
payment shall apply, but to the extent possible such payment or prepayment will
be applied first to the Loans comprised of Base Rate Loans.
Section 4.02 Pro Rata Treatment. Except for Swing Line Loans
and to the extent otherwise provided herein each Lender agrees that: (i) each
borrowing from the Lenders under Section 2.01 and each continuation and
conversion under Section 2.02 shall be made from the Lenders pro rata in
accordance with their Percentage Share, each payment of fees under Section
2.04(a) and Section 2.04(b)(i) shall be made for account of the Lenders pro rata
in accordance with their Percentage Share, and each termination or reduction of
the amount of the Aggregate Maximum Credit Amounts under Section 2.03(a) shall
be applied to the Commitment of each Lender, pro rata according to the amounts
of its respective Commitment; (ii) each payment of principal of Loans by the
Borrower shall be made for account of the Lenders pro rata in accordance with
the respective unpaid principal amount of the Loans held by the Lenders; (iii)
each payment of interest on Loans by the Borrower shall be made for account of
the Lenders pro rata in accordance with the amounts of interest due and payable
to the respective Lenders; and (iv) each reimbursement by the Borrower of
disbursements under Letters of Credit shall be made for account of the Issuing
Bank or, if funded by the Lenders, pro rata for the account of the Lenders, in
accordance with the amounts of reimbursement obligations due and payable to each
respective Lender.
Section 4.03 Computations. Interest on LIBOR Loans and fees
shall be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which such interest is payable, unless such calculation would exceed the Highest
Lawful Rate, in which case interest shall be calculated on the per annum basis
of a year of 365 or 366 days, as the case may be. Interest on Base Rate Loans
shall be computed on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed (including the first day but excluding the last day)
occurring in the period for which such interest is payable.
Section 4.04 Non-receipt of Funds by the Agent. Unless the
Agent shall have been notified by a Lender or the Borrower prior to the date on
which such notifying party is scheduled to make payment to the Agent (in the
case of a Lender) of the proceeds of a Loan or a payment under a Letter of
Credit to be made by it hereunder or (in the case of the Borrower) a payment to
the Agent for account of one or more of the Lenders hereunder (such payment
being herein called the "Required Payment"), which notice shall be effective
upon receipt, that it does not intend to make the Required Payment to the Agent,
the Agent may assume that the Required Payment has been made and may, in
reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient(s) on such date and, if such Lender
or the Borrower (as the case may be) has not in fact made the Required Payment
to the Agent, the recipient(s) of such payment shall, on demand, repay to the
Agent the amount so made available together with interest thereon in respect of
each day during the period commencing on the date such amount was so made
available by the Agent until, but excluding, the date the Agent recovers such
amount at a rate per
-28-
annum which, for any Lender as recipient, will be equal to the Federal Funds
Rate, and for the Borrower as recipient, will be equal to the Base Rate plus the
Applicable Margin.
Section 4.05 Set-off, Sharing of Payments, Etc.
(a) The Borrower agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or counterclaim a
Lender may otherwise have, each Lender shall have the right and be
entitled (after consultation with the Agent), at its option, to offset
balances held by it or by any of its Affiliates for account of the
Borrower, any Guarantor or any Restricted Affiliate at any of its
offices, in Dollars or in any other currency, against any principal of
or interest on any of such Lender's Loans, or any other amount payable
to such Lender hereunder, which is not paid when due (regardless of
whether such balances are then due to the Borrower), in which case it
shall promptly notify the Borrower and the Agent thereof, provided that
such Lender's failure to give such notice shall not affect the validity
thereof.
(b) If any Lender shall obtain payment of any principal of or
interest on any Loan made by it to the Borrower under this Agreement
(or reimbursement as to any Letter of Credit) through the exercise of
any right of set-off, banker's lien or counterclaim or similar right or
otherwise, and, as a result of such payment, such Lender shall have
received a greater percentage of the principal or interest (or
reimbursement) then due hereunder by the Borrower to such Lender than
the percentage received by any other Lenders, it shall promptly (i)
notify the Agent and each other Lender thereof and (ii) purchase from
such other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Loans (or
participations in Letters of Credit) made by such other Lenders (or in
interest due thereon, as the case may be) in such amounts, and make
such other adjustments from time to time as shall be equitable, to the
end that all the Lenders shall share the benefit of such excess payment
(net of any expenses which may be incurred by such Lender in obtaining
or preserving such excess payment) pro rata in accordance with the
unpaid principal and/or interest on the Loans held by each of the
Lenders (or reimbursements of Letters of Credit). To such end all the
Lenders shall make appropriate adjustments among themselves (by the
resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored. The Borrower agrees that any
Lender so purchasing a participation (or direct interest) in the Loans
made by other Lenders (or in interest due thereon, as the case may be)
may exercise all rights of set-off, banker's lien, counterclaim or
similar rights with respect to such participation as fully as if such
Lender were a direct holder of Loans (or Letters of Credit) in the
amount of such participation. Nothing contained herein shall require
any Lender to exercise any such right or shall affect the right of any
Lender to exercise, and retain the benefits of exercising, any such
right with respect to any other indebtedness or obligation of the
Borrower. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a set-off
to which this Section 4.05 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this
Section 4.05 to share the benefits of any recovery on such secured
claim.
Section 4.06 Taxes.
-29-
(a) Payments Free and Clear. Any and all payments by the
Borrower hereunder shall be made, in accordance with Section 4.01, free
and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each
Lender, the Issuing Bank and the Agent, taxes imposed on its income,
and franchise or similar taxes imposed on it, by (i) any jurisdiction
(or political subdivision thereof) of which the Agent, the Issuing Bank
or such Lender, as the case may be, is a citizen or resident or in
which such Lender has an Applicable Lending Office, (ii) the
jurisdiction (or any political subdivision thereof) in which the Agent,
the Issuing Bank or such Lender is organized, or (iii) any jurisdiction
(or political subdivision thereof) in which such Lender, the Issuing
Bank or the Agent is presently doing business which taxes are imposed
solely as a result of doing business in such jurisdiction (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to the Lenders, the Issuing Bank
or the Agent (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
4.06) such Lender, the Issuing Bank or the Agent (as the case may be)
shall receive an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the
relevant taxing authority or other Governmental Authority in accordance
with applicable law.
(b) Other Taxes. In addition, to the fullest extent permitted
by applicable law, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or
from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, any Assignment or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWER WILL INDEMNIFY EACH LENDER AND THE ISSUING
BANK AND THE AGENT FOR THE FULL AMOUNT OF TAXES (AS DEFINED ABOVE) AND
OTHER TAXES (INCLUDING, BUT NOT LIMITED TO, ANY TAXES OR OTHER TAXES
IMPOSED BY ANY GOVERNMENTAL AUTHORITY ON AMOUNTS PAYABLE UNDER THIS
SECTION 4.06) PAID BY SUCH LENDER, THE ISSUING BANK OR THE AGENT (ON
THEIR BEHALF OR ON BEHALF OF ANY LENDER), AS THE CASE MAY BE, AND ANY
LIABILITY (INCLUDING PENALTIES, INTEREST AND EXPENSES) ARISING
THEREFROM OR WITH RESPECT THERETO, WHETHER OR NOT SUCH TAXES OR OTHER
TAXES WERE CORRECTLY OR LEGALLY ASSERTED UNLESS THE PAYMENT OF SUCH
TAXES WAS NOT CORRECTLY OR LEGALLY ASSERTED AND SUCH LENDER'S PAYMENT
OF SUCH TAXES OR OTHER TAXES WAS THE RESULT OF ITS GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. ANY PAYMENT PURSUANT TO SUCH INDEMNIFICATION SHALL
BE MADE WITHIN THIRTY (30) DAYS AFTER THE DATE ANY LENDER, THE ISSUING
BANK OR THE AGENT, AS THE CASE MAY BE, MAKES WRITTEN DEMAND THEREFOR.
IF ANY LENDER OR THE AGENT RECEIVES A REFUND OR CREDIT IN RESPECT OF
ANY TAXES OR OTHER TAXES FOR WHICH SUCH LENDER, ISSUING BANK OR THE
AGENT HAS RECEIVED PAYMENT FROM THE BORROWER IT SHALL PROMPTLY NOTIFY
-30-
THE BORROWER OF SUCH REFUND OR CREDIT AND SHALL, IF NO EVENT OF DEFAULT
HAS OCCURRED AND IS CONTINUING, WITHIN THIRTY (30) DAYS AFTER RECEIPT
OF A REQUEST BY THE BORROWER (OR PROMPTLY UPON RECEIPT, IF THE BORROWER
HAS REQUESTED APPLICATION FOR SUCH REFUND OR CREDIT PURSUANT HERETO),
PAY AN AMOUNT EQUAL TO SUCH REFUND OR CREDIT TO THE BORROWER WITHOUT
INTEREST (BUT WITH ANY INTEREST SO REFUNDED OR CREDITED), PROVIDED THAT
THE BORROWER, UPON THE REQUEST OF SUCH LENDER, THE ISSUING BANK OR THE
AGENT, AGREES TO RETURN SUCH REFUND OR CREDIT (PLUS PENALTIES, INTEREST
OR OTHER CHARGES) TO SUCH LENDER OR THE AGENT IN THE EVENT SUCH LENDER
OR THE AGENT IS REQUIRED TO REPAY SUCH REFUND OR CREDIT.
(d) Lender Representations.
(i) Each Lender represents that it is either (1) a
banking association or corporation organized under the laws of
the United States of America or any state thereof or (2) it is
entitled to complete exemption from United States withholding
tax imposed on or with respect to any payments, including
fees, to be made to it pursuant to this Agreement (A) under an
applicable provision of a tax convention to which the United
States of America is a party or (B) because it is acting
through a branch, agency or office in the United States of
America and any payment to be received by it hereunder is
effectively connected with a trade or business in the United
States of America. Each Lender that is not a banking
association or corporation organized under the laws of the
United States of America or any state thereof agrees to
provide to the Borrower and the Agent on the Closing Date, or
on the date of its delivery of the Assignment pursuant to
which it becomes a Lender, and at such other times as required
by United States law or as the Borrower or the Agent shall
reasonably request, two accurate and complete original signed
copies of either (A) Internal Revenue Service Form 4224 (or
successor form) certifying that all payments to be made to it
hereunder will be effectively connected to a United States
trade or business (the "Form 4224 Certification") or (B)
Internal Revenue Service Form 1001 (or successor form)
certifying that it is entitled to the benefit of a provision
of a tax convention to which the United States of America is a
party which completely exempts from United States withholding
tax all payments to be made to it hereunder (the "Form 1001
Certification"). In addition, each Lender agrees that if it
previously filed a Form 4224 Certification, it will deliver to
the Borrower and the Agent a new Form 4224 Certification prior
to the first payment date occurring in each of its subsequent
taxable years; and if it previously filed a Form 1001
Certification, it will deliver to the Borrower and the Agent a
new certification prior to the first payment date falling in
the third year following the previous filing of such
certification. Each Lender also agrees to deliver to the
Borrower and the Agent such other or supplemental forms as may
at any time be required as a result of changes in applicable
law or regulation in order to confirm or maintain in effect
its entitlement to exemption from United States withholding
tax on any payments hereunder, provided that the circumstances
of such Lender at the relevant time and applicable laws permit
it to do so. If a Lender determines, as a result of any change
in either (i) a Governmental Requirement or (ii) its
circumstances, that it is unable to submit
-31-
any form or certificate that it is obligated to submit
pursuant to this Section 4.06, or that it is required to
withdraw or cancel any such form or certificate previously
submitted, it shall promptly notify the Borrower and the Agent
of such fact. If a Lender is organized under the laws of a
jurisdiction outside the United States of America, unless the
Borrower and the Agent have received a Form 1001 Certification
or Form 4224 Certification satisfactory to them indicating
that all payments to be made to such Lender hereunder are not
subject to United States withholding tax, the Borrower shall
withhold taxes from such payments at the applicable statutory
rate. Each Lender agrees to indemnify and hold harmless the
Borrower or Agent, as applicable, from any United States
taxes, penalties, interest and other expenses, costs and
losses incurred or payable by (i) the Agent as a result of
such Lender's failure to submit any form or certificate that
it is required to provide pursuant to this Section 4.06 or
(ii) the Borrower or the Agent as a result of their reliance
on any such form or certificate which such Lender has provided
to them pursuant to this Section 4.06.
(ii) For any period with respect to which a Lender
has failed to provide the Borrower with the forms or
certificates required pursuant to this Section 4.06, if any,
(other than if such failure is due to a change in a
Governmental Requirement occurring subsequent to the date on
which a form originally was required to be provided), such
Lender shall not be entitled to indemnification under Section
4.06 with respect to taxes imposed by the United States which
taxes would not have been imposed but for such failure to
provide such forms; provided, however, that if a Lender, which
is otherwise exempt from or subject to a reduced rate of
withholding tax, becomes subject to taxes because of its
failure to deliver a form required hereunder, the Borrower
shall take such steps as such Lender shall reasonably request
to assist such Lender to recover such taxes.
(iii) Any Lender claiming any additional amounts
payable pursuant to this Section 4.06 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to
file any certificate or document requested by the Borrower or
the Agent or to change the jurisdiction of its Applicable
Lending Office or to contest any tax imposed if the making of
such a filing or change or contesting such tax would avoid the
need for or reduce the amount of any such additional amounts
that may thereafter accrue and would not, in the sole
determination of such Lender, be otherwise disadvantageous to
such Lender.
ARTICLE V
Capital Adequacy
Section 5.01 Additional Costs.
(a) LIBOR Regulations, etc. The Borrower shall pay directly to
each Lender from time to time such amounts as such Lender may
reasonably determine to be necessary
-32-
to compensate such Lender for any costs which it determines are
attributable to its making or maintaining of any LIBOR Loans or issuing
or participating in Letters of Credit hereunder or its obligation to
make any LIBOR Loans or issue or participate in any Letters of Credit
hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such LIBOR Loans, Letters of Credit or
such obligation (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change which: (i) changes the basis of taxation of any
amounts payable to such Lender under this Agreement or any Note in
respect of any of such LIBOR Loans or Letters of Credit (other than
taxes imposed on the overall net income of such Lender or of its
Applicable Lending Office for any of such LIBOR Loans by the
jurisdiction in which such Lender has its principal office or
Applicable Lending Office); or (ii) imposes or modifies any reserve,
special deposit, minimum capital, capital ratio or similar requirements
relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of such Lender, or the Commitment or
Loans of such Lender or the London interbank market; or (iii) imposes
any other condition affecting this Agreement or any Note (or any of
such extensions of credit or liabilities) or such Lender's Commitment
or Loans. Each Lender will notify the Agent and the Borrower of any
event occurring after the Closing Date which will entitle such Lender
to compensation pursuant to this Section 5.01(a) as promptly as
practicable after it obtains knowledge thereof and determines to
request such compensation, and will designate a different Applicable
Lending Office for the Loans of such Lender affected by such event if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender, provided that such Lender shall have no
obligation to so designate an Applicable Lending Office located in the
United States. If any Lender requests compensation from the Borrower
under this Section 5.01(a), the Borrower may, by notice to such Lender,
suspend the obligation of such Lender to make additional Loans of the
Type with respect to which such compensation is requested until the
Regulatory Change giving rise to such request ceases to be in effect
(in which case the provisions of Section 5.04 shall be applicable).
(b) Capital Adequacy. Without limiting the effect of the
foregoing provisions of this Section 5.01 (but without duplication),
the Borrower shall pay directly to any Lender from time to time on
request such amounts as such Lender may reasonably determine to be
necessary to compensate such Lender or its parent or holding company
for any costs which it determines are attributable to the maintenance
by such Lender or its parent or holding company (or any Applicable
Lending Office), pursuant to any Governmental Requirement following any
Regulatory Change, of capital in respect of its Commitment, its Note,
its Loans, or any interest held by it in any Letter of Credit, such
compensation to include, without limitation, an amount equal to any
reduction of the rate of return on assets or equity of such Lender or
its parent or holding company (or any Applicable Lending Office) to a
level below that which such Lender or its parent or holding company (or
any Applicable Lending Office) could have achieved but for such
Governmental Requirement. Such Lender will notify the Borrower that it
is entitled to compensation pursuant to this Section 5.01(b) as
promptly as practicable after it determines to request such
compensation.
-33-
(c) Compensation Procedure. Any Lender notifying the Borrower
of the incurrence of additional costs under this Section 5.01 shall in
such notice to the Borrower and the Agent set forth in reasonable
detail the basis and amount of its request for compensation.
Determinations and allocations by each Lender for purposes of this
Section 5.01 of the effect of any Regulatory Change pursuant to Section
5.01(a), or of the effect of capital maintained pursuant to Section
5.01(b), on its costs or rate of return of maintaining Loans or its
obligation to make Loans or issue Letters of Credit, or on amounts
receivable by it in respect of Loans or Letters of Credit, and of the
amounts required to compensate such Lender under this Section 5.01,
shall be conclusive and binding for all purposes, provided that such
determinations and allocations are made on a reasonable basis. Any
request for additional compensation under this Section 5.01 shall be
paid by the Borrower within thirty (30) days of the receipt by the
Borrower of the notice described in this Section 5.01(c).
(d) The Lenders shall determine the applicability of, and the
amount due under, this Section 5.01 consistent with the manner in which
they apply similar provisions and calculate similar amounts payable to
them by other borrowers having in their credit agreements provisions
comparable to this Section.
Section 5.02 Limitation on LIBOR Loans. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any LIBOR Rate
for any Interest Period:
(i) the Agent determines (which determination shall be
conclusive, absent manifest error) that quotations of interest rates
for the relevant deposits referred to in the definition of "LIBOR Rate"
in Section 1.02 are not being provided in the relevant amounts or for
the relevant maturities for purposes of determining rates of interest
for Eurodollar Loans as provided herein; or
(ii) the Agent determines (which determination shall be
conclusive, absent manifest error) that the relevant rates of interest
referred to in the definition of "Eurodollar Rate" in Section 1.02 upon
the basis of which the rate of interest for Eurodollar Loans for such
Interest Period is to be determined are not sufficient to adequately
cover the cost to the Lenders of making or maintaining Eurodollar
Loans;
then the Agent shall give the Borrower prompt notice thereof, and so long as
such condition remains in effect, the Lenders shall be under no obligation to
make additional Eurodollar Loans. The Lenders shall determine the applicability
of this Section 5.02 consistent with the manner in which they apply similar
provisions to other borrowers having in their credit agreements provisions
comparable to this Section.
Section 5.03 Illegality. Notwithstanding any other provision
of this Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain Eurodollar
Loans hereunder, then such Lender shall promptly notify the Borrower thereof and
such Lender's obligation to make Eurodollar Loans shall be suspended until such
time as such Lender may again make and maintain Eurodollar Loans (in which case
the provisions of Section 5.04 shall be applicable).
-34-
Section 5.04 Base Rate Loans Pursuant to Sections 5.01, 5.02
and 5.03. If the obligation of any Lender to make Eurodollar Loans shall be
suspended pursuant to Sections 5.01, 5.02 or 5.03 ("Affected Loans"), all
Affected Loans which would otherwise be made by such Lender shall be made
instead as Base Rate Loans (and, if an event referred to in Section 5.01(b) or
Section 5.03 has occurred and such Lender so requests by notice to the Borrower,
all Affected Loans of such Lender then outstanding shall be automatically
converted into Base Rate Loans on the date specified by such Lender in such
notice) and, to the extent that Affected Loans are so made as (or converted
into) Base Rate Loans, all payments of principal which would otherwise be
applied to such Lender's Affected Loans shall be applied instead to its Base
Rate Loans.
Section 5.05 Compensation. The Borrower shall pay to each
Lender within thirty (30) days of receipt of written request of such Lender
(which request shall set forth, in reasonable detail, the basis for requesting
such amounts and which shall be conclusive and binding for all purposes provided
that such determinations are made on a reasonable basis), such amount or amounts
as shall compensate it for any loss, cost, expense or liability which such
Lender reasonably determines are attributable to:
(i) any payment, prepayment or conversion of a Eurodollar Loan
properly made by such Lender or the Borrower for any reason (including,
without limitation, the acceleration of the Loans pursuant to Section
10.01) on a date other than the last day of the Interest Period for
such Loan; or
(ii) any failure by the Borrower for any reason (including but
not limited to, the failure of any of the conditions precedent
specified in Article VI to be satisfied) to borrow, continue or convert
a Eurodollar Loan from such Lender on the date for such borrowing,
continuation or conversion specified in the relevant notice given
pursuant to Section 2.02(c).
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the principal amount so paid, prepaid or converted
or not borrowed for the period from the date of such payment, prepayment or
conversion or failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for such Loan
which would have commenced on the date specified for such borrowing) at the
applicable rate of interest for such Loan provided for herein over (ii) the
interest component of the amount such Lender would have bid in the London
interbank market for Dollar deposits of leading banks in amounts comparable to
such principal amount and with maturities comparable to such period (as
reasonably determined by such Lender).
Section 5.06 Replacement Lenders.
(a) If any Lender has notified the Borrower and the Agent of
its incurring additional costs under Section 5.01 or has required the
Borrower to make payments for Taxes under Section 4.06, then the
Borrower may, unless such Lender has notified the Borrower and the
Agent that the circumstances giving rise to such notice no longer
apply, terminate, in whole but not in part, the Commitment of any
Lender (other than the Agent) (the
-35-
"Terminated Lender") at any time upon five (5) Business Days' prior
written notice to the Terminated Lender and the Agent (such notice
referred to herein as a "Notice of Termination").
(b) In order to effect the termination of the Commitment of
the Terminated Lender, the Borrower shall: (i) obtain an agreement with
one or more Lenders to increase their Commitment or Commitments and/or
(ii) request any one or more other banking institutions to become
parties to this Agreement in place and instead of such Terminated
Lender and agree to accept a Commitment or Commitments; provided,
however, that such one or more other banking institutions are
reasonably acceptable to the Agent and become parties by executing an
Assignment (the Lenders or other banking institutions that agree to
accept in whole or in part the Commitment of the Terminated Lender
being referred to herein as the "Replacement Lenders"), such that the
aggregate increased and/or accepted Commitments of the Replacement
Lenders under clauses (i) and (ii) above equal the Commitment of the
Terminated Lender.
(c) The Notice of Termination shall include the name of the
Terminated Lender, the date the termination will occur (the "Lender
Termination Date"), and the Replacement Lender or Replacement Lenders
to which the Terminated Lender will assign its Commitment and, if there
will be more than one Replacement Lender, the portion of the Terminated
Lender's Commitment to be assigned to each Replacement Lender.
(d) On the Lender Termination Date, (i) the Terminated Lender
shall by execution and delivery of an Assignment assign its Commitment
to the Replacement Lender or Replacement Lenders (pro rata, if there is
more than one Replacement Lender, in proportion to the portion of the
Terminated Lender's Commitment to be assigned to each Replacement
Lender) indicated in the Notice of Termination and shall assign to the
Replacement Lender or Replacement Lenders each of its Loans (if any)
then outstanding and participation interests in Letters of Credit (if
any) then outstanding pro rata as aforesaid), (ii) the Terminated
Lender shall endorse its Note, payable without recourse, representation
or warranty to the order of the Replacement Lender or Replacement
Lenders (pro rata as aforesaid), (iii) the Replacement Lender or
Replacement Lenders shall purchase the Notes held by the Terminated
Lender (pro rata as aforesaid) at a price equal to the unpaid principal
amount thereof plus interest and facility and other fees accrued and
unpaid to the Lender Termination Date, and (iv) the Replacement Lender
or Replacement Lenders will thereupon (pro rata as aforesaid) succeed
to and be substituted in all respects for the Terminated Lender with
like effect as if becoming a Lender pursuant to the terms of Section
12.06(b), and the Terminated Lender will have the rights and benefits
of an assignor under Section 12.06(b). To the extent not in conflict,
the terms of Section 12.06(b) shall supplement the provisions of this
Section 5.06(d). For each assignment made under this Section 5.06, the
Replacement Lender shall pay to the Agent the processing fee provided
for in Section 12.06(b). The Borrower will be responsible for the
payment of any breakage costs associated with termination and
Replacement Lenders, as set forth in Section 5.05.
-36-
ARTICLE VI
Conditions Precedent
Section 6.01 Initial Funding.
The obligation of the Lenders to make the Initial Funding is
subject to the receipt by the Agent and the Lenders of all fees payable pursuant
to Section 2.04 on or before the Closing Date and the receipt by the Agent on
the Closing Date or any other date on or before the date of Initial Funding of
the following documents and satisfaction of the other conditions provided in
this Section 6.01, each of which shall be satisfactory to the Agent in form and
substance:
(a) A certificate of the Secretary or an Assistant Secretary
of the General Partner setting forth (i) resolutions of its board of
directors with respect to the authorization of the Borrower to execute
and deliver the Loan Documents to which it is a party and to enter into
the transactions contemplated in those documents, (ii) the officers of
the General Partner (y) who are authorized to sign the Loan Documents
to which Borrower is a party and (z) who will, until replaced by
another officer or officers duly authorized for that purpose, act as
its representatives for the purposes of signing documents and giving
notices and other communications in connection with this Agreement and
the transactions contemplated hereby, (iii) specimen signatures of the
authorized officers, and (iv) the articles or certificate of
incorporation and bylaws of the General Partner and the Borrower
Partnership Agreement, certified as being true and complete. The Agent
and the Lenders may conclusively rely on such certificate until the
Agent receives notice in writing from the Borrower to the contrary.
(b) A certificate of the Secretary or an Assistant Secretary
of BMC setting forth (i) resolutions of its board of directors with
respect to the authorization of the Guarantor to execute and deliver
the Loan Documents to which it is a party and to enter into the
transactions contemplated in those documents, (ii) the officers of the
Guarantor (y) who are authorized to sign the Loan Documents to which
Guarantor is a party and (z) who will, until replaced by another
officer or officers duly authorized for that purpose, act as its
representatives for the purposes of signing documents and giving
notices and other communications in connection with this Agreement and
the transactions contemplated hereby, (iii) specimen signatures of the
authorized officers, and (iv) the articles or certificate of
incorporation and bylaws of BMC and the Guarantor Partnership
Agreement, certified as being true and complete. The Agent and the
Lenders may conclusively rely on such certificate until they receive
notice in writing from the Guarantor to the contrary.
(c) Certificates of the appropriate state agencies with
respect to the existence, qualification and good standing, as
appropriate, of the Borrower, the Guarantor, the General Partner and
BMC.
(d) A Compliance Certificate duly and properly executed by a
Responsible Officer and dated as of the date of the Initial Funding.
(e) The Notes, duly completed and executed.
-37-
(f) The Loan Documents, duly completed and executed in
sufficient number of counterparts as reasonably requested by the Agent.
(g) Opinions of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Borrower and Buckeye Partners and certain local counsel to the Borrower
and Buckeye Partners, each in form and substance satisfactory to the
Agent, as to such matters incident to the transactions herein
contemplated as the Agent may reasonably request.
(h) A certificate of insurance coverage of the Borrower
evidencing that the Borrower is carrying insurance in accordance with
Section 7.19.
(i) The Agent shall have been furnished with appropriate UCC
search certificates reflecting no Liens other than Excepted Liens.
(j) The Agent shall have reviewed the environmental files of
the Borrower, Buckeye Partners and the Restricted Affiliates and shall
be satisfied with the results of its review.
(k) Such other documents as the Agent or any Lender or special
counsel to the Agent may reasonably request.
Section 6.02 Initial and Subsequent Loans and Letters of
Credit. The obligation of the Lenders to make Loans to the Borrower upon the
occasion of each borrowing hereunder and to issue, renew, extend or reissue
Letters of Credit for the account of the Borrower (including the Initial
Funding) is subject to the further conditions precedent that, as of the date of
such Loans and after giving effect thereto:
(a) no Default shall have occurred and be continuing;
(b) no Material Adverse Effect shall have occurred and be continuing;
and
(c) the representations and warranties made by the Borrower in Article
VII and in any other Loan Document shall be true on and as of the date of the
making of such Loans or issuance, renewal, extension or reissuance of a Letter
of Credit with the same force and effect as if made on and as of such date and
following such new borrowing, except to the extent such representations and
warranties are expressly limited to an earlier date or the Required Lenders may
expressly consent in writing to the contrary.
Each request for a borrowing or issuance, renewal, extension or
reissuance of a Letter of Credit by the Borrower hereunder shall constitute a
certification by the Borrower to the effect set forth in Section 6.02(c) (both
as of the date of such notice and, unless the Borrower otherwise notifies the
Agent prior to the date of and immediately following such borrowing or issuance,
renewal, extension or reissuance of a Letter of Credit as of the date thereof).
Section 6.03 Conditions Precedent for the Benefit of Lenders.
All conditions precedent to the obligations of the Lenders to make any Loan are
imposed hereby solely for the
-38-
benefit of the Lenders, and no other Person may require satisfaction of any such
condition precedent or be entitled to assume that the Lenders will refuse to
make any Loan in the absence of strict compliance with such conditions
precedent.
Section 6.04 No Waiver. No waiver of any condition precedent
shall preclude the Agent or the Lenders from requiring such condition to be met
prior to making any subsequent Loan or preclude the Lenders from thereafter
declaring that the failure of the Borrower to satisfy such condition precedent
constitutes a Default.
ARTICLE VII
Representations and Warranties
Each of the Borrower and each Guarantor represents and warrants to the
Agent and the Lenders that (each representation and warranty herein is given as
of the Closing Date and shall be deemed repeated and reaffirmed on the dates of
each borrowing and issuance, renewal, extension or reissuance of a Letter of
Credit as provided in Section 6.02):
Section 7.01 Existence. Each of the Borrower, the Guarantors,
and the Restricted Affiliates: (i) is duly organized, legally existing and, as
applicable, in good standing under the laws of the jurisdiction of its
formation; (ii) has all requisite power, and has all material governmental
licenses, authorizations, consents and approvals necessary to own its assets and
carry on its business as now being or as proposed to be conducted and, with
respect to Restricted Affiliates, where a failure to have such items would have
a Material Adverse Effect; and (iii) is qualified to do business in all
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary and where failure so to qualify would have a Material
Adverse Effect.
Section 7.02 Financial Condition. The audited consolidated
balance sheet of Buckeye Partners and its Consolidated Subsidiaries as at
December 31, 1997 and the related consolidated statement of income, equity and
cash flow of Buckeye Partners and its Consolidated Subsidiaries for the fiscal
year ended on said date, with the opinion thereon of Deloitte & Touche LLP
heretofore furnished to each of the Lenders and the unaudited consolidated
balance sheet of Buckeye Partners and its Consolidated Subsidiaries as at
September 30, 1998 and their related consolidated statements of income, equity
and cash flow of Buckeye Partners and its Consolidated Subsidiaries for the nine
month period ended on such date heretofore furnished to the Agent, are complete
and correct and fairly present in all material respects the consolidated
financial condition of Buckeye Partners and its Consolidated Subsidiaries as at
said dates and the results of its operations for the fiscal year and the nine
month period on said dates, all in accordance with GAAP, as applied on a
consistent basis (subject, in the case of the interim financial statements, to
normal year-end adjustments and the lack of footnotes). Neither Buckeye Partners
nor any Subsidiary has on the Closing Date any material Debt, contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in the Financial Statements or in
Schedule 7.02. Since December 31, 1997, there has been no change or event having
a Material Adverse Effect which is continuing. Since the date of the Financial
Statements, neither the business nor the
-39-
Properties (taken as a whole) of the Borrower, any Guarantor or any Restricted
Affiliate have been materially and adversely affected as a result of any fire,
explosion, earthquake, flood, drought, windstorm, accident, strike or other
labor disturbance, embargo, requisition or taking of Property or cancellation of
contracts, permits or concessions by any Governmental Authority, riot,
activities of armed forces or acts of God or of any public enemy which is
continuing.
Section 7.03 Litigation. Except as disclosed to the Lenders in
Schedule 7.03 hereto or as disclosed in Buckeye Partners Form 10-K for the year
ended December 31, 1997 filed with the SEC (a true and complete copy of which
has been delivered to the Agent), at the Closing Date there is no litigation,
legal, administrative or arbitral proceeding, investigation or other action of
any nature pending or, to the knowledge of the Borrower threatened against or
affecting the Borrower, Buckeye Partners or any Restricted Affiliates which
involves the possibility of any judgment or liability against the Borrower, the
Guarantor or any Restricted Affiliates not fully covered by insurance (except
for normal deductibles), and which, if determined adversely, would have a
Material Adverse Effect.
Section 7.04 No Breach. Neither the execution and delivery of
the Loan Documents, nor compliance with the terms and provisions hereof will
conflict with or result in a breach of, or require any consent which has not
been obtained as of the Closing Date under, the respective partnership
agreements of the Borrower, Buckeye Partners or any Restricted Affiliate, or any
Governmental Requirement or any agreement or instrument to which the Borrower,
the Guarantor or any Restricted Affiliate is a party or by which it is bound or
to which it or its Properties are subject, or constitute a default under any
such agreement or instrument, or result in the creation or imposition of any
Lien upon any of the revenues or assets of the Borrower, the Guarantor or any
Restricted Affiliate pursuant to the terms of any such agreement or instrument
other than the Liens created by the Loan Documents.
Section 7.05 Authority. The Borrower, each Guarantor and each
Restricted Affiliate have all necessary power and authority to execute, deliver
and perform its obligations under the Loan Documents to which it is a party; and
the execution, delivery and performance by the Borrower, each Guarantor and each
Restricted Affiliate of the Loan Documents to which it is a party, have been
duly authorized by all necessary action on its part; and the Loan Documents
constitute the legal, valid and binding obligations of the Borrower, each
Guarantor and each Restricted Affiliate, enforceable in accordance with their
terms, except as limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws of general application relating to or affecting creditors'
rights and general principles of equity.
Section 7.06 Approvals. Except for those authorizations that
have been obtained, no authorizations, approvals or consents of, and no filings
or registrations with, any Governmental Authority are necessary for the
execution, delivery or performance by the Borrower, the Guarantors or the
Restricted Affiliates of the Loan Documents or for the validity or
enforceability thereof.
Section 7.07 Use of Loans. The proceeds of the Loans and
Letters of Credit shall be used for acquisitions and general partnership
purposes. The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose, whether
immediate, incidental or ultimate, of buying or carrying margin stock (within
the meaning of Regulation
-40-
T, U or X of the Board of Governors of the Federal Reserve System) and no part
of the proceeds of any Loan hereunder will be used to buy or carry any margin
stock.
Section 7.08 ERISA.
(a) The Borrower, each Subsidiary of the Borrower and each
ERISA Affiliate have complied in all material respects with ERISA and,
where applicable, the Code regarding each Plan.
(b) Each Plan is, and has been, maintained in substantial
compliance with ERISA and, where applicable, the Code.
(c) To the knowledge of the Borrower, no act, omission or
transaction has occurred which could result in imposition on the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
(whether directly or indirectly) of (i) either a civil penalty assessed
pursuant to section 502(c), (i) or (l) of ERISA or a tax imposed
pursuant to Chapter 43 of Subtitle D of the Code or (ii) breach of
fiduciary duty liability damages under section 409 of ERISA.
(d) No Plan (other than a defined contribution plan) or any
trust created under any such Plan has been terminated since September
2, 1974. No material liability to the PBGC (other than for the payment
of current premiums which are not past due) by the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate has been or is
expected by the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate to be incurred with respect to any Plan. No ERISA Event with
respect to any Plan has occurred.
(e) Full payment when due has been made of all amounts which
the Borrower or any ERISA Affiliate is required under the terms of each
Plan or applicable law to have paid as contributions to such Plan, and
no accumulated funding deficiency (as defined in section 302 of ERISA
and section 412 of the Code), whether or not waived, exists with
respect to any Plan.
(f) The actuarial present value of the benefit liabilities
under all Plans which are subject to Title IV of ERISA do not, as of
the end of the Borrower's most recently ended fiscal year, exceed the
current value of the assets (computed on a plan termination basis in
accordance with Title IV of ERISA) of such Plans allocable to such
benefit liabilities by more than $2,000,000 in the aggregate. The term
"actuarial present value of the benefit liabilities" shall have the
meaning specified in section 4041 of ERISA.
(g) None of the Borrower, any Subsidiary of the Borrower or
any ERISA Affiliate sponsors, maintains, or contributes to an employee
welfare benefit plan, as defined in section 3(1) of ERISA, including,
without limitation, any such plan maintained to provide benefits to
former employees of such entities, that may not be terminated by the
Borrower, such Subsidiary or such ERISA Affiliate in its sole
discretion at any time without any material liability.
-41-
(h) None of the Borrower, any Subsidiary of the Borrower or
any ERISA Affiliate sponsors, maintains or contributes to, or has at
any time in the preceding six calendar years, sponsored, maintained or
contributed to, any Multiemployer Plan.
(i) Neither the Borrower, any Subsidiary of the Borrower or
any ERISA Affiliate is required to provide security under section
401(a)(29) of the Code due to a Plan amendment that results in an
increase in current liability for the Plan.
Section 7.09 Taxes. Each of the Borrower, the Guarantors and
the Restricted Affiliates has filed all United States Federal income tax returns
and all other tax returns which are required to be filed by them and have paid
all material taxes due pursuant to such returns or pursuant to any assessment
received by the Borrower, any Guarantor or any Restricted Affiliate. The
charges, accruals and reserves on the books of the Borrower, the Guarantors and
the Restricted Affiliates in respect of taxes and other governmental charges
are, in the opinion of the Borrower, adequate. No tax lien has been filed and,
to the knowledge of the Borrower, no claim is being asserted with respect to any
such tax, fee or other charge.
Section 7.10 Titles, etc.
(a) Except as set out in Schedule 7.10, each of the Borrower,
the Guarantors and the Restricted Affiliates has good and defensible
title to its material (individually or in the aggregate) Properties,
free and clear of all Liens, except Liens permitted by Section 9.02.
(b) All leases and agreements necessary for the conduct of the
business of the Borrower, the Guarantors and the Restricted Affiliates
are valid and subsisting, in full force and effect, except as could not
reasonably be expected to have a Material Adverse Effect, and there
exists no default or event or circumstance which with the giving of
notice or the passage of time or both would give rise to a default
under any such lease or leases, which would affect in any material
respect the conduct of the business of the Borrower, the Guarantors or
the Restricted Affiliates.
(c) The rights, Properties and other assets presently owned,
leased or licensed by the Borrower, the Guarantors and the Restricted
Affiliates including, without limitation, all easements and rights of
way, include all rights, Properties and other assets necessary to
permit the Borrower, each Guarantor and each Restricted Affiliates to
conduct its business in all material respects in the same manner as its
business has been conducted prior to the Closing Date.
(d) All of the assets and Properties of the Borrower, the
Guarantors and the Restricted Affiliates which are reasonably necessary
for the operation of their business are in all material respects in
good working condition and are maintained in accordance with prudent
business standards.
Section 7.11 No Material Misstatements. No written
information, statement, exhibit, certificate, document or report furnished to
the Agent and the Lenders (or any of them) by the Borrower, any Guarantor or any
Restricted Affiliate in connection with the negotiation of this Agreement
-42-
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statement contained therein not materially
misleading in the light of the circumstances in which made. There is no fact
peculiar to the Borrower, Buckeye Partners or any Restricted Affiliate which has
a Material Adverse Effect or in the future is reasonably likely to have (so far
as the Borrower can now foresee) a Material Adverse Effect and which has not
been set forth in this Agreement or the other documents, certificates and
statements furnished to the Agent by or on behalf of the Borrower, Buckeye
Partners or any Restricted Affiliate prior to, or on, the Closing Date in
connection with the transactions contemplated hereby.
Section 7.12 Investment Company Act. None of the Borrower, any
Guarantor or any Restricted Affiliate is an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
Section 7.13 Public Utility Holding Company Act. None of the
Borrower, any Guarantor or any Restricted Affiliate is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company," or a "public
utility" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
Section 7.14 Subsidiaries. Except as set forth on Schedule
7.14 or otherwise as disclosed to the Agent in writing, neither Buckeye Partners
nor the Borrower has any Subsidiaries.
Section 7.15 Location of Business and Offices. Each of Buckeye
Partner's and the Borrower's principal place of business and chief executive
offices are located at their respective addresses stated on the signature page
of this Agreement or as otherwise disclosed in writing to the Agent. The
principal place of business and chief executive office of each Restricted
Affiliate are located at the addresses stated on Schedule 7.14 or as otherwise
disclosed in writing to the Agent.
Section 7.16 Defaults. None of the Borrower, any Guarantor or
any Restricted Affiliate is in default nor has any event or circumstance
occurred which, but for the expiration of any applicable grace period or the
giving of notice, or both, would constitute a default under any material
agreement or instrument to which it is a party or by which it is bound which
default would have a Material Adverse Effect. No Default hereunder has occurred
and is continuing.
Section 7.17 Environmental Matters. Except (i) as provided in
Schedule 7.17 (ii) as disclosed in the Form 10-K for the year ended December 31,
1997 filed by Buckeye Partners with the SEC, or (iii) as would not have a
Material Adverse Effect (or with respect to (c), (d) and (e) below, where the
failure to take such actions would not have a Material Adverse Effect):
(a) Neither any Property of the Borrower, any Guarantor or any
Restricted Affiliate nor the operations conducted thereon violate any
order or requirement of any court or Governmental Authority or any
Environmental Laws;
(b) Without limitation of clause (a) above, no Property of the
Borrower, any Guarantor or any Restricted Affiliate nor the operations
currently conducted thereon or, to the best knowledge of the Borrower,
by any prior owner or operator of such Property or
-43-
operation, are in violation of or subject to any existing, pending or
threatened action, suit, investigation, inquiry or proceeding by or
before any court or Governmental Authority or to any remedial
obligations under Environmental Laws;
(c) All notices, permits, licenses or similar authorizations,
if any, required to be obtained or filed in connection with the
operation or use of any and all Property of the Borrower, each
Guarantor and each Restricted Affiliate, including without limitation
past or present treatment, storage, disposal or release of a hazardous
substance or solid waste into the environment, have been duly obtained
or filed, and each of the Borrower, the Guarantors and the Restricted
Affiliates are in compliance with the terms and conditions of all such
notices, permits, licenses and similar authorizations;
(d) All hazardous substances, solid waste, and oil and gas
exploration and production wastes, if any, generated at any and all
Property of the Borrower, any Guarantor or any Restricted Affiliate
have in the past been transported, treated and disposed of in
accordance with Environmental Laws and so as not to pose an imminent
and substantial endangerment to public health or welfare or the
environment, and, to the best knowledge of the Borrower, all such
transport carriers and treatment and disposal facilities have been and
are operating in compliance with Environmental Laws and so as not to
pose an imminent and substantial endangerment to public health or
welfare or the environment, and are not the subject of any existing,
pending or threatened action, investigation or inquiry by any
Governmental Authority in connection with any Environmental Laws;
(e) The Borrower, the Guarantors and the Restricted Affiliates
have taken all steps reasonably necessary to determine and have
determined that no hazardous substances, solid waste, or oil and gas
exploration and production wastes, have been disposed of or otherwise
released and there has been no threatened release of any hazardous
substances on or to any Property of the Borrower, any Guarantor, or any
Restricted Affiliate except in compliance with Environmental Laws and
so as not to pose an imminent and substantial endangerment to public
health or welfare or the environment;
(f) To the extent applicable, all Property of the Borrower,
each Guarantor and each Restricted Affiliate currently satisfies all
design, operation, and equipment requirements imposed by the OPA or
scheduled as of the Closing Date to be imposed by OPA during the term
of this Agreement, and the Borrower does not have any reason to believe
that such Property, to the extent subject to OPA, will not be able to
maintain compliance with the OPA requirements during the term of this
Agreement; and
(g) None of the Borrower, any Guarantor or any Restricted
Affiliate has any known contingent liability in connection with any
release or threatened release of any oil, hazardous substance or solid
waste into the environment.
Section 7.18 Compliance with the Law. None of the Borrower,
any Guarantor or any Restricted Affiliate has violated any Governmental
Requirement or failed to obtain any license, permit, franchise or other
governmental authorization necessary for the ownership of any of its Properties
or the conduct of its business, which violation or failure would have (in the
event such
-44-
violation or failure were asserted by any Person through appropriate action) a
Material Adverse Effect.
Section 7.19 Insurance. The Borrower and each of the
Restricted Affiliates maintains, with financially sound and reputable insurers,
insurance with respect to their respective Properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
amounts (including deductibles, co-insurance and self-insurance, if adequate
reserves are maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a similar business
and similarly situated. All such policies are in full force and effect, all
premiums with respect thereto covering all periods up to and including the date
of the closing have been paid, and no notice of cancellation or termination has
been received with respect to any such policy. Such policies are sufficient for
compliance with all requirements of law and of all agreements to which the
Borrower, any Guarantor, or any Restricted Affiliate is a party; are valid,
outstanding and enforceable policies; provide adequate insurance coverage in at
least such amounts and against at least such risks (but including in any event
public liability) as are usually insured against in the same general area by
companies engaged in the same or a similar business for the assets and
operations of the Borrower, each Guarantor and each Restricted Affiliate.
Section 7.20 Material Agreements. The Borrower has heretofore
delivered to the Agent a complete and correct copy of the Indenture and the Note
Agreement relating to the Senior Notes, each as amended and in effect on the
Closing Date.
Section 7.21 Partnership Agreement. Neither the Borrower
Partnership Agreement nor the Buckeye Partners Partnership Agreement has been
terminated, and each is in full force and effect as of the date hereof and no
default has occurred and is continuing thereunder which would have a Material
Adverse Effect.
Section 7.22 Ownership of Parties.
(a) The Borrower is a limited partnership formed under the
laws of the State of Delaware, and is owned 1% (general partnership
interest) by the General Partner, and 99% (limited partnership
interests) by Buckeye Partners.
(b) Each of the Restricted Affiliates (excluding Restricted
Subsidiaries) is a limited partnership, owned 1% (general partnership
interest) by the General Partner and 99% (limited partnership
interests) by Buckeye Partners, other than Buckeye Pipe Line Company of
Michigan, L.P., the limited partnership interests of which are owned
0.99% by the General Partner and 98.01% by Laurel Pipe Line Company,
L.P.
(c) Buckeye Partners is a limited partnership formed under the
laws of the State of Delaware and owned 1% (general partnership
interest) by BMC or a wholly-owned Subsidiary of BMC and 99% (limited
partnership interests) by public holders of limited partnership units.
(d) BMC owns 100% of the capital stock of the General Partner.
-45-
ARTICLE VIII
Affirmative Covenants
The Borrower and Buckeye Partners each covenant and agree that, so long
as any of the Commitments are in effect and until payment in full of all Loans
hereunder, all interest thereon and all other amounts payable by the Borrower
hereunder and the Guarantors under the Guaranty Agreements:
Section 8.01 Reporting Requirements. The Borrower and Buckeye
Partners shall deliver, or shall cause to be delivered, to the Agent with
sufficient copies of each for the Lenders:
(a) Annual Financial Statements. As soon as available and in
any event within 120 days after the end of each fiscal year of Buckeye
Partners, the audited consolidated and, within 100 days after the end
of each fiscal year of Buckeye Partners, unaudited consolidating
statements of income, equity, changes in financial position and cash
flow of Buckeye Partners and its Consolidated Subsidiaries for such
fiscal year, and the related consolidated and consolidating balance
sheets of Buckeye Partners and its Consolidated Subsidiaries as at the
end of such fiscal year, and setting forth in each case in comparative
form the corresponding figures for the preceding fiscal year, and, in
the case of the audited statements, accompanied by the related opinion
of independent public accountants of recognized national standing
acceptable to the Agent which opinion shall state that said financial
statements fairly present in all material respects the consolidated and
consolidating financial condition and results of operations of Buckeye
Partners and its Consolidated Subsidiaries as at the end of, and for,
such fiscal year and that such financial statements have been prepared
in accordance with GAAP, except for such changes in such principles
with which the independent public accountants shall have concurred and
such opinion shall not contain a "going concern" or like qualification
or exception, and a certificate of such accountants stating that, in
making the examination necessary for their opinion, they obtained no
knowledge, except as specifically stated, of any Default.
(b) Quarterly Financial Statements. As soon as available and
in any event within 60 days after the end of each of the first three
fiscal quarterly periods of each fiscal year of Buckeye Partners,
consolidated and consolidating statements of income, equity, changes in
financial position and cash flow of Buckeye Partners and its
Consolidated Subsidiaries for such period and for the period from the
beginning of the respective fiscal year to the end of such period, and
the related consolidated and consolidating balance sheets as at the end
of such period, and setting forth in each case in comparative form the
corresponding figures for the corresponding period in the preceding
fiscal year, accompanied by the certificate of a Responsible Officer of
BMC, which certificate shall state that said financial statements
fairly present in all material respects the consolidated and
consolidating financial condition and results of operations of Buckeye
Partners and its Consolidated Subsidiaries in accordance with GAAP, as
at the end of, and for, such period (subject to normal year-end audit
adjustments and the lack of footnotes).
-46-
(c) Notice of Default, Etc. Promptly after a Responsible
officer of the Borrower or of Buckeye Partners knows that any Default
or any Material Adverse Effect has occurred, a notice of such Default
or Material Adverse Effect, describing the same in reasonable detail
and the action the Borrower or Buckeye Partners proposes to take with
respect thereto.
(d) Other Accounting Reports. Promptly upon receipt thereof, a
copy of each other report or letter submitted to the Borrower, Buckeye
Partners or any Subsidiary by independent accountants in connection
with any annual, interim or special audit made by them of the books of
the Borrower, Buckeye Partners and its Subsidiaries, and a copy of any
response by any Guarantor or any Subsidiary, to such letter or report.
(e) Governmental Authorities. Promptly upon receipt thereof, a
copy of any notice from any Governmental Authority (except where
involving a routine or ordinary course matter, which in any case is
immaterial), and promptly upon a Responsible Officer of the Borrower's
or of Buckeye Partners' knowledge thereof, notice of any material
dispute with any Governmental Authority involving the Borrower, any
Guarantor or any Restricted Affiliate.
(f) Notices Under Other Loan Agreements. Promptly after the
furnishing thereof, copies of any statement, report or notice furnished
by the Borrower or Buckeye Partners to any Person pursuant to the terms
of any indenture, loan or credit or other similar agreement, other than
this Agreement and not otherwise required to be furnished to the
Lenders pursuant to any other provision of this Section 8.01.
(g) Other Matters. From time to time such other information
regarding the business, affairs or financial condition of the Borrower,
any Guarantor, any Restricted Affiliate or any Subsidiary (including,
without limitation, any Plan or Multiemployer Plan and any reports or
other information required to be filed under ERISA) as the Agent may
reasonably request.
The Borrower and Buckeye Partners will each furnish to the Agent, at the time
each set of financial statements is furnished to the Agent pursuant to paragraph
(a) or (b) above, a Compliance Certificate executed by a Responsible Officer of
the General Partner and BMC, respectively (i) certifying as to the matters set
forth therein and stating that no Default has occurred and is continuing (or, if
any Default has occurred and is continuing, describing the same in reasonable
detail), and (ii) setting forth in reasonable detail the computations necessary
to determine whether the Borrower is in compliance with Sections 9.12 and 9.13
as of the end of the respective fiscal quarter or fiscal year.
Section 8.02 Litigation. The Borrower and Buckeye Partners
shall promptly give, and shall cause any Restricted Affiliate to give to the
Agent notice of: (i) all legal or arbitral proceedings, and of all proceedings
before any Governmental Authority affecting the Borrower, the Guarantor or any
Restricted Affiliate, except proceedings which, if adversely determined, would
not have a Material Adverse Effect, and (ii) any litigation or proceeding
against or adversely affecting the Borrower, the Guarantor or any Restricted
Affiliate in which the amount involved exceeds $5,000,000 and is not covered in
full by insurance (subject to normal and customary deductibles and for which the
insurer has not assumed the defense), or in which injunctive or similar relief
is sought.
-47-
The Borrower will promptly notify the Agent and each of the Lenders of any
claim, judgment, Lien or other encumbrance affecting any Property of the
Borrower, the Guarantor or any Restricted Affiliate if the value of the claim,
judgment, Lien, or other encumbrance affecting such Property shall exceed
$5,000,000.
Section 8.03 Maintenance, Etc.
(a) Generally. Each of Buckeye Partners and the Borrower
shall: preserve and maintain its partnership or corporate existence and
all of its material rights, privileges and franchises and shall cause
the Restricted Affilitates to do so; keep books of record and account
in which full, true and correct entries will be made of all dealings or
transactions in relation to its business and activities; comply with
all Governmental Requirements if failure to comply with such
requirements will have a Material Adverse Effect; pay and discharge all
taxes, assessments and governmental charges or levies imposed on it or
on its income or profits or on any of its Property prior to the date on
which penalties attach thereto, except for any such tax, assessment,
charge or levy the payment of which is being contested in good faith
and by proper proceedings and against which adequate reserves are being
maintained; upon reasonable notice, permit representatives of the Agent
or any Lender, during normal business hours, to examine, copy and make
extracts from its books and records, to inspect its Properties, and to
discuss its business and affairs with its officers, all to the extent
reasonably requested by such Lender or the Agent (as the case may be);
and keep, or cause to be kept, insured by financially sound and
reputable insurers all Property of a character usually insured by
Persons engaged in the same or similar business similarly situated
against loss or damage of the kinds and in the amounts customarily
insured against by such Persons and carry such other insurance as is
usually carried by such Persons including, without limitation,
environmental risk insurance to the extent reasonably available.
(b) Proof of Insurance. Contemporaneously with the delivery of
the financial statements required by Section 8.01(a) to be delivered
for each year, the Borrower and Buckeye Partners will furnish or cause
to be furnished, and will cause to be furnished for the Restricted
Affiliates, to the Agent certificates of insurance coverage from an
insurer in form and substance reasonably satisfactory to the Agent and,
if requested, will furnish the Agent copies of the applicable policies.
(c) Operation of Properties. Each of the Borrower and Buckeye
Partners will and will cause each Restricted Affiliate to, operate its
Properties or cause such Properties to be operated in a careful and
efficient manner in accordance with the practices of the industry and
in compliance with all applicable contracts and agreements and in
compliance in all material respects with all Governmental Requirements.
Section 8.04 Environmental Matters.
(a) Establishment of Procedures. Each of the Borrower and
Buckeye Partners will and will cause each Restricted Affiliate to,
establish and implement such procedures as may be reasonably necessary
to determine and assure that any failure of the following does not have
a Material Adverse Effect: (i) all Property of the Borrower, the
Guarantors and the
-48-
Restricted Affiliates, and the operations conducted thereon and other
activities of the Borrower, the Guarantors and the Restricted
Affiliates, are in compliance with and do not violate the requirements
of any Environmental Laws, (ii) no oil, hazardous substances or solid
wastes are disposed of or otherwise released on or to any Property
owned by the Borrower, any Guarantor or any Restricted Affiliate except
in compliance with Environmental Laws, (iii) no hazardous substance
will be released on or to any such Property in a quantity equal to or
exceeding that quantity which requires reporting pursuant to Section
103 of CERCLA, and (iv) no oil, oil and gas exploration and production
wastes or hazardous substance is released on or to any such Property so
as to pose an imminent and substantial endangerment to public health or
welfare or the environment.
(b) Notice of Action. The Borrower and Buckeye Partners will,
and will cause any Restricted Affiliate to, promptly notify the Agent
and the Lenders in writing of any threatened action or investigation by
any Governmental Authority of which a Responsible Officer of the
Borrower, any Guarantor or any Restricted Affiliate has knowledge in
connection with any Environmental Laws, excluding routine testing and
corrective action.
(c) Future Acquisitions. The Borrower and Buckeye Partners
will, will cause each Restricted Affiliate to, provide environmental
audits and tests in accordance with American Society for Testing and
Materials standards as reasonably requested by the Agent or any Lender
through the Agent (or as otherwise required to be obtained by the Agent
or the Lenders by any Governmental Authority) in connection with any
future acquisitions of any material Properties by the Borrower, any
Guarantor or any Restricted Affiliate.
Section 8.05 Further Assurances. The Borrower and Buckeye
Partners will promptly cure any defects in the creation and issuance of the
Notes and the execution and delivery of the other Loan Documents. Each of the
Borrower and Buckeye Partners, at its expense, will promptly execute and deliver
(or cause to be promptly executed and delivered) to the Agent upon reasonable
request all such other documents, agreements and instruments to comply with or
accomplish the covenants and agreements of the Borrower and Buckeye Partners, as
the case may be, in the Loan Documents, or to, correct any omissions in the Loan
Documents, or to state more fully the obligations set out herein or in any of
the other Loan Documents, or to make any recordings, to file any notices or
obtain any consents, all as may be necessary or appropriate in connection
therewith.
Section 8.06 Performance of Obligations. The Borrower will pay
the Notes according to the reading, tenor and effect thereof; and the Borrower
will do and perform every act and discharge all of the obligations to be
performed and discharged by it under this Agreement, at the time or times and in
the manner specified.
Section 8.07 ERISA Information and Compliance. The Borrower
will promptly furnish and will cause any ERISA Affiliate to promptly furnish to
the Agent with sufficient copies to the Lenders (i) promptly after the filing
thereof with the United States Secretary of Labor, the Internal Revenue Service
or the PBGC, copies of each annual and other material report with respect to
each Plan or any trust created thereunder, (ii) immediately upon a Responsible
Officer becoming aware of the occurrence of any ERISA Event or of any
"prohibited transaction," as described in
-49-
section 406 of ERISA or in section 4975 of the Code, in connection with any Plan
or any trust created thereunder, a written notice signed by a Responsible
Officer specifying the nature thereof, what action the Borrower or the ERISA
Affiliate is taking or proposes to take with respect thereto, and, when known,
any action taken or proposed by the Internal Revenue Service, the Department of
Labor or the PBGC with respect thereto, and (iii) immediately upon receipt
thereof, copies of any notice of the PBGC's intention to terminate or to have a
trustee appointed to administer any Plan. With respect to each Plan (other than
a Multiemployer Plan), the Borrower will, and will cause each ERISA Affiliate
to, (i) satisfy in full and in a timely manner, without incurring any late
payment or underpayment charge or penalty and without giving rise to any lien,
all of the contribution and funding requirements of section 412 of the Code
(determined without regard to subsections (d), (e), (f) and (k) thereof) and of
section 302 of ERISA (determined without regard to sections 303, 304 and 306 of
ERISA), and (ii) pay, or cause to be paid, to the PBGC in a timely manner,
without incurring any late payment or underpayment charge or penalty, all
premiums required pursuant to sections 4006 and 4007 of ERISA.
Section 8.08 Year 2000 Compatibility. Each of the Borrower and Buckeye
Partners shall take all action reasonably necessary, shall cause each Restricted
Affiliate to take all action reasonably necessary, to assure that its computer
based systems are able to operate and effectively process data, including dates,
on and after January 1, 2000 or that sufficient back-up plans are in place that
no such computer failure will materially and adversely affect the operations of
the Borrower, Buckeye Partners or any Restricted Affiliate. Upon request of the
Agent, each of the Borrower and Buckeye Partners shall, and shall cause each
Restricted Affiliate to, promptly provide the Agent assurance reasonably
acceptable to the Agent of the Borrower's, each Guarantor's and each Restricted
Affiliate's Year 2000 compatibility.
ARTICLE IX
Negative Covenants
The Borrower and Buckeye Partners each covenant and agree that, so long
as any of the Commitments are in effect and until payment in full of Loans
hereunder, all interest thereon and all other amounts payable by the Borrower
hereunder and the Guarantors under the Guaranty Agreements, without the prior
written consent of the Required Lenders:
Section 9.01 Debt. None of the Borrower, any Guarantor or any
Restricted Affiliate will incur, create, assume or permit to exist any Debt,
except:
(a) the Notes or other Indebtedness or any guaranty of or
suretyship arrangement for the Notes or other Indebtedness;
(b) Debt of the Borrower existing on the Closing Date which is
reflected in the Financial Statements or is disclosed in Schedule 9.01,
and any renewals or extensions (but not increases) thereof;
-50-
(c) accounts payable (for the deferred purchase price of
Property or services) from time to time incurred in the ordinary course
of business which, if material and greater than 90 days past the
invoice or billing date, are being contested in good faith by
appropriate proceedings if reserves adequate under GAAP shall have been
established therefor;
(d) Debt of the Borrower or Buckeye Partners requiring no
principal payments (whether at stated maturity or by virtue of
scheduled amortization, required prepayment or redemption) due until at
least one year after the Revolving Credit Termination Date and issued
under the Indenture or otherwise on terms and conditions (excluding
interest rates) no less favorable to the Borrower or Buckeye Partners
than this Agreement;
(e) Debt not otherwise permitted by this Section 9.01 which in
the aggregate shall not exceed $15,000,000 outstanding at any one time;
(f) Debt of the Borrower under Hedging Agreements entered into
as a part of its normal business operations as a risk management
strategy and/or hedge against changes resulting from market conditions
related to the Borrower's operations; and
(g) Debt as a result of (and to the extent permitted by)
Sections 9.03(g), (h) and (i).
Section 9.02 Liens. None of the Borrower, any Guarantor or any
Restricted Affiliate will create, incur, assume or permit to exist any Lien on
any of its Properties (now owned or hereafter acquired), except:
(a) Liens securing the payment of any Indebtedness;
(b) Excepted Liens;
(c) Liens disclosed on Schedule 9.02; and
(d) Liens originally created to secure purchase money Debt
permitted under Section 9.01(e), which in each case shall not exceed
100% of the lesser of the total purchase price and the fair market
value of the Property acquired as determined at the time of
acquisition; provided, that, (i) the Property to be purchased with the
proceeds of such Debt shall be purchased not more than sixty (60) days
prior to the date of the creation of such Lien and (ii) such Lien
encumbers only the Property so acquired.
Section 9.03 Investments, Loans and Advances. None of the
Borrower any Guarantor or any Restricted Affiliate will make or permit to remain
outstanding any loans or advances to or investments in any Person, except that
the foregoing restriction shall not apply to:
(a) investments, loans or advances reflected in the Financial
Statements or which are disclosed to the Lenders in Schedule 9.03;
(b) accounts receivable arising in the ordinary course of
business;
-51-
(c) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency
thereof, in each case maturing within one year from the date of
creation thereof;
(d) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by Standard & Poor's
Corporation or ▇▇▇▇▇'▇ Investors Service, Inc.;
(e) deposits maturing within one year from the date of
creation thereof with, including certificates of deposit issued by,
any Lender or any office located in the United States of any other bank
or trust company which is organized under the laws of the United States
or any state thereof, has capital, surplus and undivided profits
aggregating at least $100,000,000.00 (as of the date of such Lender's
or bank or trust company's most recent financial reports) and has a
short term deposit rating of no lower than A2 or P2, as such rating is
set forth from time to time, by Standard & Poor's Corporation or
▇▇▇▇▇'▇ Investors Service, Inc., respectively;
(f) deposits in money market funds investing exclusively in
investments described in Section 9.03(c), 9.03(d) or 9.03(e);
(g) investments, loans or advances made in or to the Borrower,
Buckeye Partners, any Restricted Subsidiary, or any Restricted
Affiliate that has executed a Guaranty Agreement;
(h) investments, loans or advances in or to any Person (other
than the Borrower, Buckeye Partners, a Restricted Subsidiary or any
Restricted Affiliate that has executed a Guaranty Agreement) not to
exceed $50,000,000 in the aggregate at any time outstanding; and
(i) other investments, loans and advances in or to any Person
not to exceed the amount of net proceeds received by Buckeye Partners
from an equity offering occurring substantially concurrent therewith.
Section 9.04 Distributions and Redemptions. If a Default
exists or would result therefrom, neither the Borrower nor Buckeye Partners will
purchase, redeem or otherwise acquire for value any of its equity interests now
or hereafter outstanding, return any capital or make any distribution of its
assets to its equity owners.
Section 9.05 Sales and Leasebacks. Neither the Borrower nor
Buckeye Partners will, and will not permit any Restricted Affiliate to, enter
into any Sale-Leaseback Transaction, unless:
(a) such Sale-Leaseback Transaction occurs within one year
after the later of (i) completion of the acquisition of the applicable
Property by the Borrower, Buckeye Partners or such Restricted Affiliate
or (ii) commencement of full operation with respect to such Property;
or
-52-
(b) such Sale-Leaseback Transaction involves a lease for a
term of not more than three years; or
(c) the net sale proceeds derived from the sale or transfer by
the Borrower, Buckeye Partners or such Restricted Affiliate of the
Property involved are used solely (i) to prepay or retire Funded Debt
of the Borrower ranking pari passu with the Indebtedness or (ii) for
capital improvements with respect to the pipeline systems of the
Borrower or any Restricted Affiliate made in the ordinary course of
business of the Borrower or such Restricted Affiliate; or
(d) the Sale-Leaseback Attributable Debt attributable to such
Sale-Leaseback Transaction would be permitted under Section 9.01(e).
Section 9.06 Nature of Business. None of the Borrower, Buckeye
Partners or any Restricted Affiliate will allow any material change to be made
in the nature of its business as it exists on the Closing Date.
Section 9.07 Limitation on Leases. None of the Borrower, any
Guarantor or any Restricted Affiliate will create, incur, assume or permit to
exist any obligation by any of them for the payment of rent or hire of Property
of any kind whatsoever (real or personal including capital leases), under leases
or lease agreements which would cause the aggregate amount of all payments made
by the Borrower, the Guarantors and the Restricted Affiliates pursuant to all
such leases or lease agreements to exceed $15,000,000 (on a consolidated basis)
in any period of twelve consecutive calendar months during the life of such
leases.
Section 9.08 Mergers, Etc. None of the Borrower, any Guarantor
or any Restricted Affiliate will merge into or with or consolidate with any
other Person unless such entity is the survivor, or sell, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its Property or assets to any other Person; provided,
however, that any Restricted Affiliate may merge with or into the Borrower, any
Guarantor or any other Restricted Affiliate, even if it is not the surviving
entity of such merger.
Section 9.09 Proceeds of Notes; Letters of Credit. The
Borrower will not permit the proceeds of the Notes or Letters of Credit to be
used for any purpose other than those permitted by Section 7.07. Neither the
Borrower nor any Person acting on behalf of the Borrower has taken or will take
any action which might cause any of the Loan Documents to violate Regulation T,
U or X or any other regulation of the Board of Governors of the Federal Reserve
System or to violate Section 7 of the Securities Exchange Act of 1934 or any
rule or regulation thereunder, in each case as now in effect or as the same may
hereinafter be in effect.
Section 9.10 ERISA Compliance. The Borrower will not at any
time take any of the following actions that could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect:
(a) Engage in, or permit any Subsidiary of the Borrower or
ERISA Affiliate to engage in, any transaction in connection with which
the Borrower, any Subsidiary of the
-53-
Borrower or any ERISA Affiliate could be subjected to either a civil
penalty assessed pursuant to section 502(c), (i) or (l) of ERISA or a
tax imposed by Chapter 43 of Subtitle D of the Code;
(b) Terminate, or permit any Subsidiary of the Borrower or
ERISA Affiliate to terminate, any Plan in a manner, or take any other
action with respect to any Plan, which could result in any liability to
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate to
the PBGC;
(c) Fail to make, or permit any Subsidiary of the Borrower or
ERISA Affiliate to fail to make, full payment when due of all amounts
which, under the provisions of any Plan, agreement relating thereto or
applicable law, the Borrower, a Subsidiary of the Borrower or any ERISA
Affiliate is required to pay as contributions thereto;
(d) Permit to exist, or allow any Subsidiary of the Borrower
or ERISA Affiliate to permit to exist, any accumulated funding
deficiency within the meaning of section 302 of ERISA or section 412 of
the Code, whether or not waived, with respect to any Plan;
(e) Permit, or allow any Subsidiary of the Borrower or ERISA
Affiliate to permit, the actuarial present value of the benefit
liabilities under any Plan maintained by the Borrower, any Subsidiary
of the Borrower or any ERISA Affiliate which is regulated under Title
IV of ERISA to exceed the current value of the assets (computed on a
plan termination basis in accordance with Title IV of ERISA) of such
Plan allocable to such benefit liabilities. The term "actuarial present
value of the benefit liabilities" shall have the meaning specified in
section 4041 of ERISA;
(f) Contribute to or assume an obligation to contribute to, or
permit any Subsidiary of the Borrower or ERISA Affiliate to contribute
to or assume an obligation to contribute to, any Multiemployer Plan;
(g) Acquire, or permit any Subsidiary of the Borrower or ERISA
Affiliate to acquire, an interest in any Person that causes such Person
to become an ERISA Affiliate with respect to the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate if such Person
sponsors, maintains or contributes to, or at any time in the six-year
period preceding such acquisition has sponsored, maintained, or
contributed to, (1) any Multiemployer Plan, or (2) any other Plan that
is subject to Title IV of ERISA under which the actuarial present value
of the benefit liabilities under such Plan exceeds the current value of
the assets (computed on a plan termination basis in accordance with
Title IV of ERISA) of such Plan allocable to such benefit liabilities;
(h) Incur, or permit any Subsidiary of the Borrower or ERISA
Affiliate to incur, a liability to or on account of a Plan under
sections 515, 4062, 4063, 4064, 4201 or 4204 of ERISA;
(i) Contribute to or assume an obligation to contribute to, or
permit any Subsidiary of the Borrower or ERISA Affiliate to contribute
to or assume an obligation to
-54-
contribute to, any employee welfare benefit plan, as defined in section
3(1) of ERISA, including, without limitation, any such plan maintained
to provide benefits to former employees of such entities, that may not
be terminated by such entities in their sole discretion at any time
without any material liability; or
(j) Amend or permit any Subsidiary of the Borrower or ERISA
Affiliate to amend, a Plan resulting in an increase in current
liability such that the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate is required to provide security to such Plan under
section 401(a)(29) of the Code.
Section 9.11 Sale or Discount of Receivables. None of the
Borrower, any Guarantor or any Restricted Affiliate will discount or sell (with
or without recourse) any of its notes receivable or accounts receivable.
Section 9.12 Funded Debt Ratio. The Borrower will not permit
the Funded Debt Ratio as of the end of any fiscal quarter to be greater than
4.75 to 1.00.
Section 9.13 Fixed Charge Coverage Ratio. The Borrower will
not permit the Fixed Charge Coverage Ratio as of the end of any fiscal quarter
(calculated quarterly at the end of each fiscal quarter) to be less than 1.25 to
1.00. For the purposes of this Section 9.13, "Fixed Charge Coverage Ratio" shall
mean the ratio of (i) consolidated EBITDA of Buckeye Partners (excluding
Unrestricted Subsidiaries and Affiliates of Buckeye Partners that are not
Restricted Affiliates) for the four fiscal quarters ending on such date to (ii)
the sum of (a) all payments of principal (including the principal component of
any payments in respect of capital lease obligations) payable during the
succeeding four quarters, plus (b) interest expense for the four fiscal quarters
ended on such date, plus (c) capital expenditures for the four fiscal quarters
ended on such date, in each case, without duplication, for Buckeye Partners on a
consolidated basis (excluding Unrestricted Subsidiaries and Affiliates of
Buckeye Partners that are not Restricted Affiliates).
Section 9.14 Sale of Properties. None of the Borrower, any
Guarantor or any Restricted Affiliate will sell, assign, convey or otherwise
transfer any Property or any interest in any Property, unless such Property is
not material to the ability of the Borrower or any Restricted Affiliate to
generate EBITDA.
Section 9.15 Environmental Matters. None of the Borrower, any
Guarantor or any Restricted Affiliate will cause or permit any of its Property
to be in violation of, or do anything or permit anything to be done which will
subject any such Property to any remedial obligations under any Environmental
Laws, assuming disclosure to the applicable Governmental Authority of all
relevant facts, conditions and circumstances, if any, pertaining to such
Property where such violations or remedial obligations would have a Material
Adverse Effect.
Section 9.16 Transactions with Affiliates. None of the
Borrower, any Guarantor or any Restricted Affiliate will enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property or the rendering of any service, with any Affiliate unless
such transactions are otherwise permitted under this Agreement, are in the
ordinary course of its business and are upon fair and reasonable terms no less
favorable to it than it would obtain in a comparable
-55-
arm's length transaction with a Person not an Affiliate; provided, however, that
the foregoing shall not prohibit or prevent the Borrower, any Guarantor or any
Restricted Affiliate from performing under any agreement in effect on the
Closing Date.
Section 9.17 Partnership Agreements. Without the prior consent
of the Required Lenders, which shall not be unreasonably withheld, the Borrower
will not amend or permit to be amended in any material respect the Borrower
Partnership Agreement. Without the prior consent of the Required Lenders, which
shall not be unreasonably withheld, Buckeye Partners will not amend or permit to
be amended in any material respect the Buckeye Partners Partnership Agreement.
Section 9.18 Senior Notes. Without the prior consent of the
Required Lenders, which shall not be unreasonably withheld, the Borrower will
not amend or permit to be amended in any material respect the Senior Notes or
the Indenture, except that the Borrower may issue additional indebtedness under
supplemental indentures issued under the Indenture if otherwise permitted
hereunder and thereunder.
ARTICLE X
Events of Default; Remedies
Section 10.01 Events of Default. One or more of the following
events shall constitute an "Event of Default":
(a) the Borrower shall default in the payment or prepayment
when due of any principal of or interest on any Loan, or any
reimbursement obligation for a disbursement made under any Letter of
Credit, or any fees or other amount payable by it hereunder or under
any other Loan Document and such default, other than a default of a
payment or prepayment of principal (which shall have no cure period)
shall continue unremedied for a period of 3 Business Days; or
(b) the Borrower, any Guarantor or any Restricted Affiliate
shall default in the payment when due of any principal of or interest
on any of its other Debt aggregating $5,000,000 or more, or any event
specified in any note, agreement, indenture or other document
evidencing or relating to any such Debt shall occur if the effect of
such event (after the giving of notice or lapse of time or both, if
applicable) is to cause, or to permit the holder or holders of such
Debt (or a trustee or agent on behalf of such holder or holders) to
cause, such Debt to become due prior to its stated maturity; or
(c) any representation, warranty or certification made or
deemed made herein or in any other Loan Document by the Borrower, any
Guarantor or any Person on behalf of any Restricted Affiliate, or any
certificate furnished to any Lender or the Agent pursuant to the
provisions hereof or any other Loan Document, shall prove to have been
false or misleading as of the time made or furnished in any material
respect; or
(d) the Borrower, Buckeye Partners or any Restricted Affiliate
(despite the fact that such Restricted Affiliate is not a party to this
Agreement) shall default in the
-56-
performance of any of its obligations under Article IX; or the
Borrower, Buckeye Partners or any Restricted Affiliate (despite the
fact that such Restricted Affiliate is not a party to this Agreement)
shall default in the performance of any of its obligations under
Article VIII, any other Article of this Agreement (other than under
Article IX) or any other Loan Document (other than the payment of
amounts due which shall be governed by Section 10.01(a)) and such
default shall continue unremedied for a period of thirty (30) days
after the earlier to occur of (i) notice thereof to the Borrower and
Buckeye Partners by the Agent or any Lender (through the Agent), or
(ii) a Responsible Officer of the Borrower or Buckeye Partners
otherwise obtaining actual knowledge of such default; or
(e) the Borrower shall admit in writing its inability to, or
be generally unable to, pay its debts as such debts become due; or
(f) the Borrower shall (i) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its
property, (ii) make a general assignment of all or substantially all of
its assets for the benefit of its creditors, (iii) commence a voluntary
case under the Federal Bankruptcy Code (as now or hereafter in effect),
(iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up,
liquidation or composition or readjustment of debts, (v) fail to
controvert in a timely and appropriate manner, or acquiesce in writing
to, any petition filed against it in an involuntary case under the
Federal Bankruptcy Code, or (vi) take any corporate action for the
purpose of effecting any of the foregoing; or
(g) a proceeding or case shall be commenced, without the
application or consent of the Borrower, in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution
or winding-up, or the composition or readjustment of its debts, (ii)
the appointment of a trustee, receiver, custodian, liquidator or the
like of the Borrower of all or any substantial part of its assets, or
(iii) similar relief in respect of the Borrower under any law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect,
for a period of 60 days; or (iv) an order for relief against the
Borrower shall be entered in an involuntary case under the Federal
Bankruptcy Code; or
(h) a judgment or judgments for the payment of money in excess
of $2,000,000 in the aggregate shall be rendered by a court against the
Borrower or any Subsidiary and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution
thereof shall not be procured, within thirty (30) days from the date of
entry thereof and the Borrower or such Subsidiary shall not, within
said period of 30 days, or such longer period during which execution of
the same shall have been stayed, appeal therefrom and cause the
execution thereof to be stayed during such appeal; or
(i) any Guaranty Agreement after delivery thereof shall for
any reason, except to the extent permitted by the terms thereof, cease
to be in full force and effect and valid,
-57-
binding and enforceable in accordance with its terms, or the Borrower
or any Guarantor shall so state in writing; or
(j) a Change of Control shall occur; or
(k) any Guarantor takes, suffers or permits to exist any of
the events or conditions referred to in paragraphs (e), (f), (g) or (h)
or if any provision of any Guaranty Agreement related thereto shall for
any reason cease to be valid and binding on the relevant Guarantor or
if such Guarantor shall so state in writing; or
(l) any Restricted Affiliate takes, suffers or permits to
exist any of the events or conditions referred to in paragraphs (e),
(f), (g) or (h).
Section 10.02 Remedies.
(a) In the case of an Event of Default other than one referred
to in clauses (e), (f) or (g) of Section 10.01 or in either of clauses
(m) and (n) to the extent it relates to clauses (e), (f) or (g), the
Agent, upon request of the Required Lenders, shall, by notice to the
Borrower, cancel the Commitments and/or declare the principal amount
then outstanding of, and the accrued interest on, the Loans and all
other amounts payable by the Borrower hereunder and under the Notes
(including without limitation the payment of cash collateral to secure
the LC Exposure as provided in Section 2.09(b)) to be forthwith due and
payable, whereupon such amounts shall be immediately due and payable
without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration or other formalities of any kind, all of which
are hereby expressly waived by the Borrower.
(b) In the case of the occurrence of an Event of Default
referred to in clauses (e), (f) or (g) of Section 10.01 or in either of
clauses (m) and (n) to the extent it relates to clauses (e), (f) or
(g), the Commitments shall be automatically canceled and the principal
amount then outstanding of, and the accrued interest on, the Loans and
all other amounts payable by the Borrower hereunder and under the Notes
(including without limitation the payment of cash collateral to secure
the LC Exposure as provided in Section 2.09(b)) shall become
automatically immediately due and payable without presentment, demand,
protest, notice of intent to accelerate, notice of acceleration or
other formalities of any kind, all of which are hereby expressly waived
by the Borrower.
(c) All proceeds received after maturity of the Notes, whether
by acceleration or otherwise shall be applied first to reimbursement of
expenses and indemnities provided for in this Agreement and the other
Loan Documents; second to accrued interest on the Notes; third to fees;
fourth pro rata to principal outstanding on the Notes and other
Indebtedness; fifth to serve as cash collateral to be held by the Agent
to secure the LC Exposure; and any excess shall be paid to the Borrower
or as otherwise required by any Governmental Requirement.
-58-
ARTICLE XI
The Agent
Section 11.01 Appointment, Powers and Immunities. Each Lender
hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 11.05 and
the first sentence of Section 11.06 shall include reference to its Affiliates
and its and its Affiliates' officers, directors, employees, attorneys,
accountants, experts and agents): (i) shall have no duties or responsibilities
except those expressly set forth in the Loan Documents, and shall not by reason
of the Loan Documents be a trustee or fiduciary for any Lender; (ii) makes no
representation or warranty to any Lender and shall not be responsible to the
Lenders for any recitals, statements, representations or warranties contained in
this Agreement, or in any certificate or other document referred to or provided
for in, or received by any of them under, this Agreement, or for the value,
validity, effectiveness, genuineness, execution, effectiveness, legality,
enforceability or sufficiency of this Agreement, any Note or any other document
referred to or provided for herein or for any failure by the Borrower or any
other Person (other than the Agent) to perform any of its obligations hereunder
or thereunder or for the existence, value, perfection or priority of any
collateral security or the financial or other condition of the Borrower, the
Guarantors, BMC, any Restricted Affiliate or any other obligor or guarantor;
(iii) except pursuant to Section 11.07 shall not be required to initiate or
conduct any litigation or collection proceedings hereunder; and (iv) shall not
be responsible for any action taken or omitted to be taken by it hereunder or
under any other document or instrument referred to or provided for herein or in
connection herewith including its own ordinary negligence, except for its own
gross negligence or willful misconduct. The Agent may employ agents,
accountants, attorneys and experts and shall not be responsible for the
negligence or misconduct of any such agents, accountants, attorneys or experts
selected by it in good faith or any action taken or omitted to be taken in good
faith by it in accordance with the advice of such agents, accountants, attorneys
or experts. The Agent may deem and treat the payee of any Note as the holder
thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof permitted hereunder shall have been filed with
the Agent. The Agent is authorized to release any collateral that is permitted
to be sold or released pursuant to the terms of the Loan Documents. The
Documentation Agent shall have no duties or responsibilities hereunder.
Section 11.02 Reliance by Agent. The Agent shall be entitled
to rely upon any certification, notice or other communication (including any
thereof by telephone, telex, telecopier, telegram or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent.
Section 11.03 Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on Loans or of fees or failure to reimburse for Letter
of Credit drawings) unless the Agent has received notice from a Lender or the
Borrower specifying such Default and stating that such notice is a "Notice of
Default." In the event that the Agent receives such a notice of the occurrence
of a Default, the Agent shall give prompt notice thereof to the Lenders. In the
event of a payment Default, the Agent shall give each Lender prompt notice of
each such payment Default.
-59-
Section 11.04 Rights as a Lender. With respect to its
Commitments and the Loans made by it and its participation in the issuance of
Letters of Credit, First Union (and any successor acting as Agent) in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
the Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include the Agent in its individual capacity. First Union
(and any successor acting as Agent) and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to and
generally engage in any kind of banking, trust or other business with the
Borrower (and any of its Affiliates) as if it were not acting as the Agent, and
First Union and its Affiliates may accept fees and other consideration from the
Borrower for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders.
Section 11.05 INDEMNIFICATION. THE LENDERS AGREE TO INDEMNIFY
THE AGENT AND THE ISSUING BANK RATABLY IN ACCORDANCE WITH THEIR PERCENTAGE
SHARES FOR THE INDEMNITY MATTERS AS DESCRIBED IN SECTION 12.03 TO THE EXTENT NOT
INDEMNIFIED OR REIMBURSED BY THE BORROWER UNDER SECTION 12.03, BUT WITHOUT
LIMITING THE OBLIGATIONS OF THE BORROWER UNDER SAID SECTION 12.03 AND FOR ANY
AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND AND NATURE
WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST THE AGENT OR
THE ISSUING BANK IN ANY WAY RELATING TO OR ARISING OUT OF: (I) THIS AGREEMENT,
THE OTHER LOAN DOCUMENTS OR ANY OTHER DOCUMENTS CONTEMPLATED BY OR REFERRED TO
HEREIN OR THE TRANSACTIONS CONTEMPLATED HEREBY, BUT EXCLUDING, UNLESS A DEFAULT
HAS OCCURRED AND IS CONTINUING, NORMAL ADMINISTRATIVE COSTS AND EXPENSES
INCIDENT TO THE PERFORMANCE OF ITS AGENCY DUTIES HEREUNDER OR (II) THE
ENFORCEMENT OF ANY OF THE TERMS OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR OF
ANY SUCH OTHER DOCUMENTS; WHETHER OR NOT ANY OF THE FOREGOING SPECIFIED IN THIS
SECTION 11.05 ARISES FROM THE SOLE OR CONCURRENT NEGLIGENCE OF THE AGENT OR THE
ISSUING BANK, PROVIDED THAT NO LENDER SHALL BE LIABLE FOR ANY OF THE FOREGOING
TO THE EXTENT THEY ARISE FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
AGENT.
Section 11.06 Non-Reliance on Agent and other Lenders. Each
Lender acknowledges and agrees that it has, independently and without reliance
on the Agent or any other Lender, and based on such documents and information as
it has deemed appropriate, made its own credit analysis of the Borrower and its
decision to enter into this Agreement, and that it will, independently and
without reliance upon the 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 analysis and decisions in taking or not taking action under this Agreement.
The Agent shall not be required to keep itself informed as to the performance or
observance by the Borrower, the Guarantors or BMC of this Agreement, the Notes,
the other Loan Documents or any other document referred to or provided for
herein or to inspect the properties or books of the Borrower, the Guarantors or
BMC. Except for notices, reports and other documents and information expressly
required to be furnished to the Lenders by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the affairs, financial condition or business of the
Borrower (or any of its Affiliates) which may come into the possession of the
Agent or any of its Affiliates. In this regard, each Lender acknowledges that
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
-60-
is acting in this transaction as special counsel to the Agent only, except to
the extent otherwise expressly stated in any legal opinion or any Loan Document.
Each Lender will consult with its own legal counsel to the extent that it deems
necessary in connection with the Loan Documents and the matters contemplated
therein.
Section 11.07 Action by Agent. Except for action or other
matters expressly required of the Agent hereunder, the Agent shall in all cases
be fully justified in failing or refusing to act hereunder unless it shall (i)
receive written instructions from the Required Lenders (or all of the Lenders as
expressly required by Section 12.04) specifying the action to be taken, and (ii)
be indemnified to its satisfaction by the Lenders against any and all liability
and expenses which may be incurred by it by reason of taking or continuing to
take any such action. The instructions of the Required Lenders (or all of the
Lenders as expressly required by Section 12.04) and any action taken or failure
to act pursuant thereto by the Agent shall be binding on all of the Lenders. If
a Default has occurred and is continuing, the Agent shall take such action with
respect to such Default as shall be directed by the Required Lenders (or all of
the Lenders as required by Section 12.04) in the written instructions (with
indemnities) described in this Section 11.07, provided that, unless and until
the Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interests of the Lenders.
In no event, however, shall the Agent be required to take any action which
exposes the Agent to personal liability or which is contrary to this Agreement
and the other Loan Documents or applicable law.
Section 11.08 Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Lenders and the Borrower, and
the Agent may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent. Upon
the acceptance of such appointment hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article XI and Section 12.03 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent.
ARTICLE XII
Miscellaneous
Section 12.01 Waiver. No failure on the part of the Agent or
any Lender to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under any of the Loan Documents shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege under any of the Loan Documents preclude any other or
-61-
further exercise thereof or the exercise of any other right, power or privilege.
The remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Section 12.02 Notices. All notices and other communications
provided for herein and in the other Loan Documents (including, without
limitation, any modifications of, or waivers or consents under, this Agreement
or the other Loan Documents) shall be given or made by telex, telecopy, courier
or U.S. Mail or in writing and telexed, telecopied, mailed or delivered to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof or in the Loan Documents, except that for notices and
other communications to the Agent other than payment of money, the Borrower need
only send such notices and communications to the Agent care of the Houston
address of FUCM; or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement or in the other Loan Documents, all such
communications shall be deemed to have been duly given when transmitted, if
transmitted before 1:00 p.m. local time on a Business Day (otherwise on the next
succeeding Business Day) by telex or telecopier and evidence or confirmation of
receipt is obtained, or personally delivered or, in the case of a mailed notice,
four (4) Business Days after the date deposited in the mails, postage prepaid,
in each case given or addressed as aforesaid.
Section 12.03 Payment of Expenses, Indemnities, etc.
(a) The Borrower agrees:
(i) whether or not the transactions hereby contemplated are
consummated, to pay all reasonable expenses of the Agent in the
administration (both before and after the execution hereof and
including advice of counsel as to the rights and duties of the Agent
and the Lenders with respect thereto) of, and in connection with the
negotiation, syndication, investigation, preparation, execution and
delivery of, recording or filing of, preservation of rights under,
enforcement of, and refinancing, renegotiation or restructuring of, the
Loan Documents and any amendment, waiver or consent relating thereto
(including, without limitation, travel, photocopy, mailing, courier,
telephone and other similar expenses of the Agent, the cost of
environmental audits, surveys and appraisals at reasonable intervals,
the reasonable fees and disbursements of counsel and other outside
consultants for the Agent and, in the case of enforcement, the
reasonable fees and disbursements of counsel for the Agent and any of
the Lenders); and promptly reimburse the Agent for all amounts
expended, advanced or incurred by the Agent or the Lenders to satisfy
any obligation of the Borrower or the Guarantors under this Agreement
or any other Loan Document, including without limitation, all costs and
expenses of foreclosure;
(ii) TO INDEMNIFY THE AGENT AND EACH LENDER AND EACH OF THEIR
AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES,
REPRESENTATIVES, AGENTS, ATTORNEYS, ACCOUNTANTS AND EXPERTS
("INDEMNIFIED PARTIES") FROM, HOLD EACH OF THEM HARMLESS AGAINST AND
PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR, THE INDEMNITY
MATTERS WHICH MAY BE INCURRED BY OR ASSERTED AGAINST OR INVOLVE ANY OF
THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A PARTY THERETO) AS A
RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY ACTUAL OR
PROPOSED USE BY THE BORROWER OF THE PROCEEDS OF
-62-
ANY OF THE LOANS OR LETTERS OF CREDIT, (II) THE EXECUTION, DELIVERY AND
PERFORMANCE OF THE LOAN DOCUMENTS BY BUCKEYE PARTNERS OR THE BORROWER,
(III) THE OPERATIONS OF THE BUSINESS OF THE BORROWER, ANY GUARANTOR AND
THE RESTRICTED AFFILIATES, (IV) THE FAILURE OF THE BORROWER, ANY
GUARANTOR OR ANY RESTRICTED AFFILIATE TO COMPLY WITH THE TERMS OF ANY
LOAN DOCUMENT, OR WITH ANY GOVERNMENTAL REQUIREMENT, (V) ANY INACCURACY
OF ANY REPRESENTATION OR ANY BREACH OF ANY WARRANTY OF THE BORROWER OR
THE GUARANTOR SET FORTH IN ANY OF THE LOAN DOCUMENTS, (VI) THE
ISSUANCE, EXECUTION AND DELIVERY OR TRANSFER OF OR PAYMENT OR FAILURE
TO PAY UNDER ANY LETTER OF CREDIT, OR (VIII) THE PAYMENT OF A DRAWING
UNDER ANY LETTER OF CREDIT NOTWITHSTANDING THE NON-COMPLIANCE,
NON-DELIVERY OR OTHER IMPROPER PRESENTATION OF THE MANUALLY EXECUTED
DRAFT(S) AND CERTIFICATION(S), (IX) ANY ASSERTION THAT THE LENDERS WERE
NOT ENTITLED TO RECEIVE THE PROCEEDS RECEIVED PURSUANT TO THE LOAN
DOCUMENTS OR (VIII) ANY OTHER ASPECT OF THE LOAN DOCUMENTS, INCLUDING,
WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL
AND ALL OTHER EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING,
DEFENDING OR PREPARING TO DEFEND ANY SUCH ACTION, SUIT, PROCEEDING
(INCLUDING ANY INVESTIGATIONS, LITIGATION OR INQUIRIES) OR CLAIM AND
INCLUDING ALL INDEMNITY MATTERS ARISING BY REASON OF THE ORDINARY
NEGLIGENCE OF ANY INDEMNIFIED PARTY, BUT EXCLUDING ALL INDEMNITY
MATTERS ARISING SOLELY BY REASON OF CLAIMS BETWEEN THE LENDERS OR ANY
LENDER AND THE AGENT OR A LENDER'S SHAREHOLDERS AGAINST THE AGENT OR
LENDER OR BY REASON OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON
THE PART OF THE INDEMNIFIED PARTY; AND
(iii) TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE
INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, COST
RECOVERY ACTIONS, ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND
LIABILITIES TO WHICH ANY SUCH PERSON MAY BECOME SUBJECT (I) UNDER ANY
ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER, ANY GUARANTOR OR ANY
RESTRICTED AFFILIATE OR ANY OF THEIR PROPERTIES, INCLUDING WITHOUT
LIMITATION, THE TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON ANY OF
SUCH PROPERTIES, (II) AS A RESULT OF THE BREACH OR NON-COMPLIANCE BY
THE BORROWER OR ANY RESTRICTED AFFILIATE WITH ANY ENVIRONMENTAL LAW
APPLICABLE TO THE BORROWER, ANY GUARANTOR OR ANY RESTRICTED AFFILIATE,
(III) DUE TO PAST OWNERSHIP BY THE BORROWER, ANY GUARANTOR OR ANY
RESTRICTED AFFILIATE OF ANY OF THEIR PROPERTIES OR PAST ACTIVITY ON ANY
OF THEIR PROPERTIES WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE
TIME, COULD RESULT IN PRESENT LIABILITY, (IV) THE PRESENCE, USE,
RELEASE, STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES ON OR
AT ANY OF THE PROPERTIES OWNED OR OPERATED BY THE BORROWER, ANY
GUARANTOR OR ANY RESTRICTED AFFILIATE, OR (V) ANY OTHER ENVIRONMENTAL,
HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS;
PROVIDED, HOWEVER, NO INDEMNITY SHALL BE AFFORDED UNDER THIS SECTION
12.03(A)(III) IN RESPECT OF ANY PROPERTY FOR ANY OCCURRENCE ARISING
FROM THE ACTS OR OMISSIONS OF THE AGENT OR ANY LENDER DURING THE PERIOD
AFTER WHICH SUCH PERSON, ITS SUCCESSORS OR ASSIGNS SHALL HAVE OBTAINED
POSSESSION OF SUCH PROPERTY (WHETHER BY
-63-
FORECLOSURE OR DEED IN LIEU OF FORECLOSURE, AS MORTGAGEE-IN-POSSESSION
OR OTHERWISE).
(b) No Indemnified Party may settle any claim to be
indemnified without the consent of the indemnitor, such consent not to
be unreasonably withheld; provided, that the indemnitor may not
reasonably withhold consent to any settlement that an Indemnified Party
proposes, if the indemnitor does not have the financial ability to pay
all its obligations outstanding and asserted against the indemnitor at
that time, including the maximum potential claims against the
Indemnified Party to be indemnified pursuant to this Section 12.03.
(c) In the case of any indemnification hereunder, the Agent or
Lender, as appropriate shall give notice to the Borrower of any such
claim or demand being made against the Indemnified Party and the
Borrower shall have the non-exclusive right to join in the defense
against any such claim or demand provided that if the Borrower provides
a defense, the Indemnified Party shall bear its own cost of defense
unless there is a conflict between the Borrower and such Indemnified
Party.
(d) THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED
PARTIES NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND
OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN
AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT LIMITATION, ALL TYPES
OF NEGLIGENT CONDUCT IDENTIFIED IN THE RESTATEMENT (SECOND) OF TORTS OF
ONE OR MORE OF THE INDEMNIFIED PARTIES OR BY REASON OF STRICT LIABILITY
IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE INDEMNIFIED PARTIES. TO
THE EXTENT THAT AN INDEMNIFIED PARTY IS FOUND TO HAVE COMMITTED AN ACT
OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THIS CONTRACTUAL OBLIGATION
OF INDEMNIFICATION SHALL CONTINUE BUT SHALL ONLY EXTEND TO THE PORTION
OF THE CLAIM THAT IS DEEMED TO HAVE OCCURRED BY REASON OF EVENTS OTHER
THAN THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED
PARTY.
(e) The Borrower's obligations under this Section 12.03 shall
survive any termination of this Agreement and the payment of the Notes
and shall continue thereafter in full force and effect.
(f) The Borrower shall pay any amounts due under this Section
12.03 within thirty (30) days of the receipt by the Borrower of notice
of the amount due.
Section 12.04 Amendments, Etc. Any provision of this Agreement
or any other Loan Document may be amended, modified or waived with the
Borrower's and the Required Lenders' prior written consent; provided that (i) no
amendment, modification or waiver which extends the final maturity of the Loans,
increases the Aggregate Revolving Credit Commitments, forgives the principal
amount of any Indebtedness outstanding under this Agreement, releases any
guarantor of the Indebtedness, reduces the interest rate applicable to the Loans
or the fees payable to the Lenders generally, affects this Section 12.04 or
Section 12.06(a) or modifies the definition of "Required Lenders" shall be
effective without consent of all Lenders; (ii) no amendment, modification or
-64-
waiver which increases the Revolving Credit Commitment of any Lender shall be
effective without the consent of such Lender; and (iii) no amendment,
modification or waiver which modifies the rights, duties or obligations of the
Agent shall be effective without the consent of the Agent.
Section 12.05 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section 12.06 Assignments and Participations.
(a) The Borrower may not assign its rights or obligations
hereunder or under the Notes or any Letters of Credit without the prior
consent of all of the Lenders and the Agent.
(b) Any Lender may upon the written consent of the Agent
(which consent will not be unreasonably withheld) and, if no Event of
Default has occurred and is continuing, the Borrower (which consent
will not be unreasonably withheld), assign to one or more assignees all
or a portion of its rights and obligations under this Agreement
pursuant to an Assignment Agreement substantially in the form of
Exhibit D (an "Assignment"); provided, however, that (i) any such
assignment shall be in the amount of at least $5,000,000 or such lesser
amount to which the Borrower has consented, (ii) the assignee or
assignor shall pay to the Agent a processing and recordation fee of
$3,500 for each assignment and (iii) any assignment to an Affiliate of
such Lender will not require the consent of the Agent or the Borrower.
Any such assignment will become effective upon the execution and
delivery to the Agent of the Assignment and the consent of the Agent.
Promptly after receipt of an executed Assignment, the Agent shall send
to the Borrower a copy of such executed Assignment. Upon receipt of
such executed Assignment, the Borrower, will, at its own expense,
execute and deliver new Notes to the assignor and/or assignee, as
appropriate, in accordance with their respective interests as they
appear and the assigning Lender shall return to the Borrower the
replaced Note. Upon the effectiveness of any assignment pursuant to
this Section 12.06(b), the assignee will become a "Lender," if not
already a "Lender," for all purposes of this Agreement and the other
Loan Documents. The assignor shall be relieved of its obligations
hereunder to the extent of such assignment (and if the assigning Lender
no longer holds any rights or obligations under this Agreement, such
assigning Lender shall cease to be a "Lender" hereunder except that its
rights under Sections 4.06, 5.01, 5.05 and 12.03 shall not be
affected). The Agent will prepare on the last Business Day of each
month during which an assignment has become effective pursuant to this
Section 12.06(b), a new Annex I giving effect to all such assignments
effected during such month, and will promptly provide the same to the
Borrower and each of the Lenders.
(c) Each Lender may transfer, grant or assign participations
in all or any part of such Lender's interests hereunder pursuant to
this Section 12.06(c) to any Person, provided that: (i) such Lender
shall remain a "Lender" for all purposes of this Agreement and the
transferee of such participation shall not constitute a "Lender"
hereunder; and (ii) no participant under any such participation shall
have rights to approve any amendment to or waiver of any of the Loan
Documents except to the extent such amendment or waiver would (x)
forgive any principal owing on any Indebtedness or extend the final
maturity of the Loans, (y) reduce the interest rate (other than as a
result of waiving the applicability of any
-65-
post-default increases in interest rates) or fees applicable to any of
the Commitments or Loans or Letters of Credit in which such participant
is participating, or postpone the payment of any thereof, or (z)
release any guarantor of the Indebtedness or release all or
substantially all of the collateral (except as provided in the Loan
Documents) supporting any of the Commitments or Loans or Letters of
Credit in which such participant is participating. In the case of any
such participation, the participant shall not have any rights under
this Agreement or any of the other Loan Documents (the participant's
rights against the granting Lender in respect of such participation to
be those set forth in the agreement with such Lender creating such
participation), and all amounts payable by the Borrower hereunder shall
be determined as if such Lender had not sold such participation,
provided that such participant shall be entitled to receive additional
amounts under Article V on the same basis as if it were a Lender and be
indemnified under Section 12.03 as if it were a Lender. In addition,
each agreement creating any participation must include an agreement by
the participant to be bound by the provisions of Section 12.15.
(d) The Lenders may furnish any information concerning the
Borrower, the Guarantors and the Restricted Affiliates in the
possession of the Lenders from time to time to assignees and
participants (including prospective assignees and participants);
provided that, such Persons agree to be bound by the provisions of
Section 12.15.
(e) Notwithstanding anything in this Section 12.06 to the
contrary, any Lender may assign and pledge its Note to any Federal
Reserve Bank. No such assignment and/or pledge shall release the
assigning and/or pledging Lender from its obligations hereunder.
(f) Notwithstanding any other provisions of this Section
12.06, no transfer or assignment of the interests or obligations of any
Lender or any grant of participations therein shall be permitted if
such transfer, assignment or grant would require the Borrower to file a
registration statement with the SEC or to qualify the Loans under the
"Blue Sky" laws of any state.
Section 12.07 Invalidity. In the event that any one or more of
the provisions contained in any of the Loan Documents or the Letters of Credit,
the Letter of Credit Agreements shall, for any reason, be held invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of the Notes, this Agreement or any other
Loan Document.
Section 12.08 Counterparts. This Agreement may be executed in
any number of counterparts, all of which taken together shall constitute one and
the same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
Section 12.09 References. The words "herein," "hereof,"
"hereunder" and other words of similar import when used in this Agreement refer
to this Agreement as a whole, and not to any particular article, section or
subsection. Any reference herein to a Section shall be deemed to refer to the
applicable Section of this Agreement unless otherwise stated herein. Any
reference herein to an exhibit or schedule shall be deemed to refer to the
applicable exhibit or schedule attached hereto unless otherwise stated herein.
-66-
Section 12.10 Survival. The obligations of the parties under
Section 4.06, Article V, and Sections 11.05 and 12.03 shall survive the
repayment of the Loans and the termination of the Commitments. To the extent
that any payments on the Indebtedness or proceeds of any collateral are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, debtor in possession, receiver or other
Person under any bankruptcy law, common law or equitable cause, then to such
extent, the Indebtedness so satisfied shall be revived and continue as if such
payment or proceeds had not been received and the Agent's and the Lenders'
rights, powers and remedies under this Agreement and each other Loan Document
shall continue in full force and effect. In such event, each Loan Document shall
be automatically reinstated and the Borrower shall take such action as may be
reasonably requested by the Agent and the Lenders to effect such reinstatement.
Section 12.11 Captions. Captions and section headings
appearing herein are included solely for convenience of reference and are not
intended to affect the interpretation of any provision of this Agreement.
Section 12.12 NO ORAL AGREEMENTS. THE LOAN DOCUMENTS EMBODY
THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ALL
OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT
MATTER HEREOF AND THEREOF. THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 12.13 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND THE NOTES (INCLUDING, BUT NOT LIMITED
TO, THE VALIDITY AND ENFORCEABILITY HEREOF AND THEREOF) SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, OTHER THAN THE CONFLICT OF LAWS RULES THEREOF.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE LOAN
DOCUMENTS SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER,
BUCKEYE PARTNERS, THE AGENT AND EACH LENDER HEREBY ACCEPTS FOR ITSELF
AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS. EACH OF THE BORROWER, BUCKEYE PARTNERS, THE AGENT AND EACH
LENDER HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS. THIS SUBMISSION TO JURISDICTION IS NON-EXCLUSIVE AND
DOES NOT PRECLUDE THE PARTIES FROM OBTAINING JURISDICTION OVER OTHER
PARTIES IN ANY COURT OTHERWISE HAVING JURISDICTION.
-67-
(c) EACH OF THE BORROWER AND BUCKEYE PARTNERS HEREBY
IRREVOCABLY DESIGNATES CT CORPORATION LOCATED AT ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AS THE DESIGNEE, APPOINTEE AND AGENT OF ITSELF TO
RECEIVE, FOR AND ON BEHALF OF ITSELF, SERVICE OF PROCESS IN SUCH
RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THE LOAN DOCUMENTS. IT IS UNDER STOOD THAT A COPY OF SUCH PROCESS
SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY OVERNIGHT COURIER TO
EACH OF THE BORROWER AND BUCKEYE PARTNERS AT ITS ADDRESS SET FORTH
UNDER ITS SIGNATURE BELOW, BUT THE FAILURE OF ANY OF THE BORROWER AND
BUCKEYE PARTNERS TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY THE
SERVICE OF SUCH PROCESS. EACH OF THE BORROWER AND BUCKEYE PARTNERS
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
IT AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30)
DAYS AFTER SUCH MAILING.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY
LENDER OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE BORROWER OR ANY GUARANTOR IN ANY OTHER JURISDICTION.
(e) THE BORROWER, BUCKEYE PARTNERS, AND EACH LENDER HEREBY (I)
IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN; (II) IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES,
OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (III) CERTIFY
THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OF COUNSEL FOR ANY
PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT
SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS, AND (IV) ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 12.13.
Section 12.14 Interest. It is the intention of the parties
hereto that each Lender shall conform strictly to usury laws applicable to it.
Accordingly, if the transactions contemplated hereby would be usurious as to any
Lender under laws applicable to it (including the laws of the United States of
America and the State of New York or any other jurisdiction whose laws may be
mandatorily applicable to such Lender notwithstanding the other provisions of
this Agreement), then, in that event, notwithstanding anything to the contrary
in any of the Loan Documents or any agreement entered into in connection with or
as security for the Notes, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under law applicable to any Lender that
is contracted for, taken, reserved, charged or received by such Lender under any
of the Loan Documents or agreements or otherwise in connection with the Notes
shall under no circumstances
-68-
exceed the maximum amount allowed by such applicable law, and any excess shall
be canceled automatically and if theretofore paid shall be credited by such
Lender on the principal amount of the Indebtedness (or, to the extent that the
principal amount of the Indebtedness shall have been or would thereby be paid in
full, refunded by such Lender to the Borrower); and (ii) in the event that the
maturity of the Notes is accelerated by reason of an election of the holder
thereof resulting from any Event of Default under this Agreement or otherwise,
or in the event of any required or permitted prepayment, then such consideration
that constitutes interest under law applicable to any Lender may never include
more than the maximum amount allowed by such applicable law, and excess
interest, if any, provided for in this Agreement or otherwise shall be canceled
automatically by such Lender as of the date of such acceleration or prepayment
and, if theretofore paid, shall be credited by such Lender on the principal
amount of the Indebtedness (or, to the extent that the principal amount of the
Indebtedness shall have been or would thereby be paid in full, refunded by such
Lender to the Borrower). All sums paid or agreed to be paid to any Lender for
the use, forbearance or detention of sums due hereunder shall, to the extent
permitted by law applicable to such Lender, be amortized, prorated, allocated
and spread throughout the full term of the Loans evidenced by the Notes until
payment in full so that the rate or amount of interest on account of any Loans
hereunder does not exceed the maximum amount allowed by such applicable law. If
at any time and from time to time (i) the amount of interest payable to any
Lender on any date shall be computed at the Highest Lawful Rate applicable to
such Lender pursuant to this Section 12.14 and (ii) in respect of any subsequent
interest computation period the amount of interest otherwise payable to such
Lender would be less than the amount of interest payable to such Lender computed
at the Highest Lawful Rate applicable to such Lender, then the amount of
interest payable to such Lender in respect of such subsequent interest
computation period shall continue to be computed at the Highest Lawful Rate
applicable to such Lender until the total amount of interest payable to such
Lender shall equal the total amount of interest which would have been payable to
such Lender if the total amount of interest had been computed without giving
effect to this Section 12.14.
Section 12.15 Confidentiality. In the event that the Borrower
or any Guarantor provides to the Agent or the Lenders written confidential
information belonging to the Borrower or such Guarantor, if the Borrower or such
Guarantor shall denominate such information in writing as "confidential", the
Agent and the Lenders shall thereafter maintain such information in confidence
in accordance with the standards of care and diligence that each utilizes in
maintaining its own confidential information. This obligation of confidence
shall not apply to such portions of the information which (i) are in the public
domain, (ii) hereafter become part of the public domain without the Agent or the
Lenders breaching their obligation of confidence to the Borrower and such
Guarantor, (iii) are previously known by the Agent or the Lenders from some
source other than the Borrower or such Guarantor, (iv) are hereafter developed
by the Agent or the Lenders without using the Borrower's or such Guarantor's
information, (v) are hereafter obtained by or available to the Agent or the
Lenders from a third party who owes no obligation of confidence to the Borrower
or such Guarantor with respect to such information or through any other means
other than through disclosure by the Borrower or such Guarantor, (vi) are
disclosed with the Borrower's or the Guarantor's consent, (vii) must be
disclosed either pursuant to any Governmental Requirement or to Persons
regulating the activities of the Agent or the Lenders, or (viii) as may be
required by law or regulation or order of any Governmental Authority in any
judicial, arbitration or governmental proceeding. Further, except where
prohibited by applicable law, the Agent or a Lender may disclose any such
information to any other Lender, any independent petroleum engineers or
consultants, any
-69-
independent certified public accountants, any legal counsel employed by such
Person in connection with this Agreement or any other Loan Document, including
without limitation, the enforcement or exercise of all rights and remedies
thereunder, or any assignee or participant (including prospective assignees and
participants) in the Loans; provided, however, that the Agent or the Lenders
shall receive a confidentiality agreement from the Person to whom such
information is disclosed such that said Person shall have the same obligation to
maintain the confidentiality of such information as is imposed upon the Agent or
the Lenders hereunder. Notwithstanding anything to the contrary provided herein,
this obligation of confidence shall cease three (3) years from the date the
information was furnished, unless the Borrower and the Guarantors request in
writing at least thirty (30) days prior to the expiration of such three year
period, to maintain the confidentiality of such information for an additional
three year period. Each of the Borrower and the Guarantors waives any and all
other rights it may have to confidentiality as against the Agent and the Lenders
arising by contract, agreement, statute or law except as expressly stated in
this Section 12.15.
Section 12.16 EXCULPATION PROVISIONS. EACH OF THE PARTIES
HERETO SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF
THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS IN FACT
READ THIS AGREEMENT AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF
THE TERMS, CONDITIONS AND EFFECTS OF THIS AGREEMENT; THAT IT HAS BEEN
REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE
NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF
THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS RESULT IN ONE PARTY
ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING
THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO
AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF
ANY EXCULPATORY PROVISION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS ON THE
BASIS THAT THE PARTY HAD NO NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE
PROVISION IS NOT "CONSPICUOUS."
[Signatures Begin Next Page]
-70-
The parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
BORROWER: BUCKEYE PIPE LINE COMPANY, L.P.
By: Buckeye Pipe Line Company, its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Finance
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 610/770-4581
Telephone No.: 610/▇▇▇-▇▇▇▇
Attention: Senior Vice President, Finance
GUARANTOR: BUCKEYE PARTNERS, L.P.
By: Buckeye Management Company, its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, Finance
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 610/770-4581
Telephone No.: 610/▇▇▇-▇▇▇▇
Attention: Senior Vice President, Finance
Signature Page - 1
LENDER AND AGENT: FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Lending Office for Base Rate Loans and
LIBOR Loans:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: 704/383-0288
Telephone No.: 704/▇▇▇-▇▇▇▇
Attention: Syndication Agency Services
Address for Notices:
First Union Capital Markets
First City Tower, Suite 2255
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 713/650-6354
Telephone No.: 713/▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signature Page - 2
LENDERS: THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ T. ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: T. ▇▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President
Lending Office for Base Rate Loans and
Eurodollar Loans:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 312/732-4840
Telephone No.: 312/▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ Le
Signature Page - 3
SUNTRUST BANK, ATLANTA
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Lending Office for Base Rate Loans and
Eurodollar Loans:
SunTrust Bank, Atlanta
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
SunTrust Bank, Atlanta
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 212/371-9386
Telephone No.: 212/▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Associate
Signature Page - 4
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans and
Eurodollar Loans:
Bank of America National Trust and Savings
Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
Bank of America National Trust and Savings
Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 925/675-7531
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
With copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Bank of America National Trust and Savings
Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: 713/651-4808
Telephone No.: 713/▇▇▇-▇▇▇▇
Signature Page - 5
ANNEX I
LIST OF PERCENTAGE SHARES AND
REVOLVING CREDIT COMMITMENTS
--------------------------------------------------------------------------------
Name of Lender Percentage Share Revolving Credit Commitments
--------------------------------------------------------------------------------
First Union National Bank 30% $30,000,000
--------------------------------------------------------------------------------
The First National Bank of 25% $25,000,000
Chicago
--------------------------------------------------------------------------------
Bank of America National 22.5% $22,500,000
Trust and Savings
Association
--------------------------------------------------------------------------------
SunTrust Bank, Atlanta 22.5% $22,500,000
--------------------------------------------------------------------------------
TOTAL 100% $100,000,000
--------------------------------------------------------------------------------
Annex I-1
EXHIBIT A-1
FORM OF REVOLVING CREDIT NOTE
$_____________________________ ___________________, 1998
FOR VALUE RECEIVED, BUCKEYE PIPE LINE COMPANY, L.P., a Delaware limited
partnership (the "Borrower") hereby promises to pay to the order of
______________________________ (the "Lender"), at the Principal Office of First
Union National Bank (the "Agent"), at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal sum of _____________ Dollars ($____________) (or
such lesser amount as shall equal the aggregate unpaid principal amount of the
Loans made by the Lender to the Borrower under the Credit Agreement, as
hereinafter defined), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such Loan, at such office, in like money and funds, for the period
commencing on the date of such Loan until such Loan shall be paid in full, at
the rates per annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate, Interest Period and maturity of
each Loan made by the Lender to the Borrower, and each payment made on account
of the principal thereof, shall be recorded by the Lender on its books and,
prior to any transfer of this [Revolving Credit] Note, endorsed by the Lender on
the schedules attached hereto or any continuation thereof.
This Revolving Credit Note is one of the Notes referred to in the
Credit Agreement dated as of December ____, 1998 among the Borrower, Buckeye
Partners, L.P., the Lenders which are or become parties thereto (including the
Lender) and the Agent (as the same may be amended or supplemented from time to
time, the "Credit Agreement"), and evidences Loans made by the Lender
thereunder. Capitalized terms used in this Revolving Credit Note have the
respective meanings assigned to them in the Credit Agreement.
This Revolving Credit Note is issued pursuant to the Credit Agreement
and is entitled to the benefits provided for in the Credit Agreement and the
other Loan Documents. The Credit Agreement provides for the acceleration of the
maturity of this Revolving Credit Note upon the occurrence of certain events,
for prepayments of Loans upon the terms and conditions specified therein and
other provisions relevant to this Revolving Credit Note.
Exhibit A-1-1
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
BUCKEYE PIPE LINE COMPANY, L.P.
By: Buckeye Pipe Line Company, its
general partner
By:___________________________________
Name:
Title:
Exhibit ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF SWING LINE NOTE
$5,000,000 ___________________, 1998
FOR VALUE RECEIVED, BUCKEYE PIPE LINE COMPANY, L.P., a Delaware limited
partnership (the "Borrower") hereby promises to pay to the order of FIRST UNION
NATIONAL BANK (the "Swing Line Lender"), at its Principal Office at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal sum of FIVE
MILLION DOLLARS ($5,000,000) or, if less, the outstanding principal amount
advanced under this Swing Line Note, in lawful money of the United States of
America and in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Swing Line Loan, at such office, in like money and
funds, for the period commencing on the date of such Swing Line Loan until such
Swing Line Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
The date, amount, interest rate and maturity of each Swing Line Loan
made by the Swing Line Lender to the Borrower, and each payment made on account
of the principal thereof, shall be recorded by the Swing Line Lender on its
books and, prior to any transfer of this Swing Line Note, may be endorsed by the
Swing Line Lender on the schedules attached hereto or any continuation thereof
or on any separate record maintained by the Swing Line Lender.
This Swing Line Note is one of the Notes referred to in the Credit
Agreement dated as of December __, 1998 among the Borrower, Buckeye Partners,
L.P., the Lenders which are or become parties thereto (including the Swing Line
Lender) and the Agent, and evidences Swing Line Loans made by the Swing Line
Lender thereunder (such Amended and Restated Credit Agreement as the same may be
amended or supplemented from time to time, the "Credit Agreement"). Capitalized
terms used in this Swing Line Note have the respective meanings assigned to them
in the Credit Agreement.
This Swing Line Note is issued pursuant to the Credit Agreement and is
entitled to the benefits provided for in the Credit Agreement and the other Loan
Documents. The Credit Agreement provides for the acceleration of the maturity of
this Swing Line Note upon the occurrence of certain events, for prepayments of
Swing Line Loans upon the terms and conditions specified therein and other
provisions relevant to this Swing Line Note.
Exhibit A-2-1
THIS SWING LINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
BUCKEYE PIPE LINE COMPANY, L.P.
By: Buckeye Pipe Line Company, its
general partner
By:___________________________________
Name:
Title:
Exhibit A-2-2
EXHIBIT B
FORM OF BORROWING, CONTINUATION AND CONVERSION REQUEST
_____________________, 199__
BUCKEYE PIPE LINE COMPANY, L.P., a Delaware limited partnership (the
"Borrower"), pursuant to the Credit Agreement dated as of December ____, 1998
among the Borrower, Buckeye Partners, L.P., First Union National Bank, as Agent
for the lenders (the "Lenders") which are or become parties thereto, and such
Lenders (together with all amendments or supplements thereto, the "Credit
Agreement"), hereby makes the requests indicated below (unless otherwise defined
herein, capitalized terms are defined in the Credit Agreement):
[ ] 1. Revolving Credit Loans:
(a) Aggregate amount of new Revolving Credit Loans to be
$_____________________;
(b) Requested funding date is _________________, 199__;
(c) $_____________________ of such borrowings are to be Eurodollar Loans;
$_____________________ of such borrowings are to be Base Rate Loans;
and
(d) Length of Interest Period for Eurodollar Loans is:
-------------------------.
[ ] 2. Swing Line Loans:
(a) Aggregate amount of new Swing Line Loans to be $___________________;
and
(b) Requested funding date is _________________, 199__;
[ ] 3. Eurodollar Loan Continuation for Eurodollar Loans maturing on
________________:
(a) Aggregate amount to be continued as Eurodollar Loans is $___________;
(b) Aggregate amount to be converted to Base Rate Loans is $____________;
Exhibit B-1
(c) Length of Interest Period for continued Eurodollar Loans is
_____________________.
4. Conversion of Outstanding Base Rate Loans to Eurodollar Loans:
Convert $__________________ of the outstanding Base Rate Loans
to Eurodollar Loans on ____________________ with an Interest
Period of ____________________.
5. Conversion of outstanding Eurodollar Loans to Base Rate Loans:
Convert $__________________ of the outstanding Eurodollar
Loans with Interest Period maturing on ______________________,
199_, to Base Rate Loans.
The undersigned certifies that he is the _____________________ of the
general partner of Borrower, and that as such he is authorized to execute this
certificate on behalf of the Borrower. The undersigned further certifies,
represents and warrants on behalf of the Borrower that the Borrower is entitled
to receive the requested borrowing, continuation or conversion under the terms
and conditions of the Credit Agreement.
BUCKEYE PIPE LINE COMPANY, L.P.
By: Buckeye Pipe Line Company, its
general partner
By:___________________________________
Name:
Title:
Exhibit B-2
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
The undersigned each hereby respectively certify that it is the general
partner of BUCKEYE PIPE LINE COMPANY, L.P., a Delaware limited partnership (the
"Borrower") and that as such it is authorized to execute this certificate on
behalf of the Borrower and it is the general partner of BUCKEYE PARTNERS, L.P.,
a Delaware limited partnership (the "Buckeye Partners") and that as such it is
authorized to execute this certificate on behalf of Buckeye Partners. With
reference to the Credit Agreement dated as of December ____, 1998 among the
Borrower, Buckeye Partners, L.P., First Union National Bank, as Agent for the
lenders (the "Lenders") which are or become a party thereto, and such Lenders
(together with all amendments or supplements thereto being the "Credit
Agreement"), the undersigned, on behalf of the Borrower and Buckeye Partners,
respectively, represent and warrant as follows (each capitalized term used
herein having the same meaning given to it in the Credit Agreement unless
otherwise specified):
(a) The representations and warranties of the Borrower and
Buckeye Partners contained in Article VII of the Credit Agreement and
in the other Loan Documents and otherwise made in writing by or on
behalf of the Borrower and Buckeye Partners pursuant to the Credit
Agreement and the other Loan Documents were true and correct when made,
and are repeated at and as of the time of delivery hereof and are true
and correct at and as of the time of delivery hereof, except as such
representations and warranties are modified to give effect to the
transactions expressly permitted by the Credit Agreement.
(b) Each of the Borrower and Buckeye Partners has performed
and complied with all agreements and conditions contained in the Credit
Agreement and in the other Loan Documents required to be performed or
complied with by it prior to or at the time of delivery hereof.
(c) None of the Borrower, Buckeye Partners or any Restricted
Subsidiary of the Borrower or Buckeye Partners has incurred any
material liabilities, direct or contingent, since [date of last audited
financial statements delivered] except those set forth in Schedule 9.01
to the Credit Agreement and except those not prohibited by the terms of
the Credit Agreement or consented to by the Lenders in writing.
(d) Since [date of last audited financial statements
delivered], no change has occurred, either in any case or in the
aggregate, in the condition, financial or otherwise, of the Borrower,
Buckeye Partners or any Subsidiary of the Borrower or Buckeye Partners
which would have a Material Adverse Effect.
(e) There exists, and, after giving effect to the loan or
loans with respect to which this certificate is being delivered, will
exist, no Default under the Credit Agreement or any event or
circumstance which constitutes, or with notice or lapse of time (or
both) would constitute, an event of default under any loan or credit
Exhibit C-1
agreement, indenture, deed of trust, security agreement or other
agreement or instrument evidencing or pertaining to any Debt of the
Borrower, Buckeye Partners or any Subsidiary of the Borrower or Buckeye
Partners, or under any material agreement or instrument to which the
Borrower, Buckeye Partners or any Subsidiary of the Borrower or Buckeye
Partners is a party or by which the Borrower, Buckeye Partners or any
Subsidiary of the Borrower or Buckeye Partners is bound.
(f) The financial statements furnished to the Agent with this
certificate fairly present the consolidated financial condition and
results of operations of Buckeye Partners and its Consolidated
Subsidiaries as at the end of, and for, the [fiscal quarter] [fiscal
year] ending _________________________ and such financial statements
have been prepared in accordance with the accounting requirements
specified in the Credit Agreement.
(g) Attached hereto are the detailed computations necessary to
determine whether the Borrower is in compliance with Sections 9.12 and
9.13 of the Credit Agreement as of the end of the [fiscal quarter]
[fiscal year] ending ____________________.
The officers signing this Certificate on behalf of the general partners
of the Borrower and Buckeye Partners each hereby certify that they hold the
officer set forth under their signature and are authorized to execute this
Certificate on behalf of such general partner.
EXECUTED AND DELIVERED this ____ day of ______________.
BUCKEYE PIPE LINE COMPANY, L.P.
By: Buckeye Pipe Line Company, its
general partner
By:___________________________________
Name:
Title:
BUCKEYE PARTNERS, L.P.
By: Buckeye Management Company, its general
partner
By:__________________________________
Name:
Title:
Exhibit C-2
EXHIBIT D
FORM OF ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT ("Agreement") dated as of ________________, 199___
between: _________________________________ (the "Assignor") and
__________________________ (the "Assignee").
RECITALS
A. The Assignor is a party to the Credit Agreement dated as of November
____, 1998 (as amended and supplemented and in effect from time to time, the
"Credit Agreement") among Buckeye Pipe Line Company, L.P., a ___________ limited
partnership (the "Borrower"), Buckeye Partners, L.P., Buckeye Management
Company, each of the lenders that is or becomes a party thereto as provided in
Section 12.06 of the Credit Agreement (individually, together with its
successors and assigns, a "Lender", and collectively, together with their
successors and assigns, the "Lenders"), and First Union National Bank, in its
individual capacity, ("First Union") and as agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Agent").
B. The Assignor proposes to sell, assign and transfer to the Assignee,
and the Assignee proposes to purchase and assume from the Assignor, [all][a
portion] of the Assignor's [Revolving] Credit Commitment, outstanding Loans and
its Percentage Share of the outstanding LC Exposure, all on the terms and
conditions of this Agreement.
C. In consideration of the foregoing and the mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
Definitions.
Section 1.01 Definitions. All capitalized terms used but not defined
herein have the respective meanings given to such terms in the Credit Agreement.
Section 1.02 Other Definitions. As used herein, the following terms
have the following respective meanings:
"Assigned Interest" shall mean all of Assignor's (in its
capacity as a "Lender") rights and obligations (i) under the Credit
Agreement and the other Loan Documents in respect of the Revolving
Credit Commitment of the Assignor in the principal amount equal to
$____________________, including, without limitation, any obligation to
participate pro rata in any LC Exposure, and (ii) to make Loans under
the Revolving Credit Commitment and any right to receive payments for
the Loans outstanding under the Revolving Credit
Exhibit D-1
Commitment assigned hereby of $____________ (the "Loan Balance"), plus
the interest and fees which will accrue from and after the Assignment
Date.
"Assignment Date" shall mean _____________________, 199___.
ARTICLE II
Sale and Assignment.
Section 2.01 Sale and Assignment. On the terms and conditions set forth
herein, effective on and as of the Assignment Date, the Assignor hereby sells,
assigns and transfers to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, all of the right, title and interest of the Assignor
in and to, and all of the obligations of the Assignor in respect of, the
Assigned Interest. Such sale, assignment and transfer is without recourse and,
except as expressly provided in this Agreement, without representation or
warranty.
Section 2.02 Assumption of Obligations. The Assignee agrees with the
Assignor (for the express benefit of the Assignor and the Borrower) that the
Assignee will, from and after the Assignment Date, perform all of the
obligations of the Assignor in respect of the Assigned Interest. From and after
the Assignment Date: (a) the Assignor shall be released from the Assignor's
obligations in respect of the Assigned Interest, and (b) the Assignee shall be
entitled to all of the Assignor's rights, powers and privileges under the Credit
Agreement and the other Loan Documents in respect of the Assigned Interest.
Section 2.03 Consent by Agent. By executing this Agreement as provided
below, in accordance with Section 12.06(b) of the Credit Agreement, the Agent
hereby acknowledges notice of the transactions contemplated by this Agreement
and consents to such transactions.
ARTICLE III
Payments.
Section 3.01 Payments. As consideration for the sale, assignment and
transfer contemplated by Section 2.01 hereof, the Assignee shall, on the
Assignment Date, assume Assignor's obligations in respect of the Assigned
Interest and pay to the Assignor an amount equal to the Loan Balance, if any. An
amount equal to all accrued and unpaid interest and fees shall be paid to the
Assignor as provided in Section 3.02 (iii) below. Except as otherwise provided
in this Agreement, all payments hereunder shall be made in Dollars and in
immediately available funds, without setoff, deduction or counterclaim.
Section 3.02 Allocation of Payments. The Assignor and the Assignee
agree that (i) the Assignor shall be entitled to any payments of principal with
respect to the Assigned Interest made prior to the Assignment Date, together
with any interest and fees with respect to the Assigned Interest accrued prior
to the Assignment Date, (ii) the Assignee shall be entitled to any payments of
Exhibit D-2
principal with respect to the Assigned Interest made from and after the
Assignment Date, together with any and all interest and fees with respect to the
Assigned Interest accruing from and after the Assignment Date, and (iii) the
Agent is authorized and instructed to allocate payments received by it for
account of the Assignor and the Assignee as provided in the foregoing clauses.
Each party hereto agrees that it will hold any interest, fees or other amounts
that it may receive to which the other party hereto shall be entitled pursuant
to the preceding sentence for account of such other party and pay, in like money
and funds, any such amounts that it may receive to such other party promptly
upon receipt.
Section 3.03 Delivery of Notes. Promptly following the receipt by the
Assignor of the consideration required to be paid under Section 3.01 hereof, the
Assignor shall, in the manner contemplated by Section 12.06(b) of the Credit
Agreement, (i) deliver to the Agent (or its counsel) the Note held by the
Assignor and (ii) notify the Agent to request that the Borrower execute and
deliver new Notes to the Assignor, if Assignor continues to be a Lender, and the
Assignee, dated the date of this Agreement in the principal amount equal to the
Revolving Credit Commitment of the Assignor (if appropriate) and the Assignee
after giving effect to the sale, assignment and transfer contemplated hereby.
Section 3.04 Further Assurances. The Assignor and the Assignee hereby
agree to execute and deliver such other instruments, and take such other
actions, as either party may reasonably request in connection with the
transactions contemplated by this Agreement.
ARTICLE IV
Conditions Precedent.
Section 4.01 Conditions Precedent. The effectiveness of the sale,
assignment and transfer contemplated hereby is subject to the satisfaction of
each of the following conditions precedent:
(a) the execution and delivery of this Agreement by the
Assignor and the Assignee;
(b) the receipt by the Assignor of the payment required to be
made by the Assignee under Section 3.01 hereof; and
(c) the acknowledgment and consent by the Agent contemplated
by Section 2.03 hereof.
Exhibit D-3
ARTICLE V
Representations and Warranties.
Section 5.01 Representations and Warranties of the Assignor. The
Assignor represents and warrants to the Assignee as follows:
(a) it has all requisite power and authority, and has taken
all action necessary to execute and deliver this Agreement and to
fulfill its obligations under, and consummate the transactions
contemplated by, this Agreement;
(b) the execution, delivery and compliance with the terms
hereof by Assignor and the delivery of all instruments required to be
delivered by it hereunder do not and will not violate any Governmental
Requirement applicable to it;
(c) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligation of the
Assignor, enforceable against it in accordance with its terms;
(d) all approvals and authorizations of, all filings with and
all actions by any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been
obtained;
(e) the Assignor has good title to, and is the sole legal and
beneficial owner of, the Assigned Interest, free and clear of all
Liens, claims, participations or other charges of any nature
whatsoever; and
(f) the transactions contemplated by this Agreement are
commercial banking transactions entered into in the ordinary course of
the banking business of the Assignor.
Section 5.02 Disclaimer. Except as expressly provided in Section 5.01
hereof, the Assignor does not make any representation or warranty, nor shall it
have any responsibility to the Assignee, with respect to the accuracy of any
recitals, statements, representations or warranties contained in the Credit
Agreement or in any certificate or other document referred to or provided for
in, or received by any Lender under, the Credit Agreement, or for the value,
validity, effectiveness, genuineness, execution, effectiveness, legality,
enforceability or sufficiency of the Credit Agreement, the Notes or any other
document referred to or provided for therein or for any failure by the Borrower
or any other Person (other than Assignor) to perform any of its obligations
thereunder prior or for the existence, value, perfection or priority of any
collateral security or the financial or other condition of the Borrower or the
Subsidiaries [or any other obligor or guarantor], or any other matter relating
to the Credit Agreement or any other Loan Document or any extension of credit
thereunder.
Section 5.03 Representations and Warranties of the Assignee. The
Assignee represents and warrants to the Assignor as follows:
Exhibit D-4
(a) it has all requisite power and authority, and has taken
all action necessary to execute and deliver this Agreement and to
fulfill its obligations under, and consummate the transactions
contemplated by, this Agreement;
(b) the execution, delivery and compliance with the terms
hereof by Assignee and the delivery of all instruments required to be
delivered by it hereunder do not and will not violate any Governmental
Requirement applicable to it;
(c) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against it in accordance with its terms;
(d) all approvals and authorizations of, all filings with and
all actions by any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been
obtained;
(e) the Assignee has fully reviewed the terms of the Credit
Agreement and the other Loan Documents and has independently and
without reliance upon the Assignor, and based on such information as
the Assignee has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement;
(f) the Assignee hereby affirms that the representations
contained in Section 4.06(d)[(i)][ii)] of the Credit Agreement are true
and accurate as to it [IF (ii) IS SELECTED ADD: and, the Assignee has
contemporaneously herewith delivered to the Agent and the Borrower such
certifications as are required thereby to avoid the withholding taxes
referred to in Section 4.06]; and
(g) the transactions contemplated by this Agreement are
commercial banking transactions entered into in the ordinary course of
the banking business of the Assignee.
ARTICLE VI
Miscellaneous.
Section 6.01 Notices. All notices and other communications provided for
herein (including, without limitation, any modifications of, or waivers,
requests or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telex or telecopy) to the intended recipient
at its "Address for Notices" specified below its name on the signature pages
hereof or, as to either party, at such other address as shall be designated by
such party in a notice to the other party.
Section 6.02 Amendment, Modification or Waiver. No provision of this
Agreement may be amended, modified or waived except by an instrument in writing
signed by the Assignor and the Assignee, and consented to by the Agent.
Exhibit D-5
Section 6.03 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. The representations and warranties made herein
by the Assignee are also made for the benefit of the Agent and the Borrower, and
the Assignee agrees that the Agent and the Borrower are entitled to rely upon
such representations and warranties.
Section 6.04 Assignments. Neither party hereto may assign any of its
rights or obligations hereunder except in accordance with the terms of the
Credit Agreement.
Section 6.05 Captions. The captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
Section 6.06 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be identical and all of which, taken
together, shall constitute one and the same instrument, and each of the parties
hereto may execute this Agreement by signing any such counterpart.
Section 6.07 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
Section 6.08 Expenses. To the extent not paid by the Borrower pursuant
to the terms of the Credit Agreement, each party hereto shall bear its own
expenses in connection with the execution, delivery and performance of this
Agreement.
Section 6.09 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed and delivered as of the date first above written.
ASSIGNOR:
________________________________
By:_____________________________
Name:
Title:
Exhibit D-6
Address for Notices:
_______________________________
_______________________________
_______________________________
Telecopier No.:________________
Telephone No.: ________________
Attention: ____________________
Exhibit D-7
ASSIGNEE:
________________________________
By:_____________________________
Name:
Title:
Address for Notices:
_______________________________
_______________________________
_______________________________
Telecopier No.:________________
Telephone No.: ________________
Attention: ____________________
ACKNOWLEDGED AND CONSENTED TO:
_____________________________,
as Agent
By:___________________________
Name:
Title:
Exhibit D-8
EXHIBIT E
UNRESTRICTED SUBSIDIARIES
DESIGNATED ON THE CLOSING DATE
Exhibit E-1