EXHIBIT 10.2
CREDIT AGREEMENT
Dated as of September 3, 2003
Among
BUCKEYE PARTNERS, L.P.
as Borrower,
SUNTRUST BANK,
as Administrative Agent,
and
THE LENDERS SIGNATORY HERETO
$100,000,000 364-DAY REVOLVING CREDIT FACILITY
_________________________________________________________________
_____________
SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
a division of SunTrust Capital Markets, Inc.,
as Sole Lead Arranger
BNP PARIBAS,
as Syndication Agent,
NATIONAL AUSTRALIA BANK LIMITED
and
KEYBANK NATIONAL ASSOCIATION,
as Co-Documentation Agents
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING MATTERS 1
SECTION 1.01. CERTAIN DEFINED TERMS. 1
SECTION 1.02. ACCOUNTING TERMS AND DETERMINATIONS. 18
ARTICLE II COMMITMENTS 18
SECTION 2.01. LOANS. 18
SECTION 2.02. BORROWINGS, CONTINUATIONS AND CONVERSIONS
OF LOANS. 19
SECTION 2.03. CHANGES OF COMMITMENTS 20
SECTION 2.04. RENEWAL OF COMMITMENTS. 20
SECTION 2.05. FEES. 21
SECTION 2.06. SEVERAL OBLIGATIONS. 22
SECTION 2.07. NOTELESS AGREEMENT; EVIDENCE OF
INDEBTEDNESS. 22
SECTION 2.08. PREPAYMENTS. 22
SECTION 2.09. LENDING OFFICES. 23
ARTICLE III PAYMENTS OF PRINCIPAL AND INTEREST 23
SECTION 3.01. REPAYMENT OF LOANS. 23
SECTION 3.02. INTEREST. 23
ARTICLE IV PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC. 24
SECTION 4.01. PAYMENTS. 24
SECTION 4.02. PRO RATA TREATMENT. 25
SECTION 4.03. COMPUTATIONS. 25
SECTION 4.04. NON-RECEIPT OF FUNDS BY THE AGENT. 25
SECTION 4.05. SET-OFF, SHARING OF PAYMENTS, ETC. 26
SECTION 4.06. TAXES. 26
ARTICLE V YIELD PROTECTION 28
SECTION 5.01. ADDITIONAL COSTS. 28
SECTION 5.02. BASIS UNAVAILABLE OR INADEQUATE FOR LIBOR
RATE. 29
SECTION 5.03. ILLEGALITY. 30
SECTION 5.04. BASE RATE LOANS 30
SECTION 5.05. COMPENSATION. 30
SECTION 5.06. REPLACEMENT LENDERS. 31
ARTICLE VI CONDITIONS PRECEDENT 32
SECTION 6.01. INITIAL FUNDING. 32
SECTION 6.02. INITIAL AND SUBSEQUENT LOANS. 33
SECTION 6.03. CONDITIONS PRECEDENT TO EACH EXTENSION OF
TERMINATION DATE. 33
SECTION 6.04. CONDITIONS PRECEDENT FOR THE BENEFIT OF
LENDERS. 34
SECTION 6.05. NO WAIVER. 34
ARTICLE VII REPRESENTATIONS AND WARRANTIES 34
SECTION 7.01. EXISTENCE. 34
SECTION 7.02. FINANCIAL CONDITION. 35
SECTION 7.03. LITIGATION. 35
SECTION 7.04. NO BREACH. 35
SECTION 7.05. AUTHORITY. 36
SECTION 7.06. APPROVALS. 36
SECTION 7.07. USE OF LOANS. 36
SECTION 7.08. ERISA. 36
SECTION 7.09. TAXES. 38
SECTION 7.10. TITLES, ETC. 38
SECTION 7.11. NO MATERIAL MISSTATEMENTS. 38
SECTION 7.12. INVESTMENT COMPANY ACT. 39
SECTION 7.13. PUBLIC UTILITY HOLDING COMPANY ACT. 39
SECTION 7.14. SUBSIDIARIES. 39
SECTION 7.15. LOCATION OF BUSINESS AND OFFICES. 39
SECTION 7.16. DEFAULTS. 39
SECTION 7.17. ENVIRONMENTAL MATTERS. 39
SECTION 7.18. COMPLIANCE WITH THE LAW. 41
SECTION 7.19. INSURANCE. 41
SECTION 7.20. MATERIAL AGREEMENTS. 41
SECTION 7.21. PARTNERSHIP AGREEMENT. 41
SECTION 7.22. OWNERSHIP OF PARTIES. 41
ARTICLE VIII AFFIRMATIVE COVENANTS 42
SECTION 8.01. REPORTING REQUIREMENTS. 42
SECTION 8.02. LITIGATION. 43
SECTION 8.03. MAINTENANCE, ETC. 44
SECTION 8.04. ENVIRONMENTAL MATTERS. 44
SECTION 8.05. FURTHER ASSURANCES. 45
SECTION 8.06. PERFORMANCE OF OBLIGATIONS. 45
SECTION 8.07. ERISA INFORMATION AND COMPLIANCE. 45
ARTICLE IX NEGATIVE COVENANTS 46
SECTION 9.01. DEBT. 46
SECTION 9.02. LIENS. 47
SECTION 9.03. INVESTMENTS, LOANS AND ADVANCES. 47
SECTION 9.04. DISTRIBUTIONS AND REDEMPTIONS. 48
SECTION 9.05. SALES AND LEASEBACKS. 48
SECTION 9.06. NATURE OF BUSINESS. 49
SECTION 9.07. RESTRICTIVE AGREEMENTS. 49
SECTION 9.08. MERGERS, ETC. 49
SECTION 9.09. PROCEEDS OF THE LOANS. 49
SECTION 9.10. ERISA COMPLIANCE. 50
SECTION 9.11. SALE OR DISCOUNT OF RECEIVABLES. 51
SECTION 9.12. FUNDED DEBT RATIO. 51
SECTION 9.13. FIXED CHARGE COVERAGE RATIO. 51
SECTION 9.14. SALE OF PROPERTIES. 51
SECTION 9.15. ENVIRONMENTAL MATTERS. 52
SECTION 9.16. TRANSACTIONS WITH AFFILIATES. 52
SECTION 9.17. PARTNERSHIP AGREEMENTS. 52
SECTION 9.18. SENIOR NOTES. 52
ARTICLE X EVENTS OF DEFAULT; REMEDIES 52
SECTION 10.01. EVENTS OF DEFAULT. 52
SECTION 10.02. REMEDIES. 54
ARTICLE XI THE AGENT 55
SECTION 11.01. THE AGENT. 55
SECTION 11.02. EXPENSES. 56
SECTION 11.03. PROPORTIONATE ABSORPTION OF LOSSES. 57
SECTION 11.04. DELEGATION OF DUTIES; RELIANCE. 57
SECTION 11.05. LIMITATION OF THE AGENT'S LIABILITY. 57
SECTION 11.06. EVENT OF DEFAULT. 58
SECTION 11.07. LIMITATION OF LIABILITY. 59
SECTION 11.08. OTHER AGENTS. 59
SECTION 11.09. RELATIONSHIP OF LENDERS. 59
SECTION 11.10. BENEFITS OF AGREEMENT. 59
ARTICLE XII MISCELLANEOUS 59
SECTION 12.01. WAIVER. 59
SECTION 12.02. NOTICES. 59
SECTION 12.03. PAYMENT OF EXPENSES, INDEMNITIES, ETC. 60
SECTION 12.04. AMENDMENTS, ETC. 62
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. 66
SECTION 12.11. CAPTIONS. 66
SECTION 12.12. NO ORAL AGREEMENTS. 66
SECTION 12.13. GOVERNING LAW; SUBMISSION TO
JURISDICTION. 66
SECTION 12.14. INTEREST. 68
SECTION 12.15. CONFIDENTIALITY. 68
SECTION 12.16. EXCULPATION PROVISIONS. 69
ANNEXES, EXHIBITS AND SCHEDULES
ANNEX I - LIST OF PERCENTAGE SHARES AND REVOLVING CREDIT
COMMITMENTS
EXHIBIT A - FORM OF BORROWING, CONTINUATION AND CONVERSION
REQUEST
EXHIBIT B - FORM OF COMPLIANCE CERTIFICATE
EXHIBIT C - FORM OF ASSIGNMENT AGREEMENT
EXHIBIT D-1 - RESTRICTED SUBSIDIARIES AS OF THE DATE HEREOF
EXHIBIT D-2 - UNRESTRICTED SUBSIDIARIES AS OF THE DATE HEREOF
EXHIBIT E - FORM OF GUARANTY
SCHEDULE 7.02 - LIABILITIES
SCHEDULE 7.03 - LITIGATION
SCHEDULE 7.10 - TITLES, ETC.
SCHEDULE 7.14 - SUBSIDIARIES AND PARTNERSHIPS
SCHEDULE 7.17 - ENVIRONMENTAL MATTERS
SCHEDULE 7.22 - STRUCTURE AND OWNERSHIP OF SUBSIDIARIES
SCHEDULE 9.01 - DEBT
SCHEDULE 9.02 - LIENS
SCHEDULE 9.03 - INVESTMENTS, LOANS AND ADVANCES
THIS CREDIT AGREEMENT (as amended , supplemented and
modified from time to time, this "Agreement") is entered into as
of September 3, 2003, among BUCKEYE PARTNERS, L.P., a limited
partnership formed under the laws of the State of Delaware (the
"Borrower"); each of the lenders that is a signatory hereto or
that becomes a signatory hereto as provided in Section 12.06
(together with their successors and assigns, the "Lenders");
SUNTRUST BANK ("SunTrust"), as administrative agent for the
Lenders (in such, capacity, together with its successors in such
capacity, the "Agent").
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.
B. The Lenders have agreed to make such loans and extensions of
credit subject to the terms and conditions of this Agreement.
C. In consideration of the mutual covenants and agreements
herein contained and of the loans, extensions of credit and
commitments hereinafter referred to, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
SECTION 1.01. Certain Defined Terms.
As used herein, the following terms shall have the following
meanings (all terms defined in this Article I or in other
provisions of this Agreement in the singular to have equivalent
meanings when used in the plural and vice versa):
"Additional Costs" shall have the meaning assigned such
term in Section 5.01(a).
"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.
"Agent" shall have the meaning assigned such term in
the preamble to this Agreement.
"Agreement" shall have the meaning assigned such term
in the preamble to this Agreement.
"Aggregate Revolving Credit Commitments" at any time
shall equal the sum of the Revolving Credit Commitments of
the Lenders, as the same may be reduced pursuant to
Section 2.03(a).
"Applicable Lending Office" shall mean, for each Lender
and for each Type of Loan, the lending office of such Lender
(or an Affiliate of such Lender) designated for such Type of
Loan on the signature pages hereof or such other offices of
such Lender (or of an Affiliate of such Lender) as such
Lender may from time to time specify to the Agent and the
Borrower as the office by which its Loans of such Type are
to be made and maintained.
"Applicable Margin" shall mean, for any LIBOR Loan or
any Base Rate Loan, (i) on any date the Utilization
Percentage equals or is less than 50%, the LIBOR Margin or
Base Rate Margin interest rate per annum set forth below in
the columns identified as ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 4
and Level 5, and (ii) on any date the Utilization Percentage
exceeds 50%, the Utilized LIBOR Margin or Utilized Base Rate
Margin interest rate per annum set forth below in the
columns identified as ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 4 and
Level 5, in each case, determined by reference to the
Reference Rating.
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5
S&P Reference Reference Reference Reference Reference
Rating Rating Rating Rating Rating
▇▇▇▇▇'▇ at least Less than Less than Less than below
A-/A3 ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 4*
but at but at but at
least least least BBB-
BBB+/Baa1 BBB/Baa2 /Baa3
Interest Rate Per Annum
LIBOR Margin 0.650% 0.750% 0.875% 1.025% 1.400%
Base Rate 0.000% 0.000% 0.000% 0.000% 0.000%
Margin
Utilized 0.750% 0.875% 1.000% 1.150% 1.575%
LIBOR Margin
Utilized Base 0.100% 0.125% 0.125% 0.125% 0.175%
Rate Margin
*or
unrated
Any change in the Applicable Margin will be effective
as of the date on which S&P or ▇▇▇▇▇'▇, as the case may be,
announces any change in the ratings used to determine the
Reference Rating.
"Assignment Agreement" shall have the meaning assigned
such term in Section 12.06(b).
"Base Rate" shall mean, with respect to any Base Rate
Loan, for any day, the higher of (i) the Federal Funds Rate
for any such day plus 1/2 of 1% and (ii) the Prime Rate for
such day. Each change in any interest rate provided for
herein based upon the Base Rate resulting from a change in
the Base Rate shall take effect at the time of such change
in the Base Rate.
"Base Rate Loans" shall mean Loans that bear interest
at rates based upon the Base Rate.
"BMC" shall mean Buckeye Management Company, a Delaware
corporation.
"BPLC" shall mean Buckeye Pipe Line Company, a Delaware
corporation.
"Borrower" shall have the meaning assigned such term in
the preamble to this Agreement.
"Borrower Partnership Agreement" shall mean the Amended
and Restated Agreement of Limited Partnership of the
Borrower, dated as of December 31, 1998, as amended from
time to time.
"Buckeye Pipe Line Partnership Agreement" shall mean
the Amended and Restated Agreement of Limited Partnership of
Buckeye Pipe Line Company, L.P., dated as of December 23,
1986, as amended on August 12, 1997, as amended and restated
on March 25, 1998, and as it may be amended from time to
time.
"Business Day" shall mean any day other than a day on
which commercial banks are authorized or required to close
in Georgia or New York and, if such day relates to a
borrowing or continuation of, a payment or prepayment of
principal of or interest on, or a conversion of or into, or
the Interest Period for, a LIBOR Loan or a notice by the
Borrower with respect to any such borrowing or continuation,
payment, prepayment, conversion or Interest Period, any day
that is also a day on which dealings in Dollar deposits are
carried out in the London interbank market.
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.
9601 et seq.
"Change of Control" shall mean either (i) a change
resulting when any Unrelated Person or any Unrelated Persons
acting together that would constitute a Group together with
any Affiliates thereof (in each case also constituting
Unrelated Persons) shall at any time Beneficially Own more
than 50% of the aggregate voting power of all classes of
Voting Stock of BMC, (ii) BMC or Glenmoor, Ltd. shall cease
to own 100% of the outstanding stock of BPLC on a fully
diluted basis or (iii) BPLC shall cease to own 100% of the
general partnership interest of the Borrower. As used
herein (A) "Beneficially Own" means "beneficially own" as
defined in Rule 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
Person shall not be deemed to Beneficially Own securities
tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates
until such tendered securities are accepted for purchase or
exchange; (B) "Group" means a "group" for purposes of
Section 13(d) of the Securities Exchange Act of 1934, as
amended; (C) "Unrelated Person" means at any time any Person
other than (1) Glenmoor, Ltd. and the stockholders thereof
as of the date hereof, (2) their respective spouses, lineal
descendants, and spouses of their lineal descendants,
(3) the estates of the Persons described in clauses (1) and
(2), and (4) trusts established solely for the benefit of
any Person or Persons described in clauses (1) and (2); and
(D) "Voting Stock" of any Person shall mean capital stock of
such Person that ordinarily has voting power for the
election of directors (or persons performing similar
functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power
by reason of any contingency.
"Closing Date" shall mean the date on which the
conditions precedent described in Section 6.01 to the
Initial Funding shall be satisfied or waived.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time and any successor statute.
"Commitment" shall mean, for any Lender, its obligation
to make Loans up to such Lender's Revolving Credit
Commitment in each case as such amount may be reduced from
time to time pursuant to Section 2.03(a).
"Compliance Certificate" shall mean a certificate from
the Borrower substantially in the form of Exhibit B.
"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
write-ups or write-downs of assets or liabilities.
"Consolidated Subsidiaries" shall mean each Subsidiary
of any Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or
should have been) consolidated with the financial statements
of such Person in accordance with GAAP.
"Debt" shall mean, for any Person the sum of the
following (without duplication): (i) all obligations of such
Person for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments (including principal,
interest, fees and charges); (ii) all obligations of such
Person (whether contingent or otherwise) in respect of
bankers' acceptances, letters of credit, surety or other
bonds and similar instruments; (iii) all obligations of such
Person to pay the deferred purchase price of Property or
services (other than for borrowed money); (iv) all
obligations under leases which shall have been, or should
have been, in accordance with GAAP, recorded as capital
leases in respect of which such Person is liable (whether
contingent or otherwise); (v) all obligations under
operating leases which require such Person or its Affiliate
to make rental payments over the term of such lease, based
on the purchase price or appraised value of the Property
subject to such lease plus a marginal interest rate, and
used primarily as a financing vehicle for, or to monetize,
such Property; (vi) all Debt (as described in the other
clauses of this definition) of others secured by a Lien on
any asset of such Person, whether or not such Debt is
assumed by such Person; (vii) all Debt (as described in the
other clauses of this definition) of others guaranteed by
such Person or in which such Person otherwise assures a
creditor against loss of the debtor, provided that such
obligations would be recorded as a liability under GAAP;
(viii) all obligations or undertakings of such Person to
maintain or cause to be maintained the financial position or
financial covenants of others or to purchase the Debt of
others; (ix) obligations to deliver goods or services not in
the ordinary course of business in consideration of advance
payments; (x) obligations to pay for goods or services not
in the ordinary course of business whether or not such goods
or services are actually received or utilized by such
Person; (xi) any capital stock of such Person in which such
Person has a mandatory obligation to redeem such stock;
(xii) any Debt of a Special Entity for which such Person is
liable either by agreement or because of a Governmental
Requirement; and (xiii) all obligations of such Person under
Hedging Agreements.
"Default" shall mean an Event of Default or an event
that with notice or lapse of time or both would become an
Event of Default.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"EBITDA" shall mean for any Person for any period, the
sum of Consolidated Net Income for such period plus the
following expenses or charges to the extent deducted from
Consolidated Net Income for such period: interest, taxes,
depreciation, depletion, amortization and GP Incentive
Compensation Payments; provided, however, with respect to
the Borrower, if during any period the Borrower acquires any
Person and such Person becomes a Restricted Subsidiary or
the Borrower acquires all or substantially all of the assets
of any Person, the EBITDA attributable to such Person or
assets for such period determined on a pro forma basis
(which determination, in each case, shall be subject to the
approval of the Required Lenders, not to be unreasonably
withheld) may be included in EBITDA for the calculation of
the Funded Debt Ratio.
"Environmental Law" shall mean any and all Governmental
Requirements pertaining to health or the environment in
effect in any and all jurisdictions in which the Borrower or
any Subsidiary is conducting or at any time has conducted
business, or where any Property of the Borrower or any
Subsidiary is located, including without limitation, the Oil
Pollution Act of 1990 ("OPA"), the Clean Air Act, as
amended, the Comprehensive Environmental, Response,
Compensation, and Liability Act of 1980 ("CERCLA"), as
amended, the Federal Water Pollution Control Act, as
amended, the Occupational Safety and Health Act of 1970, as
amended, the Resource Conservation and Recovery Act of 1976
("RCRA"), as amended, the Safe Drinking Water Act, as
amended, The Toxic Substances Control Act, as amended, the
Superfund Amendments and Reauthorization Act of 1986, as
amended, the Hazardous Materials Transportation Act, as
amended, the Federal Insecticide, Fungicide, and Rodenticide
Act, the Emergency Planning and Community Right-to-Know Act,
the Rivers and Harbors Act, analogous state and local
Governmental Requirements, and any analogous future enacted
or adopted Governmental Requirement. The term "oil" shall
have the meaning specified in OPA, the terms "hazardous
substance" and "release" (or "threatened release") have the
meanings specified in CERCLA, and the terms "solid waste,"
"hazardous waste" and "disposal" (or "disposed") have the
meanings specified in RCRA; provided, however, that (i) in
the event either OPA, CERCLA or RCRA is amended so as to
broaden the meaning of any term defined thereby, such
broader meaning shall apply subsequent to the effective date
of such amendment and (ii) to the extent the laws of the
state in which any Property of the Borrower or any
Subsidiary is located establish a meaning for "oil,"
"hazardous substance," "release," "solid waste," "hazardous
waste," or "disposal" which is broader than that specified
in either OPA, CERCLA or RCRA, such broader meaning shall
apply.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time and any
successor statute.
"ERISA Affiliate" shall mean each trade or business
(whether or not incorporated) which together with the
Borrower or any Subsidiary would be deemed to be a "single
employer" within the meaning of section 4001(b)(1) of ERISA
or subsection (b), (c), (m) or (o) of section 414 of the
Code.
"ERISA Event" shall mean (i) a "Reportable Event"
described in Section 4043 of ERISA and the regulations
issued thereunder, (ii) the withdrawal of the Borrower, any
Subsidiary or any ERISA Affiliate from a Plan during a plan
year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA or the withdrawal of the
Borrower, any Subsidiary or any ERISA Affiliate from a
Multiemployer Plan, (iii) the filing of a notice of intent
to terminate a Plan or the treatment of a Plan amendment as
a termination under Section 4041 of ERISA, (iv) the
institution of proceedings to terminate a Plan by the PBGC,
(v) any other event or condition that might constitute
grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Plan,
(vi) the cessation of operations at a facility in the
circumstances described in Section 4062(e) of ERISA, (vii)
the failure by the Borrower, any Subsidiary or any ERISA
Affiliate to make a payment to a Plan required under Section
302(f)(1) of ERISA, which failure results in the imposition
of a lien for failure to make required payments, and (viii)
the adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to Section 307
of ERISA.
"Event of Default" shall have the meaning assigned such
term in Section 10.01.
"Excepted Liens" shall mean:
(i) Prior Liens;
(ii) statutory Liens incidental to the conduct of business or
the ownership of Properties of the Borrower and the Restricted
Subsidiaries (including Liens in connection with worker's
compensation, unemployment insurance and other like laws (other
than ERISA Liens), warehousemen's and mechanics' and
materialmen's liens and statutory landlord's liens) that in each
case are incurred in the ordinary course of business and not in
connection with the borrowing of money, the obtaining of advances
or credit or the payment of the deferred purchase price of
Property and that do not in any event materially impair the value
or use of the Property encumbered thereby in the operation of the
businesses of the Borrower and the Restricted Subsidiaries;
provided in each case, that the obligation secured is not overdue
or, if overdue, (A) is being contested by the Borrower or a
Restricted Subsidiary on a timely basis in good faith and in
appropriate proceedings, and the Borrower or a Restricted
Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of the Borrower or such
Restricted Subsidiary or (B) such Liens in the aggregate do not
secure obligations in the aggregate in excess of $1,000,000;
(iii) the right reserved to, or vested in, any municipality
or public authority or in any other Person by the terms of any
right, power, franchise, privilege, grant, license, permit,
easement or lease or by any provision of law, to terminate such
right, power, franchise, privilege, grant, license, permit,
easement or lease or to purchase or recapture, or to designate a
purchaser of, any of the Properties or assets of the Borrower and
the Restricted Subsidiaries;
(iv) the Lien of any tax or assessment that is not at the time
delinquent;
(v) the Lien of any tax or assessment that is delinquent, but
the validity of which is being diligently contested at the time
by the Borrower or any Restricted Subsidiary in good faith,
provided that the Borrower or such Restricted Subsidiary shall
have established such reserves in such amounts as may be required
under GAAP;
(vi) any Lien or privilege vested in any grantor, lessor or
licenser or permittor for rent or other charges due or for any
other obligations or acts to be performed, the payment of which
rent or other charges or performance of which other obligations
or acts is required under leases, easements, rights-of-way,
leases, licenses, franchises, privileges, grants or permits, so
long as payment of such rent or the performance of such other
obligations or acts is not delinquent or the requirement for such
payment or performance is being contested in good faith by
appropriate proceedings;
(vii) defects and irregularities in the title to the Property
of the Borrower or any Restricted Subsidiary that do not in the
aggregate have a Material Adverse Effect;
(viii) easements, exceptions or reservations in any Property
of the Borrower or any Restricted Subsidiary granted or reserved
for the purpose of pipelines, roads, the removal of oil, gas,
coal or other minerals, and other like purposes or for the joint
or common use of real Property, facilities and equipment, that do
not in the aggregate have a Material Adverse Effect;
(ix) rights reserved to, or vested in any grantor, lessor,
licenser, municipality or public authority to control or regulate
any Property of the Borrower or any Restricted Subsidiary or to
use any such Property, provided, that the Borrower or such
Restricted Subsidiary shall not be in default in respect of any
material obligation (except that the Borrower or such Restricted
Subsidiary may be contesting any such obligation in good faith)
to such grantor, lessor, licenser, municipality or public
authority; and provided, further, that all such controls,
Regulations and uses will not have a Material Adverse Effect;
(x) any obligation or duty to any municipality or public
authority with respect to any lease, easement, right-of-way,
license, franchise, privilege, permit or grant;
(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 Restricted Subsidiary
is not in default in any material obligation (except that the
Borrower or such Restricted Subsidiary may be contesting any such
obligation in good faith) in respect of such Property; provided,
further, that the existence of all such Liens and burdens does
not have a Material Adverse Effect;
(xiii) any pledge or deposit by the Borrower or any Restricted
Subsidiary to secure payment of workers' compensation or
insurance premiums, or in connection with tenders, bids,
contracts or leases; or any deposits to secure public or
statutory obligations; any pledge or deposit in connection with
contracts with or made at the request of the United States of
America or any state or agency or political subdivision thereof
or for any purposes similar to any of those referred to in this
clause (xiii); provided, in each case, the Borrower or such
Restricted Subsidiary is not in default in any material
obligation (except that the Borrower or such Restricted
Subsidiary may be contesting any such obligation in good faith)
in respect thereof;
(xiv) the making of a deposit with or the giving of any form
of security to any governmental agency or any body created or
approved by law or Governmental Requirement in order to entitle
the Borrower or any Restricted Subsidiary to maintain self-
insurance;
(xv) Liens securing Debt of the Borrower or any Restricted
Subsidiary incurred or assumed in connection with the
construction or acquisition of capital Improvements; provided
that such Debt would be permitted under Section 9.01(e) hereof,
and provided, further, that any such Lien shall not extend to any
Property other than Property the construction or acquisition of
which is financed by such Debt;
(xvi) Liens securing all or any part of the purchase price,
or securing Debt of the Borrower or any Restricted Subsidiary
incurred or assumed to pay all or any part of the purchase price
of Property acquired by the Borrower or any Restricted
Subsidiary, or Liens existing on such Property immediately prior
to its acquisition, including, without limitation, the Liens
described in clause (xv) of this definition, provided, that
(i) that any such Lien shall extend solely to the Property so
acquired, (ii) the principal amount of Debt secured by any such
Lien shall not exceed 100% of the fair market value of such
Property (as reasonably determined by the Board of Directors of
the General Partner) at the time of acquisition, (iii) any such
Lien not existing on such Property immediately prior to its
acquisition shall be created at the time of acquisition of such
Property or within 60 days thereafter and (iv) the aggregate
amount of all outstanding Debt secured by such Liens shall be
permitted under Section 9.01(e);
(xvii) Liens arising in connection with Sale-Leaseback
Transactions permitted under Section 9.05; provided that any such
Lien shall not extend to any Property other than Property being
leased; and
(xviii) any Lien of the Trustee encumbering the Defeasance
Trust (as defined in that certain Defeasance Trust Agreement,
dated as of December 16, 1997 (the "Defeasance Trust Agreement"),
among Buckeye Pipe Line Company, L.P., PNC Bank, National
Association, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇) and all funds and securities
therein for the benefit of the holders of the Defeased Notes (as
such term is defined in the Defeasance Trust Agreement).
"Existing Credit Agreement" shall mean the 364-Day
Credit Agreement, dated September 4, 2002, as amended,
modified or supplemented from time to time, among the
Borrower, the lenders from time to time parties thereto and
SunTrust Bank, as agent for such lenders.
"Federal Funds Rate" shall mean, for any day, the rate
per annum (rounded upwards, if necessary, to the nearest
l/100 of 1%) equal to the weighted average of the rates on
overnight federal funds transactions with a member of the
Federal Reserve System arranged by federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day, provided
that (i) if the date for which such rate is to be determined
is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next
preceding Business Day as so published on the next
succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day
shall be the average rate charged to the Agent on such day
on such transactions as determined by the Agent.
"Fee Letter" shall mean that certain letter agreement
from SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a division of SunTrust
Capital Markets, Inc. and SunTrust to the Borrower, dated
July 8, 2003, as the same may be amended or replaced from
time to time, concerning certain fees in connection with
this Agreement and any agreements or instruments executed in
connection herewith.
"Financial Statements" shall mean the financial
statement or statements of the Borrower and its Consolidated
Subsidiaries described or referred to in Section 7.02.
"Fixed Charge Coverage Ratio" shall mean the ratio
(calculated quarterly as of the last day of each fiscal
quarter) of (i) consolidated EBITDA of the Borrower
(excluding EBITDA attributable to Unrestricted Subsidiaries)
for the four fiscal quarters ending on such date (the "Base
Period") to (ii) the sum of (A) all payments of principal
(including the principal component of all payments in
respect of lease obligations described in clause (v) of the
definition of "Debt", but excluding payments of principal to
be made with the proceeds of other Debt (i.e.,
refinancings)) payable by the Borrower and its consolidated
Subsidiaries (other than the Unrestricted Subsidiaries)
during the four fiscal quarter period immediately succeeding
the Base Period (the "Reference Period"), plus (B) interest
expense payable by the Borrower and its consolidated
Subsidiaries (other than the Unrestricted Subsidiaries)
during the Reference Period, plus (C) capital expenditures
reasonably necessary to maintain the Property of the
Borrower and its consolidated Subsidiaries (other than the
Unrestricted Subsidiaries) in good working order during the
Reference Period.
"Funded Debt" shall mean for any Person, Debt of such
Person (other than the type described in subsection (xiii)
of the definition of Debt), less all obligations of such
Person to pay the deferred purchase price of Property or
services obtained in the ordinary course of business.
"Funded Debt Ratio" shall mean the ratio (calculated
quarterly at the end of each fiscal quarter) of (i) the
consolidated Funded Debt of the Borrower (excluding Funded
Debt of Unrestricted Subsidiaries) for the four fiscal
quarters ending on such date to (ii) the consolidated EBITDA
of the Borrower (excluding EBITDA attributable to
Unrestricted Subsidiaries) for such four fiscal quarters.
"GAAP" shall mean generally accepted accounting
principles in the United States of America in effect from
time to time.
"General Partner" shall mean BPLC.
"Governmental Authority" shall mean the country, the
state, county, city and political subdivisions in which any
Person or such Person's Property is located or that
exercises valid jurisdiction over any such Person or such
Person's Property, and any court, agency, department,
commission, board, bureau or instrumentality of any of them
including monetary authorities that exercises valid
jurisdiction over any such Person or such Person's Property.
Unless otherwise specified, all references to Governmental
Authority herein shall mean a Governmental Authority having
jurisdiction over, where applicable, the Borrower, its
Subsidiaries or any of their Property or the Agent, any
Lender or any Applicable Lending Office.
"Governmental Requirement" shall mean any law, statute,
code, ordinance, order, determination, rule, regulation,
judgment, decree, injunction, franchise, permit,
certificate, license, authorization or other directive or
requirement (whether or not having the force of law),
including, without limitation, Environmental Laws, energy
regulations and occupational, safety and health standards or
controls, of any Governmental Authority.
"GP Incentive Compensation Payments" shall mean the
quarterly incentive compensation payments paid to the
General Partner by the Borrower pursuant to that certain
Second Amended and Restated Incentive Compensation
Agreement, dated as of April 23, 2001, as it may be amended
from time to time.
"Granting Lender" shall have the meaning assigned such
term in Section 12.06(e).
"Guarantor" shall mean each Restricted Subsidiary that
has executed a Guaranty.
"Guaranty" shall mean an agreement executed by each
Guarantor substantially in the form of Exhibit E.
"Hedging Agreements" shall mean any commodity, interest
rate or currency swap, cap, floor, collar, forward agreement
or other exchange or protection agreements or any option
with respect to any such transaction.
"Highest Lawful Rate" shall mean, with respect to any
Lender, the maximum nonusurious interest rate, if any, that
at any time or from time to time may be contracted for,
taken, reserved, charged or received on the Debt hereunder
under laws applicable to such Lender that are presently in
effect or, to the extent allowed by law, under such
applicable laws that may hereafter be in effect and that
allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"Indemnified Parties" shall have the meaning assigned
such term in Section 12.03(a)(ii).
"Indemnity Matters" shall mean any and all actions,
suits, proceedings (including any investigations, litigation
or inquiries), claims, demands and causes of action made or
threatened against a Person and, in connection therewith,
all losses, liabilities, damages (excluding, however,
indirect and consequential damages and lost profits) or
reasonable costs and expenses of any kind or nature
whatsoever incurred by such Person whether caused by the
sole or concurrent negligence of such Person seeking
indemnification.
"Indenture" shall mean that certain Indenture, dated as
of July 10, 2003, between the Borrower and SunTrust Bank, as
Trustee, as amended and supplemented from time to time.
"Initial Funding" shall mean the funding of the initial
Loans upon satisfaction of the conditions set forth in
Sections 6.01 and 6.02.
"Interest Period" shall mean, with respect to any LIBOR
Loan, the period commencing on the date such LIBOR Loan is
made and ending on the numerically corresponding day in the
first, second, third or sixth calendar month thereafter, as
the Borrower may select as provided in Section 2.02 (or such
longer period as may be requested by the Borrower and agreed
to by the Required Lenders), except that each Interest
Period that commences on the last Business Day of a calendar
month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate
subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period
may end after the Termination Date; (ii) each Interest
Period that would otherwise end on a day that is not a
Business Day shall end on the next succeeding Business Day
(or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business
Day); and (iii) no Interest Period shall have a duration of
less than one month and, if the Interest Period for any
LIBOR Loans would otherwise be for a shorter period, such
Loans shall not be available hereunder.
"Lenders" shall have the meaning assigned such term in
the preamble to this Agreement.
"LIBOR" shall mean, for any Interest Period for any
LIBOR Loan, the rate per annum for deposits in Dollars for a
period equal to such Interest Period appearing on Dow ▇▇▇▇▇
Market Service Page 3750 (or such other page as may replace
Dow ▇▇▇▇▇ Market Service Page 3750 or that service or
another service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of
displaying British Bankers' Association Interest Settlement
Rates for Dollars) as of 11:00 a.m. (London, England time)
two Business Days prior to the first day of such Interest
Period. In the event that such rate does not appear on Dow
▇▇▇▇▇ Market Service Page 3750, or such other page as
referenced above, LIBOR shall be determined by the Agent to
be the rate per annum at which deposits in Dollars are
offered by leading reference banks in the London interbank
market to SunTrust at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of the applicable
Interest Period for a period equal to such Interest Period
and in an amount substantially equal to the amount of the
applicable Loan to be made by the Agent (or any Affiliate of
the Agent).
"LIBOR Loans" shall mean Loans that bear interest at
rates based upon the LIBOR Rate.
"LIBOR Rate" shall mean, with respect to any LIBOR
Loan, a rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Agent to be equal
to the quotient of (i) LIBOR for the Interest Period for
such Loan divided by (ii) 1 minus the Reserve Requirement
for such Loan for such Interest Period.
"Lien" shall mean any interest in Property securing an
obligation owed to, or a claim by, a Person other than the
owner of the Property, whether such interest is based on the
common law, statute or contract, and whether such obligation
or claim is fixed or contingent, and including but not
limited to the lien or security interest arising from a
mortgage, encumbrance, pledge, security agreement,
conditional sale or trust receipt or a lease, consignment or
bailment for security purposes. The term "Lien" shall
include reservations, exceptions, encroachments, easements,
rights of way, covenants, conditions, restrictions, leases
and other title exceptions and encumbrances affecting
Property. Any Person shall be deemed to be the owner of any
Property that it has acquired or holds subject to a
conditional sale agreement, or leases under a financing
lease or other arrangement, pursuant to which title to the
Property has been retained by or vested in some other Person
in a transaction intended to create a financing.
"Loan Documents" shall mean this Agreement, the
Guaranties, the Fee Letter, and any and all other agreements
or instruments now or hereafter executed and delivered by
the Borrower or any other Person (other than participation
or similar agreements between any Lender and any other
lender or creditor with respect to any Debt hereunder) in
connection with, or as security for or guaranty of the
payment or performance of this Agreement, as such agreements
may be amended, supplemented or restated from time to time.
"Loans" shall mean Loans made pursuant to Section
2.01(a).
"Material Adverse Effect" shall mean any material and
adverse effect on (i) the financial condition or results of
operations of the Borrower and the Restricted Subsidiaries,
taken as a whole, different from those reflected in the
Financial Statements or from the facts represented or
warranted in any Loan Document, or (ii) the ability of the
Borrower and the Restricted Subsidiaries, taken as a whole,
to carry out their business as of the date hereof or as
proposed as of the date hereof to be conducted or to meet
their obligations under the Loan Documents on a timely
basis.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.,
or any successor thereto.
"Multiemployer Plan" shall mean a Plan defined as such
in Section 3(37) or 4001(a)(3) of ERISA.
"Note Agreements" shall mean each of (i) the
Underwriting Agreement, dated July 7, 2003, among the
Borrower, BPLC and ▇.▇. ▇▇▇▇▇▇ Securities Inc. and (ii) the
Purchase Agreement, dated August 14, 2003, among the
Borrower, BPLC and the initial purchasers named therein.
"Other Credit Agreement" shall mean the 5-Year Credit
Agreement, dated as of September 5, 2001, as amended,
modified or supplemented from time to time, among the
Borrower, the lenders from time to time parties thereto and
SunTrust Bank, as agent for such lenders.
"Other Taxes" shall have the meaning assigned such term
in Section 4.06(b).
"PBGC" shall mean the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions.
"Percentage Share" shall mean, for each Lender, the
percentage obtained by dividing such Lender's Commitment by
the Aggregate Revolving Credit Commitments.
"Person" shall mean any individual, corporation,
company, voluntary association, partnership, joint venture,
trust, unincorporated organization or government or any
agency, instrumentality or political subdivision thereof, or
any other form of entity.
"Plan" shall mean any employee pension benefit plan, as
defined in Section 3(2) of ERISA, that (i) is currently or
hereafter sponsored, maintained or contributed to by the
Borrower, any Subsidiary of the Borrower or an ERISA
Affiliate or (ii) was at any time during the preceding six
calendar years sponsored, maintained or contributed to, by
the Borrower, any Subsidiary of the Borrower or an ERISA
Affiliate.
"Post-Default Rate" shall mean, in respect of any
principal of any Loan or any other amount payable by the
Borrower under this Agreement or any other Loan Document, a
rate per annum equal to 2% per annum above the rate of
interest applicable from time to time to Base Rate Loans,
but in no event to exceed the Highest Lawful Rate; provided
however, for any LIBOR Loan, the Post-Default Rate shall be
2% per annum above the interest rate for such Loan as
provided in Section 3.02(a)(ii), but in no event to exceed
the Highest Lawful Rate.
"Prime Rate" shall mean the rate of interest from time
to time announced publicly by the Agent at the Principal
Office as its prime commercial lending rate. Such rate is
set by the Agent as a general reference rate of interest,
taking into account such factors as the Agent may deem
appropriate, it being understood that many of the Agent's
commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate
actually charged to any customer and that the Agent may make
various commercial or other loans at rates of interest
having no relationship to such rate.
"Principal Office" shall mean the principal office of
the Agent, presently located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Prior Lien" shall mean any Lien not created by the
Borrower or any Restricted Subsidiary, which at any time is
a lien upon the lands over which the Borrower or any
Restricted Subsidiary holds easements or rights-of-way for
pipeline purposes, or upon Properties with respect to which
the Borrower's or such Restricted Subsidiary's interest is
subordinate to such Lien, and that does not secure bonds,
notes, other indebtedness, taxes, assessments or other
charges that have been assumed or guaranteed by the Borrower
or any Restricted Subsidiary or for which the Borrower or
any Restricted Subsidiary has otherwise become liable or on
which the Borrower or any Restricted Subsidiary customarily
pays interest charges.
"Property" shall mean any interest in any kind of
property or asset, whether real, personal or mixed, or
tangible or intangible.
"Quarterly Dates" shall mean the last day of each
March, June, September and December, in each year, the first
of which shall be September 30, 2003.
"Reference Rating" shall mean the ratings assigned by
S&P and Moody's to the senior unsecured non-credit enhanced
long-term debt of the Borrower. If such ratings assigned by
S&P and Moody's are not comparable (i.e., a "split rating"),
and (i) the ratings differential is less than two levels,
then the higher of such two ratings shall control or (ii)
the ratings differential is two levels or more, then the
ratings one below the higher of such two ratings shall
control, unless either rating is below BBB- (in the case of
S&P) or Baa3 (in the case of Moody's), in which case the
lower of the two ratings shall control.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System (or any successor),
as the same may be amended or supplemented from time to
time.
"Regulatory Change" shall mean, with respect to any
Lender, any change after the date hereof in any Governmental
Requirement (including Regulation D) or the adoption or
making after such date of any interpretations, directives or
requests applying to a class of lenders (including such
Lender or its Applicable Lending Office) of or under any
Governmental Requirement (whether or not having the force of
law) by any Governmental Authority charged with the
interpretation or administration thereof.
"Required Lenders" shall mean, at any time while no
Loans are outstanding, Lenders having more than 50% of the
Aggregate Revolving Credit Commitments and, at any time
Loans are outstanding, Lenders holding more than 50% of the
outstanding aggregate principal amount of the Loans (without
regard to any sale by a Lender of a participation in any
Loan under Section 12.06(c)).
"Required Payment" shall have the meaning assigned such
term in Section 4.04.
"Reserve Requirement" shall mean, for any Interest
Period for any LIBOR Loan, the average maximum rate at which
reserves (including any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest
Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal
reserve requirement) for the Lenders with respect to
liabilities or assets consisting of or including
"eurocurrency liabilities" (as defined in Regulation D of
the Board of Governors of the Federal Reserve System, as in
effect from time to time) having a term equal to such
Interest Period.
Without limiting the effect of the foregoing, the
Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks by reason of
any Regulatory Change against (i) any category of
liabilities that includes deposits by reference to which
LIBOR is to be determined as provided in the definition of
"LIBOR" or (ii) any category of extensions of credit or
other assets which include a LIBOR Loan.
"Responsible Officer" shall mean, as to any Person, the
Chief Executive Officer, the President or any Vice President
of such Person and, with respect to financial matters, the
term "Responsible Officer" shall include the Chief Financial
Officer of such Person. Unless otherwise specified, all
references to a Responsible Officer herein shall mean a
Responsible Officer of the Borrower.
"Restricted Subsidiary" shall mean those Persons listed
on Exhibit D-1 and any Subsidiary of the Borrower or of any
Restricted Subsidiary that has not been designated by the
Board of Directors of the General Partner, at its creation
or acquisition, as an Unrestricted Subsidiary. The Borrower
may thereafter redesignate an Unrestricted Subsidiary as a
Restricted Subsidiary, and it will thereafter be a
Restricted Subsidiary; provided, that such Restricted
Subsidiary may not thereafter be redesignated as an
Unrestricted Subsidiary, and provided, further, that no
Subsidiary may be designated as an Unrestricted Subsidiary
at any time other than at its creation or acquisition. To
qualify as a Restricted Subsidiary, such Subsidiary shall be
in a line of business as is permitted for the Borrower under
the Borrower Partnership Agreement and shall have executed a
Guaranty and at the time such Subsidiary is designated as a
Restricted Subsidiary no Default shall exist or result from
such designation. Notwithstanding the foregoing, Laurel
Pipe Line Company, L.P., a Delaware limited
partnership("Laurel"), shall be deemed to be a Restricted
Subsidiary regardless of whether it has executed and
delivered a Guaranty and at no time shall Laurel be required
to execute a Guaranty.
"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).
"S&P" shall mean Standard & Poor's Ratings Services, a
division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any
successor thereto.
"Sale-Leaseback Attributable Debt" shall mean, as to
any particular lease relating to a Sale-Leaseback
Transaction, the amount of the net sale proceeds derived
from the sale or transfer to the Borrower or any Restricted
Subsidiary of the Property involved.
"Sale-Leaseback Transaction" shall mean a transaction
or series of transactions pursuant to which the Borrower or
any Restricted Subsidiary shall sell or transfer to any
Person any Property, whether now owned or hereafter
acquired, and as part of the same transaction or series of
transactions, the Borrower or any Restricted Subsidiary
shall rent or lease as lessee, or similarly acquire the
right to possession or use of, such property or one or more
Properties which it intends to use for the same purpose or
purposes as such Property.
"SEC" shall mean the Securities and Exchange Commission
or any successor Governmental Authority.
"Senior Notes" shall mean (i) the 4 5/8% Notes, in the
aggregate principal amount of $300,000,000, due 2013 and
(ii) the 6 3/4% Notes, in the aggregate principal amount of
$150,000,000, due 2033; each issued pursuant to the
Indenture.
"SPC" shall have the meaning assigned such term in
Section 12.06(e)
"Special Entity" of any Person shall mean any joint
venture, limited liability company or partnership, general
or limited partnership or any other type of partnership or
company other than a corporation in which such Person or one
or more of its Subsidiaries is a member, owner, partner or
joint venturer and either (a) owns, directly or indirectly,
at least a majority of the equity or interests of such
entity, or (b) controls such entity, but excluding any tax
partnerships that are not classified as partnerships under
state law. For purposes of this definition, any Person that
owns directly or indirectly an equity investment in another
Person that allows the first Person to manage or elect
managers who manage the normal activities of such second
Person will be deemed to "control" such second Person (e.g.,
a sole general partner controls a limited partnership).
"Subsidiary" shall mean (i) any corporation of which at
least a majority of the outstanding shares of stock having
by the terms thereof ordinary voting power to elect a
majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any
other class or classes of such corporation shall have or
might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned or
controlled by the Borrower or one or more of its
Subsidiaries or by the Borrower and one or more of its
Subsidiaries and (ii) any Special Entity.
"SunTrust" shall have the meaning assigned such term in
the preamble to this Agreement.
"Taxes" shall have the meaning assigned such term in
Section 4.06(a).
"Termination Date" shall mean the earlier to occur of
(i) September 1, 2004, as such date may be extended pursuant
to Section 2.04 and (ii) the date that the Commitments are
terminated pursuant to Section 2.03(a) or 10.02.
"Type" shall mean, with respect to any Loan, a Base
Rate Loan or a LIBOR Loan.
"Unrestricted Subsidiary" shall mean those Persons
listed on Exhibit D-2 and any Subsidiary of the Borrower or
any Restricted Subsidiary that has been designated by the
Board of Directors of the General Partner as an
"Unrestricted Subsidiary" at the time of its creation or
acquisition; provided that no Debt or other obligation of
such Unrestricted Subsidiary may be assumed or guaranteed by
the Borrower or any Restricted Subsidiary except to the
extent otherwise permitted under Section 9.01(e), nor may
any asset of the Borrower or any Restricted Subsidiary,
directly or indirectly, contingently or otherwise, become
encumbered or otherwise subject to the satisfaction thereof
except to the extent otherwise permitted under Section
9.02(d).
"Utilization Percentage" shall mean, as of any time for
the determination thereof, the percentage obtained by
dividing the aggregate principal amount of Loans outstanding
by the Aggregate Revolving Credit Commitments then in
effect.
SECTION 1.02. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all determinations with respect to
accounting matters hereunder shall be made, and all financial
statements and certificates and reports as to financial matters
required to be furnished to the Agent or the Lenders hereunder
shall be prepared, in accordance with GAAP, applied on a basis
consistent with the audited financial statements of the Borrower
referred to in Section 7.02 (except for changes concurred with by
the Borrower's independent public accountants).
ARTICLE II
COMMITMENTS
SECTION 2.01. Loans.
(a) Loans. Each Lender severally agrees, on the terms and
conditions of this Agreement, to make loans to the Borrower
during the period from and including (i) the date hereof or
(ii) such later date that such Lender becomes a party to this
Agreement as provided in Section 12.06(b), to and up to, but
excluding, the Termination Date in an aggregate principal amount
at any one time outstanding up to, but not exceeding, the amount
of such Lender's Revolving Credit Commitment as then in effect;
provided, however, that the aggregate principal amount of all
such Loans by all Lenders hereunder at any one time outstanding
shall not exceed the Aggregate Revolving Credit Commitments.
Subject to the terms of this Agreement, during the period from
the date hereof to and up to, but excluding, the Termination
Date, the Borrower may borrow, repay and reborrow the amount
described in this Section 2.01(a).
(b) Limitation on Types of Loans. Subject to the other terms
and provisions of this Agreement, at the option of the Borrower,
the Loans may be Base Rate Loans or LIBOR Loans; provided that,
without the prior written consent of the Required Lenders, no
more than eight LIBOR Loans may be outstanding at any time.
SECTION 2.02. Borrowings, Continuations and Conversions of
Loans.
(a) Borrowings. The Borrower shall give the Agent (which shall
promptly notify the Lenders) advance notice as hereinafter
provided of each borrowing under Section 2.01(a), which shall
specify (i) the aggregate amount of such borrowing, (ii) the Type
and (iii) the date (which shall be a Business Day) of the Loans
to be borrowed, and (iv) in the case of LIBOR Loans, the duration
of the Interest Period therefor.
(b) Minimum Amounts. All Base Rate Loan borrowings shall be in
amounts of at least $1,000,000 or the remaining balance of the
Aggregate Revolving Credit Commitments, if less, or any whole
multiple of $1,000,000 in excess thereof, and all LIBOR Loans
shall be in amounts of at least $3,000,000 or any whole multiple
of $1,000,000 in excess thereof.
(c) Notices. All borrowings, continuations and conversions
shall require advance written notice to the Agent (which shall
promptly notify the Lenders) in the form of Exhibit A (or
telephonic notice promptly confirmed by such a written notice),
which in each case shall be irrevocable, from the Borrower to be
received by the Agent not later than 11:00 a.m. Atlanta time on
the date of each Base Rate Loan borrowing and not later than
11:00 a.m. Atlanta time at least three Business Days prior to the
date of each LIBOR Loan borrowing, continuation or conversion.
Without in any way limiting the Borrower's obligation to confirm
in writing any telephonic notice, the Agent may act without
liability upon the basis of telephonic notice believed by the
Agent in good faith to be from the Borrower prior to receipt of
written confirmation. In each such case, the Borrower hereby
waives the right to dispute the Agent's record of the terms of
such telephonic notice except in the case of gross negligence or
willful misconduct by the Agent.
(d) Continuation Options. Subject to the provisions made in
this Section 2.02(d), the Borrower may elect to continue all or
any part of any LIBOR Loan beyond the expiration of the then
current Interest Period relating thereto by giving advance notice
as provided in Section 2.02(c) to the Agent (which shall promptly
notify the Lenders) of such election, specifying the amount of
such Loan to be continued and the Interest Period therefor. In
the absence of such a timely and proper election, the Borrower
shall be deemed to have elected to convert such LIBOR Loan to a
Base Rate Loan pursuant to Section 2.02(e). All or any part of
any LIBOR Loan may be continued as provided herein, provided that
(i) any continuation of any such Loan shall be (as to each Loan
as continued for an applicable Interest Period) in amounts of at
least $5,000,000 or any whole multiple of $1,000,000 in excess
thereof and (ii) no Default shall have occurred and be
continuing. If a Default shall have occurred and be continuing,
each LIBOR Loan shall be converted to a Base Rate Loan on the
last day of the Interest Period applicable thereto.
(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 at any time and from time to time
to a LIBOR Loan by giving advance notice as provided in
Section 2.02(c) to the Agent (which shall promptly notify the
Lenders) of such election. All or any part of any outstanding
Loan may be converted as provided herein, provided that (i) any
conversion of any Base Rate Loan into a LIBOR Loan shall be (as
to each such Loan into which there is a conversion for an
applicable Interest Period) in amounts of at least $5,000,000 or
any whole multiple of $1,000,000 in excess thereof and (ii) no
Default shall have occurred and be continuing. If a Default
shall have occurred and be continuing, no Base Rate Loan may be
converted into a LIBOR Loan.
(f) Advances. Not later than 11:00 a.m. Atlanta time for LIBOR
Loans and 1:00 p.m. Atlanta time for Base Rate Loans on the date
specified for each borrowing hereunder, each Lender shall make
available the amount of the Loan to be made by it on such date to
the Agent, to an account which the Agent shall specify, in
immediately available funds, for the account of the Borrower.
The amounts so received by the Agent shall, subject to the terms
and conditions of this Agreement, be made available to the
Borrower by depositing the same, in immediately available funds,
in an account of the Borrower, designated by the Borrower and
maintained at the Principal Office.
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 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. Renewal of Commitments.
(a) At least 45 but not more than 60 days prior to the then-
current Termination Date, the Borrower may, by delivering a
written request to the Agent (each such request being
irrevocable), request that the then-current Termination Date be
extended for an additional period of 364 days, commencing on the
then-current Termination Date. Upon receipt of such notice, the
Agent shall promptly communicate such request to the Lenders.
(b) No earlier than 45 days prior, and no later than 30 days
prior, to the then-current Termination Date, the Lenders shall
indicate to the Agent and the Borrower whether the Borrower's
request to so extend the then-current Termination Date is
acceptable to the Lenders, it being understood that the
determination by each Lender will be in its sole and absolute
discretion and that the failure of any Lender to so respond
within such period shall be deemed to constitute a refusal by
such Lender to consent to such request, with the result being
that such request is denied (any Lender refusing or deemed to
refuse any such request, a "Non-Consenting Lender").
(c) Subject to the satisfaction of the conditions set forth in
Section 6.03, in the event that the sum of the Commitments of the
Lenders that have consented to the Borrower's request to extend
the then-current Termination Date (the "Consenting Lenders") plus
the Commitments of Non-Consenting Lenders with respect to such
request that have been assigned pursuant to Section 12.06(b)
hereof shall constitute at least 80% of the Aggregate Revolving
Credit Commitments, the then-current Termination Date shall be
extended for an additional period of 364 days with respect to the
Commitments of such Consenting Lenders. The Commitments of Non-
Consenting Lenders with respect to such request shall
automatically terminate on the then-current Termination Date (and
the principal amount of all Loans made by such Non-Consenting
Lenders, together with accrued interest and fees to such date,
shall be repaid), unless assigned pursuant to Section 12.06(b)
hereof; provided that, before the Borrower may solicit any
institution other than the Consenting Lenders, the Consenting
Lenders shall, at least five days before the end of the then-
current Termination Date, determine whether to purchase by
assignment the Commitments of such Non-Consenting Lenders.
(d) The Agent shall prepare and deliver to the Borrower and each
Lender (including each new bank and other financial institution
to which a Non-Consenting Lender's Commitment has been assigned
pursuant to Section 12.06(b)) a revised Annex I that reflects the
Commitments of each Lender.
SECTION 2.05. Fees.
(a) Facility Fee. The Borrower shall pay to the Agent for the
account of each Lender a facility fee equal to the product of (i)
the daily average amount of such Lender's Commitment (regardless
of usage) and (ii) the rate per annum set forth below in the
columns identified as ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ 4, and
Level 5, determined by reference to the Reference Rating from the
date hereof in the case of each Lender, and from the effective
date specified in the Assignment Agreement pursuant to which it
became a Lender, in the case of each other Lender, until the
earlier to occur of the Termination Date and, in the case of the
termination in whole of a Lender's Commitment pursuant to
Section 2.03, the date of such termination, payable on each
Quarterly Date during such period, and on the Termination Date.
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5
S&P/▇▇▇▇▇ Referenc Referenc Referenc Referenc Referenc
's e Rating e Rating e Rating e Rating e Rating
at least Less Less Less below
A-/A3 than than than Level 4*
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
but at but at but at
least least least
BBB+/Baa BBB/Baa2 BBB-
1 /Baa3
Rate Per Annum
Facility 0.100% 0.125% 0.150% 0.225% 0.350%
Fee
*or unrated
Any change in the facility fee will be effective as of the date
on which S&P or ▇▇▇▇▇'▇, as the case may be, announces any change
in the ratings used to determine the Reference Rating.
(b) Fee Letter. The Borrower shall pay to SunTrust and SunTrust
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a division of SunTrust Capital Markets, Inc.
for their respective accounts such other fees as are set forth in
the Fee Letter on the dates specified therein.
SECTION 2.06. Several Obligations.
The failure of any Lender to make any Loan to be made by it
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 2.07. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
(b) The Agent shall also maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type
thereof and the Interest Period (if any) with respect thereto,
(ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender
hereunder, and (iii) the amount of any sum received by the Agent
hereunder from the Borrower and each Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant
to subsections (a) and (b) above shall be prima facie evidence of
the existence and amounts of the obligations therein recorded;
provided, however, that the failure of the Agent or any Lender to
maintain such accounts or any error therein shall not in any
manner affect the obligation of the Borrower to repay such
obligations in accordance with their terms.
(d) Any Lender may request that its Loans be evidenced by one or
more promissory notes. In such event, the Borrower shall
prepare, execute and deliver to such Lender one or more
promissory notes payable to the order of such Lender and in a
form acceptable to the Borrower and the Agent. Thereafter, the
Loans evidenced by such note(s) and interest thereon shall at all
times (including after any assignment pursuant to
Section 12.06(b)) be represented by notes from the Borrower,
payable to the order of the payee named therein or any assignee
pursuant to Section 12.06(b), except to the extent that any such
Lender or assignee subsequently returns any such note for
cancellation and requests that the related Loans once again be
evidenced as in subsections (a) and (b) above.
SECTION 2.08. 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 Loans that are Base Rate Loans, or the remaining aggregate
principal balance outstanding) and shall be irrevocable and
effective only upon receipt by the Agent, provided that interest
on the principal prepaid, accrued to the prepayment date, shall
be paid on the prepayment date. The Borrower may prepay LIBOR
Loans on the same conditions as for Base Rate Loans (except that
prior notice to the Agent shall be not less than three Business
Days for LIBOR Loans and such payment shall be at least
$5,000,000 or whole multiples of $1,000,000 in excess thereof)
and in addition such prepayments of LIBOR Loans shall be subject
to the terms of Section 5.05 and shall be in an amount equal to
all of the LIBOR Loans for the Interest Period prepaid.
(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 exceeds the Aggregate
Revolving Credit Commitments, the Borrower shall prepay the 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.
(c) Generally. Prepayments permitted or required under this
Section 2.08 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 2.09. 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) Loans. On the Termination Date the Borrower shall repay the
outstanding aggregate principal amount of the Loans and all
accrued and unpaid interest thereon.
(b) Generally. The Borrower will pay to the Agent, for the
account of each Lender, the principal payments required by this
Section 3.01.
SECTION 3.02. Interest.
(a) Interest Rates. The Borrower will pay to the Agent, for the
account of each Lender, as appropriate, interest on the unpaid
principal amount of each Loan made by such Lender for the period
commencing on the date such Loan is made to, but excluding, the
date such Loan shall be paid in full, at the following rates per
annum:
(i) if such a Loan is a Base Rate Loan, the Base Rate (as in
effect from time to time) plus the Applicable Margin, but in no
event to exceed the Highest Lawful Rate; and
(ii) if such a Loan is a LIBOR Loan, for each Interest Period
relating thereto, the LIBOR Rate for such Loan plus the
Applicable Margin (as in effect from time to time), but in no
event to exceed the Highest Lawful Rate.
(b) Post-Default Rate. Notwithstanding the foregoing, the
Borrower will pay to the Agent, for the account of each Lender
interest at the applicable Post-Default Rate on any principal of
any Loan made by such Lender, and (to the fullest extent
permitted by law) on any other amount payable by the Borrower
hereunder or under any Loan Document for the period commencing on
the date of an Event of Default until the same is paid in full or
all Events of Default are cured or waived.
(c) Due Dates. Accrued interest on Base Rate Loans shall be
payable on each Quarterly Date, and accrued interest on each
LIBOR Loan shall be payable on the last day of the Interest
Period therefor and, if such Interest Period is longer than three
months, at three-month intervals following the first day of such
Interest Period, except that interest payable at the Post-Default
Rate shall be payable from time to time on demand and interest on
any LIBOR Loan that is converted into a Base Rate Loan pursuant
to Section 5.04 shall be payable on the date of conversion (but
only to the extent so converted). All accrued and unpaid
interest on the Loans shall be paid on the Termination Date.
(d) Determination of Rates. Promptly after the determination of
any interest rate provided for herein or any change therein, the
Agent shall notify the Lenders and the Borrower thereof. Each
determination by the Agent of an interest rate or fee hereunder
shall, except in cases of manifest error, be final, conclusive
and binding on the parties.
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 shall be made in Dollars, in
immediately available funds, to the Agent at such account as the
Agent shall specify by notice to the Borrower from time to time,
not later than 11:00 a.m. Atlanta time on the date on which such
payments shall become due (each such payment made after such time
on such due date to be deemed to have been made on the next
succeeding Business Day). Such payments shall be made without
(to the fullest extent permitted by applicable law) defense, set-
off or counterclaim. Each payment received by the Agent under
this Agreement for account of a Lender shall be paid promptly to
such Lender in immediately available funds. Except as otherwise
provided in the definition of "Interest Period", if the due date
of any payment under this Agreement would otherwise fall on a day
which is not a Business Day such date shall be extended to the
next succeeding Business Day and interest shall be payable for
any principal so extended for the period of such extension. At
the time of each payment to the Agent of any principal of or
interest on any borrowing, the Borrower shall notify the Agent of
the Loans to which such payment shall apply. In the absence of
such notice the Agent may specify the Loans to which such payment
shall apply, but to the extent possible such payment or
prepayment will be applied first to Base Rate Loans.
SECTION 4.02. Pro Rata Treatment.
Except 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 2.05(a) shall be made for account of the Lenders
pro rata in accordance with their Percentage Share, and each
termination or reduction of the amount of the Aggregate Revolving
Credit Commitments under Section 2.03(a) shall be applied to the
Commitments of all Lenders, pro rata according to the amounts of
their respective Commitments; (ii) each payment of principal of
Loans by the Borrower shall be made for account of the Lenders
pro rata in accordance with the respective unpaid principal
amount of the Loans held by the Lenders; and (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.
SECTION 4.03. Computations.
Interest on LIBOR Loans, interest determined by reference to
the Federal Funds Rate and fees shall be computed on the basis of
a year of 360 days and actual days elapsed (including the first
day but excluding the last day) occurring in the period for which
such interest is payable, unless such calculation would exceed
the Highest Lawful Rate, in which case interest shall be
calculated on the per annum basis of a year of 365 or 366 days,
as the case may be. Interest on Base Rate Loans determined by
reference to the Prime Rate shall be computed on the basis of a
year of 365 or 366 days, as the case may be, and actual days
elapsed (including the first day but excluding the last day)
occurring in the period for which such interest is payable.
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 to be made by it hereunder or (in the
case of the Borrower) a payment to the Agent for account of one
or more of the Lenders hereunder (such payment being herein
called the "Required Payment"), which notice shall be effective
upon receipt, that it does not intend to make the Required
Payment to the Agent, the Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available
to the intended recipient(s) on such date and, if such Lender or
the Borrower (as the case may be) has not in fact made the
Required Payment to the Agent, the recipient(s) of such payment
shall, on demand, repay to the Agent the amount so made available
together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available
by the Agent until, but excluding, the date the Agent recovers
such amount at a rate per annum which, for any Lender as
recipient, will be equal to the Federal Funds Rate, and for the
Borrower as recipient, will be equal to the Base Rate plus the
Applicable Margin.
SECTION 4.05. Set-off, Sharing of Payments, Etc.
(a) The Borrower agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or
counterclaim a Lender may otherwise have, each Lender shall have
the right and be entitled (after consultation with the Agent), at
its option, to offset balances held by it or by any of its
Affiliates for account of the Borrower, any Guarantor or any
Restricted Subsidiary at any of its offices, in Dollars or in any
other currency, against any principal of or interest on any of
such Lender's Loans, or any other amount payable to such Lender
hereunder, which is not paid when due (regardless of whether such
balances are then due to the Borrower), in which case it shall
promptly notify the Borrower and the Agent thereof, provided that
such Lender's failure to give such notice shall not affect the
validity thereof.
(b) If any Lender shall obtain payment of any principal of or
interest on any Loan made by it to the Borrower under this
Agreement 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 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. 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 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.
(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 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 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 or such Lender is organized, or
(iii) any jurisdiction (or political subdivision thereof) in
which such Lender 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 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 or
the Agent (as the case may be) shall receive an amount equal to
the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant
taxing authority or other Governmental Authority in accordance
with applicable law.
(b) Other Taxes. In addition, to the fullest extent permitted
by applicable law, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement, any Assignment
Agreement or any other Loan Document (hereinafter referred to as
"Other Taxes").
(c) INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWER WILL INDEMNIFY EACH LENDER 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 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 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 OR THE AGENT HAS RECEIVED PAYMENT FROM THE BORROWER
IT SHALL PROMPTLY NOTIFY THE BORROWER OF SUCH REFUND OR CREDIT
AND SHALL, IF NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING,
WITHIN THIRTY (30) DAYS AFTER RECEIPT OF A REQUEST BY THE
BORROWER (OR PROMPTLY UPON RECEIPT, IF THE BORROWER HAS REQUESTED
APPLICATION FOR SUCH REFUND OR CREDIT PURSUANT HERETO), PAY AN
AMOUNT EQUAL TO SUCH REFUND OR CREDIT TO THE BORROWER WITHOUT
INTEREST (BUT WITH ANY INTEREST SO REFUNDED OR CREDITED),
PROVIDED THAT THE BORROWER, UPON THE REQUEST OF SUCH LENDER OR
THE AGENT, AGREES TO RETURN SUCH REFUND OR CREDIT (PLUS
PENALTIES, INTEREST OR OTHER CHARGES) TO SUCH LENDER OR THE AGENT
IN THE EVENT SUCH LENDER OR THE AGENT IS REQUIRED TO REPAY SUCH
REFUND OR CREDIT.
(d) Foreign Lenders, Participants and Assignees.
Each Lender, participant (by accepting a participation
interest under this Agreement) and assignee (by executing an
Assignment Agreement) that is not organized under the laws of the
United States of America or one of its states (1) represents to
the Agent and the Borrower that (A) no taxes are required to be
withheld by the Agent or the Borrower with respect to any
payments to be made to it hereunder and (B) it has furnished to
the Agent and the Borrower two duly completed copies of either
U.S. Internal Revenue Service Form W-8BEN or W-8ECI or any other
form acceptable to the Agent and the Borrower that entitles it to
a complete exemption from U.S. federal withholding tax on all
interest or fee payments under the Loan Documents, and
(2) covenants to (A) provide the Agent and the Borrower a new
Form W-8BEN or W-8ECI or other form acceptable to the Agent and
the Borrower upon the expiration or obsolescence according to
Governmental Requirement of any previously delivered form, duly
executed and completed by it, entitling it to a complete
exemption from U.S. federal withholding tax on all interest and
fee payments under the Loan Documents, and (B) comply from time
to time with all Governmental Requirements with regard to the
withholding tax exemption. If any of the foregoing is not true
at any time or the applicable forms are not provided, then the
Borrower and the Agent (without duplication), notwithstanding any
other provision of this Section 4.06, may deduct and withhold
from interest and fee payments under the Loan Documents any tax
at the maximum rate under the Code or other applicable
Governmental Requirement, and amounts so deducted and withheld
shall be treated as paid to that Lender, participant or assignee,
as the case may be, for all purposes under the Loan Documents.
ARTICLE V
YIELD PROTECTION
SECTION 5.01. Additional Costs.
(a) LIBOR Regulations, etc. The Borrower shall pay directly to
each Lender from time to time such amounts as such Lender may
reasonably determine to be necessary to compensate such Lender
for any costs that it determines are attributable to its making
or maintaining of any LIBOR Loans or its obligation to make any
LIBOR Loans, or any reduction in any amount receivable by such
Lender hereunder in respect of any of such LIBOR Loans or such
obligation (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting
from any Regulatory Change that: (i) changes the basis of
taxation of any amounts payable to such Lender under this
Agreement in respect of any of such LIBOR Loans (other than taxes
imposed on the overall net income of such Lender or of its
Applicable Lending Office for any of such LIBOR Loans by the
jurisdiction in which such Lender has its principal office or
Applicable Lending Office); or (ii) imposes or modifies any
reserve, special deposit, minimum capital, capital ratio or
similar requirements relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of
such Lender, or the Commitment or Loans of such Lender or the
London interbank market; or (iii) imposes any other condition
affecting this Agreement (or any of such extensions of credit or
liabilities) or such Lender's Commitment or Loans. Each Lender
will notify the Agent and the Borrower of any event occurring
after the date hereof that will entitle such Lender to
compensation pursuant to this Section 5.01(a) as promptly as
practicable after it obtains knowledge thereof and determines to
request such compensation, and will designate a different
Applicable Lending Office for the Loans of such Lender affected
by such event if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole
opinion of such Lender, be disadvantageous to such Lender,
provided that such Lender shall have no obligation to so
designate an Applicable Lending Office located in the United
States. If any Lender requests compensation from the Borrower
under this Section 5.01(a), the Borrower may, by notice to such
Lender, suspend the obligation of such Lender to make additional
Loans of the Type with respect to which such compensation is
requested until the Regulatory Change giving rise to such request
ceases to be in effect (in which case the provisions of
Section 5.04 shall be applicable).
(b) Capital Adequacy. Without limiting the effect of the
foregoing provisions of this Section 5.01 (but without
duplication), the Borrower shall pay directly to any Lender from
time to time on request such amounts as such Lender may
reasonably determine to be necessary to compensate such Lender or
its parent or holding company for any costs which it determines
are attributable to the maintenance by such Lender or its parent
or holding company (or any Applicable Lending Office), pursuant
to any Governmental Requirement following any Regulatory Change,
of capital in respect of its Commitment, or its Loans, 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.
(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
on amounts receivable by it in respect of Loans, and of the
amounts required to compensate such Lender under this
Section 5.01, shall be conclusive and binding for all purposes,
provided that such determinations and allocations are made on a
reasonable basis. Any request for additional compensation under
this Section 5.01 shall be paid by the Borrower within 30 days of
the receipt by the Borrower of the notice described in this
Section 5.01(c).
(d) The Lenders shall determine the applicability of, and the
amount due under, this Section 5.01 consistent with the manner in
which they apply similar provisions and calculate similar amounts
payable to them by other borrowers having in their credit
agreements provisions comparable to this Section.
SECTION 5.02. Basis Unavailable or Inadequate for LIBOR Rate.
If, on or before any date when a LIBOR Rate is to be
determined, the Agent reasonably determines that the basis for
determining the applicable rate is not available or any Lender
reasonably determines that the resulting rate does not accurately
reflect the cost to that Lender of making or converting Loans at
that rate for the applicable Interest Period, then the Agent
shall promptly notify the Borrower and the Lenders of that
determination (which is conclusive and binding on the Borrower
absent manifest error) and the applicable Loans shall bear
interest at the sum of the Base Rate plus the Applicable Margin.
Until the Agent notifies the Borrower that those circumstances no
longer exist, the Lenders' commitments under this Agreement to
make, or to convert to, LIBOR Rate Loans, as the case may be, are
suspended.
SECTION 5.03. Illegality.
Notwithstanding any other provision of this Agreement, in
the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or
maintain LIBOR Loans hereunder, then such Lender shall promptly
notify the Borrower thereof and such Lender's obligation to make
LIBOR Loans shall be suspended until such time as such Lender may
again make and maintain LIBOR Loans (in which case the provisions
of Section 5.04 shall be applicable).
SECTION 5.04. Base Rate Loans
If the obligation of any Lender to make LIBOR Loans shall be
suspended pursuant to Sections 5.01, 5.02 or 5.03 ("Affected
Loans"), all Affected Loans that would otherwise be made by such
Lender shall be made instead as Base Rate Loans (and, if an event
referred to in Section 5.01(b) or Section 5.03 has occurred and
such Lender so requests by notice to the Borrower, all Affected
Loans of such Lender then outstanding shall be automatically
converted into Base Rate Loans on the date specified by such
Lender in such notice) and, to the extent that Affected Loans are
so made as (or converted into) Base Rate Loans, all payments of
principal that would otherwise be applied to such Lender's
Affected Loans shall be applied instead to its Base Rate Loans.
SECTION 5.05. Compensation.
The Borrower shall pay to each Lender within 30 days of
receipt of written request of such Lender (which request shall
set forth, in reasonable detail, the basis for requesting such
amounts and which shall be conclusive and binding for all
purposes provided that such determinations are made on a
reasonable basis), such amounts as shall compensate it for any
loss, cost, expense or liability which such Lender reasonably
determines are attributable to:
(i) any payment, prepayment or conversion of a LIBOR Loan
properly made by such Lender or the Borrower for any reason
(including, without limitation, the acceleration of the Loans
pursuant to Section 10.01) on a date other than the last day of
the Interest Period for such Loan; or
(ii) any failure by the Borrower for any reason (including but
not limited to, the failure of any of the conditions precedent
specified in Article VI to be satisfied) to borrow, continue or
convert a LIBOR Loan from such Lender on the date for such
borrowing, continuation or conversion specified in the relevant
notice given pursuant to Section 2.02(c).
Without limiting the effect of the preceding sentence, such
compensation shall include an amount equal to the excess, if any,
of (A) the amount of interest which would have accrued on the
principal amount so paid, prepaid or converted or not borrowed
for the period from the date of such payment, prepayment or
conversion or failure to borrow to the last day of the Interest
Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the
date specified for such borrowing) at the applicable rate of
interest for such Loan provided for herein over (B) the interest
component of the amount such Lender would have bid in the London
interbank market for Dollar deposits of leading banks in amounts
comparable to such principal amount and with maturities
comparable to such period (as reasonably determined by such
Lender).
SECTION 5.06. Replacement Lenders.
(a) If any Lender has notified the Borrower and the Agent of its
incurring additional costs under Section 5.01 or has required the
Borrower to make payments for Taxes under Section 4.06, then the
Borrower may, unless such Lender has notified the Borrower and
the Agent that the circumstances giving rise to such notice no
longer apply, terminate, in whole but not in part, the Commitment
of any Lender (other than the Agent) (the "Terminated Lender") at
any time upon five Business Days' prior written notice to the
Terminated Lender and the Agent (such notice referred to herein
as a "Notice of Termination").
(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 Agreement
(the Lenders or other banking institutions that agree to accept
in whole or in part the Commitment of the Terminated Lender being
referred to herein as the "Replacement Lenders"), such that the
aggregate increased and/or accepted Commitments of the
Replacement Lenders under clauses (i) and (ii) above equal the
Commitment of the Terminated Lender.
(c) The Notice of Termination shall include the name of the
Terminated Lender, the date the termination will occur (the
"Lender Termination Date"), and the Replacement Lender or
Replacement Lenders to which the Terminated Lender will assign
its Commitment and, if there will be more than one Replacement
Lender, the portion of the Terminated Lender's Commitment to be
assigned to each Replacement Lender.
(d) On the Lender Termination Date, (i) the Terminated Lender
shall by execution and delivery of an Assignment Agreement assign
its Commitment to the Replacement Lender or Replacement Lenders
(pro rata, if there is more than one Replacement Lender, in
proportion to the portion of the Terminated Lender's Commitment
to be assigned to each Replacement Lender) indicated in the
Notice of Termination and shall assign to the Replacement Lender
or Replacement Lenders each of its Loans (if any) then
outstanding pro rata as aforesaid) and (ii) the Replacement
Lender or Replacement Lenders will thereupon (pro rata as
aforesaid) succeed to and be substituted in all respects for the
Terminated Lender with like effect as if becoming a Lender
pursuant to the terms of Section 12.06(b), and the Terminated
Lender will have the rights and benefits of an assignor under
Section 12.06(b). To the extent not in conflict, the terms of
Section 12.06(b) shall supplement the provisions of this
Section 5.06(d). For each assignment made under this
Section 5.06, the Replacement Lender shall pay to the Agent the
processing fee provided for in Section 12.06(b). The Borrower
will be responsible for the payment of any breakage costs
associated with termination and Replacement Lenders, as set forth
in Section 5.05.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01. Initial Funding.
The obligation of the Lenders to make the Initial Funding is
subject to, on or before the date of the Initial Funding, (i) the
Agent's having completed a review satisfactory to it of the
environmental files of the Borrower and the Restricted
Subsidiaries, and (ii) the receipt by the Lenders and Agent of
all fees due and payable as of such date and the following
documents, each of which shall be satisfactory to the Agent in
form and substance:
(a) A certificate of the Secretary or an Assistant Secretary of
the General Partner and each Guarantor setting forth
(i) resolutions of its board of directors with respect to the
authorization of the Borrower and each Guarantor to execute and
deliver the Loan Documents to which such Person is a party and to
enter into the transactions contemplated in those documents,
(ii) the officers of the General Partner and each Guarantor
(y) who are authorized to sign the Loan Documents to which such
Person is a party and (z) who will, until replaced by another
officer or officers duly authorized for that purpose, act as its
representatives for the purposes of signing documents and giving
notices and other communications in connection with this
Agreement and the transactions contemplated hereby,
(iii) specimen signatures of the authorized officers of the
Borrower and each Guarantor, (iv) the articles or certificate of
incorporation and bylaws or the partnership agreement, as
applicable, of the General Partner and each Guarantor and the
Borrower Partnership Agreement, each certified as being true and
complete. The Agent and the Lenders may conclusively rely on
such certificates until the Agent receives notice in writing from
the Borrower or such Guarantor, as the case may be, to the
contrary, and (iv) copies of all governmental approvals required
in connection with the execution, delivery and performance of the
Loan Documents by each party thereto, other than the Agent and
the Lenders.
(b) Certificates of the appropriate state agencies with respect
to the existence, qualification and good standing, as
appropriate, of the Borrower, each Guarantor and the General
Partner.
(c) A Compliance Certificate for the fiscal quarter ending June
30, 2003 duly and properly executed by a Responsible Officer and
dated as of the date of the Initial Funding.
(d) A promissory note payable to the order of each Lender that
requests one pursuant to Section 2.07.
(e) The Loan Documents, duly completed and executed in
sufficient number of counterparts as reasonably requested by the
Agent.
(f) Opinions of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Borrower and the Guarantors and certain local counsel to the
Borrower and the Guarantors, each in form and substance
satisfactory to the Agent, as to such matters incident to the
transactions herein contemplated as the Agent may reasonably
request.
(g) A certificate of insurance coverage of the Borrower
evidencing that the Borrower is carrying insurance in accordance
with Section 7.19.
(h) Evidence that, upon the application of the proceeds of the
Initial Funding, the commitments of the lenders under the
Existing Credit Agreement shall be terminated and the obligations
of the Borrower and the Restricted Subsidiaries under the
Existing Credit Agreement shall be paid in full.
(i) 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.
The obligation of the Lenders to make Loans to the Borrower
upon the occasion of each borrowing hereunder (including the
Initial Funding) is subject to the further conditions precedent
that, as of the date of such Loans and after giving effect
thereto:
(a) no Default shall have occurred and be continuing; and
(b) the representations and warranties made by the Borrower in
Article VII and by the Borrower and each Guarantor in any other
Loan Document shall be true on and as of the date of the making
of such Loans 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 by the Borrower hereunder shall
constitute a certification by the Borrower to the effect set
forth in Section 6.02(b) (both as of the date of such notice and
immediately following such borrowing).
SECTION 6.03. Conditions Precedent to Each Extension of
Termination Date.
In the event that the Borrower shall request an extension of
the Termination Date pursuant to Section 2.04, such extension
shall take effect only upon the satisfaction of the following
conditions precedent:
(a) the Borrower shall have paid all fees payable hereunder, to
the extent then due and payable;
(b) the Agent shall have received such other documents and legal
opinions in respect of any aspect or consequence of the
transactions contemplated by Section 2.04 as the Agent shall
reasonably request, including, without limitation, copies of the
resolutions, in form and substance satisfactory to the Agent, of
the directors of the Borrower's general partner authorizing the
extension of the Termination Date; and
(c) the following statements shall be true on and as of the last
day of the then-current Termination Date:
(i) The representations and warranties contained in Article VII
are correct in all material respects on and as of such date as
though made on and as of such date (unless they speak to a
specified date or are based on facts that have changed by
transactions contemplated or expressly permitted by this
Agreement); and
(ii) No event has occurred and is continuing, or would result
from such extension of the Termination Date, that constitutes an
Event of Default or a Default.
SECTION 6.04. 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 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 6.05. No Waiver.
No waiver of any condition precedent shall preclude the
Agent or the Lenders from requiring such condition to be met
prior to making any subsequent Loan or preclude the Lenders from
thereafter declaring that the failure of the Borrower to satisfy
such condition precedent constitutes a Default.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Agent and the
Lenders that (each representation and warranty herein is given as
of the date hereof and shall be deemed repeated and reaffirmed on
the dates of each borrowing):
SECTION 7.01. Existence.
Each of the Borrower, the General Partner, each Guarantor,
and each Restricted Subsidiary: (i) is duly organized, legally
existing and in good standing under the laws of the jurisdiction
of its formation; (ii) has all requisite power, and has all
material governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business
as now being or as proposed to be conducted and, with respect to
Restricted Subsidiaries, where a failure to have such items would
have a Material Adverse Effect; and (iii) is qualified to do
business in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where
failure so to qualify would have a Material Adverse Effect.
SECTION 7.02. Financial Condition.
The audited consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as at December 31, 2002 and the
related consolidated statement of income, equity and cash flow of
the Borrower and its Consolidated Subsidiaries for the fiscal
year ended on said date, with the opinion thereon of Deloitte &
Touche LLP heretofore furnished to each of the Lenders and the
unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at June 30, 2003 and the related
consolidated statements of income, equity and cash flow of the
Borrower and its Consolidated Subsidiaries for the six month
period ended on such date heretofore furnished to the Agent, are
complete and correct and fairly present in all material respects
the consolidated financial condition of the Borrower and its
Consolidated Subsidiaries as at said dates and the results of its
operations for the fiscal year and the six month period ending on
said dates, all in accordance with GAAP, as applied on a
consistent basis (subject, in the case of the interim financial
statements, to normal year-end adjustments and, the lack of
footnotes). Neither the Borrower nor any Subsidiary of the
Borrower has on the date hereof any material Debt, contingent
liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or
provided for in the Financial Statements or in Schedule 7.02.
Since December 31, 2002, there has been no change or event having
a Material Adverse Effect that is continuing. Since the date of
the Financial Statements, neither the business nor the Properties
(taken as a whole) of the Borrower, any Guarantor or any
Restricted Subsidiary have been materially and adversely affected
as a result of any fire, explosion, earthquake, flood, drought,
windstorm, accident, strike or other labor disturbance, embargo,
requisition or taking of Property or cancellation of contracts,
permits or concessions by any Governmental Authority, riot,
activities of armed forces or acts of God or of any public enemy
which is continuing.
SECTION 7.03. Litigation.
Except as disclosed to the Lenders in Schedule 7.03 hereto
or as disclosed in the Borrower's Form 10-K for the year ended
December 31, 2002 filed with the SEC (a true and complete copy of
which has been delivered to the Agent), as of the date hereof
there is no litigation, legal, administrative or arbitral
proceeding, investigation or other action of any nature pending
or, to the knowledge of the Borrower threatened against or
affecting the Borrower, the General Partner or any Restricted
Subsidiary that involves the possibility of any judgment or
liability against the Borrower, the Guarantor, the General
Partner or any Restricted Subsidiary not fully covered by
insurance (except for normal deductibles), and which, if
determined adversely, would have a Material Adverse Effect.
SECTION 7.04. No Breach.
Neither the execution and delivery of the Loan Documents,
nor compliance with the terms and provisions hereof will conflict
with or result in a breach of, or require any consent which has
not been obtained as of the date hereof under, the respective
partnership agreements or other organizational documents of the
Borrower, the General Partner or any Restricted Subsidiary, or
any Governmental Requirement or any agreement or instrument to
which the Borrower, the Guarantor, the General Partner or any
Restricted Subsidiary is a party or by which it is bound or to
which it or its Properties are subject, or constitute a default
under any such agreement or instrument, or result in the creation
or imposition of any Lien upon any of the revenues or assets of
the Borrower, the Guarantor, the General Partner or any
Restricted Subsidiary pursuant to the terms of any such agreement
or instrument, other than the Liens created by the Loan
Documents.
SECTION 7.05. Authority.
Each of the Borrower, each Guarantor, the General Partner
and each Restricted Subsidiary has all necessary power and
authority to execute, deliver and perform its obligations under
the Loan Documents to which it is a party; and the execution,
delivery and performance by each of the Borrower, each Guarantor,
the General Partner and each Restricted Subsidiary of the Loan
Documents to which it is a party, have been duly authorized by
all necessary action on its part; and each Loan Document to which
the Borrower, any Guarantor, the General Partner or any
Restricted Subsidiary is a party, constitutes the legal, valid
and binding obligation of the Borrower, such Guarantor, the
General Partner or such Restricted Subsidiary, as the case may
be, and is enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws of general
application relating to or affecting creditors' rights and
general principles of equity.
SECTION 7.06. Approvals.
No authorizations, approvals or consents of, and no filings
or registrations with, any Governmental Authority are necessary
for the execution, delivery or performance by the Borrower, the
Guarantors, the General Partner or the Restricted Subsidiaries of
the Loan Documents or for the validity or enforceability thereof,
except for the order of the Pennsylvania Public Utility
Commission, in Docket No. S-00030957, registering an Abbreviated
Securities Certificate authorizing Buckeye Pipe Line Company,
L.P. to enter into the Guaranty, which has been duly filed or
obtained, and is final and in full force and effect.
SECTION 7.07. Use of Loans.
The proceeds of the Loans shall be used to pay-off certain
outstanding Debt and for working capital, capital expenditures,
acquisitions and general partnership purposes. The Borrower is
not engaged principally, or as one of its important activities,
in the business of extending credit for the purpose, whether
immediate, incidental or ultimate, of buying or carrying margin
stock (within the meaning of Regulation T, U or X of the Board of
Governors of the Federal Reserve System) and no part of the
proceeds of any Loan hereunder will be used to buy or carry any
margin stock.
SECTION 7.08. ERISA.
(a) The Borrower, each Subsidiary of the Borrower and each ERISA
Affiliate have complied in all material respects with ERISA and,
where applicable, the Code regarding each Plan.
(b) Each Plan is, and has been, maintained in substantial
compliance with ERISA and, where applicable, the Code.
(c) To the knowledge of the Borrower, no act, omission or
transaction has occurred that could result in imposition on the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
(whether directly or indirectly) of (i) either a civil penalty
assessed pursuant to Section 502(c), (i) or (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
December 31, 1985, other than the Pension Plan for Buckeye Pipe
Line Company, which was terminated on December 31, 1985. Upon
the termination of the Pension Plan for Buckeye Pipe Line
Company, distributions were made or annuities purchased for each
participant under such plan and Borrower received a favorable
determination letter from the Internal Revenue Service with
respect to the termination. No material liability to the PBGC
(other than for the payment of current premiums which are not
past due) by the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate has been or is expected by the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate to be incurred
with respect to any Plan. No ERISA Event with respect to any
Plan has occurred or is reasonably expected to be incurred.
(e) Full payment when due has been made of all amounts which the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
is required under the terms of each Plan or applicable law to
have paid as contributions to such Plan, and no accumulated
funding deficiency (as defined in section 302 of ERISA and
section 412 of the Code), whether or not waived, exists with
respect to any Plan.
(f) The actuarial present value of the benefit liabilities under
all Plans that are subject to Title IV of ERISA do not, as of the
end of the Borrower's most recently ended fiscal year, exceed the
current value of the assets (computed on a plan termination basis
in accordance with Title IV of ERISA) of such Plans allocable to
such benefit liabilities by more than $2,000,000 in the
aggregate. The term "actuarial present value of the benefit
liabilities" shall have the meaning specified in section 4041 of
ERISA.
(g) None of the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate sponsors, maintains, or contributes to an
employee welfare benefit plan, as defined in section 3(l) of
ERISA, including, without limitation, any such plan maintained to
provide benefits to former employees of such entities, that may
not be terminated by the Borrower, such Subsidiary or such ERISA
Affiliate in its sole discretion at any time without any material
liability.
(h) None of the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate sponsors, maintains or contributes to, or has at
any time in the preceding six calendar years, sponsored,
maintained or contributed to, any Multiemployer Plan.
(i) Neither the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate is required to provide security under
section 401(a)(29) of the Code due to a Plan amendment that
results in an increase in current liability for the Plan.
SECTION 7.09. Taxes.
Each of the Borrower, the Guarantors, the General Partner
and the Restricted Subsidiaries has filed all United States
Federal income tax returns and all other tax returns which are
required to be filed by them and have paid all material taxes due
pursuant to such returns or pursuant to any assessment received
by the Borrower, any Guarantor, the General Partner or any
Restricted Subsidiary. The charges, accruals and reserves on the
books of the Borrower, the Guarantors, the General Partner and
the Restricted Subsidiaries in respect of taxes and other
governmental charges are, in the opinion of the Borrower,
adequate. No tax lien has been filed and, to the knowledge of
the Borrower, no claim is being asserted with respect to any such
tax, fee or other charge.
SECTION 7.10. Titles, etc.
(a) Except as set out in Schedule 7.10, each of the Borrower,
the Guarantors and the Restricted Subsidiaries has good and
defensible title to its material (individually or in the
aggregate) Properties, free and clear of all Liens, except Liens
permitted by Section 9.02.
(b) All leases and agreements necessary for the conduct of the
business of the Borrower, the Guarantors and the Restricted
Subsidiaries are valid and subsisting, in full force and effect,
except as could not reasonably be expected to have a Material
Adverse Effect, and there exists no default or event or
circumstance which with the giving of notice or the passage of
time or both would give rise to a default under any such lease or
leases, which would affect in any material respect the conduct of
the business of the Borrower, the Guarantors or the Restricted
Subsidiaries.
(c) The rights, Properties and other assets presently owned,
leased or licensed by the Borrower, the Guarantors and the
Restricted Subsidiaries including, without limitation, all
easements and rights of way, include all rights, Properties and
other assets necessary to permit the Borrower, each Guarantor and
each Restricted Subsidiary to conduct its business in all
material respects in the same manner as its business has been
conducted prior to the date hereof.
(d) All of the assets and Properties of the Borrower, the
Guarantors and the Restricted Subsidiaries that are reasonably
necessary for the operation of their business are in all material
respects in good working condition and are maintained in
accordance with prudent business standards.
SECTION 7.11. No Material Misstatements.
No written information, statement, exhibit, certificate,
document or report furnished to the Agent and the Lenders (or any
of them) by the Borrower, any Guarantor or any Restricted
Subsidiary in connection with the negotiation of this Agreement
contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statement
contained therein not materially misleading in the light of the
circumstances in which made. There is no fact peculiar to the
Borrower or any Restricted Subsidiary that has a Material Adverse
Effect or in the future is reasonably likely to have (so far as
the Borrower can now foresee) a Material Adverse Effect and that
has not been set forth in this Agreement or the other documents,
certificates and statements furnished to the Agent by or on
behalf of the Borrower or any Restricted Subsidiary prior to, as
of, the date hereof in connection with the transactions
contemplated hereby.
SECTION 7.12. Investment Company Act.
None of the Borrower, any Guarantor or any Restricted
Subsidiary is an "investment company" or a company "controlled"
by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 7.13. Public Utility Holding Company Act.
None of the Borrower, any Guarantor or any Restricted
Subsidiary is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company," or a "public
utility" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
SECTION 7.14. Subsidiaries.
Except as set forth on Schedule 7.14 or otherwise as
disclosed to the Agent in writing, the Borrower does not have any
Subsidiaries.
SECTION 7.15. Location of Business and Offices.
The Borrower's principal place of business and chief
executive office is located at the address stated on the
signature page of this Agreement or as otherwise disclosed in
writing to the Agent. The principal place of business and chief
executive office of each Restricted Subsidiary are located at the
addresses stated on Schedule 7.14 or as otherwise disclosed in
writing to the Agent.
SECTION 7.16. Defaults.
None of the Borrower, any Guarantor or any Restricted
Subsidiary is in default nor has any event or circumstance
occurred which, but for the expiration of any applicable grace
period or the giving of notice, or both, would constitute a
default under any material agreement or instrument to which it is
a party or by which it is bound which default would have a
Material Adverse Effect. No Default hereunder has occurred and
is continuing.
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, 2002 filed by
the Borrower with the SEC, or (iii) as would not have a Material
Adverse Effect (or with respect to (c), (d) and (e) below, where
the failure to take such actions would not have a Material
Adverse Effect):
(a) Neither any Property of the Borrower, any Guarantor or any
Restricted Subsidiary nor the operations conducted thereon
violate any order or requirement of any court or Governmental
Authority or any Environmental Laws;
(b) Without limitation of clause (a) above, no Property of the
Borrower, any Guarantor or any Restricted Subsidiary nor the
operations currently conducted thereon or, to the best knowledge
of the Borrower, by any prior owner or operator of such Property
or operation, are in violation of or subject to any existing,
pending or threatened action, suit, investigation, inquiry or
proceeding by or before any court or Governmental Authority or to
any remedial obligations under Environmental Laws;
(c) All notices, permits, licenses or similar authorizations, if
any, required to be obtained or filed in connection with the
operation or use of any and all Property of the Borrower, each
Guarantor and each Restricted Subsidiary, including without
limitation past or present treatment, storage, disposal or
release of a hazardous substance, hazardous waste or solid waste
into the environment, have been duly obtained or filed, and each
of the Borrower, the Guarantors and the Restricted Subsidiaries
are in compliance with the terms and conditions of all such
notices, permits, licenses and similar authorizations;
(d) All hazardous substances, hazardous waste, solid waste, and
oil and gas exploration and production wastes, if any, generated
at any and all Property of the Borrower, any Guarantor or any
Restricted Subsidiary have in the past been transported, treated
and disposed of in accordance with Environmental Laws and so as
not to pose an endangerment to public health or welfare or the
environment, and, to the best knowledge of the Borrower, all such
transport carriers and treatment and disposal facilities have
been and are operating in compliance with Environmental Laws and
so as not to pose an imminent and substantial endangerment to
public health or welfare or the environment, and are not the
subject of any existing, pending or threatened action,
investigation or inquiry by any Governmental Authority in
connection with any Environmental Laws;
(e) The Borrower, the Guarantors and the Restricted Subsidiaries
have taken all steps reasonably necessary to determine and have
determined that no hazardous substances, hazardous waste, solid
waste, or oil and gas exploration and production wastes, have
been disposed of or otherwise released and there has been no
threatened release of any hazardous substances on or to any
Property of the Borrower, any Guarantor, or any Restricted
Subsidiary;
(f) To the extent applicable, all Property of the Borrower, each
Guarantor and each Restricted Subsidiary currently satisfies all
design, operation, and equipment requirements imposed by the
Environmental Laws or scheduled as of the date hereof to be
imposed by the Environmental Laws during the term of this
Agreement, and the Borrower does not have any reason to believe
that such Property, to the extent subject to the Environmental
Laws, will not be able to maintain compliance with the
Environmental Laws requirements during the term of this
Agreement; and
(g) None of the Borrower, any Guarantor or any Restricted
Subsidiary has any known contingent liability in connection with
any release or threatened release of any oil, hazardous
substance, hazardous waste or solid waste into the environment.
SECTION 7.18. Compliance with the Law.
None of the Borrower, any Guarantor or any Restricted
Subsidiary has violated any Governmental Requirement or failed to
obtain any license, permit, franchise or other governmental
authorization necessary for the ownership of any of its
Properties or the conduct of its business, which violation or
failure would have (in the event such violation or failure were
asserted by any Person through appropriate action) a Material
Adverse Effect.
SECTION 7.19. Insurance.
The Borrower and each of the Restricted Subsidiaries
maintains, with financially sound and reputable insurers,
insurance with respect to their respective Properties and
businesses against such casualties and contingencies, of such
types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are
maintained with respect thereto) as is customary in the case of
entities of established reputations engaged in the same or a
similar business and similarly situated. All such policies are
in full force and effect, all premiums with respect thereto
covering all periods up to and including the date of the closing
have been paid, and no notice of cancellation or termination has
been received with respect to any such policy. Such policies are
sufficient for compliance with all requirements of law and of all
agreements to which the Borrower, any Guarantor, or any
Restricted Subsidiary is a party; are valid, outstanding and
enforceable policies; provide adequate insurance coverage in at
least such amounts and against at least such risks (but including
in any event public liability) as are usually insured against in
the same general area by companies engaged in the same or a
similar business for the assets and operations of the Borrower,
each Guarantor and each Restricted Subsidiary.
SECTION 7.20. Material Agreements.
The Borrower has heretofore delivered to the Agent a
complete and correct copy of the Indenture and the Note
Agreements relating to the Senior Notes, each as amended and in
effect on the date hereof.
SECTION 7.21. Partnership Agreement.
The Borrower Partnership Agreement has not been terminated,
and is in full force and effect as of the date hereof and no
default has occurred and is continuing thereunder which would
have a Material Adverse Effect.
SECTION 7.22. Ownership of Parties.
(a) The Borrower is a limited partnership formed under the laws
of the State of Delaware and owned 1% (general partnership
interest) by the General Partner and 99% (limited partnership
interests) by public holders of limited partnership units.
(b) The form of organization and equity ownership of each
Restricted Subsidiary and each Unrestricted Subsidiary as of the
date hereof is set forth on Schedule 7.22.
(c) BMC owns 100% of the capital stock of the General Partner as
of the date hereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees 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:
SECTION 8.01. Reporting Requirements.
The Borrower shall deliver, or shall cause to be delivered,
to the Agent with sufficient copies of each for the Lenders:
(a) Annual Financial Statements. As soon as available and in
any event within 120 days after the end of each fiscal year of
the Borrower, the audited consolidated and, within 120 days after
the end of each fiscal year of the Borrower, unaudited
consolidating statements of income, equity, changes in financial
position and cash flow of the Borrower and its Consolidated
Subsidiaries for such fiscal year, and the related consolidated
and consolidating balance sheets of the Borrower and its
Consolidated Subsidiaries as at the end of such fiscal year, and
setting forth in each case in comparative form the corresponding
figures for the preceding fiscal year, and, in the case of the
audited statements, accompanied by the related opinion of
independent public accountants of recognized national standing
acceptable to the Agent which opinion shall state that said
financial statements fairly present in all material respects the
consolidated and consolidating financial condition and results of
operations of the Borrower and its Consolidated Subsidiaries as
at the end of, and for, such fiscal year and that such financial
statements have been prepared in accordance with GAAP, except for
such changes in such principles with which the independent public
accountants shall have concurred and such opinion shall not
contain a "going concern" or like qualification or exception, and
a certificate of such accountants stating that, in making the
examination necessary for their opinion, they obtained no
knowledge, except as specifically stated, of any Default.
(b) Quarterly Financial Statements. As soon as available and in
any event within 60 days after the end of each of the first three
fiscal quarterly periods of each fiscal year of the Borrower,
consolidated and consolidating statements of income, equity,
changes in financial position and cash flow of the Borrower and
its Consolidated Subsidiaries for such period and for the period
from the beginning of the respective fiscal year to the end of
such period, and the related consolidated and consolidating
balance sheets as at the end of such period, and setting forth in
each case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year, accompanied by
the certificate of a Responsible Officer of BMC, which
certificate shall state that said financial statements fairly
present in all material respects the consolidated and
consolidating financial condition and results of operations of
the Borrower and its Consolidated Subsidiaries in accordance with
GAAP, as at the end of, and for, such period (subject to normal
year-end audit adjustments and the lack of footnotes).
(c) Change in Reference Rating. Promptly and in any event
within seven Business Days after ▇▇▇▇▇'▇ or S&P has changed any
relevant Reference Rating, notice of such change.
(d) Notice of Default, Etc. Promptly after a Responsible
officer of the Borrower knows that any Default or any Material
Adverse Effect has occurred, a notice of such Default or Material
Adverse Effect, describing the same in reasonable detail and the
action the Borrower proposes to take with respect thereto.
(e) Other Accounting Reports. Promptly upon receipt thereof, a
copy of each other report or letter submitted to the Borrower or
any Subsidiary of the Borrower by independent accountants in
connection with any annual, interim or special audit made by them
of the books of the Borrower and its Subsidiaries, and a copy of
any response by any Guarantor or any Subsidiary of the Borrower,
to such letter or report.
(f) Governmental Authorities. Promptly upon receipt thereof, a
copy of any notice from any Governmental Authority (except where
involving a routine or ordinary course matter, which in any case
is immaterial), and promptly upon a Responsible Officer of the
Borrower's knowledge thereof, notice of any material dispute with
any Governmental Authority involving the Borrower, any Guarantor
or any Restricted Subsidiary.
(g) Notices Under Other Loan Agreements. Promptly after the
furnishing thereof, copies of any statement, report or notice
furnished by the Borrower to any Person pursuant to the terms of
any indenture, loan or credit or other similar agreement, other
than this Agreement and not otherwise required to be furnished to
the Lenders pursuant to any other provision of this Section 8.01.
(h) Other Matters. From time to time such other information
regarding the business, affairs or financial condition of the
Borrower, any Guarantor, any Restricted Subsidiary or any
Subsidiary of the Borrower (including, without limitation, any
Plan or Multiemployer Plan and any reports or other information
required to be filed under ERISA) as the Agent may reasonably
request.
The Borrower will each furnish to the Agent, at the time each set
of financial statements is furnished to the Agent pursuant to
paragraph (a) or (b) above, a Compliance Certificate executed by
a Responsible Officer of the General Partner and BMC,
respectively, (i) certifying as to the matters set forth therein
and stating that no Default has occurred and is continuing (or,
if any Default has occurred and is continuing, describing the
same in reasonable detail), and (ii) setting forth in reasonable
detail the computations necessary to determine whether the
Borrower is in compliance with Sections 9.12 and 9.13 as of the
end of the respective fiscal quarter or fiscal year.
SECTION 8.02. Litigation.
The Borrower shall promptly give, and shall cause any
Restricted Subsidiary to give to the Agent notice of: (i) all
legal or arbitral proceedings, and of all proceedings before any
Governmental Authority affecting the Borrower, the Guarantor or
any Restricted Subsidiary, except proceedings which, if adversely
determined, would not have a Material Adverse Effect, and
(ii) any litigation or proceeding against or adversely affecting
the Borrower, the Guarantor or any Restricted Subsidiary in which
the amount involved exceeds $5,000,000 and is not covered in full
by insurance (subject to normal and customary deductibles and for
which the insurer has not assumed the defense), or in which
injunctive or similar relief is sought.
The Borrower will promptly notify the Agent and each of the
Lenders of any claim, judgment, Lien or other encumbrance
affecting any Property of the Borrower, the Guarantor or any
Restricted Subsidiary if the value of the claim, judgment, Lien,
or other encumbrance affecting such Property shall exceed
$5,000,000.
SECTION 8.03. Maintenance, Etc.
(a) Generally. The Borrower shall: preserve and maintain its
partnership or corporate existence and all of its material
rights, privileges and franchises and shall cause the Restricted
Subsidiaries to do so; keep books of record and account in which
full, true and correct entries will be made of all dealings or
transactions in relation to its business and activities; comply
with all Governmental Requirements if failure to comply with such
requirements will have a Material Adverse Effect; pay and
discharge all taxes, assessments and governmental charges or
levies imposed on it or on its income or profits or on any of its
Property prior to the date on which penalties attach thereto,
except for any such tax, assessment, charge or levy the payment
of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being
maintained; upon reasonable notice, permit representatives of the
Agent or any Lender, during normal business hours, to examine,
copy and make extracts from its books and records, to inspect its
Properties, and to discuss its business and affairs with its
officers, all to-the extent reasonably requested by such Lender
or the Agent (as the case may be); and keep, or cause to be kept,
insured by financially sound and reputable insurers all Property
of a character usually insured by Persons engaged in the same or
similar business similarly situated against loss or damage of the
kinds and in the amounts customarily insured against by such
Persons and carry such other insurance as is usually carried by
such Persons including, without limitation, environmental risk
insurance to the extent reasonably available.
(b) Proof of Insurance. Contemporaneously with the delivery of
the financial statements required by Section 8.01(a) to be
delivered for each year, the Borrower will furnish or cause to be
furnished, and will cause to be furnished for the Restricted
Subsidiaries, to the Agent certificates of insurance coverage
from an insurer in form and substance reasonably satisfactory to
the Agent and, if requested, will furnish the Agent copies of the
applicable policies.
(c) Operation of Properties. The Borrower will and will cause
each Restricted Subsidiary to, operate its Properties or cause
such Properties to be operated in a careful and efficient manner
in accordance with the practices of the industry and in
compliance with all applicable contracts and agreements and in
compliance in all material respects with all Governmental
Requirements.
SECTION 8.04. Environmental Matters.
(a) Establishment of Procedures. The Borrower will and will
cause each Restricted Subsidiary to, establish and implement such
procedures as may be reasonably necessary to determine and assure
that any failure of the following does not have a Material
Adverse Effect: (i) all Property of the Borrower, the Guarantors
and the Restricted Subsidiaries, and the operations conducted
thereon and other activities of the Borrower, the Guarantors and
the Restricted Subsidiaries, are in compliance with and do not
violate the requirements of any Environmental Laws, (ii) no oil,
hazardous substances or solid wastes are disposed of or otherwise
released on or to any Property owned by the Borrower, any
Guarantor or any Restricted Subsidiary except in compliance with
Environmental Laws, (iii) no hazardous substance will be released
on or to any such Property in a quantity equal to or exceeding
that quantity which requires reporting pursuant to Section 103 of
CERCLA, and (iv) no oil, oil and gas exploration and production
wastes or hazardous substance is released on or to any such
Property so as to pose an imminent and substantial endangerment
to public health or welfare or the environment.
(b) Notice of Action. The Borrower will, and will cause each
Restricted Subsidiary to, promptly notify the Agent and the
Lenders in writing of any threatened action or investigation by
any Governmental Authority of which a Responsible Officer of the
Borrower, any Guarantor or any Restricted Subsidiary has
knowledge in connection with any Environmental Laws, excluding
routine testing and corrective action.
(c) Future Acquisitions. The Borrower will, and will cause each
Restricted Subsidiary to, provide environmental audits and tests
in accordance with American Society for Testing and Materials
standards as reasonably requested by the Agent or any Lender
through the Agent (or as otherwise required to be obtained by the
Agent or the Lenders by any Governmental Authority) in connection
with any future acquisitions of any material Properties by the
Borrower, any Guarantor or any Restricted Subsidiary.
SECTION 8.05. Further Assurances.
The Borrower will promptly cure any defects in the execution
and delivery of the other Loan Documents. The Borrower, at its
expense, will promptly execute and deliver (or cause to be
promptly executed and delivered) to the Agent upon reasonable
request all such other documents, agreements and instruments to
comply with or accomplish the covenants and agreements of the
Borrower in the Loan Documents, or to, correct any omissions in
the Loan Documents, or to state more fully the obligations set
out herein or in any of the other Loan Documents, or to make any
recordings, to file any notices or obtain any consents, all as
may be necessary or appropriate in connection therewith.
SECTION 8.06. Performance of Obligations.
The Borrower will do and perform every act and discharge all
of the obligations to be performed and discharged by it under
this Agreement, at the time or times and in the manner specified.
SECTION 8.07. 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) as
soon as possible and in any event within 30 days after the
occurrence of any ERISA Event in clause (i) of the definition of
ERISA Event or any "prohibited transaction," as described in
section 406 of ERISA or in section 4975 of the Code, and in any
event within 10 days after any other ERISA Event, in connection
with any Plan or any trust created thereunder, a written notice
signed by a Responsible Officer specifying the nature thereof,
what action the Borrower or the ERISA Affiliate is taking or
proposes to take with respect thereto, and, when known, any
action taken or proposed by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto, and
(iii) immediately upon receipt thereof, copies of any notice of
the PBGC's intention to terminate, or to have a trustee appointed
to administer, any Plan. With respect to each Plan (other than a
Multiemployer Plan), the Borrower will, and will cause each ERISA
Affiliate to, (i) satisfy in full and in a timely manner, without
incurring any late payment or underpayment charge or penalty and
without giving rise to any lien, all of the contribution and
funding requirements of section 412 of the Code (determined
without regard to subsections (d), (e), (f) and (k) thereof) and
of section 302 of ERISA (determined without regard to
sections 303, 304 and 306 of ERISA), and (ii) pay, or cause to be
paid, to the PBGC in a timely manner, without incurring any late
payment or underpayment charge or penalty, all premiums required
pursuant to sections 4006 and 4007 of ERISA.
ARTICLE IX
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as any of
the Commitments are in effect and until payment in full of Loans
hereunder, all interest thereon and all other amounts payable by
the Borrower hereunder and the Guarantors under the Guaranties,
without the prior written consent of the Required Lenders:
SECTION 9.01. Debt.
The Borrower will not and will not cause or permit any
Guarantor or any Restricted Subsidiary to incur, create, assume
or permit to exist any Debt, except:
(a) the Debt hereunder or any guaranty of or suretyship
arrangement for the Debt hereunder;
(b) Debt of the Borrower and the Restricted Subsidiaries
existing on the date hereof that is reflected in the Financial
Statements or is disclosed in Schedule 9.01, and any renewals or
extensions (but not increases) thereof;
(c) accounts payable (for the deferred purchase price of
Property or services) from time to time incurred in the ordinary
course of business which, if material and greater than 90 days
past the invoice or billing date, are being contested in good
faith by appropriate proceedings if reserves adequate under GAAP
shall have been established therefor;
(d) Debt of the Borrower and the Restricted Subsidiaries
requiring no scheduled principal payments (whether at stated
maturity or by virtue of scheduled amortization, required
prepayment or redemption) due until at least one year after the
Termination Date and issued under the Indenture or otherwise
under agreements containing covenants no more restrictive to the
Borrower or the Restricted Subsidiaries, as the case may be, than
the covenants contained in this Agreement;
(e) Debt not otherwise permitted by this Section 9.01 that in
the aggregate shall not exceed $100,000,000 outstanding at any
one time;
(f) Debt of the Borrower and the Restricted Subsidiaries under
Hedging Agreements entered into as a part of its normal business
operations as a risk management strategy and/or hedge against
changes resulting from market conditions related to the
Borrower's operations;
(g) Debt as a result of (and to the extent permitted by)
Sections 9.03(g), (h)and (i); and
(h) Debt under the Other Credit Agreement.
SECTION 9.02. Liens.
The Borrower will not and will not cause or permit any
Guarantor or any Restricted Subsidiary to create, incur, assume
or permit to exist any Lien on any of its Properties (now owned
or hereafter acquired), except:
(a) Liens securing the payment of any Debt hereunder;
(b) Excepted Liens;
(c) Liens disclosed on Schedule 9.02;
(d) Liens originally created to secure purchase money Debt
permitted under Section 9.01(e), which in each case shall not
exceed 100% of the lesser of the total purchase price and the
fair market value of the Property acquired as determined at the
time of acquisition; provided, that, (i) the Property to be
purchased with the proceeds of such Debt shall be purchased not
more than 60 days prior to the date of the creation of such Lien
and (ii) such Lien encumbers only the Property so acquired; and
(e) Liens securing the payment of any Debt under the Other
Credit Agreement so long as the Debt hereunder is secured and
ranks at all times at least pari passu with such Debt under the
Other Credit Agreement.
SECTION 9.03. Investments, Loans and Advances.
The Borrower will not and will not cause or permit any
Guarantor or any Restricted Subsidiary to make or permit to
remain outstanding any loans or advances to or investments in any
Person, except that the foregoing restriction shall not apply to:
(a) investments, loans or advances reflected in the Financial
Statements or which are disclosed to the Lenders in Schedule
9.03;
(b) accounts receivable arising in the ordinary course of
business;
(c) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any
agency thereof, in each case maturing within one year from the
date of creation thereof;
(d) commercial paper maturing within one year from the date of
creation thereof rated in the highest grade by S&P or ▇▇▇▇▇'▇;
(e) deposits maturing within one year from the date of creation
thereof with, including certificates of deposit issued by, any
Lender or any office located in the United States of any other
bank or trust company which is organized under the laws of the
United States or any state thereof, has capital, surplus and
undivided profits aggregating at least $100,000,000.00 (as of the
date of such Lender's or bank or trust company's most recent
financial reports) and has a short term deposit rating of no
lower than A2 or P2, as such rating is set forth from time to
time, by S&P or ▇▇▇▇▇'▇, respectively;
(f) deposits in money market funds investing exclusively in
investments described in Section 9.03(c), 9.03(d) or 9.03(e);
(g) investments, loans or advances made in or to the Borrower or
any Restricted Subsidiary that has executed a Guaranty;
(h) investments, loans or advances in or to any Person (other
than the Borrower or any Restricted Subsidiary that has executed
a Guaranty) not to exceed $100,000,000 in the aggregate at any
time outstanding; and
(i) other investments, loans and advances in or to any Person
made with equity of the Borrower or with other consideration,
including cash, not to exceed the amount of net proceeds received
by the Borrower from an equity offering occurring substantially
concurrent therewith.
SECTION 9.04. Distributions and Redemptions.
If an Event of Default has occurred and is continuing or
would result therefrom, the Borrower will not purchase, redeem or
otherwise acquire for value any of its equity interests now or
hereafter outstanding, return any capital or make any
distribution of its assets to its equity owners.
SECTION 9.05. Sales and Leasebacks.
The Borrower will not, and will not cause or permit any
Restricted Subsidiary to, enter into any Sale-Leaseback
Transaction, unless:
(a) such Sale-Leaseback Transaction occurs within one year after
the later of (i) completion of the acquisition of the applicable
Property by the Borrower or such Restricted Subsidiary or
(ii) commencement of full operation with respect to such
Property; or
(b) such Sale-Leaseback Transaction involves a lease for a term
of not more than three years; or
(c) the net sale proceeds derived from the sale or transfer by
the Borrower or such Restricted Subsidiary of the Property
involved are used solely (i) to prepay or retire Funded Debt of
the Borrower ranking pari passu with the Debt hereunder or
(ii) for capital improvements with respect to the pipeline
systems of the Borrower or any Restricted Subsidiary made in the
ordinary course of business of the Borrower or such Restricted
Subsidiary; or
(d) the Sale-Leaseback Attributable Debt attributable to such
Sale-Leaseback Transaction would be permitted under
Section 9.01(e).
SECTION 9.06. Nature of Business.
The Borrower will not, and will not permit any Restricted
Subsidiary to, make any material change in the nature of its
business as it exists on the date hereof or, in the case of a
Restricted Subsidiary, acquired or established after the date
hereof, as the nature of the business existed on the date of such
acquisition or establishment.
SECTION 9.07. Restrictive Agreements.
The Borrower will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or
imposes any condition upon the ability of any such Restricted
Subsidiary to declare or pay dividends or distributions to its
equity holders, to make or repay loans or advances to the
Borrower or any other Restricted Subsidiary, to guarantee
Indebtedness of the Borrower or any other such Restricted
Subsidiary or to transfer any of its property or assets to the
Borrower or any such Restricted Subsidiary; provided, that
(A) the foregoing shall not apply to restrictions or conditions
imposed by law, this Agreement or any other Loan Document, the
Note Agreements or the Indenture (in the case of the Note
Agreements and the Indenture, as in effect on the date hereof),
and (B) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of
any Restricted Subsidiary of the Borrower pending such sale,
provided such restrictions and conditions apply only to the
Restricted Subsidiary that is sold and such sale is permitted
hereunder.
SECTION 9.08. Mergers, Etc.
None of the Borrower, any Guarantor or any Restricted
Subsidiary will merge into or with or consolidate with any other
Person unless such former entity is the survivor, or sell, lease
or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its Property
or assets to any other Person; provided, however, that any
Restricted Subsidiary may merge with or into the Borrower, any
Guarantor or any other Restricted Subsidiary, even if it is not
the surviving entity of such merger.
SECTION 9.09. Proceeds of the Loans.
The Borrower will not permit the proceeds of the Loans to be
used for any purpose other than those permitted by Section 7.07.
Neither the Borrower nor any Person acting on behalf of the
Borrower has taken or will take any action which might cause any
of the Loan Documents to violate Regulation T, U or X or any
other Regulation of the Board of Governors of the Federal Reserve
System or to violate Section 7 of the Securities Exchange Act of
1934 or any rule or regulation thereunder, in each case as now in
effect or as the same may hereinafter be in effect.
SECTION 9.10. ERISA Compliance.
The Borrower will not at any time take any of the following
actions that could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect:
(a) Engage in, or permit any Subsidiary of the Borrower or ERISA
Affiliate to engage in, any transaction in connection with which
the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate could be subjected to either a civil penalty assessed
pursuant to section 502(c), (i) or (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, that could result in any
liability to the Borrower, any Subsidiary of the Borrower or any
ERISA Affiliate to the PBGC;
(c) Fail to make, or permit any Subsidiary of the Borrower or
ERISA Affiliate to fail to make, full payment when due of all
amounts that, under the provisions of any Plan, agreement
relating thereto or applicable law, the Borrower, a Subsidiary or
any ERISA Affiliate is required to pay as contributions thereto;
(d) Permit to exist, or allow any Subsidiary of the Borrower or
ERISA Affiliate to permit to exist, any accumulated funding
deficiency within the meaning of section 302 of ERISA or
section 412 of the Code, whether or not waived, with respect to
any Plan;
(e) Permit, or allow any Subsidiary of the Borrower or ERISA
Affiliate to permit, the actuarial present value of the benefit
liabilities under any Plan that is regulated under Title IV of
ERISA to exceed the current value of the assets (computed on a
plan termination basis in accordance with Title IV of ERISA) of
such Plan allocable to such benefit liabilities. The term
"actuarial present value of the benefit liabilities" shall have
the meaning specified in section 4041 of ERISA;
(f) Contribute to or assume an obligation to contribute to, or
permit any Subsidiary of the Borrower or ERISA Affiliate to
contribute to or assume an obligation to contribute to, any
Multiemployer Plan;
(g) Acquire, or permit any Subsidiary of the Borrower or ERISA
Affiliate to acquire, an interest in any Person that causes such
Person to become an ERISA Affiliate with respect to the Borrower,
any Subsidiary of the Borrower or any ERISA Affiliate if such
Person sponsors, maintains or contributes to, or at any time in
the six-year period preceding such acquisition has sponsored,
maintained, or contributed to, (1) any Multiemployer Plan, or
(2) any other Plan that is subject to Title IV of ERISA under
which the actuarial present value of the benefit liabilities
under such Plan exceeds the current value of the assets (computed
on a plan termination basis in accordance with Title IV of ERISA)
of such Plan allocable to such benefit liabilities;
(h) Incur, or permit any Subsidiary of the Borrower or ERISA
Affiliate to incur, a liability to or on account of a Plan under
sections 515, 4062, 4063, 4064, 4201 or 4204 of ERISA;
(i) Contribute to or assume an obligation to contribute to, or
permit any Subsidiary of the Borrower or ERISA Affiliate to
contribute to or assume an obligation to contribute to, any
employee welfare benefit plan, as defined in section 3(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;
(j) Amend or permit any Subsidiary of the Borrower or ERISA
Affiliate to amend, a Plan resulting in an increase in current
liability such that the Borrower, any Subsidiary of the Borrower
or any ERISA Affiliate is required to provide security to such
Plan under section 401(a)(29) of the Code; or
(k) Permit to exist any occurrence of a "Reportable Event"
described in Section 4043 of ERISA and the regulations
thereunder.
SECTION 9.11. Sale or Discount of Receivables.
None of the Borrower, any Guarantor or any Restricted
Subsidiary will discount or sell (with or without recourse) any
of its notes receivable or accounts receivable.
SECTION 9.12. Funded Debt Ratio.
The Borrower will not permit the Funded Debt Ratio as of the
end of any fiscal quarter to be greater than 4.75 to 1.00;
provided, however, that for a period of up to two consecutive
fiscal quarters (an "Increased Funded Debt Period") within any
twelve-month period commencing on the date hereof, the Funded
Debt Ratio may exceed 4.75 to 1.00 but shall in no event exceed
5.00 to 1.00; provided, further, that no Increased Funded Debt
Period shall occur sooner than two fiscal quarters following any
other Increased Funded Debt Period.
SECTION 9.13. Fixed Charge Coverage Ratio.
The Borrower will not permit the Fixed Charge Coverage Ratio
as of the end of any fiscal quarter (calculated quarterly at the
end of each fiscal quarter) to be less than 1.25 to 1.00.
SECTION 9.14. Sale of Properties.
The Borrower will not, and will not cause or permit any
Guarantor or any Restricted Subsidiary to sell, assign, convey or
otherwise transfer any Property or any interest in any Property,
unless such Property is not material to the ability of the
Borrower or any Restricted Subsidiary to generate EBITDA.
SECTION 9.15. Environmental Matters.
The Borrower shall not, and shall not cause or permit any
Guarantor or any Restricted Subsidiary to cause or permit any of
its Property to be in violation of, or do anything or permit
anything to be done which will subject any such Property to any
remedial obligations under any Environmental Laws. If necessary,
the Borrower shall timely disclose to the applicable Governmental
Authority all relevant facts, conditions and circumstances, if
any, pertaining to such Property where such violations or
remedial obligations exist.
SECTION 9.16. Transactions with Affiliates.
The Borrower will not, and will not cause or permit any
Guarantor or any Restricted Subsidiary to enter into any
transaction, including, without limitation, any purchase, sale,
lease or exchange of Property or the rendering of any service,
with any Affiliate unless such transactions are otherwise
permitted under this Agreement, are in the ordinary course of its
business and are upon fair and reasonable terms no less favorable
to it than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate; provided, however,
that the foregoing shall not prohibit or prevent the Borrower,
any Guarantor or any Restricted Subsidiary from performing under
any agreement in effect on the date hereof.
SECTION 9.17. Partnership Agreements.
Without the prior consent of the Required Lenders, which
shall not be unreasonably withheld, the Borrower will not amend
or permit to be amended in any material respect the Borrower
Partnership Agreement or the Buckeye Pipe Line Partnership
Agreement.
SECTION 9.18. Senior Notes.
Without the prior consent of the Required Lenders, which
shall not be unreasonably withheld, the Borrower will not amend
or permit to be amended in any material respect the Senior Notes
or the Indenture, except that the Borrower may issue additional
indebtedness under supplemental indentures issued under the
Indenture if otherwise permitted hereunder and thereunder.
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 fees or
other amount payable by it hereunder or under any other Loan
Document and such default, other than a default of a payment or
prepayment of principal (which shall have no cure period), shall
continue unremedied for a period of three Business Days; or
(b) the Borrower or any Restricted Subsidiary shall default in
the payment when due of any principal of or interest on any of
its other Debt aggregating $15,000,000 or more, or any event
specified in any note, agreement, indenture or other document
evidencing or relating to any such Debt shall occur if the effect
of such event (after the giving of notice or lapse of time or
both, if applicable) is to cause, or to permit the holder or
holders of such Debt (or a trustee or agent on behalf of such
holder or holders) to cause, such Debt to become due prior to its
stated maturity; or
(c) any representation, warranty or certification made or deemed
made herein or in any other Loan Document by the Borrower, any
Guarantor or any Person on behalf of any Restricted Subsidiary,
or any certificate furnished to any Lender or the Agent pursuant
to the provisions hereof or any other Loan Document, shall prove
to have been false or misleading as of the time made or furnished
in any material respect; or
(d) the Borrower or any Restricted Subsidiary (despite the fact
that such Restricted Subsidiary is not a party to this Agreement)
shall default in the performance of any of its obligations under
Article IX; or the Borrower or any Restricted Subsidiary (despite
the fact that such Restricted Subsidiary is not a party to this
Agreement) shall default in the performance of any of its
obligations under Article VIII, any other Article of this
Agreement (other than under Article IX) or any other Loan
Document (other than the payment of amounts due which shall be
governed by Section 10.01(a)) and such default shall continue
unremedied for a period of 30 days after the earlier to occur of
(i) notice thereof to the Borrower by the Agent or any Lender
(through the Agent), or (ii) a Responsible Officer of the
Borrower otherwise obtaining actual knowledge of such default; or
(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 $5,000,000 in the aggregate shall be rendered by a court
against the Borrower or any Subsidiary of the Borrower and the
same shall not be discharged (or provision shall not be made for
such discharge), or a stay of execution thereof shall not be
procured, within 30 days from the date of entry thereof and the
Borrower or such Subsidiary shall not, within said period of 30
days, or such longer period during which execution of the same
shall have been stayed, appeal therefrom and cause the execution
thereof to be stayed during such appeal; or
(i) any Guaranty after delivery thereof shall for any reason,
except to the extent permitted by the terms thereof, cease to be
in full force and effect and valid, binding and enforceable in
accordance with its terms, or the Borrower or any Guarantor shall
so state in writing; or
(j) a Change of Control shall occur; or
(k) any Guarantor shall take, suffer or permit to exist any of
the events or conditions referred to in subsection (f), (g), (h)
or (i) or any provision of any Guaranty related thereto shall for
any reason cease to be valid and binding on the relevant
Guarantor or if such Guarantor shall so state in writing;
(l) any Restricted Subsidiary shall take, suffer or permit to
exist any of the events or conditions referred to in subsection
(f), (g), (h) or (i); or
(m) any ERISA Event shall have occurred that could reasonably be
expected to result in a Material Adverse Effect, and 30 days
after notice shall have been given to the Borrower, such ERISA
Event shall still exist.
SECTION 10.02. Remedies.
(a) In the case of an Event of Default other than one referred
to in subsection (f), (g) or (h) of Section 10.01 or in either of
subsection (l) or (m) to the extent it relates to subsection (f),
(g) or (h), the Agent, upon request of the Required Lenders,
shall, by notice to the Borrower, cancel the Commitments and/or
declare the principal amount then outstanding of, and the accrued
interest on, the Loans and all other amounts payable by the
Borrower hereunder to be forthwith due and payable, whereupon
such amounts shall be immediately due and payable without
presentment, demand, protest, notice of intent to accelerate,
notice of acceleration or other formalities of any kind, all of
which are hereby expressly waived by the Borrower.
(b) In the case of the occurrence of an Event of Default
referred to in subsection (f), (g) or (h) of Section 10.01 or in
either of subsection (l) and (m) to the extent it relates to
subsection (f), (g) or (h), the Commitments shall be
automatically canceled and the principal amount then outstanding
of, and the accrued interest on, the Loans and all other amounts
payable by the Borrower hereunder shall become automatically
immediately due and payable without presentment, demand, protest,
notice of intent to accelerate, notice of acceleration or other
formalities of any kind, all of which are hereby expressly waived
by the Borrower.
(c) All proceeds received after the Termination Date, whether by
acceleration or otherwise shall be applied first to reimbursement
of expenses and indemnities provided for in this Agreement and
the other Loan Documents; second to accrued interest hereunder;
third to fees; fourth pro rata to principal outstanding hereunder
and other Debt hereunder; and any excess shall be paid to the
Borrower or as otherwise required by any Governmental
Requirement.
ARTICLE XI
THE AGENT
SECTION 11.01. The Agent.
(a) Appointment. Each Lender appoints the Agent (including,
without limitation, each successor Agent in accordance with this
Section 11.01) as its nominee and agent to act in its name and on
its behalf (and the Agent and each such successor accepts that
appointment): (i) to act as its nominee and on its behalf in and
under all Loan Documents; (ii) to arrange the means whereby its
funds are to be made available to the Borrower under the Loan
Documents; (iii) to take any action that it properly requests
under the Loan Documents (subject to the concurrence of other
Lenders as may be required under the Loan Documents); (iv) to
receive all documents and items to be furnished to it under the
Loan Documents; (v) to be the secured party, mortgagee,
beneficiary, recipient and similar party in respect of the cash
collateral under Section 2.09(b) and any other collateral for the
benefit of the Lenders (at any time an Event of Default or
Default has occurred and is continuing); (vi) to promptly
distribute to it all material information, requests, documents
and items received from the Borrower, any of its Subsidiaries or
any Restricted Subsidiary under the Loan Documents; (vii) to
promptly distribute to it its ratable part of each payment or
prepayment (whether voluntary, as proceeds of collateral upon or
after foreclosure, as proceeds of insurance thereon or otherwise)
in accordance with the terms of the Loan Documents; and (viii) to
deliver to the appropriate Persons requests, demands, approvals
and consents received from it. The Agent, however, may not be
required to take any action that exposes it to personal liability
or that is contrary to any Loan Document or applicable
Governmental Requirement. The Agent may execute any of its
duties hereunder or under the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of
counsel (including Borrower's counsel) concerning all matters
pertaining to such duties. The Agent shall not be responsible to
the Lenders for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
(b) Successor. The Agent may, subject (at any time no Event of
Default or Default has occurred and is continuing) to the
Borrower's prior written consent that may not be unreasonably
withheld, assign all of its rights and obligations as the Agent
under the Loan Documents to any of its Affiliates, which
Affiliate shall then be the successor Agent under the Loan
Documents. The Agent may also, upon 30 days' prior notice to the
Borrower and the Lenders, voluntarily resign. If the initial or
any successor Agent ever ceases to be a party to this Agreement
or if the initial or any successor Agent ever resigns, then the
Required Lenders shall (which, if no Event of Default or Default
has occurred and is continuing, is subject to the Borrower's
approval that may not be unreasonably withheld) appoint the
successor Agent from among the Lenders (other than the resigning
Agent). If the Required Lenders fail to appoint a successor
Agent within 30 days after the resigning Agent has given notice
of resignation, then the resigning Agent may, on behalf of the
Lenders, upon thirty (30) days prior notice to the Borrower,
appoint a successor Agent, subject (at any time no Event of
Default or Default has occurred and is continuing) to the
Borrower's prior written consent that may not be unreasonably
withheld, which must be a commercial bank having a combined
capital and surplus of at least $1,000,000,000 (as shown on its
most recently published statement of condition). Upon its
acceptance of appointment as successor Agent, the successor Agent
shall succeed to and become vested with all of the rights, duties
and obligations of the prior Agent, and the prior Agent shall be
discharged from its duties and obligations as Agent under the
Loan Documents, and each Lender shall execute the documents that
any Lender, the resigning Agent or the successor Agent reasonably
requests to reflect the change. After any Agent's resignation as
the Agent under the Loan Documents, the provisions of this
section inure to its benefit as to any actions taken or not taken
by it while it was the Agent under the Loan Documents.
(c) Rights as Lender. The Agent, in its capacity as a Lender,
has the same rights under the Loan Documents as any other Lender
and may exercise those rights as if it were not acting as the
Agent. The Agent's resignation or removal does not impair or
otherwise affect any rights that it has or may have in its
capacity as an individual Lender. Each Lender and the Borrower
agree that the Agent is not a fiduciary for the Lenders or the
Borrower but is simply acting in the capacity described in this
Agreement to alleviate administrative burdens for the Borrower
and the Lenders, that the Agent has no duties or responsibilities
to the Lenders or the Borrower except those expressly set forth
in the Loan Documents, and that the Agent in its capacity as a
Lender has the same rights as any other Lender.
(d) Other Activities. The Agent or any Lender may now or in the
future be engaged in one or more loan, letter of credit, leasing
or other financing transactions with the Borrower, act as trustee
or depositary for the Borrower or otherwise be engaged in other
transactions with the Borrower (collectively, the "other
activities") not the subject of the Loan Documents. Without
limiting the rights of the Lenders specifically set forth in the
Loan Documents, neither the Agent nor any Lender is responsible
to account to the other Lenders for those other activities, and
no Lender shall have any interest in any other Lender's
activities, any present or future guaranties by or for the
account of the Borrower that are not contemplated by or included
in the Loan Documents, any present or future offset exercised by
the Agent or any Lender in respect of those other activities, any
present or future property taken as security for any of those
other activities or any property now or hereafter in the Agent's
or any other Lender's possession or control that may be or become
security for the obligations of the Borrower arising under the
Loan Documents by reason of the general description of
indebtedness secured or of property contained in any other
agreements, documents or instruments related to any of those
other activities (but, if any payments in respect of those
guaranties or that property or the proceeds thereof is applied by
the Agent or any Lender to reduce the obligations hereunder, then
each Lender is entitled to share in the application as provided
in the Loan Documents).
SECTION 11.02. Expenses.
Each Lender shall pay its Percentage Share of any expenses
(including court costs, reasonable attorneys' fees and other
costs of collection) incurred by the Agent or in connection with
any of the Loan Documents if the Agent is not reimbursed from
other sources within 30 days after incurrence. Each Lender is
entitled to receive its Percentage Share of any reimbursement
that it makes to the Agent if the Agent is subsequently
reimbursed from other sources.
SECTION 11.03. Proportionate Absorption of Losses.
Except as otherwise provided in the Loan Documents, nothing
in the Loan Documents gives any Lender any advantage over any
other Lender insofar as the obligations hereunder are concerned
or relieves any Lender from ratably absorbing any losses
sustained with respect to the obligations hereunder (except to
the extent unilateral actions or inactions by any Lender result
in the Borrower or any other obligor on the obligations hereunder
having any credit, allowance, setoff, defense or counterclaim
solely with respect to all or any part of that Lender's part of
the obligations hereunder).
SECTION 11.04. Delegation of Duties; Reliance.
The Lenders may perform any of their duties or exercise any
of their rights under the Loan Documents by or through the Agent,
the Lenders and the Agent may perform any of their duties or
exercise any of their rights under the Loan Documents by or
through their respective representatives. The Agent, the Lenders
and their respective representatives (a) are entitled to rely
upon (and shall be protected in relying upon) any written or oral
statement believed by it or them to be genuine and correct and to
have been signed or made by the proper Person and, with respect
to legal matters, upon opinion of counsel selected by the Agent
or that Lender (but nothing in this clause (a) permits the Agent
to rely on (i) oral statements if a writing is required by this
Agreement or (ii) any other writing if a specific writing is
required by this Agreement), (b) are entitled to deem and treat
each Lender as the owner and holder of its portion of the
Obligations hereunder for all purposes until written notice of
the assignment or transfer is given to and received by the Agent
(and any request, authorization, consent or approval of any
Lender is conclusive and binding on each subsequent holder,
assignee or transferee of or Participant in that Lender's portion
of the obligations hereunder until that notice is given and
received), (c) are not deemed to have notice of the occurrence of
an Default unless a responsible officer of the Agent, who handles
matters associated with the Loan Documents and transactions
thereunder, has actual knowledge or the Agent has been notified
by a Lender or the Borrower, and (d) are entitled to consult with
legal counsel (including counsel for the Borrower), independent
accountants, and other experts selected by the Agent and are not
liable for any action taken or not taken in good faith by it in
accordance with the advice of counsel, accountants or experts.
SECTION 11.05. Limitation of the Agent's Liability.
(a) Exculpation. Neither the Agent nor any of its Affiliates or
representatives will be liable to any Lender for any action taken
or omitted to be taken by it or them under the Loan Documents in
good faith and believed by it to be within the discretion or
power conferred upon it or them by the Loan Documents or be
responsible for the consequences of any error of judgment (except
for gross negligence or willful misconduct), and neither the
Agent nor any of its Affiliates or representatives has a
fiduciary relationship with any Lender by virtue of the Loan
Documents (but nothing in this Agreement negates the obligation
of the Agent to account for funds received by it for the account
of any Lender).
(b) Indemnity. Unless indemnified to its satisfaction against
loss, cost, liability and expense, the Agent may not be compelled
to do any act under the Loan Documents or to take any action
toward the execution or enforcement of the powers thereby created
or to prosecute or defend any suit in respect of the Loan
Documents. If the Agent requests instructions from the Lenders or
the Required Lenders, as the case may be, with respect to any act
or action in connection with any Loan Document, the Agent is
entitled to refrain (without incurring any liability to any
Person by so refraining) from that act or action unless and until
it has received instructions. In no event, however, may the
Agent or any of its representatives be required to take any
action that it or they determine could incur for it or them
criminal or onerous civil liability. Without limiting the
generality of the foregoing, no Lender has any right of action
against the Agent as a result of the Agent's acting or refraining
from acting under this Agreement in accordance with instructions
of the Required Lenders.
(c) Reliance. The Agent is not responsible to any Lender, and
each Lender represents and warrants that it has not relied upon
the Agent in respect of, (i) the creditworthiness of the Borrower
or any Guarantor and the risks involved to such Lender, as the
case may be, (ii) the effectiveness, enforceability, genuineness,
validity or the due execution of any Loan Document, (iii) any
representation, warranty, document, certificate, report or
statement made therein or furnished thereunder or in connection
therewith, (iv) the adequacy of any collateral now or hereafter
securing the obligations hereunder or the existence, priority or
perfection of any Lien now or hereafter granted or purported to
be granted on the collateral under any Loan Document, or (v)
observation of or compliance with any of the terms, covenants or
conditions of any Loan Document on the part of the General
Partner, the Borrower or any Guarantor . EACH LENDER AGREES TO
INDEMNIFY THE AGENT AND ITS REPRESENTATIVES AND HOLD THEM
HARMLESS FROM AND AGAINST (BUT LIMITED TO SUCH LENDER'S
PERCENTAGE SHARE OF) ANY AND ALL LIABILITIES, OBLIGATIONS
HEREUNDER, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, REASONABLE EXPENSES AND REASONABLE DISBURSEMENTS OF ANY
KIND OR NATURE WHATSOEVER THAT MAY BE IMPOSED ON, ASSERTED
AGAINST OR INCURRED BY THEM IN ANY WAY RELATING TO OR ARISING OUT
OF THE LOAN DOCUMENTS OR ANY ACTION TAKEN OR OMITTED BY THEM
UNDER THE LOAN DOCUMENTS IF THE AGENT AND ITS REPRESENTATIVES ARE
NOT REIMBURSED FOR SUCH AMOUNTS BY THE BORROWER OR ANY GUARANTOR.
ALTHOUGH THE AGENT AND ITS REPRESENTATIVES HAVE THE RIGHT TO BE
INDEMNIFIED UNDER THIS AGREEMENT BY THE LENDERS FOR ITS OR THEIR
OWN ORDINARY NEGLIGENCE, THE AGENT AND ITS REPRESENTATIVES DO NOT
HAVE THE RIGHT TO BE INDEMNIFIED UNDER THIS AGREEMENT FOR ITS OR
THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
SECTION 11.06. Event of Default.
If an Event of Default has occurred and is continuing, the
Lenders agree to promptly confer in order that the Required
Lenders or the Lenders, as the case may be, may agree upon a
course of action for the enforcement of the rights of the Lenders
hereunder. The Agent is entitled to act or refrain from taking
any action (without incurring any liability to any Person for so
acting or refraining) unless and until it has received
instructions from the Required Lenders. In actions with respect
to any property of the Borrower or any of its Subsidiaries, the
Agent is acting for the ratable benefit of each Lender.
SECTION 11.07. Limitation of Liability.
No Lender will incur any liability to any other Lender
except for acts or omissions in bad faith, and neither the Agent
nor any Lender or Participant will incur any liability to any
other Person for any act or omission of any other Lender.
SECTION 11.08. Other Agents.
On the cover page SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a division of
SunTrust Capital Markets, Inc., is named as "Sole Lead Arranger,"
BNP Paribas is named as "Syndication Agent" and National
Australia Bank Limited and KeyBank National Association are named
as "Co-Documentation Agents" but do not, in such capacities,
assume any responsibility or obligation under this Agreement for
syndication, documentation, servicing, enforcement or collection
of any part of the obligations hereunder, nor any other duties,
as agent for the Lenders.
SECTION 11.09. Relationship of Lenders.
The Loan Documents do not create a partnership or joint
venture among the Agent and the Lenders or among the Lenders.
SECTION 11.10. Benefits of Agreement.
None of the provisions of this Article XI inures to the
benefit of the Borrower or any Guarantor or any other Person
except the Agent and the Lenders. Therefore, neither the
Borrower nor any Guarantor nor any other Person is responsible or
liable for, entitled to rely upon or entitled to raise as a
defense, in any manner whatsoever, the failure of the Agent or
any Lender to comply with these provisions.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Waiver.
No failure on the part of the Agent or any Lender to
exercise and no delay in exercising and no course of dealing with
respect to, any right, power or privilege under any of the Loan
Documents shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, power or privilege under any of
the Loan Documents preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
SECTION 12.02. Notices.
All notices and other communications provided for herein and
in the other Loan Documents (including, without limitation, any
modifications of, or waivers or consents under, this Agreement or
the other Loan Documents) shall be given or made by telex,
telecopy, courier or U.S. Mail or in writing and telexed,
telecopied, mailed or delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature
pages hereof or in the Loan Documents, except that for notices
and other communications to the Agent other than payment of
money, the Borrower need only send such notices and
communications to the Agent care of the Atlanta address of
SunTrust; or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except
as otherwise provided in this Agreement or in the other Loan
Documents, all such communications shall be deemed to have been
duly given when transmitted, if transmitted before 1:00 p.m.
local time on a Business Day (otherwise on the next succeeding
Business Day) by telex or telecopier and evidence or confirmation
of receipt is obtained, or personally delivered or, in the case
of a mailed notice, four Business Days after the date deposited
in the mails, postage prepaid, in each case given or addressed as
aforesaid.
SECTION 12.03. Payment of Expenses, Indemnities, etc.
(a) The Borrower agrees:
(i) whether or not the transactions hereby contemplated are
consummated, to pay to the extent set forth in the Fee Letter all
reasonable expenses of the Agent in the administration (both
before and after the execution hereof and including advice of
counsel as to the rights and duties of the Agent and the Lenders
with respect thereto) of, and in connection with the negotiation,
syndication, investigation, preparation, execution and delivery
of, recording or filing of, preservation of rights under,
enforcement of, and refinancing, renegotiation or restructuring
of, the Loan Documents and any amendment, waiver or consent
relating thereto (including, without limitation, travel,
photocopy, mailing, courier, telephone and other similar expenses
of the Agent, the cost of environmental audits, surveys and
appraisals at reasonable intervals, the reasonable fees and
disbursements of counsel and other outside consultants for the
Agent and, in the case of enforcement, the reasonable fees and
disbursements of counsel for the Agent and any of the Lenders);
and promptly reimburse the Agent for all amounts expended,
advanced or incurred by the Agent or the Lenders to satisfy any
obligation of the Borrower or the Guarantors under this Agreement
or any other Loan Document, including without limitation, all
costs and expenses of foreclosure;
(ii) TO INDEMNIFY THE AGENT AND EACH LENDER AND EACH OF THEIR
AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES,
REPRESENTATIVES, AGENTS, ATTORNEYS, ACCOUNTANTS AND EXPERTS
("INDEMNIFIED PARTIES") FROM, HOLD EACH OF THEM HARMLESS AGAINST
AND PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR, THE
INDEMNITY MATTERS WHICH MAY BE INCURRED BY OR ASSERTED AGAINST OR
INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A
PARTY THERETO) AS A RESULT OF, ARISING OUT OF OR IN ANY WAY
RELATED TO (I) ANY ACTUAL OR PROPOSED USE BY THE BORROWER OF THE
PROCEEDS OF ANY OF THE LOANS, (II) THE EXECUTION, DELIVERY AND
PERFORMANCE OF THE LOAN DOCUMENTS BY THE BORROWER, (III) THE
OPERATIONS OF THE BUSINESS OF THE BORROWER, ANY GUARANTOR AND THE
RESTRICTED SUBSIDIARIES, (IV) THE FAILURE OF THE BORROWER, ANY
GUARANTOR OR ANY RESTRICTED SUBSIDIARY TO COMPLY WITH THE TERMS
OF ANY LOAN DOCUMENT, OR WITH ANY GOVERNMENTAL REQUIREMENT,
(V) ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH OF ANY
WARRANTY OF THE BORROWER OR THE GUARANTOR SET FORTH IN ANY OF THE
LOAN DOCUMENTS, (VI) ANY ASSERTION THAT THE LENDERS WERE NOT
ENTITLED TO RECEIVE THE PROCEEDS RECEIVED PURSUANT TO THE LOAN
DOCUMENTS OR (VII) 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 SUBSIDIARY OR ANY OF
THEIR PROPERTIES, INCLUDING WITHOUT LIMITATION, THE TREATMENT OR
DISPOSAL OF HAZARDOUS SUBSTANCES OR HAZARDOUS WASTES ON ANY OF
SUCH PROPERTIES, (II) AS A RESULT OF THE BREACH OR NON-COMPLIANCE
BY THE BORROWER OR ANY RESTRICTED SUBSIDIARY WITH ANY
ENVIRONMENTAL LAW APPLICABLE TO THE BORROWER, ANY GUARANTOR OR
ANY RESTRICTED SUBSIDIARY, (III) DUE TO PAST OWNERSHIP BY THE
BORROWER, ANY GUARANTOR OR ANY RESTRICTED SUBSIDIARY OF ANY OF
THEIR PROPERTIES OR PAST ACTIVITY ON ANY OF THEIR PROPERTIES
WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE AT THE TIME, COULD
RESULT IN PRESENT LIABILITY, (IV) THE PRESENCE, USE, RELEASE,
STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS SUBSTANCES OR
HAZARDOUS WASTES ON OR AT ANY OF THE PROPERTIES OWNED OR OPERATED
BY THE BORROWER, ANY GUARANTOR OR ANY RESTRICTED SUBSIDIARY, OR
(V) ANY OTHER ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN
CONNECTION WITH THE LOAN DOCUMENTS.
(b) No Indemnified Party may settle any claim to be indemnified
without the consent of the indemnitor, such consent not to be
unreasonably withheld; provided, that the indemnitor may not
reasonably withhold consent to any settlement that an Indemnified
Party proposes, if the indemnitor does not have the financial
ability to pay all its obligations outstanding and asserted
against the indemnitor at that time, including the maximum
potential claims against the Indemnified Party to be indemnified
pursuant to this Section 12.03.
(c) In the case of any indemnification hereunder, the Agent or
Lender, as appropriate shall give notice to the Borrower of any
such claim or demand being made against the Indemnified Party and
the Borrower shall have the non-exclusive right to join in the
defense against any such claim or demand provided that if the
Borrower provides a defense, the Indemnified Party shall bear its
own cost of defense unless there is a conflict between the
Borrower and such Indemnified Party.
(d) THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED
PARTIES NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF
EVERY KIND OR CHARACTER WHATSOEVER, WHETHER ACTIVE OR PASSIVE,
WHETHER AN AFFIRMATIVE ACT OR AN OMISSION, INCLUDING WITHOUT
LIMITATION, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE
RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNIFIED
PARTIES OR BY REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON
ANY ONE OR MORE OF THE INDEMNIFIED PARTIES. TO THE EXTENT THAT
AN INDEMNIFIED PARTY IS FOUND TO HAVE COMMITTED AN ACT OF GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, THIS CONTRACTUAL OBLIGATION OF
INDEMNIFICATION SHALL CONTINUE BUT SHALL ONLY EXTEND TO THE
PORTION OF THE CLAIM THAT IS DEEMED TO HAVE OCCURRED BY REASON OF
EVENTS OTHER THAN THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
THE INDEMNIFIED PARTY.
(e) The Borrower's obligations under this Section 12.03 shall
survive any termination of this Agreement and the payment of all
amounts outstanding hereunder and shall continue thereafter in
full force and effect.
(f) The Borrower shall pay any amounts due under this
Section 12.03 within 30 days of the receipt by the Borrower of
notice of the amount due.
SECTION 12.04. Amendments, Etc.
Any provision of this Agreement or any other Loan Document
may be amended, modified or waived with the Borrower's and the
Required Lenders' prior written consent; provided that (i) no
amendment, modification or waiver that extends the final maturity
of the Loans, postpones any date fixed for any payment of
principal of, or interest on, the Loans or any fees or other
amounts payable hereunder, increases the Aggregate Revolving
Credit Commitments), forgives the principal amount of any Debt
outstanding under this Agreement, releases any Guarantor of its
obligations under the Guaranty, reduces the interest rate
applicable to the Loans or the fees payable to the Lenders
generally, affects this Section 12.04 or Section 12.06(a) or
modifies the definition of "Required Lenders" shall be effective
without consent of all Lenders; (ii) no amendment, modification
or waiver which increases the Revolving Credit Commitment of any
Lender shall be effective without the consent of such Lender; and
(iii) no amendment, modification or waiver which modifies the
rights, duties or obligations of the Agent shall be effective
without the consent of the Agent; provided, further, that this
Agreement may be amended and restated without the consent of any
Lender or the Agent if, upon giving effect to such amendment and
restatement, such Lender or the Agent, as the case may be, shall
no longer be a party to this Agreement (as so amended and
restated) or have any Commitment or other obligation hereunder
and shall have been paid in full all amounts payable hereunder to
such Lender or the Agent, as the case may be.
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 without the prior consent of all of the Lenders and the
Agent.
(b) Any Lender may upon the written consent of the Agent (which
consent will not be unreasonably withheld) and, if no Event of
Default has occurred and is continuing, the Borrower (which
consent will not be unreasonably withheld), assign to one or more
assignees all or a portion of its rights and obligations under
this Agreement pursuant to an Assignment Agreement substantially
in the form of Exhibit C (an "Assignment Agreement"); provided,
however, that (i) any such assignment shall be in the amount of
at least $5,000,000 or such assigning Lender's entire Commitment,
or such lesser amount to which the Borrower has consented,
(ii) the assignee or assignor shall pay to the Agent a processing
and recordation fee of $1,500 for each assignment and (iii) any
assignment to an Affiliate of such Lender will not require the
consent of the Agent or the Borrower. Any such assignment will
become effective upon the execution and delivery to the Agent of
the Assignment Agreement and the consent of the Agent, if
required. Promptly after receipt of an executed Assignment
Agreement, the Agent shall send to the Borrower a copy of such
executed Assignment Agreement. Upon the effectiveness of any
assignment pursuant to this Section 12.06(b), the assignee will
become a "Lender," if not already a "Lender," for all purposes of
this Agreement and the other Loan Documents. The assignor shall
be relieved of its obligations hereunder to the extent of such
assignment (and if the assigning Lender no longer holds any
rights or obligations under this Agreement, such assigning Lender
shall cease to be a "Lender" hereunder except that its rights
under Sections 4.06, 5.01, 5.05 and 12.03 shall not be affected).
The Agent will prepare on the last Business Day of each month
during which an assignment has become effective pursuant to this
Section 12.06(b), a new Annex I giving effect to all such
assignments effected during such month, and will promptly provide
the same to the Borrower and each of the Lenders.
(c) Each Lender may transfer, grant or assign participations in
all or any part of such Lender's interests hereunder pursuant to
this Section 12.06(c) to any Person, provided that: (i) such
Lender shall remain a "Lender" for all purposes of this Agreement
and the transferee of such participation shall not constitute a
"Lender" hereunder; and (ii) no participant under any such
participation shall have rights to approve any amendment to or
waiver of any of the Loan Documents except to the extent such
amendment or waiver would (x) forgive any principal owing on any
Debt hereunder or extend the final maturity of the Loans,
(y) reduce the interest rate (other than as a result of waiving
the applicability of any post-default increases in interest
rates) or fees applicable to any of the Commitments or Loans in
which such participant is participating, or postpone the payment
of any thereof, or (z) release any guarantor of its obligations
under its Guaranty or release all or substantially all of the
collateral (except as provided in the Loan Documents) supporting
any of the Commitments or Loans 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 Subsidiaries in the
possession of the Lenders from time to time to assignees and
participants (including prospective assignees and participants);
provided that, such Persons agree to be bound by the provisions
of Section 12.15.
(e) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPC") of such Granting Lender identified as
such in writing from time to time by the Granting Lender to the
Agent and the Borrower, the option to provide to the Borrower all
or any part of any Loan that such Granting Lender would otherwise
be obligated to make to the Borrower pursuant to this Agreement;
provided that (i) nothing herein shall constitute a commitment by
any such SPC to make any Loan, (ii) if such SPC elects not to
exercise such option or otherwise fails to provide all or any
part of such Loan, the Granting Lender shall be obligated to make
such Loan pursuant to the terms hereof and (iii) no SPC or
Granting Lender shall be entitled to receive any greater amount
pursuant to Article V than the Granting Lender would have been
entitled to receive had the Granting Lender not otherwise granted
such SPC the option to provide any Loan to the Borrower. The
making of a Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Loan
were made by such Granting Lender. Each party hereto hereby
agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement for which a Lender would
otherwise be liable so long as, and to the extent that, the
related Granting Lender provides such indemnity or makes such
payment. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper
or other senior indebtedness of any SPC, it will not institute
against or join any other person in instituting against such SPC
any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or
any State thereof. Notwithstanding the foregoing, the Granting
Lender unconditionally agrees to indemnify the Borrower, the
Agent and each Lender against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which
may be incurred by or asserted against the Borrower, the Agent or
such Lender, as the case may be, in any way relating to or
arising as a consequence of any such forbearance or delay in the
initiation of any such proceeding against its SPC. Each party
hereto hereby acknowledges and agrees that no SPC shall have the
rights of a Lender hereunder, such rights being retained by the
applicable Granting Lender. Accordingly, and without limiting
the foregoing, each party hereby further acknowledges and agrees
that no SPC shall have any voting rights hereunder and that the
voting rights attributable to any Loan made by an SPC shall be
exercised only by the relevant Granting Lender and that each
Granting Lender shall serve as the administrative agent and
attorney-in-fact for its SPC and shall on behalf of its SPC
receive any and all payments made for the benefit of such SPC and
take all actions hereunder to the extent, if any, such SPC shall
have any rights hereunder. In addition, notwithstanding anything
to the contrary contained in this Agreement any SPC may (i) with
notice to, but without the prior written consent of any other
party hereto, assign all or a portion of its interest in any
Loans to the Granting Lender and (ii) disclose on a confidential
basis any information relating to its Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC. This Section may
not be amended without the prior written consent of each Granting
Lender, all or any part of whose Loan is being funded by an SPC
at the time of such amendment.
(f) Notwithstanding anything in this Section 12.06 to the
contrary, any Lender may assign and pledge its note issued
pursuant to Section 2.07 to any Federal Reserve Bank. No such
assignment and/or pledge shall release the assigning and/or
pledging Lender from its obligations hereunder.
(g) Notwithstanding any other provisions of this Section 12.06,
no transfer or assignment of the interests or obligations of any
Lender or any grant of participations therein shall be permitted
if such transfer, assignment or grant would require the Borrower
to file a registration statement with the SEC or to qualify the
Loans under the "Blue Sky" laws of any state.
SECTION 12.07. Invalidity.
In the event that any one or more of the provisions
contained in any of the Loan Documents shall, for any reason, be
held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other Loan Document.
SECTION 12.08. Counterparts.
This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
and the same instrument and any of the parties hereto may execute
this Agreement by signing any such counterpart.
SECTION 12.09. References.
The words "herein", "hereof", "hereunder" and other words of
similar import when used in this Agreement refer to this
Agreement as a whole, and not to any particular Article,
Section or Subsection. Any reference herein to a Section shall
be deemed to refer to the applicable Section of this Agreement
unless otherwise stated herein. Any reference herein to an
Exhibit or Schedule shall be deemed to refer to the applicable
Exhibit or Schedule attached hereto unless otherwise stated
herein.
SECTION 12.10. Survival.
The obligations of the parties under Section 4.06,
Article V, and Sections 11.05 and 12.03 shall survive the
repayment of the Loans and the termination of the Commitments.
To the extent that any payments on the Debt hereunder or proceeds
of any collateral are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to
a trustee, debtor in possession, receiver or other Person under
any bankruptcy law, common law or equitable cause, then to such
extent, the Debt so satisfied shall be revived and continue as if
such payment or proceeds had not been received and the Agent's
and the Lenders' rights, powers and remedies under this Agreement
and each other Loan Document shall continue in full force and
effect. In such event, each Loan Document shall be automatically
reinstated and the Borrower shall take such action as may be
reasonably requested by the Agent and the Lenders to effect such
reinstatement.
SECTION 12.11. Captions.
Captions and Section headings appearing herein are included
solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
SECTION 12.12. NO ORAL AGREEMENTS.
THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND
UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDE ALL OTHER
AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO
THE SUBJECT MATTER HEREOF AND THEREOF. THE LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
SECTION 12.13. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY
AND ENFORCEABILITY HEREOF AND THEREOF) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
OTHER THAN THE CONFLICT OF LAWS RULES THEREOF.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THE LOAN
DOCUMENTS SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
OF THE BORROWER, THE AGENT, THE GENERAL PARTNER AND EACH LENDER
HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY LAW) IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE BORROWER, THE
AGENT, THE GENERAL PARTNER AND EACH LENDER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS. THIS SUBMISSION TO JURISDICTION IS NON-EXCLUSIVE
AND DOES NOT PRECLUDE THE PARTIES FROM OBTAINING JURISDICTION
OVER OTHER PARTIES IN ANY COURT OTHERWISE HAVING JURISDICTION.
(c) THE BORROWER AND THE GENERAL PARTNER HEREBY IRREVOCABLY
DESIGNATE CT CORPORATION LOCATED AT ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, AS THE DESIGNEE, APPOINTEE AND AGENT OF ITSELF TO
RECEIVE, FOR AND ON BEHALF OF ITSELF, SERVICE OF PROCESS IN SUCH
RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THE LOAN DOCUMENTS. IT IS UNDERSTOOD THAT A COPY OF
SUCH PROCESS SERVED ON SUCH AGENT WILL BE PROMPTLY FORWARDED BY
OVERNIGHT COURIER TO THE BORROWER AT ITS ADDRESS SET FORTH UNDER
ITS SIGNATURE BELOW, BUT THE FAILURE OF ANY OF THE BORROWER OR
THE GENERAL PARTNER TO RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY
WAY THE SERVICE OF SUCH PROCESS. THE BORROWER AND THE GENERAL
PARTNER FURTHER IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO IT AT ITS SAID ADDRESS, SUCH SERVICE TO
BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY
LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
BORROWER OR ANY GUARANTOR IN ANY OTHER JURISDICTION.
(e) THE BORROWER, THE GENERAL PARTNER AND EACH LENDER HEREBY
(i) IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN; (ii) IRREVOCABLY WAIVE, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION
TO, ACTUAL DAMAGES; (iii) CERTIFY THAT NO PARTY HERETO NOR ANY
REPRESENTATIVE OR AGENT OF COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS, AND (iv) ACKNOWLEDGE THAT IT HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS
SECTION 12.13.
SECTION 12.14. Interest.
It is the intention of the parties hereto that each Lender
shall conform strictly to usury laws applicable to it.
Accordingly, if the transactions contemplated hereby would be
usurious as to any Lender under laws applicable to it (including
the laws of the United States of America and the State of New
York or any other jurisdiction whose laws may be mandatorily
applicable to such Lender notwithstanding the other provisions of
this Agreement), then, in that event, notwithstanding anything to
the contrary in any of the Loan Documents or any agreement
entered into in connection with or as security for the Loans, it
is agreed as follows: (i) the aggregate of all consideration
which constitutes interest under law applicable to any Lender
that is contracted for, taken, reserved, charged or received by
such Lender under any of the Loan Documents or agreements or
otherwise in connection with the Loans shall under no
circumstances exceed the maximum amount allowed by such
applicable law, and any excess shall be canceled automatically
and if theretofore paid shall be credited by such Lender on the
principal amount of the Debt (or, to the extent that the
principal amount of the Debt shall have been or would thereby be
paid in full, refunded by such Lender to the Borrower); and
(ii) in the event that the maturity of the Loans is accelerated
by reason of an election of the holder thereof resulting from any
Event of Default under this Agreement or otherwise, or in the
event of any required or permitted prepayment, then such
consideration that constitutes interest under law applicable to
any Lender may never include more than the maximum amount allowed
by such applicable law, and excess interest, if any, provided for
in this Agreement or otherwise shall be canceled automatically by
such Lender as of the date of such acceleration or prepayment
and, if theretofore paid, shall be credited by such Lender on the
principal amount of the Debt (or, to the extent that the
principal amount of the Debt shall have been or would thereby be
paid in full, refunded by such Lender to the Borrower). All sums
paid or agreed to be paid to any Lender for the use, forbearance
or detention of sums due hereunder shall, to the extent permitted
by law applicable to such Lender, be amortized, prorated,
allocated and spread throughout the full term of the Loans until
payment in full so that the rate or amount of interest on account
of any Loans hereunder does not exceed the maximum amount allowed
by such applicable law. If at any time and from time to time
(i) the amount of interest payable to any Lender on any date
shall be computed at the Highest Lawful Rate applicable to such
Lender pursuant to this Section 12.14 and (ii) in respect of any
subsequent interest computation period the amount of interest
otherwise payable to such Lender would be less than the amount of
interest payable to such Lender computed at the Highest Lawful
Rate applicable to such Lender, then the amount of interest
payable to such Lender in respect of such subsequent interest
computation period shall continue to be computed at the Highest
Lawful Rate applicable to such Lender until the total amount of
interest payable to such Lender shall equal the total amount of
interest which would have been payable to such Lender if the
total amount of interest had been computed without giving effect
to this Section 12.14.
SECTION 12.15. Confidentiality.
In the event that the Borrower or any Guarantor provides to
the Agent or the Lenders written confidential information
belonging to the Borrower or such Guarantor, if the Borrower or
such Guarantor shall denominate such information in writing as
"confidential", the Agent and the Lenders shall thereafter
maintain such information in confidence in accordance with the
standards of care and diligence that each utilizes in maintaining
its own confidential information. This obligation of confidence
shall not apply to such portions of the information which (i) are
in the public domain, (ii) hereafter become part of the public
domain without the Agent or the Lenders breaching their
obligation of confidence to the Borrower and such Guarantor,
(iii) are previously known by the Agent or the Lenders from some
source other than the Borrower or such Guarantor, (iv) are
hereafter developed by the Agent or the Lenders without using the
Borrower's or such Guarantor's information, (v) are hereafter
obtained by or available to the Agent or the Lenders from a third
party who owes no obligation of confidence to the Borrower or
such Guarantor with respect to such information or through any
other means other than through disclosure by the Borrower or such
Guarantor, (vi) are disclosed with the Borrower's or the
Guarantor's consent, (vii) must be disclosed either pursuant to
any Governmental Requirement or to Persons regulating the
activities of the Agent or the Lenders, or (viii) as may 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 independent certified public accountants, any legal counsel
employed by such Person in connection with this Agreement or any
other Loan Document, including without limitation, the
enforcement or exercise of all rights and remedies thereunder, or
any assignee or participant (including prospective assignees and
participants) in the Loans; provided, however, that the Agent or
the Lenders shall receive a confidentiality agreement from the
Person to whom such information is disclosed such that said
Person shall have the same obligation to maintain the
confidentiality of such information as is imposed upon the Agent
or the Lenders hereunder. Notwithstanding anything to the
contrary provided herein, this obligation of confidence shall
cease three years from the date the information was furnished,
unless the Borrower and the Guarantors request in writing at
least 30 days prior to the expiration of such three year period,
to maintain the confidentiality of such information for an
additional three year period. Each of the Borrower and the
Guarantors waives any and all other rights it may have to
confidentiality as against the Agent and the Lenders arising by
contract, agreement, statute or law except as expressly stated in
this Section 12.15.
Notwithstanding any conditions of confidentiality imposed by
this Section 12.15, each party hereto (and each employee,
representative or other agent of each such party) may disclose to
any and all persons without limitation of any kind, the U.S. tax
treatment and U.S. tax structure of the transactions contemplated
by this Agreement and all materials of any kind (including
opinions or other tax analyses) that are provided to any such
party relating to such U.S. tax treatment or U.S. tax structure.
SECTION 12.16. EXCULPATION PROVISIONS.
EACH OF THE PARTIES HERETO SPECIFICALLY AGREES THAT IT HAS A
DUTY TO READ THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS
OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS IN
FACT READ THIS AGREEMENT AND IS FULLY INFORMED AND HAS FULL
NOTICE AND KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS
AGREEMENT; THAT IT HAS BEEN REPRESENTED BY INDEPENDENT LEGAL
COUNSEL OF ITS CHOICE THROUGHOUT THE NEGOTIATIONS PRECEDING ITS
EXECUTION OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND HAS
RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND THAT IT RECOGNIZES
THAT CERTAIN OF THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS RESULT IN ONE PARTY ASSUMING THE LIABILITY INHERENT IN
SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER PARTY OF
ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES
AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR
ENFORCEABILITY OF ANY EXCULPATORY PROVISION OF THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS ON THE BASIS THAT THE PARTY HAD NO
NOTICE OR KNOWLEDGE OF SUCH PROVISION.
[Signatures Begin on Next Page]
The parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
BORROWER: BUCKEYE PARTNERS, L.P.
ByBuckeye Pipe Line Company, its
general partner
By ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Sr. Vice
President,
Administration, General
Counsel and Secretary
Address for Notices:
5 Radnor Corporate Center
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.:
Telephone No.:
Attention:
SUNTRUST BANK
By ▇▇▇▇▇ ▇. EDGE
Name: ▇▇▇▇▇ ▇. Edge
Title: Director
Lending Office for Base Rate Loans
and LIBOR Loans:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.:
Telephone No.:
Attention:
Address for Notices:
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.:
Telephone No.:
Attention:
KEYBANK NATIONAL ASSOCIATION
By ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans
and LIBOR Loans:
KeyBank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
Mail Code OH-01-27-0611
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Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address for Notices:
KeyBank National Association
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Mail Code OH-01-27-0611
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Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BNP PARIBAS
By ▇▇▇▇ ▇. ▇▇▇▇▇ __
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By ▇▇▇▇ ▇▇▇▇▇▇▇▇ __
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans
and LIBOR Loans:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Address for Notices:
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Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
NATIONAL AUSTRALIA BANK LTD.
By ▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director
Lending Office for Base Rate Loans
and LIBOR Loans:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: 212-916-
9539/9628/6549
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇
▇▇▇▇▇▇/▇▇▇▇▇▇▇ Sees
Address for Notices:
See above.
PNC BANK, NATIONAL ASSOCIATION
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans
and LIBOR Loans:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ (▇▇-▇▇▇▇-▇▇-▇)
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Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Address for Notices:
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▇▇▇▇ ▇▇▇▇▇ (▇▇-▇▇▇▇-▇▇-▇)
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Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
WACHOVIA BANK, NATIONAL ASSOCIATION
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans
and LIBOR Loans:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇ 5414
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Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
FLEET NATIONAL BANK
By ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
Lending Office for Base Rate Loans
and LIBOR Loans:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Address for Notices:
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Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
CITIBANK, N.A.
By ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Attorney-in-Fact
Lending Office for Base Rate Loans
and LIBOR Loans:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Address for Notices:
▇▇▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
JPMORGAN CHASE BANK
By ▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans
and LIBOR Loans:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇/5014
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Amsterdam
Address for Notices:
JPMorgan Chase Bank
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
ANNEX I
364-DAY FACILITY
LIST OF PERCENTAGE SHARES AND REVOLVING CREDIT COMMITMENTS
Name of Lender Percentage Share Revolving
Credit
Commitments
SunTrust Bank 17.5% $17,500,000
KeyBank National 17.5% $17,500,000
Association
BNP Paribas 15.5% $15,500,000
National Australia 11.0% $11,000,000
Bank Ltd.
PNC Bank, National 11.0% $11,000,000
Association
Wachovia Bank, 9.0% $9,000,000
National Association
Fleet National Bank 8.5% $8,500,000
Citibank, N.A. 5.0% $5,000,000
JPMorgan Chase Bank 5.0% $5,000,000
EXHIBIT A
FORM OF BORROWING, CONTINUATION AND CONVERSION REQUEST
_____________, 200_
BUCKEYE PARTNERS, L.P., a Delaware limited partnership (the
"Borrower"), pursuant to the Credit Agreement dated as of
[September 3, 2003], among the Borrower, SunTrust 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. Loans:
(a) Aggregate amount of new Loans to be
$_____________________;
(b) Requested funding date is _____________, 200__;
(c) $____________________ of such borrowings are to be LIBOR
Loans;
$____________________ of such borrowings are to be Base
Rate Loans;
and
(d) Length of Interest Period for LIBOR Loans is:
____________________.
2. LIBOR Loan Continuation for LIBOR Loans maturing on
________________.
(a) Aggregate amount to be continued as LIBOR Loans is
$_________________;
(b) Aggregate amount to be converted to Base Rate Loans is
$_________________;
(c) Length of Interest Period for continued LIBOR Loans is
____________________.
3. Conversion of Outstanding Base Rate Loans to LIBOR Loans:
Convert $____________ of the outstanding Base
Rate Loans to LIBOR Loans on ____________
with an Interest Period of ____________.
4. Conversion of outstanding LIBOR Loans to Base Rate Loans:
Convert $_______________ of the outstanding LIBOR
Loans with Interest Period maturing on
_____________, 200__, 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 PARTNERS, L.P.
ByBuckeye Pipe Line Company, its
general partner
By
Name:
Title:
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that it is the general
partner of BUCKEYE PARTNERS, L.P., a Delaware limited partnership
(the "Borrower") and that, as such, it is authorized to execute
this certificate on behalf of the Borrower. With reference to
the Credit Agreement, dated as of [September 3, 2003], among the
Borrower, SunTrust 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,
represents and warrants 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 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 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) The Borrower 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 or any Restricted Subsidiary of the
Borrower 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 or any
Subsidiary of the Borrower 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.
(f) The financial statements furnished to the Agent with this
certificate fairly present, in all material respects, the
consolidated financial condition and results of operations of the
Borrower and its Consolidated Subsidiaries as at the end of, and
for, the [fiscal quarter][fiscal year] ending _______ __, 20__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 officer signing this Certificate on behalf of the
General Partner hereby certifies that he/she holds the office set
forth under his/her signature and is authorized to execute this
Certificate on behalf of the General Partner.
EXECUTED AND DELIVERED this ____ day of ________________.
BUCKEYE PARTNERS, L.P.
By: Buckeye Pipe Line Company, its
general partner
By
Name:
Title:
EXHIBIT C
FORM OF ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT ("Agreement") dated as of
_____________, 200__ between: _________________________ (the
"Assignor") and _________________________ (the "Assignee").
RECITALS
A. The Assignor is a party to the Credit Agreement dated as of
[September 3, 2003] (as amended and supplemented and in effect
from time to time, the "Credit Agreement") among Buckeye
Partners, L.P., a limited partnership (the "Borrower"), 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
SunTrust Bank, in its individual capacity, ("SunTrust") 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 Commitment and
outstanding Loans, 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 rights
and obligations (i) under the Credit Agreement and the other
Loan Documents in respect of the Commitment of the Assignor
in the principal amount equal to $______________, and
(ii) to make Loans under the Commitment and any right to
receive payments for the Loans outstanding under the
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 _____________, 200__.
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 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. 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.
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 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 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:
(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) of the Credit Agreement, if
applicable, are true and accurate as to it 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(d); 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.
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:
Address for Notices:
Telecopier No.:
Telephone No.:
Attention:
ASSIGNEE:
By
Name:
Title:
Address for Notices:
Telecopier No.:
Telephone No.:
Attention:
ACKNOWLEDGED AND CONSENTED TO:
,
as Agent
By
Name:
Title:
EXHIBIT D-1
RESTRICTED SUBSIDIARIES
AS OF THE DATE HEREOF
Buckeye Pipe Line Company, L.P.
Buckeye Pipe Line Holdings, L.P.
Buckeye Gulf Coast Holdings I, LLC
Buckeye Gulf Coast Holdings II, LLC
Buckeye Gulf Coast Pipe Lines, L.P.
Buckeye Terminals, LLC
Norco Pipe Line Company, LLC
Everglades Pipe Line Company, L.P.
Buckeye Pipe Line Company of Michigan, L.P.
Laurel Pipe Line Company, L.P.
EXHIBIT D-2
UNRESTRICTED SUBSIDIARIES
AS OF THE DATE HEREOF
WesPac Pipelines - Austin LLC
WesPac Pipelines - Memphis LLC
WesPac Pipelines - Reno LLC
WesPac Pipelines - San Diego LLC
WesPac Pipelines - San ▇▇▇▇ LLC
Buckeye Telecom, L.P.
Buckeye Products Pipe Line, L.P.
Gulf Coast Pipe Line, L.P.
Gulf Coast / Products GP Holding, LLC
Gulf Coast / Products Holding, LP
EXHIBIT E
FORM OF GUARANTY
THIS GUARANTY, dated as of [September 3, 2003] by [NAME OF
GUARANTOR] (the "Guarantor"), is in favor of SUNTRUST BANK, as
agent (the "Agent") for the lenders (the "Lenders") that are or
become parties to the Credit Agreement defined below.
W I T N E S S E T H:
WHEREAS, on even date herewith, BUCKEYE PARTNERS, L.P., a
Delaware limited partnership (the "Borrower"), the Agent and the
Lenders have entered into that certain 364-Day Credit Agreement
(as the same may be amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"); and
WHEREAS, one of the terms and conditions stated in the
Credit Agreement for the making of the loans described therein is
the execution and delivery to the Agent for the benefit of the
Lenders of this Guaranty;
NOW, THEREFORE, (i) in order to comply with the terms and
conditions of the Credit Agreement, (ii) to induce the Lenders,
at any time or from time to time, to loan monies, with or without
security to or for the account of Borrower in accordance with the
terms of the Credit Agreement, (iii) at the special insistence
and request of the Lenders, and (iv) for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, Guarantor hereby agrees as follows:
ARTICLE I
GENERAL TERMS
Section 1.01. Certain Definitions.
As used in this Guaranty, the following terms shall have the
following meanings, unless the context otherwise requires:
"Agent" shall have the meaning assigned such term in
the preamble to this Guaranty.
"Borrower" shall have the meaning assigned such term in
the preamble to this Guaranty.
"Contribution Obligation" shall mean an amount equal,
at any time and from time to time and for each respective
Subsidiary Guarantor, to the product of (i) its Contribution
Percentage times (ii) the sum of all payments made previous
to or at the time of calculation by all Subsidiary
Guarantors in respect of the Liabilities, as a Subsidiary
Guarantor (less the amount of any such payments previously
returned to any Subsidiary Guarantor by operation of law or
otherwise, but not including payments received by any
Subsidiary Guarantor by way of its rights of subrogation and
contribution under Section 2.09 of the other Guaranty),
provided, however, such Contribution Obligation for any
Subsidiary Guarantor shall in no event exceed such
Subsidiary Guarantor's Maximum Guaranteed Amount, as defined
in the respective Guaranty of such Subsidiary Guarantor.
"Contribution Percentage" shall mean for any Subsidiary
Guarantor for any applicable date as of which such
percentage is being determined, an amount equal to the
quotient of (i) the Net Worth of such Subsidiary Guarantor
as of such date, divided by (ii) the sum of the Net Worth of
all the Subsidiary Guarantors as of such date.
"Credit Agreement" shall have the meaning assigned such
term in the preamble to this Guaranty.
"Guarantor" shall have the meaning assigned such term
in the preamble to this Guaranty.
"Guarantor Claims" shall have the meaning indicated in
Section 4.01 hereof.
"Guaranty" shall mean this Guaranty, and where the
context indicates, the Guaranty of any other Subsidiary
Guarantor, as the same may from time to time be amended,
supplemented, or otherwise modified.
"Lenders" shall have the meaning assigned such term in
the preamble to this Guaranty.
"Liabilities" shall mean (a) any and all indebtedness,
obligations and liabilities of the Borrower pursuant to the
Credit Agreement, including without limitation, (i) the
unpaid principal of and interest under the Credit Agreement,
including without limitation, interest accruing subsequent
to the filing of a petition or other action concerning
bankruptcy or other similar proceeding, (ii) payment of and
performance of any and all Hedging Agreements between the
Borrower and any of the Lenders or their Affiliates, and
(iii) any additional Loans made by the Lenders to the
Borrower; (b) any and all other indebtedness, obligations
and liabilities of any kind of the Borrower to the Lenders,
now or hereafter existing, arising directly between the
Borrower and the Lenders or acquired outright, as a
participation, conditionally or as collateral security from
another by the Lenders, absolute or contingent, joint and/or
several, secured or unsecured, due or not due, arising by
operation of law or otherwise, or direct or indirect,
including indebtedness, obligations and liabilities to the
Lenders of the Borrower as a member of any partnership,
syndicate, association or other group, and whether incurred
by the Borrower as principal, surety, endorser, guarantor,
accommodation party or otherwise and (c) all renewals,
rearrangements, substitutions, increases, extensions for any
period, amendments or supplements in whole or in part of the
Credit Agreement or any documents evidencing the above.
"Maximum Guaranteed Amount" shall mean, for the
Guarantor, the greater of (i) the "reasonably equivalent
value" or "fair consideration" (or equivalent concept)
received by the Guarantor in exchange for the obligation
incurred hereunder, within the meaning of any applicable
state or federal fraudulent conveyance or transfer laws; or
(ii) the lesser of (a) the maximum amount that will not
render the Guarantor insolvent, or (b) the maximum amount
that will not leave the Guarantor with any property deemed
an unreasonably small capital. Clauses (a) and (b) are and
shall be determined pursuant to and as of the appropriate
date mandated by such applicable state or federal fraudulent
conveyance or transfer laws and to the extent allowed by law
take into account the rights to contribution and subrogation
under Section 2.08 in each Guaranty so as to provide for the
largest Maximum Guaranteed Amount possible.
"Net Payments" shall mean an amount equal, at any time
and from time to time and for each respective Subsidiary
Guarantor, to the difference of (i) the sum of all payments
made previous to or at the time of calculation by such
Subsidiary Guarantor in respect to the Liabilities, as a
Subsidiary Guarantor, and in respect of its obligations
contained in this Guaranty, less (ii) the sum of all such
payments previously returned to such Subsidiary Guarantor by
operation of law or otherwise and including payments
received by such Subsidiary Guarantor by way of its rights
of subrogation and contribution under Section 2.08 of the
other Guaranty.
"Net Worth" shall mean for any Subsidiary Guarantor,
calculated on and as of any applicable date on which such
amount is being determined, the difference between (i) the
sum of all such Subsidiary Guarantor's property, at a fair
valuation and as of such date, minus (ii) the sum of all
such Subsidiary Guarantor's debts, at a fair valuation and
as of such date, excluding the Liabilities.
"Subsidiary Guarantors" shall mean the Guarantor and
any other Affiliate of the Borrower which executes a
guaranty securing the Liabilities.
Section 1.02. Credit Agreement Definitions.
Unless otherwise defined herein, all terms beginning with a
capital letter which are defined in the Credit Agreement shall
have the same meanings herein as therein.
ARTICLE II
THE GUARANTY
Section 2.01. Liabilities Guaranteed.
Guarantor hereby irrevocably and unconditionally guarantees
in favor of the Agent for the benefit of the Lenders the prompt
payment of the Liabilities when due, whether at maturity or
otherwise, provided, however, that, notwithstanding anything
herein or in any other Loan Document to the contrary, the maximum
liability of Guarantor hereunder shall in no event exceed the
Maximum Guaranteed Amount.
Section 2.02. Nature of Guaranty.
This Guaranty is an absolute, irrevocable, completed and
continuing guaranty of payment and not a guaranty of collection,
and no notice of the Liabilities or any extension of credit
already or hereafter contracted by or extended to Borrower need
be given to Guarantor. This Guaranty may not be revoked by
Guarantor and shall continue to be effective with respect to debt
under the Liabilities arising or created after any attempted
revocation by Guarantor and shall remain in full force and effect
until the Liabilities are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto
no Liabilities may be outstanding. The Borrower and the Lenders
may modify, alter, rearrange, extend for any period and/or renew
from time to time, the Liabilities, and the Lenders may waive any
Default or Event of Default without notice to the Guarantor and
in such event Guarantor will remain fully bound hereunder on the
Liabilities. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of the
Liabilities is rescinded or must otherwise be returned by any of
the Lenders upon the insolvency, bankruptcy or reorganization of
Borrower or otherwise, all as though such payment had not been
made. This Guaranty may be enforced by the Agent and any
subsequent holder of any of the Liabilities and shall not be
discharged by the assignment or negotiation of all or part of the
Liabilities. Except as otherwise expressly provided herein,
Guarantor hereby expressly waives presentment, demand, notice of
non-payment, protest and notice of protest and dishonor, notice
of Default or Event of Default, notice of intent to accelerate
the maturity and notice of acceleration of the maturity and any
other notice in connection with the Liabilities, and also notice
of acceptance of this Guaranty, acceptance on the part of the
Lenders being conclusively presumed by the Lenders' request for
this Guaranty and delivery of the same to the Agent.
Section 2.03. Guarantor's Waivers.
Guarantor waives any right to require any of the Lenders to
(i) proceed against Borrower or any other person liable on the
Liabilities, (ii) enforce any of their rights against any other
guarantor of the Liabilities, (iii) proceed or enforce any of
their rights against or exhaust any security given to secure the
Liabilities, (iv) have Borrower joined with Guarantor in any suit
arising out of this Guaranty and/or the Liabilities, or
(v) pursue any other remedy in the Lenders' powers whatsoever.
The Lenders shall not be required to mitigate damages or take any
action to reduce, collect or enforce the Liabilities. Guarantor
waives any defense arising by reason of any disability, lack of
corporate authority or power, or other defense of Borrower or any
other guarantor of the Liabilities, and shall remain liable
hereon regardless of whether Borrower or any other guarantor be
found not liable thereon for any reason. Whether and when to
exercise any of the remedies of the Lenders under any of the Loan
Documents shall be in the sole and absolute discretion of the
Agent, and no delay by the Agent in enforcing any remedy,
including delay in conducting a foreclosure sale, shall be a
defense to the Guarantor's liability under this Guaranty.
Section 2.04. Maturity of Liabilities; Payment.
Guarantor agrees that if the maturity of any of the
Liabilities is accelerated by bankruptcy or otherwise, such
maturity shall also be deemed accelerated for the purpose of this
Guaranty without demand or notice to Guarantor. Guarantor will,
forthwith upon notice from the Agent, pay to the Agent the amount
due and unpaid by Borrower and guaranteed hereby. The failure of
the Agent to give this notice shall not in any way release
Guarantor hereunder.
Section 2.05. Agent's Expenses.
If Guarantor fails to pay the Liabilities after notice from
the Agent of Borrower's failure to pay any Liabilities at
maturity, and if the Agent obtains the services of an attorney
for collection of amounts owing by Guarantor hereunder, or
obtaining advice of counsel in respect of any of their rights
under this Guaranty, or if suit is filed to enforce this
Guaranty, or if proceedings are had in any bankruptcy, probate,
receivership or other judicial proceedings for the establishment
or collection of any amount owing by Guarantor hereunder, or if
any amount owing by Guarantor hereunder is collected through such
proceedings, Guarantor agrees to pay to the Agent the Agent's
reasonable attorneys' fees.
Section 2.06. Liability.
It is expressly agreed that the liability of the Guarantor
for the payment of the Liabilities guaranteed hereby shall be
primary and not secondary.
Section 2.07. Events and Circumstances Not Reducing or
Discharging Guarantor's Obligations.
Guarantor hereby consents and agrees to each of the
following to the fullest extent permitted by law, and agrees that
Guarantor's obligations under this Guaranty shall not be
released, diminished, impaired, reduced or adversely affected by
any of the following, and waives any rights (including without
limitation rights to notice) which Guarantor might otherwise have
as a result of or in connection with any of the following:
(a) Modifications, etc. Any renewal, extension, modification,
increase, decrease, alteration or rearrangement of all or any
part of the Liabilities or the Credit Agreement or any instrument
executed in connection therewith, or any contract or
understanding between Borrower and any of the Lenders, or any
other Person, pertaining to the Liabilities;
(b) Adjustment, etc. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by any of the Lenders
to Borrower or Guarantor or any Person liable on the Liabilities;
(c) Condition of Borrower or Guarantor. The insolvency,
bankruptcy arrangement, adjustment, composition, liquidation,
disability, dissolution, death or lack of power of Borrower or
Guarantor or any other Person at any time liable for the payment
of all or part of the Liabilities; or any dissolution of Borrower
or Guarantor, or any sale, lease or transfer of any or all of the
assets of Borrower or Guarantor, or any changes in the
shareholders, partners, or members of Borrower or Guarantor; or
any reorganization of Borrower or Guarantor;
(d) Invalidity of Liabilities. The invalidity, illegality or
unenforceability of all or any part of the Liabilities, or any
document or agreement executed in connection with the
Liabilities, for any reason whatsoever, including without
limitation the fact that the Liabilities, or any part thereof,
exceed the amount permitted by law, the act of creating the
Liabilities or any part thereof is ultra ▇▇▇▇▇, the officers or
representatives executing the documents or otherwise creating the
Liabilities acted in excess of their authority, the Liabilities
violate applicable usury laws, the Borrower has valid defenses,
claims or offsets (whether at law, in equity or by agreement)
which render the Liabilities wholly or partially uncollectible
from Borrower, the creation, performance or repayment of the
Liabilities (or the execution, delivery and performance of any
document or instrument representing part of the Liabilities or
executed in connection with the Liabilities, or given to secure
the repayment of the Liabilities) is illegal, uncollectible,
legally impossible or unenforceable, or the Credit Agreement or
other documents or instruments pertaining to the Liabilities have
been forged or otherwise are irregular or not genuine or
authentic;
(e) Release of Obligors. Any full or partial release of the
liability of Borrower on the Liabilities or any part thereof, of
any co-guarantors, or any other Person now or hereafter liable,
whether directly or indirectly, jointly, severally, or jointly
and severally, to pay, perform, guarantee or assure the payment
of the Liabilities or any part thereof, it being recognized,
acknowledged and agreed by Guarantor that Guarantor may be
required to pay the Liabilities in full without assistance or
support of any other Person, and Guarantor has not been induced
to enter into this Guaranty on the basis of a contemplation,
belief, understanding or agreement that other parties other than
the Borrower will be liable to perform the Liabilities, or the
Lenders will look to other parties to perform the Liabilities.
(f) Other Security. The taking or accepting of any other
security, collateral or guaranty, or other assurance of payment,
for all or any part of the Liabilities;
(g) Release of Collateral, etc. Any release, surrender,
exchange, subordination, deterioration, waste, loss or impairment
(including without limitation negligent, willful, unreasonable or
unjustifiable impairment) of any collateral, property or
security, at any time existing in connection with, or assuring or
securing payment of, all or any part of the Liabilities;
(h) Care and Diligence. The failure of the Lenders or any other
Person to exercise diligence or reasonable care in the
preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral, property or
security;
(i) Status of Liens. The fact that any collateral, security,
security interest or lien contemplated or intended to be given,
created or granted as security for the repayment of the
Liabilities shall not be properly perfected or created, or shall
prove to be unenforceable or subordinate to any other security
interest or lien, it being recognized and agreed by Guarantor
that Guarantor is not entering into this Guaranty in reliance on,
or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral
for the Liabilities;
(j) Payments Rescinded. Any payment by Borrower to the Lenders
is held to constitute a preference under the bankruptcy laws, or
for any reason the Lenders are required to refund such payment or
pay such amount to Borrower or someone else; or
(k) Other Actions Taken or Omitted. Any other action taken or
omitted to be taken with respect to the Credit Agreement, the
Liabilities, or the security and collateral therefor, whether or
not such action or omission prejudices Guarantor or increases the
likelihood that Guarantor will be required to pay the Liabilities
pursuant to the terms hereof; it being the unambiguous and
unequivocal intention of Guarantor that Guarantor shall be
obligated to pay the Liabilities when due, notwithstanding any
occurrence, circumstance, event, action, or omission whatsoever,
whether contemplated or uncontemplated, and whether or not
otherwise or particularly described herein, except for the full
and final payment and satisfaction of the Liabilities.
Section 2.08. Right of Subrogation and Contribution.
If Guarantor makes a payment in respect of the Liabilities,
it shall be subrogated to the rights of the Lenders against the
Borrower with respect to such payment and shall have the rights
of contribution against the other Subsidiary Guarantors set forth
in Section 2.08 of the Subsidiary Guarantors' Guaranty; provided
that Guarantor shall not enforce its rights to any payment by way
of subrogation or by exercising its rights of contribution or
reimbursement or the right to participate in any security now or
hereafter held by or for the benefit of the Lenders until the
Liabilities have been paid in full. The Guarantor agrees that
after all the Liabilities have been paid in full that if its then
current Net Payments are less than the amount of its then current
Contribution Obligation, Guarantor shall pay to the other
Subsidiary Guarantors an amount (together with any payments
required of the other Subsidiary Guarantors by Section 2.08 of
each other Guaranty) such that the Net Payments made by all
Subsidiary Guarantors in respect of the Liabilities shall be
shared among all of the Subsidiary Guarantors in proportion to
their respective Contribution Percentage.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. By Guarantor.
In order to induce the Lenders to accept this Guaranty,
Guarantor represents and warrants to the Lenders (which
representations and warranties will survive the creation of the
Liabilities and any extension of credit thereunder) that:
(a) Benefit to Guarantor. Guarantor's guaranty pursuant to this
Guaranty reasonably may be expected to benefit, directly or
indirectly, Guarantor.
(b) Existence. Guarantor is a [limited partnership] duly
organized, legally existing and in good standing under the laws
of [the State of Delaware] and is duly qualified in all
jurisdictions wherein the property owned or the business
transacted by it makes such qualification necessary, except where
the failure to be so qualified would not have a Material Adverse
Effect.
(c) Partnership Power and Authorization. Guarantor is duly
authorized and empowered to execute, deliver and perform this
Guaranty and all action on Guarantor's part requisite for the due
execution, delivery and performance of this Guaranty has been
duly and effectively taken.
(d) Binding Obligations. This Guaranty constitutes valid and
binding obligations of Guarantor, enforceable in accordance with
its terms (except that enforcement may be subject to any
applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, or similar laws generally affecting the enforcement
of creditors' rights).
(e) No Legal Bar or Resultant Lien. This Guaranty will not
violate any provisions of Guarantor's [agreement of limited
partnership], or any contract, agreement, law, regulation, order,
injunction, judgment, decree or writ to which Guarantor is
subject, or result in the creation or imposition of any Lien upon
any Properties of Guarantor.
(f) No Consent. Guarantor's execution, delivery and performance
of this Guaranty does not require the consent or approval of any
other Person, including without limitation any regulatory
authority or governmental body of the United States or any state
thereof or any political subdivision of the United States or any
state thereof.
(g) Solvency. The Guarantor hereby represents that (i) it is
not insolvent as of the date hereof and will not be rendered
insolvent as a result of this Guaranty, (ii) it is not engaged in
business or a transaction, or about to engage in a business or a
transaction, for which any property or assets remaining with such
Guarantor is unreasonably small capital, and (iii) it does not
intend to incur, or believe it will incur, debts that will be
beyond its ability to pay as such debts mature.
Section 3.02. No Representation by Lenders.
Neither the Lenders nor any other Person has made any
representation, warranty or statement to the Guarantor in order
to induce the Guarantor to execute this Guaranty.
ARTICLE IV
SUBORDINATION OF INDEBTEDNESS
Section 4.01. Subordination of All Guarantor Claims.
As used herein, the term "Guarantor Claims" shall mean all
debts and liabilities of Borrower to Guarantor, whether such
debts and liabilities now exist or are hereafter incurred or
arise, or whether the obligation of Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or
otherwise, and irrespective of whether such debts or liabilities
be evidenced by note, contract, open account, or otherwise, and
irrespective of the person or persons in whose favor such debts
or liabilities may, at their inception, have been, or may
hereafter be created, or the manner in which they have been or
may hereafter be acquired by Guarantor. The Guarantor Claims
shall include without limitation all rights and claims of
Guarantor against Borrower arising as a result of subrogation or
otherwise as a result of Guarantor's payment of all or a portion
of the Liabilities. Until the Liabilities shall be paid and
satisfied in full and Guarantor shall have performed all of its
obligations hereunder, except as otherwise not prohibited by the
Credit Agreement, Guarantor shall not receive or collect,
directly or indirectly, from Borrower or any other party any
amount upon the Guarantor Claims.
Section 4.02. Claims in Bankruptcy.
In the event of receivership, bankruptcy, reorganization,
arrangement, debtor's relief, or other insolvency proceedings
involving Borrower as debtor, the Lenders shall have the right to
prove their claim in any proceeding, so as to establish its
rights hereunder and receive directly from the receiver, trustee
or other court custodian, dividends and payments which would
otherwise be payable upon Guarantor Claims. Guarantor hereby
assigns such dividends and payments to the Lenders. Should the
Agent or any Lender receive, for application upon the
Liabilities, any such dividend or payment which is otherwise
payable to Guarantor, and which, as between Borrower and
Guarantor, shall constitute a credit upon the Guarantor Claims,
then upon payment in full of the Liabilities, Guarantor shall
become subrogated to the rights of the Lenders to the extent that
such payments to the Lenders on the Guarantor Claims have
contributed toward the liquidation of the Liabilities, and such
subrogation shall be with respect to that proportion of the
Liabilities which would have been unpaid if the Agent or a Lender
had not received dividends or payments upon the Guarantor Claims.
Section 4.03. Payments Held in Trust.
In the event that notwithstanding Sections 4.01 and 4.02
above, Guarantor should receive any funds, payments, claims or
distributions which is prohibited by such Sections, Guarantor
agrees to hold in trust for the Lenders an amount equal to the
amount of all funds, payments, claims or distributions so
received, and agrees that it shall have absolutely no dominion
over the amount of such funds, payments, claims or distributions
except to pay them promptly to the Agent, and Guarantor covenants
promptly to pay the same to the Agent.
Section 4.04. Liens Subordinate.
Guarantor agrees that any liens, security interests,
judgment liens, charges or other encumbrances upon Borrower's
assets securing payment of the Guarantor Claims shall be and
remain inferior and subordinate to any liens, security interests,
judgment liens, charges or other encumbrances upon Borrower's
assets securing payment of the Liabilities, regardless of whether
such encumbrances in favor of Guarantor, the Agent or the Lenders
presently exist or are hereafter created or attach. Without the
prior written consent of the Lenders, Guarantor shall not
(a) exercise or enforce any creditor's right it may have against
the Borrower, or (b) foreclose, repossess, sequester or otherwise
take steps or institute any action or proceeding (judicial or
otherwise, including without limitation the commencement of or
joinder in any liquidation, bankruptcy, rearrangement, debtor's
relief or insolvency proceeding) to enforce any lien, mortgages,
deeds of trust, security interest, collateral rights, judgments
or other encumbrances on assets of Borrower held by Guarantor.
Section 4.05. Notation of Records.
All promissory notes, accounts receivable ledgers or other
evidence of the Guarantor Claims accepted by or held by Guarantor
shall contain a specific written notice thereon that the
indebtedness evidenced thereby is subordinated under the terms of
this Guaranty.
ARTICLE V
MISCELLANEOUS
Section 5.01. Successors and Assigns.
This Guaranty is and shall be in every particular available
to the successors and assigns of the Lenders and is and shall
always be fully binding upon the legal representatives, heirs,
successors and assigns of Guarantor, notwithstanding that some or
all of the monies, the repayment of which this Guaranty applies,
may be actually advanced after any bankruptcy, receivership,
reorganization, death, disability or other event affecting
Guarantor.
Section 5.02. Notices.
Any notice or demand to Guarantor under or in connection
with this Guaranty may be given and shall conclusively be deemed
and considered to have been given and received in accordance with
Section 12.02 of the Credit Agreement, addressed to Guarantor at
the address on the signature page hereof or at such other address
provided to the Agent in writing.
Section 5.03. Business and Financial Information.
The Guarantor will promptly furnish to the Agent and the
Lenders from time to time upon request such information regarding
the business and affairs and financial condition of the Guarantor
and its subsidiaries as the Agent and the Lenders may reasonably
request.
Section 5.04. Construction.
This Guaranty is a contract made under and shall be
construed in accordance with and governed by the law of the State
of New York.
Section 5.05. Invalidity.
In the event that any one or more of the provisions
contained in this Guaranty shall, for any reason, be held
invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision of this Guaranty.
Section 5.06. Entire Agreement.
THIS WRITTEN GUARANTY EMBODIES THE ENTIRE AGREEMENT AND
UNDERSTANDING BETWEEN THE LENDERS AND THE GUARANTOR AND
SUPERSEDES ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH
PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF. THIS
WRITTEN GUARANTY REPRESENTS 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.
WITNESS THE EXECUTION HEREOF, as of the date first above
written.
[NAME OF GUARANTOR]
By _______________________,
its General Partner
By
Name:
Title:
[NOTARY IF REQUIRED]