BRIDGE CREDIT AGREEMENT Dated as of May 9, 2007 among DCP MIDSTREAM OPERATING, LP as the Borrower, DCP MIDSTREAM PARTNERS, LP and its subsidiaries as Guarantors, THE LENDERS PARTY HERETO and WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent
Dated
as
of May 9, 2007
among
DCP
MIDSTREAM OPERATING, LP
as
the
Borrower,
and
its
subsidiaries
as
Guarantors,
THE
LENDERS PARTY
HERETO
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Administrative Agent
WACHOVIA
CAPITAL MARKETS, LLC
as
Sole
Lead Arranger and Sole Book Manager
TABLE
OF CONTENTS
|
SECTION
1. DEFINITIONS AND ACCOUNTING TERMS
|
1
|
|
|
1.1
|
Definitions.
|
1
|
|
1.2
|
Computation
of Time Periods.
|
13
|
|
1.3
|
Accounting
Terms.
|
13
|
|
1.4
|
Time.
|
13
|
|
SECTION
2. LOANS
|
13
|
|
|
2.1
|
Term
Loan.
|
13
|
|
2.2
|
Intentionally
Omitted.
|
14
|
|
2.3
|
Method
of Borrowing for Term Loans.
|
14
|
|
2.4
|
Funding
of Term Loans.
|
14
|
|
2.5
|
Continuations
and Conversions.
|
14
|
|
2.6
|
Minimum
Amounts.
|
15
|
|
2.7
|
Intentionally
Omitted.
|
15
|
|
2.8
|
Intentionally
Omitted.
|
15
|
|
2.9
|
Notes.
|
15
|
|
SECTION
3. PAYMENTS
|
15
|
|
|
3.1
|
Interest.
|
15
|
|
3.2
|
Voluntary
Prepayments.
|
16
|
|
3.3
|
Payment
of Loans in full at Maturity.
|
16
|
|
3.4
|
Intentionally
Omitted. [CONFIRM NO FEES PAYABLE DURING TERM]
|
16
|
|
3.5
|
Place
and Manner of Payments.
|
16
|
|
3.6
|
Pro
Rata Treatment.
|
17
|
|
3.7
|
Computations
of Interest and Fees.
|
17
|
|
3.8
|
Sharing
of Payments.
|
18
|
|
3.9
|
Evidence
of Debt.
|
18
|
|
SECTION
4. ADDITIONAL PROVISIONS
|
19
|
|
|
4.1
|
Eurodollar
Loan Provisions.
|
19
|
|
4.2
|
Capital
Adequacy.
|
21
|
|
4.3
|
Compensation.
|
21
|
|
4.4
|
Taxes.
|
22
|
|
4.5
|
Replacement
of Lenders.
|
23
|
|
SECTION
5. CONDITIONS PRECEDENT
|
24
|
|
|
5.1
|
Closing/Funding
Conditions.
|
24
|
|
SECTION
6. REPRESENTATIONS AND WARRANTIES
|
26
|
|
|
6.1
|
Organization
and Good Standing.
|
26
|
|
6.2
|
Due
Authorization.
|
26
|
|
6.3
|
No
Conflicts.
|
27
|
|
6.4
|
Consents.
|
27
|
|
6.5
|
Enforceable
Obligations.
|
27
|
|
6.6
|
Financial
Condition/Material Adverse Effect.
|
27
|
|
6.7
|
Taxes.
|
27
|
|
6.8
|
Compliance
with Law.
|
27
|
|
6.9
|
Use
of Proceeds; Margin Stock.
|
28
|
|
6.10
|
Government
Regulation.
|
28
|
|
6.11
|
Solvency.
|
28
|
|
6.12
|
Environmental
Matters.
|
28
|
|
6.13
|
Subsidiaries.
|
28
|
|
6.14
|
Litigation.
|
28
|
|
6.15
|
Intentionally
Omitted.
|
28
|
|
6.16
|
Material
Contracts.
|
29
|
|
6.17
|
Anti-Terrorism
Laws.
|
29
|
|
6.18
|
Compliance
with OFAC Rules and Regulations.
|
29
|
|
6.19
|
Compliance
with FCPA.
|
29
|
|
SECTION
7. AFFIRMATIVE COVENANTS
|
29
|
|
|
7.1
|
Information
Covenants.
|
29
|
|
7.2
|
Preservation
of Existence and Franchises.
|
32
|
|
7.3
|
Books
and Records.
|
32
|
|
7.4
|
Compliance
with Law.
|
32
|
|
7.5
|
Payment
of Taxes and Other Indebtedness.
|
32
|
|
7.6
|
Maintenance
of Property; Insurance.
|
32
|
|
7.7
|
Use
of Proceeds.
|
33
|
|
7.8
|
Audits/Inspections.
|
33
|
|
7.9
|
Maintenance
of Ownership.
|
33
|
|
7.10
|
Financial
Covenants.
|
33
|
|
7.11
|
Material
Contracts.
|
33
|
|
7.12
|
Additional
Guarantors.
|
34
|
|
SECTION
8. NEGATIVE COVENANTS
|
34
|
|
|
8.1
|
Nature
of Business.
|
34
|
|
8.2.
|
Liens.
|
34
|
|
8.3
|
Consolidation
and Merger.
|
36
|
|
8.4
|
Dispositions.
|
36
|
|
8.5
|
Transactions
with Affiliates.
|
37
|
|
8.6
|
Indebtedness.
|
37
|
|
8.7
|
Investments.
|
38
|
|
8.8
|
Restricted
Payments.
|
39
|
|
SECTION
9. EVENTS OF DEFAULT
|
39
|
|
|
9.1
|
Events
of Default.
|
39
|
|
9.2
|
Acceleration;
Remedies.
|
41
|
|
9.3
|
Allocation
of Payments After Event of Default.
|
42
|
|
SECTION
10. AGENCY PROVISIONS
|
42
|
|
|
10.1
|
Appointment.
|
42
|
|
10.2
|
Delegation
of Duties.
|
43
|
|
10.3
|
Exculpatory
Provisions.
|
43
|
|
10.4
|
Reliance
on Communications.
|
43
|
|
10.5
|
Notice
of Default.
|
44
|
|
10.6
|
Non-Reliance
on Agent and Other Lenders.
|
44
|
|
10.7
|
Indemnification.
|
44
|
|
10.8
|
Agent
in Its Individual Capacity.
|
45
|
|
10.9
|
Successor
Agent.
|
45
|
|
SECTION
11. MISCELLANEOUS
|
45
|
|
|
11.1
|
Notices.
|
45
|
|
11.2
|
Right
of Set-Off.
|
46
|
|
11.3
|
Benefit
of Agreement.
|
46
|
|
11.4
|
No
Waiver; Remedies Cumulative.
|
48
|
|
11.5
|
Payment
of Expenses, etc.
|
48
|
|
11.6
|
Amendments,
Waivers and Consents.
|
49
|
|
11.7
|
Counterparts/Telecopy.
|
50
|
|
11.8
|
Headings.
|
50
|
|
11.9
|
Defaulting
Lender.
|
50
|
|
11.10
|
Survival
of Indemnification and Representations and Warranties.
|
50
|
|
11.11
|
Governing
Law; Venue.
|
50
|
|
11.12
|
Waiver
of Jury Trial; Waiver of Consequential Damages.
|
51
|
|
11.13
|
Severability.
|
51
|
|
11.14
|
Further
Assurances.
|
51
|
|
11.15
|
Entirety.
|
51
|
|
11.16
|
Binding
Effect; Continuing Agreement.
|
51
|
|
11.17
|
Confidentiality;
USA PATRIOT Act.
|
52
|
|
SECTION
12. GUARANTY
|
52
|
|
|
12.1
|
The
Guaranty.
|
52
|
|
12.2
|
Obligations
Unconditional.
|
52
|
|
12.3
|
Reinstatement.
|
53
|
|
12.4
|
Certain
Additional Waivers.
|
54
|
|
12.5
|
Remedies.
|
54
|
|
12.6
|
Rights
of Contribution.
|
54
|
|
12.7
|
Guarantee
of Payment; Continuing Guarantee.
|
54
|
SCHEDULES
| Schedule 1.1 |
Commitment
Percentages
|
| Schedule 6.13 |
Subsidiaries
|
| Schedule 8.5 |
Affiliate
Transactions
|
| Schedule 11.1 |
Notices
|
EXHIBITS
| Exhibit 1.1 |
Form
of Rating Agency Designation
|
| Exhibit 2.3 |
Form
of Notice of Borrowing
|
| Exhibit 2.5 |
Form
of Notice of
Continuation/Conversion
|
| Exhibit 2.9 |
Form
of Term Loan Note
|
| Exhibit 5.1 |
Form
of Account Designation Letter
|
| Exhibit 7.1(d) |
Form
of Officer's Certificate
|
| Exhibit 7.12 |
Form
of Joinder Agreement
|
| Exhibit 11.3(b) |
Form
of Assignment Agreement
|
THIS
BRIDGE CREDIT AGREEMENT
(this
"Credit
Agreement"),
dated
as of May 9, 2007, is entered into among DCP
MIDSTREAM OPERATING, LP,
a
Delaware limited partnership (the "Borrower"),
DCP
MIDSTREAM PARTNERS, LP,
a
Delaware limited partnership (the "Parent")
and
all Subsidiaries of the Parent (collectively, the "Guarantors"),
the
Lenders (as defined herein) and WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
administrative agent for the Lenders (in such capacity, the "Agent").
RECITALS
WHEREAS,
the
Borrower has requested that the Lenders make available to it a term loan credit
facility in the amount of $100 million for the purposes set forth herein;
and
WHEREAS,
the
Lenders have agreed to provide the requested term loan credit facility to the
Borrower on the terms, and subject to the conditions, set forth
herein.
NOW,
THEREFORE, IN CONSIDERATION of
the
premises and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION
1.
DEFINITIONS
AND ACCOUNTING TERMS
| 1.1 |
Definitions.
|
As
used
herein, the following terms shall have the meanings herein specified unless
the
context otherwise requires. Defined terms herein shall include in the singular
number the plural and in the plural the singular:
"2005
CA Agent"
means
Wachovia Bank, N.A., in its capacity as agent under the 2005 Credit Agreement,
together with its permitted successors and/or assigns in such
capacity.
"2005
CA Cash Collateral"
means
the “Cash Collateral” as defined in the 2005 Credit Agreement.
"2005
Credit Agreement"
means
that certain Credit Agreement dated as of December
7, 2005 among
the
Borrower, the Guarantors, Wachovia Bank, N.A., as agent, the lenders from time
to time party thereto, as amended pursuant to that certain First Amendment
to
Credit Agreement dated as of May 4, 2007 and as the same may be from time to
time further amended, restated, supplemented or otherwise modified in accordance
with its terms.
"Acquisition"
by
any
Person, means the acquisition by such Person, in a single transaction or in
a
series of related transactions, of property or assets (other than capital
expenditures or acquisitions of inventory or supplies in the ordinary course
of
business) of, or of a business unit or division of, another Person or at least
a
majority of
the
securities having ordinary voting power for the election of directors, managing
general partners or the equivalent
of
another Person, in each case whether or not involving a merger or consolidation
with such other Person and whether for cash, property, services, assumption
of
Indebtedness, securities or otherwise.
"Account
Designation Letter"
means
the Notice of Account Designation Letter dated the Closing Date from the
Borrower to the Agent in substantially the form attached hereto as Exhibit 5.1.
"Adjusted
Base Rate"
means
the Base Rate plus the Applicable Margin for Base Rate Loans.
"Adjusted
Eurodollar Rate"
means
the Eurodollar Rate plus the Applicable Margin for Eurodollar
Loans.
"Affiliate"
means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with such Person.
A
Person shall be deemed to control a corporation if such Person possesses,
directly or indirectly, the power to direct or cause direction of the management
and policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agency
Services Address"
means
Wachovia Bank, National Association, as Administrative Agent, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇-▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address
as may be identified by written notice from the Agent to the Borrower and the
Lenders.
"Agent"
means
Wachovia Bank, National Association and any successors and assigns in such
capacity.
"Applicable
Margin"
means,
at any time (a) for Eurodollar Loans, 0.75% and (b) for Base Rate Loans,
0%.
"Approved
Officer"
means
the president, a vice president, the treasurer or the assistant treasurer of
the
applicable Credit Party or such other authorized representative of such Credit
Party as may be designated by any one of the foregoing.
"Assignment
Agreement"
means
an Assignment Agreement executed and delivered pursuant to Section
11.3(b).
"Available
Cash"
has the
meaning ascribed to such term in the First Amended and Restated Agreement of
Limited Partnership of the Parent as in effect on the Effective Date, with
such
amendments thereto as agreed to by the Required Lenders.
"Bankruptcy
Code"
means
the Bankruptcy Code in Title 11 of the United States Code, as amended,
modified, succeeded or replaced from time to time.
"Base
Rate"
means,
for any day, the rate per annum equal to the greater of (a) the Federal
Funds Rate in effect on such day plus ½ of 1% or (b) the Prime Rate in
effect on such day. Any change in the Base Rate due to a change in the Prime
Rate or the Federal Funds Rate shall be effective on the effective date of
such
change in the Prime Rate or the Federal Funds Rate, respectively.
"Base
Rate Loan"
means a
Loan which bears interest based on the Base Rate.
"Borrower"
means
DCP Midstream Operating, LP a Delaware limited partnership.
"Business
Day"
means
any day other than a Saturday, a Sunday, a legal holiday or a day on which
banking institutions are authorized or required by law or other governmental
action to close in ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; provided,
that in
the case of Eurodollar Loans, such day is also a day on which dealings between
banks are carried on in U.S. dollar deposits in the London interbank
market.
"Businesses"
has the
meaning set forth in Section 6.12.
"Capital
Lease"
means,
as applied to any Person, any lease of any Property (whether real, personal
or
mixed) by that Person as lessee that, in accordance with GAAP, is required
to be
accounted for as a capital lease on the balance sheet of that
Person.
"Capital
Stock"
means
(a) in the case of a corporation, all classes of capital stock of such
corporation, (b) in the case of a partnership, partnership interests
(whether general or limited), (c) in the case of a limited liability
company, membership interests and (d) any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.
"Cash
Equivalents"
means,
as at any date, (a) securities guaranteed or insured by the United States
or any agency or instrumentality thereof (provided that the full faith and
credit of the United States is pledged in support thereof) having maturities
of
not more than twelve months from the date of acquisition, (b) Dollar
denominated time deposits and certificates of deposit of (i) any Lender,
(ii) any domestic commercial bank of recognized standing having capital and
surplus in excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the equivalent thereof
or from ▇▇▇▇▇'▇ is at least P-1 or the equivalent thereof (any such bank being
an "Approved
Bank"),
in
each case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes issued
by any Approved Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody's and maturing within six months of the date of acquisition,
(d) repurchase agreements entered into by any Person with a bank or trust
company (including any of the Lenders) or recognized securities dealer having
capital and surplus in excess of $500,000,000 for direct obligations issued
by
or fully guaranteed by the United States in which such Person shall have a
perfected first priority security interest (subject to no other Liens) and
having, on the date of purchase thereof, a fair market value of at least 100%
of
the amount of the repurchase obligations and (e) Investments, classified in
accordance with GAAP as current assets, in money market investment programs
registered under the Investment Company Act of 1940 which are administered
by
reputable financial institutions having capital of at least $500,000,000 or
having portfolio assets of at least $5,000,000,000 and the portfolios of which
are limited to Investments of the character described in the foregoing
subdivisions (a) through (d).
"Change
of Control"
means
as of any date, the failure of (a) the Parent to own, directly or indirectly,
100% of the equity of the Borrower or (b) Duke Energy Field Services, LLC to
own, directly or indirectly, a majority of the voting equity of the general
partner of the Parent.
"Closing
Date"
means
the date hereof.
"Code"
means
the Internal Revenue Code of 1986, as amended from time to time.
"Commitment"
means,
as to each Lender, the commitment of such Lender with respect to the Term Loan
Committed Amount and "Commitments"
means,
collectively, all such commitments of the Lenders.
"Commitment
Percentage"
means,
for each Lender, the percentage identified as its Commitment Percentage opposite
such Lender's name on Schedule
1.1,
as such
percentage may be modified by assignment.
"Conflicts
Committee"
has the
meaning ascribed thereto in the First Amended and Restated Agreement of Limited
Partnership of the Parent, as amended or restated from time to
time.
"Consolidated
EBITDA"
means,
for any period, an amount equal to Consolidated Net Income for such period
plus,
to the extent deducted in determining Consolidated Net Income for such period,
the aggregate amount of (a) taxes based on or measured by income, (b)
Consolidated Interest Expense and (c) depreciation and amortization
expense.
"Consolidated
Indebtedness"
means,
without duplication, all Indebtedness of the Parent and its Subsidiaries on
a
consolidated basis, minus the principal amount of 2005 CA Cash Collateral then
held by the 2005 CA Agent.
"Consolidated
Interest Coverage Ratio"
means,
as of the last day of each fiscal quarter of the Parent, the ratio of (a)
Consolidated EBITDA for the period of four consecutive fiscal quarters ending
on
such day to (b) Consolidated Interest Expense for the period of four consecutive
fiscal quarters ending on such day.
"Consolidated
Interest Expense"
means
interest expense as would appear on a consolidated statement of income of the
Parent and its Subsidiaries prepared in accordance with GAAP; provided,
that
Consolidated Interest Expense associated with the term loans under the 2005
Credit Agreement for any period shall be reduced by any interest income earned
on the 2005 CA Cash Collateral during such period.
"Consolidated
Leverage Ratio"
means,
as of the last day of each fiscal quarter of the Parent, the ratio of (a)
Consolidated Indebtedness on such day to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters ending on such day.
"Consolidated
Net Income"
means,
for any period, the net income of the Parent and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP; provided,
that
Consolidated Net Income shall not include (i) extraordinary gains or
extraordinary losses, (ii) net gains and losses in respect of disposition of
assets other than in the ordinary course of business, (iii) gains or losses
attributable to write-ups or write-downs of assets other than hedging and
derivative activities in the ordinary course of business and (iv) the cumulative
effect of a change in accounting principles, all as reported in the Parent's
consolidated statement(s) of income for the relevant period(s) prepared in
accordance with GAAP.
"Consolidated
Net Tangible Assets"
means,
at any date of determination, the total amount of consolidated assets of the
Parent and its Subsidiaries after deducting therefrom the value (net of any
applicable reserves) of all goodwill, trade names, trademarks, patents and
other
like intangible assets, all as set forth, or on a pro forma basis would be
set
forth, on the consolidated balance sheet of the Parent and its Subsidiaries
for
the most recently completed fiscal quarter, in accordance with
GAAP.
"Credit
Documents"
means
this Credit Agreement, the Notes, any Notice of Borrowing, any Notice of
Continuation/Conversion and all other related agreements and documents issued
or
delivered hereunder or thereunder or pursuant hereto or thereto.
"Credit
Exposure"
means,
as applied to each Lender the sum of the principal balance of the outstanding
Loans of such Lender.
"Credit
Facility Swap Contract"
means
any interest rate Swap Contract entered into by a Credit Party with a Lender
or
an Affiliate of a Lender with respect to the Obligations.
"Credit
Parties"
means
the Borrower and the Guarantors.
"Debt
Rating"
means,
the long-term senior unsecured, non-credit enhanced debt rating of the Parent
by
the Designated Rating Agencies.
"Default"
means
any event, act or condition which with notice or lapse of time, or both, would
constitute an Event of Default.
"Defaulting
Lender"
means,
at any time, any Lender that, at such time (a) has failed to make a Loan
required pursuant to the term of this Credit Agreement, (b) has failed to
pay to the Agent or any Lender an amount owed by such Lender pursuant to the
terms of this Credit Agreement or (c) has been deemed insolvent by a court
of competent jurisdiction or has become subject to a bankruptcy or insolvency
proceeding or to a receiver, trustee or similar official.
"Designated
Rating Agencies"
shall
mean any two of S&P, Moody's or any other rating agency selected by the
Parent which is recognized by the Securities and Exchange Commission and
identified by the Parent from time to time in a Rating Agency Designation and
“Designated
Rating Agency”
shall
mean any one of the foregoing. Until such time as the Parent shall have
delivered a Rating Agency Designation to the Agent, the Designated Rating
Agencies shall be S&P and Moody's.
"Disposition"
or
"Dispose"
means
the sale, transfer, license, lease or other disposition (including any Sale
and
Leaseback Transaction) of any Property by a Credit Party (including the Equity
Interests of any Subsidiary), including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or
any
rights and claims associated therewith.
"Dollars"
and
"$"
means
dollars in lawful currency of the United States of America.
"Effective
Date"
means
the date on which the conditions set forth in Section 5.1 shall have been
fulfilled (or waived in the sole discretion of the Lenders).
"Eligible
Assignee"
means
(a) any Lender approved by the Borrower and the Agent, (b) any existing
Lender or an Affiliate of an existing Lender and (c) any other Person
approved by the Borrower and the Agent (in each case, which approval by the
Borrower and the Agent shall not be unreasonably withheld or delayed);
provided,
that
(A) the Borrower's consent is not required during the existence and
continuation of an Event of Default and (B) neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental
Laws"
means
any legal requirement of any Governmental Authority pertaining to (a) the
protection of health, safety, and the indoor or outdoor environment,
(b) the conservation, management, or use of natural resources and wildlife,
(c) the protection or use of surface water and groundwater or (d) the
management, manufacture, possession, presence, use, generation, transportation,
treatment, storage, disposal, release, threatened release, abatement, removal,
remediation or handling of, or exposure to, any hazardous or toxic substance
or
material or (e) pollution (including any release to land surface water and
groundwater) and includes, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act
of
1976 and Hazardous and Solid Waste Amendment of 1984, 42 USC 6901 et
seq., Federal Water Pollution Control Act, as amended by the Clean Water Act
of
1977, 33 USC 1251 et seq., Clean Air Act, as amended,
42 USC 7401 et seq., Toxic Substances Control Act of 1976,
15 USC 2601 et seq., Hazardous Materials Transportation Act,
49 USC App. 1801 et seq., Occupational Safety and Health Act of 1970,
as amended, 29 USC 651 et seq., Oil Pollution Act of 1990,
33 USC 2701 et seq., Emergency Planning and Community Right-to-Know
Act of 1986, 42 USC 11001 et seq., National Environmental Policy Act
of 1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974, as
amended, 42 USC 300(f) et seq., any analogous implementing or
successor law, and any amendment, rule, regulation, order, or directive issued
thereunder.
"ERISA"
means
the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
thereunder, all as the same may be in effect from time to time. References
to
sections of ERISA shall be construed also to refer to any successor
sections.
"ERISA
Affiliate"
means
an entity, whether or not incorporated, which is under common control with
the
Parent or any of its Subsidiaries within the meaning of Section 4001(a)(14)
of ERISA, or is a member of a group which includes the Parent or any of its
Subsidiaries and which is treated as a single employer under
Sections 414(b), (c), (m), or (o) of the Code.
"Eurodollar
Loan"
means a
Loan bearing interest at the Adjusted Eurodollar Rate.
"Eurodollar
Rate"
means
with respect to any Eurodollar Loan, for the Interest Period applicable thereto,
a rate per annum equal to the London Interbank Offered Rate.
"Eurodollar
Reserve Percentage"
means,
for any day, that percentage (expressed as a decimal) which is in effect from
time to time under Regulation D as the maximum reserve requirement
(including, without limitation, any basic, supplemental, emergency, special,
or
marginal reserves) applicable with respect to Eurocurrency liabilities, as
that
term is defined in Regulation D (or against any other category of
liabilities that includes deposits by reference to which the interest rate
of
Eurodollar Loans is determined).
"Event
of Default"
has the
meaning specified in Section 9.1.
"Exchange
Act"
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, as amended, modified, succeeded or replaced from time
to
time.
"Extension
of Credit"
means,
as to any Lender, the making of a Loan by such Lender (or a participation
therein by a Lender).
"Federal
Funds Rate"
means
for any day the rate per annum (rounded upward to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal funds
transactions with members 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
(a) if such day 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
and
(b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate quoted to the
Agent on such day on such transactions as determined by the Agent.
"GAAP"
means
generally accepted accounting principles in the United States applied on a
consistent basis and subject to Section 1.3.
"Governmental
Authority"
means
any Federal, state, local or foreign court, monetary authority or governmental
agency, authority, instrumentality or regulatory body.
"Guarantor"
means
(a) the Parent, (b) each Subsidiary of the Parent in existence as of the
Effective Date (other than the Borrower) and (c) any Person which becomes a
"Guarantor" pursuant to Section 7.11 hereof, in each case, together with their
successors and permitted assigns.
"Indebtedness"
of any
Person means, without duplication, (a) all obligations of such Person for
borrowed money, (b) all obligations of such Person for the deferred
purchase price of property or services purchased, (c) all obligations of
such Person created or arising under any conditional sale or other title
retention agreement with respect to the property acquired, (d) all
obligations of such Person under lease obligations which shall have been, or
should be, in accordance with GAAP, recorded as capital leases in respect of
which such Person is liable as lessee, (e) the face amount of all letter of
credit indebtedness available to be drawn (other than letter of credit
obligations relating to indebtedness included in Indebtedness pursuant to
another clause of this definition) and, without duplication, the unreimbursed
amount of all drafts drawn thereunder, (f) obligations of others secured by
a Lien on property or assets of such Person, whether or not assumed (but in
any
event not exceeding the fair market value of the property or asset),
(g) all guarantees of Indebtedness referred to in clauses (a) through (f)
above, (h) all amounts payable by such Person in connection with mandatory
redemptions or repurchases of preferred stock, (i) any obligations of such
Person (in the nature of principal or interest) in respect of acceptances or
similar obligations issued or created for the account of such Person,
(j) all Off Balance Sheet Indebtedness of such Person and (k) obligations
(contingent or otherwise) existing or arising under any interest rate Swap
Contract, to the extent such obligations are classified as "indebtedness" for
purposes of GAAP.
"Interest
Payment Date"
means
(a) as to Base Rate Loans, the first day of each calendar quarter of the
Borrower and the Maturity Date and (b) as to Eurodollar Loans, the last day
of each applicable Interest Period and the Maturity Date and, in addition,
where
the applicable Interest Period for a Eurodollar Loan is greater than three
months, then also on the last day of each three-month period during such
Interest Period. If an Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to be the next
succeeding Business Day, except that in the case of Eurodollar Loans where
the
next succeeding Business Day falls in the next succeeding calendar month, then
on the next preceding Business Day.
"Interest
Period"
means,
with respect to Eurodollar Loans, a period of one, two, three or six months'
duration, as the Borrower may elect, commencing, in each case, on the date
of
the borrowing (including continuations and conversions of Eurodollar Loans);
provided, however, (a) if any Interest Period would end on a day which is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day (except that where the next succeeding Business Day
falls in the next succeeding calendar month, then on the next preceding Business
Day), (b) no Interest Period shall extend beyond the Maturity Date and
(c) where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest Period
is to end, such Interest Period shall end on the last Business Day of such
calendar month.
"Investment"
means,
as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of the Capital
Stock of another Person, (b) an Acquisition or (c) a loan, advance or capital
contribution to, guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person and
any
arrangement pursuant to which the investor guarantees Indebtedness of such
other
Person.
"Investment
Grade Rating"
means
BBB- or better from S&P or Baa3 or better from ▇▇▇▇▇'▇.
"Investment
Grade Rating Date"
means
the date on which the Parent first achieves an Investment Grade
Rating.
"Lead
Arranger"
means
Wachovia Capital Markets, LLC, in its capacity as Sole Lead Arranger and Sole
Book Manager hereunder.
"Lender"
means
any Person identified as a Lender on the signature pages hereto and any Eligible
Assignee which may become a Lender by way of assignment in accordance with
the
terms hereof, together with their successors or permitted assigns.
"Lien"
means
any mortgage, pledge, hypothecation, assignment, deposit arrangement, security
interest, encumbrance, lien (statutory or otherwise), preference, priority
or
charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any financing or similar
statement or notice filed under the Uniform Commercial Code as adopted and
in
effect in the relevant jurisdiction or other similar recording or notice
statute, and any lease in the nature thereof).
"Loans"
means
the Term Loans.
"London
Interbank Offered Rate"
means,
with respect to any Eurodollar Loan for the Interest Period applicable thereto,
the rate of interest per annum appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars
at
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period for a term comparable to such Interest Period;
provided,
however, if more than one rate is specified on Telerate Page 3750, the
applicable rate shall be the arithmetic mean of all such rates. If, for any
reason, such rate is not available, the term "London Interbank Offered Rate"
shall mean, with respect to any Eurodollar Loan for the Interest Period
applicable thereto, the rate of interest per annum appearing on such other
service as may be nominated by the British Bankers' Association as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest Period
for a term comparable to such Interest Period; provided,
however, if more than one rate is specified, the applicable rate shall be the
arithmetic mean of all such rates.
"Material
Adverse Effect"
means a
material adverse effect on the business, financial positions or results of
operations of the Parent and its Subsidiaries taken as a whole.
"Maturity
Date"
means
July 9, 2007.
"Moody's"
means
▇▇▇▇▇'▇ Investors Service, Inc., or any successor or assignee of the business
of
such company in the business of rating securities.
"Multiemployer
Plan"
means a
Plan covered by Title IV of ERISA which is a multiemployer plan as defined
in Section 3(37) or 4001(a)(3) of ERISA.
"Multiple
Employer Plan"
means a
Plan covered by Title IV of ERISA, other than a Multiemployer Plan, which
the Parent or any ERISA Affiliate and at least one employer other than the
Parent or any ERISA Affiliate are contributing sponsors.
“Net
Cash Proceeds”
means
with respect to the sale or issuance of any Capital Stock by the Borrower or
any
of its Subsidiaries, or the incurrence or issuance of any Indebtedness by the
Borrower or any of its Subsidiaries, the excess of (a) the sum of the cash
and
Cash Equivalents received in connection with such transaction over (b) the
underwriting discounts and commissions, and other reasonable and customary
out-of-pocket expenses, incurred by the Borrower or
such
Subsidiary in connection therewith.
"Non-Excluded
Taxes"
has the
meaning specified in Section 4.4(a).
"Notes"
means
the Term Loan Notes, together with any amendment, restatement or supplement
thereof.
"Notice
of Borrowing"
means a
request by the Borrower for a Loan in the form of Exhibit 2.3.
"Notice
of Continuation/Conversion"
means a
request by the Borrower for the continuation or conversion of a Loan in the
form
of Exhibit 2.5.
"Obligations"
means,
without duplication, all of the obligations of the Credit Parties to the Lenders
and the Agent, whenever arising, under this Credit Agreement, the Notes, Credit
Facility Swap Contracts, Treasury Management Agreements or any of the other
Credit Documents.
"Off
Balance Sheet Indebtedness"
means
any obligation of a Person that would be considered indebtedness for tax
purposes but is not set forth on the balance sheet of such Person, including,
but not limited to, (a) any synthetic lease, tax retention operating lease,
off balance sheet loan or similar off-balance sheet financing product of such
Person, (b) the aggregate amount of uncollected accounts receivables of
such Person subject at such time to a sale of receivables (or similar
transaction) and (c) obligations of any partnership or joint venture that
is recourse to such Person.
"Parent"
means
DCP Midstream Partners, LP, a Delaware limited partnership.
"PBGC"
means
the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA and any successor thereto.
"Permitted
Acquisitions"
means
(a) the Initial Asset Acquisition and (b) any other Acquisition by any Credit
Party, so long as (i) no Default or Event of Default is in existence or would
be
created thereby, (ii) the Person or assets being acquired by such Credit Party
are in the midstream energy business, (iii) such Acquisition has been approved
by the Board of Directors or similar governing body of the target of such
Acquisition (if required or applicable) and (iv) immediately after giving effect
to such acquisition, the Borrower is in compliance with Section 7.10 on a pro
forma basis.
"Person"
means
any individual, partnership, joint venture, firm, corporation, association,
trust, limited liability company or other enterprise (whether or not
incorporated), or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan"
means
any employee pension benefit plan (as defined in Section 3(2) of ERISA)
which is covered by ERISA and with respect to which the Parent or any ERISA
Affiliate is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" within the meaning of
Section 3(5) of ERISA.
"Prime
Rate"
means
the per annum rate of interest established from time to time by the Agent at
its
principal office in Charlotte, North Carolina as its Prime Rate. Any change
in
the interest rate resulting from a change in the Prime Rate shall become
effective as of 12:01 a.m. of the Business Day on which each change in the
Prime Rate is announced by the Agent. The Prime Rate is a reference rate used
by
the Agent in determining interest rates on certain loans and is not intended
to
be the lowest rate of interest charged on any extension of credit to any
debtor.
"Properties"
has the
meaning set forth in Section 6.12.
"Qualified
Acquisition"
means a
Permitted Acquisition, the aggregate purchase price for which, when combined
with the aggregate purchase price for all other Permitted Acquisitions in any
rolling 12-month period, is greater than or equal to $25,000,000.
"Rating
Agency Designation"
means a
written notice in the form of Exhibit
1.1
provided
from time to time by the Parent to the Administrative Agent setting forth the
two current Designated Rating Agencies.
"Register"
has the
meaning set forth in Section 11.3(c).
"Regulation A,
D, T, U, or X"
means
Regulation A, D, T, U or X, respectively, of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to
all
or a portion thereof.
"Reportable
Event"
means a
"reportable event" as defined in Section 4043 of ERISA with respect to
which the notice requirements to the PBGC have not been waived.
"Required
Lenders"
means
Lenders whose aggregate Credit Exposure constitutes more than 50% of the
aggregate Credit Exposure of all Lenders at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time then
there
shall be excluded from the determination of Required Lenders the aggregate
principal amount of Credit Exposure of such Lender at such time.
"Responsible
Officer"
means
the president, chief financial officer, treasurer or assistant treasurer of
the
applicable Credit Party.
"Restricted
Payment"
means
any dividend or other distribution (whether in cash, securities or other
property) with respect to Capital Stock of a Credit Party or any Subsidiary,
or
any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any such Capital Stock
or on account of any return of capital to a Credit Party's stockholders,
partners or members (or the equivalent Person thereof), or any setting apart
of
funds or assets for any of the foregoing.
"S&P"
means
Standard & Poor's Ratings Group, a division of McGraw Hill, Inc., or any
successor or assignee of the business of such division in the business of rating
securities.
"Sale
and Leaseback Transaction"
means,
with respect to a Credit Party or any Subsidiary, any arrangement, directly
or
indirectly, with any Person whereby a Credit Party or such Subsidiary shall
sell
or transfer any assets used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such assets or other assets
that it intends to use for substantially the same purpose or purposes as the
assets being sold or transferred.
"Sanctioned
Country"
means a
country subject to a sanctions program identified on the list maintained by
OFAC
and available at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇
/ofac/sanctions/index.html,
or as
otherwise published from time to time.
"Sanctioned
Person"
means
(a)
a
Person named on the list of "Specially Designated Nationals and Blocked Persons"
maintained by OFAC available at ▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇/▇▇▇/▇▇▇▇▇.▇▇▇▇,
or as
otherwise published from time to time or (b)
(i)
an
agency of the government of a Sanctioned Country, (ii)
an
organization controlled by a Sanctioned Country or (iii)
a
person resident in a Sanctioned Country, to the extent subject to a sanctions
program administered by OFAC.
"Single
Employer Plan"
means
any Plan which is covered by Title IV of ERISA, but which is not a
Multiemployer Plan or a Multiple Employer Plan.
"Solvent"
means,
with respect to any Person as of a particular date, that on such date
(a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal course of
business, (b) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature in their ordinary course, (c) such Person is
not engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's assets would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged or is to engage,
(d) the fair value of the assets of such Person is greater than the total
amount of liabilities, including, without limitation, contingent liabilities,
of
such Person and (e) the present fair saleable value of the assets of such
Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured.
In
computing the amount of contingent liabilities at any time, it is intended
that
such liabilities will be computed as the amount which, in light of all the
facts
and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subsidiary"
means,
as to any Person, (a) any corporation more than 50% of whose stock of any
class or classes having by the terms thereof ordinary voting power to elect
a
majority of the directors of such corporation (irrespective of whether or not
at
the time, any 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
owned
by such Person directly or indirectly through Subsidiaries, (b) any
partnership, association, joint venture, limited liability company or other
entity in which such person directly or indirectly through Subsidiaries has
more
than 50% equity interest at any time and (c) any other Person that is controlled
by such Person and who for GAAP purposes is required to be consolidated into
such Person’s consolidated financial statements. Unless otherwise provided, as
used herein, "Subsidiary" shall refer to a Subsidiary of the
Parent.
"Swap
Contract"
means,
to the extent entered into on a fair market value basis at the time of entry,
(a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond
or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any
of
the foregoing), whether or not any such transaction is governed by or subject
to
any master agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master agreement, together
with any related schedules, a "Master
Agreement"),
including any such obligations or liabilities under any Master
Agreement.
"Termination
Event"
means
(a) with respect to any Single Employer Plan, the occurrence of a
Reportable Event or the substantial cessation of operations (within the meaning
of Section 4062(e) of ERISA), (b) the withdrawal of the Parent or any
ERISA Affiliate from a Multiple Employer Plan during a plan year in which it
was
a substantial employer (as such term is defined in Section 4001(a)(2) of
ERISA), or the termination of a Multiple Employer Plan, (c) the
distribution of a notice of intent to terminate or the actual termination of
a
Plan pursuant to Section 4041(a)(2) or 4041A of ERISA, (d) the
institution of proceedings to terminate or the actual termination of a Plan
by
the PBGC under Section 4042 of ERISA, (e) any event or condition which
might reasonably constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or
(f) the complete or partial withdrawal of the Borrower or any ERISA
Affiliate from a Multiemployer Plan.
"Term
Loans"
has the
meaning specified in Section 2.01.
"Term
Loan Committed Amount"
means
ONE HUNDRED MILLION DOLLARS ($100,000,000.00).
"Term
Loan Note"
means
the promissory notes of the Borrower in favor of each of the Lenders evidencing
the Loans provided pursuant to Section 2.1, individually or collectively,
as appropriate, as such notes may be amended or modified from time to time
and
substantially in the form of Exhibit 2.9.
"Treasury
Management Agreement"
means
any agreement governing the provision of treasury or cash management services,
including deposit accounts, funds transfer, automated clearinghouse, zero
balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services
provided by a Lender or an Affiliate of a Lender.
"Voting
Stock"
means
all classes of the Capital Stock (or other voting interests) of such Person
then
outstanding and normally entitled to vote in the election of directors or other
governing body of such Person.
| 1.2 |
Computation
of Time Periods.
|
For
purposes of computation of periods of time hereunder, the word "from" means
"from and including" and the words "to" and "until" each mean "to but
excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically
provided.
| 1.3 |
Accounting
Terms.
|
Except
as
otherwise expressly provided herein, all accounting terms used herein shall
be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lenders hereunder shall be
prepared, in accordance with GAAP applied on a consistent basis.
| 1.4 |
Time.
|
All
references to time herein shall be references to Eastern Standard Time or
Eastern Daylight time, as the case may be, unless specified
otherwise.
SECTION
2.
LOANS
| 2.1 |
Term
Loan.
|
Subject
to the terms and conditions set forth herein, each Lender severally agrees
to
make term loans to the Borrower in Dollars, in a single advance on the Effective
Date (each a "Term
Loan"
and
collectively, the "Term
Loans");
provided, however, that (a) the sum of the aggregate amount of Term Loans
outstanding shall not exceed the Term Loan Committed Amount, (b) with respect
to
each individual Term Loan Lender, such Term Loan Lender's pro rata share of
outstanding Term Loans shall not exceed such Term Loan Lender's Commitment
Percentage of the Term Loan Committed Amount and (c) to the extent not fully
funded as of the Effective Date, all Commitments hereunder shall terminate
as of
the day immediately following the Effective Date. Once repaid, Term Loans may
not be reborrowed. The Term Loans may consist of Base Rate Loans or Eurodollar
Loans, or a combination thereof, as the Borrower may request; provided,
however,
that
the Term Loans made on the Effective Date or any of the three (3) Business
Days
following the Effective Date may only consist of Base Rate Loans unless the
Borrower delivers a funding indemnity letter to the Agent at least three (3)
Business Days (or such later date as may be acceptable to the Agent in its
discretion) prior to the Effective Date, such funding indemnity letter to be
in
form and substance satisfactory to the Agent.
| 2.2 |
Intentionally
Omitted.
|
| 2.3 |
Method
of Borrowing for Term
Loans.
|
By
no
later than 11:00 a.m. (a) on the Effective Date to the extent the
Borrower requests that all of the Term Loans be initially funded as Base Rate
Loans or (b) subject
to the limitation in Section 2.1, three (3) Business Days prior to the Effective
Date (or such later date as may be acceptable to the Agent in its discretion)
if
the Borrower is requesting a borrowing of Loans that will be Eurodollar Loans,
the Borrower shall submit a written Notice of Borrowing in the form of
Exhibit 2.3
to the
Agent setting forth (i) the amount requested, (ii) whether such Loans
shall accrue interest at the Adjusted Base Rate or the Adjusted Eurodollar
Rate,
(iii) with respect to Loans that will be Eurodollar Loans, the Interest
Period applicable thereto and (iv) certification that the Borrower has
complied in all respects with Section 5.1 and all other terms and
conditions set forth herein.
| 2.4 |
Funding
of Term Loans.
|
Upon
receipt of a Notice of Borrowing, the Agent shall promptly inform the Lenders
as
to the terms thereof. Each such Lender shall make its Commitment Percentage
of
the requested Term Loans, as applicable, available to the Agent by
2:00 p.m. on the date specified in the Notice of Borrowing by deposit, in
Dollars, of immediately available funds at the Agency Services Address. The
amount of the requested Loans will then be made available to the Borrower by
the
Agent by crediting the account of the Borrower on the books of such office
of
the Agent, to the extent the amount of such Loans are made available to the
Agent.
No
Lender
shall be responsible for the failure or delay by any other Lender in its
obligation to make Loans under this Section 2.4; provided,
however, that the failure of any Lender to fulfill its obligations hereunder
shall not relieve any other Lender of its obligations hereunder. Unless the
Agent shall have been notified by any Lender prior to the date of any such
Loan
that such Lender does not intend to make available to the Agent its portion
of
the Loans to be made on such date, the Agent may assume that such Lender has
made such amount available to the Agent on the date of such Loans, and the
Agent
in reliance upon such assumption, may (in its sole discretion but without any
obligation to do so) make available to the Borrower a corresponding amount.
If
such corresponding amount is not in fact made available to the Agent, the Agent
shall be able to recover such corresponding amount from such Lender. If such
Lender does not pay such corresponding amount forthwith upon the Agent's demand
therefor, the Agent will promptly notify the Borrower and the Borrower shall
immediately pay such corresponding amount within two Business Days to the Agent.
The Agent shall also be entitled to recover from the Lender or the Borrower,
as
the case may be, interest on such corresponding amount in respect of each day
from the date such corresponding amount was made available by the Agent to
the
Borrower to the date such corresponding amount is recovered by the Agent at
a
per annum rate equal to (a) from the Borrower at the applicable rate for
such Loan pursuant to the Notice of Borrowing and (b) from a Lender at the
Federal Funds Rate.
| 2.5 |
Continuations
and Conversions.
|
The
Borrower shall have the option (subject to the limitations set forth below),
on
any Business Day, to continue existing Eurodollar Loans for a subsequent
Interest Period, to convert Base Rate Loans into Eurodollar Loans or to convert
Eurodollar Loans into Base Rate Loans; provided,
however, that (a) each such continuation or conversion must be requested by
the Borrower pursuant to a written Notice of Continuation/Conversion, in the
form of Exhibit 2.5,
in
compliance with the terms set forth below, (b) if a Eurodollar Loan is
continued or converted into a Base Rate Loan on any day other than the last
day
of the Interest Period applicable thereto, then the Borrower shall be subject
to
the provisions set forth in Section 4.3, (c) Eurodollar Loans may not
be continued nor may Base Rate Loans be converted into Eurodollar Loans during
the existence and continuation of a Default or Event of Default and (d) any
request to extend a Eurodollar Loan that fails to comply with the terms hereof
or any failure to request an extension of a Eurodollar Loan at the end of an
Interest Period shall constitute a conversion to a Base Rate Loan on the last
day of the applicable Interest Period. Each continuation or conversion must
be
requested by the Borrower no later than 11:00 a.m. (i) on the date for
a requested conversion of a Eurodollar Loan to a Base Rate Loan or
(ii) three Business Days prior to the date for a requested continuation of
a Eurodollar Loan or conversion of a Base Rate Loan to a Eurodollar Loan, in
each case pursuant to a written Notice of Continuation/Conversion submitted
to
the Agent which shall set forth (A) whether the Borrower wishes to continue
or convert such Loans and (B) if the request is to continue a Eurodollar
Loan or convert a Base Rate Loan to a Eurodollar Loan, the Interest Period
applicable thereto.
| 2.6 |
Minimum
Amounts.
|
Each
request for a Term Loan or a conversion or continuation hereunder shall be
subject to the following requirements: (a) each Eurodollar Loan shall be in
a minimum amount of $10,000,000 (and in integral multiples of $1,000,000 in
excess thereof), (b) each Base Rate Loan shall be in a minimum amount of
the lesser of $10,000,000 (and in integral multiples of $1,000,000 in excess
thereof) or the remaining amount available to be borrowed and (c) no more
than five
(5)
Eurodollar Loans shall be outstanding hereunder at any one time. For the
purposes of this Section, all Eurodollar Loans with the same Interest Periods
that begin and end on the same date shall be considered as one Eurodollar Loan,
but Eurodollar Loans with different Interest Periods, even if they begin on
the
same date, shall be considered separate Eurodollar Loans.
| 2.7 |
Intentionally
Omitted.
|
| 2.8 |
Intentionally
Omitted.
|
| 2.9 |
Notes.
|
The
Term
Loans made by a Lender, upon request of such Lender, shall be evidenced by
a
duly executed promissory note of the Borrower payable to such Lender in
substantially the form of Exhibit
2.9
(the
"Term
Loan Notes").
SECTION
3.
PAYMENTS
| 3.1 |
Interest.
|
| (a) |
Interest
Rate.
|
| (i) |
All
Base Rate Loans shall accrue interest at the Adjusted Base
Rate.
|
| (ii) | All Eurodollar Loans shall accrue interest at the Adjusted Eurodollar Rate applicable to such Eurodollar Loan. |
(b) Default
Rate of Interest.
Upon
the occurrence, and during the continuation, of an Event of Default, all past
due principal of and, to the extent permitted by law, past due interest on,
the
Loans and any other past due amounts owing hereunder or under the other Credit
Documents shall bear interest, payable on demand, at a per annum rate equal
to
one percent (1%) plus the rate which would otherwise be applicable (or if
no rate is applicable, then the rate for Loans that are Base Rate Loans plus
one
percent (1%) per annum).
(c) Interest
Payments.
Interest on Loans shall be due and payable in arrears on each Interest Payment
Date.
3.2 Voluntary/Mandatory
Prepayments.
(a) Voluntary
Prepayments.
The
Borrower shall have the right to prepay Loans in whole or in part from time
to
time without premium or penalty; provided,
however, that Eurodollar Loans may only be prepaid on three Business Days'
prior
written notice to the Agent and any prepayment of Eurodollar Loans will be
subject to Section 4.3. Any prepayments made under this
Section 3.2(a)
shall
be applied first to Base Rate Loans and then to Eurodollar Loans in direct
order
of Interest Period maturities and shall be subject to Section 4.3.
(b) Mandatory
Prepayments.
(i) Upon
the
sale or issuance by the Borrower or any of its Subsidiaries of any of its
Capital Stock, the Borrower shall prepay an aggregate principal amount of Loans
equal to 100% of all Net Cash Proceeds received therefrom immediately upon
receipt thereof by the Borrower or such Subsidiary (such prepayments to be
applied as set forth below).
(ii) Upon
the
incurrence or issuance by the Borrower or any of its Subsidiaries of any
Indebtedness (other than Indebtedness expressly permitted to be incurred or
issued pursuant to Section 8.6 (other than Section 8.6(g)), the Borrower shall
prepay an aggregate principal amount of Loans equal to 100% of all Net Cash
Proceeds received therefrom immediately upon receipt thereof by the Borrower
or
such Subsidiary (such prepayments to be applied as set forth
below).
Each
prepayment of Loans pursuant to the foregoing provisions of this Section 3.2(b)
shall be applied in the order of priority set forth in Section 9.3.
3.3 Payment
of Loans in full at Maturity.
On
the
Maturity Date, the entire outstanding principal balance of all Loans, together
with accrued but unpaid interest and all other sums owing under this Credit
Agreement, shall be due and payable in full, unless accelerated sooner pursuant
to Section 9.2.
3.4 Administrative
Fee.
Borrower
shall pay to the Agent and administrative fee of $2,500 as of the Effective
Date. Such fee shall be fully earned as of the Effective Date and shall be
non-refundable for any reason.
3.5 Place
and Manner of Payments.
All
payments of principal, interest, fees, expenses and other amounts to be made
by
the Borrower under this Credit Agreement shall be made without setoff, deduction
or counterclaim and received not later than 2:00 p.m. on the date when due
in Dollars and in immediately available funds by the Agent at the Agency
Services Address. The Borrower shall, at the time it makes any payment under
this Credit Agreement, specify to the Agent the Loans, fees or other amounts
payable by the Borrower hereunder to which such payment is to be applied (and
in
the event that it fails to specify, or if such application would be inconsistent
with the terms hereof, the Agent shall distribute such payment to the Lenders
in
such manner as it reasonably determines in its sole discretion). The Agent
will
distribute such payments to the applicable Lenders on the same Business Day
if
any such payment is received prior to 2:00 p.m.; otherwise the Agent will
distribute each payment to the applicable Lenders prior to 12:00 noon on the
next succeeding Business Day. Whenever any payment hereunder shall be stated
to
be due on a day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day (subject to accrual of interest
and
fees for the period of such extension), except that in the case of Eurodollar
Loans, if the extension would cause the payment to be made in the next following
calendar month, then such payment shall be made on the next preceding Business
Day.
3.6 Pro
Rata Treatment.
Except
to
the extent otherwise provided herein, all borrowing of Term Loans, each payment
or prepayment of principal of any Term Loan, each payment of interest on the
Term Loans and each conversion or continuation of any Term Loan, shall be
allocated pro rata among the Lenders in accordance with their respective
Commitment Percentages; provided,
that,
in the event any amount paid to any Lender pursuant to this
Section 3.6
is
rescinded or must otherwise be returned by the Agent, each Lender shall, upon
the written request
of the Agent, repay to the Agent the amount so paid to such Lender, with
interest for the period commencing on the date such payment is returned by
the
Agent until the date the Agent receives such repayment at a rate per annum
equal
to, during the period to but excluding the date two Business Days after such
request, the Federal Funds Rate, and thereafter, the Base Rate plus
one
percent (1%) per annum.
3.7 Computations
of Interest and Fees.
(a) Except
for Base Rate Loans that are based upon the Prime Rate, on which interest shall
be computed on the basis of a 365 or 366 day year as the case may be, all
computations of interest and fees hereunder shall be made on the basis of the
actual number of days elapsed over a year of 360 days.
(b) It
is the
intent of the Lenders and the Credit Parties to conform to and contract in
strict compliance with applicable usury law from time to time in effect. All
agreements between the Lenders and the Credit Parties are hereby limited by
the
provisions of this paragraph which shall override and control all such
agreements, whether now existing or hereafter arising and whether written or
oral. In no way, nor in any event or contingency (including but not limited
to
prepayment or acceleration of the maturity of any obligation), shall the
interest taken, reserved, contracted for, charged, or received under this Credit
Agreement, under the Notes or otherwise, exceed the maximum nonusurious amount
permissible under applicable law. If, from any possible construction of any
of
the Credit Documents or any other document, interest would otherwise be payable
in excess of the maximum nonusurious amount, any such construction shall be
subject to the provisions of this paragraph and interest owing pursuant to
such
documents shall be automatically reduced to the maximum nonusurious amount
permitted under applicable law, without the necessity of execution of any
amendment or new document. If any Lender shall ever receive anything of value
which is characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful amount,
an
amount equal to the amount which would have been excessive interest shall,
without penalty, be applied to the reduction of the principal amount owing
on
the Loans and not to the payment of interest, or refunded to a Credit Party
or
the other payor thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal amount of the Loans. The right to demand
payment of the Loans or any other indebtedness evidenced by any of the Credit
Documents does not include the right to receive any interest which has not
otherwise accrued on the date of such demand, and the Lenders do not intend
to
charge or receive any unearned interest in the event of such demand. All
interest paid or agreed to be paid to the Lenders with respect to the Loans
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term (including any renewal
or
extension) of the Loans so that the amount of interest on account of such
indebtedness does not exceed the maximum nonusurious amount permitted by
applicable law.
3.8 Sharing
of Payments.
Each
Lender agrees that, in the event that any Lender shall obtain payment in respect
of any Loan or any other obligation owing to such Lender under this Credit
Agreement through the exercise of a right of set-off, banker's lien,
counterclaim or otherwise (including, but not limited to, pursuant to the
Bankruptcy Code) in excess of its pro rata share as provided for in this Credit
Agreement, such Lender shall promptly purchase from the other Lenders a
participation in such Loans and other obligations, in such amounts and with
such
other adjustments from time to time, as shall be equitable in order that all
Lenders share such payment in accordance with their respective ratable shares
as
provided for in this Credit Agreement. Each Lender further agrees that if a
payment to a Lender (which is obtained by such Lender through the exercise
of a
right of set-off, banker's lien, counterclaim or otherwise) shall be rescinded
or must otherwise be restored, each Lender which shall have shared the benefit
of such payment shall, by repurchase of a participation theretofore sold, return
its share of that benefit to each Lender whose payment shall have been rescinded
or otherwise restored. The Borrower agrees that any Lender so purchasing such
a
participation may, to the fullest extent permitted by law, exercise all rights
of payment, including set-off, banker's lien or counterclaim, with respect
to
such participation as fully as if such Lender were a holder of such Loan or
other obligation in the amount of such participation. Except as otherwise
expressly provided in this Credit Agreement, if any Lender shall fail to remit
to the Agent or any other Lender an amount payable by such Lender to the Agent
or such other Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall accrue interest thereon, for each day from
the date such amount is due until the day such amount is paid to the Agent
or
such other Lender, at a rate per annum equal to the Federal Funds Rate. If
under
any applicable bankruptcy, insolvency or other similar law, any Lender receives
a secured claim in lieu of a setoff to which this Section 3.8 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 under this
Section 3.8 to share in the benefits of any recovery on such secured
claim.
3.9 Evidence
of Debt.
(a) Each
Lender shall maintain an account or accounts evidencing each Loan made by such
Lender to the Borrower from time to time, including the amounts of principal
and
interest payable and paid to such Lender from time to time under this Credit
Agreement. Each Lender will make reasonable efforts to maintain the accuracy
of
its account or accounts and to promptly update its account or accounts from
time
to time, as necessary.
(b) The
Agent
shall maintain the Register pursuant to Section 11.3(c), and a subaccount
for each Lender, in which Register and subaccounts (taken together) shall be
recorded (i) the amount, type and Interest Period of each such Loan
hereunder, (ii) the amount of any principal or interest due and payable or
to become due and payable to each Lender hereunder and (iii) the amount of
any sum received by the Agent hereunder from or for the account of the Borrower
and each Lender's share thereof. The Agent will make reasonable efforts to
maintain the accuracy of the subaccounts referred to in the preceding sentence
and to promptly update such subaccounts from time to time, as
necessary.
(c) The
entries made in the Register and subaccounts maintained pursuant to
subsection (b) of this Section 3.9, and the entries made in the
accounts maintained pursuant to subsection (a) of this Section 3.9, if
consistent with the entries of the Agent, shall be prima facie evidence of
the
existence and amounts of the obligations of the Borrower therein recorded;
provided,
however,
that
the failure of any Lender or the Agent to maintain any such account, such
Register or such subaccount, as applicable, or any error therein, shall not
in
any manner affect the obligation of the Borrower to repay the Loans made by
such
Lender in accordance with the terms hereof.
SECTION
4.
ADDITIONAL
PROVISIONS
4.1 Eurodollar
Loan Provisions.
(a) Unavailability.
If, on
or prior to the first day of any Interest Period, (i) the Agent shall have
determined in good faith (which determination shall be conclusive and binding
upon the Borrower) that (A) Dollar deposits are not generally available in
the London interbank Eurodollar market in the applicable principal amounts
and
Interest Period of a requested Eurodollar Loan or (B) by reason of
circumstances affecting the relevant market, adequate and reasonable means
do
not exist for ascertaining the Eurodollar Rate for such Interest Period, or
(ii) the Agent shall have received notice from the Required Lenders that
the Eurodollar Rate determined or to be determined for such Interest Period
will
not adequately and fairly reflect the cost to the Lenders of making or
maintaining Eurodollar Loans for such Interest Period (as conclusively certified
by such Lenders), the Agent shall give notice thereof to the Borrower and the
Lenders as soon as practicable thereafter. Upon delivery of such notice,
(A) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (B) any Loans that were
to have been converted to or continued as Eurodollar Loans shall be prepaid
by
the Borrower or converted to or continued as Base Rate Loans and (C) any
outstanding Eurodollar Loans shall be converted, on the first day of such
Interest Period, to Base Rate Loans. Until the Agent has withdrawn such notice,
no further Eurodollar Loans shall be made or continued as such, nor shall the
Borrower have the right to convert Base Rate Loans to Eurodollar
Loans.
(b) Change
in Legality.
Notwithstanding any other provision herein, if any change, after the date
hereof, in any law, governmental rule, regulation, guideline or order (including
the introduction of any new law or governmental rule, regulation, guideline
or
order) or in the interpretation or administration thereof by any Governmental
Authority charged with the interpretation or administration thereof shall make
it unlawful for any Lender to make or maintain any Eurodollar Loan then, by
written notice to the Borrower and to the Agent, such Lender may:
(i) declare
that Eurodollar Loans and conversions to or continuations of Eurodollar Loans,
will not thereafter be made by such Lender hereunder, whereupon any request
by
the Borrower for, or for conversion into or continuation of, Eurodollar Loans
shall, as to such Lender only, be deemed a request for, or for conversion into
or continuation of, Base Rate Loans, unless such declaration shall be
subsequently withdrawn; and
(ii) require
that all outstanding Eurodollar Loans made by it be converted to Base Rate
Loans
in which event all such Eurodollar Loans shall be converted to Base Rate Loans
either (A) on the last day of the then current Interest Period applicable
to such Eurodollar Loan if such Lender can lawfully continue to maintain and
fund such Eurodollar Loan or (B) immediately if such Lender shall determine
that it may not lawfully continue to maintain and fund such Eurodollar Loan
to
such day.
(c) Requirements
of Law.
If at
any time a Lender shall incur increased costs or reductions in the amounts
received or receivable hereunder with respect to the making, the commitment
to
make or the maintaining of any Eurodollar Loan because of (i) any change
after the date hereof in any law, governmental rule, regulation, guideline
or
order (including the introduction of any new law or governmental rule,
regulation, guideline or order) or in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, including, without limitation, the imposition,
modification or deemed applicability of any reserves, deposits or similar
requirements (such as, for example, but not limited to, a change in official
reserve requirements) or (ii) other circumstances affecting the London
interbank Eurodollar market; then the Borrower shall pay to such Lender promptly
upon written demand therefor, such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise
as such Lender may determine in its sole discretion) as may be required to
compensate such Lender for such increased costs or reductions in amounts
receivable hereunder. If any Lender becomes entitled to claim any additional
amounts pursuant to this Section 4.1(c), it shall provide prompt notice
thereof to the Borrower, through the Agent, certifying (A) that one of the
events described in this Section 4.1(c) has occurred and describing in
reasonable detail the nature of such event, (B) as to the increased cost or
reduced amount resulting from such event and (C) as to the additional
amount demanded by such Lender and a reasonably detailed explanation of the
calculation thereof; provided,
that no
such amount shall be payable with respect to any period commencing more than
90
days prior to the date such Lender first notifies the Borrower of its intention
to demand compensation therefor under this Section.
(d) Regulation
D Compensation.
In the
event that a Lender is required to maintain reserves of the type contemplated
by
the definition of "Eurodollar
Reserve Percentage",
such
Lender may require the Borrower to pay, contemporaneously with each payment
of
interest on the Eurodollar Loans, additional interest on the related Eurodollar
Loan of such Lender at a rate per annum determined by such Lender up to but
not
exceeding the excess of (i)(A) the applicable London Interbank Offered Rate
divided by (B) one minus
the
Eurodollar Reserve Percentage over (ii) the applicable London Interbank
Offered Rate. Any Lender wishing to require payment of such additional interest
(x) shall so notify the Borrower and the Agent, in which case such
additional interest on the Eurodollar Loans of such Lender shall be payable
to
such Lender at the place indicated in such notice with respect to each Interest
Period commencing at least three Business Days after the giving of such notice
and (y) shall notify the Borrower at least three Business Days prior to
each date on which interest is payable on the Eurodollar Loans of the amount
then due it under this Section. Each such notification shall be accompanied
by
such information as the Borrower may reasonably request.
Each
determination and calculation made by a Lender under this Section 4.1
shall, absent manifest error, be binding and conclusive on the parties hereto.
Any conversions of Eurodollar Loans made pursuant to this Section 4.1 shall
subject the Borrower to the payments required by Section 4.3 to the extent
applicable. This Section shall survive termination of this Credit Agreement
and the other Credit Documents and payment of the Loans and all other amounts
payable hereunder.
4.2 Capital
Adequacy.
If
any
Lender has determined that the adoption or becoming effective, after the date
hereof, of any applicable law, rule or regulation regarding capital adequacy,
or
any change therein (after the date hereof), or any change in the interpretation
or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or
compliance by such Lender (or its parent corporation) with any request or
directive regarding capital adequacy (whether or not having the force of law)
of
any such Governmental Authority, central bank or comparable agency, has or
would
have the effect of reducing the rate of return on such Lender's (or parent
corporation's) capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender (or its parent
corporation) could have achieved but for such adoption, effectiveness, change
or
compliance (taking into consideration such Lender's (or parent corporation's)
policies with respect to capital adequacy), then, upon notice from such Lender
(which shall include the basis and calculations in reasonable detail supporting
the compensation requested in such notice), and receipt by the Borrower of
such
written notice from such Lender (with a copy to the Agent) the Borrower shall
be
obligated to pay to such Lender such additional amount or amounts as will
compensate such Lender on an after tax basis (after taking into account
applicable deductions and credits in respect of the amount so indemnified)
for
such reduction; provided,
that no
such amount shall be payable with respect to any period commencing more than
90
days prior to the date such Lender first notifies the Borrower of its intention
to demand compensation therefor under this Section. Each determination by any
Lender of amounts owing under this Section 4.2 shall, absent manifest
error, be conclusive and binding on the parties hereto. The covenants of this
Section 4.2 shall survive termination of this Credit Agreement and the
other Credit Documents and the payment of the Loans and all other amounts
payable hereunder.
4.3 Compensation.
The
Borrower promises to indemnify each Lender and to hold each Lender harmless
from
any loss or expense which such Lender may sustain or incur as a consequence
of
(a) default by the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Credit Agreement,
(b) default by the Borrower in making any prepayment of a Eurodollar Loan
after the Borrower has given a notice thereof in accordance with the provisions
of this Credit Agreement, (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto and (d) the payment, continuation or conversion of a Eurodollar
Loan on a day which is not the last day of the Interest Period applicable
thereto or the failure to repay a Eurodollar Loan when required by the terms
of
this Credit Agreement. Such indemnification may include an amount equal to
(i) an amount of interest calculated at the Eurodollar Rate which would
have accrued on the amount in question, for the period from the date of such
prepayment or of such failure to borrow, convert, continue or repay to the
last
day of the applicable Interest Period (or, in the case of a failure to borrow,
convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such
Eurodollar Loans provided for herein minus (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Lender
on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank Eurocurrency market. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section 4.3, it
shall provide prompt notice thereof to the Borrower, through the Agent, as
to
the additional amount demanded by such Lender and a reasonably detailed
explanation of the calculation thereof. The covenants in this Section 4.3
shall survive the termination of this Credit Agreement and the payment of the
Loans and all other amounts payable hereunder.
4.4 Taxes.
(a) Except
as
provided below in this Section 4.4, all payments made by the Borrower under
this Credit Agreement and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any court, or governmental body, agency or other official, excluding taxes
measured by or imposed upon the net income of any Lender or its applicable
lending office, or any branch or affiliate thereof, and all franchise taxes,
branch taxes, taxes on doing business or taxes on the capital or net worth
of
any Lender or its applicable lending office, or any branch or affiliate thereof,
in each case imposed in lieu of net income taxes: (i) by the jurisdiction
under the laws of which such Lender, applicable lending office, branch or
affiliate is organized or is located, or in which its principal executive office
is located, or any nation within which such jurisdiction is located or any
political subdivision thereof; or (ii) by reason of any connection between
the jurisdiction imposing such tax and such Lender, applicable lending office,
branch or affiliate other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or received payment
under or enforced, this Credit Agreement or any Notes. If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded
Taxes")
are
required to be withheld from any amounts payable to an Agent or any Lender
hereunder or under any Notes, (A) the amounts so payable to the Agent or
such Lender shall be increased to the extent necessary to yield to the Agent
or
such Lender (after payment of all Non-Excluded Taxes) interest or any such
other
amounts payable hereunder at the rates or in the amounts specified in this
Credit Agreement and any Notes; provided,
however,
that
the Borrower shall be entitled to deduct and withhold any Non- Excluded Taxes
and shall not be required to increase any such amounts payable to any Lender
that is not organized under the laws of the United States of America or a state
thereof if such Lender fails to comply with the requirements of
paragraph (b) of this Section 4.4 whenever any Non-Excluded Taxes are
payable by the Borrower, and (B) as promptly as possible after requested,
the Borrower shall send to the Agent for its own account or for the account
of
such Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the Borrower fails
to pay any Non-Excluded Taxes when due to the appropriate taxing authority
or
fails to remit to the Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Agent and any Lender for any
incremental Non-Excluded Taxes, interest or penalties that may become payable
by
the Agent or any Lender as a result of any such failure. The agreements in
this
Section 4.4 shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) Each
Lender that is not incorporated under the laws of the United States of America
or a state thereof shall:
|
(i)
|
(A)
|
on
or before the date of any payment by the Borrower under this Credit
Agreement or the Notes to such Lender, deliver to the Borrower and
the
Agent (x) two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI, or any successor applicable form, as
the case may be, certifying that it is entitled to receive payments
under
this Credit Agreement and any Notes without deduction or withholding
of
any United States federal income taxes and (y) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the case
may be, certifying that it is entitled to an exemption from United
States
backup withholding tax;
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(B) deliver
to the Borrower and the Agent two further copies of any such form or
certification on or before the date that any such form or certification expires
or becomes obsolete and after the occurrence of any event requiring a change
in
the most recent form previously delivered by it to the Borrower;
and
(C) obtain
such extensions of time for filing and complete such forms or certifications
as
may reasonably be requested by the Borrower or the Agent; or
(ii) in
the
case of any such Lender that is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, (A) represent to
the Borrower (for the benefit of the Borrower and the Agent) that it is not
a
bank within the meaning of Section 881 (c)(3)(A) of the Internal Revenue
Code, (B) agree to furnish to the Borrower, on or before the date of any
payment by the Borrower, with a copy to the Agent, two accurate and complete
original signed copies of Internal Revenue Service Form W-8, or successor
applicable form, certifying to such Lender's legal entitlement at the date
of
such certificate to an exemption from U.S. withholding tax under the provisions
of Section 881(c) of the Internal Revenue Code with respect to payments to
be made under this Credit Agreement and any Notes (and to deliver to the
Borrower and the Agent two further copies of such form on or before the date
it
expires or becomes obsolete and after the occurrence of any event requiring
a
change in the most recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrower or the Agent for filing
and completing such forms), and (C) agree, to the extent legally entitled
to do so, upon reasonable request by the Borrower, to provide to the Borrower
(for the benefit of the Borrower and the Agent) such other forms as may be
reasonably required in order to establish the legal entitlement of such Lender
to an exemption from withholding with respect to payments under this Credit
Agreement and any Notes.
Notwithstanding
the above, if any change in treaty, law or regulation has occurred after the
date such Person becomes a Lender hereunder which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Agent, then such Lender shall be exempt from such requirements.
Each Person that shall become a Lender or a participant of a Lender pursuant
to
Section 11.3 shall, upon the effectiveness of the related transfer, be
required to provide all of the forms, certifications and statements required
pursuant to this subsection (b); provided,
that in
the case of a participant of a Lender, the obligations of such participant
of a
Lender pursuant to this subsection (b) shall be determined as if the
participant of a Lender were a Lender except that such participant of a Lender
shall furnish all such required forms, certifications and statements to the
Lender from which the related participation shall have been
purchased.
4.5 Replacement
of Lenders.
The
Agent
and each Lender shall use reasonable efforts to avoid or mitigate any increased
cost or suspension of the availability of an interest rate under
Sections 4.1 through 4.4 above to the greatest extent practicable
(including transferring the Loans to another lending office or Affiliate of
a
Lender) unless, in the opinion of the Agent or such Lender, such efforts would
be likely to have an adverse effect upon it. In the event a Lender makes a
request to the Borrower for additional payments in accordance with
Section 4.1, 4.2 or 4.4, or suspends Eurodollar Loans under
Section 4.1, then, provided that no Default or Event of Default has
occurred and is continuing at such time, the Borrower may, at its own expense
(such expense to include any transfer fee payable to the Agent under
Section 11.3(b) and any expense pursuant to Section 4) and in its sole
discretion, require such Lender to transfer and assign in whole (but not in
part), without recourse (in accordance with and subject to the terms and
conditions of Section 11.3(b)), all of its interests, rights and
obligations under this Credit Agreement to an Eligible Assignee which shall
assume such assigned obligations (which assignee may be another Lender, if
a
Lender accepts such assignment); provided,
that
(a) such assignment shall not conflict with any law, rule or regulation or
order of any court or other Governmental Authority and (b) the Borrower or
such assignee shall have paid to the assigning Lender in immediately available
funds the principal of and interest accrued to the date of such payment on
the
portion of the Loans hereunder held by such assigning Lender and all other
amounts owed to such assigning Lender hereunder, including amounts owed pursuant
to Sections 4.1 through 4.4.
SECTION
5.
CONDITIONS
PRECEDENT
5.1 Closing/Funding
Conditions.
The
obligation of the Lenders to enter into this Credit Agreement and fund the
Term
Loans pursuant to Section 2.1 hereof is subject to satisfaction (or waiver)
of
the following conditions:
(a) Executed
Credit Documents.
Receipt
by the Agent of duly executed copies of (i) this Credit Agreement,
(ii) the Notes, and (iii) all other Credit Documents, each in form and
substance acceptable to the Lenders.
(b) Organizational
Documents. Receipt
by the Agent of the following:
(i) Partnership
Documents.
With
respect to each Credit Party that is a partnership, a copy of the partnership
agreement of such Credit Party, together with all amendments thereto certified
to be true and complete by the appropriate Governmental Authority of the State
of organization of such Credit Party and certified by an Authorized Officer
of
such Credit Party to be true and correct as of the Effective Date.
(ii) Limited
Liability Company Documents.
With
respect to each
Credit
Party that is a limited liability company, the following:
(A) Certificate
of Formation.
A copy
of the certificate of formation of such Credit Party certified to be true and
complete by the appropriate Governmental Authorities of the State of
organization of such Credit Party and certified by an Authorized Officer of
such
Credit Party to be true and correct as of the Effective Date.
(B) LLC
Agreement.
A copy
of the LLC Agreement of such Credit Party certified by an Authorized Officer
of
such Credit Party to be true and correct as of the Effective Date.
(iii) Corporate
Documents.
With
respect to each Credit Party that is a corporation, the following:
(A) Charter
Documents.
Copies
of the articles or certificates of incorporation or other charter documents
of
such Credit Party certified to be true and complete as of a recent date by
the
appropriate Governmental Authorities of the state of its incorporation and
certified by an Authorized Officer of such Credit Party to be true and correct
as of the Effective Date.
(B) Bylaws.
A copy
of the bylaws of such Credit Party certified an Authorized Officer of such
Credit Party to be true and correct as of the Effective Date.
(iv) Resolutions.
Copies
of resolutions, as appropriate, approving and adopting the Credit Documents
to
which each Credit Party is a party, the transactions
contemplated therein and authorizing execution and delivery thereof and
certified by an Authorized Officer of the Borrower to be in full force and
effect as of the Effective Date.
(v) Good
Standing.
Copies
of certificates of good standing, existence or their equivalent with respect
to
each Credit Party certified as of a recent date by the appropriate Governmental
Authorities of the State of organization of such Credit Party.
(vi) Incumbency.
An
incumbency certificate certified by an Authorized Officer of the applicable
Credit Parties to be true and correct as of the Effective Date.
(c) Opinion
of Counsel.
Receipt
by the Agent of an opinion from legal counsel to the Credit Parties, addressed
to the Agent on behalf of the Lenders and dated as of the Effective Date, in
form and substance satisfactory to the Agent.
(d) Intentionally
Omitted.
(e) Intentionally
Omitted.
(f) Financial
Statements/Ownership Structure.
Receipt
by the Lenders of such financial information or other information regarding
the
Credit Parties and their assets, and the ownership of same, as the Lenders
may
reasonably request.
(g) Intentionally
Omitted.
(h) Fees
and Expenses.
Payment
by the Borrower of all fees and expenses (if any) owed by it to the Lenders,
the
Agent and/or the Lead Arranger (as applicable).
(i) Litigation.
As of
the Closing Date, there shall be no material actions, suits, investigations
or
legal, equitable, arbitration or administrative proceedings pending or
threatened against a Credit Party which are likely to be decided adversely
to
such Credit Party and if so decided would have a Material Adverse
Effect.
(j) Material
Adverse Effect.
As of
the Closing Date, no event or condition shall have occurred since December
31,
2006 that would have or would be reasonably expected to have a Material Adverse
Effect.
(k) Certificate.
The
Agent shall have received a certificate or certificates executed by an Approved
Officer of the Parent, on behalf of the Credit Parties, as of the Closing Date
stating that (i) each Credit Party is in compliance with all existing
financial obligations, unless such non-compliance would not have a Material
Adverse Effect, (ii) no action, suit, investigation or proceeding is
pending or, to such officer's knowledge, threatened in any court or before
any
arbitrator or governmental instrumentality that purports to affect a Credit
Party or any transaction contemplated by the Credit Documents, if such action,
suit, investigation or proceeding is likely to be adversely determined and
if
adversely determined would have a Material Adverse Effect, (iii) the
financial statements and information delivered to the Agent on or before the
Closing Date were prepared in good faith and in accordance with GAAP, (iv)
all
consents and approvals of board of directors, equity holders, general partners,
Governmental Authorities and third parties necessary in connection with the
Credit Documents have been obtained, and (v) immediately after giving
effect to this Credit Agreement, the other Credit Documents and all the
transactions contemplated herein and therein to occur on such date, (A) no
Default or Event of Default exists and (B) all representations and
warranties contained herein and in the other Credit Documents are true and
correct in all material respects on and as of the date made.
(l) Patriot
Act.
Receipt
by the Agent on behalf of each Lender at least five (5) Business Days prior
to
the Closing Date of all documentation and other information requested by any
Lender in order to comply with the requirements of regulatory authorities under
applicable "know your customer" and anti-money laundering rules and
regulations.
(m) Account
Designation Letter.
Receipt
by the Agent of an executed counterpart of the Account Designation
Letter.
(n) Request.
The
Borrower shall have timely delivered an appropriate Notice of Borrowing, duly
executed and completed, by the time specified in Section 2.3.
(o) Other.
Receipt
by the Lenders of such other documents, instruments, agreements or information
as reasonably requested by any Lender.
SECTION
6.
REPRESENTATIONS
AND WARRANTIES
Each
Credit Party hereby represents and warrants to each Lender that:
6.1 Organization
and Good Standing.
Each
Credit Party (a) is a limited partnership, limited liability company or a
corporation duly formed, validly existing and in good standing under the laws
of
the state of its formation, (b) is duly qualified and in good standing and
authorized to do business in every jurisdiction where the failure to so qualify
would have a Material Adverse Effect and (c) has the requisite power and
authority to own its properties and to carry on its business as now conducted
and as proposed to be conducted.
6.2 Due
Authorization.
Each
Credit Party (a) has the requisite power and authority to execute, deliver
and perform this Credit Agreement and the other Credit Documents and to incur
the obligations herein and therein provided for and (b) has been authorized
by all necessary corporate, partnership or limited liability company action
to
execute, deliver and perform this Credit Agreement and the other Credit
Documents.
6.3 No
Conflicts.
Neither
the execution and delivery of the Credit Documents, nor the consummation of
the
transactions contemplated herein and therein, nor performance of and compliance
with the terms and provisions hereof and thereof by any Credit Party will
(a) violate or conflict with any provision of its organizational documents
or bylaws, (b) materially violate, contravene or conflict with any law
(including without limitation, the Public Utility Holding Company Act of 1935,
as amended), regulation (including without limitation, Regulation U or
Regulation X), order, writ, judgment, injunction, decree or permit
applicable to it, (c) materially violate, contravene or conflict with
contractual provisions of, or cause an event of default under, any indenture,
loan agreement, mortgage, deed of trust, contract or other agreement or
instrument to which it is a party or by which it may be bound or (d) result
in or require the creation of any Lien upon or with respect to its
properties.
6.4 Consents.
No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or Governmental Authority or third party is
required in connection with the execution, delivery or performance of this
Credit Agreement or any of the other Credit Documents that has not been
obtained.
6.5 Enforceable
Obligations.
This
Credit Agreement and the other Credit Documents have been duly executed and
delivered and constitute legal, valid and binding obligations of each Credit
Party which is a party thereto enforceable against such Credit Party in
accordance with their respective terms, except as may be limited by bankruptcy
or insolvency laws or similar laws affecting creditors' rights generally or
by
general equitable principles.
6.6 Financial
Condition/Material Adverse Effect.
The
financial statements delivered to the Lenders pursuant to Section 7.1(a)
and (b): (i) have been prepared in accordance with GAAP (subject to the
provisions of Section 1.3) and (ii) present fairly the financial
condition, results of operations and cash flows of the Parent and its
Subsidiaries as of such date and for such periods (subject, in the case of
interim statements, to normal year-end adjustments and the absence of
footnotes). Since the Effective Date, there has been no event or circumstance
that, either individually or collectively, has had or would reasonably be
expected to have a Material Adverse Effect.
6.7 Taxes.
Each
Credit Party and each of its Subsidiaries has filed, or caused to be filed,
all
material tax returns (federal, state, local and foreign) required to be filed
and paid all amounts of taxes shown thereon to be due (including interest and
penalties) and has paid all other taxes, fees, assessments and other
governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing by it, except (a) for such taxes which
are not yet delinquent or that are being contested in good faith and by proper
proceedings, and against which adequate reserves are being maintained in
accordance with GAAP or (b) where such nonfiling or nonpayment would not
have a Material Adverse Effect.
6.8 Compliance
with Law.
Each
Credit Party and each of its Subsidiaries is in compliance with all laws, rules,
regulations, orders, decrees and requirements of Governmental Authorities
applicable to it or to its properties (including, without limitation, ERISA,
the
Code and Environmental Laws), except where the necessity of compliance therewith
is being contested in good faith by appropriate proceedings or such failure
to
comply would not have or would not be reasonably expected to have a Material
Adverse Effect.
6.9 Use
of Proceeds; Margin Stock.
The
proceeds of the Loans hereunder will be used solely for the purposes specified
in Section 7.7. None of such proceeds will be used for the purpose of
(a) purchasing or carrying any "margin stock" as defined in
Regulation U or Regulation X, (b) for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
"margin stock", (c) for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of Regulation U or
Regulation X or (d) for the acquisition of another Person unless the
board of directors (or other comparable governing body) or stockholders, as
appropriate, of such Person has approved such acquisition.
6.10 Government
Regulation.
Each
Credit Party and each of its Subsidiaries is exempt from the registration
provisions of the Public Utility Holding Company Act of 1935, as amended. No
Credit Party is an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, or controlled by such
a
company.
6.11 Solvency.
Each
Credit Party is and, after the consummation of the transactions contemplated
by
this Credit Agreement, will be Solvent.
6.12 Environmental
Matters.
Except
as
would not result or be reasonably expected to result in a Material Adverse
Effect: (a) each of the properties of the Credit Parties (the "Properties")
and
all operations at the Properties are in compliance with all applicable
Environmental Laws, (b) there is no violation of any Environmental Law with
respect to the Properties or the businesses operated by the Credit Parties
(the
"Businesses"),
and
(c) there are no conditions relating to the Businesses or Properties that
would reasonably be expected to give rise to a liability under any applicable
Environmental Laws.
6.13 Subsidiaries.
Set
forth
on Schedule 6.13
is a
complete and accurate list of all Credit Parties and their Subsidiaries, and
the
ownership of same, as such Schedule
6.13
may be
updated from time to time.
6.14 Litigation.
There
are
no actions, suits or legal, equitable, arbitration or administrative
proceedings, pending or, to the knowledge of a Credit Party, threatened against
such Credit Party which (a) are likely to be decided adversely against such
Credit Party and (b) if so decided would have or would reasonably be
expected to have a Material Adverse Effect.
6.15 Intentionally
Omitted.
6.16 Material
Contracts.
Each
Credit Party and each of its Subsidiaries is in compliance with all contracts
necessary for the ongoing operation and business of such Credit Party or
Subsidiary in the ordinary course except where the failure to comply would
not
have or would not reasonably be expected to have a Material Adverse
Effect.
6.17 Anti-Terrorism
Laws.
Neither
any Credit Party nor any of its Subsidiaries is an "enemy" or an "ally of the
enemy" within the meaning of Section 2 of the Trading with the Enemy Act of
the
United States of America (50 U.S.C. App. §§ 1 et seq.), as amended. Neither any
Credit Party nor any or its Subsidiaries is in violation of (a) the Trading
with
the Enemy Act, as amended, (b) any of the foreign assets control regulations
of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto or
(c)
the Patriot Act (as defined in Section 11.17(b)). None of the Credit Parties
(i)
is a blocked person described in section 1 of the Anti-Terrorism Order or (ii)
to the best of its knowledge, engages in any dealings or transactions, or is
otherwise associated, with any such blocked person.
6.18 Compliance
with OFAC Rules and Regulations.
None
of
the Credit Parties or their Subsidiaries or their respective Affiliates (a)
is a
Sanctioned Person, (b) has more than 15% of its assets in Sanctioned Countries,
or (c) derives more than 15% of its operating income from investments in, or
transactions with Sanctioned Persons or Sanctioned Countries. No part of the
proceeds of any Extension of Credit hereunder will be used directly or
indirectly to fund any operations in, finance any investments or activities
in
or make any payments to, a Sanctioned Person or a Sanctioned
Country.
6.19 Compliance
with FCPA.
Each
of
the Credit Parties and their Subsidiaries is in compliance with the Foreign
Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et
seq.,
and any
foreign counterpart thereto. None of the Credit Parties and their Subsidiaries
has made a payment, offering, or promise to pay, or authorized the payment
of,
money or anything of value (a) in order to assist in obtaining or retaining
business for or with, or directing business to, any foreign official, foreign
political party, party official or candidate for foreign political office,
(b) to a foreign official, foreign political party or party official or any
candidate for foreign political office, and (c) with the intent to induce
the recipient to misuse his or her official position to direct business
wrongfully to such Credit Party or its Subsidiary or to any other Person, in
violation of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1,
et
seq.
SECTION
7.
AFFIRMATIVE
COVENANTS
Each
Credit Party hereby covenants and agrees that so long as this Credit Agreement
is in effect and until the Loans, together with interest, fees and other
obligations hereunder, have been paid in full:
7.1 Information
Covenants.
To
the
extent applicable, the Borrower will furnish, or cause to be furnished, to
the
Agent for further distribution to each Lender:
(a) Annual
Financial Statements.
As soon
as available, and in any event within 95 days after the close of each fiscal
year of the Parent, a consolidated balance sheet of the Parent as of the end
of
such fiscal year, together with a related consolidated income statement and
related statements of cash flows, capitalization and retained earnings for
such
fiscal year, setting forth in comparative form figures for the preceding fiscal
year, all such financial information described above to be audited by
independent certified public accountants of recognized national standing and
whose opinion, which shall be furnished to the Agent, shall be to the effect
that such financial statements have been prepared in accordance with GAAP
(except for changes with which such accountants concur); provided,
that
the Parent's Form 10-K Annual Report as filed with the Securities and Exchange
Commission, without exhibits, will satisfy the requirements of this Section
7.1(a).
(b) Quarterly
Financial Statements.
As soon
as available, and in any event within 50 days after the close of each fiscal
quarter of the Parent (other than the fourth fiscal quarter) a consolidated
balance sheet of the Parent as of the end of such fiscal quarter, together
with
a related consolidated income statement and related statement of cash flows
for
such fiscal quarter in each case setting forth in comparative form figures
for
the corresponding period of the preceding fiscal year, and accompanied by a
certificate of an Approved Officer of the Parent to the effect that such
quarterly financial statements fairly present in all material respects the
financial condition of the Parent and its Subsidiaries and have been prepared
in
accordance with GAAP, subject to changes resulting from audit and normal
year-end audit adjustments to same; provided,
that
the Parent's Form 10-Q Quarterly Report as filed with the Securities and
Exchange Commission, without exhibits, will satisfy the requirements of this
Section 7.1(b).
(c) Operating
Budget and Cash Flow Projections.
As soon
as available, and in any event no later than the last day of February of each
fiscal year of the Parent, operating budget and cash flow projections of the
Parent and its Subsidiaries prepared on a monthly or quarterly basis and
otherwise in such form as the Agent may reasonably request; provided, however,
that such operating budget and cash flow projections shall not be required
if as
of the last day of December of the previous fiscal year the Parent has an
Investment Grade Rating.
(d) Officer's
Certificate.
At the
time of delivery of the financial statements provided for in
Sections 7.1(a) and 7.1(b) above, a certificate of an Approved Officer of
the Parent, substantially in the Form of Exhibit
7.1(d),
(i) demonstrating compliance with the financial covenants contained in
Section 7.10 by calculation thereof as of the end of each such fiscal period,
beginning with the fiscal quarter ending June 30, 2007, (ii) stating that
no Default or Event of Default exists, or if any Default or Event of Default
does exist, specifying the nature and extent thereof and what action the Parent
or the Borrower proposes to take with respect thereto, (iii) setting forth
the
amount of Off Balance Sheet Indebtedness of the Parent and its Subsidiaries
as
of the end of each such fiscal period, (iv) updating Schedule 6.13
with
respect to Subsidiaries, if appropriate, (v) providing information to evidence
compliance with Sections 7.12, 8.2(m), 8.4(i), 8.6(g) and 8.7(g) and (vi)
providing such other information to evidence compliance with this Credit
Agreement as reasonably requested by the Agent.
(e) Reports.
Promptly upon transmission or receipt thereof, copies of any material filings
and registrations with, and reports to or from, the Securities and Exchange
Commission, or any successor agency.
(f) Notices.
Within
five Business Days after any officer of a Credit Party with responsibility
relating thereto obtaining knowledge thereof, such Credit Party will give
written notice to the Agent immediately of (i) the occurrence of a Default
or Event of Default, specifying the nature and existence thereof and what action
such Credit Party proposes to take with respect thereto, and (ii) the
occurrence of any of the following with respect to a Credit Party: (A) the
pendency or commencement of any litigation, arbitral or governmental proceeding
against such Credit Party the claim of which is likely to be decided adversely
to such Credit Party and, if adversely determined, would have or would be
reasonably expected to have a Material Adverse Effect or (B) the
institution of any proceedings against such Credit Party with respect to, or
the
receipt of notice by such Person of potential liability or responsibility for
violation or alleged violation of, any federal, state or local law, rule or
regulation (including, without limitation, any Environmental Law) that is likely
to be decided adversely to such Credit Party and, if adversely decided, would
have a Material Adverse Effect.
(g) ERISA.
Upon a
Credit Party or any ERISA Affiliate obtaining knowledge thereof, such Credit
Party will give written notice to the Agent promptly (and in any event within
five Business Days) of: (i) any event or condition, including, but not
limited to, any Reportable Event, that constitutes, or would be reasonably
expected to lead to, a Termination Event if such Termination Event would have
a
Material Adverse Effect; (ii) with respect to any Multiemployer Plan, the
receipt of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against a Credit Party or any ERISA Affiliate, or of a
determination that any Multiemployer Plan is in reorganization or insolvent
(both within the meaning of Title IV of ERISA); (iii) the failure to
make full payment on or before the due date (including extensions) thereof
of
all amounts which a Credit Party or any of its Subsidiaries or ERISA Affiliates
is required to contribute to each Plan pursuant to its terms and as required
to
meet the minimum funding standard set forth in ERISA and the Code with respect
thereto; or (iv) any change in the funding status of any Plan that would
have or would be reasonably expected to have a Material Adverse Effect;
together, with a description of any such event or condition or a copy of any
such notice and a statement by an officer of a Credit Party briefly setting
forth the details regarding such event, condition, or notice, and the action,
if
any, which has been or is being taken or is proposed to be taken with respect
thereto. Promptly upon request, a Credit Party shall furnish the Agent and
each
of the Lenders with such additional information concerning any Plan as may
be
reasonably requested, including, but not limited to, copies of each annual
report/return (Form 5500 series), as well as all schedules and attachments
thereto required to be filed with the Department of Labor and/or the Internal
Revenue Service pursuant to ERISA and the Code, respectively, for each "plan
year" (within the meaning of Section 3(39) of ERISA).
(h) Debt
Rating Changes.
Upon
any change in its Debt Rating, the Parent shall promptly deliver such
information to the Agent.
(i) Other
Information.
With
reasonable promptness upon any such request, such other information regarding
the business, properties or financial condition of the Credit Parties and their
Subsidiaries as the Agent or any Lender may reasonably request.
Information
required to be delivered pursuant to Sections 7.1(a), 7.1(b) and 7.1(e)
shall be deemed to have been delivered on the earlier of (A) the date on which
such information is posted by the Agent on behalf of the Credit Parties on
IntraLinks, Syndtrak or other electronic medium chosen by the Administrative
Agent or (B) the date on which a Credit Party provides notice to the Agent
for
further delivery to each Lender by the Borrower that such information has been
posted on the Securities and Exchange Commission website on the Internet at
▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified
in
such notice and accessible by the Lenders without charge; provided,
that
(i) any such notice may be included in a certificate delivered pursuant to
Section 7.1(d) and (ii) the Credit Parties shall deliver paper copies
of the information referred to in Sections 7.1(a), 7.1(b) and 7.1(e), to
any Lender that requests such delivery.
7.2 Preservation
of Existence and Franchises.
Each
Credit Party will, and will cause each Subsidiary to, do all things necessary
to
preserve and keep in full force and effect its existence and rights, franchises
and authority; provided,
however, that, subject to Section 8.3, a Credit Party shall not be required
to preserve any such existence, right or franchise if it in good faith
determines that preservation thereof is no longer necessary or desirable in
the
conduct of its business and that the loss thereof is not disadvantageous in
any
material respect to the Lenders.
7.3 Books
and Records.
Each
Credit Party will keep, and will cause each of its Subsidiaries to keep,
complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of GAAP (including the establishment
and
maintenance of appropriate reserves).
7.4 Compliance
with Law.
Each
Credit Party will comply, and will cause each of its Subsidiaries to comply,
with all laws (including, without limitation, all Environmental Laws and ERISA
laws), rules, regulations and orders, and all applicable restrictions imposed
by
all Governmental Authorities, applicable to it and its property, unless (a)
the
failure to comply would not have or would not reasonably be expected to have
a
Material Adverse Effect or (b) the necessity of compliance therewith is being
contested in good faith by appropriate proceedings.
7.5 Payment
of Taxes and Other Indebtedness.
Each
Credit Party will, and will cause each of its Subsidiaries to, pay, settle
or
discharge (a) all taxes, assessments and governmental charges or levies
imposed upon it, or upon its income or profits, or upon any of its properties,
before they shall become delinquent, (b) all lawful claims (including
claims for labor, materials and supplies) which, if unpaid, might give rise
to a
Lien upon any of its properties, and (c) all of its other Indebtedness as
it shall become due; provided,
however,
that a
Credit Party shall not be required to pay any such tax, assessment, charge,
levy, claim or Indebtedness which (i) is being contested in good faith by
appropriate proceedings and as to which adequate reserves therefor have been
established in accordance with GAAP or (ii) the nonpayment of which would
not have a Material Adverse Effect.
7.6 Maintenance
of Property; Insurance.
(a) Each
Credit Party will keep, and will cause each of its Subsidiaries to keep, all
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted.
(b) Each
Credit Party will, and will cause each of its Subsidiaries to, maintain (either
in the name of such Credit Party or in such Subsidiary's own name) with
financially sound and responsible insurance companies, insurance on all their
respective properties in at least such amounts and against at least such risks
(and with such risk retention) as are usually insured against by companies
of
established repute engaged in the same or a similar business; provided,
that
self-insurance by a Credit Party or any such Subsidiary shall not be deemed
a
violation of this covenant to the extent that companies engaged in similar
businesses and owning similar properties in the same general areas in which
such
Credit Party or such Subsidiary operates self-insure.
7.7 Use
of Proceeds.
The
proceeds of the Term Loans may be used solely to
assist
with the acquisition of assets from Anadarko Petrolium, Inc. totaling no more
than $181 million in the aggregate.
7.8 Audits/Inspections.
Upon
reasonable notice and during normal business hours, each Credit Party will,
and
will cause its Subsidiaries to, permit representatives appointed by the Agent
(or upon the occurrence and during the continuance of an Event of Default,
any
Lender), including, without limitation, independent accountants, agents,
attorneys, and appraisers to visit and inspect the Credit Parties' and their
Subsidiaries' property, including their books and records, their accounts
receivable and inventory, the Credit Parties' and their Subsidiaries' facilities
and their other business assets, and to make photocopies or photographs thereof
and to write down and record any information such representatives obtain and
shall permit the Agent (or upon the occurrence and during the continuance of
an
Event of Default, any Lender) or its representatives to investigate and verify
the accuracy of information provided to the Lenders and to discuss all such
matters with the officers, employees and representatives of each Credit Party
and its Subsidiaries.
7.9 Maintenance
of Ownership.
Each
Credit Party will maintain ownership of all Capital Stock of each Subsidiary
that is a Credit Party, directly or indirectly, free and clear of all Liens
except as permitted by Section 8.3 and Section 8.4.
7.10 Financial
Covenants.
(a) Consolidated
Leverage Ratio.
The
Consolidated Leverage Ratio, as of the end of each fiscal quarter of the Parent
(other than as set forth below) shall be less than or equal to 4.75 to 1.0;
provided that (i) for the fiscal quarter ending June 30, 2007, the Consolidated
Leverage Ratio shall be less than or equal 5.75 to 1.0 and (ii) subject to
clause (i), subsequent to the consummation of a Qualified Acquisition, the
Consolidated Leverage Ratio, as of the end of the three consecutive fiscal
quarters following such Qualified Acquisition shall be less than or equal to
5.25 to 1.0.
(b) Consolidated
Interest Coverage Ratio.
The
Consolidated Interest Coverage Ratio, as at the end of each fiscal quarter
of
the Parent (beginning with the fiscal quarter ending June 30, 2007), shall
(i)
prior to the Investment Grade Rating Date, be greater than or equal to 3.0
to
1.0 and (ii) subsequent to the Investment Grade Rating Date, be greater than
or
equal to 2.5 to 1.0.
For
purposes of calculating compliance with the financial covenants set forth in
this Section 7.10, with respect to all Permitted Acquisitions subsequent to
the
Effective Date or made within twelve months prior thereto, Consolidated EBITDA
and Consolidated Interest Expense with respect to such newly acquired assets
shall be calculated on a proforma basis as if such acquisition had occurred
at
the beginning of the applicable twelve month period of determination.
7.11 Material
Contracts.
Each
Credit Party will comply, and will cause its Subsidiaries to comply, with all
contracts necessary for the ongoing operation and business of such Credit Party
or Subsidiary in the ordinary course, except where the failure to comply would
not have or would not reasonably be expected to have a Material Adverse
Effect.
7.12 Additional
Guarantors.
If
(a) as
of the end of any fiscal quarter of the Parent or (b) at the time any Qualified
Acquisition is consummated, the Subsidiaries of the Parent that are not Credit
Parties hereunder (the "Non-Guarantor
Subsidiaries")
constitute more than either (collectively, the "Threshold
Requirements"):
(i) twenty
percent (20%), in the aggregate, of Consolidated Net Tangible Assets,
or
(ii) twenty
percent (20%), in the aggregate, of Consolidated Net Income,
the
Borrower shall promptly notify the Agent and shall, within ten Business Days
thereof (A) cause one or more of such Subsidiaries to become a "Guarantor"
pursuant
to a Joinder Agreement in the form of Exhibit
7.12
and to
execute and deliver such other documents as requested by the Agent and (B)
deliver to the Agent documents of the types referred to Section 5.1(b) as well
as opinions of counsel to such Subsidiary (which shall cover, among other
things, legality, validity, binding effect and enforceability), all in form,
content and scope satisfactory to the Agent, such that immediately after the
joinder of such Subsidiary or Subsidiaries as Guarantors hereunder, the
remaining Non-Guarantor Subsidiaries shall not exceed, in the aggregate, either
of the Threshold Requirements.
SECTION
8.
NEGATIVE
COVENANTS
Each
Credit Party hereby covenants and agrees that so long as this Credit Agreement
is in effect and until the Loans, together with interest, fees and other
obligations hereunder, have been paid in full:
8.1 Nature
of Business.
No
Credit
Party will, nor will it permit any of its Subsidiaries to (whether now owned
or
acquired or formed subsequent to the Closing Date), materially alter the
character of their business on a consolidated basis from the midstream energy
business.
8.2. Liens.
No
Credit
Party will create, assume or suffer to exist any Lien on any asset now owned
or
hereafter acquired by it or any of its Subsidiaries, except for the
following:
(a) Liens
in
favor of the Lenders securing Indebtedness under this Credit
Agreement.
(b) any
Lien
arising out of the refinancing, extension, renewal or refunding of any
Indebtedness secured by any Lien permitted by any of the foregoing clauses
of
this Section 8.2; provided,
that
such
Indebtedness is not increased and is not secured by any additional
assets.
(c) Liens
for
taxes, assessments or other governmental charges or levies not yet due or which
are being contested in good faith by appropriate proceedings and with respect
to
which adequate reserves or other appropriate provisions are being maintained
in
accordance with GAAP.
(d) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and interest owners of oil and gas production and other Liens imposed by law,
created in the ordinary course of business and for amounts not past due for
more
than 60 days or which are being contested in good faith by appropriate
proceedings which are sufficient to prevent imminent foreclosure of such Liens,
are promptly instituted and diligently conducted and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with GAAP.
(e) Liens
incurred or deposits made in the ordinary course of business (including, without
limitation, surety bonds and appeal bonds) in connection with workers'
compensation, unemployment insurance and other types of social security benefits
or to secure the performance of tenders, bids, leases, contracts (other than
for
the repayment of Indebtedness), statutory obligations and other similar
obligations or arising as a result of progress payments under government
contracts.
(f) easements
(including, without limitation, reciprocal easement agreements and utility
agreements), rights-of-way, covenants, consents, reservations, encroachments,
variations and other restrictions, charges or encumbrances (whether or not
recorded) affecting the use of real property.
(g) Liens
with respect to judgments and attachments which do not result in an Event of
Default.
(h) Liens,
deposits or pledges to secure the performance of bids, tenders, contracts (other
than contracts for the payment of money), leases (permitted under the terms
of
this Agreement), public or statutory obligations, surety, stay, appeal,
indemnity, performance or other obligations arising in the ordinary course
of
business.
(i) rights
of
first refusal entered into in the ordinary course of business.
(j) Liens
consisting of any (i) rights reserved to or vested in any municipality or
governmental, statutory or public authority to control or regulate any property
of a Credit Party or any Subsidiary or to use such property in any manner which
does not materially impair the use of such property for the purpose for which
it
is held by a Credit Party or any such Subsidiary, (ii) obligations or
duties to any municipality or public authority with respect to any franchise,
grant, license, lease or permit and the rights reserved or vested in any
Governmental Authority or public utility to terminate any such franchise, grant,
license, lease or permit or to condemn or expropriate any property, or
(iii) zoning laws, ordinances or municipal regulations.
(k) Liens
on
deposits required by any Person with whom a Credit Party or any Subsidiary
enters into forward contracts, futures contracts, swap agreements or other
commodities contracts in the ordinary course of business.
(l) other
Liens, including Liens imposed by Environmental Laws, arising in the ordinary
course of its business which (i) do not secure Indebtedness (other than
Liens on cash and cash equivalents that secure letters of credit), (ii) do
not
secure any obligation in an amount exceeding $10,000,000 at any time and
(iii) do not in the aggregate materially detract from the value of its
assets or materially impair the use thereof in the operation of its
business.
(m) (i)
prior
to the Investment Grade Rating Date only, Liens securing, or in respect of,
purchase money obligations for fixed or capital assets and obligations under
Capital Leases; provided, that (A) any such Lien attaches to such property
concurrently with such acquisition; (B) such Lien attaches solely to the
property so acquired in such transaction; (C) the Indebtedness secured thereby
does not exceed the cost or fair market value, whichever is lower, of the
property being acquired on the date of such acquisition and (D) the aggregate
Indebtedness being secured by such Liens does not exceed at any one time 3%
of
Consolidated Tangible Net Assets or (ii) subsequent to the Investment Grade
Debt
Rating only, other Liens securing Indebtedness or obligations in an amount
not
to exceed, in the aggregate, at any one time 10% of Consolidated Tangible Net
Assets.
(n) after
the
Investment Grade Rating Date, any Lien on any asset of any Person existing
at
the time such Person is merged or consolidated with or into the Borrower, the
Parent or any Subsidiary and not created in contemplation of such
event.
(o) after
the
Investment Grade Rating Date, any Lien existing on any asset prior to the
acquisition thereof by the Borrower, the Parent or any Subsidiary and not
created in contemplation of such acquisition.
8.3 Consolidation
and Merger.
A
Credit
Party will not, and will not permit any of its Subsidiaries to, (a) enter
into any transaction of merger or (b) consolidate, liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution); provided,
that:
(i) a Person (including a Subsidiary of the Borrower) may be merged or
consolidated with or into the Borrower or the Parent so long as (A) the
Borrower or the Parent, as the case may be, shall be the continuing or surviving
entity, (B) no Default or Event of Default shall exist or be caused
thereby, (C) if the Parent has a Debt Rating at the time of such merger or
consolidation, the Parent is not downgraded by a Designated Rating Agency as
a
result of such transaction to a rating below an Investment Grade Rating (or
equivalent rating if the Parent has selected a Designated Rating Agency other
than S&P or ▇▇▇▇▇'▇), as applicable and (D) the Borrower remains liable for
its obligations under this Credit Agreement and all the rights and remedies
hereunder remain in full force and effect, and (ii) a Subsidiary of the
Parent may merge with or into another Subsidiary of the Parent; provided that
if
one of such Subsidiaries is a Guarantor, the surviving entity must be a
Guarantor.
8.4 Dispositions.
A
Credit
Party will not make, nor permit its Subsidiaries to make any Disposition except:
(a) Dispositions
of inventory in the ordinary course of business;
(b) Dispositions
of machinery and equipment no longer used or useful in the conduct of business
of a Credit Party and its Subsidiaries that are Disposed of in the ordinary
course of business;
(c) Dispositions
of assets to a Credit Party;
(d) Dispositions
of Investments permitted under Section 8.7;
(e) Dispositions
of accounts receivable in connection with the collection or compromise
thereof;
(f) Dispositions
of licenses, sublicenses, leases or subleases granted to others not interfering
in any material respect with the business of a Credit Party and its
Subsidiaries;
(g) Dispositions
of Cash Equivalents for fair market value;
(h) Dispositions
in which: (i) the assets being disposed are used simultaneously in exchange
for
replacement assets or (ii) the net proceeds thereof are reinvested within 180
days from such Disposition in assets to be used in the ordinary course of the
business of the Parent and its Subsidiaries.
(i) other
Dispositions not exceeding in the aggregate for all Credit Parties and their
Subsidiaries (i) 10% of Consolidated Net Tangible Assets in any fiscal year
and
(ii) 25% of Consolidated Net Tangible Assets during the term of this Credit
Agreement.
8.5 Transactions
with Affiliates.
A
Credit
Party will not, and will not permit any Subsidiary to, directly or indirectly,
pay any funds to or for the account of, make any investment in, lease, sell,
transfer or otherwise dispose of any assets, tangible or intangible, to, or
participate in, or effect, any transaction with, any officer, director, employee
or Affiliate (other than another Credit Party) unless any and all such
transactions between a Credit Party and its Subsidiaries on the one hand and
any
officer, director, employee or Affiliate (other than another Credit Party)
on
the other hand, shall be on an arms-length basis and on terms no less favorable
to such Credit Party or such Subsidiary than could have been obtained from
a
third party who was not an officer, director, employee or Affiliate (other
than
another Credit Party); provided,
that
the
foregoing provisions of this Section shall not (a) prohibit a Credit
Party and each Subsidiary from declaring or paying any lawful dividend or
distribution otherwise permitted hereunder, (b) prohibit a Credit Party or
a Subsidiary from providing credit support for its Subsidiaries as it deems
appropriate in the ordinary course of business, (c) prohibit a Credit Party
or a
Subsidiary from engaging in a transaction or transactions that are not on an
arms-length basis or are not on terms as favorable as could have been obtained
from a third party, provided that such transaction or transactions occurs within
a related series of transactions, which, in the aggregate, are on an arms-length
basis and are on terms as favorable as could have been obtained from a third
party, (d) prohibit a Credit Party or a Subsidiary from engaging in non-material
transactions with any Credit Party that are not on an arms-length basis or
are
not on terms as favorable as could have been obtained from a third party but
are
in the ordinary course of such Credit Party's or such Subsidiary's business,
so
long as, in each case, after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing, (e) [intentionally omitted],
(f)
prohibit a Credit Party from engaging in a transaction with an Affiliate if
such
transaction has been approved by the Conflicts Committee, or (g) prohibit a
Credit Party from entering into any of the agreements listed on Schedule
8.5.
8.6 Indebtedness.
No
Credit
Party will, nor will it permit its Subsidiaries to, create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness
under the Credit Documents;
(b) Investments
permitted under Section
8.7
that
would constitute Indebtedness;
(c) obligations
(contingent or otherwise) of a Credit Party or any Subsidiary existing or
arising under (i) any Credit Facility Swap Contract or (ii) any other Swap
Contract; provided
that
with respect to clauses (i) and (ii) above (A) such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose
of directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a "market view" and (B) such Credit Facility
Swap Contract or Swap Contract does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party;
(d) current
liabilities of the Credit Parties or their respective Subsidiaries incurred
in
the ordinary course of business but not incurred through (i) the borrowing
of money or (ii) the obtaining of credit except for credit on an open
account basis customarily extended and in fact extended in connection with
normal purchases of goods and services;
(e) Indebtedness
in respect of taxes, assessments, governmental charges or levies and claims
for
labor, materials and supplies to the extent that payment therefor shall not
at
the time be required to be made in accordance with the provisions of this Credit
Agreement;
(f) Indebtedness
in respect of judgments or awards only to the extent, for the period and for
an
amount not resulting in a Default or Event of Default;
(g) (i)
Indebtedness (secured or unsecured) in an aggregate amount not to exceed
$400,000,000 under the 2005 Credit Agreement; and (ii) other unsecured
Indebtedness in an aggregate amount not to exceed, at any one time outstanding,
the greater of (A) $50,000,000 and (B) 10% of Consolidated Net Tangible
Assets; and
(h) secured
Indebtedness to the extent permitted by Section 8.2(m).
8.7 Investments.
No
Credit
Party will, nor will it permit its Subsidiaries to, make any Investments,
except:
(a) Investments
held by a Credit Party or a Subsidiary in the form of cash or Cash
Equivalents;
(b) Investments
in any Subsidiary.
(c) Investments
consisting of extensions of credit in the nature of accounts receivable or
notes
receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;
(d) Investments
in Permitted Acquisitions and capital expenditures in the ordinary
course.
(e) Investments
in Credit Facility Swap Contracts and other Swap Contracts permitted by Section
8.6;
(f) Loans
and
advances to the general partner of the Borrower or the Parent to enable such
general partner of the to pay general and administrative costs and expenses
pursuant to the partnership agreement of the Borrower or Parent, as applicable;
and
(g) other
Investments in an aggregate amount not to exceed, at any one time outstanding,
$25,000,000.
8.8 Restricted
Payments.
No
Credit
Party will, nor will it permit its Subsidiaries to, declare or make, directly
or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except that:
(a) a
Credit
Party or Subsidiary may make Restricted Payments to a Credit Party;
(b) a
Credit
Party or Subsidiary may declare and make dividend payments or other
distributions payable solely in the Capital Stock of such Person;
(c) [intentionally
omitted];
(d) as
long
as no Default or Event of Default exists and is continuing, the Credit Parties
may make quarterly cash distributions in an amount not to exceed Available
Cash
for such period; and
(e) the
Parent or Borrower may repurchase their respective limited partnership units
in
an aggregate amount not exceeding $5,000,000 in any fiscal year.
SECTION
9.
EVENTS
OF DEFAULT
9.1 Events
of Default.
An
Event
of Default shall exist upon the occurrence of any of the following specified
events (each an "Event
of Default"):
(a) Payment.
A
Credit Party shall: (i) default
in the payment when due of any principal amount of any of the Loans; or
(ii) default,
and such default shall continue for five or more Business Days, in the payment
when due of any interest on the Loans or of any fees or other amounts owing
hereunder, under any of the other Credit Documents or in connection
herewith.
(b) Representations.
Any
representation, warranty or statement made or deemed to be made by a Credit
Party herein, in any of the other Credit Documents, or in any statement or
certificate delivered or required to be delivered pursuant hereto or thereto
shall prove to have been untrue in any material respect on the date as of which
it was deemed to have been made.
(c) Covenants.
A
Credit Party shall:
(i) default
in the due performance or observance of any term, covenant or agreement
contained in Section 7.1(f), 7.8, 7.10, 7.11, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6,
8.7 or 8.8;
(ii) [intentionally
omitted]; or
(iii) default
in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in subsections (a), (b), (c)(i) or (c)(ii) of
this Section 9.1) contained in this Credit Agreement or any other Credit
Document and such default shall continue unremedied for a period of at least
30
days after the earlier of (A) a Responsible Officer of a Credit Party
becoming aware of such default or (B) notice of such default is given by
the Agent or a Lender to the Borrower.
(d) Credit
Documents.
Any
Credit Document shall fail to be in full force and effect or a Credit Party
shall so assert or any Credit Document shall fail to give the Agent and/or
the
Lenders the rights, powers and privileges purported to be created thereby;
or
(e) Bankruptcy,
etc.
The
occurrence of any of the following with respect to a Credit Party or a
Subsidiary (i) a court or governmental agency having jurisdiction in the
premises shall enter a decree or order for relief in respect of such Credit
Party or Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoint a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Credit Party or Subsidiary or for any substantial part of
its
property or ordering the winding up or liquidation of its affairs; or
(ii) an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect is commenced against such Credit
Party or Subsidiary and such petition remains unstayed and in effect for a
period of 90 consecutive days; or (iii) such Credit Party or Subsidiary
shall commence a voluntary case under any applicable bankruptcy, insolvency
or
other similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of such Person or any substantial
part
of its property or make any general assignment for the benefit of creditors;
or
(iv) such Credit Party or Subsidiary shall admit in writing its inability
to pay its debts generally as they become due or any action shall be taken
by
such Person in furtherance of any of the aforesaid purposes.
(f) Defaults
under Other Agreements.
With
respect to any Indebtedness, including any Off Balance Sheet Indebtedness,
in
excess of the greater of (i) $10,000,000 or (ii) the lesser of (x) three percent
(3%) of Consolidated Net Tangible Assets and (y) $100,000,000 (other than
Indebtedness outstanding under this Credit Agreement) of a Credit Party or
any
Subsidiary such Credit Party or such Subsidiary shall (A) default in any
payment (beyond the applicable grace period with respect thereto, if any) with
respect to any such Indebtedness or fail to timely pay such Indebtedness when
due, or (B) default (after giving effect to any applicable grace period) in
the observance or performance of any covenant or agreement relating to such
Indebtedness or contained in any instrument or agreement evidencing, securing
or
relating thereto, or any other event or condition shall occur or condition
exist, the effect of which default or other event or condition in this clause
(B) is to cause any such Indebtedness to become due prior to its stated
maturity.
(g) Judgments.
One or
more judgments, orders, or decrees shall be entered against a Credit Party
or a
Subsidiary involving a liability, in the aggregate, in excess of the greater
of
(i) $10,000,000 or (ii) the lesser of (x) three percent (3%) of Consolidated
Net
Tangible Assets and (y) $50,000,000 (to the extent not paid or covered by
insurance provided by a carrier who has acknowledged coverage) and such
judgments, orders or decrees shall continue unsatisfied, undischarged and
unstayed for a period ending on the first to occur of (i) the last day on
which such judgment, order or decree becomes final and unappealable and, where
applicable, with the status of a judicial lien or (ii) 45
days.
(h) ERISA.
The
occurrence of:
(i) any
of
the following events or conditions which could result in a liability of a Credit
Party or an ERISA Affiliate, in the aggregate, in excess of the greater of
(i)
$10,000,000 or (ii) the lesser of (x) three percent (3%) of Consolidated Net
Tangible Assets and (y) $25,000,000: (A) any
"accumulated funding deficiency," as such term is defined in Section 302 of
ERISA and Section 412 of the Code, whether or not waived, shall exist with
respect to any Plan, or any lien shall arise on the assets of the Borrower
or
any ERISA Affiliate in favor of the PBGC or a Plan; or (B) any
prohibited transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary responsibility shall occur
which would be reasonably expected to subject the Borrower or any ERISA
Affiliate to any liability under Sections 406, 409, 502(i), or 502(l) of
ERISA or Section 4975 of the Code, or under any agreement or other
instrument pursuant to which the Borrower or any ERISA Affiliate has agreed
or
is required to indemnify any person against any such liability; or
(ii) any
of
the following events or conditions which could result in a liability of a Credit
Party or an ERISA Affiliate,
in the
aggregate, in excess of the greater of (i) $10,000,000 or (ii) the lesser of
(x)
three percent (3%) of Consolidated Net Tangible Assets and (y)
$50,000,000:
(A) a
Termination Event shall occur with respect to a Single Employer Plan which
is,
in the reasonable opinion of the Agent, likely to result in the termination
of
such Plan for purposes of Title IV of ERISA; or (B) a
Termination Event shall occur with respect to a Multiemployer Plan or Multiple
Employer Plan which is, in the reasonable opinion of the Agent, likely to result
in (x) the termination of such Plan for purposes of Title IV of ERISA,
or (y) the Borrower or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within the meaning of
Section 4241 of ERISA), or insolvency (within the meaning of
Section 4245 of ERISA) of such Plan.
(i) Change
of Control.
The
occurrence of any Change of Control.
9.2 Acceleration;
Remedies.
Upon
the
occurrence of an Event of Default, and at any time thereafter unless and until
such Event of Default has been waived by the Required Lenders (or the Lenders
as
may be required hereunder), the Agent may, with the consent of the Required
Lenders, and shall, upon the request and direction of the Required Lenders,
by
written notice to the Borrower take any of the following actions without
prejudice to the rights of the Agent or any Lender to enforce its claims against
the Borrower, except as otherwise specifically provided for herein:
(i) Acceleration
of Loans.
Declare
the unpaid principal of and any accrued interest in respect of all Loans and
any
and all other indebtedness or obligations of any and every kind owing by the
Credit Parties to any of the Lenders hereunder to be due whereupon the same
shall be immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the
Borrower.
(ii) Enforcement
of Rights.
Enforce
any and all rights and interests created and existing under the Credit
Documents, including, without limitation, all rights of set-off.
Notwithstanding
the foregoing, if an Event of Default specified in Section 9.1(e) shall
occur, then all Loans, all accrued interest in respect thereof, all accrued
and
unpaid fees and other indebtedness or obligations owing to the Lenders and
the
Agent hereunder shall immediately become due and payable without the giving
of
any notice or other action by the Agent or the Lenders.
Notwithstanding
the fact that enforcement powers reside primarily with the Agent, each Lender
has, to the extent permitted by law, a separate right of payment and shall
be
considered a separate "creditor" holding a separate "claim" within the meaning
of Section 101(5) of the Bankruptcy Code or any other insolvency
statute.
9.3 Allocation
of Payments After Event of Default.
Notwithstanding
any other provision of this Credit Agreement, after the occurrence of an Event
of Default, all amounts collected or received by the Agent or any Lender on
account of amounts outstanding under any of the Credit Documents shall be paid
over or delivered as follows:
FIRST,
to
the payment of all reasonable out-of-pocket costs and expenses (including
without limitation reasonable attorneys' fees) of the Agent and the Lenders
in
connection with enforcing the rights of the Lenders under the Credit Documents,
pro rata as set forth below;
SECOND,
to payment of any fees owed to the Agent, or any Lender, pro rata as set forth
below;
THIRD,
to
the payment of all accrued interest payable to the Lenders hereunder, pro rata
as set forth below;
FOURTH,
to the payment of the outstanding principal amount of the Loans, pro rata,
as
set forth below;
FIFTH,
to
all other obligations which shall have become due and payable under the Credit
Documents and not repaid pursuant to clauses "FIRST" through "FOURTH" above;
and
SIXTH,
to
the payment of the surplus, if any, to whomever may be lawfully entitled to
receive such surplus;
In
carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; and (b) each of the Lenders shall receive an amount
equal to its pro rata share (based on the proportion that the then outstanding
Loans held by such Lender bears to the aggregate then outstanding Loans), of
amounts available to be applied.
SECTION
10.
AGENCY
PROVISIONS
10.1 Appointment.
Each
Lender hereby designates and appoints Wachovia Bank, National Association,
as
agent of such Lender to act as specified herein and the other Credit Documents,
and each such Lender hereby authorizes the Agent, as the agent for such Lender,
to take such action on its behalf under the provisions of this Credit Agreement
and the other Credit Documents and to exercise such powers and perform such
duties as are expressly delegated by the terms hereof and of the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere herein and in the other
Credit Documents, the Agent shall not have any duties or responsibilities,
except those expressly set forth herein and therein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Credit Agreement or any of the other Credit Documents, or shall otherwise exist
against the Agent. The provisions of this Section are solely for the
benefit of the Agent and the Lenders and no Credit Party shall have any rights
as a third party beneficiary of the provisions hereof. In performing its
functions and duties under this Credit Agreement and the other Credit Documents,
the Agent shall act solely as agent of the Lenders and does not assume and
shall
not be deemed to have assumed any obligation or relationship of agency or trust
with or for any Credit Party. All institutions (if any) acting as a
Co-Syndication Agent or Co-Documentation Agent hereunder shall have no
obligations in such capacity under the Credit Documents.
10.2 Delegation
of Duties.
The
Agent
may execute any of its duties hereunder or under the other Credit Documents
by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The 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.
10.3 Exculpatory
Provisions.
Neither
the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be liable for any action lawfully taken
or
omitted to be taken by it or such Person under or in connection herewith or
in
connection with any of the other Credit Documents (except for its or such
Person's own gross negligence or willful misconduct), or responsible in any
manner to any of the Lenders for any recitals, statements, representations
or
warranties made by any Credit Party contained herein or in any of the other
Credit Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
herewith or in connection with the other Credit Documents, or enforceability
or
sufficiency therefor of any of the other Credit Documents, or for any failure
of
any Credit Party to perform its obligations hereunder or thereunder. The Agent
shall not be responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Credit
Agreement, or any of the other Credit Documents or for any representations,
warranties, recitals or statements made herein or therein or made by any Credit
Party in any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents in connection herewith
or therewith furnished or made by the Agent to the Lenders or by or on behalf
of
any Credit Party to the Agent or any Lender or be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to the
use
of the proceeds of the Loans or of the existence or possible existence of any
Default or Event of Default or to inspect the properties, books or records
of
any Credit Party. The Agent is not a trustee for the Lenders and owes no
fiduciary duty to the Lenders.
10.4 Reliance
on Communications.
The
Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order
or
other document or conversation believed by it to be genuine and correct and
to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to
the
Credit Parties, independent accountants and other experts selected by the Agent
with reasonable care). The Agent may deem and treat the Lenders as the owner
of
its interests hereunder for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Agent in
accordance with Section 11.3(b). The Agent shall be fully justified in
failing or refusing to take any action under this Credit Agreement or under
any
of the other Credit Documents unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate or it shall first
be
indemnified to its satisfaction by the Lenders against any and all liability
and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected in acting,
or
in refraining from acting, hereunder or under any of the other Credit Documents
in accordance with a request of the Required Lenders (or to the extent
specifically provided in Section 11.6, all the Lenders) and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders (including their successors and assigns).
10.5 Notice
of Default.
The
Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder (other than an Event of Default specified in
Section 9.1(a)) unless the Agent has received notice from a Lender or the
Borrower referring to the Credit Document, describing such Default or Event
of
Default and stating that such notice is a "notice of default." In the event
that
the Agent receives such a notice, the Agent shall give prompt notice thereof
to
the Lenders. The Agent shall take such action with respect to such Default
or
Event of Default as shall be reasonably directed by the Required
Lenders.
10.6 Non-Reliance
on Agent and Other Lenders.
Each
Lender expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent or any
Affiliate thereof hereinafter taken, including any review of the affairs of
the
Credit Parties, shall be deemed to constitute any representation or warranty
by
the Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and
based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of the Credit
Parties and made its own decision to make its Extensions of Credit hereunder
and
enter into this Credit Agreement. Each Lender also represents that it will,
independently and without reliance upon the Agent or any other Lender, and
based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or
not taking action under this Credit Agreement, and to make such investigation
as
it deems necessary to inform itself as to the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of
the
Credit Parties. Except for notices, reports and other documents expressly
required to be furnished to the Lenders by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, assets, property,
financial or other conditions, prospects or creditworthiness of the Credit
Parties which may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification.
Each
Lender agrees to indemnify the Agent in its capacity as such (to the extent
not
reimbursed by the Credit Parties and without limiting the obligation of the
Credit Parties to do so), ratably according to its Commitment Percentage, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time
following the payment in full of the Credit Parties Obligations) be imposed
on,
incurred by or asserted against the Agent in its capacity as such in any way
relating to or arising out of this Credit Agreement or the other Credit
Documents or any documents contemplated by or referred to herein or therein
or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Agent under or in connection with any of the foregoing; provided,
that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Agent. If any indemnity furnished to the Agent for any purpose
shall, in the opinion of the Agent, be insufficient or become impaired, the
Agent may call for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is furnished. The
agreements in this Section 10.7 shall survive the payment of the
Obligations and all other amounts payable hereunder and under the other Credit
Documents and the termination of the Commitments.
10.8 Agent
in Its Individual Capacity.
The
Agent
and its Affiliates may make loans to, accept deposits from and generally engage
in any kind of business with a Credit Party as though the Agent were not Agent
hereunder. With respect to the Loans made and all Obligations owing to it,
the
Agent shall have the same rights and powers under this Credit Agreement as
any
Lender and may exercise the same as though it were not the Agent, and the terms
"Lender" and "Lenders" shall include the Agent in its individual
capacity.
10.9 Successor
Agent.
The
Agent
may, at any time, resign upon 30 days written notice to the Lenders and the
Borrower. Upon any such resignation, the Borrower with the consent of the
Required Lenders (such consent of the Required Lenders not to be unreasonably
withheld or delayed) shall have the right to appoint a successor Agent. If
no
successor Agent shall have been so appointed and shall have accepted such
appointment within 30 days after the notice of resignation, then the retiring
Agent shall select a successor Agent provided such successor is a Lender
hereunder or qualifies as an Eligible Assignee (or if no Eligible Assignee
shall
have been so appointed by the retiring Agent and shall have accepted such
appointment, then the Lenders shall perform all obligations of the retiring
Agent hereunder until such time, if any, as a successor Agent shall have been
appointed and shall have accepted such appointment as provided for above).
Upon
the acceptance of any appointment as Agent hereunder by a successor, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations as Agent, as
appropriate, under this Credit Agreement and the other Credit Documents and
the
provisions of this Section 10.9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this Credit
Agreement.
SECTION
11.
MISCELLANEOUS
11.1 Notices.
(a) Except
as
otherwise expressly provided herein, all notices and other communications shall
have been duly given and shall be effective (i) when delivered,
(ii) when transmitted via telecopy (or other facsimile device),
(iii) the Business Day following the day on which the same has been
delivered prepaid (or pursuant to an invoice arrangement) to a reputable
national overnight air courier service, or (iv) the third Business Day
following the day on which the same is sent by certified or registered mail,
postage prepaid, in each case to the respective parties at the address or
telecopy numbers set forth on Schedule 11.1,
or at
such other address as such party may specify by written notice to the other
parties hereto.
(b) Notwithstanding
anything herein to the contrary, notices and other communications to the Agent,
the Lenders and the Credit Parties, may be delivered or furnished by electronic
communication (including email, Internet or intranet website) pursuant to
procedures approved by the Agent; provided that the certificate required to
be
delivered by Section 7.1(d) must be delivered in original form.
11.2 Right
of Set-Off.
In
addition to any rights now or hereafter granted under applicable law or
otherwise, and not by way of limitation of any such rights, upon the occurrence
of an Event of Default and the commencement of remedies described in
Section 9.2, each Lender is authorized at any time and from time to time,
without presentment, demand, protest or other notice of any kind (all of which
rights being hereby expressly waived), to set-off and to appropriate and apply
any and all deposits (general or special) and any other indebtedness at any
time
held or owing by such Lender (including, without limitation branches, agencies
or Affiliates of such Lender wherever located) to or for the credit or the
account of the Borrower against obligations and liabilities of the Borrower
to
the Lenders hereunder, under the Notes, the other Credit Documents or otherwise,
irrespective of whether the Agent or the Lenders shall have made any demand
hereunder and although such obligations, liabilities or claims, or any of them,
may be contingent or unmatured, and any such set-off shall be deemed to have
been made immediately upon the occurrence of an Event of Default even though
such charge is made or entered on the books of such Lender subsequent
thereto.
11.3 Benefit
of Agreement.
(a) Generally.
This
Credit Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
provided,
that
the Borrower may not assign and transfer any of its interests without the prior
written consent of the Lenders; and provided,
further,
that
the rights of each Lender to transfer, assign or grant participations in its
rights and/or obligations hereunder shall be limited as set forth below in
this
Section 11.3.
(b) Assignments.
Each
Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Credit Agreement (including, without
limitation, all or a portion of its Loans and its Notes); provided,
however,
that:
(i) each
such
assignment shall be to an Eligible Assignee;
(ii) [intentionally
omitted].
(iii) except
in
the case of an assignment to another Lender or an assignment of all of a
Lender's rights and obligations under this Credit Agreement, any such partial
assignment shall be in an amount at least equal to $10,000,000 (or, if less,
the
remaining amount of Loans being assigned by such Lender) and an integral
multiple of $1,000,000 in excess thereof; and
(iv) the
parties to such assignment shall execute and deliver to the Agent for its
acceptance an Assignment Agreement in substantially the form of Exhibit 11.3(b),
together with a processing fee from the assignor of $3,500.
Upon
execution, delivery, and acceptance of such Assignment Agreement, the assignee
thereunder shall be a party hereto and, to the extent of such assignment, have
the obligations, rights, and benefits of a Lender hereunder and the assigning
Lender shall, to the extent of such assignment, relinquish its rights (except
those rights hereunder which by their terms expressly survive) and be released
from its obligations under this Credit Agreement. Upon the consummation of
any
assignment pursuant to this Section 11.3(b), the assignor, the Agent and
the Borrower shall make appropriate arrangements so that, if required, new
Notes
are issued to the assignor and the assignee. If the assignee is not incorporated
under the laws of the United States of America or a state thereof, it shall
deliver to the Borrower and the Agent certification as to exemption from
deduction or withholding of taxes in accordance with
Section 4.4.
By
executing and delivering an assignment agreement in accordance with this
Section 11.3(b), the assigning Lender thereunder and the assignee
thereunder shall be deemed to confirm to and agree with each other and the
other
parties hereto as follows: (A) such assigning Lender warrants that it is
the legal and beneficial owner of the interest being assigned thereby free
and
clear of any adverse claim created by such assigning Lender and the assignee
warrants that it is an Eligible Assignee; (B) except as set forth in
clause (A) above, such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement, any of
the
other Credit Documents or any other instrument or document furnished pursuant
hereto or thereto, or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, any of the other
Credit Documents or any other instrument or document furnished pursuant hereto
or thereto or the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Credit
Agreement, any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto; (C) such assigning Lender and such
assignee represents and warrants that it is legally authorized to enter into
such assignment agreement; (D) such assignee confirms that it has received
a copy of this Credit Agreement, the other Credit Documents and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such assignment agreement; (E) such
assignee will independently and without reliance upon the Agent, such assigning
Lender or any other Lender, and based on such documents and information as
it
shall deem appropriate at the time, continue to make its own credit decisions
in
taking or not taking action under this Credit Agreement and the other Credit
Documents; (F) such assignee appoints and authorizes the Agent to take such
action on its behalf and to exercise such powers under this Credit Agreement
or
any other Credit Document as are delegated to the Agent by the terms hereof
or
thereof, together with such powers as are reasonably incidental thereto; and
(G) such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Credit Agreement and the
other Credit Documents are required to be performed by it as a
Lender.
(c) Register.
The
Agent shall maintain a copy of each Assignment Agreement delivered to and
accepted by it and a register for the recordation of the names and addresses
of
the Lenders and the Commitment of, and principal amount of the Loans owing
to,
each Lender from time to time (the "Register").
The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time
to
time upon reasonable prior notice.
(d) Acceptance.
Upon
its receipt of an Assignment Agreement executed by the parties thereto, together
with any Note subject to such assignment and payment of the processing fee,
the
Agent shall, if such Assignment Agreement has been completed and is in
substantially the form of Exhibit 11.3(b)
hereto,
(i) accept such Assignment Agreement, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to
the parties thereto.
(e) Participations.
Each
Lender may sell participations to one or more Persons in all or a portion of
its
rights, obligations or rights and obligations under this Credit Agreement
(including all or a portion of its Notes and its Loans); provided,
however,
that
(i) such Lender's obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the
participant shall be entitled to the benefit of the yield protection provisions
contained in Sections 4.1 through 4.4, inclusive, but shall not be entitled
to receive any amount greater than such Lender would have been able to receive,
and (iv) the Borrower shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this Credit
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Notes and to approve
any amendment, modification, or waiver of any provision of this Credit Agreement
(other than amendments, modifications, or waivers decreasing the amount of
principal of or the rate at which interest is payable on such Loans or Notes,
extending any scheduled principal payment date or date fixed for the payment
of
interest on such Loans or Notes, or extending its Commitment).
(f) Nonrestricted
Assignments.
Notwithstanding any other provision set forth in this Credit Agreement, any
Lender may at any time assign and pledge all or any portion of its Loans and
its
Notes to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender from its obligations
hereunder.
(g) Information.
Subject
to Section 11.17, any Lender may furnish any information concerning the Borrower
in the possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants).
11.4 No
Waiver; Remedies Cumulative.
No
failure or delay on the part of the Agent or any Lender in exercising any right,
power or privilege hereunder or under any other Credit Document and no course
of
dealing between the Borrower and the Agent or any Lender shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power
or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein are cumulative
and not exclusive of any rights or remedies which the Agent or any Lender would
otherwise have. No notice to or demand on the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or the Lenders
to any other or further action in any circumstances without notice or
demand.
11.5 Payment
of Expenses, etc.
The
Borrower agrees to: (i) pay all reasonable out-of-pocket costs and expenses
of the Agent in connection with (A) the negotiation, preparation, execution
and delivery, syndication and administration of this Credit Agreement and the
other Credit Documents and the documents and instruments referred to therein
(including, without limitation, the reasonable fees and expenses of counsel
to
the Agent) and (B) any amendment, waiver or consent relating hereto and
thereto including, but not limited to, any such amendments, waivers or consents
resulting from or related to any work-out, renegotiation or restructure relating
to the performance by the Borrower under this Credit Agreement, (ii) pay
all reasonable out-of-pocket costs and expenses of the Agent and each Lender
in
connection with (A) enforcement of the Credit Documents and the documents
and instruments referred to therein (including, without limitation, in
connection with any such enforcement, the reasonable fees and disbursements
of
counsel for the Agent and each of the Lenders (including the allocated cost
of
internal counsel)) and (B) any bankruptcy or insolvency proceeding of the
Borrower and (iii) indemnify the Agent and each Lender, their respective
Affiliates and the respective officers, directors, employees, representatives
and agents of the foregoing from and hold each of them harmless against any
and
all losses, liabilities, claims, damages or expenses incurred by any of them
as
a result of, or arising out of, or in any way related to, or by reason of,
any
investigation, litigation or other proceeding (whether or not the Agent or
any
Lender is a party thereto) related to the entering into and/or performance
of
any Credit Document or the use of proceeds of any Loans (including other
extensions of credit) hereunder or the consummation of any other transactions
contemplated in any Credit Document, including, without limitation, the
reasonable fees and disbursements of counsel and settlement costs incurred
in
connection with any such investigation, litigation or other proceeding (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of gross negligence or willful misconduct on the
part
of the Person to be indemnified).
11.6 Amendments,
Waivers and Consents.
Neither
this Credit Agreement, nor any other Credit Document nor any of the terms hereof
or thereof may be amended, changed, waived, discharged or terminated unless
such
amendment, change, waiver, discharge or termination is in writing and signed
by
the Required Lenders and the Borrower (and if the rights or duties of the
Issuing Bank are affected thereby, by it); provided,
that no
such amendment, change, waiver, discharge or termination shall without the
consent of each Lender affected thereby:
(a) extend
the Maturity Date, or postpone or extend the time for any payment or prepayment
of principal;
(b) reduce
the rate or extend the time of payment of interest thereon or fees or other
amounts payable hereunder;
(c) reduce
or
waive the principal amount of any Loan;
(d) increase
or extend the Commitment of a Lender (it being understood and agreed that a
waiver of any Default or Event of Default or a waiver of any mandatory reduction
in the Commitments shall not constitute a change in the terms of any Commitment
of any Lender);
(e) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under (or in respect of) the Credit Documents or release the
Borrower from its obligations under the Credit Documents;
(f) amend,
modify or waive any provision of this Section 11.6 or Section 3.6,
3.8, 5.1, 9.1(a), 11.2, 11.3 or 11.5;
(g) reduce
any percentage specified in, or otherwise modify, the definition of Required
Lenders;
(h) [intentionally
omitted]; or
(i) release
the Parent from its obligations under the Credit Documents or release all or
substantially all of the other Guarantors from their obligations.
No
provision of Section 10 may be amended or modified without the consent of
the Agent.
Notwithstanding
the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans, and
each
Lender acknowledges that the provisions of Section 1126(c) of the
Bankruptcy Code supersede the unanimous consent provisions set forth herein
and
(y) the Required Lenders may consent to allow the Borrower to use cash
collateral in the context of a bankruptcy or insolvency proceeding.
11.7 Counterparts/Telecopy.
This
Credit Agreement may be executed in any number of counterparts, each of which
where so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. Delivery of executed counterparts by
telecopy shall be as effective as an original and shall constitute a
representation that an original will be delivered.
11.8 Headings.
The
headings of the sections and subsections hereof are provided for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Credit Agreement.
11.9 Defaulting
Lender.
Each
Lender understands and agrees that if such Lender is a Defaulting Lender then
it
shall not be entitled to vote on any matter requiring the consent of the
Required Lenders or to object to any matter requiring the consent of all the
Lenders; provided,
however,
that
(a) a Lender's Commitment may not be increased without its consent whether
or not it is a Defaulting Lender and (b) all other benefits and obligations
under the Credit Documents shall apply to such Defaulting Lender.
11.10 Survival
of Indemnification and Representations and Warranties.
All
indemnities set forth herein and all representations and warranties made herein
shall survive the execution and delivery of this Credit Agreement, the making
of
the Loans and the repayment of the Loans and other obligations and the
termination of the Commitments hereunder.
11.11 Governing
Law; Venue.
(a) THIS
CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Any legal
action or proceeding with respect to this Credit Agreement or any other Credit
Document may be brought in the courts of the State of New York, or of the United
States for the Southern District of New York, and, by execution and delivery
of
this Credit Agreement, the Borrower hereby irrevocably accepts for itself and
in
respect of its property, generally and unconditionally, the jurisdiction of
such
courts. The Borrower further irrevocably consents to the service of process
out
of any of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid,
to
it at the address for notices pursuant to Section 11.1, such service to
become effective 30 days after such mailing. Nothing herein shall affect the
right of a Lender to serve process in any other manner permitted by law or
to
commence legal proceedings or to otherwise proceed against the Borrower in
any
other jurisdiction.
(b) The
Borrower hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Credit Agreement or any other Credit
Document brought in the courts referred to in subsection (a) hereof and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
11.12 Waiver
of Jury Trial; Waiver of Consequential Damages.
EACH
OF
THE PARTIES TO THIS CREDIT AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY. The Borrower agrees not to assert any claim
against the Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys or agents, on any theory
of
liability, for special, indirect, consequential or punitive damages arising
out
of or otherwise relating to any of the transactions contemplated hereby or
by
the other Credit Documents.
11.13 Severability.
If
any
provision of any of the Credit Documents is determined to be illegal, invalid
or
unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.
11.14 Further
Assurances.
The
Borrower agrees, upon the request of the Agent, to promptly take such actions,
as reasonably requested, as are necessary to carry out the intent of this Credit
Agreement and the other Credit Documents.
11.15 Entirety.
This
Credit Agreement together with the other Credit Documents represent the entire
agreement of the parties hereto and thereto, and supersede all prior agreements
and understandings, oral or written, if any, including any commitment letters
or
correspondence relating to the Credit Documents or the transactions contemplated
herein and therein.
11.16 Binding
Effect; Continuing Agreement.
(a) This
Credit Agreement shall become effective at such time when all of the conditions
set forth in Section 5.1 have been satisfied or waived by the Lenders and
it shall have been executed by the Borrower, the Agent and the Lenders, and
thereafter this Credit Agreement shall be binding upon and inure to the benefit
of the Borrower, the Agent and each Lender and their respective successors
and
permitted assigns.
(b) This
Credit Agreement shall be a continuing agreement and shall remain in full force
and effect until all Loans, interest, fees and other Obligations have been
paid
in full and all Commitments have been terminated. Upon such termination, the
Borrower shall have no further obligations (other than those provisions that
expressly survive the termination thereof) under the Credit Documents;
provided,
that
should any payment, in whole or in part, of the Obligations be rescinded or
otherwise required to be restored or returned by the Agent or any Lender,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, then the Credit Documents shall automatically be reinstated and
all
amounts required to be restored or returned and all costs and expenses incurred
by the Agent or any Lender in connection therewith shall be deemed included
as
part of the Obligations.
11.17 Confidentiality;
USA PATRIOT Act.
(a) The
Agent
and each Lender will keep any information delivered or made available by the
Borrower pursuant to this Credit Agreement confidential from anyone other than
persons employed or retained by the Agent or such Lender and its Affiliates
who
are engaged in evaluating, approving, structuring or administering this Credit
Agreement; provided,
that
the Agent and the Lenders shall be entitled to disclose such information (a)
to
any other Lender or to the Agent, (b) upon the order of any court or
administrative agency, (c) upon the request or demand of any regulatory agency
or authority, (d) which had been publicly disclosed other than as a result
of a
disclosure by the Agent or any Lender prohibited by this Agreement, (e) in
connection with any litigation to which the Agent, any Lender or its
subsidiaries or parent may be a party, (f) to the extent necessary in connection
with the exercise of any remedy under this Agreement, (g) to such Lender's
or
Agent's legal counsel and independent auditors and (h) subject to provisions
substantially similar to this Section 11.17, to any actual or proposed
participant or assignee.
(b) Each
Lender hereby notifies the Borrower that pursuant to the requirements of the
USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Patriot Act"),
it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow such Lender to identify the Borrower in accordance
with the Patriot Act.
SECTION
12.
GUARANTY
12.1 The
Guaranty.
Each
of
the Guarantors hereby jointly and severally guarantees to each Lender, each
Affiliate of a Lender that enters into a Credit Facility Swap Contract or a
Treasury Management Agreement with a Credit Party, and the Administrative Agent
as hereinafter provided, as primary obligor and not as surety, the prompt
payment of the Obligations in full when due (whether at stated maturity, as
a
mandatory prepayment, by acceleration, as a mandatory cash collateralization
or
otherwise) strictly in accordance with the terms thereof. The Guarantors hereby
further agree that if any of the Obligations are not paid in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration, as
a
mandatory cash collateralization or otherwise), the Guarantors will, jointly
and
severally, promptly pay the same, without any demand or notice whatsoever,
and
that in the case of any extension of time of payment or renewal of any of the
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal.
Notwithstanding
any provision to the contrary contained herein or in any other of the Credit
Documents, Credit Facility Swap Contracts or Treasury Management Agreements,
the
obligations of each Guarantor under
this Agreement and the other Credit Documents shall
be
limited to an aggregate amount equal to the largest amount that would not render
such obligations subject to avoidance under the Bankruptcy Code or any
comparable provisions of any applicable state law.
12.2 Obligations
Unconditional.
The
obligations of the Guarantors under Section 12.1 are joint and several,
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Credit Documents, Credit Facility
Swap Contracts or Treasury Management Agreements, or any other agreement or
instrument referred to therein, or any substitution, release, impairment or
exchange of any other guarantee of or security for any of the Obligations,
and,
to the fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 12.2 that the obligations of the Guarantors hereunder shall be
absolute and unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation, indemnity,
reimbursement or contribution against either the Borrower or any other Guarantor
for amounts paid under this Section 12 until such time as the Obligations have
been paid in full and the Commitments have expired or terminated. Without
limiting the generality of the foregoing, it is agreed that, to the fullest
extent permitted by law, the occurrence of any one or more of the following
shall not alter or impair the liability of any Guarantor hereunder, which shall
remain absolute and unconditional as described above:
(a) at
any
time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended,
or
such performance or compliance shall be waived;
(b) any
of
the acts mentioned in any of the provisions of any of the Credit Documents,
any
Credit Facility Swap Contract or Treasury Management Agreement between Credit
Party and any Lender, or any Affiliate of a Lender, or any other agreement
or
instrument referred to in the Credit Documents, such Credit Facility Swap
Contracts or such Treasury Management Agreements shall be done or
omitted;
(c) the
maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any
right under any of the Credit Documents, any Credit Facility Swap Contract
or
Treasury Management Agreement between any Credit Party and any Lender, or any
Affiliate of a Lender, or any other agreement or instrument referred to in
the
Credit Documents, such Credit Facility Swap Contracts or such Treasury
Management Agreements shall be waived or any other guarantee of any of the
Obligations or any security therefor shall be released, impaired or exchanged
in
whole or in part or otherwise dealt with;
(d) any
Lien
granted to, or in favor of, the Administrative Agent or any Lender or Lenders
as
security for any of the Obligations shall fail to attach or be perfected;
or
(e) any
of
the Obligations shall be determined to be void or voidable (including, without
limitation, for the benefit of any creditor of any Guarantor) or shall be
subordinated to the claims of any Person (including, without limitation, any
creditor of any Guarantor).
With
respect to its obligations hereunder, each Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Administrative Agent or any Lender exhaust any
right, power or remedy or proceed against any Person under any of the Credit
Documents, any Credit Facility Swap Contract or any Treasury Management
Agreement between any Credit Party and any Lender, or any Affiliate of a Lender,
or any other agreement or instrument referred to in the Credit Documents, such
Credit Facility Swap Contracts or such Treasury Management Agreements, or
against any other Person under any other guarantee of, or security for, any
of
the Obligations.
12.3 Reinstatement.
The
obligations of the Guarantors under this Section 12 shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Obligations is rescinded or must be otherwise
restored by any holder of any of the Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and each Guarantor
agrees that it will indemnify the Administrative Agent and each Lender on demand
for all reasonable costs and expenses (including, without limitation,
the
reasonable fees, charges and disbursements of counsel)
incurred by the Administrative Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
12.4 Certain
Additional Waivers.
Each
Guarantor further agrees that such Guarantor shall have no right of recourse
to
security for the Obligations, except through the exercise of rights of
subrogation pursuant to Section 12.2 and through the exercise of rights of
contribution pursuant to Section 12.6.
12.5 Remedies.
The
Guarantors agree that, to the fullest extent permitted by law, as between the
Guarantors, on the one hand, and the Administrative Agent and the Lenders,
on
the other hand, the Obligations may be declared to be forthwith due and payable
as provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said
Section 9.2) for purposes of Section 12.1 notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing
the
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Obligations being
deemed to have become automatically due and payable), the Obligations (whether
or not due and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of Section 12.1.
12.6 Rights
of Contribution.
The
Guarantors agree among themselves that, in connection with payments made
hereunder, each Guarantor shall have contribution rights against the other
Guarantors as permitted under applicable law. Such contribution rights shall
be
subordinate and subject in right of payment to the obligations of such
Guarantors under the Credit Documents and no Guarantor shall exercise such
rights of contribution until all Obligations have been paid in full and the
Commitments have terminated.
12.7 Guarantee
of Payment; Continuing Guarantee.
The
guarantee in this Section 12 is a guaranty of payment and not of
collection, is a continuing guarantee, and shall apply to all Obligations
whenever arising.
| BORROWER: | ||
| DCP MIDSTREAM OPERATING, LP | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇ ▇. ▇▇▇▇ |
||
| Vice President and Chief Financial Officer | ||
| GUARANTORS | ||
| DCP MIDSTREAM PARTNERS, LP | ||
| By: DCP Midstream GP, LP its General Partner | ||
| By: DCP Midstream GP, LLC its General Partner | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇ ▇. ▇▇▇▇ |
||
| Vice President and Chief Financial Officer | ||
| DCP MIDSTREAM OPERATING, LLC | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President and Chief Financial Officer
|
||
| DCP ASSETS HOLDING GP, LLC | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President and Chief Financial Officer
|
||
| DCP ASSETS HOLDING, LP | ||
| By: DCP Assets Holding GP, LLC its General Partner | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President and Chief Financial Officer
|
||
| DCP BLACK LAKE HOLDINGS, LP | ||
| By: DCP Assets Holding GP, LLC its General Partner | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President and Chief Financial Officer
|
||
2
| ASSOCIATED LOUISIANA INTRASTATE PIPE LINE, LLC | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
|
▇▇▇▇▇▇ ▇. ▇▇▇▇ Vice
President and Chief Financial Officer
|
|
| DCP INTRASTATE PIPELINE, LLC | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇ ▇. ▇▇▇▇ Vice
President and Chief Financial Officer
|
||
| ▇▇▇▇▇▇ PIPELINE, LLC | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President and Chief Financial Officer
|
||
| DCP LINDSAY, LLC | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President and Chief Financial Officer
|
||
| GAS SUPPLY RESOURCES LLC | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President and Chief Financial Officer
|
||
| WILBREEZE PIPELINE, LP | ||
| By: DCP Assets Holding GP, LLC its General Partner | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President and Chief Financial Officer
|
||
3
| DCP MIDSTREAM PARTNERS FINANCE CORP. | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President and Chief Financial Officer
|
||
| GSRI TRANSPORTATION LLC | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President and Chief Financial Officer
|
||
4
| LENDERS: | ||
|
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as Agent and as a Lender
|
||
| |
|
|
| By: |
/s/
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title:
Managing Director
|
||
5
|
▇▇▇▇▇▇
Brothers Commercial Bank, as
a
Lender
|
||
| |
|
|
| By: |
/s/
▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇▇▇▇▇
Title:
Chief
Credit Officer
|
||
6