EXECUTION COUNTERPART
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CREDIT AGREEMENT
dated as of
OCTOBER 15, 2002
AMONG
KINDER MORGAN ENERGY PARTNERS, L.P.,
as the Company,
THE LENDERS PARTY HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Administrative Agent,
JPMORGAN CHASE BANK,
as the Syndication Agent,
CITIBANK, N.A.,
as the Documentation Agent
WACHOVIA SECURITIES, INC.
and
J.P. MORGAN SECURITIES LLC,
as Joint Lead Arrangers and Joint Book Managers
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS.......................................................1
SECTION 1.01 Defined Terms..............................................1
SECTION 1.02 Classification of Loans and Borrowings....................20
SECTION 1.03 Accounting Terms; Changes in GAAP.........................20
SECTION 1.04 Interpretation............................................20
ARTICLE II. THE CREDITS.....................................................21
SECTION 2.01 Commitments...............................................21
SECTION 2.02 Loans and Borrowings......................................22
SECTION 2.03 Requests for Committed Borrowings.........................23
SECTION 2.04 Competitive Bid Procedure.................................23
SECTION 2.05 THIS SECTION IS INTENTIONALLY OMITTED.....................26
SECTION 2.06 Telephonic Notices........................................26
SECTION 2.07 Funding of Borrowings.....................................26
SECTION 2.08 Interest Elections........................................27
SECTION 2.09 Termination and Reduction of Commitments..................28
SECTION 2.10 Repayment of Loans; Evidence of Debt......................28
SECTION 2.11 Prepayment of Loans.......................................29
SECTION 2.12 Fees......................................................30
SECTION 2.13 Interest..................................................31
SECTION 2.14 Alternate Rate of Interest................................32
SECTION 2.15 Increased Costs...........................................33
SECTION 2.16 Break Funding Payments....................................33
SECTION 2.17 Taxes.....................................................34
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs................................................35
SECTION 2.19 Mitigation Obligations; Replacement of Lenders............37
SECTION 2.20 Extensions of Termination Date; Removal of Lenders........37
ARTICLE III. CONDITIONS PRECEDENT...........................................39
SECTION 3.01 Conditions Precedent to the Initial Borrowing.............39
SECTION 3.02 Conditions Precedent to All Borrowings....................41
SECTION 3.03 Conditions Precedent to Conversions.......................41
SECTION 3.04 Delivery of Documents.....................................41
ARTICLE IV. REPRESENTATIONS AND WARRANTIES..................................41
SECTION 4.01 Organization and Qualification............................42
SECTION 4.02 Authorization, Validity, Etc..............................42
SECTION 4.03 Governmental Consents, Etc................................42
SECTION 4.04 No Breach or Violation of Agreements or Restrictions, Etc.42
SECTION 4.05 Properties................................................43
SECTION 4.06 Litigation and Environmental Matters......................43
SECTION 4.07 Financial Statements......................................43
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SECTION 4.08 Disclosure................................................44
SECTION 4.09 Investment Company Act....................................44
SECTION 4.10 Public Utility Holding Company Act........................44
SECTION 4.11 ERISA.....................................................44
SECTION 4.12 Tax Returns and Payments..................................44
SECTION 4.13 Compliance with Laws and Agreements.......................45
SECTION 4.14 Purpose of Loans..........................................45
ARTICLE V. AFFIRMATIVE COVENANTS............................................45
SECTION 5.01 Financial Statements and Other Information................45
SECTION 5.02 Existence, Conduct of Business............................48
SECTION 5.03 Payment of Obligations....................................48
SECTION 5.04 Maintenance of Properties; Insurance......................48
SECTION 5.05 Books and Records; Inspection Rights......................49
SECTION 5.06 Compliance with Laws......................................49
SECTION 5.07 Use of Proceeds...........................................49
ARTICLE VI. NEGATIVE COVENANTS..............................................49
SECTION 6.01 Liens.....................................................49
SECTION 6.02 Fundamental Changes.......................................50
SECTION 6.03 Restricted Payments.......................................50
SECTION 6.04 Transactions with Affiliates..............................50
SECTION 6.05 Restrictive Agreements....................................50
SECTION 6.06 Financial Covenants.......................................51
ARTICLE VII. EVENTS OF DEFAULT..............................................51
SECTION 7.01 Events of Default and Remedies............................51
ARTICLE VIII. THE ADMINISTRATIVE AGENT......................................54
SECTION 8.01 Appointment, Powers and Immunities........................54
SECTION 8.02 Reliance by Administrative Agent..........................55
SECTION 8.03 Defaults; Events of Default...............................55
SECTION 8.04 Rights as a Lender........................................55
SECTION 8.05 INDEMNIFICATION...........................................55
SECTION 8.06 Non-Reliance on Agents and other Lenders..................56
SECTION 8.07 Action by Administrative Agent............................57
SECTION 8.08 Resignation or Removal of Administrative Agent............57
SECTION 8.09 Duties of Syndication Agent and Documentation Agent.......57
ARTICLE IX. MISCELLANEOUS...................................................58
SECTION 9.01 Notices, Etc..............................................58
SECTION 9.02 Waivers; Amendments.......................................59
SECTION 9.03 Payment of Expenses, Indemnities, etc.....................59
SECTION 9.04 Successors and Assigns....................................62
SECTION 9.05 Assignments and Participations............................62
SECTION 9.06 Survival; Reinstatement...................................64
SECTION 9.07 Counterparts; Integration; Effectiveness..................65
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SECTION 9.08 Severability..............................................65
SECTION 9.09 Right of Setoff...........................................65
SECTION 9.10 Governing Law; Jurisdiction; Consent to Service of Process65
SECTION 9.11 WAIVER OF JURY TRIAL......................................67
SECTION 9.12 Confidentiality...........................................67
SECTION 9.13 Interest Rate Limitation..................................67
SECTION 9.14 EXCULPATION PROVISIONS....................................68
SCHEDULES:
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Schedule 1.01..... Commitments
Schedule 4.01..... Existing Subsidiaries
Schedule 6.05..... Existing Restrictions
EXHIBITS:
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Exhibit 1.01-A.... Form of Assignment and Acceptance
Exhibit 1.01-B.... Form of Committed Note
Exhibit 1.01-C.... Form of Competitive Note
Exhibit 2.03 ..... Form of Borrowing Request
Exhibit 2.04-A.... Form of Competitive Bid Request
Exhibit 2.04-B.... Form of Notice to Lenders of Competitive Bid Request
Exhibit 2.04-C.... Form of Competitive Bid
Exhibit 2.07 ..... Form of Notice of Account Designation
Exhibit 2.08 ..... Form of Interest Election Request
Exhibit 2.11 ..... Form of Notice of Prepayment
Exhibit 5.01 ..... Form of Compliance Certificate
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October 15, 2002 (this "Agreement")
is among:
(a) Kinder Morgan Energy Partners, L.P., a Delaware limited
partnership (the "Company");
(b) the banks and other financial institutions listed on the signature
pages hereof under the caption "Lenders" (the "Lenders" and together with each
other Person that becomes a Lender pursuant to Section 2.01(b) or Section 9.05,
collectively, the "Lenders");
(c) Wachovia Bank, National Association, a national banking
association, individually as a Lender and as the administrative agent for the
Lenders (in such latter capacity together with any other Person that becomes
Administrative Agent pursuant to Section 8.08, the "Administrative Agent");
(d) JPMorgan Chase Bank, as the Syndication Agent (the "Syndication
Agent"); and
(e) Citibank, N.A., as the Documentation Agent (the "Documentation
Agent".
PRELIMINARY STATEMENTS
The Company has requested that a credit facility be extended to it
pursuant to which the Company may borrow from the Lenders (a) to repay in full
the principal and accrued interest on all loans and other amounts outstanding
under that certain Credit Agreement dated as of October 25, 2000 among the
Company, the lenders party thereto, First Union National Bank (now Wachovia
Bank, National Association), as the administrative agent, Bank of America, N.A.,
as the syndication agent and Bank One, N.A., as the documentation agent (as
amended to date, the "Existing Credit Agreement"), (b) to back commercial paper
issuance, and (c) for working capital and other general partnership purposes.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, bear interest at a rate
determined by reference to the Alternate Base Rate.
"Administrative Agent" has the meaning specified in the introduction to
this Agreement.
"Administrative Questionnaire" means an Administrative Questionnaire in
the form supplied by the Administrative Agent.
"Affiliate" of any Person shall mean (i) any Person directly or indirectly
controlled by, controlling or under common control with such first Person, (ii)
any director or officer of such first Person or of any Person referred to in
clause (i) above and (iii) if any Person in clause (i) above is an individual,
any member of the immediate family (including parents, siblings, spouse and
children) of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any Person who is
controlled by any such member or trust. For purposes of this definition, any
Person that owns directly or indirectly 25% or more of the securities having
ordinary voting power for the election of directors or other governing body of a
corporation or 25% or more of the partnership or other ownership interests of
any other Person (other than as a limited partner of such other Person) will be
deemed to "control" (including, with its correlative meanings, "controlled by"
and "under common control with") such corporation or other Person.
"Agreement" has the meaning specified in the introduction to this
Agreement (subject, however, to Section 1.04(v) hereof).
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1% and (b) the Prime Rate in effect for such day (as the same may be
increased in accordance with Section 2.01(c)). Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective from the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Margin" means at any time and from time to time, a percentage
per annum equal to the applicable percentage set forth below for the
corresponding Performance Level set forth below (as the same may be increased in
accordance with Section 2.01(c)):
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Performance LIBOR Borrowings
Level Margin Percentage
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I .410%
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II .525%
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III .625%
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IV .700%
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V 1.125%
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The Applicable Margin shall be determined by reference to the Performance Level
in effect from time to time, and any change in the Applicable Margin shall be
effective from the effective date of the change in the applicable Performance
Level giving rise thereto.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the Total Commitment represented by such Lender's Commitment. If the Total
Commitment has
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terminated or expired, the Applicable Percentages shall be determined based upon
the Total Commitment most recently in effect, giving effect to any assignments.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.05), and accepted by the Administrative Agent, in the form
of Exhibit 1.01-A or any other form approved by the Administrative Agent.
"Available Cash" means, with respect to any fiscal quarter of the Company
(a "Test Quarter"), an amount equal to the algebraic sum of (a) the aggregate of
all cash distributions actually made to and received by the Company from the
Subsidiaries in respect of their Capital Stock during such fiscal quarter minus
(b) the aggregate amount of all cash disbursements, including disbursements for
operating expenses, payments of principal of and interest on Indebtedness and
taxes (net of amounts received or to be received by the Company from the
Subsidiaries as reimbursement for such amounts), and capital expenditures (net
of any borrowings to fund such capital expenditures permitted pursuant to this
Agreement), actually paid by the Company during such Test Quarter, plus, in the
case of a decrease, or minus, in the case of an increase (c) the amount by
which, as at the end of such Test Quarter, cash reserves necessary in the
reasonable discretion of the Company's management for the proper conduct of the
business of the Company and the Subsidiaries subsequent to such Test Quarter,
decreased or increased from the amount of such reserves as at the end of the
immediately preceding fiscal quarter.
"Availability Period" means the period from the Effective Date to the
Termination Date.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person duly authorized to act on behalf of the Board of Directors of such
Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Administrative Agent.
"Borrowing" means (a) a Committed Borrowing or (b) a Competitive
Borrowing.
"Borrowing Date" means the Business Day upon which any Loan is to be made
available to the Company.
"Borrowing Request" has the meaning specified in Section 2.03.
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"Business Day" means any day that is not a Saturday, Sunday or other day
on which commercial banks in Houston, Texas, New York, New York, or Charlotte,
North Carolina, are authorized or required by law to remain closed; provided
that, when used in connection with a Eurodollar Loan, the term "Business Day"
shall also exclude any day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents (however designated) of such Person's equity, including all common
stock and preferred stock, any limited or general partnership interest and any
limited liability company member interest.
"Change in Control" means either (a) the acquisition through beneficial
ownership or otherwise after the date hereof by any person (as such term is used
in section 13(d) and section 14(d)(2) of the Exchange Act as in effect on the
date hereof) or related persons constituting a group (as such term is used in
Rule 13d-5 under the Exchange Act as in effect on the date hereof) of 30% of the
Voting Stock of the General Partner; or (b) individuals who, at the beginning of
any period of 12 consecutive months, constitute the General Partner's Board of
Directors cease for any reason (other than death or disability) to constitute a
majority of the General Partner's Board of Directors then in office.
"Change in Control Event" means the execution of any definitive agreement
which, when fully performed by the parties thereto, would result in a Change in
Control.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.15(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement. If any Lender (or its applicable
lending office or its holding company, as the case may be) shall be, or shall
determine itself to be, required by any law, rule, regulation, request,
guideline or directive (whether or not having the force of law) relating to
capital requirements adopted after the date of this Agreement or any change in
the interpretation or application of any thereof by any Governmental Authority
after the date of this Agreement (each, a "Capital Requirement") to maintain
(and in either such case such Lender, lending office or holding company, as the
case may be, does in fact maintain) capital against such Lender's unused
Commitment (or any portion thereof), in whole or in part as a result of such
unused Commitment (or portion), either alone or in combination with any proposed
or agreed extension thereof (whether or not such extension shall by its terms at
the time be effective), extending or being deemed to extend for a period of more
than one year from its inception or to have an
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original maturity of more than one year or otherwise to last for a period of
time sufficient to require maintenance of capital against it, a "Change in Law"
shall be deemed to have occurred for purposes of Section 2.15(b) with respect to
such Capital Requirement.
"Charges" has the meaning specified in Section 9.13.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Committed Loans
or Competitive Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Committed Loans hereunder, expressed as an amount representing
the maximum aggregate amount of such Lender's Committed Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.09 and (b) increased pursuant to Section 2.01 or reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.05. The initial amount of each Lender's Commitment is set forth on
Schedule 1.01 hereto, or in the Assignment and Acceptance pursuant to which such
Lender shall have assumed its Commitment, as applicable.
"Committed Borrowing" means a borrowing comprised of Committed Loans of
the same Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"Committed Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender's Committed Loans at
such time.
"Committed Loan" means a Loan made pursuant to Section 2.03.
"Committed Note" means a promissory note of the Company payable to the
order of each Lender, in substantially the form of Exhibit 1.01-B, together with
all modifications, extensions, renewals and rearrangements thereof.
"Communications" has the meaning specified in Section 9.01.
"Company" has the meaning specified in the introduction to this Agreement.
"Company Debt Rating" means, with respect to the Company as of any date of
determination, the rating that has been most recently announced by either S&P or
Moody's, as the case may be, for any non-credit enhanced, unsecured long-term
senior debt issued or to be issued by the Company. For purposes of the
foregoing:
(a) if only one of S&P and Moody's shall have in effect a Company Debt
Rating, the Applicable Margin or the Facility Fee Rate, as the case may be,
shall be determined by reference to the available rating;
(b) if, at any time, neither S&P nor Moody's shall have in effect a
Company Debt Rating, the Applicable Margin or the Facility Fee Rate, as the case
may be, shall be set in
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accordance with Performance Level V under the definition of "Applicable Margin"
or "Facility Fee Rate", as the case may be;
(c) if the ratings established by S&P and Moody's shall fall within
different Performance Levels, the Applicable Margin or the Facility Fee Rate, as
the case may be, shall be based upon the higher rating; provided, however, that,
if the lower of such ratings is two or more Performance Levels below the higher
of such ratings, the Applicable Margin or the Facility Fee Rate, as the case may
be, shall be based upon the rating that is one Performance Level above the lower
rating;
(d) if any rating established by S&P or Moody's shall be changed, such
change shall be effective as of the date on which such change is announced
publicly by the rating agency making such change; and
(e) if S&P or Moody's shall change the basis on which ratings are
established by it, each reference to the Company Debt Rating announced by S&P or
Moody's shall refer to the then equivalent rating by S&P or Moody's, as the case
may be.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan
substantially in the form of Exhibit 2.04-C.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Company for Competitive
Bids in accordance with Section 2.04 substantially in the form of Exhibit
2.04-A.
"Competitive Borrowing" means a borrowing consisting of a Competitive Loan
or concurrent Competitive Loans of the same Type, as to which a single Interest
Period is in effect and made on the same date by the Lender or Lenders whose
Competitive Bid(s) as all or as a part of such borrowing, as the case may be,
has (or have) been accepted by the Company under the bidding procedure described
in Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Competitive Note" means a promissory note of the Company payable to the
order of a Lender, in substantially the form of Exhibit 1.01-C, together with
all modifications, extensions, renewals and rearrangements thereof.
"Consenting Lenders" has the meaning specified in Section 2.20.
"Consolidated EBITDA" means, for any period, the EBITDA of the Company and
the Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP.
"Consolidated Indebtedness" means, at the date of any determination
thereof, Indebtedness of the Company and the Subsidiaries determined on a
consolidated basis in accordance with GAAP; excluding, however, Guarantees by
the Company of Indebtedness of
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employees of the Company and the Subsidiaries in an aggregate amount at any time
outstanding for all such Indebtedness not exceeding $7,500,000.
"Consolidated Interest Expense" means, for any period, the Interest
Expense of the Company and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Default" means any event or condition which upon notice, lapse of time or
both would, unless cured or waived, become an Event of Default.
"Delegate" means Kinder Morgan Management, LLC, a Delaware limited
liability company.
"Documentation Agent" has the meaning specified in the introduction to
this Agreement.
"dollars" or "$" refers to lawful money of the United States of America.
"EBITDA" means (without duplication), with respect to any period for any
Person, the Net Income of such Person, increased (to the extent deducted in
determining Net Income for such period) by the sum of (a) all income taxes
(including state franchise taxes based upon income) of such Person paid or
accrued according to GAAP for such period; (b) Consolidated Interest Expense of
such Person for such period; and (c) depreciation and amortization of such
Person for such period determined in accordance with GAAP.
"Effective Date" means the date occurring on or before October 31, 2002 on
which the conditions specified in Section 3.01 are satisfied (or waived in
accordance with Section 9.02).
"Eligible Assignee" means (a) any Lender; (b) any Affiliate of any Lender;
(c) a commercial bank organized or licensed under the laws of the United States,
or a state thereof, and having total assets in excess of $1,000,000,000; (d) a
commercial bank organized under the laws of any other country which is a member
of the OECD, or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; and (e) a finance company, insurance
company or other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and having a combined capital and surplus or total assets of at least
$100,000,000.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
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disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release of any Hazardous Materials into the environment, or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Group" means the Company, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bear interest at a
rate determined by reference to the LIBOR Rate.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender or any other recipient of any payment to be made by or on account of any
Obligation, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which the Company is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Company under Section 2.19(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement or is attributable to such Foreign
Lender's failure or inability to comply with Section 2.17(e), except to the
extent that such Foreign Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Company with respect to such
withholding tax pursuant to Section 2.17(a).
"Execution Date" means the earliest date upon which all of the following
shall have occurred: counterparts of this Agreement shall have been executed by
the Company and each Lender listed on the signature pages hereof and the
Administrative Agent shall have received counterparts hereof which taken
together, bear the signatures of the Company and each Lender and the
Administrative Agent.
"Existing Credit Agreement" has the meaning specified in the Preliminary
Statements.
"Existing Termination Date" has the meaning specified in Section 2.20.
"Extended Maturity Date" has the meaning specified in Section 2.01(c).
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"Extended Termination Date" means, as at any date, the date to which the
Termination Date has then most recently been extended pursuant to Section 2.20.
"Facility Fee Rate" means at any time and from time to time, a percentage
per annum equal to the applicable percentage set forth below for the
corresponding Performance Level set forth below:
---------------------------------------
Performance Level Facility Fee Rate
---------------------------------------
I .090%
---------------------------------------
II .100%
---------------------------------------
III .125%
---------------------------------------
IV .175%
---------------------------------------
V .250%
---------------------------------------
The Facility Fee Rate shall be determined by reference to the Performance Level
in effect from time to time, and any change in the Facility Fee Rate shall be
effective from the effective date of the change in the applicable Performance
Level giving rise thereto.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letter" has the meaning specified in Section 2.12.
"Fixed Rate" means, with respect to any Competitive Loan (or Competitive
Borrowing) (other than a Eurodollar Competitive Loan or Competitive Borrowing),
the fixed rate of interest per annum specified by the Lender(s) making such
Competitive Loan (or the Competitive Loans comprising such Competitive
Borrowing) in its (or their) related Competitive Bid(s).
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
Rate.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Company is located. For purposes of
this definition, the United States of America, each state thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United States
of America from time to time, including as set forth in the opinions, statements
and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and the Financing Accounting Standards Board.
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"General Partner" means Kinder Morgan G.P., Inc., a Delaware corporation.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services or any other similar obligation
upon which interest charges are customarily paid (excluding trade accounts
payable incurred in the ordinary course of business), (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (f) all Guarantees by such Person of Indebtedness of others
(provided that in the event that any Indebtedness of the Company or any
Subsidiary shall be the subject of a Guarantee by one or more Subsidiaries or by
the Company, as the case may be, the aggregate amount of the outstanding
Indebtedness of the Company and the Subsidiaries in respect thereof shall be
determined by reference to the primary Indebtedness so guaranteed, and without
duplication by
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reason of the existence of any such Guarantee), (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty and (i) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other Person (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity Matters" means, with respect to any Indemnified Party, all
losses, liabilities, claims and damages (including reasonable legal fees and
expenses).
"Information Memorandum" means the Confidential Information Memorandum
dated September, 2002 (Kinder Morgan Energy Partners, L.P.).
"Interest Election Request" has the meaning specified in Section 2.08.
"Interest Expense" means (without duplication), with respect to any period
for any Person (a) the aggregate amount of interest, whether expensed or
capitalized, paid, accrued or scheduled to be paid during such period in respect
of the Indebtedness of such Person including (i) the interest portion of any
deferred payment obligation; (ii) the portion of any rental obligation in
respect of Capital Lease Obligations allocable to interest expenses; and (iii)
any non-cash interest payments or accruals, all determined in accordance with
GAAP, less (b) Interest Income of such Person for such period.
"Interest Income" means, with respect to any period for any Person,
interest actually received by such Person during such period.
"Interest Payment Date" means (a) with respect to any ABR Loan, the last
Business Day of each March, June, September and December, (b) with respect to
any Eurodollar Loan, the last Business Day of the Interest Period applicable to
the Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period and (c) with
respect to any Fixed Rate Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Company may elect and (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than 7 days or more than 180
days) commencing on the date of such Borrowing and ending on the date
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specified in the applicable Competitive Bid Request; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of any Eurodollar Borrowing, such next succeeding Business Day would fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (ii) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period and
(iii) no Interest Period for any Competitive Borrowing shall end after the
Termination Date and no Interest Period for any Committed Borrowing shall end
after the Maturity Date. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and, in the case of a
Committed Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Lender" has the meaning specified in the introduction to this Agreement.
"Lenders" has the meaning specified in the introduction to this Agreement.
"LIBOR" shall mean the rate of interest determined on the basis of the
rate for deposits in dollars in an amount substantially equal to the amount of
the applicable Loan for a period equal to the applicable Interest Period
commencing on the first day of such Interest Period appearing on Telerate Page
3750 as of 11:00 a.m. (London time) two Business Days prior to the first day of
the applicable Interest Period. In the event that such rate does not appear on
Telerate Page 3750, "LIBOR" shall be determined by the Administrative Agent to
be the rate per annum at which deposits in dollars are offered by leading
reference banks in the London interbank market to Wachovia at approximately
11:00 a.m. (London time) two Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period and in an
amount substantially equal to the amount of the applicable Loan.
"LIBOR Rate" shall mean, with respect to any LIBOR Loan for any Interest
Period for such Loan, a rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) determined by the Administrative Agent to be equal to the
quotient of (i) LIBOR for such Loan for such Interest Period divided by (ii) 1
minus the Reserve Requirement for such Loan for such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset and (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset.
"Loan Documents" mean, collectively, this Agreement, the Notes, if any,
the Fee Letter and all other instruments and documents from time to time
executed and delivered by the Company in connection herewith and therewith.
"Loans" means advances made by the Lenders to the Company pursuant to this
Agreement.
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"Margin" means, with respect to any Competitive Loan bearing interest at a
rate based on the LIBOR Rate, the marginal rate of interest, if any, to be added
to or subtracted from the LIBOR Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Material Adverse Effect" means, relative to any occurrence of whatever
nature, a material adverse effect on (a) the business, assets, liabilities or
financial condition of the Company and the Subsidiaries taken as a whole, (b)
the ability of the Company to perform the Obligations, or (c) the rights of the
Administrative Agent and the Lenders against the Company under any material
provision of this Agreement or any other Loan Document.
"Material Subsidiary" means any Subsidiary the value of the assets of
which exceeds $75,000,000.
"Maturity Date" means the earlier of (a) (i) the Termination Date or, if
the Company has exercised its option pursuant to Section 2.01(c) to extend the
maturity of the Committed Loans, (ii) the Extended Maturity Date and (b) the
date on which the Obligations are accelerated pursuant to Section 7.01.
"Maximum Rate" has the meaning specified in Section 9.13.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Income" means with respect to any Person for any period that net
income of such Person for such period determinant in accordance with GAAP;
provided that there shall be excluded, without duplication, from such net income
(to the extent otherwise included therein):
(a) net extraordinary gains and losses (other than, in the case of
losses, losses resulting from charges against net income to establish or
increase reserves for potential environmental liabilities and reserves for
exposure of such Person under rate cases);
(b) net gains or losses in respect of dispositions of assets other
than in the ordinary course of business;
(c) any gains or losses attributable to write-ups or write-downs of
assets; and
(d) proceeds of any key man insurance, or any insurance on property,
plant or equipment.
"Net Worth" means, as to the Company at any date, the amount of partners'
capital of the Company determined as of such date in accordance with GAAP.
"Nominee" has the meaning specified in Section 2.20.
"Non-Consenting Lenders" has the meaning specified in Section 2.20.
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"Note" means a Committed Note or a Competitive Note.
"Notice of Account Designation" has the meaning specified in Section 2.07.
"Notice of Default" has the meaning specified in Section 7.01.
"Notice of Extension" has the meaning specified in Section 2.20.
"Notice of Extension of Maturity Date" has the meaning specified in
Section 2.01(c).
"Notice of Prepayment" has the meaning specified in Section 2.11.
"Obligations" means collectively:
(a) the payment of all indebtedness and liabilities by, and
performance of all other obligations of, the Company in respect of the Loans;
(b) the payment of all other indebtedness and liabilities by and
performance of all other obligations of, the Company to the Administrative Agent
and the Lenders under, with respect to, and arising in connection with, the Loan
Documents, and the payment of all indebtedness and liabilities of the Company to
the Administrative Agent and the Lenders for fees, costs, indemnification and
expenses (including reasonable attorneys' fees and expenses) under the Loan
Documents;
(c) the reimbursement of all sums advanced and costs and expenses
incurred by the Administrative Agent under any Loan Document (whether directly
or indirectly) in connection with the Obligations or any part thereof or any
renewal, extension or change of or substitution for the Obligations or, any part
thereof, whether such advances, costs and expenses were made or incurred at the
request of the Company or the Administrative Agent; and
(d) all renewals, extensions, amendments and changes of, or
substitutions or replacements for, all or any part of the items described under
clauses (a) through (c) above.
"OECD" means the Organization for Economic Cooperation and Development (or
any successor).
"Original Termination Date" means October 14, 2003.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participant" has the meaning specified in Section 9.05(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
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"Performance Level" means a reference to one of Performance Level I,
Performance Level II, Performance Level III, Performance Level IV or Performance
Level V.
"Performance Level I" means, at any date of determination, that the
Company shall have a Company Debt Rating in effect on such date of at least A-
by S&P or at least A3 by Moody's.
"Performance Level II" means, at any date of determination, (a) that the
Performance Level does not meet the requirements of Performance Level I and (b)
that the Company shall have a Company Debt Rating in effect on such date of at
least BBB+ by S&P or at least Baa1 by Moody's.
"Performance Level III" means, at any date of determination, (a) that the
Performance Level does not meet the requirements of Performance Level I or
Performance Level II and (b) that the Company shall have a Company Debt Rating
in effect on such date of at least BBB by S&P or at least Baa2 by Moody's.
"Performance Level IV" means, at any date of determination, (a) that the
Performance Level does not meet the requirements of Performance Level I,
Performance Level II or Performance Level III and (b) that the Company shall
have a Company Debt Rating in effect on such date of at least BBB- by S&P or at
least Baa3 by Moody's.
"Performance Level V" means, at any date of determination, that the
Performance Level does not meet the requirements of Performance Level I,
Performance Level II, Performance Level III or Performance Level IV.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.03;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 5.03;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Company or any Subsidiary;
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(f) judgment and attachment Liens not giving rise to an Event of
Default or Liens created by or existing from any litigation or legal proceeding
that are being contested in compliance with Section 5.03;
(g) any interest or title of a lessor in property subject to any
Capital Lease Obligation or operating lease which, in each case, is permitted
under this Agreement; and
(h) Liens in favor of collecting or payor banks having a right of
setoff, revocation, refund or chargeback with respect to money or instruments of
the Company or any Subsidiary on deposit with or in possession of such bank;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness, except as provided in clause (g) above.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Company or any member of
the ERISA Group is (or, if such plan were terminated, would under Section 4069
of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Plantation Pipe Line" means Plantation Pipe Line Company, a
Delaware and Virginia corporation.
"Prime Rate" shall mean the rate of interest from time to time announced
publicly by the Administrative Agent at the Principal Office as its prime
commercial lending rate. Such rate is set by the Administrative Agent as a
general reference rate of interest, taking into account such factors as the
Administrative Agent may deem appropriate, it being understood that many of the
Administrative Agent's commercial or other loans are priced in relation to such
rate, that it is not necessarily the lowest or best rate actually charged to any
customer and that the Administrative Agent may make various commercial or other
loans at rates of interest having no relationship to such rate.
"Principal Office" shall mean the principal office of the Administrative
Agent, presently located at 301 South College Street, TW-10, Charlotte, North
Carolina 28288-0608 or such other location as designated by the Administrative
Agent from time to time.
"Register" has the meaning specified in Section 9.05.
"Regulation A" means Regulation A of the Board, as the same is from time
to time in effect, and all official rulings and interpretations thereunder or
thereof.
"Regulation D" means Regulation D of the Board, as the same is from time
to time in effect, and all official rulings and interpretations thereunder or
thereof.
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"Regulation T" means Regulation T of the Board, as the same is from time
to time in effect, and all official rulings and interpretations thereunder or
thereof.
"Regulation U" means Regulation U of the Board, as the same is from time
to time in effect, and all official rulings and interpretations thereunder or
thereof.
"Regulation X" means Regulation X of the Board, as the same is from time
to time in effect, and all official rulings and interpretations thereunder or
thereof.
"Related Credit Agreement" means the Credit Agreement dated as of October
15, 2002 among the Company, OLP "B", the lenders party thereto, Wachovia Bank,
National Association, as Administrative Agent, JPMorgan Chase Bank, as
Syndication Agent and Citibank, N.A., as Documentation Agent.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Committed Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Committed Credit Exposures and unused Commitments at such time.
"Requirement of Law" shall mean any law, statute, code, ordinance, order,
determination, rule, regulation, judgment, decree, injunction, franchise,
permit, certificate, license, authorization or other directive or requirement
(whether or not having the force of law), including Environmental Laws, energy
regulations and occupational, safety and health standards or controls, of any
Governmental Authority.
"Reserve Requirement" means, for any day as applied to a Eurodollar Loan,
the aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including basic,
supplemental, marginal and emergency reserves under any regulations of the Board
or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D) maintained by a
member bank of the Federal Reserve System. Eurodollar Loans shall be deemed to
constitute Eurocurrency Liabilities and to be subject to such reserve
requirements without benefit of or credit for proration, exceptions or offsets
which may be available from time to time to any Lender under Regulation D.
"Responsible Officer", as used with respect to the Company, means the
Chairman, Vice Chairman, President, any Vice President, Chief Executive Officer,
Chief Financial Officer, Controller or Treasurer of the Delegate.
"Restricted Payment" means any distribution (whether in cash, securities
or other property) with respect to any partnership interest in the Company, or
any payment (whether in cash, securities or other property), including any
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such partnership interest or any option or
other right to acquire any such partnership interest; provided, however, that
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(a) distributions with respect to the partnership interests in the Company that
do not exceed, with respect to any fiscal quarter of the Company, the amount of
Available Cash for such quarter shall not constitute Restricted Payments so long
as both before and after the making of such distribution, no Event of Default or
Default shall have occurred and be continuing, (b) any partnership interest
split, partnership interest reverse split, dividend of Company partnership
interests or similar transaction will not constitute a Restricted Payment, (c)
the application by the Company after the date of this Agreement to the purchase,
redemption, retirement, cancellation or termination of partnership interests in
the Company of an aggregate amount not greater than the excess of (i)
$100,000,000.00, over (ii) the aggregate amount of all amounts applied to such
purchases, redemptions, retirements, cancellations or terminations during the
period beginning one day after the Effective Date and extending through and
including the date of this Agreement shall not constitute Restricted Payments,
and (d) acquisitions by officers, directors and employees of the Company of
partnership interests in the Company through cashless exercise of options
pursuant to the Company's Common Unit Option Plan, shall not constitute
Restricted Payments.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc.
"SEC" means the Securities and Exchange Commission or any Governmental
Authority succeeding to its function.
"SFPP First Mortgage Notes" means those certain First Mortgage Notes
issued by SFPP, L.P. (under its prior name Southern Pacific Pipe Lines
Partnership, L.P.), pursuant to a Note Agreement dated December 8, 1988 between
SFPP and the purchasers named therein, which on the Execution Date are
outstanding in the aggregate principal amount of $79,557,000.
"Subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent. Unless the context otherwise
clearly requires, references in this Agreement to a "Subsidiary" or the
"Subsidiaries" refer to a Subsidiary or the Subsidiaries of the Company.
Notwithstanding the foregoing, Plantation Pipe Line shall not be a Subsidiary of
the Company until such time as its assets and liabilities, profit or loss and
cash flow are required under GAAP to be consolidated with those of the Company.
"Syndication Agent" has the meaning specified in the introduction to this
Agreement.
"Tangible Net Worth" means, as to the Company at any date, Net Worth less
the net book value on such date of all assets (after deducting any reserves
applicable thereto) which would be treated as intangible under GAAP, including
goodwill, trademarks, trade names, service marks,
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brand names, copyrights, patents and unamortized debt discount and expense,
organizational expenses and the excess of the equity in any Subsidiary over the
cost of the investment in such Subsidiary.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan Phase" means the period beginning on the Termination Date and
ending on the Extended Maturity Date (or, if the maturity of the Loan has been
accelerated to an earlier date, ending on such earlier date).
"Termination Date" means, at any time, the Original Termination Date or an
Extended Termination Date, as the case may be or, in either case, the earlier
date of termination in whole of the Total Commitment pursuant to Section 2.09 or
Section 7.01.
"Total Capitalization" means, as to the Company at any date, the sum of
Consolidated Indebtedness (determined at such date) and the Net Worth
(determined as at the end of the most recent fiscal quarter of the Company for
which financial statements pursuant to Section 5.01(a) or Section 5.01(b), as
applicable, have been delivered).
"Total Commitment" means the sum of the Commitments of the Lenders.
"Transactions" means the execution, delivery and performance by the
Company of this Agreement and the other Loan Documents, the borrowing of Loans
and the use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the LIBOR Rate or the Alternate Base Rate.
"United States" and "U.S." each means United States of America.
"Utilization Fee" has the meaning specified in Section 2.12.
"Voting Stock" means, with respect to any Person, securities of any class
or classes of Capital Stock in such Person entitling holders thereof (whether at
all times or only so long as no senior class of stock has voting power by reason
of any contingency) to vote in the election of members of the Board of Directors
or other governing body of such Person or its managing member or its general
partner (or its managing general partner if there is more than one general
partner).
"Wachovia" means Wachovia Bank, National Association, in its individual
capacity.
"Wholly-owned Subsidiary" means a Subsidiary of which all issued and
outstanding Capital Stock (excluding (a) in the case of a corporation,
directors' qualifying shares, (b) in the case of a limited partnership, a 2%
general partner interest and (c) in the case of a limited liability company, a
2% managing member interest) is directly or indirectly owned by the Company.
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"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02 Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Committed Loan" or a "Competitive Loan") or by Type (e.g., a "Eurodollar Loan")
or by Class and Type (e.g., a "Eurodollar Committed Loan" or a "Fixed Rate
Loan"). Borrowings also may be classified and referred to by Class (e.g., a
"Committed Borrowing" or a "Competitive Borrowing") or by Type (e.g., a
"Eurodollar Borrowing" or a "Fixed Rate Borrowing") or by Class and Type (e.g.,
a "Eurodollar Committed Borrowing" or a "Fixed Rate Competitive Borrowing").
SECTION 1.03 Accounting Terms; Changes in GAAP. All accounting and
financial terms used herein and not otherwise defined herein and the compliance
with each covenant contained herein which relates to financial matters shall be
determined in accordance with GAAP applied by the Company on a consistent basis,
except to the extent that a deviation therefrom is expressly stated. Should
there be a change in GAAP from that in effect on the Execution Date, such that
any of the defined terms set forth in Section 1.01 and/or compliance with the
covenants set forth in Article VI would then be calculated in a different manner
or with different components or any of such covenants and/or defined terms used
therein would no longer constitute meaningful criteria for evaluating the
matters addressed thereby prior to such change in GAAP (a) the Company and the
Required Lenders agree, within the 60-day period following any such change, to
negotiate in good faith and enter into an amendment to this Agreement in order
to modify the defined terms set forth in Section 1.01 or the covenants set forth
in Article VI, or both, in such respects as shall reasonably be deemed necessary
by the Required Lenders that the criteria for evaluating the matters addressed
by such covenants are substantially the same criteria as were effective prior to
any such change in GAAP, and (b) the Company shall be deemed to be in compliance
with such covenants during the 60-day period following any such change, or until
the earlier date of execution of such amendment, if and to the extent that the
Company would have been in compliance therewith under GAAP as in effect
immediately prior to such change.
SECTION 1.04 Interpretation. In this Agreement, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any gender includes each other gender;
(iii) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision;
(iv) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity
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or individually; provided that nothing in this clause (iv) is intended to
authorize any assignment not otherwise permitted by this Agreement;
(v) except as expressly provided to the contrary herein, reference to
any agreement, document or instrument (including this Agreement) means such
agreement, document or instrument as amended, supplemented or modified, or
extended, renewed, refunded, substituted or replaced, and in effect from
time to time in accordance with the terms thereof and, if applicable, the
terms hereof, and reference to any Note or other note or Indebtedness or
other indebtedness includes any note or indebtedness issued pursuant hereto
in extension or renewal or refunding thereof or in substitution or
replacement therefor;
(vi) unless the context indicates otherwise, reference to any Article,
Section, Schedule or Exhibit means such Article or Section hereof or such
Schedule or Exhibit hereto;
(vii) the word "including" (and with correlative meaning "include")
means including, without limiting the generality of any description
preceding such term;
(viii) with respect to the determination of any period of time, except
as expressly provided to the contrary, the word "from" means "from and
including" and the word "to" means "to but excluding";
(ix) reference to any law, rule or regulation means such as amended,
modified, codified or reenacted, in whole or in part, and in effect from
time to time; and
(x) the words "asset" and "property" shall be construed to have the
same meaning and effect and refer to any and all tangible and intangible
assets and properties.
ARTICLE II.
THE CREDITS
SECTION 2.01 Commitments. (a) Subject to the terms and conditions
set forth herein, each Lender agrees to make Committed Loans to the Company from
time to time during the Availability Period in an aggregate principal amount
that will not result in (i) such Lender's Committed Credit Exposure exceeding
such Lender's Commitment or (ii) the sum of the total Committed Credit
Exposures, plus the aggregate principal amount of outstanding Competitive Loans,
exceeding the Total Commitment. In furtherance of the foregoing, the aggregate
amount of the Total Commitment shall be deemed used from time to time to the
extent of the aggregate amount of the Competitive Loans then outstanding, and
such deemed use of the Total Commitment shall be applied to the Lenders ratably
according to their respective Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Company may borrow,
prepay and reborrow Committed Loans.
(b) The Company shall have the right, without the consent of the
Lenders but with the prior approval of the Administrative Agent, not to be
unreasonably withheld, to cause from time to time an increase in the total
Commitments of the Lenders by adding to this
-21-
Agreement one or more additional Lenders or by allowing one or more Lenders to
increase their respective Commitments; provided however (i) no Default or Event
of Default shall have occurred hereunder which is continuing, (ii) no such
increase shall cause (A) the aggregate Commitments hereunder to exceed
$600,000,000, or (B) the sum of the aggregate Commitments hereunder plus the
aggregate commitments under the Related Credit Agreement to exceed
$1,100,000,000, and (iii) no Lender's Commitment shall be increased without such
Lender's consent.
(c) All Committed Loans which are outstanding on the Termination Date
are due and payable, together with accrued interest thereon, on the Termination
Date unless Company exercises its option to convert such Loans to term loans and
extend the maturity date of such Loans to the date which is the first
anniversary of the Termination Date (the "Extended Maturity Date"). In the event
Company elects to exercise its option to extend the maturity date of the
Committed Loans, Company shall, by written notice received by Administrative
Agent (a "Notice of Extension of Maturity Date") not less than 20 nor more than
60 days prior to the Termination Date, advise the Banks that it shall exercise
its option to extend the maturity date of the Committed Loans. The
Administrative Agent will promptly, and in any event within five Business Days
of the receipt of such Notice of Extension of Maturity Date, notify the Lenders
of the contents of such notice. Such Notice of Extension of Maturity Date shall
constitute a representation by Company that (A) no Event of Default has occurred
and is continuing and (B) the representations and warranties contained in
Article IV are correct on and as of the date of such Notice of Extension of
Maturity Date, as though made on and as of such date (unless any representation
and warranty expressly relates to an earlier date). In the event the Company
elects to extend the maturity of the Committed Loans, the Alternate Base Rate
and Applicable Margin (as the case may be) applicable to the Committed Loans
during the Term Loan Phase shall be increased by .25% per annum.
SECTION 2.02 Loans and Borrowings. (a) Each Committed Loan shall
be made as part of a Borrowing consisting of Committed Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments and
Competitive Bids of the Lenders are several and no Lender shall be responsible
for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14 (i) each Committed Borrowing (including
Committed Loans continued and converted during the Term Loan Phase) shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Company may request
in accordance herewith, and (ii) each Competitive Borrowing shall be comprised
entirely of Eurodollar Loans or Fixed Rate Loans as the Company may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Company to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Committed Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $3,000,000. At the time that
each ABR Committed Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple
-22-
of $1,000,000 and not less than $1,000,000; provided that an ABR Committed
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Total Commitment. Each Competitive Bid Request shall be in an
aggregate amount that is an integral multiple of $1,000,000 and not less than
$25,000,000. Borrowings of more than one Type and Class may be outstanding at
the same time; provided that there shall not at any time be more than a total of
six Eurodollar Committed Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Company
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03 Requests for Committed Borrowings. To request a
Committed Borrowing, the Company shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
10:00 a.m., Charlotte, North Carolina, time, three Business Days before the date
of the proposed Borrowing and (b) in the case of an ABR Borrowing, not later
than 10:00 a.m., Charlotte, North Carolina, time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form of Exhibit 2.03 (a "Borrowing Request")
and signed by the Company. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Company's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.07.
If no election as to the Type of Committed Borrowing is specified, then the
requested Committed Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Committed Borrowing, then
the Company shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section 2.03, the Administrative Agent shall advise each Lender of the
details thereof and of the amount of such Lender's Loan to be made as part of
the requested Borrowing.
SECTION 2.04 Competitive Bid Procedure. (a) Subject to the terms
and conditions set forth herein, from time to time during the Availability
Period the Company may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Committed Credit Exposures
-23-
plus the aggregate principal amount of outstanding Competitive Loans, at any
time shall not exceed the Total Commitment. To request Competitive Bids, the
Company shall notify the Administrative Agent of such request by telephone, in
the case of a Eurodollar Borrowing, not later than 10:00 a.m., Charlotte, North
Carolina, time, four Business Days before the date of the proposed Borrowing
and, in the case of a Fixed Rate Borrowing, not later than 10:00 a.m.,
Charlotte, North Carolina, time, one Business Day before the date of the
proposed Borrowing; provided that the Company may submit up to (but not more
than) three Competitive Bid Requests on the same day, but a Competitive Bid
Request shall not be made on any of the five Business Days next succeeding the
date of any previous Competitive Bid Request, unless any and all such previous
Competitive Bid Requests shall have been withdrawn or all Competitive Bids
received in response thereto rejected. Each such telephonic Competitive Bid
Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request signed by the Company.
Each such telephonic and written Competitive Bid Request shall specify the
following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Company's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.07.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy (in substantially the form set forth in Exhibit 2.04-B),
inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one or
more Competitive Bids to the Company in response to a Competitive Bid Request.
Each Competitive Bid by a Lender must be substantially the form of Exhibit
2.04-C and must be received by the Administrative Agent by telecopy, in the case
of a Eurodollar Competitive Borrowing, not later than 10:00 a.m., Charlotte,
North Carolina, time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., Charlotte, North Carolina, time, on the proposed date of such
Competitive Borrowing. Competitive Bids that do not conform substantially to the
form of Exhibit 2.04-C may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the applicable Lender as promptly as
practicable. Each Competitive Bid shall specify (i) the principal amount (which
shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested by the Company) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage
-24-
rate per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof
(which shall conform to that specified in the Company's related Competitive Bid
Request).
(c) The Administrative Agent shall promptly notify the Company by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Company may
accept or reject any Competitive Bid in whole or (to the extent herein below
provided) in part. The Company shall notify the Administrative Agent by
telephone, confirmed by telecopy in a form approved by the Administrative Agent,
whether and to what extent it has decided to accept or reject each Competitive
Bid, in the case of a Eurodollar Competitive Borrowing, not later than 11:30
a.m., Charlotte, North Carolina, time, three Business Days before the date of
the proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing,
not later than 11:30 a.m., Charlotte, North Carolina, time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of the Company to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Company shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Company rejects a Competitive Bid made at a lower Competitive
Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the
Company shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, the Company may accept Competitive
Bids at the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Company. A notice given by the Company pursuant to this Section 2.04(d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
by telecopy whether or not its Competitive Bid has been accepted (and, if so,
the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
After completing the notifications referred to in the immediately preceding
sentence, the Administrative Agent shall notify each Lender of the aggregate
principal amount of all Competitive Bids accepted.
(f) Upon determination by the Administrative Agent of the LIBOR Rate
applicable to any Eurodollar Competitive Loan to be made by any Lender pursuant
to a Competitive Bid that has been accepted by a Company pursuant to Section
2.04(d), the
-25-
Administrative Agent shall notify such Lender of (i) the applicable LIBOR Rate
and (ii) the sum of the applicable LIBOR Rate plus the Margin bid by such
Lender.
(g) If the Administrative Agent or any of its Affiliates shall at any
time have a Commitment hereunder and shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such Competitive Bid directly to the
Company at least one quarter of an hour earlier than the time by which the other
Lenders are required to submit their Competitive Bids to the Administrative
Agent pursuant to paragraph (b) of this Section.
SECTION 2.05 THIS SECTION IS INTENTIONALLY OMITTED.
SECTION 2.06 Telephonic Notices. Without in any way limiting the
obligation of the Company to confirm in writing any telephonic notice it is
entitled to give under this Agreement or any other Loan Document, the
Administrative Agent may act without liability upon the basis of a telephonic
notice believed in good faith by the Administrative Agent to be from the Company
prior to receipt of written confirmation. In each such case, the Company hereby
waives the right to dispute the Administrative Agent's record of the terms of
such telephonic notice.
SECTION 2.07 Funding of Borrowings. (a) Each Lender shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 2:00 p.m., Charlotte, North Carolina,
time, to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders. Not later than 2:00 p.m. (Charlotte,
North Carolina, time) on the proposed Borrowing Date, each Lender will make
available to the Administrative Agent, for the account of the Company, at the
office of the Administrative Agent in funds immediately available to the
Administrative Agent, such Lender's Loans to be made on such Borrowing Date. The
Company hereby irrevocably authorizes the Administrative Agent to disburse the
proceeds of each Borrowing requested pursuant to this Section 2.07 in
immediately available funds by crediting or wiring such proceeds to the deposit
account of the Company identified in the most recent Notice of Account
Designation substantially in the form of Exhibit 2.07 hereto (a "Notice of
Account Designation") delivered by the Company to the Administrative Agent or
otherwise agreed upon by the Company and the Administrative Agent from time to
time.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing (or prior to 12:00 noon,
Charlotte, North Carolina, time, on such date in the case of an ABR Borrowing)
that such Lender will not make available to the Administrative Agent such
Lender's share of such Borrowing, the Administrative Agent may assume that such
Lender has made such share available on such date in accordance with Section
2.07(a) and may, in reliance upon such assumption, make available to the Company
a corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender and the Company severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from the date such amount is made available to the Company
to the date of payment to the Administrative Agent, at (i) in the case of such
Lender, the Federal Funds Effective Rate or (ii) in the case of the Company, the
interest rate applicable to
-26-
ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.08 Interest Elections. (a) Subject to Section 2.14, each
Committed Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Committed Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, including throughout the Term Loan Phase, if applicable, and subject
to Section 2.14, the Company may elect to convert such Borrowing to a different
Type or to continue such Borrowing and, in the case of a Eurodollar Committed
Borrowing, may elect Interest Periods therefor, all as provided in this Section
2.08. The Company may elect different options with respect to different portions
of the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
This Section 2.08 shall not apply to Competitive Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section 2.08, the Company
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Company
were requesting a Committed Borrowing of the Type resulting from such election
to be made on the effective date of such election (disregarding for this
purpose, during the Term Loan Phase, the fact that no such Borrowing Request was
then authorized by Section 2.03). Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in
the form of Exhibit 2.08 (an "Interest Election Request").
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Company shall be deemed to have
selected an Interest Period of one month's duration.
-27-
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Company fails to deliver a timely Interest Election Request
with respect to a Eurodollar Committed Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
and so long as an Event of Default is continuing (i) no outstanding Committed
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Committed Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.09 Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Termination Date,
and amounts repaid thereafter may not be reborrowed.
(b) The Company may at any time terminate, or from time to time
reduce, the Total Commitment, in whole or in part; provided that (i) each
partial reduction of the Total Commitment shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Company shall not terminate or reduce the Commitments if, after giving effect to
any concurrent prepayment of the Loans in accordance with Section 2.11, the sum
of the total Committed Credit Exposures, plus the aggregate principal amount of
outstanding Competitive Loans, would exceed the Total Commitment.
(c) The Company shall notify the Administrative Agent of any election
to terminate or reduce the Total Commitment under Section 2.09(b) at least three
Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following
receipt of any notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by the Company pursuant to this Section
2.09 shall be irrevocable; provided that a notice of termination of the Total
Commitment delivered by the Company may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may
be revoked by the Company (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Total Commitment shall be permanent. Each
reduction of the Total Commitment shall be made ratably among the Lenders in
accordance with their respective Commitments.
(d) The Total Commitment shall automatically terminate on the date a
Change in Control occurs.
SECTION 2.10 Repayment of Loans; Evidence of Debt. (a) The Company
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Committed Loan
on the Maturity Date and (ii) to the Administrative Agent for the account of
each Lender having a Competitive Loan outstanding the then unpaid principal
amount of each Competitive Loan on the last day of the Interest Period
applicable to such Loan. In addition, if prior to the Termination Date the sum
of
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the total Committed Credit Exposures, plus the aggregate principal amount of the
outstanding Competitive Loans, exceeds the Total Commitment, the Company shall
pay to the Administrative Agent for the account of each Lender an aggregate
principal amount of Committed Loans sufficient to cause the sum of the total
Committed Credit Exposures, plus the aggregate principal amount of the
outstanding Competitive Loans, not to exceed the Total Commitment.
(b) On the date that a Change in Control occurs, the Company shall
repay the outstanding principal amount of the Loans and all other amounts
outstanding hereunder and under the other Loan Documents.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Company to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(d) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Company to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(e) The entries made in the accounts maintained pursuant to Section
2.10(c) or (d) shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error or conflict therein
shall not in any manner affect the obligation of the Company to repay the Loans
in accordance with the terms of this Agreement.
(f) Any Lender may request that Loans made by it be evidenced by a
Committed Note or a Competitive Note, as the case may be. In such event, the
Company shall prepare, execute and deliver to such Lender a Committed Note or a
Competitive Note, as the case may be. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.05) be represented by one or more promissory
notes in such forms payable to the order of the payee named therein.
SECTION 2.11 Prepayment of Loans. (a) The Company shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with Section 2.11(b); provided that
the Company shall not have the right to prepay any Competitive Loan without the
prior consent of the Lender thereof.
(b) The Company shall notify the Administrative Agent by telephone
(confirmed by telecopy in the form of Exhibit 2.11 (a "Notice of Prepayment"))
of any prepayment hereunder (i) in the case of prepayment of a Eurodollar
Committed Borrowing, not later than 11:00 a.m., Charlotte, North Carolina, time,
three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Committed Borrowing, not later than 11:00 a.m., Charlotte,
North Carolina, time, on the date of prepayment. Each such notice shall
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be irrevocable and shall specify the prepayment date, Type and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.09, then such notice
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Each partial prepayment shall be in an aggregate
amount not less than, and shall be an integral multiple of, the amounts shown
below with respect to the applicable Type of Loan or Borrowing:
------------------------------------------------------------
Type of Integral Minimum
Loan/Borrowing Multiple Aggregate
of Amount
------------------------------------------------------------
Eurodollar Committed Borrowing $ 1,000,00 $ 3,000,000
------------------------------------------------------------
ABR Committed Borrowing 1,000,000 1,000,000
------------------------------------------------------------
Promptly following receipt of any such notice relating to a Committed Borrowing,
the Administrative Agent shall advise the Lenders of the contents thereof. If
the Company fails to designate the Type of Borrowings to be prepaid, partial
prepayments shall be applied first to the outstanding ABR Borrowings until all
such outstanding principal of ABR Borrowings are repaid in full, and then to the
outstanding principal amount of Eurodollar Borrowings. Each partial prepayment
of any Committed Borrowing shall be in an amount that would be permitted in the
case of an advance of a Committed Borrowing of the same Type as provided in
Section 2.02. Each prepayment of a Committed Borrowing shall be applied ratably
to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued interest to the extent required by Section 2.13.
SECTION 2.12 Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the applicable Facility Fee Rate on the daily amount of the Commitment
of such Lender, whether used or unused and, when the Commitment has terminated,
on the outstanding Loans of such Lender, during the period from the date of this
Agreement to the later of (i) the date on which such Commitment terminates and
(ii) the date on which the Loans are paid in full. Accrued facility fees shall
be payable in arrears on the last Business Day of March, June, September and
December of each year and on the date on which the Commitments terminate and the
date the Loans are paid in full, commencing on the first such date to occur
after the date hereof. All facility fees shall be computed on the basis of a
year of 365 or 366 days, as the case may be, and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(b) The Company agrees to pay to each of the Administrative Agent and
Wachovia Securities, Inc., for their own accounts, fees payable in the amounts
and at the times specified in that letter agreement dated September 12, 2002
among the Company, the Administrative Agent and Wachovia Securities, Inc. (as
from time to time amended, the "Fee Letter").
(c) The Company agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee (the "Utilization Fee"), which shall
accrue at a rate per annum equal to .125% on:
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(i) each Lender's Commitment (whether used or unused) for each day
during the period from the Effective Date to the Termination Date, on which
the sum of the total Committed Credit Exposures, plus the aggregate
principal amount of outstanding Competitive Loans, plus the aggregate loans
and letters of credit outstanding under the Related Credit Agreement,
exceeds 50% of the sum of the Total Commitment plus the "Total Commitment"
(as defined in the Related Credit Agreement), and
(ii) each Lender's Committed Credit Exposure for each day during the
period from the Termination Date to the date on which the Committed Credit
Exposures of all Lenders, all Competitive Loans and all loans outstanding
under the Related Credit Agreement are paid in full or reduced to zero, on
which the sum of the total Committed Credit Exposures, plus the aggregate
principal amount of outstanding Competitive Loans, plus the aggregate loans
and letters of credit outstanding under the Related Credit Agreement,
exceeds 50% of the sum of Total Commitment, plus the "Total Commitment" (as
defined in the Related Credit Agreement) determined as of the day
immediately preceding the Termination Date.
All Utilization Fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date the Committed Credit
Exposures of all Lenders and all Competitive Loans and all loans outstanding
under the Related Credit Agreement are paid in full or reduced to zero, as the
case may be, commencing on the first of such dates to occur after the Effective
Date. All Utilization Fees shall be computed on the basis of a year of 365 or
366 days, as the case may be, and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (for distribution, in
the case of Facility Fees and Utilization Fees, to the Lenders). Except as
required by law, fees paid shall not be refundable under any circumstances.
SECTION 2.13 Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at a rate per annum equal to the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
(i) in the case of a Eurodollar Committed Loan, at the LIBOR Rate for the
Interest Period in effect for such Borrowing plus the Applicable Margin or (ii)
in the case of a Eurodollar Competitive Loan, at the LIBOR Rate for the Interest
Period in effect for such Borrowing plus (or minus, as applicable) the Margin
applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Company hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any
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Loan, 2% plus the rate otherwise applicable to such Loan as provided above or
(ii) in the case of any other amount, 2% plus the Alternate Base Rate.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan; provided that (i) interest accrued pursuant
to Section 2.13(d) shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than a prepayment of an ABR Committed
Loan prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, (iii) in the event of any conversion of any Eurodollar
Committed Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion
and (iv) all accrued interest shall be payable upon termination of the Total
Commitment.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
LIBOR Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.14 Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the LIBOR Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, by the Lender that is required to
make such Loan) that the LIBOR Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders (or Lender) of making or maintaining
their Loans (or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Committed Borrowing to, or
continuation of any Committed Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Committed
Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any
request by the Company for a Eurodollar Competitive Borrowing shall be
ineffective; provided that (A) if the circumstances giving rise to such notice
do not affect all the Lenders, then requests by the Company for Eurodollar
Competitive Borrowings may be made to Lenders that are not affected thereby and
(B) if the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.
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SECTION 2.15 Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the LIBOR Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Company will pay to such Lender such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section 2.15 shall be delivered to
the Company and shall be conclusive absent manifest error. The Company shall pay
such Lender the amount shown as due on any such certificate within 10 Business
Days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section 2.15 shall not constitute a waiver of such Lender's
right to demand such compensation; provided that the Company shall not be
required to compensate a Lender pursuant to this Section 2.15 for any increased
costs or reductions incurred more than six months prior to the date that such
Lender notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.16 Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow (unless such failure was caused by the failure of a Lender to
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make such Loan), convert, continue or prepay any Eurodollar Loan, or the failure
to convert an ABR Loan to a Eurodollar Loan, on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.09 and is revoked in accordance herewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan (unless such failure was caused by the failure of a Lender to
make such Loan), or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Company pursuant to Section 2.19, then, in any such event,
the Company shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, the loss to any
Lender attributable to any such event shall be deemed to include an amount
determined by such Lender to be equal to the excess, if any, of (i) the amount
of interest that such Lender would pay for a deposit equal to the principal
amount of such Loan for the period from the date of such payment, conversion,
failure or assignment to the last day of the then current Interest Period for
such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing,
conversion or continuation) if the interest rate payable on such deposit were
equal to the LIBOR Rate for such Interest Period, over (ii) the amount of
interest that such Lender would earn on such principal amount for such period if
such Lender were to invest such principal amount for such period at the interest
rate that would be bid by such Lender (or an affiliate of such Lender) for
dollar deposits from other banks in the Eurodollar market at the commencement of
such period. A certificate of any Lender setting forth any amount or amounts
that such Lender is entitled to receive pursuant to this Section 2.16 shall be
delivered to the Company and shall be conclusive absent manifest error. The
Company shall pay such Lender the amount shown as due on any such certificate
within 10 Business Days after receipt thereof.
SECTION 2.17 Taxes. (a) Any and all payments by or on account of
any obligation of the Company hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Company shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.17) the Administrative Agent or a
Lender (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Company shall make such
deductions and (iii) the Company shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Company shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Company shall indemnify the Administrative Agent and each
Lender, within 10 Business Days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section 2.17(c)) paid by the Administrative Agent or such Lender, as the case
may be, and any penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Company by a Lender, or by the
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Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Company to a Governmental Authority, the Company shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Company is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Company (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Company, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Company or with respect to which the
Company has paid additional amounts pursuant to this Section 2.17, it shall pay
over such refund to the Company (but only to the extent of indemnity payments
made, or additional amounts paid, by the Company under this Section 2.17 with
respect to the Taxes and Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Company, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over to
the Company (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section 2.17(f) shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to the Company or any other Person.
SECTION 2.18 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Company shall make each payment required to be made by the
Company hereunder (whether of principal, interest or fees, or under Section
2.15, 2.16 or 2.17, or otherwise) prior to 12:00 noon, Charlotte, North
Carolina, time, on the date when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date may,
in the discretion of the Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent at its
Principal Office, except that payments pursuant to Sections 2.15, 2.16, 2.17 and
9.03 shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof. If
any payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing
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interest, interest thereon shall be payable for the period of such extension.
All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal then due to such
parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Committed Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Committed Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Committed Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Committed Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Company pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee,
other than to the Company or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). The Company consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Company rights of set-off and counterclaim
with respect to such participation as fully as if such Lender were a direct
creditor of the Company in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Company prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Company will not make
such payment, the Administrative Agent may assume that the Company has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Company has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from the date
such amount is distributed to it to the date of payment to the Administrative
Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.07(b) or 2.18(d), then the Administrative Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
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SECTION 2.19 Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15, or if the Company is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender.
(b) If any Lender requests compensation under Section 2.15, or if the
Company is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.05), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent, which
consent shall not be unreasonably withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts) and (iii)
in the case of any such assignment resulting from a claim for compensation under
Section 2.15 or payments required to be made pursuant to Section 2.17, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Company to require such assignment and delegation cease to apply.
SECTION 2.20 Extensions of Termination Date; Removal of Lenders.
(a) The Company may, by written notice to the Administrative Agent (a "Notice of
Extension") given not less than 30 nor more than 45 days prior to the then
effective Termination Date, advise the Lenders that it requests an extension of
the then effective Termination Date (such then effective Termination Date being
the "Existing Termination Date") by 364 calendar days, effective on the Existing
Termination Date. The Administrative Agent will promptly, and in any event
within five Business Days of the receipt of such Notice of Extension, notify the
Lenders of the contents of each such Notice of Extension.
(b) Each Notice of Extension shall (i) be irrevocable and (ii)
constitute a representation by the Company that (A) neither any Event of Default
nor any Default has occurred and is continuing, and (B) the representations and
warranties contained in Article IV are correct on and as of such date, as though
made on and as of such date (unless any representation and warranty expressly
relates to an earlier date). In the event the Existing Termination Date is
extended pursuant to the terms of this Section 2.20, the Company shall be deemed
to represent on and as of the effective date of such extension that (i) neither
any Event of Default nor any Default has occurred and is continuing, and (ii)
the representations and
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warranties contained in Article IV are correct on and as of such date, as though
made on and as of such date (unless any representation and warranty expressly
relates to an earlier date).
(c) In the event a Notice of Extension is given to the Administrative
Agent as provided in Section 2.20(a) and the Administrative Agent notifies a
Lender of the contents thereof, such Lender shall on or before the 20th day next
preceding the Existing Termination Date advise the Administrative Agent in
writing whether or not such Lender consents to the extension requested thereby
and if any Lender fails so to advise the Administrative Agent, such Lender shall
be deemed to have not consented to such extension. If Lenders holding 80% or
more of the Total Commitment so consent (the "Consenting Lenders") to such
extension and any and all Lenders who have not consented (the "Non-Consenting
Lenders") are replaced, the Termination Date, and the Commitments of the
Consenting Lenders and the Nominees (as defined below) shall be automatically
extended 364 calendar days past the Existing Termination Date, effective on the
Existing Termination Date. The Administrative Agent shall promptly notify the
Company and all of the Lenders of each written notice of consent given pursuant
to this Section 2.20(c).
(d) In the event the Consenting Lenders hold less than 100% of the
Total Commitment, the Consenting Lenders, or any of them, shall have the right
(but not the obligation) to assume all or any portion of the Non-Consenting
Lenders' Commitments by giving written notice to the Company and the
Administrative Agent of their election to do so on or before the 15th day next
preceding the Existing Termination Date, which notice shall be irrevocable and
shall constitute an undertaking to (i) assume, as of the close of business on
the Existing Termination Date, all or such portion of the Commitments of the
Non-Consenting Lenders, as the case may be, as may be specified in such written
notice, and (ii) purchase (without recourse) from the Non-Consenting Lenders, at
the close of business on the Existing Termination Date, the Committed Credit
Exposures outstanding on the Existing Termination Date that correspond to the
portion of the Commitments to be so assumed at a price equal to the sum of (x)
the unpaid principal amount of all Loans so purchased, plus (y) the aggregate
amount, if any, previously funded by the transferor or any participations so
purchased, plus (z) all accrued and unpaid interest thereon. Such Commitments
and Committed Credit Exposures, or portion thereof, to be assumed and purchased
by Consenting Lenders shall be allocated among those Consenting Lenders who have
so elected to assume the same pro rata in accordance with the respective
Commitments of such Consenting Lenders as of the Existing Termination Date
(provided, however, in no event shall a Consenting Lender be required to assume
and purchase an amount or portion of the Commitments and Committed Credit
Exposures of the Non-Consenting Lenders in excess of the amount which such
Consenting Lender agreed to assume and purchase pursuant to the immediately
preceding sentence) or on such other basis as such Consenting Lender shall
agree. The Administrative Agent shall promptly notify the Company and the other
Consenting Lenders in the event it receives any notice from a Consenting Lender
pursuant to this Section 2.20(d).
(e) In the event that the Consenting Lenders shall not elect as
provided in Section 2.20(d) to assume and purchase all of the Non-Consenting
Lenders' Commitments and Committed Credit Exposures, the Company may designate,
by written notice to the Administrative Agent and the Consenting Lenders given
on or before the tenth day next preceding the Existing Termination Date, one or
more Eligible Assignees not a party to this
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Agreement (individually, a "Nominee" and collectively, the "Nominees") to assume
all or any portion of the Non-Consenting Lenders' Commitments not to be assumed
by the Consenting Lenders and to purchase (without recourse) from the
Non-Consenting Lenders all Committed Credit Exposures outstanding at the close
of business on the Existing Termination Date that corresponds to the portion of
the Commitments so to be assumed at the price specified in Section 2.20(d). Each
assumption and purchase under this Section 2.20(e) shall be effective as of the
close of business on the Existing Termination Date when each of the following
conditions has been satisfied in a manner satisfactory to the Administrative
Agent:
(i) each Nominee and the Non-Consenting Lenders have executed an
Assignment and Acceptance pursuant to which such Nominee shall (A) assume
in writing its share of the obligations of the Non-Consenting Lenders
hereunder, including its share of the Commitments of the Non-Consenting
Lenders and (B) agree to be bound as a Lender by the terms of this
Agreement; and
(ii) each Nominee shall have completed and delivered to the
Administrative Agent an Administrative Questionnaire.
(f) If all of the Commitments of the Non-Consenting Lenders are not
replaced on or before the Existing Termination Date, then, at the Borrower's
option, either (i) the Total Commitment shall terminate on the Existing
Termination Date or (ii) the Borrower shall give prompt notice of termination on
the Existing Termination Date of the Commitments of each Non-Consenting Lender
not so replaced to the Administrative Agent, and shall prepay on the Existing
Termination Date the Loans, if any, of such Non-Consenting Lenders, which shall
reduce the Total Commitment accordingly (to the extent not assumed), and the
Existing Termination Date shall be extended in accordance with this Section 2.20
for the remaining Commitments of the Consenting Lenders; provided, however, that
(A) Consenting Lenders and Nominees shall have Committed Credit Exposures and
unused Commitments representing more than 80% of the sum of the total Committed
Credit Exposures and unused Commitments prior to replacement of the
Non-Consenting Lenders and (B) no Lender after giving effect to the extension
contemplated hereunder shall have more than 20% of the Total Commitment.
ARTICLE III.
CONDITIONS PRECEDENT
SECTION 3.01 Conditions Precedent to the Initial Borrowing. The
obligations of the Lenders to make Loans hereunder shall not become effective
until the date on which each of the following conditions is satisfied or waived
in accordance with Section 9.02:
(a) The Administrative Agent shall have received the following, each
dated the Execution Date:
(i) this Agreement executed by each party hereto;
(ii) if requested by any Lender, a Committed Note and a Competitive
Note executed by the Company and payable to the order of such Lender;
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(iii) a certificate of an officer and of the secretary or an assistant
secretary of the Delegate, certifying, inter alia, (A) true and complete
copies of each of the limited liability company agreement of the Delegate,
the certificate of incorporation, as amended and in effect, of the General
Partner, the partnership agreement, as amended and in effect, of the
Company, the bylaws, as amended and in effect, of the General Partner and
the resolutions adopted by the Board of Directors of the Delegate (1)
authorizing the execution, delivery and performance by the Company of this
Agreement and the other Loan Documents to which it is or will be a party
and the Borrowings to be made hereunder, (2) approving the forms of the
Loan Documents to which it is a party and which will be delivered at or
prior to the initial Borrowing Date and (3) authorizing officers of the
Delegate to execute and deliver the Loan Documents to which the Company is
or will be a party, (B) the incumbency and specimen signatures of the
officers of the Delegate executing any documents on its behalf and (C) (1)
that the representations and warranties made by the Company in each Loan
Document to which the Company is a party and which will be delivered at or
prior to the initial Borrowing Date are true and correct in all material
respects, (2) the absence of any proceedings for the dissolution or
liquidation of the Company and (3) the absence of the occurrence and
continuance of any Default or Event of Default;
(iv) a letter from CT Corporation System, Inc. in form and substance
satisfactory to the Administrative Agent evidencing the obligation of CT
Corporation System, Inc. to accept service of process in the State of New
York on behalf of the Company;
(v) a favorable, signed opinion addressed to the Administrative Agent
and the Lenders from Bracewell & Patterson, L.L.P., counsel to the Company,
given upon the express instruction of the Company; and
(vi) certificates of appropriate public officials as to the existence,
good standing and qualification to do business as a foreign entity of the
Company, the General Partner and the Delegate in the States of Texas and
Delaware.
(b) The Administrative Agent shall be reasonably satisfied that all
required consents and approvals of any Governmental Authority and any other
Person in connection with the transactions contemplated by this Section 3.01
shall have been obtained and remain in effect (except where the failure to
obtain such approvals would not have a Material Adverse Effect).
(c) The Company shall have paid to Wachovia Securities, Inc. and the
Administrative Agent all fees and expenses pursuant to the Fee Letter agreed
upon by such parties to be paid on or prior to the Execution Date.
(d) The Existing Credit Agreement shall have been terminated and all
amounts outstanding thereunder paid in full.
(e) The Company shall have paid to Andrews & Kurth L.L.P. pursuant to
Section 9.03 all reasonable fees and disbursements invoiced to the Company on or
prior to the Execution Date.
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SECTION 3.02 Conditions Precedent to All Borrowings. The
obligations of the Lenders to make any Loans hereunder (including any Loans to
be made on the initial Borrowing Date) is subject to the further conditions
precedent that on the date of such Borrowing:
(a) The conditions precedent set forth in Section 3.01 shall have
theretofore been satisfied;
(b) The representations and warranties set forth in Article IV (other
than the representation set forth in Section 4.07(c)) and in the other Loan
Documents shall be true and correct in all material respects as of, and as if
such representations and warranties were made on, the Borrowing Date of the
proposed Loan (unless such representation and warranty expressly relates to an
earlier date), and by the Company's delivery of a Borrowing Request the Company
shall be deemed to have certified to the Administrative Agent and the Lenders
that such representations and warranties are true and correct in all material
respects;
(c) The Company shall have complied with the provisions of Section
2.03 or Section 2.04, as the case may be; and
(d) No Default or Event of Default shall have occurred and be
continuing or would result from such Borrowing.
The acceptance of the benefits of each Borrowing shall constitute a
representation and warranty by the Company to each of the Lenders that all of
the conditions specified in this Section 3.02 above exist as of that time.
SECTION 3.03 Conditions Precedent to Conversions. The obligation of
the Lenders to convert or continue any existing Borrowing into or as a
Eurodollar Borrowing is subject to the condition precedent that on the date of
such conversion or continuation no Default or Event of Default shall have
occurred and be continuing or would result from the making of such conversion.
The acceptance of the benefits of each such conversion or continuation shall
constitute a representation and warranty by the Company to each of the Lenders
that no Default or Event of Default shall have occurred and be continuing or
would result from the making of such conversion or continuation.
SECTION 3.04 Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for any
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
satisfactory in form and substance to the Lenders.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Company makes the following representations and warranties to the
Administrative Agent and the Lenders:
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SECTION 4.01 Organization and Qualification. The Company and each
of the Subsidiaries (a) is a corporation, partnership or limited liability
company duly organized or formed, validly existing and in good standing under
the laws of the state of its incorporation, organization or formation, (b) has
all requisite corporate, partnership, limited liability company or other power
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and (c) is duly qualified to
do business and is in good standing in every jurisdiction in which the failure
to be so qualified would, individually or together with all such other failures
of the Company and the Subsidiaries, have a Material Adverse Effect. As of the
date of this Agreement, the Persons and other entities shown on Schedule 4.01
are all of the Subsidiaries of the Company, and such Schedule 4.01 (x)
accurately reflects the direct owner of the Capital Stock of each such
Subsidiary owned by such direct owner, (y) accurately identifies such
Subsidiaries and (z) accurately sets forth the jurisdictions of their respective
incorporation, organization or formation, as the case may be.
SECTION 4.02 Authorization, Validity, Etc. The Company has all
requisite partnership and other power and authority to execute and deliver, and
to incur and perform its obligations under this Agreement and under the other
Loan Documents to which it is a party and to make the Borrowings hereunder, and
all such actions have been duly authorized by all necessary proceedings on its
behalf. This Agreement and the other Loan Documents have been duly and validly
executed and delivered by or on behalf of the Company and constitute valid and
legally binding agreements of the Company enforceable against the Company in
accordance with the respective terms thereof, except (a) as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer,
fraudulent conveyance or other similar laws relating to or affecting the
enforcement of creditors' rights generally, and by general principles of equity
(including principles of good faith, reasonableness, materiality and fair
dealing) which may, among other things, limit the right to obtain equitable
remedies (regardless of whether considered in a proceeding in equity or at law)
and (b) as to the enforceability of provisions for indemnification for violation
of applicable securities laws, limitations thereon arising as a matter of law or
public policy.
SECTION 4.03 Governmental Consents, Etc. No authorization, consent,
approval, license or exemption of or registration, declaration or filing with
any Governmental Authority, is necessary for the valid execution and delivery
of, or the incurrence and performance by the Company of its obligations under,
any Loan Document to which it is a party, except those that have been obtained
and such matters relating to performance as would ordinarily be done in the
ordinary course of business after the Execution Date.
SECTION 4.04 No Breach or Violation of Agreements or Restrictions,
Etc. Neither the execution and delivery of, nor the incurrence and performance
by the Company of its obligations under, the Loan Documents to which it is a
party, nor the extensions of credit contemplated by the Loan Documents, will (a)
breach or violate any applicable Requirement of Law, (b) result in any breach or
violation of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of its property or assets
(other than Liens created or contemplated by this Agreement) pursuant to the
terms of, any indenture, mortgage, deed of trust, agreement or other instrument
to which it or any of the Subsidiaries is party or by which any of its
properties or assets, or those of any of the Subsidiaries is bound or to which
it is
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subject, except for breaches, violations and defaults under clauses (a) and (b)
that neither individually nor in the aggregate could reasonably be expected to
result in a Material Adverse Effect, or (c) violate any provision of the organic
documents of the Company.
SECTION 4.05 Properties. Each of the Company and the Subsidiaries
has good title to, or valid leasehold or other interests in, all its real and
personal property material to its business, except for Liens permitted under
Section 6.01.
SECTION 4.06 Litigation and Environmental Matters. (a) Except as
disclosed in the most recent Annual Report on Form 10-K delivered by the Company
to the Lenders, there is no action, suit or proceeding by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Company, threatened against or affecting the Company or any of the Subsidiaries
(i) as to which there is a reasonable possibility of an adverse determination
and that, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect or (ii) that involves this Agreement or the
Transactions.
(b) In the ordinary course of its business, the Company conducts an
ongoing review of the effect of Environmental Laws on the business, operations
and properties of the Company and the Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and costs (including any capital
or operating expenditures required for clean-up or closure of properties
currently or previously owned, any capital or operating expenditures required to
achieve or maintain compliance with environmental protection standards imposed
by law or as a condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or permanent
shutdown of any facility or reduction in the level of or change in the nature of
operations conducted thereat, any costs or liabilities in connection with
off-site disposal of wastes or Hazardous Materials, and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Company has reasonably concluded
that such associated liabilities and costs, including the costs of compliance
with Environmental Laws, are unlikely to result in a Material Adverse Effect.
SECTION 4.07 Financial Statements. (a) The consolidated balance
sheet of the Company and the Subsidiaries as at December 31, 2001 and the
related consolidated statements of income, comprehensive income, partners'
capital and cash flows of the Company and the Subsidiaries for the fiscal year
ended on said date, with the opinion thereon of PricewaterhouseCoopers LLP and
set forth in the Company's 2001 Annual Report on Form 10-K, as filed with the
SEC, fairly present, in conformity with GAAP, the consolidated financial
position of the Company and the Subsidiaries as of such date and their
consolidated results of operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheets of the Company and the
Subsidiaries as at June 30, 2002 and the related consolidated statements of
income and cash flows of the Company and the Subsidiaries for the six-month
period ended on such date and set forth in the Company's Quarterly Report on
Form 10-Q for its fiscal quarter then ended, as filed with the SEC, fairly
present, in conformity with GAAP applied on a basis consistent with the
financial statements referred to in Section 4.07(a), the consolidated financial
position of the Company and the Subsidiaries as at said date and their
consolidated results of their operations
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cash flows for the six-month period ended on said date (subject to the absence
of footnotes and to normal year-end and audit adjustments).
(c) Since December 31, 2001, there has been no material adverse change
in the business, assets, liabilities or financial condition of the Company and
the Subsidiaries, taken as a whole.
SECTION 4.08 Disclosure. All information heretofore furnished by
the Company to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by the Company to the Administrative
Agent or any Lender will be, true and accurate in all material respects on the
date as of which such information is stated or certified. None of the reports,
financial statements, certificates or other information furnished by or on
behalf of the Company to the Administrative Agent or any Lender in connection
with the syndication or negotiation of this Agreement or delivered hereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
SECTION 4.09 Investment Company Act. Neither the Company nor any of
the Subsidiaries is, or is regulated as, an "investment company," as such term
is defined in the Investment Company Act of 1940, as amended.
SECTION 4.10 Public Utility Holding Company Act. Neither the
Company nor any of the Subsidiaries is a non-exempt "holding company", or
subject to regulation as such, or an "affiliate" of a "holding company" or a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 4.11 ERISA. Each member of the ERISA Group has fulfilled
its obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan.
No member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan, (ii) failed to
make any contribution or payment to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA, which waiver, failure or
liability could reasonably be expected to result in a Material Adverse Effect.
SECTION 4.12 Tax Returns and Payments. The Company and the
Subsidiaries have caused to be filed all federal income tax returns and other
material tax returns, statements and reports (or obtained extensions with
respect thereto) which are required to be filed and have paid or deposited or
made adequate provision in accordance with GAAP for the payment of all taxes
(including estimated taxes shown on such returns, statements and reports) which
are shown to be due pursuant to such returns, except for taxes being contested
in good
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faith by appropriate proceedings for which adequate reserves in accordance with
GAAP have been created on the books of the Company and the Subsidiaries and
where the failure to pay such taxes (individually or in the aggregate for the
Company and the Subsidiaries) would not have a Material Adverse Effect.
SECTION 4.13 Compliance with Laws and Agreements. Each of the
Company and the Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate for the
Company and the Subsidiaries, could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 4.14 Purpose of Loans. (a) All proceeds of the Loans will
be used for the purposes set forth in Section 5.07.
(b) None of the proceeds of the loans under the Existing Credit
Agreement or the Related Credit Agreement (as defined therein) were, and none of
the proceeds of the Loans under this Agreement or the Related Credit Agreement
will be, used directly or indirectly for the purpose of buying or carrying any
"margin stock" within the meaning of Regulation U (herein called "margin stock")
or for the purpose of reducing or retiring any indebtedness which was originally
incurred to buy or carry any margin stock, or for any other purpose which might
constitute this transaction a "purpose" credit within the meaning of Regulation
T, U or X. Neither the Company nor any agent acting on its behalf has taken or
will take any action which might cause this Agreement or any other Loan Document
or the Related Credit Agreement to violate Regulation T, Regulation U,
Regulation X, or any other regulation of the Board or to violate the Exchange
Act. Margin stock does not constitute more than 25% of the assets of the
Company, or of the Company and the Subsidiaries on a consolidated basis, and the
Company does not intend or foresee that it will ever do so.
ARTICLE V.
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full, the Company covenants and agrees with the Lenders that:
SECTION 5.01 Financial Statements and Other Information. The
Company will furnish to the Administrative Agent, in each case with sufficient
copies for each Lender:
(a) within three days after the date in each fiscal year on which the
Company is required to file its Annual Report on Form 10-K with the SEC (i) such
Annual Report, and (ii) its audited consolidated balance sheet and the related
consolidated statements of income, comprehensive income, operations, partners'
capital and cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures as of the end of and for the previous
fiscal year, all reported on by PricewaterhouseCoopers LLP, or other independent
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public accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception as to
the scope of their audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial position,
results of operations and cash flows of the Company and the Subsidiaries on a
consolidated basis in accordance with GAAP; provided, however, that (x) the
Company shall be deemed to have furnished said Annual Report on Form 10-K for
purposes of clause (i) if it shall have timely made the same available on
"EDGAR" and/or on its home page on the worldwide web (at the date of this
Agreement located at http://www.kindermorgan.com) and complied with the last
grammatical paragraph of this Section 5.01 in respect thereof, and (y) if said
Annual Report contains such consolidated balance sheet and such consolidated
statements of results of income, comprehensive income, partners' capital and
cash flows, and the report thereon of such independent public accountants
(without qualification or exception, and to the effect, as specified above), the
Company shall not be required to comply with clause (ii);
(b) within three days after each date in each fiscal year on which the
Company is required to file a Quarterly Report on Form 10-Q with the SEC (i)
such Quarterly Report, and (ii) its consolidated balance sheet and the related
consolidated statements of income and cash flows as of the end of and for the
fiscal quarter to which said Quarterly Report relates and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form the
figures as of the end and for the corresponding period or periods of the
previous fiscal year, all certified by a Responsible Officer as presenting
fairly in all material respects the financial condition and results of
operations of the Company and the Subsidiaries on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments and the
absence of footnotes; provided, however, that (x) the Company shall be deemed to
have furnished said Quarterly Report for purposes of clause (i) if it shall have
timely made the same available on "EDGAR" and/or on its home page on the
worldwide web (at the date of this Agreement located at
http://www.kindermorgan.com) and complied with the last grammatical paragraph of
this Section 5.01 in respect thereof, and (y) if said Quarterly Report contains
such consolidated balance sheet and consolidated statements of income and cash
flows, and such certifications, the Company shall not be required to comply with
clause (ii);
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate in
substantially the form of Exhibit 5.01 signed by an authorized financial or
accounting officer of the Company (i) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance with
the requirements of Section 6.06(a), (b), (c) and (d) on the date of such
financial statements and (ii) stating whether any Default or Event of Default
exists on the date of such certificate and, if any Default or Event of Default
then exists, setting forth the details thereof and the action which the Company
is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i) as to
whether anything has come to their attention to cause them to believe that any
Default or Event of Default existed on the date of such statements and (ii)
confirming the calculations set forth in the officer's certificate delivered
simultaneously therewith pursuant to clause (c) above; provided, however, that
such accountants shall not be liable to anyone by reason of their failure to
obtain knowledge of any Default or Event of Default
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which would not be disclosed in the course of an audit conducted in accordance
with generally accepted auditing standards;
(e) prompt written notice of the following:
(i) the occurrence of any Default or Event of Default or Change in
Control Event and
(ii) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect;
(each notice delivered under this Section 5.01(e) to be accompanied by a
statement of a Responsible Officer setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto);
(f) promptly upon receipt thereof, a copy of each other report or
letter submitted to the Company by independent accountants in connection with
any annual, interim or special audit made by them of the books of the Company,
and a copy of any response by the Company, or the Board of Directors of the
general partner of the Company, to such letter or report;
(g) without duplication of any other requirement of this Section 5.01,
promptly upon the mailing thereof to the public unitholders of the Company
generally, copies of all financial statements, reports and proxy statements so
mailed;
(h) promptly upon the filing thereof with the SEC, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Form 8-K which the
Company shall have filed with the SEC;
(i) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) (other than such event as to which the 30-day notice requirement is
waived) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the chief financial
officer or the chief accounting officer of the Company setting
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forth details as to such occurrence and action, if any, which the Company or
applicable member of the ERISA Group is required or proposes to take; and
(j) from time to time such other information regarding the business,
affairs or financial condition of the Company or any Subsidiary as the Required
Lenders or the Administrative Agent may reasonably request.
Information required to be delivered pursuant to Section 5.01(a),
5.01(b), 5.01(g) or 5.01(h) above shall be deemed to have been delivered on the
date on which the Company provides notice to the Administrative Agent and the
Lenders that such information has been posted on "EDGAR" or the Company's
website or another website identified in such notice and accessible by the
Administrative Agent and the Lenders without charge (and the Company hereby
agrees to provide such notice); provided that such notice may be included in a
certificate delivered pursuant to Section 5.01(c).
SECTION 5.02 Existence, Conduct of Business. The Company will, and
will cause each of the Material Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.02.
SECTION 5.03 Payment of Obligations. The Company will, and will
cause each of the Subsidiaries to, pay, before the same shall become delinquent
or in default, its obligations, including tax liabilities, that, if not paid,
could result in a Material Adverse Effect, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b)
the Company or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.04 Maintenance of Properties; Insurance. (a) The Company
will keep, and will cause each Material Subsidiary to keep, all property useful
and necessary in its business in good working order and condition, ordinary wear
and tear excepted.
(b) The Company will maintain or cause to be maintained with, in the
good faith judgment of the Company, financially sound and reputable insurers, or
through self-insurance, insurance with respect to its properties and business
and the properties and businesses of the Subsidiaries against loss or damage of
the kinds customarily insured against by business enterprises of established
reputation engaged in the same or similar business and similarly situated, of
such types and in such amounts as are customarily carried under similar
circumstances by such other corporations. Such insurance may include
self-insurance or be subject to co-insurance, deductibility or similar clauses
which, in effect, result in self-insurance of certain losses, provided that such
self-insurance is in accord with the approved practices of business enterprises
of established reputation similarly situated and adequate insurance reserves are
maintained in connection with such self-insurance, and, notwithstanding the
foregoing provisions of this Section 5.04 the Company or any Subsidiary may
effect workers' compensation or similar insurance in respect of operations in
any state or other jurisdiction either
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through an insurance fund operated by such state or other jurisdiction or by
causing to be maintained a system or systems of self-insurance in accord with
applicable laws.
SECTION 5.05 Books and Records; Inspection Rights. The Company
will, and will cause each of the Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Company will, and
will cause each of the Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice during
normal business hours, to visit and inspect its properties, to examine and make
extracts from its books and records (subject to compliance with confidentiality
agreements and applicable copyright law), and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such times,
and as often, as reasonably requested.
SECTION 5.06 Compliance with Laws. The Company will, and will cause
each of the Subsidiaries to, comply with all Requirements of Law applicable to
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.07 Use of Proceeds. The proceeds of the Loans will be
used only for (a) refinancing (i) amounts outstanding under the Existing Credit
Agreement, (ii) other Indebtedness of the Company and its Subsidiaries, and
(iii) commercial paper, and (b) working capital and other general partnership
purposes.
ARTICLE VI.
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full, the
Company covenants and agrees with the Lenders that:
SECTION 6.01 Liens. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) Liens existing on any property or asset prior to the acquisition
thereof by the Company or any Subsidiary or existing on any property or
asset of any Person that becomes a Subsidiary after the date hereof prior
to the time such Person becomes a Subsidiary and securing Indebtedness
whose incurrence, for purposes of this Agreement, by virtue of acquisition
of such property or asset, or by virtue of such Person so becoming a
Subsidiary, would not result in a violation of Section 6.06(a), (b), (c) or
(d); provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary, as
the case may be, (ii) such Lien shall not apply to any other property or
assets of the Company or any Subsidiary, (iii) such Lien shall secure only
those obligations which it secures on the date
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of such acquisition or the date such Person becomes a Subsidiary, as the case
may be, and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof. For purposes of this Section 6.01(b),
the Indebtedness so secured shall be deemed to have been incurred on the last
day of the fiscal quarter then most recently ended.
(c) Liens, not otherwise permitted by the foregoing clauses (a) and
(b), securing Indebtedness and payment obligations in respect of Hedging
Agreements in an aggregate amount not exceeding 10% of Tangible Net Worth.
SECTION 6.02 Fundamental Changes. The Company will not, and will
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all (or substantially all) of its assets, or all or substantially
all of the stock of or other equity interest in any of the Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve,
unless: (a) at the time thereof and immediately after giving effect thereto no
Event of Default or Default shall have occurred and be continuing; and (b) the
Company is the surviving entity or the recipient of any such sale, transfer,
lease or other disposition of assets, provided, that no such merger,
consolidation, sale, transfer, lease or other disposition shall have the effect
of releasing the Company from any of the Obligations.
SECTION 6.03 Restricted Payments. The Company will not, and will
not permit any of the Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment.
SECTION 6.04 Transactions with Affiliates. The Company will not,
and will not permit any of the Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Company or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Company and the Wholly-owned Subsidiaries
not involving any other Affiliate, (c) any payment which would constitute a
Restricted Payment but for the proviso to the definition of said term in Section
1.01 and (d) loans and advances by the Company to the General Partner to enable
the General Partner to pay general and administrative costs and expenses
pursuant to the partnership agreement of the Company and in accordance with past
practices.
SECTION 6.05 Restrictive Agreements. The Company will not, and will
not permit any of the Subsidiaries to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its Capital Stock or to make
or repay loans or advances to the Company or any other such Subsidiary, provided
that the foregoing shall not apply to (a) restrictions and conditions imposed by
law or by this Agreement or the Related Credit Agreement, (b) customary
restrictions and conditions contained in agreements relating to the sale of all
or substantially all of the Capital Stock or assets of a Subsidiary pending such
sale, provided such restrictions and conditions apply only to the Subsidiary
that is to be sold and such sale is permitted hereunder, (c) restrictions and
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conditions existing on the date hereof identified on Schedule 6.05 (but shall
apply to any extension or renewal of, or any amendment or modification expanding
the scope of, any such restriction or condition) and (d) restrictions and
conditions contained in the agreement pursuant to which the SFPP First Mortgage
Notes were issued.
SECTION 6.06 Financial Covenants. The Company will observe and
cause the Subsidiaries to observe each of the following requirements:
(a) Ratio of Consolidated Indebtedness to Consolidated EBITDA. The
Company will not at any time permit the ratio of Consolidated Indebtedness to
Consolidated EBITDA for the four full fiscal quarters most recently ended in
respect of which financial statements shall have been delivered pursuant to
Section 5.01(a) or (b), as the case may be, to exceed 5.00 to 1.0. For purposes
of this Section 6.06(a), if during any period the Company acquires any Person
(or any interest in any Person) or all or substantially all of the assets of any
Person, the EBITDA attributable to such assets or an amount equal to the
percentage of ownership of the Company in such Person times the EBITDA of such
Person, for such period determined on a pro forma basis (which determination, in
each case, shall be subject to approval of the Required Lenders, not to be
unreasonably withheld) may be included as Consolidated EBITDA for such period,
if on the date of such acquisition no Indebtedness (other than Indebtedness
permitted pursuant to Section 6.06(b) or (d)) is incurred by reason of and
giving effect to such acquisition and such Person, or the entity acquiring such
assets, as the case may be, is a Subsidiary. For purposes of ascertaining
whether the Required Lenders have approved a determination of the EBITDA
attributable to acquired assets, or the assets of an acquired Person, for
inclusion in Consolidated EBITDA for any period pursuant to the foregoing
sentence, a Lender which has not, within 10 days after its receipt of the
certificate of a Responsible Officer required by the last sentence of Section
5.01, objected to the inclusion in Consolidated EBITDA as set forth therein of
an amount of EBITDA attributable to such acquired assets or the assets of such
acquired Person, as the case may be, shall be deemed to have approved both the
determination of such amount of EBITDA so included, and the inclusion thereof in
Consolidated EBITDA pursuant to the foregoing sentence.
(b) Total Indebtedness (excluding Indebtedness of a consolidated
Subsidiary owed to the Company or to any Wholly-owned Subsidiary) of all
consolidated Subsidiaries shall at no time exceed 15% of Consolidated
Indebtedness.
(c) Tangible Net Worth as at the last day of any fiscal quarter shall
not be less than $2,100,000,000.
(d) Consolidated Indebtedness shall at no time exceed 62.5% of Total
Capitalization.
ARTICLE VII.
EVENTS OF DEFAULT
SECTION 7.01 Events of Default and Remedies. If any of the
following events ("Events of Default") shall occur and be continuing:
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(a) the principal of any Loan shall not be paid when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) any interest on any Loan or any fee or any other amount (other
than an amount referred to in clause (a) of this Article) payable under this
Agreement or any other Loan Document shall not be paid, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of three Business Days;
(c) any representation or warranty made or, for purposes of Article
III, deemed made by or on behalf of the Company herein, at the direction of the
Company or by the Company in any other Loan Document or in any document,
certificate or financial statement delivered in connection with this Agreement
or any other Loan Document shall prove to have been incorrect in any material
respect when made or deemed made or reaffirmed, as the case may be;
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.01(e)(i), 5.02 (with respect to
the Company's existence) or 5.07 or in Article VI;
(e) the Company shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement (other than those specified in
Section 7.01(a), Section 7.01(b) or Section 7.01(d)) or any other Loan Document
to which it is a party and, in any event, such failure shall remain unremedied
for 30 calendar days after the earlier of (i) written notice of such failure
shall have been given to the Company by the Administrative Agent or any Lender
or, (ii) a Responsible Officer of the Company becomes aware of such failure;
(f) other than as specified in Section 7.01(a) or (b), (i) the Company
or any Subsidiary fails to make (whether as primary obligor or as guarantor or
other surety) any payment of principal of, or interest or premium, if any, on
any item or items of Indebtedness (other than as specified in Section 7.01(a) or
Section 7.01(b)) or any payment in respect of any Hedging Agreement beyond any
period of grace provided with respect thereto (not to exceed 30 days); provided
that the aggregate outstanding principal amount of all Indebtedness or payment
obligations in respect of all Hedging Agreements as to which such a payment
default shall occur and be continuing is equal to or exceeds $25,000,000, or
(ii) the Company or any Subsidiary fails to duly observe, perform or comply with
any agreement with any Person or any term or condition of any instrument, if
such failure, either individually or in the aggregate, shall have resulted in
the acceleration of the payment of Indebtedness with an aggregate face amount
which is equal to or exceeds $25,000,000; provided that this Section 7.01(f)
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness
so long as such Indebtedness is paid in full when due;
(g) an involuntary case shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Company or any Material Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the
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Company or any Material Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(h) the Company, or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, winding-up,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in Section 7.01(g), (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Material Subsidiary or
for a substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(i) the Company or any Material Subsidiary shall become unable, admit
in writing or fail generally to pay its debts as they become due;
(j) (i) the General Partner fails to make (whether as primary obligor
or as guarantor or other surety) any payment of principal of, or interest or
premium, if any, on any item or items of Indebtedness beyond any period of grace
provided with respect thereto (not to exceed 30 days); provided that the
aggregate outstanding principal amount of all such Indebtedness as to which such
a payment default shall occur and be continuing is equal to or exceeds
$25,000,000, or (ii) the General Partner fails to duly observe, perform or
comply with any agreement with any Person or any term or condition of any
instrument, if such failure, individually or in the aggregate, shall have
resulted in the acceleration of the payment of Indebtedness with an aggregate
face amount which is equal to or exceeds $25,000,000; provided that this Section
7.01(j) shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness so long as such Indebtedness is paid in full when due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $75,000,000 shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Company or any Subsidiary to enforce any such
judgment;
(l) any member of the ERISA Group shall fail to pay when due an amount
which it shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Plan shall be filed under Title IV of ERISA by any member
of the ERISA Group, any plan administrator or any combination of the foregoing;
or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of, or to cause a trustee to be appointed to administer any Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Plan must be terminated; or there shall occur a
complete or partial withdrawal from , or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect
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to, one or more Multiemployer Plans which could cause one or more members of the
ERISA Group to incur a current payment obligation; and in each of the foregoing
instances such condition could reasonably be expected to result in a Material
Adverse Effect;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent, may, and upon the written
request of the Required Lenders shall, by written notice (including notice sent
by telecopy) to the Company (a "Notice of Default") take any or all of the
following actions, without prejudice to the rights of the Administrative Agent,
any Lender or other holder of any of the Obligations to enforce its claims
against the Company (provided that, if an Event of Default specified in Section
7.01(g) or Section 7.01(h) shall occur with respect to the Company or any
Subsidiary, the result of which would occur upon the giving of a Notice of
Default as specified in clauses (i) and (ii) below, shall occur automatically
without the giving of any Notice of Default): (i) declare the Total Commitment
terminated, whereupon the Commitments of the Lenders shall forthwith terminate
immediately and any accrued facility fees shall forthwith become due and payable
without any other notice of any kind; (ii) declare the principal of and any
accrued interest in respect of all Loans, and all the other Obligations owing
hereunder and under the other Loan Documents, to be, whereupon the same shall
become, forthwith due and payable without presentment, demand, notice of demand
or of dishonor and nonpayment, protest, notice of protest, notice of intent to
accelerate, declaration or notice of acceleration or any other notice of any
kind, all of which are hereby waived by the Company; and (iii) exercise any
rights or remedies under the Loan Documents.
ARTICLE VIII.
THE ADMINISTRATIVE AGENT
SECTION 8.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Administrative Agent by the terms of this
Agreement and such other Loan Documents, together with such other powers as are
reasonably incidental thereto. The Administrative Agent (which term as used in
this sentence and in Section 8.05 and the first sentence of Section 8.06 shall
include reference to its Affiliates and its Affiliates' officers, directors,
employees, attorneys, accountants, experts and agents): (a) shall have no duties
or responsibilities except those expressly set forth in the Loan Documents, and
shall not by reason of the Loan Documents be a trustee or fiduciary for any
Lender; (b) makes no representation or warranty to any Lender and shall not be
responsible to the Lenders for any recitals, statements, representations or
warranties contained in this Agreement, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement, or for the value, validity, effectiveness, genuineness, execution,
legality, enforceability or sufficiency of this Agreement, any other Loan
Document or any other document referred to or provided for herein or therein or
for any failure by the Company or any other Person (other than the
Administrative Agent) to perform any of its obligations hereunder or thereunder
or for the existence or value of, or the perfection or priority of any Lien
upon, any collateral security or the financial or other condition of the
Company, the Subsidiaries or any other obligor or guarantor; (c) except pursuant
to Section 8.07 shall not be required to initiate or conduct any litigation or
collection proceedings
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hereunder; and (d) shall not be responsible for any action taken or omitted to
be taken by it hereunder or under any other document or instrument referred to
or provided for herein or in connection herewith including its own ordinary
negligence, except for its own gross negligence, willful misconduct or unlawful
conduct. The Administrative Agent may employ agents, accountants, attorneys and
experts and shall not be responsible for the negligence or misconduct of any
such agents, accountants, attorneys or experts selected by it in good faith or
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such agents, accountants, attorneys or experts. The Administrative
Agent may deem and treat the payee named in any Note as the holder thereof for
all purposes hereof unless and until a written notice of the assignment or
transfer thereof permitted hereunder shall have been filed with the
Administrative Agent. The Administrative Agent is authorized to release any cash
collateral that is permitted to be released pursuant to the terms of this
Agreement.
SECTION 8.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telex, telecopier, telegram
or cable) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the Administrative Agent in good faith.
SECTION 8.03 Defaults; Events of Default. The Administrative Agent
shall not be deemed to have knowledge of the occurrence of a Default or an Event
of Default (other than the non-payment of principal of or interest on Loans or
of fees) unless the Administrative Agent has received notice from a Lender or
the Company specifying such Default or Event of Default and stating that such
notice is a "Notice of Default." In the event that the Administrative Agent
receives such a notice of the occurrence of a Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the Lenders. In the
event of a payment Default or Event of Default, the Administrative Agent shall
give each Lender prompt notice of each such payment Default or Event of Default.
SECTION 8.04 Rights as a Lender. With respect to its Commitments
and the Loans made by it, Wachovia (and any successor acting as Administrative
Agent), in its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not acting as the Administrative Agent, and the term "Lender" or "Lenders"
shall, unless the context otherwise indicates, include the Administrative Agent
in its individual capacity. Wachovia (and any successor acting as Administrative
Agent), and its Affiliates may (without having to account therefor to any
Lender) accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Company (and any of its Affiliates) as
if it were not acting as the Administrative Agent. Wachovia and its Affiliates
may accept fees and other consideration from the Company for services in
connection with this Agreement or otherwise without having to account for the
same to the Lenders.
SECTION 8.05 INDEMNIFICATION. THE LENDERS AGREE TO INDEMNIFY THE
ADMINISTRATIVE AGENT, THE SYNDICATION AGENT AND THE DOCUMENTATION AGENT RATABLY
IN ACCORDANCE WITH THEIR APPLICABLE PERCENTAGES FOR THE INDEMNITY MATTERS AS
DESCRIBED
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IN SECTION 9.03 TO THE EXTENT NOT INDEMNIFIED OR REIMBURSED BY THE COMPANY UNDER
SECTION 9.03, BUT WITHOUT LIMITING THE OBLIGATIONS OF THE COMPANY UNDER SAID
SECTION 9.03 AND FOR ANY AND ALL OTHER LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS
OF ANY KIND AND NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, INCURRED BY OR
ASSERTED AGAINST THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT OR THE
DOCUMENTATION AGENT IN ANY WAY RELATING TO OR ARISING OUT OF: (A) THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT CONTEMPLATED BY OR REFERRED TO HEREIN OR THE
TRANSACTIONS CONTEMPLATED HEREBY, BUT EXCLUDING, UNLESS A DEFAULT OR AN EVENT OF
DEFAULT HAS OCCURRED AND IS CONTINUING, NORMAL ADMINISTRATIVE COSTS AND EXPENSES
INCIDENT TO THE PERFORMANCE OF ITS AGENCY DUTIES, IF ANY, HEREUNDER OR (B) THE
ENFORCEMENT OF ANY OF THE TERMS OF THIS AGREEMENT OR OF ANY OTHER LOAN DOCUMENT;
WHETHER OR NOT ANY OF THE FOREGOING SPECIFIED IN THIS SECTION 8.05 ARISES FROM
THE SOLE OR CONCURRENT NEGLIGENCE OF THE ADMINISTRATIVE AGENT, THE SYNDICATION
AGENT OR THE DOCUMENTATION AGENT, AS THE CASE MAY BE; PROVIDED THAT NO LENDER
SHALL BE LIABLE FOR ANY OF THE FOREGOING TO THE EXTENT THEY ARISE FROM THE GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT OF THE ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT OR THE DOCUMENTATION AGENT.
SECTION 8.06 Non-Reliance on Agents and other Lenders. Each Lender
acknowledges and agrees that it has, independently and without reliance on the
Administrative Agent, the Syndication Agent, the Documentation Agent or any
other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Company and the Subsidiaries
and its decision to enter into this Agreement, and that it will, independently
and without reliance upon the Administrative Agent, the Syndication Agent, the
Documentation Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement.
Neither the Administrative Agent, the Syndication Agent nor the Documentation
Agent shall be required to keep itself informed as to the performance or
observance by the Company of this Agreement, the other Loan Documents or any
other document referred to or provided for herein or to inspect the properties
or books of the Company. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, neither the Administrative Agent, the
Syndication Agent nor the Documentation Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Company (or any
of its Affiliates) which may come into the possession of the Administrative
Agent, the Syndication Agent, the Documentation Agent or any of its respective
Affiliates. In this regard, each Lender acknowledges that Andrews & Kurth L.L.P.
is acting in this transaction as special counsel to the Administrative Agent
only. Each Lender will consult with its own legal counsel to the extent that it
deems necessary in connection with this Agreement and other Loan Documents and
the matters contemplated herein and therein.
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SECTION 8.07 Action by Administrative Agent. Except for action or
other matters expressly required of the Administrative Agent hereunder, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall (a) receive written instructions from
the Required Lenders (or all of the Lenders as expressly required by Section
9.02) specifying the action to be taken, and (b) be indemnified to its
satisfaction by the Lenders against any and all liability and expenses which may
be incurred by it by reason of taking or continuing to take any such action. The
instructions of the Required Lenders (or all of the Lenders as expressly
required by Section 9.02) and any action taken or failure to act pursuant
thereto by the Administrative Agent shall be binding on all of the Lenders. If a
Default or Event of Default has occurred and is continuing, the Administrative
Agent shall take such action with respect to such Default or Event of Default as
shall be directed by the Required Lenders (or all of the Lenders as required by
Section 9.02) in the written instructions (with indemnities) described in this
Section 8.07; provided that, unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders. In no event, however, shall the Administrative Agent
be required to take any action which exposes the Administrative Agent to
personal liability or which is contrary to this Agreement or applicable law.
SECTION 8.08 Resignation or Removal of Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Company, and the Administrative Agent may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent (so long as no Default or Event of Default
exists) with the prior written consent of the Company (which consent shall not
be unreasonably withheld). If no successor Administrative Agent shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent (so long as no Default or
Event of Default exists) with the prior written consent of the Company (which
consent shall not be unreasonably withheld). Upon the acceptance of such
appointment hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent, the provisions of this Article VIII
and Section 9.03 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent.
SECTION 8.09 Duties of Syndication Agent and Documentation Agent.
Notwithstanding the indemnity of the Syndication Agent and the Documentation
Agent contained in Section 8.05 and in Section 9.03, nothing contained in this
Agreement shall be construed to impose any obligation or duty whatsoever on any
Person named on the cover of this Agreement or elsewhere in this Agreement as
Syndication Agent, Documentation Agent, Joint Lead Arranger or Joint Book
Manager, other than those applicable to all Lenders as such.
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ARTICLE IX.
MISCELLANEOUS
SECTION 9.01 Notices, Etc.
(a) The Administrative Agent, any Lender or the holder of any of the
Obligations, giving consent or notice or making any request of the Company
provided for hereunder, shall notify each Lender (in the case of the
Administrative Agent) and the Administrative Agent (in the case of a Lender)
thereof. In the event that the holder of any Note or any of the Obligations
(including any Lender) shall transfer such Note or Obligations, it shall
promptly so advise the Administrative Agent which shall be entitled to assume
conclusively that no transfer of any Note or any of the Obligations has been
made by any holder (including any Lender) unless and until the Administrative
Agent receives written notice to the contrary.
(b) Except with respect to notices and other communications expressly
permitted to be given by telephone, all notices, consents, requests, approvals,
demands and other communications (collectively "Communications") provided for
herein shall be in writing (including facsimile Communications) and mailed,
telecopied or delivered:
(i) if to the Company, to it at:
500 Dallas, Suite 1000
Houston, Texas 77002
Attention: C. Park Shaper
Telecopy No: (713) 369-9499;
(ii) if to the Administrative Agent, to it at:
c/o Wachovia Securities, Inc.
1001 Fannin Street, Suite 2255
Houston, Texas 77002
Attention: Russell Clingman
Telecopy No.: (713)-650-6354;
(iii) if to any other Lender, to it at its address (or telecopy
number) set forth in the Administrative Questionnaire delivered by such
Person to the Administrative Agent or in the Assignment and Acceptance
executed by such Person;
or, in the case of any party hereto, such other address or telecopy number as
such party may hereafter specify for such purpose by notice to the other
parties.
(c) Communications to the Lenders hereunder may be delivered or
furnished by electronic communications pursuant to procedures approved by the
Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Article II unless otherwise agreed by the Administrative Agent and
the applicable Lender. The Administrative Agent or the Company may, in its
discretion, agree to accept notices and other communications to it
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hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices
or communications.
(d) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02 Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising, and no course of dealing with
respect to, any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No notice to or demand on the Company in any case shall entitle
the Company to any other or further notice or demand in similar or other
circumstances. No waiver of any provision of this Agreement or consent to any
departure therefrom shall in any event be effective unless the same shall be
permitted by Section 9.02(b), and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan shall not be
construed as a waiver of any Default or Event of Default, regardless of whether
the Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) No provision of this Agreement or any other Loan Document may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Company and the Required Lenders or by the Company
and the Administrative Agent with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or reduce the rate of interest thereon, or reduce any fees payable hereunder or
under the Fee Letter without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan (including any payment required pursuant to Section 2.10(b)), or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, or (v)
change any of the provisions of this Section 9.02(b), Section 9.05 or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent hereunder without the prior written consent of the Administrative Agent.
SECTION 9.03 Payment of Expenses, Indemnities, etc. The
Company agrees:
(a) to pay all reasonable expenses of the Administrative Agent in the
administration (including advice of counsel as to the rights and duties of the
Administrative
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Agent and the Lenders with respect thereto) of, and in connection with the
negotiation, syndication, investigation, preparation, execution and delivery of,
recording or filing of, preservation of rights under, enforcement of, and
refinancing, renegotiation or restructuring of, the Loan Documents and any
amendment, waiver or consent relating thereto (including, without limitation,
travel, photocopy, mailing, courier, telephone and other similar expenses of the
Administrative Agent, the reasonable fees and disbursements of counsel and other
outside consultants for the Administrative Agent and, in the case of enforcement
of this Agreement and the other Loan Documents, the reasonable fees and
disbursements of counsel, including the allocated costs of inside counsel for
the Administrative Agent and each Lender); and promptly reimburse the
Administrative Agent for all amounts expended, advanced or incurred by the
Administrative Agent or the Lenders to satisfy any obligation of the Company
under this Agreement.
(b) TO INDEMNIFY THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE
DOCUMENTATION AGENT AND EACH LENDER AND EACH OF THEIR AFFILIATES AND EACH OF
THEIR OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, ATTORNEYS,
ACCOUNTANTS AND EXPERTS ("INDEMNIFIED PARTIES") FROM, HOLD EACH OF THEM HARMLESS
AGAINST AND PROMPTLY UPON DEMAND PAY OR REIMBURSE EACH OF THEM FOR, THE
INDEMNITY MATTERS WHICH MAY BE REASONABLY INCURRED BY OR ASSERTED AGAINST OR
INVOLVE ANY OF THEM (WHETHER OR NOT ANY OF THEM IS DESIGNATED A PARTY THERETO)
AS A RESULT OF, ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY ACTUAL OR
PROPOSED USE BY THE COMPANY OF THE PROCEEDS OF ANY OF THE LOANS, (II) THE
EXECUTION, DELIVERY AND PERFORMANCE OF THE LOAN DOCUMENTS, (III) THE OPERATIONS
OF THE BUSINESS OF THE COMPANY AND THE SUBSIDIARIES, (IV) THE FAILURE OF THE
COMPANY OR ANY SUBSIDIARY TO COMPLY WITH THE TERMS OF THIS AGREEMENT, OR WITH
ANY REQUIREMENT OF LAW, (V) ANY INACCURACY OF ANY REPRESENTATION OR ANY BREACH
OF ANY WARRANTY OF THE COMPANY SET FORTH IN ANY OF THE LOAN DOCUMENTS OR (VI)
ANY OTHER ASPECT OF THE LOAN DOCUMENTS, INCLUDING THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL AND ALL OTHER EXPENSES INCURRED IN CONNECTION WITH
INVESTIGATING, DEFENDING OR PREPARING TO DEFEND ANY SUCH ACTION, SUIT,
PROCEEDING (INCLUDING ANY INVESTIGATIONS, LITIGATION OR INQUIRIES) OR CLAIM AND
INCLUDING ALL INDEMNITY MATTERS ARISING BY REASON OF THE ORDINARY NEGLIGENCE OF
ANY INDEMNIFIED PARTY, BUT EXCLUDING ALL INDEMNITY MATTERS ARISING SOLELY BY
REASON OF CLAIMS BETWEEN THE LENDERS OR ANY LENDER AND THE ADMINISTRATIVE AGENT,
THE SYNDICATION AGENT, OR THE DOCUMENTATION AGENT OR A LENDER'S SHAREHOLDERS
AGAINST THE ADMINISTRATIVE AGENT OR LENDER OR BY REASON OF THE GROSS NEGLIGENCE,
WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT ON THE PART OF THE INDEMNIFIED PARTY
SEEKING INDEMNIFICATION.
(c) TO INDEMNIFY AND HOLD HARMLESS FROM TIME TO TIME THE INDEMNIFIED
PARTIES FROM AND AGAINST ANY AND ALL LOSSES,
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CLAIMS, COST RECOVERY ACTIONS, ADMINISTRATIVE ORDERS OR PROCEEDINGS, DAMAGES AND
LIABILITIES TO WHICH ANY SUCH PERSON MAY BECOME SUBJECT (I) UNDER ANY
ENVIRONMENTAL LAW APPLICABLE TO THE COMPANY OR ANY SUBSIDIARY OR ANY OF THEIR
PROPERTIES OR ASSETS, INCLUDING THE TREATMENT OR DISPOSAL OF HAZARDOUS MATERIALS
ON ANY OF THEIR PROPERTIES OR ASSETS, (II) AS A RESULT OF THE BREACH OR
NON-COMPLIANCE BY THE COMPANY OR ANY SUBSIDIARY WITH ANY ENVIRONMENTAL LAW
APPLICABLE TO THE COMPANY OR ANY SUBSIDIARY, (III) DUE TO PAST OWNERSHIP BY THE
COMPANY OR ANY SUBSIDIARY OF ANY OF THEIR PROPERTIES OR ASSETS OR PAST ACTIVITY
ON ANY OF THEIR PROPERTIES OR ASSETS WHICH, THOUGH LAWFUL AND FULLY PERMISSIBLE
AT THE TIME, COULD RESULT IN PRESENT LIABILITY, (IV) THE PRESENCE, USE, RELEASE,
STORAGE, TREATMENT OR DISPOSAL OF HAZARDOUS MATERIALS ON OR AT ANY OF THE
PROPERTIES OWNED OR OPERATED BY THE COMPANY OR ANY SUBSIDIARY, OR (V) ANY OTHER
ENVIRONMENTAL, HEALTH OR SAFETY CONDITION IN CONNECTION WITH THE LOAN DOCUMENTS.
(d) No Indemnified Party may settle any claim to be indemnified
without the consent of the indemnitor, such consent not to be unreasonably
withheld; provided, that the indemnitor may not reasonably withhold consent to
any settlement that an Indemnified Party proposes, if the indemnitor does not
have the financial ability to pay all its obligations outstanding and asserted
against the indemnitor at that time, including the maximum potential claims
against the Indemnified Party to be indemnified pursuant to this Section 9.03.
(e) In the case of any indemnification hereunder, the Administrative
Agent or Lender, as appropriate shall give notice to the Company of any such
claim or demand being made against the Indemnified Party and the Company shall
have the non-exclusive right to join in the defense against any such claim or
demand; provided that if the Company provides a defense, the Indemnified Party
shall bear its own cost of defense unless there is a conflict between the
Company and such Indemnified Party.
(f) THE FOREGOING INDEMNITIES SHALL EXTEND TO THE INDEMNIFIED PARTIES
NOTWITHSTANDING THE SOLE OR CONCURRENT NEGLIGENCE OF EVERY KIND OR CHARACTER
WHATSOEVER, WHETHER ACTIVE OR PASSIVE, WHETHER AN AFFIRMATIVE ACT OR AN
OMISSION, INCLUDING, ALL TYPES OF NEGLIGENT CONDUCT IDENTIFIED IN THE
RESTATEMENT (SECOND) OF TORTS OF ONE OR MORE OF THE INDEMNIFIED PARTIES OR BY
REASON OF STRICT LIABILITY IMPOSED WITHOUT FAULT ON ANY ONE OR MORE OF THE
INDEMNIFIED PARTIES. TO THE EXTENT THAT AN INDEMNIFIED PARTY IS FOUND TO HAVE
COMMITTED AN ACT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR ENGAGED IN
UNLAWFUL CONDUCT, THIS CONTRACTUAL OBLIGATION OF INDEMNIFICATION SHALL CONTINUE
BUT SHALL ONLY EXTEND TO THE PORTION OF THE CLAIM THAT IS DEEMED TO HAVE
OCCURRED BY REASON OF EVENTS OTHER THAN THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT
OR UNLAWFUL CONDUCT OF THE INDEMNIFIED PARTY.
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(g) The Company's obligations under this Section 9.03 shall survive
any termination of this Agreement and the payment of the Loans and shall
continue thereafter in full force and effect, for a period of six years.
(h) To the extent that the Company fails to pay any amount required to
be paid by it to the Administrative Agent under this Section 9.03, each Lender
severally agrees to pay to the Administrative Agent such Lender's Applicable
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent in its capacity as such.
(i) The Company shall pay any amounts due under this Section 9.03
within thirty (30) days of the receipt by the Company of notice of the amount
due.
SECTION 9.04 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
SECTION 9.05 Assignments and Participations.
(a) The Company may not assign its rights or obligations hereunder or
under the Notes without the prior consent of all of the Lenders and the
Administrative Agent.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Company and the Administrative Agent must give their prior written consent
to such assignment (which consent shall not be unreasonably withheld), (ii)
except in the case of an assignment to a Lender or an Affiliate of a Lender or
an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Company and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 for each such assignment, and (v) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire; provided further that any consent of the
Company otherwise required under this Section 9.05(b) shall not be required if
an Event of Default has occurred and is continuing. Upon acceptance and
recording pursuant to Section 9.05(d), from and after the effective date
specified in each Assignment and Acceptance,
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the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.15,
2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section 9.05(e).
(c) The Administrative Agent, acting for this purpose as an agent of
the Company, shall maintain at one of its offices in Charlotte, North Carolina a
copy of each Assignment and Acceptance delivered to 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 pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Company, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Company
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in Section 9.05(b)
and any written consent to such assignment required by Section 9.05(b), the
Administrative Agent shall accept such Assignment and Acceptance and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(e) Any Lender may, without the consent of the Company or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Company, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to Section 9.05(f), the Company agrees that each Participant shall be
entitled to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
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Section 9.05(b), and be indemnified under Section 9.03 as if it were a Lender.
In addition, each agreement creating any participation must include an agreement
by the Participant to be bound by the provisions of Section 9.12.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Company's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.17 unless the Company
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Company, to comply with Section 2.17(e) as though
it were a Lender.
(g) The Lenders may furnish any information concerning the Company in
the possession of the Lenders from time to time to assignees and Participants
(including prospective assignees and participants); provided that, such Persons
agree to be bound by the provisions of Section 9.12 hereof.
(h) Notwithstanding anything in this Section 9.05 to the contrary, any
Lender may assign and pledge its Notes to any Federal Reserve Bank or the United
States Treasury as collateral security pursuant to Regulation A and any
operating circular issued by such Federal Reserve System and/or such Federal
Reserve Bank. No such assignment and/or pledge shall release the assigning
and/or pledging Lender from its obligations hereunder.
(i) Notwithstanding any other provisions of this Section 9.05, no
transfer or assignment of the interests or obligations of any Lender or any
grant of participations therein shall be permitted if such transfer, assignment
or grant would require the Company to file a registration statement with the SEC
or to qualify the Loans under the "Blue Sky" laws of any state.
SECTION 9.06 Survival; Reinstatement. (a) All covenants, agreements,
representations and warranties made by the Company herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or Event of Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid so long as the Commitments have
not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03
and Article VIII shall survive and remain in full force and effect regardless of
the consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or the termination of
this Agreement or any provision hereof.
(b) To the extent that any payments on the Obligations are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, debtor in possession, receiver or other
Person under any bankruptcy law, common law or
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equitable cause, then to such extent, the Obligations so satisfied shall be
revived and continue as if such payment or proceeds had not been received.
SECTION 9.07 Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and the Fee Letter constitute the entire contract among
the parties hereto relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof (including the Information Memorandum). Except as provided
in Section 3.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.08 Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.09 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Company against any of and all the
Obligations now or hereafter existing under this Agreement and the other Loan
Documents held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such Obligations may be
unmatured. The rights of each Lender under this Section 9.09 are in addition to
other rights and remedies (including other rights of setoff) which such Lender
may have.
SECTION 9.10 Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and governed by the laws of the State of New York.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY AND ASSETS, UNCONDITIONALLY, THE NON-
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EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION
OR PROCEEDING. THE COMPANY HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS
CT CORPORATION SYSTEM, INC., WITH OFFICES ON THE DATE HEREOF AT 111 8TH AVENUE,
NEW YORK, NEW YORK 10011, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE AND
ACCEPT FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND
ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY
SUCH ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT
SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE COMPANY AGREES TO DESIGNATE A
NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK, NEW YORK ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE ADMINISTRATIVE AGENT. THE COMPANY
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 ITS ADDRESS
PROVIDED IN SECTION 9.01, SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER
SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT
OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
(c) THE COMPANY 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 AGREEMENT BROUGHT IN THE
COURTS REFERRED TO IN CLAUSE (b) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES, TO
THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO PLEAD OR CLAIM, AND
AGREES NOT TO PLEAD OR CLAIM, THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(d) EACH PARTY HERETO HEREBY (i) IRREVOCABLY WAIVES, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (ii) CERTIFIES THAT NO PARTY
HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (iii)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 9.10.
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SECTION 9.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (a) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12 Confidentiality. Each of the Administrative Agent and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates,
directors, officers and employees and to its agents, including accountants,
legal counsel and other advisors who have been informed of the confidential
nature of the information provided, (b) to the extent requested by any
regulatory authority, including the National Association of Insurance
Commissioners or any similar organization, or any nationally recognized rating
agency that requires access to information about a Lender's investment
portfolio, (c) to the extent a Lender reasonably believes it is required by
applicable laws or regulations or by any subpoena or similar legal process (and
such Lender will provide prompt notice thereof to the Company), (d) to any other
party to this Agreement, (e) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an understanding with such Person that such Person will comply with
this Section 9.12, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Company or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section 9.12 or (ii) becomes available to the Administrative Agent or any
Lender from a source other than the Company (unless such source is actually
known by the individual receiving the information to be bound by a
confidentiality agreement or other legal or contractual obligation of
confidentiality with respect to such information). For the purposes of this
Section 9.12, "Information" means all information received from the Company
relating to the Company or its business, other than any such information that is
known to a Lender, publicly known or otherwise available to the Administrative
Agent or any Lender other than through disclosure (a) by the Company, or (b)
from a source actually known to a Lender to be bound by a confidentiality
agreement or other legal or contractual obligation of confidentiality with
respect to such information. Any Person required to maintain the confidentiality
of Information as provided in this Section 9.12 shall be considered to have
complied with its obligation to do so if such Person maintains the
confidentiality of such Information in accordance with procedures adopted in
good faith to protect confidential Information of third parties delivered to a
lender.
SECTION 9.13 Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law
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(collectively the "Charges"), shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by the
Lender holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all Charges payable in
respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan
but were not payable as a result of the operation of this Section 9.13 shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received
by such Lender.
SECTION 9.14 EXCULPATION PROVISIONS. EACH OF THE PARTIES HERETO
SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS AGREEMENT, THE NOTES AND (IN
THE CASE OF THE COMPANY, THE ADMINISTRATIVE AGENT AND THE SYNDICATION AGENT) THE
FEE LETTER AND AGREES THAT IT IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS
OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT HAS IN FACT READ THIS
AGREEMENT AND IS FULLY INFORMED AND HAS FULL NOTICE AND KNOWLEDGE OF THE TERMS,
CONDITIONS AND EFFECTS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS; THAT IT
HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE
NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS; AND HAS RECEIVED THE ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS; AND THAT IT RECOGNIZES THAT CERTAIN OF
THE TERMS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS RESULT IN ONE PARTY
ASSUMING THE LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING
THE OTHER PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO
AGREES AND COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF
ANY EXCULPATORY PROVISION OF THIS AGREEMENT ON THE BASIS THAT THE PARTY HAD NO
NOTICE OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT
"CONSPICUOUS."
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The parties hereto have caused this Agreement to be duly executed as of
the date and year first above written.
KINDER MORGAN ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Morgan G.P., Inc.,
its General Partner
By: Kinder Morgan Management, LLC,
its Delegate
By: /s/ C. Park Shaper
---------------------------------------
C. Park Shaper
Vice President, Chief Financial Officer
` and Treasurer
LENDERS:
WACHOVIA BANK NATIONAL
ASSOCIATION, as the Administrative
Agent and as a Lender
By: /s/ Russell T. Clingman
-------------------------------
Russell T. Clingman
Director
JPMORGAN CHASE BANK,
as Syndication Agent and as a Lender
By: /s/ Steven Wood
-------------------------------
Steven Wood
Vice President
CITIBANK, N.A.,
as Documentation Agent and as a Lender
By: /s/ Michael W. Nepveux
-------------------------------
Michael W. Nepveux
Attorney-in-Fact
COMMERZBANK AKTIENGLESELLSCHAFT,
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Harry Yergey
-------------------------------
Harry Yergey
Senior Vice President
By: /s/ David Suttles
-------------------------------
David Suttles
Vice President
ROYAL BANK OF CANADA
By: /s/ Lorne Gartner
-------------------------------
Lorne Gartner
Vice President
SUNTRUST BANK, ATLANTA
By: /s/ John A. Fields, Jr.
-------------------------------
John A. Fields, Jr.
Managing Director
BANK ONE, N.A.
(MAIN OFFICE CHICAGO)
By: /s/ Jeanie Gonzalez
-------------------------------
Jeanie Gonzalez
Director
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Olivier Audemard
-------------------------------
Olivier Audemard
Senior Vice President
THE ROYAL BANK OF SCOTLAND plc
By: /s/ Keith Johnson
-------------------------------
Keith Johnson
Senior Vice President
BMO NESBITT BURNS FINANCING, INC.
By: /s/ Thomas H. Peer
-------------------------------
Thomas H. Peer
Vice President
BARCLAYS BANK PLC
By: /s/ Nicholas A. Bell
-------------------------------
Nicholas A. Bell
Director
Loan Transaction Management
THE BANK OF NOVA SCOTIA
By: /s/ M. D. Smith
-------------------------------
M. D. Smith
Agent, Operations
SOUTHWEST BANK OF TEXAS
By: /s/ W. Bryan Chapman
-------------------------------
W. Bryan Chapman
Vice President, Energy Lending
WELLS FARGO BANK TEXAS, N.A.
By: /s/ Paul Squires
-------------------------------
Paul Squires
Vice President
BANK OF TOKYO - MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ Kelton Glasscock
-------------------------------
Kelton Glasscock
Vice President & Manager
SCHEDULE 1.01
COMMITMENTS
Wachovia Bank National Association $ 60,000,000.00
JPMorgan Chase Bank $ 60,000,000.00
Citibank, N.A. $ 60,000,000.00
Commerzbank Aktiengleseuschaft, Atlanta Agency $ 37,200,000.00
Royal Bank of Canada $ 30,000,000.00
SunTrust Bank, Atlanta $ 30,000,000.00
Bank One, N.A. $ 30,000,000.00
Credit Lyonnais New York Branch $ 30,000,000.00
The Royal Bank of Scotland plc $ 30,000,000.00
BMO Nesbitt Burns Financing, Inc. $ 30,000,000.00
Barclays Bank PLC $ 30,000,000.00
The Bank of Nova Scotia $ 30,000,000.00
Southwest Bank of Texas $ 8,181,818.18
Wells Fargo Bank Texas, N.A. $ 15,000,000.00
Bank of Tokyo-Mitsubishi, Ltd., Houston Agency $ 13,636,363.64
---------------
TOTAL $494,018,818.82
===============