CREDIT AGREEMENT
Dated as of February 14, 1997
Among
XXXXXX XXXXXX OPERATING L.P. "B"
as Borrower,
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Agent,
and
THE LENDERS SIGNATORY HERETO
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Accounting Matters
Section 1.01 Terms Defined Above.............. 1
Section 1.02 Certain Defined Terms............ 1
Section 1.03 Accounting Terms and
Determinations................... 16
ARTICLE II
Commitments
Section 2.01 Loans and Letter of Credit....... 16
Section 2.02 Borrowings, Continuations,
Conversions and Letter of
Credit........................... 17
Section 2.03 Changes of Commitments........... 18
Section 2.04 Fees............................. 19
Section 2.05 Several Obligations.............. 19
Section 2.06 Notes............................ 20
Section 2.07 Prepayments of Revolving
Credit Loans..................... 20
Section 2.08 Assumption of Risks.............. 20
Section 2.09 Obligation to Reimburse and to
Prepay........................... 21
Section 2.10 Lending Offices.................. 23
Section 2.11 Telecopied Drawings.............. 23
ARTICLE III
Payments of Principal and Interest
Section 3.01 Repayment of Loans............... 24
Section 3.02 Interest......................... 24
ARTICLE IV
Payments; Pro Rata Treatment; Computations; Etc.
Section 4.01 Payments......................... 25
Section 4.02 Pro Rata Treatment............... 25
Section 4.03 Computations..................... 25
Section 4.04 Non-receipt of Funds by the
Agent............................ 26
Section 4.05 Set-off, Sharing of Payments,
Etc.............................. 26
Section 4.06 Taxes............................ 00
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XXXXXXX X
Xxxxxxx Xxxxxxxx
Section 5.01 Additional Costs................. 30
Section 5.02 Limitation on LIBOR Loans........ 32
Section 5.03 Illegality....................... 32
Section 5.04 Base Rate Loans Pursuant to
Sections 5.01, 5.02 and 5.03................... 32
Section 5.05 Compensation..................... 32
ARTICLE VI
Conditions Precedent
Section 6.01 Initial Funding.................. 33
Section 6.02 Initial and Subsequent Loans
and Letter of Credit........................... 35
ARTICLE VII
Representations and Warranties
Section 7.01 Corporate Existence.............. 35
Section 7.02 Financial Condition.............. 36
Section 7.03 Litigation....................... 36
Section 7.04 No Breach........................ 36
Section 7.05 Authority........................ 36
Section 7.06 Approvals........................ 37
Section 7.07 Use of Loans..................... 37
Section 7.08 ERISA............................ 37
Section 7.09 Taxes............................ 38
Section 7.10 Titles, etc...................... 38
Section 7.11 No Material Misstatements........ 39
Section 7.12 Investment Company Act........... 39
Section 7.13 Public Utility Holding Company
Act.............................. 39
Section 7.14 Subsidiaries..................... 39
Section 7.15 Location of Business and
Offices.......................... 39
Section 7.16 Defaults......................... 39
Section 7.17 Environmental Matters............ 40
Section 7.18 Compliance with the Law.......... 41
Section 7.19 Insurance........................ 41
Section 7.20 Hedging Agreements............... 41
Section 7.21 Restriction on Liens............. 41
Section 7.22 Material Agreements.............. 42
Section 7.23 Partnership Agreement............ 42
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ARTICLE VIII
Affirmative Covenants
Section 8.01 Financial Statements............. 42
Section 8.02 Litigation....................... 44
Section 8.03 Maintenance, Etc................. 44
Section 8.04 Environmental Matters............ 45
Section 8.05 Further Assurances............... 45
Section 8.06 Performance of Obligations....... 46
Section 8.07 ERISA Information and
Compliance....................... 46
Section 8.08 Replacement of Wachovia Bank
of Georgia, N.A................................ 46
ARTICLE IX
Negative Covenants
Section 9.01 Debt............................. 46
Section 9.02 Liens............................ 47
Section 9.03 Investments, Loans and Advances.. 47
Section 9.04 Dividends, Distributions and
Redemptions...................... 48
Section 9.05 Sales and Leasebacks............. 48
Section 9.06 Nature of Business............... 48
Section 9.07 Limitation on Leases............. 48
Section 9.08 Mergers, Etc..................... 49
Section 9.09 Proceeds of Notes................ 49
Section 9.10 ERISA Compliance................. 49
Section 9.11 Sale or Discount of Receivables.. 50
Section 9.12 Current Ratio.................... 50
Section 9.13 Debt Service Coverage Ratio...... 50
Section 9.14 Sale of Properties............... 50
Section 9.15 Environmental Matters............ 51
Section 9.16 Transactions with Affiliates..... 51
Section 9.17 Subsidiaries..................... 51
Section 9.18 Negative Pledge Agreements....... 51
Section 9.19 Partnership Agreement............ 51
ARTICLE X
Events of Default; Remedies
Section 10.01 Events of Default............... 51
Section 10.02 Remedies........................ 53
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ARTICLE XI
The Agent
Section 11.01 Appointment, Powers and
Immunities...................... 54
Section 11.02 Reliance by Agent............... 55
Section 11.03 Defaults........................ 55
Section 11.04 Rights as a Lender.............. 55
Section 11.05 Indemnification................. 55
Section 11.06 Non-Reliance on Agent and
other Lenders................... 56
Section 11.07 Action by Agent................. 56
Section 11.08 Resignation or Removal of
Agent........................... 57
ARTICLE XII
Miscellaneous
Section 12.01 Waiver.......................... 57
Section 12.02 Notices......................... 57
Section 12.03 Payment of Expenses,
Indemnities, etc................ 58
Section 12.04 Amendments, Etc................. 60
Section 12.05 Successors and Assigns.......... 60
Section 12.06 Assignments and Participations.. 60
Section 12.07 Invalidity...................... 62
Section 12.08 Counterparts.................... 62
Section 12.09 References...................... 62
Section 12.10 Survival........................ 62
Section 12.11 Captions........................ 62
Section 12.12 No Oral Agreements.............. 63
Section 12.13 Governing Law; Submission to
Jurisdiction.................... 63
Section 12.14 Interest........................ 64
Section 12.15 Confidentiality................. 65
Section 12.16 Effectiveness................... 65
Section 12.17 Exculpation Provisions.......... 65
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Annex I - List of Revolving Credit Commitments
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Replacement Term Note
Exhibit B - Form of Borrowing, Continuation and Conversion Request
Exhibit C - Form of Compliance Certificate
Exhibit D-1 - Form of Legal Opinion of Xxxxxxxx & Xxxxxx
Exhibit D-2 - Form of Legal Opinion of Illinois Counsel
Exhibit D-3 - Form of Legal Opinion of Wyoming Counsel
Exhibit E - List of Security Instruments
Exhibit F - Form of Assignment Agreement
Exhibit G-1 - Form of Replacement Letter of Credit
Schedule 7.02 - Liabilities
Schedule 7.03 - Litigation
Schedule 7.09 - Taxes
Schedule 7.10 - Titles, etc.
Schedule 7.14 - Subsidiaries and Partnerships
Schedule 7.17 - Environmental Matters
Schedule 7.19 - Insurance
Schedule 7.20 - Hedging Agreements
Schedule 7.22 - Material Agreements
Schedule 9.01 - Debt
Schedule 9.02 - Liens
Schedule 9.03 - Investments, Loans and Advances
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THIS CREDIT AGREEMENT dated as of February 14, 1997 is among: XXXXXX
XXXXXX OPERATING L.P. "B" (formerly known as Enron Transportation Services,
L.P.), a limited partnership formed under the laws of the State of Delaware (the
"Borrower"); each of the lenders that is a signatory hereto or which becomes a
signatory hereto as provided in Section 12.06 (individually, together with its
successors and assigns, a "Lender" and, collectively, the "Lenders"); and FIRST
UNION NATIONAL BANK OF NORTH CAROLINA, a national banking association (in its
individual capacity, "First Union"), as agent for the Lenders (in such capacity,
together with its successors in such capacity, the "Agent").
R E C I T A L S
A. The Borrower has requested that the Lenders
extend and rearrange all of the Prior Debt (as hereafter
defined) and provide certain loans to and extensions of
credit on behalf of the Borrower; and
B. The Lenders have agreed to make such loans and
extensions of credit subject to the terms and conditions
of this Agreement.
C. In consideration of the mutual covenants and
agreements herein contained and of the loans, extensions
of credit and commitments hereinafter referred to, the
parties hereto agree as follows:
ARTICLE I
Definitions and Accounting Matters
Section 1.01 Terms Defined Above. As used in this Agreement, the terms
"Agent," "Borrower," "First Union," "Lender" and "Lenders" shall have the
meanings indicated above.
Section 1.02 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all terms defined in this Article I or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"A Drawing" shall have the meaning assigned
in the Replacement Letter of Credit.
"Additional Costs" shall have the meaning assigned such term in Section
5.01(a).
"Advance" means a Term Loan advance made by First Union to the Borrower
as provided in Section 2.09(b) hereof.
"Affected Loans" shall have the meaning
assigned such term in Section 5.04.
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"Affiliate" of any Person shall mean (i) any Person directly or
indirectly controlled by, controlling or under common control with such
first Person, (ii) any director or officer of such first Person or of any
Person referred to in clause (i) above and (iii) if any Person in clause
(i) above is an individual, any member of the immediate family (including
parents, spouse and children) of such individual and any trust whose
principal beneficiary is such individual or one or more members of such
immediate family and any Person who is controlled by any such member or
trust. For purposes of this definition, any Person which owns directly or
indirectly 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" shall mean this Credit Agreement, as the same may from time
to time be amended or supplemented.
"Aggregate Commitments" at any time shall equal the sum of the
Aggregate Revolving Credit Commitments and the Aggregate LC Commitments.
"Aggregate Revolving Credit Commitments" at any time shall equal
$15,875,000, as the same may be reduced in accordance with Section 2.03
hereof.
"Aggregate LC Commitments" at any time shall
equal the sum of the LC Commitments of the
Lenders.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the lending office of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan on the signature pages hereof or
such other offices of such Lender (or of an Affiliate of such Lender) as
such Lender may from time to time specify to the Agent and the Borrower as
the office by which its Loans of such Type are to be made and maintained.
"Applicable Margin" shall mean (i) 0.50% per annum with respect to Base
Rate Loans; and (ii) 2.25% per annum with respect to LIBOR Loans, in both
cases increasing by an additional 0.25% per annum on each Quarterly Date
commencing June 30, 1997.
"Assignment" shall have the meaning assigned
such term in Section 12.06(b).
"Base Rate" shall mean, with respect to any Base Rate Loan, for any
day, the higher of (i) the Federal Funds Rate for any such day plus 1/2 of
1% or (ii) the Prime Rate for such day. Each change in any interest rate
provided for
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herein based upon the Base Rate resulting from a change in the Base Rate
shall take effect at the time of such change in the Base Rate.
"Base Rate Loans" shall mean Loans that bear interest at rates based
upon the Base Rate.
"Bonds" shall mean the Port Facility Refunding Revenue Bonds (Enron
Transportation Services, L.P. Project) Series 1994 in the aggregate
principal amount of $23,700,000, as issued by the Xxxxxxx-Union Counties
Regional Port District pursuant to the terms of the Indenture.
"Business Day" shall mean any day other than a day on which commercial
banks are authorized or required to close in Charlotte, North Carolina and,
where such term is used in the definition of "Quarterly Date" or if such
day relates to a borrowing or continuation of, a payment or prepayment of
principal of or interest on, or a conversion of or into, or the Interest
Period for, a LIBOR Loan or a notice by the Borrower with respect to any
such borrowing or continuation, payment, prepayment, conversion or Interest
Period, any day which is also a day on which dealings in Dollar deposits
are carried out in the London interbank market.
"Closing Date" shall mean February 14, 1997.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time and any successor statute.
"Commitment" at any time for any Lender shall equal the sum of its
Revolving Credit Commitment and its LC Commitment.
"Consolidated Net Income" shall mean with respect to the Borrower and
its Consolidated Subsidiaries, for any period, the aggregate of the net
income (or loss) of the Borrower and its Consolidated Subsidiaries after
allowances for taxes for such period, determined on a consolidated basis in
accordance with GAAP; provided that there shall be excluded from such net
income (to the extent otherwise included therein) the following: (i) the
net income of any Person in which the Borrower or any Consolidated
Subsidiary has an interest (which interest does not cause the net income of
such other Person to be consolidated with the net income of the Borrower
and its Consolidated Subsidiaries in accordance with GAAP), except to the
extent of the amount of dividends or distributions actually paid in such
period by such other Person to the Borrower or to a Consolidated
Subsidiary, as the case may be; (ii) the net income (but not loss) of any
Consolidated Subsidiary to the extent that the declaration or payment of
dividends or similar distributions or transfers or loans by that
Consolidated Subsidiary is not at the time permitted by operation of the
terms of its charter or any agreement, instrument or Governmental
Requirement applicable to such Consolidated Subsidiary, or is otherwise
restricted or prohibited in each case determined in
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accordance with GAAP; (iii) the net income (or loss) of any Person acquired
in a pooling-of-interests transaction for any period prior to the date of
such transaction; (iv) any extraordinary gains or losses, including gains
or losses attributable to Property sales not in the ordinary course of
business; and (v) the cumulative effect of a change in accounting
principles and any gains or losses attributable to writeups or writedowns
of assets.
"Consolidated Subsidiaries" shall mean each Subsidiary of the Borrower
(whether now existing or hereafter created or acquired) the financial
statements of which shall be (or should have been) consolidated with the
financial statements of the Borrower in accordance with GAAP.
"Xxxx Terminal" shall mean that portion of the Mortgaged Property
located in Xxxxxxx and Xxxxxxxx Counties, Illinois, and known as the Xxxx
Terminal.
"Debt" shall mean, for any Person the sum of the following (without
duplication): (i) all obligations of such Person for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments
(including principal, interest, fees and charges); (ii) all obligations of
such Person (whether contingent or otherwise) in respect of bankers'
acceptances, letters of credit, surety or other bonds and similar
instruments; (iii) all obligations of such Person to pay the deferred
purchase price of Property or services (other than for borrowed money);
(iv) all obligations under leases which shall have been, or should have
been, in accordance with GAAP, recorded as capital leases in respect of
which such Person is liable (whether contingent or otherwise); (v) all
obligations under leases which require such Person or its Affiliate to make
payments over the term of such lease, including payments at termination,
which are substantially equal to at least eighty percent (80%) of the
purchase price of the Property subject to such lease plus interest as an
imputed rate of interest; (vi) all Debt (as described in the other clauses
of this definition) and other obligations of others secured by a Lien on
any asset of such Person, whether or not such Debt is assumed by such
Person; (vii) all Debt (as described in the other clauses of this
definition) and other obligations of others guaranteed by such Person or in
which such Person otherwise assures a creditor against loss of the debtor
or obligations of others; (viii) all obligations or undertakings of such
Person to maintain or cause to be maintained the financial position or
covenants of others or to purchase the Debt or Property of others; (ix)
obligations to deliver goods or services in consideration of advance
payments ; (x) obligations to pay for goods or services whether or not such
goods or services are actually received or utilized by such Person; (xi)
any capital stock of such Person in which such Person has a mandatory
obligation to redeem such stock; (xii) any Debt of a Special Entity for
which such Person is liable either by agreement or because of a
Governmental Requirement; and (xiv) all obligations of such Person under
Hedging Agreements.
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"Default" shall mean an Event of Default or an event which with notice
or lapse of time or both would become an Event of Default.
"Dollars" and "$" shall mean lawful money of
the United States of America.
"EBITDA" shall mean, for any period, the sum of Consolidated Net Income
for such period plus the following expenses or charges to the extent
deducted from Consolidated Net Income in such period: interest, taxes,
depreciation, depletion and amortization, minus all noncash income added to
Consolidated Net Income in such period.
"Effective Date" shall have the meaning assigned such term in Section
12.16.
"Environmental Laws" shall mean any and all Governmental Requirements
pertaining to health or the environment in effect in any and all
jurisdictions in which the Borrower or any Subsidiary is conducting or at
any time has conducted business, or where any Property of the Borrower or
any Subsidiary is located, including without limitation, the Oil Pollution
Act of 1990 ("OPA"), the Clean Air Act, as amended, the Comprehensive
Environmental, Response, Compensation, and Liability Act of 1980
("CERCLA"), as amended, the Federal Water Pollution Control Act, as
amended, the Occupational Safety and Health Act of 1970, as amended, the
Resource Conservation and Recovery Act of 1976 ("RCRA"), as amended, the
Safe Drinking Water Act, as amended, the Toxic Substances Control Act, as
amended, the Superfund Amendments and Reauthorization Act of 1986, as
amended, the Hazardous Materials Transportation Act, as amended, and other
environmental conservation or protection laws. The term "oil" shall have
the meaning specified in OPA, the terms "hazardous substance" and "release"
(or "threatened release") have the meanings specified in CERCLA, and the
terms "solid waste" and "disposal" (or "disposed") have the meanings
specified in RCRA; provided, however, that (i) in the event either OPA,
CERCLA or RCRA is amended so as to broaden the meaning of any term defined
thereby, such broader meaning shall apply subsequent to the effective date
of such amendment and (ii) to the extent the laws of the state in which any
Property of the Borrower or any Subsidiary is located establish a meaning
for "oil," "hazardous substance," "release," "solid waste" or "disposal"
which is broader than that specified in either OPA, CERCLA or RCRA, such
broader meaning shall apply.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time and any successor statute.
"ERISA Affiliate" shall mean each trade or business (whether or not
incorporated) which together with the Borrower or any Subsidiary would be
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deemed to be a "single employer" within the meaning of section 4001(b)(1)
of ERISA or subsections (b), (c), (m) or (o) of section 414 of the Code.
"ERISA Event" shall mean (i) a "Reportable Event" described in Section
4043 of ERISA and the regulations issued thereunder, (ii) the withdrawal of
the Borrower, any Subsidiary or any ERISA Affiliate from a Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, (iii) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under Section
4041 of ERISA, (iv) the institution of proceedings to terminate a Plan by
the PBGC or (v) any other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan.
"Event of Default" shall have the meaning assigned such term in Section
10.01.
"Excepted Liens" shall mean: (i) Liens for taxes, assessments or other
governmental charges or levies not yet due or which are being contested in
good faith by appropriate action and for which adequate reserves have been
maintained; (ii) Liens in connection with workmen's compensation,
unemployment insurance or other social security, old age pension or public
liability obligations not yet due or which are being contested in good
faith by appropriate action and for which adequate reserves have been
maintained in accordance with GAAP; (iii) operators', vendors', carriers',
warehousemen's, repairmen's, mechanics', workmen's, materialmen's,
construction or other like Liens arising by operation of law in the
ordinary course of business or statutory landlord's liens, each of which is
in respect of obligations that have not been outstanding more than 90 days
or which are being contested in good faith by appropriate proceedings and
for which adequate reserves have been maintained in accordance with GAAP;
(iv) any Liens reserved in leases or farmout agreements for rent or
royalties and for compliance with the terms of the farmout agreements or
leases in the case of leasehold estates, to the extent that any such Lien
referred to in this clause does not materially impair the use of the
Property covered by such Lien for the purposes for which such Property is
held by the Borrower or any Subsidiary or materially impair the value of
such Property subject thereto; (v) encumbrances (other than to secure the
payment of borrowed money or the deferred purchase price of Property or
services), easements, restrictions, servitudes, permits, conditions,
covenants, exceptions or reservations in any rights of way or other
Property of the Borrower or any Subsidiary for the purpose of roads,
pipelines, transmission lines, transportation lines, distribution lines for
the removal of gas, oil, coal or other minerals or timber, and other like
purposes, or for the joint or common use of real estate, rights of way,
facilities and equipment, and defects, irregularities, zoning restrictions
and deficiencies in title of any rights of way or other Property which in
the aggregate do not materially impair the use of such rights of way or
other Property for the purposes of which such rights of way and
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other Property are held by the Borrower or any Subsidiary or materially
impair the value of such Property subject thereto; (vi) deposits of cash or
securities to secure the performance of bids, trade contracts, leases,
statutory obligations and other obligations of a like nature incurred in
the ordinary course of business; and (vii) Liens permitted by the Security
Instruments.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight federal funds transactions with
a member of the Federal Reserve System arranged by federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that (i) if the date for
which such rate is to be determined is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day,
and (ii) if such rate is not so published for any day, the Federal Funds
Rate for such day shall be the average rate charged to the Agent on such
day on such transactions as determined by the Agent.
"Fee Letter" shall mean that certain letter agreement from First Union
Corporation to the Borrower and agreed to by First Union dated of even date
with this Agreement concerning certain fees in connection with this
Agreement and any agreements or instruments executed in connection
therewith, as the same may be amended or replaced from time to time.
"Financial Statements" shall mean the financial statement or statements
of the Borrower and its Consolidated Subsidiaries described or referred to
in Section 7.02.
"First Union Corporation" shall mean First
Union Corporation of North Carolina, a North
Carolina corporation.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"General Partner" shall mean Kinder Xxxxxx X.X., Inc., general partner
of the Borrower.
"Governmental Authority" shall include the country, the state, county,
city and political subdivisions in which any Person or such Person's
Property is located or which exercises valid jurisdiction over any such
Person or such Person's Property, and any court, agency, department,
commission, board, bureau or instrumentality of any of them including
monetary authorities which exercises valid jurisdiction over any such
Person or such Person's Property. Unless otherwise specified, all
references to Governmental Authority herein shall mean a Governmental
Authority having jurisdiction over, where applicable, the
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Borrower, its Subsidiaries or any of their Property or the Agent, any
Lender or any Applicable Lending Office.
"Governmental Requirement" shall mean any law, statute, code,
ordinance, order, determination, rule, regulation, judgment, decree,
injunction, franchise, permit, certificate, license, authorization or other
directive or requirement (whether or not having the force of law),
including, without limitation, Environmental Laws, energy regulations and
occupational, safety and health standards or controls, of any Governmental
Authority.
"Guarantor" shall mean Xxxxxx Xxxxxx Energy.
"Guaranty Agreement" shall mean an agreement executed by the Guarantor
in form and substance satisfactory to the Agent guarantying,
unconditionally, payment of the Indebtedness, as the same may be amended,
modified or supplemented from time to time.
"Hedging Agreements" shall mean any commodity, interest rate or
currency swap, cap, floor, collar, forward agreement or other exchange or
protection agreements or any option with respect to any such transaction.
"Highest Lawful Rate" shall mean, with respect to each Lender, the
maximum nonusurious interest rate, if any, that at any time or from time to
time may be contracted for, taken, reserved, charged or received on the
Notes or on other Indebtedness under laws applicable to such Lender which
are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
"Indebtedness" shall mean any and all amounts owing or to be owing by
the Borrower to First Union, the Agent and/or Lenders in connection with
the Loan Documents, and any Hedging Agreements now or hereafter arising
between the Borrower and First Union or any Lender and permitted by the
terms of this Agreement and all renewals, extensions and/or rearrangements
of any of the above.
"Indemnified Parties" shall have the meaning assigned such term in
Section 12.03(b).
"Indemnity Matters" shall mean any and all actions, suits, proceedings
(including any investigations, litigation or inquiries), claims, demands
and causes of action made or threatened against a Person and, in connection
therewith, all losses, liabilities, damages (including, without limitation,
consequential damages) or reasonable costs and expenses of any kind or
nature whatsoever incurred by
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such Person whether caused by the sole or concurrent negligence of such
Person seeking indemnification.
"Indenture" shall mean the Indenture of Trust dated as of April 1,
1994, by and between Xxxxxxx-Union Counties Regional Port District and the
Trustee securing the Bonds.
"Initial Funding" shall mean the funding of the initial Loans or
issuance of the Letter of Credit pursuant to Section 6.01 hereof.
"Interest Period" shall mean, with respect to any LIBOR Loan, the
period commencing on the date such LIBOR Loan is made and ending on the
numerically corresponding day in the first, second, third or sixth calendar
month thereafter, as the Borrower may select as provided in Section 2.02,
except that each Interest Period which commences on the last Business Day
of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end
on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) no Interest Period may commence
before and end after the Revolving Credit Termination Date; (ii) no
Interest Period for any LIBOR Loan may end after the due date of any
installment, if any, provided for in Section 3.01 hereof to the extent that
such LIBOR Loan would need to be prepaid prior to the end of such Interest
Period in order for such installment to be paid when due; (iii) each
Interest Period which would otherwise end on a day which is not a Business
Day shall end on the next succeeding Business Day (or, if such next
succeeding Business Day falls in the next succeeding calendar month, on the
next preceding Business Day); and (iv) no Interest Period shall have a
duration of less than one month and, if the Interest Period for any LIBOR
Loans would otherwise be for a shorter period, such Loans shall not be
available hereunder.
"Xxxxxx Xxxxxx Energy" shall mean Xxxxxx
Xxxxxx Energy Partners, L.P., a Delaware limited
partnership.
"LC Maximum Amount" shall mean $24,128,548.00 initially, which amount
may be reduced and reinstated from time to time as provided in the Letter
of Credit.
"LC Commitment" shall mean, for First Union, its obligation to issue
the Letter of Credit, and for each other Lender, its obligation to accept a
participation in the Letter of Credit in an amount equal to its Percentage
Share of the LC Maximum Amount, all as provided in Section 2.01(b) and to
fund its Percentage Share of any Advances as provided in Section 2.09.
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"Letter of Credit" shall mean the Support Letter of Credit for so long
as it is outstanding and thereafter the Replacement Letter of Credit.
"LIBOR" shall mean the rate of interest determined on the basis of the
rate for deposits in Dollars for a period equal to the applicable Interest
Period commencing on the first day of such Interest Period appearing on
Telerate Page 3750 as of 11:00 a.m. (London time) two (2) Business Days
prior to the first day of the applicable Interest Period. In the event that
such rate does not appear on Telerate Page 3750, "LIBOR" shall be
determined by the Agent to be the rate per annum at which deposits in
Dollars are offered by leading reference banks in the London interbank
market to First Union at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of the applicable Interest Period for
a period equal to such Interest Period and in an amount substantially equal
to the amount of the applicable Loan.
"LIBOR Loans" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "LIBOR
Rate".
"LIBOR Rate" shall mean, with respect to any LIBOR Loan, a rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Agent to be equal to the quotient of (i) LIBOR for such
Loan for the Interest Period for such Loan divided by (ii) 1 minus the
Reserve Requirement for such Loan for such Interest Period.
"Lien" shall mean any interest in Property securing an obligation owed
to, or a claim by, a Person other than the owner of the Property, whether
such interest is based on the common law, statute or contract, and whether
such obligation or claim is fixed or contingent, and including but not
limited to (i) the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale or trust receipt
or a lease, consignment or bailment for security purposes. The term "Lien"
shall include reservations, exceptions, encroachments, easements, rights of
way, covenants, conditions, restrictions, leases and other title exceptions
and encumbrances affecting Property. For the purposes of this Agreement,
the Borrower or any Subsidiary shall be deemed to be the owner of any
Property which it has acquired or holds subject to a conditional sale
agreement, or leases under a financing lease or other arrangement pursuant
to which title to the Property has been retained by or vested in some other
Person in a transaction intended to create a financing.
"Loan Documents" shall mean this Agreement,
the Letter of Credit, the Fee Letter, the Notes
and the Security Instruments.
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"Loans" shall mean the loans as provided for
by Section 2.01(a), Section 2.09(b) and Section
2.09(c). "Loans" shall include the Revolving
Credit Loans and the Term Loans.
"Majority Lenders" shall mean, at any time while no Loans are
outstanding, Lenders having at least seventy-five percent (75%) of the
Aggregate Commitments and, at any time while Loans are outstanding, Lenders
holding at least seventy-five percent (75%) of the outstanding aggregate
principal amount of the Loans (without regard to any sale by a Lender of a
participation in any Loan under Section 12.06(c)).
"Material Adverse Effect" shall mean any material and adverse effect on
(i) the assets, liabilities, financial condition, business, operations or
affairs of the Borrower and its Subsidiaries taken as a whole or from the
facts represented or warranted in any Loan Document, or (ii) the ability of
the Borrower and its Subsidiaries taken as a whole to carry out their
business as at the Closing Date or as proposed as of the Closing Date to be
conducted or meet their obligations under the Loan Documents on a timely
basis.
"Maturity Date" shall mean February 14, 1999.
"Mortgaged Property" shall mean the Property owned by the Borrower and
which is subject to the Liens existing and to exist under the terms of the
Security Instruments.
"Multiemployer Plan" shall mean a Plan defined as such in Section 3(37)
or 4001(a)(3) of ERISA.
"Notes" shall mean the Notes provided for by Section 2.06, Section
2.09(b) and 2.09(c), together with any and all renewals, extensions for any
period, increases, rearrangements, substitutions or modifications thereof.
The "Notes" shall include the Revolving Credit Notes and the Term Notes.
"Other Taxes" shall have the meaning assigned such term in Section
4.06(b).
"Painter Gas Plant" shall mean that portion of the Mortgaged Property
located in Uinta County, Wyoming and known as the Painter Gas Plant.
"Partnership Agreement" shall mean the written partnership agreement of
the Borrower dated September 30, 1993, as amended from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions.
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"Percentage Share" shall mean the percentage of the Aggregate
Commitments to be provided by a Lender under this Agreement as indicated on
Annex I hereto, as modified from time to time to reflect any assignments
permitted by Section 12.06(b).
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, trust, unincorporated organization
or government or any agency, instrumentality or political subdivision
thereof, or any other form of entity.
"Plan" shall mean any employee pension benefit plan, as defined in
Section 3(2) of ERISA, which (i) is currently or hereafter sponsored,
maintained or contributed to by the Borrower, any Subsidiary or an ERISA
Affiliate or (ii) was at any time during the preceding six calendar years
sponsored, maintained or contributed to, by the Borrower, any Subsidiary or
an ERISA Affiliate.
"Post-Default Rate" shall mean, in respect of any principal of any Loan
or any other amount payable by the Borrower under this Agreement or any
Note, a rate per annum during the period commencing on the date of an Event
of Default until such amount is paid in full or all Events of Default are
cured or waived equal to 2% per annum above the Base Rate as in effect from
time to time plus the Applicable Margin (if any), but in no event to exceed
the Highest Lawful Rate; provided that, for a LIBOR Loan, the "Post-Default
Rate" for such principal shall be, for the period commencing on the date of
the Event of Default and ending on the earlier to occur of the last day of
the Interest Period therefor or the date all Events of Default are cured or
waived, 2% per annum above the interest rate for such Loan as provided in
Section 3.02(ii), but in no event to exceed the Highest Lawful Rate.
"Prime Rate" shall mean the rate of interest from time to time
announced publicly by the Agent at the Principal Office as its prime
commercial lending rate. Such rate is set by the Agent as a general
reference rate of interest, taking into account such factors as the Agent
may deem appropriate, it being understood that many of the Agent's
commercial or other loans are priced in relation to such rate, that it is
not necessarily the lowest or best rate actually charged to any customer
and that the Agent may make various commercial or other loans at rates of
interest having no relationship to such rate.
"Principal Office" shall mean the principal office of the Agent,
presently located at 000 Xxxxx Xxxxxxx Xxxxxx, XX-00, Xxxxxxxxx, Xxxxx
Xxxxxxxx 28288- 0608 or such other location as designated by the Agent from
time to time.
"Prior Credit Agreement" shall mean the
Credit Agreement among Enron Transportation
Services, L.P. (now known as Xxxxxx Xxxxxx
Operating L.P.
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"B"), a Delaware limited partnership, and First Union dated as of December
29, 1994, as amended.
"Prior Debt" shall mean the outstanding Debt under (i) that certain
promissory note dated as of September 30, 1993 in the original principal
amount of $4,430,437 from the Borrower payable to the order of Enron Corp.
and (ii) that certain promissory note issued pursuant to the Prior Credit
Agreement dated December 29, 1994, in an outstanding principal amount of
$9,618,752.
"Property" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Quarterly Dates" shall mean the last day of each March, June,
September and December in each year, the first of which shall be March 31,
1997; provided, however, that if any such day is not a Business Day, such
Quarterly Date shall be the next succeeding Business Day.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be amended or
supplemented from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any change
after the Closing Date in any Governmental Requirement (including
Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of lenders
(including such Lender or its Applicable Lending Office) of or under any
Governmental Requirement (whether or not having the force of law) by any
Governmental Authority charged with the interpretation or administration
thereof.
"Replacement Letter of Credit" shall mean First Union's irrevocable
letter of credit No. S113181 for the benefit of the Trustee in the amount
of the LC Maximum Amount to be issued pursuant to Section 2.01(b) in
support of the Bonds and in the form of Exhibit G-2 hereto.
"Replacement Term Note" shall mean the promissory note of the Borrower
evidencing its obligations with respect to the Replacement Term Loan in the
form of Exhibit A-2 hereto.
"Replacement Term Loan" shall mean the term loan made by First Union to
the Borrower pursuant to Section 2.09(b).
"Required Payment" shall have the meaning assigned such term in Section
4.04.
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"Responsible Officer" shall mean, as to any Person, the Chief Executive
Officer, the President or any Vice President of such Person and, with
respect to financial matters, the term "Responsible Officer" shall include
the Chief Financial Officer of such Person. Unless otherwise specified, all
references to a Responsible Officer herein shall mean a Responsible Officer
of the General Partner of Borrower.
"Revolving Credit Commitment" shall mean, as to each Lender, the amount
set forth opposite such Lender's name on Annex I under the caption
"Revolving Credit Commitment" (as the same may be reduced pursuant to
Section 2.03(b) hereof pro rata to each Lender based on its Percentage
Share) as modified from time to time to reflect any assignments permitted
by Section 12.06(b).
"Revolving Credit Loans" shall mean the
loans as provided for by Section 2.01(a).
"Revolving Credit Notes" shall mean the promissory note or notes
(whether one or more) of the Borrower described in Section 2.06 hereof and
being in the form of Exhibit A-1 hereto.
"Revolving Credit Termination Date" shall mean, unless the Commitments
are sooner terminated pursuant to Sections 2.03(b) or 10.02 hereof,
February 14, 1999.
"SEC" shall mean the Securities and Exchange
Commission or any successor Governmental
Authority.
"Security Instruments" shall mean the agreements or instruments
described or referred to in Exhibit E, and any and all other agreements or
instruments now or hereafter executed and delivered by the Borrower or any
other Person (other than participation or similar agreements between any
Lender and any other lender or creditor with respect to any Indebtedness
pursuant to this Agreement) in connection with, or as security for the
payment or performance of the Notes and this Agreement, as the same may be
amended, supplemented or restated from time to time.
"Special Entity" shall mean any joint venture, limited liability
company or partnership, general or limited partnership or any other type of
partnership or company other than a corporation in which the Borrower or
one or more of its other Subsidiaries is a member, owner, partner or joint
venturer and owns, directly or indirectly, at least a majority of the
equity of such entity or controls such entity, but excluding any tax
partnerships that are not classified as partnerships under state law. For
purposes of this definition, any Person which owns directly or indirectly
an equity investment in another Person which allows the first Person to
manage or elect managers who manage the normal activities
-14-
of such second Person will be deemed to "control"
such second Person (e.g. a sole general partner
controls a limited partnership).
"Special Purpose Subsidiary" shall have the meaning assigned such term
in Section 9.17.
"Subsidiary" shall mean (i) any corporation of which at least a
majority of the outstanding shares of stock having by the terms thereof
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether or not at the time stock of any other
class or classes of such corporation shall have or might have voting power
by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by the Borrower or one or more of its
Subsidiaries or by the Borrower and one or more of its Subsidiaries and
(ii) any Special Entity. Unless otherwise indicated herein, each reference
to the term "Subsidiary" shall mean a Subsidiary of the Borrower.
"Support Letter of Credit" shall mean First Union's irrevocable credit
in the amount of the LC Maximum Amount issued pursuant to Section 2.01(b)
to Wachovia Bank of Georgia, N.A., in form and substance satisfactory to
First Union and Wachovia National Bank of Georgia, N.A. in order to obtain
the release of the guaranty of Enron Corp. relating to the Wachovia Letter
of Credit, with an initial expiration date of no more than 30 days from the
date of issue, such expiration date being subject to being extended in
additional one month periods at the discretion of First Union.
"Support Term Note" shall mean the promissory note of the Borrower
evidencing its obligations with respect to the Support Term Loan in form
and substance satisfactory to First Union.
"Support Term Loan" shall mean the term loan made by First Union to the
Borrower pursuant to Section 2.09(c).
"Syndication" shall occur on the first date First Union assigns an
interest in this Agreement to another Lender pursuant to Section 12.06(b).
"Taxes" shall have the meaning assigned such
term in Section 4.06(a).
"Term Loans" shall mean the Support Term
Loan and the Replacement Term Loan.
"Term Notes" shall mean the Support Term
Note and the Replacement Term Note.
"Trustee" means Bank One, Texas, National
Association.
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"Type" shall mean, with respect to any Loan, a Base Rate Loan or a
LIBOR Loan.
"Wholly-Owned Subsidiary" shall mean, as to the Borrower, any
Subsidiary of which all of the outstanding shares of stock having by the
terms thereof ordinary voting power to elect the board of directors of such
corporation, other than directors' qualifying shares, are owned or
controlled by the Borrower or one or more of the Wholly-Owned Subsidiaries
or by the Borrower and one or more of the Wholly-Owned Subsidiaries.
Section 1.03 Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be furnished to the Agent or the Lenders hereunder shall be
prepared, in accordance with GAAP, applied on a basis consistent with the
audited financial statements referred to in Section 7.02 (except for changes
concurred with by Xxxxxx Xxxxxx Energy Partner's independent public
accountants).
ARTICLE II
Commitments
Section 2.01 Loans and Letter of Credit.
(a) Revolving Credit Loans. Each Lender severally agrees, on the terms
of this Agreement, to make Revolving Credit Loans to the Borrower during
the period from and including (i) the Closing Date or (ii) such later date
that such Lender becomes a party to this Agreement as provided in Section
12.06(b), to but excluding the Revolving Credit Termination Date in an
aggregate principal amount at any one time outstanding up to but not
exceeding the amount of such Lender's Commitment as then in effect;
provided, however, that the aggregate principal amount of all such Loans by
all Lenders hereunder at any one time outstanding shall not exceed the
Aggregate Revolving Credit Commitments. Subject to the terms of this
Agreement, during the period from the Closing Date to but excluding the
Revolving Credit Termination Date, the Borrower may borrow, repay and
reborrow the amount described in this Section 2.01(a).
(b) Applications for Letter of Credit. The Borrower hereby applies to
First Union for, and authorizes and instructs First Union to issue, the
Support Letter of Credit in the LC Maximum Amount on March 7, 1997, unless
at such time the Replacement Letter of Credit has been accepted by the
Trustee as an "Alternate Letter of Credit" (as defined in the Indenture).
The Borrower also hereby applies to First Union for, and authorizes and
instructs First Union to issue, the Replacement Letter of Credit at such
time as the Trustee is prepared to accept the Replacement Letter of Credit
in connection with the Bonds and in compliance with the Indenture. First
Union, as issuing bank for the Lenders, agrees to extend credit for the
account of the Borrower by issuing the Letter of Credit in the LC Maximum
Amount on the dates set forth above. The Lenders shall
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participate in the Letter of Credit according to their respective
Percentage Shares. The Letter of Credit may be drawn upon from time to time
as provided in the Letter of Credit.
(c) Limitation on Types of Loans. Subject to the other terms and
provisions of this Agreement, at the option of the Borrower, the Revolving
Credit Loans may be Base Rate Loans or LIBOR Loans; provided that no more
than four (4) LIBOR Loans may be outstanding at any time. Until
Syndication, the LIBOR Loans may only have Interest Periods of one month.
The Term Loans may only be Base Rate Loans.
Section 2.02 Borrowings, Continuations, Conversions and Letter of
Credit.
(a) Borrowings. The Borrower shall give the Agent (which shall promptly
notify the Lenders) advance notice as hereinafter provided of each
borrowing hereunder, which shall specify the aggregate amount of such
borrowing, the Type and the date (which shall be a Business Day) of the
Loans to be borrowed and (in the case of LIBOR Loans) the duration of the
Interest Period therefor.
(b) Minimum Amounts. If a borrowing consists in whole or in part of
LIBOR Loans, such LIBOR Loans with the same Interest Period shall be in
amounts of at least $1,000,000 or any whole multiple of $100,000 in excess
thereof. If a borrowing consists in whole or in part of Base Rate Loans
shall be in amounts of at least $500,000 or any whole multiple of $100,000
in excess thereof.
(c) Notices. Each borrowing and all continuations and conversions shall
require advance written notice to the Agent (which shall promptly notify
the Lenders) in the form of Exhibit B hereto, which in each case shall be
irrevocable, from the Borrower to be received by the Agent not later than
11:00 a.m., Charlotte, North Carolina time at least one Business Day prior
to the date of each Base Rate Loan borrowing and three Business Days prior
to the date of each LIBOR Loan borrowing, continuation or conversion.
(d) Continuation Options. Subject to the provisions made in this
Section 2.02(d), the Borrower may elect to continue all or any part of any
LIBOR Loan beyond the expiration of the then current Interest Period
relating thereto by giving advance notice as provided in Section 2.02(c) to
the Agent (which shall promptly notify the Lenders) of such election,
specifying the amount of such Loan to be continued and the Interest Period
therefor. In the absence of such a timely and proper election, the Borrower
shall be deemed to have elected to convert such LIBOR Loan to a Base Rate
Loan pursuant to Section 2.02(e). All or any part of any LIBOR Loan may be
continued as provided herein, provided that (i) any continuation of any
such Loan shall be (as to each Loan as continued for an applicable Interest
Period) in amounts of at least $1,000,000 or any whole multiple of $100,000
in excess thereof and (ii) no Default shall have occurred and be
continuing. If a Default shall have occurred and be continuing, each LIBOR
Loan
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shall be converted to a Base Rate Loan on the last day of the Interest
Period applicable thereto.
(e) Conversion Options. The Borrower may elect to convert all or any
part of any LIBOR Loan on the last day of the then current Interest Period
relating thereto to a Base Rate Loan by giving advance notice to the Agent
(which shall promptly notify the Lenders) of such election. Subject to the
provisions made in this Section 2.02(e), the Borrower may elect to convert
all or any part of any Base Rate Loan at any time and from time to time to
a LIBOR Loan by giving advance notice as provided in Section 2.02(c) to the
Agent (which shall promptly notify the Lenders) of such election. All or
any part of any outstanding Loan may be converted as provided herein,
provided that (i) any conversion of any Base Rate Loan into a LIBOR Loan
shall be (as to each such Loan into which there is a conversion for an
applicable Interest Period) in amounts of at least $1,000,000 or any whole
multiple of $100,000 in excess thereof and (ii) no Default shall have
occurred and be continuing. If a Default shall have occurred and be
continuing, no Base Rate Loan may be converted into a LIBOR Loan.
(f) Advances. Not later than 1:00 p.m. Charlotte, North Carolina time
on the date specified for each borrowing hereunder, each Lender shall make
available the amount of the Loan to be made by it on such date to the
Agent, to an account which the Agent shall specify, in immediately
available funds, for the account of the Borrower. The amounts so received
by the Agent shall, subject to the terms and conditions of this Agreement,
be made available to the Borrower by depositing the same, in immediately
available funds, in an account of the Borrower designated by the Borrower
and maintained at the Principal Office.
Section 2.03 Changes of Commitments.
(a) The Aggregate Revolving Credit Commitments shall reduce
automatically by $750,000 on each Quarterly Date commencing on June 30,
1997 and may be further reduced pursuant to Section 2.03(b) hereof.
(b) The Borrower shall have the right to terminate or to reduce the
amount of the Aggregate Revolving Credit Commitments at any time or from
time to time upon not less than three (3) Business Days' prior notice to
the Agent (which shall promptly notify the Lenders) of each such
termination or reduction, which notice shall specify the effective date
thereof and the amount of any such reduction (which shall not be less than
$1,000,000 or any whole multiple of $100,000 in excess thereof) and shall
be irrevocable and effective only upon receipt by the Agent.
(c) The Aggregate Revolving Credit Commitments
once terminated or reduced may not be reinstated.
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Section 2.04 Fees.
(a) The Borrower shall pay to the Agent for the
account of each Lender:
(i) a commitment fee on the daily average unused amount of the
Aggregate Revolving Credit Commitment for the period from and including
the Closing Date to but excluding the Revolving Credit Termination Date
at a rate per annum equal to 3/8 of 1%. Accrued commitment fees shall
be payable quarterly in arrears on each Quarterly Date and on the
earlier of the date the Aggregate Revolving Credit Commitments are
terminated or the Revolving Credit Termination Date.
(ii) a letter of credit fee, computed (on the basis of a year of
360 days and actual days elapsed) for each day from the Closing Date at
the rate of 1.50% per annum of the LC Maximum Amount, which rate shall
increase 0.25% per annum quarterly commencing June 30, 1997, payable
quarterly in advance on the Closing Date and on each Quarterly Date
thereafter.
(b) The Borrower shall pay to First Union for
its own account:
(i) 1/8% per annum of the LC Maximum Amount as a fronting fee,
payable quarterly in advance on the Closing Date and on each Quarterly
Date thereafter.
(ii) Upon each transfer of the Letter of Credit to a successor
beneficiary in accordance with its terms, the sum of $500.
(iii) Upon each drawing of the Letter of Credit, a negotiation fee
of $200; provided that such fee shall not be a condition to any
drawing.
(iv) Other fees related to amendments,
modifications, etc.
(c) The Borrower shall pay to First Union Corporation for its account
such other fees as are set forth in the Fee Letter on the dates specified
therein to the extent not paid prior to the Closing Date.
Section 2.05 Several Obligations. The failure of any Lender to make any
Loan to be made by it or to provide funds for disbursements or reimbursements
under the Letter of Credit on the date specified therefor shall not relieve any
other Lender of its obligation to make its Loan or provide funds on such date,
but no Lender shall be responsible for the failure of any other Lender to make a
Loan to be made by such other Lender or to provide funds to be provided by such
other Lender.
-19-
Section 2.06 Notes. Any Term Loan made by First Union shall be
evidenced by a single promissory note of the Borrower in substantially the form
of Exhibit A-2 or A-3 hereto, as the case may be, dated the date of the Letter
of Credit to which it relates, payable to the order of First Union and otherwise
duly completed. The Revolving Credit Loans made by each Lender shall be
evidenced by a single promissory note of the Borrower to each Lender in
substantially the form of Exhibit A-1 hereto, dated (i) the Closing Date or (ii)
the effective date of an Assignment pursuant to Section 12.06(b), payable to the
order of such Lender in a principal amount equal to its Revolving Credit
Commitment as in effect on the date of issuance and otherwise duly completed and
such substitute Notes as required by Section 12.06(b). The date, amount, Type,
interest rate and Interest Period of each Loan made by each Lender, and all
payments made on account of the principal thereof, shall be recorded by such
Lender on its books for its Notes, and, prior to any transfer, may be endorsed
by such Lender on a schedule attached to such Notes or any continuation thereof
or on any separate record maintained by such Lender. Failure to make any such
notation or to attach a schedule shall not affect any Lender's or the Borrower's
rights or obligations in respect of such Loans or affect the validity of such
transfer by any Lender of its Notes.
Section 2.07 Prepayments of Revolving Credit
Loans.
(a) The Borrower may prepay the Base Rate Loans that are Revolving
Credit Loans upon not less than one (1) Business Day's prior notice to the
Agent (which shall promptly notify the Lenders), which notice shall specify
the prepayment date (which shall be a Business Day) and the amount of the
prepayment (which shall be at least $500,000 of, if greater, in multiples
of $25,000, or the remaining aggregate principal balance outstanding on the
Revolving Credit Notes) and shall be irrevocable and effective only upon
receipt by the Agent. The Borrower may prepay LIBOR Loans that are
Revolving Credit Loans on the same condition as for Base Rate Loans, except
that not less than three Business Days' notice shall be required and in
addition such prepayments of LIBOR Loans shall be subject to the terms of
Section 5.05 and shall be in an amount equal to all of the LIBOR Loans for
the Interest Period prepaid. Notices received after 11:00 a.m., Charlotte,
North Carolina time, shall be deemed to have been received on the following
Business Day.
(b) If, after giving effect to any termination or reduction of the
Aggregate Revolving Credit Commitments pursuant to Section 2.03, the
outstanding aggregate principal amount of the Revolving Credit Loans
exceeds the Aggregate Revolving Credit Commitments, the Borrower shall
prepay the Revolving Credit Loans on the date of such termination or
reduction in an aggregate principal amount equal to the excess, together
with interest on the principal amount paid accrued to the date of such
prepayment.
(c) Prepayments permitted or required under this Section 2.07 shall be
without premium or penalty, except as required under Section 5.05 for
prepayment of LIBOR Loans. Any prepayments on the Revolving Credit Loans
may be reborrowed subject to the then effective Aggregate Revolving Credit
Commitments.
Section 2.08 Assumption of Risks. The Borrower
assumes all risks of the acts or omissions of any
beneficiary of the Letter of Credit or any transferee
thereof with respect to
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its use of such Letter of Credit. Neither the Agent (except in the case of
willful misconduct or bad faith on the part of the Agent or any of its
employees), its correspondents nor any Lender shall be responsible for the
validity, sufficiency or genuineness of certificates or other documents or any
endorsements thereon, even if such certificates or other documents should in
fact prove to be invalid, insufficient, fraudulent or forged; for errors,
omissions, interruptions or delays in transmissions or delivery of any messages
by mail, telex, or otherwise, whether or not they be in code; for errors in
translation or for errors in interpretation of technical terms; the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign the Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; the failure of any beneficiary or any transferee of
the Letter of Credit to comply fully with conditions required in order to draw
upon the Letter of Credit; or for any other consequences arising from causes
beyond the Agent's control or the control of the Agent's correspondents. In
addition, neither the Agent nor any Lender shall be responsible for any error,
neglect, or default of any of the Agent's correspon- dents; and none of the
above shall affect, impair or prevent the vesting of any of the Agent's or any
Lender's rights or powers hereunder, all of which rights shall be cumulative.
The Agent and its correspondents may accept certificates or other documents that
appear on their face to be in order, without responsibility for further
investigation of any matter contained therein regardless of any notice or
information to the contrary. In furtherance and not in limitation of the
foregoing provisions, the Borrower agrees that any action, inaction or omission
taken or not taken by the Agent or by any correspondent for the Agent in good
faith in connection with the Letter of Credit, or any related drafts,
certificates, documents or instruments, shall be binding on the Borrower and
shall not put the Agent or its correspondents under any resulting liability to
the Borrower.
Section 2.09 Obligation to Reimburse and to Prepay.
(a) Except as provided in subsections (b) and (c) of this Section, the
Borrower agrees to reimburse First Union immediately for any amounts drawn
on the Letter of Credit and amounts not immediately reimbursed shall bear
interest at the Post-Default Rate from and including the date of drawing to
but excluding the date of reimbursement.
(b) Replacement Letter of Credit. The amount of any A Drawing shall
bear interest (i) from and including the date of drawing to but excluding
the "Stated Expiration Date" (as defined in the Replacement Letter of
Credit), at the rate then borne by Base Rate Loans and (ii) on and after
the Stated Expiration Date or during the continuance of an Event of
Default, at the Post-Default Rate. If no Event of Default has occurred and
is continuing, the principal portion of an A Drawing remaining outstanding
for a period of 30 days shall be charged as an Advance against a term loan
account hereby established by First Union for the Borrower. The obligation
of the Borrower to repay any Advances shall be evidenced by the Replacement
Term Note, payable to the order of First Union, representing the obligation
of the Borrower to pay the lesser of (A) $23,700,000 or (B) the aggregate
unpaid principal amount of all Advances, with interest theon at fluctuating
per annum interest rate equal to the rates then borne by Base Rate Loans.
First Union is authorized to endorse the date and amount of each Advance
and each payment of principal with respect thereto on the schedule
annexed to and constituting a part of the Replacement Term Note, which
endorsement shall constitute
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prima facie evidence of the accuracy of the information endorsed.
The Replacement Term Note shall (w) be dated as of February 14, 1997 (x)
be payable as to principal (1) on any mandatory or optional redemption date
for the Bonds, in an amount corresponding to the principal amount of Bonds
redeemed and (2) in full, on the Stated Expiration Date (or such earlier
date as may be required by Section 10.02 hereof); (y) be stated to mature
on the Stated Expiration Date; and (z) bear interest on the unpaid
principal amount thereof, if any, until paid.
(c) Support Letter of Credit. The amount of any drawing under the
Support Letter of Credit shall be charged against a term loan account
hereby established by First Union for the Borrower. The obligation of the
Borrower to repay any such drawings shall be evidenced by the Support Term
Note, payable to the order of First Union, representing the obligation of
the Borrower to pay the lesser of (A) $24,128,548 or (B) the aggregate
amount of any such drawing with interest thereon at a fluctuating per annum
interest rate equal to the rates then borne by Base Rate Loans. The Support
Term Note shall (w) be dated as of the date of delivery, (x) be payable as
to principal on the earlier of (1) of ten days from the date of any drawing
on the Support Letter of Credit or (2) the Maturity Date; and (y) bear
interest on the unpaid principal amount thereof, if any, until paid.
(d) Any amounts from time to time owing to First Union as a portion of
the Term Loan (i) may be prepaid on any Business Day by or on behalf of the
Borrower upon 3-day's prior written notice stating the amount to be prepaid
(which shall be in minimum denominations of $100,000 and integral multiples
of $5,000 in excess thereof) and (ii) shall be prepaid to the extent any
Bonds owned by the Borrower are remarketed, on the date of such
remarketing. Accrued interest on the amount prepaid to the date of
prepayment shall be paid to First Union at the same time as such
prepayment. Upon payment to First Union of the amount of such portion of
the Replacement Term Loan to be so prepaid, together with accrued interest
thereon to the date of such prepayment, the outstanding obligations of the
Borrower under the Replacement Term Loan shall be reduced by the amount of
such prepayment, and interest shall cease to accrue on the amount prepaid.
The amount available under this Term Loan facility from time to time shall
equal the aggregate principal amount of Bonds outstanding less the
aggregate principal amount of Pledged Bonds (as defined in the Indenture).
Any prepayment notice shall be irrevocable.
The obligations of the Borrower under this Agreement with respect to the
Letter of Credit shall be absolute, unconditional and irrevocable and shall
be paid or performed strictly in accordance with the terms of this
Agreement under all circumstances whatsoever, including, without
limitation, but only to the fullest extent permitted by applicable law, the
following circumstances: (i) any lack of validity or enforceability of this
Agreement, the Letter of Credit or any of the Security Instruments; (ii)
any amendment or waiver of (including any default), or any consent to
departuAgreement (except to the extent permitted by any amendment or
waiver), the Letter of Credit or any of the Security Instruments; (iii)
the existence of any claim, set-off, defense or other rights which
the Borrower may have at any time against the beneficiary of the
Letter of Credit or any transferee of the Letter of Credit (or any
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Persons for whom any such beneficiary or any such transferee may be
acting), the Agent, any Lender or any other Person, whether in connection
with this Agreement, the Letter of Credit, the Security Instruments, the
transactions contemplated hereby or any unrelated transaction; (iv) any
statement, certificate, draft, notice or any other document presented under
the Letter of Credit proves to have been forged, fraudulent, insufficient
or invalid in any respect or any statement therein proves to have been
untrue or inaccurate in any respect whatsoever; (v) payment by First Union
under the Letter of Credit against presentation of a draft or certificate
which appears on its face to comply, but does not comply, with the terms of
such Letter of Credit; and (vi) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
Notwithstanding anything in this Agreement to the contrary, the Borrower
will not be liable for payment or performance that results from the gross
negligence or willful misconduct of First Union, except (i) where the
Borrower or any Subsidiary actually recovers the proceeds for itself or
First Union of any payment made by First Union in connection with such
gross negligence or willful misconduct or (ii) in cases where First Union
makes payment to the named beneficiary of a Letter of Credit.
(e) Each Lender severally and unconditionally agrees that it shall
promptly reimburse First Union an amount equal to such Lender's Percentage
Share of any disbursement made by First Union under the Letter of Credit
that is not reimbursed according to Section 2.09(a) or when due under
Section 2.09(b) or Section 2.09(c), as the case may be.
(f) The Borrower hereby pledges, assigns, transfers and delivers to
First Union all its right, title and interest to all Bonds purchased with
funds drawn under the Replacement Letter of Credit (the "Pledged Bonds"),
and hereby grants to First Union a first lien on, and security interest in,
its rights, title and interest in and to the Pledged Bonds, the interest
thereon and all proceeds thereof or substitutions therefor, as collateral
security for the prompt and complete payment when due of the amounts
payable under this Section 2.09. During such time as any Bonds are Pledged
Bonds, First Union shall be entitled to exercise all of the rights of a
holder of Bonds with respect to voting, consenting and directing the
Trustee as if First Union were the owner of such Bonds, and the Borrower
hereby grants and assigns to the Bank all such rights.
Section 2.10 Lending Offices. The Loans of each Type made by each
Lender shall be made and maintained at such Lender's Applicable Lending Office
for Loans of such Type as shown on the signature pages hereof.
Section 2.11 Telecopied Drawings. The Letter of Credit provides that
drafts and certificates for drawings under the Letter of Credit may be presented
to First Union via telecopy and may state an undertaking by the drawer to cause
the corresponding manually executed drafts and certificates to be delivered to
First Union on the next succeeding Business Day. The Borrower acknowledges and
assumes all risks relating to the use of such telecopied drafts and certificates
and, moreover, agrees that its obligations under this Agreement remain absolute,
irrevocable and unconditional if First Union honors such telecopied drawing(s)
under the Letter of Credit which appear on their face to comply with the terms
of the Letter of Credit notwith
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standing that the manually executed drafts and certificates do not comply with
the terms of the Letter of Credit or failure is made to deliver such manually
executed drafts and certificates, in whole or in part, to First Union following
a drawing made under the Letter of Credit via telecopy.
ARTICLE III
Payments of Principal and Interest
Section 3.01 Repayment of Loans. The Borrower will pay to the Agent,
for the account of each Lender, the principal payments required by this Section
3.01. On the Maturity Date the Borrower shall repay the outstanding aggregate
principal and accrued and unpaid interest under the Notes.
Section 3.02 Interest. The Borrower will pay to the Agent, for the
account of each Lender, interest on the unpaid principal amount of each Loan
made by such Lender for the period commencing on the date such Loan is made to
but excluding the date such Loan shall be paid in full, at the following rates
per annum:
(i) if such a Loan is a Base Rate Loan, the Base Rate (as in effect
from time to time) plus the Applicable Margin (as in effect from time to
time), but in no event to exceed the Highest Lawful Rate; and
(ii) if such a Loan is a LIBOR Loan, for each Interest Period relating
thereto, LIBOR Rate for such Loan plus the Applicable Margin (as in effect
from time to time), but in no event to exceed the Highest Lawful Rate.
Notwithstanding the foregoing, the Borrower will pay to the Agent, for the
account of each Lender, interest at the applicable Post-Default Rate on any
principal of any Loan made by such Lender, and (to the fullest extent permitted
by law) on any other amount payable by the Borrower hereunder, under any Loan
Document or under any Note held by such Lender to or for account of such Lender,
for the period commencing on the date of an Event of Default until the same is
paid in full or all Events of Default are cured or waived.
Accrued interest on Base Rate Loans shall be payable on each Quarterly Date
commencing on March 31, 1997, and accrued interest on each LIBOR Loan shall be
payable on the last day of the Interest Period therefor and, if such Interest
Period is longer than three months at three-month intervals following the first
day of such Interest Period, except that interest payable at the Post-Default
Rate shall be payable from time to time on demand and interest on any LIBOR Loan
that is converted into a Base Rate Loan (pursuant to Section 5.04) shall be
payable on the date of conversion (but only to the extent so converted).
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Promptly after the determination of any interest rate provided for herein
or any change therein, the Agent shall notify the Lenders to which such interest
is payable and the Borrower thereof. Each determination by the Agent of an
interest rate or fee hereunder shall, except in cases of manifest error, be
final, conclusive and binding on the parties.
ARTICLE IV
Payments; Pro Rata Treatment; Computations; Etc.
Section 4.01 Payments. Except to the extent otherwise provided herein,
all payments of principal, interest and other amounts to be made by the Borrower
under the Loan Documents shall be made in Dollars, in immediately available
funds, to the Agent at such account as the Agent shall specify by notice to the
Borrower from time to time, not later than 1:00 p.m. Charlotte, North Carolina
time on the date on which such payments shall become due (each such payment made
after such time on such due date to be deemed to have been made on the next
succeeding Business Day). Such payments shall be made without (to the fullest
extent permitted by applicable law) defense, set-off or counterclaim. Each
payment received by the Agent under this Agreement or any Note for account of a
Lender shall be paid promptly to such Lender in immediately available funds.
Except as provided in clause (iii) of the definition of "Interest Period", if
the due date of any payment under this Agreement or any Note would otherwise
fall on a day which is not a Business Day such date shall be extended to the
next succeeding Business Day and interest shall be payable for any principal so
extended for the period of such extension. At the time of each payment to the
Agent of any principal of or interest on any borrowing, the Borrower shall
notify the Agent of the Loans to which such payment shall apply. In the absence
of such notice the Agent may specify the Loans to which such payment shall
apply, provided that such payment or prepayment will be applied first to the
Loans comprised of Base Rate Loans.
Section 4.02 Pro Rata Treatment. Except to the extent otherwise
provided herein each Lender agrees that: (i) each borrowing from the Lenders
under Section 2.01 and each continuation and conversion under Section 2.02 shall
be made from the Lenders pro rata in accordance with their Percentage Share,
each payment of fees under Section 2.04(a) shall be made for account of the
Lenders pro rata in accordance with their Percentage Share, and each termination
or reduction of the amount of the Aggregate Revolving Credit Commitments under
Section 2.03(b) shall be applied to the Commitment of each Lender, pro rata
according to the amounts of its respective Commitment; (ii) each payment of
principal of Loans by the Borrower shall be made for account of the Lenders pro
rata in accordance with the respective unpaid principal amount of the Loans held
by the Lenders; and (iii) each payment of interest on Loans by the Borrower
shall be made for account of the Lenders pro rata in accordance with the amounts
of interest due and payable to the respective Lenders; and (iv) each
reimbursement by the Borrower of disbursements under the Letter of Credit shall
be made for account of the Agent or, if funded by the Lenders, pro rata for the
account of the Lenders, in accordance with the amounts of reimbursement
obligations due and payable to each respective Lender.
Section 4.03 Computations. Interest on LIBOR
Loans and fees shall be computed on the basis of a year of
360 days and actual days elapsed (including the first day
but excluding
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the last day) occurring in the period for which such interest is payable, unless
such calculation would exceed the Highest Lawful Rate, in which case interest
shall be calculated on the per annum basis of a year of 365 or 366 days, as the
case may be. Interest on Base Rate Loans shall be computed on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed (including
the first day but excluding the last day) occurring in the period for which such
interest is payable.
Section 4.04 Non-receipt of Funds by the Agent. Unless the Agent shall
have been notified by a Lender or the Borrower prior to the date on which such
notifying party is scheduled to make payment to the Agent (in the case of a
Lender) of the proceeds of a Loan or a payment under a Letter of Credit to be
made by it hereunder or (in the case of the Borrower) a payment to the Agent for
account of one or more of the Lenders hereunder (such payment being herein
called the "Required Payment"), which notice shall be effective upon receipt,
that it does not intend to make the Required Payment to the Agent, the Agent may
assume that the Required Payment has been made and may, in reliance upon such
assumption (but shall not be required to), make the amount thereof available to
the intended recipient(s) on such date and, if such Lender or the Borrower (as
the case may be) has not in fact made the Required Payment to the Agent, the
recipient(s) of such payment shall, on demand, repay to the Agent the amount so
made available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the Agent
until but excluding the date the Agent recovers such amount at a rate per annum
which, for any Lender as recipient, will be equal to the Federal Funds Rate, and
for the Borrower as recipient, will be equal to the Base Rate plus the
Applicable Margin.
Section 4.05 Set-off, Sharing of Payments, Etc.
(a) The Borrower agrees that, in addition to (and without limitation
of) any right of set-off, bankers' lien or counterclaim a Lender may
otherwise have, each Lender shall have the right and be entitled (after
consultation with the Agent), at its option, to offset balances held by it
or by any of its Affiliates for account of the Borrower at any of its
offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans, or any other amount payable to such
Lender hereunder, which is not paid when due (regardless of whether such
balances are then due to the Borrower), in which case it shall promptly
notify the Borrower and the Agent thereof, provided that such Lender's
failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain payment of any principal of or interest
on any Loan made by it to the Borrower under this Agreement (or
reimbursement as to the Letter of Credit) through the exercise of any right
of set-off, banker's lien or counterclaim or similar right or otherwise,
and, as a result of such payment, such Lender shall have received a greater
percentage of the principal or interest (or reimbursement) then due
hereunder by the Borrower to such Lender than the percentage received by
any other Lenders, it shall promptly (i) notify the Agent and each other
Lender thereof and (ii) purchase from such other Lenders participations in
(or, if and to the extent specified by such Lender, direct interests in)
the Loans (or participations in the Letter of Credit) made by such other
Lenders (or in interest due thereon, as the case may be) in such
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amounts, and make such other adjustments from time to time as shall be
equitable, to the end that all the Lenders shall share the benefit of such
excess payment (net of any expenses which may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with
the unpaid principal and/or interest on the Loans held by each of the
Lenders (or reimbursements of the Letter of Credit). To such end all the
Lenders shall make appropriate adjustments among themselves (by the resale
of participations sold or otherwise) if such payment is rescinded or must
otherwise be restored. The Borrower agrees that any Lender so purchasing a
participation (or direct interest) in the Loans made by other Lenders (or
in interest due thereon, as the case may be) may exercise all rights of
set-off, banker's lien, counterclaim or similar rights with respect to such
participation as fully as if such Lender were a direct holder of Loans (or
the Letter of Credit) in the amount of such participation. Nothing
contained herein shall require any Lender to exercise any such right or
shall affect the right of any Lender to exercise, and retain the benefits
of exercising, any such right with respect to any other indebtedness or
obligation of the Borrower. If under any applicable bankruptcy, insolvency
or other similar law, any Lender receives a secured claim in lieu of a
set-off to which this Section 4.05 applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in
a manner consistent with the rights of the Lenders entitled under this
Section 4.05 to share the benefits of any recovery on such secured claim.
Section 4.06 Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrower
hereunder shall be made, in accordance with Section 4.01, free and clear of
and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, taxes
imposed on its income, and franchise or similar taxes imposed on it, by (i)
any jurisdiction (or political subdivision thereof) of which the Agent or
such Lender, as the case may be, is a citizen or resident or in which such
Lender has an Applicable Lending Office, (ii) the jurisdiction (or any
political subdivision thereof) in which the Agent or such Lender is
organized, or (iii) any jurisdiction (or political subdivision thereof) in
which such Lender or the Agent is presently doing business in which taxes
are imposed solely as a result of doing business in such jurisdiction (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to the Lenders or the Agent (i) the sum payable shall be
increased by the amount necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this Section 4.06) such Lender or the Agent (as the case may be)
shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
taxing authority or other Governmental Authority in accordance with
applicable law.
(b) Other Taxes. In addition, to the fullest
extent permitted by applicable law, the Borrower
agrees to pay any present or future stamp or
documentary taxes or any
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other excise or property taxes, charges or similar levies that arise from
any payment made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement, any Assignment or any
Security Instrument (hereinafter referred to as "Other Taxes").
(c) Indemnification. to the fullest extent permitted by applicable law,
the Borrower will indemnify each Lender and the Agent for the full amount
of Taxes and Other Taxes (including, but not limited to, any Taxes or Other
Taxes imposed by any Governmental Authority on amounts payable under this
section 4.06) paid by such Lender or the Agent (on their behalf or on
behalf of any Lender), as the case may be, and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted unless the payment of such Taxes was not correctly or legally
asserted and such Lender's payment of such Taxes or Other Taxes was the
result of its gross negligence or willful misconduct. any payment pursuant
to such indemnification shall be made within thirty (30) days after the
date any Lender or the Agent, as the case may be, makes written demand
therefor. if any Lender or the Agent receives a refund or credit in respect
of any Taxes or Other Taxes for which such Lender or the Agent has received
payment from the Borrower it shall promptly notify the Borrower of such
refund or credit and shall, if no default has occurred and is continuing,
within thirty (30) days after receipt of a request by the Borrower (or
promptly upon receipt, if the Borrower has requested application for such
refund or credit pursuant hereto), pay an amount equal to such refund or
credit to the Borrower without interest (but with any interest so refunded
or credited), provided that the Borrower, upon the request of such Lender
or the Agent, agrees to return such refund or credit (plus penalties,
interest or other charges) to such Lender or the Agent in the event such
Lender or the Agent is required to repay such refund or credit.
(d) Lender Representations.
(i) Each Lender represents that it is either (1) a corporation or
banking association organized under the laws of the United States of
America or any state thereof or (2) it is entitled to complete
exemption from United States withholding tax imposed on or with respect
to any payments, including fees, to be made to it pursuant to this
Agreement (A) under an applicable provision of a tax convention to
which the United States of America is a party or (B) because it is
acting through a branch, agency or office in the United States of
America and any payment to be received by it hereunder is effectively
connected with a trade or business in the United States of America.
Each Lender that is not a corporation or banking association organized
under the laws of the United States of America or any state thereof
agrees to provide to the Borrower and the Agent on the Closing Date, or
on the date of its delivery of the Assignment pursuant to which it
becomes a Lender, and at such other times as required by United States
law or
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as the Borrower or the Agent shall reasonably request, two accurate and
complete original signed copies of either (A) Internal Revenue Service
Form 4224 (or successor form) certifying that all payments to be made
to it hereunder will be effectively connected to a United States trade
or business (the "Form 4224 Certification") or (B) Internal Revenue
Service Form 1001 (or successor form) certifying that it is entitled to
the benefit of a provision of a tax convention to which the United
States of America is a party which completely exempts from United
States withholding tax all payments to be made to it hereunder (the
"Form 1001 Certification"). In addition, each Lender agrees that if it
previously filed a Form 4224 Certification, it will deliver to the
Borrower and the Agent a new Form 4224 Certification prior to the first
payment date occurring in each of its subsequent taxable years; and if
it previously filed a Form 1001 Certification, it will deliver to the
Borrower and the Agent a new certification prior to the first payment
date falling in the third year following the previous filing of such
certification. Each Lender also agrees to deliver to the Borrower and
the Agent such other or supplemental forms as may at any time be
required as a result of changes in applicable law or regulation in
order to confirm or maintain in effect its entitlement to exemption
from United States withholding tax on any payments hereunder, provided
that the circumstances of such Lender at the relevant time and
applicable laws permit it to do so. If a Lender determines, as a result
of any change in either (i) a Governmental Requirement or (ii) its
circumstances, that it is unable to submit any form or certificate that
it is obligated to submit pursuant to this Section 4.06, or that it is
required to withdraw or cancel any such form or certificate previously
submitted, it shall promptly notify the Borrower and the Agent of such
fact. If a Lender is organized under the laws of a jurisdiction outside
the United States of America, unless the Borrower and the Agent have
received a Form 1001 Certification or Form 4224 Certification
satisfactory to them indicating that all payments to be made to such
Lender hereunder are not subject to United States withholding tax, the
Borrower shall withhold taxes from such payments at the applicable
statutory rate. Each Lender agrees to indemnify and hold harmless the
Borrower or Agent, as applicable, from any United States taxes,
penalties, interest and other expenses, costs and losses incurred or
payable by (i) the Agent as a result of such Lender's failure to submit
any form or certificate that it is required to provide pursuant to this
Section 4.06 or (ii) the Borrower or the Agent as a result of their
reliance on any such form or certificate which such Lender has provided
to them pursuant to this Section 4.06.
(ii) For any period with respect to which a Lender has failed to
provide the Borrower with the form required pursuant to this Section
4.06, if any, (other than if such failure is due to a change in a
Governmental Requirement occurring subsequent to the date on which a
form originally was required to be provided), such Lender shall not be
entitled to indemnification under Section 4.06 with respect to taxes
imposed by the United States which taxes would not have been imposed
but for such failure to provide such forms; provided, however, that
should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax becomes subject to taxes because of its failure
to deliver a form
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required hereunder, the Borrower shall take such steps as such Lender
shall reasonably request to assist such Lender to recover such taxes.
(iii) Any Lender claiming any additional amounts payable pursuant
to this Section 4.06 shall use reasonable efforts (consistent with
legal and regulatory restrictions) to file any certificate or document
requested by the Borrower or the Agent or to change the jurisdiction of
its Applicable Lending Office or to contest any tax imposed if the
making of such a filing or change or contesting such tax would avoid
the need for or reduce the amount of any such additional amounts that
may thereafter accrue and would not, in the sole determination of such
Lender, be otherwise disadvantageous to such Lender.
ARTICLE V
Capital Adequacy
Section 5.01 Additional Costs.
(a) Eurodollar Regulations, etc. The Borrower shall pay directly to
each Lender from time to time such amounts as such Lender may determine to
be necessary to compensate such Lender for any costs which it determines
are attributable to its making or maintaining of any LIBOR Loans or issuing
or participating in the Letter of Credit hereunder or its obligation to
make any LIBOR Loans or issue or participate in the Letter of Credit
hereunder, or any reduction in any amount receivable by such Lender
hereunder in respect of any of such LIBOR Loans, the Letter of Credit or
such obligation (such increases in costs and reductions in amounts
receivable being herein called "Additional Costs"), resulting from any
Regulatory Change which: (i) changes the basis of taxation of any amounts
payable to such Lender under this Agreement or any Note in respect of any
of such LIBOR Loans or the Letter of Credit (other than taxes imposed on
the overall net income of such Lender or of its Applicable Lending Office
for any of such LIBOR Loans by the jurisdiction in which such Lender has
its principal office or Applicable Lending Office); or (ii) imposes or
modifies any reserve, special deposit, minimum capital, capital ratio or
similar requirements relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of such Lender, or the
Commitment or Loans of such Lender or the Eurodollar interbank market; or
(iii) imposes any other condition affecting this Agreement or any Note (or
any of such extensions of credit or liabilities) or such Lender's
Commitment or Loans. Each Lender will notify the Agent and the Borrower of
any event occurring after the Closing Date which will entitle such Lender
to compensation pursuant to this Section 5.01(a) as promptly as practicable
after it obtains knowledge thereof and determines to request such
compensation, and will designate a different Applicable Lending Office for
the Loans of such Lender affected by such event if such designation will
avoid the need for, or reduce the amount of, such compensation and will
not, in the sole opinion of such Lender, be disadvantageous to such Lender,
provided that such Lender shall have no obligation to so designate an
Applicable Lending Office located in the United States. If any Lender
requests compensation from the Borrower under this Section 5.01(a), the
Borrower may,
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by notice to such Lender, suspend the obligation of such Lender to make
additional Loans of the Type with respect to which such compensation is
requested until the Regulatory Change giving rise to such request ceases to
be in effect (in which case the provisions of Section 5.04 shall be
applicable).
(b) Regulatory Change. Without limiting the effect of the provisions of
Section 5.01(a), in the event that, by reason of any Regulatory Change or
any other circumstances arising after the Closing Date affecting such
Lender, the Eurodollar interbank market or such Lender's position in such
market, any Lender either (i) incurs Additional Costs based on or measured
by the excess above a specified level of the amount of a category of
deposits or other liabilities of such Lender which includes deposits by
reference to which the interest rate on LIBOR Loans is determined as
provided in this Agreement or a category of extensions of credit or other
assets of such Lender which includes LIBOR Loans or (ii) becomes subject to
restrictions on the amount of such a category of liabilities or assets
which it may hold, then, if such Lender so elects by notice to the
Borrower, the obligation of such Lender to make additional LIBOR Loans
shall be suspended until such Regulatory Change or other circumstances
ceases to be in effect (in which case the provisions of Section 5.04 shall
be applicable).
(c) Capital Adequacy. Without limiting the effect of the foregoing
provisions of this Section 5.01 (but without duplication), the Borrower
shall pay directly to any Lender from time to time on request such amounts
as such Lender may reasonably determine to be necessary to compensate such
Lender or its parent or holding company for any costs which it determines
are attributable to the maintenance by such Lender or its parent or holding
company (or any Applicable Lending Office), pursuant to any Governmental
Requirement following any Regulatory Change, of capital in respect of its
Commitment, its Notes, or its Loans or any interest held by it in the
Letter of Credit, such compensation to include, without limitation, an
amount equal to any reduction of the rate of return on assets or equity of
such Lender or its parent or holding company (or any Applicable Lending
Office) to a level below that which such Lender or its parent or holding
company (or any Applicable Lending Office) could have achieved but for such
Governmental Requirement. Such Lender will notify the Borrower that it is
entitled to compensation pursuant to this Section 5.01(c) as promptly as
practicable after it determines to request such compensation.
(d) Compensation Procedure. Any Lender notifying the Borrower of the
incurrence of additional costs under this Section 5.01 shall in such notice
to the Borrower and the Agent set forth in reasonable detail the basis and
amount of its request for compensation. Determinations and allocations by
each Lender for purposes of this Section 5.01 of the effect of any
Regulatory Change pursuant to Section 5.01(a) or (b), or of the effect of
capital maintained pursuant to Section 5.01(c), on its costs or rate of
return of maintaining Loans or its obligation to make Loans or issue the
Letter of Credit, or on amounts receivable by it in respect of Loans or the
Letter of Credit, and of the amounts required to compensate such Lender
under this Section 5.01, shall be conclusive and binding for all purposes,
provided that such determinations and allocations are made on a reasonable
basis. Any request for additional compensation under this Section 5.01
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shall be paid by the Borrower within thirty (30) days of the receipt by the
Borrower of the notice described in this Section 5.01(d).
Section 5.02 Limitation on LIBOR Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of LIBOR for any Interest
Period:
(i) the Agent determines (which determination shall be conclusive,
absent manifest error) that quotations of interest rates for the relevant
deposits referred to in the definition of "LIBOR" in Section 1.02 are not
being provided in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for LIBOR Loans as provided
herein; or
(ii) the Agent determines (which determination shall be conclusive,
absent manifest error) that the relevant rates of interest referred to in
the definition of "LIBOR" in Section 1.02 upon the basis of which the rate
of interest for LIBOR Loans for such Interest Period is to be determined
are not sufficient to adequately cover the cost to the Lenders of making or
maintaining LIBOR Loans;
then the Agent shall give the Borrower prompt notice thereof, and so long as
such condition remains in effect, the Lenders shall be under no obligation to
make additional LIBOR Loans.
Section 5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain LIBOR
Loans hereunder, then such Lender shall promptly notify the Borrower thereof and
such Lender's obligation to make LIBOR Loans shall be suspended until such time
as such Lender may again make and maintain LIBOR Loans (in which case the
provisions of Section 5.04 shall be applicable).
Section 5.04 Base Rate Loans Pursuant to Sections 5.01, 5.02 and 5.03.
If the obligation of any Lender to make LIBOR Loans shall be suspended pursuant
to Sections 5.01, 5.02 or 5.03 ("Affected Loans"), all Affected Loans which
would otherwise be made by such Lender shall be made instead as Base Rate Loans
(and, if an event referred to in Section 5.01(b) or Section 5.03 has occurred
and such Lender so requests by notice to the Borrower, all Affected Loans of
such Lender then outstanding shall be automatically converted into Base Rate
Loans on the date specified by such Lender in such notice) and, to the extent
that Affected Loans are so made as (or converted into) Base Rate Loans, all
payments of principal which would otherwise be applied to such Lender's Affected
Loans shall be applied instead to its Base Rate Loans.
Section 5.05 Compensation. The Borrower shall pay to each Lender within
thirty (30) days of receipt of written request of such Lender (which request
shall set forth, in reasonable detail, the basis for requesting such amounts and
which shall be conclusive and binding for all purposes provided that such
determinations are made on a reasonable basis), such amount or amounts as shall
compensate it for any loss, cost, expense or liability which such Lender
determines are attributable to:
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(i) any payment, prepayment or conversion of a LIBOR Loan properly made
by such Lender or the Borrower for any reason (including, without
limitation, the acceleration of the Loans pursuant to Section 10.02) on a
date other than the last day of the Interest Period for such Loan; or
(ii) any failure by the Borrower for any reason (including but not
limited to, the failure of any of the conditions precedent specified in
Article VI to be satisfied) to borrow, continue or convert a LIBOR Loan
from such Lender on the date for such borrowing, continuation or conversion
specified in the relevant notice given pursuant to Section 2.02(c).
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the principal amount so paid, prepaid or converted
or not borrowed for the period from the date of such payment, prepayment or
conversion or failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period for such Loan
which would have commenced on the date specified for such borrowing) at the
applicable rate of interest for such Loan provided for herein over (ii) the
interest component of the amount such Lender would have bid in the London
interbank market for Dollar deposits of leading banks in amounts comparable to
such principal amount and with maturities comparable to such period (as
reasonably determined by such Lender).
ARTICLE VI
Conditions Precedent
Section 6.01 Initial Funding.
The obligation of the Lenders to make the Initial Funding is subject to
the receipt by the Agent and the Lenders of all fees payable pursuant to Section
2.04 on or before the Closing Date and the receipt by the Agent of the following
documents and satisfaction of the other conditions provided in this Section
6.01, each of which shall be satisfactory to the Agent in form and substance:
(a) A certificate of the Secretary or an Assistant Secretary of the
General Partner setting forth (i) resolutions of its board of directors
with respect to the authorization of the Borrower and the Guarantor to
execute and deliver the Loan Documents to which it is a party and to enter
into the transactions contemplated in those documents, (ii) the officers of
the General Partner (y) who are authorized to sign the Loan Documents to
which Borrower or the Guarantor is a party and (z) who will, until replaced
by another officer or officers duly authorized for that purpose, act as its
representative for the purposes of signing documents and giving notices and
other communications in connection with this Agreement and the transactions
contemplated hereby, (iii) specimen signatures of the authorized officers,
and (iv) the Partnership Agreement and the partnership agreement of the
Guarantor, certified as being true and
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complete. The Agent and the Lenders may conclusively rely on such
certificate until the Agent receives notice in writing from the General
Partner to the contrary.
(b) Certificates of the appropriate state agencies with respect to the
existence, qualification and good standing of the Borrower and Guarantor.
(c) A compliance certificate which shall be substantially in the form
of Exhibit C, duly and properly executed by a Responsible Officer and dated
as of the date of the Initial Funding.
(d) The Notes, duly completed and executed.
(e) The Security Instruments, including those described on Exhibit E,
duly completed and executed in sufficient number of counterparts for
recording, if necessary.
(f) Opinions of:
(i) Xxxxxxxx & Xxxxxx L.L.P., special
counsel to the Borrower and Guarantor,
substantially in the form of Exhibit D-1 hereto;
(ii) Xxxxxxx and Xxxxxx, special Illinois
counsel to the Borrower in the form of Exhibit
D-2; and
(iii) Special Wyoming counsel to the
Borrower in the form of Exhibit D-3 hereto.
(g) A certificate of insurance coverage of the Borrower evidencing that
the Borrower is carrying insurance in accordance with Section 7.19 hereof.
(h) Completion, satisfactory to the Agent of due diligence, which shall
include, without limitation, the receipt of title information, in form and
substance reasonably satisfactory to the Agent, as the Agent may require
concerning the status of title to the Borrower's interest in the Painter
Gas Plant and the Xxxx Terminal as requested by the Agent.
(i) The Agent shall be reasonably satisfied with the environmental
condition of the Mortgaged Properties of the Borrower including review of
environmental information of the Borrower relating to the Painter Gas Plant
and the Xxxx Terminal.
(j) Xxxxxx Xxxxxx, Inc. shall have acquired 100%
of the common stock of the General Partner pursuant
to the Purchase and Sale Agreement dated January 8,
1997 between Enron Liquids Holding Corp. and Xxxxxx
Xxxxxx, Inc.
(k) The Agent shall have been furnished with appropriate UCC search
certificates reflecting the filing of all financing statements required to
perfect the security interests granted by the Security Instruments and
reflecting no prior liens or security interests.
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(l) The Agent shall have received title insurance within sixty days of
the closing date in the amount of $1,000,000 insuring that the Security
Instrument covering the Xxxx Terminal constitutes a valid lien on the Xxxx
Terminal having the priority required by the Agent.
(m) The Borrower shall have given the notice to the Trustee required to
cause the Wachovia Letter of Credit to be replaced with the Letter of
Credit.
(n) Such other documents as the Agent or any Lender or special counsel
to the Agent may reasonably request.
Section 6.02 Initial and Subsequent Loans and Letter of Credit. The
obligation of the Lenders to make Loans to the Borrower upon the occasion of
each borrowing hereunder and to issue the Letter of Credit for the account of
the Borrower (including the Initial Funding) is subject to the further
conditions precedent that, as of the date of such Loans and after giving effect
thereto: (i) no Default shall have occurred and be continuing; (ii) no Material
Adverse Effect shall have occurred; and (iii) the representations and warranties
made by the Borrower in Article VII and in the Security Instruments shall be
true on and as of the date of the making of such Loans or issuance of the Letter
of Credit with the same force and effect as if made on and as of such date and
following such new borrowing, except to the extent such representations and
warranties are expressly limited to an earlier date or the Majority Lenders may
expressly consent in writing to the contrary. Each request for a borrowing or
issuance of the Letter of Credit by the Borrower hereunder shall constitute a
certification by the Borrower to the effect set forth in the preceding sentence
(both as of the date of such notice and, unless the Borrower otherwise notifies
the Agent prior to the date of and immediately following such borrowing or
issuance, renewal, extension or reissuance of a Letter of Credit as of the date
thereof).
ARTICLE VII
Representations and Warranties
The Borrower represents and warrants to the Agent and the Lenders that
(each representation and warranty herein is given as of the Closing Date and
shall be deemed repeated and reaffirmed on the dates of each borrowing and
issuance, renewal, extension or reissuance of a Letter of Credit as provided in
Section 6.02):
Section 7.01 Corporate Existence. Each of the Borrower and each
Subsidiary: (i) is duly organized, legally existing and in good standing under
the laws of the jurisdiction of its incorporation or formation; (ii) has all
requisite partnership or corporate power, and has all material governmental
licenses, authorizations, consents and approvals necessary to own its assets and
carry on its business as now being or as proposed to be conducted; and (iii) is
qualified to do business in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary and where failure so
to qualify would have a Material Adverse Effect.
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Section 7.02 Financial Condition. The audited consolidated and
consolidating balance sheets of the Guarantor and its Consolidated Subsidiaries
as at December 31, 1995 and the related consolidated and consolidating
statements of income, partner's equity and cash flow of the Guarantor and its
Consolidated Subsidiaries for the fiscal year ended on said date, with the
opinion thereon of Xxxxxx Xxxxxxxx & Company heretofore furnished to the Agent
and the unaudited consolidated and consolidating balance sheets of the Guarantor
and its Consolidated Subsidiaries as at September 30, 1996 and their related
consolidated and consolidating statements of income, partner's equity and cash
flow of the Guarantor and its Consolidated Subsidiaries for the 9 -month period
ended on such date heretofore furnished to the Agent, are complete and correct
and fairly present the consolidated financial condition of the Borrower and its
Consolidated Subsidiaries as at said dates and the results of its operations for
the fiscal year and the 9-month period on said dates, all in accordance with
GAAP, as applied on a consistent basis (subject, in the case of the interim
financial statements, to normal year-end adjustments). Neither the Borrower nor
any Subsidiary has on the Closing Date any material Debt, contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in the Financial Statements or in
Schedule 7.02. Since September 30, 1996, there has been no change or event
having a Material Adverse Effect. Since the date of the Financial Statements,
neither the business nor the Properties of the Borrower or any Subsidiary have
been materially and adversely affected as a result of any fire, explosion,
earthquake, flood, drought, windstorm, accident, strike or other labor
disturbance, embargo, requisition or taking of Property or cancellation of
contracts, permits or concessions by any Governmental Authority, riot,
activities of armed forces or acts of God or of any public enemy.
Section 7.03 Litigation. Except as disclosed to the Lenders in Schedule
7.03 hereto, at the Closing Date there is no litigation, legal, administrative
or arbitral proceeding, investigation or other action of any nature pending or,
to the knowledge of the Borrower, threatened against or affecting the Borrower
or any Subsidiary which involves the possibility of any judgment or liability
against the Borrower or any Subsidiary that would have a Material Adverse Effect
not fully covered by insurance (except for normal deductibles).
Section 7.04 No Breach. Neither the execution and delivery of the Loan
Documents, nor compliance with the terms and provisions thereof will conflict
with or result in a breach of, or require any consent which has not been
obtained as of the Closing Date under, the respective charter or by-laws or
partnership agreement of the Borrower or any Subsidiary, or any Governmental
Requirement or any agreement or instrument to which the Borrower or any
Subsidiary is a party or by which it is bound or to which it or its Properties
are subject, or constitute a default under any such agreement or instrument, or
result in the creation or imposition of any Lien upon any of the revenues or
assets of the Borrower or any Subsidiary pursuant to the terms of any such
agreement or instrument other than the Liens created by the Loan Documents.
Section 7.05 Authority. The Borrower has all necessary power and
authority to execute, deliver and perform its obligations under the Loan
Documents to which it is a party; and the execution, delivery and performance by
the Borrower of the Loan Documents to which it is a party, have been duly
authorized by all necessary partnership action on its part; and the
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Loan Documents constitute the legal, valid and binding obligations of the
Borrower, enforceable in accordance with their terms.
Section 7.06 Approvals. No authorizations, approvals or consents of,
and no filings or registrations with, any Governmental Authority are necessary
for the execution, delivery or performance by the Borrower of the Loan Documents
or for the validity or enforce- ability thereof, except for the recording and
filing of the Security Instruments as required by this Agreement.
Section 7.07 Use of Loans. The Revolving Credit Loans shall be used to
refinance the Prior Debt and for general partnership purposes . The Borrower is
not engaged principally, or as one of its important activities, in the business
of extending credit for the purpose, whether immediate, incidental or ultimate,
of buying or carrying margin stock (within the meaning of Regulation G, U or X
of the Board of Governors of the Federal Reserve System) and no part of the
proceeds of any Loan hereunder will be used to buy or carry any margin stock.
Section 7.08 ERISA.
(a) The Borrower, each Subsidiary and each ERISA Affiliate have
complied in all material respects with ERISA and, where applicable, the
Code regarding each Plan, except where the failure to so comply would not
have a Material Adverse Effect.
(b) Each Plan is, and has been, maintained in substantial compliance
with ERISA and, where applicable, the Code, except where the failure to so
maintain a Plan would not have a Material Adverse Effect.
(c) No act, omission or transaction has occurred which could result in
imposition on the Borrower, any Subsidiary or any ERISA Affiliate (whether
directly or indirectly) of (i) either a civil penalty assessed pursuant to
section 502(c), (i) or (l) of ERISA or a tax imposed pursuant to Chapter 43
of Subtitle D of the Code or (ii) breach of fiduciary duty liability
damages under section 409 of ERISA.
(d) No Plan (other than a defined contribution plan) or any trust
created under any such Plan has been terminated since September 2, 1974. No
liability to the PBGC (other than for the payment of current premiums which
are not past due) by the Borrower, any Subsidiary or any ERISA Affiliate
has been or is expected by the Borrower, any Subsidiary or any ERISA
Affiliate to be incurred with respect to any Plan. No ERISA Event with
respect to any Plan has occurred.
(e) Full payment when due has been made of all amounts which the
Borrower, any Subsidiary or any ERISA Affiliate is required under the terms
of each Plan or applicable law to have paid as contributions to such Plan,
and no accumulated funding deficiency (as defined in section 302 of ERISA
and section 412 of the Code), whether or not waived, exists with respect to
any Plan.
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(f) The actuarial present value of the benefit liabilities under each
Plan which is subject to Title IV of ERISA does not, as of the end of the
Borrower's most recently ended fiscal year, exceed the current value of the
assets (computed on a plan termination basis in accordance with Title IV of
ERISA) of such Plan allocable to such benefit liabil- ities. The term
"actuarial present value of the benefit liabilities" shall have the meaning
specified in section 4041 of ERISA.
(g) None of the Borrower, any Subsidiary or any ERISA Affiliate
sponsors, maintains, or contributes to an employee welfare benefit plan, as
defined in section 3(1) of ERISA, including, without limitation, any such
plan maintained to provide benefits to former employees of such entities,
that may not be terminated by the Borrower, a Subsidiary or any ERISA
Affiliate in its sole discretion at any time without any material
liability.
(h) None of the Borrower, any Subsidiary or any ERISA Affiliate
sponsors, maintains or contributes to, or has at any time in the preceding
six calendar years, sponsored, maintained or contributed to, any
Multiemployer Plan.
(i) None of the Borrower, any Subsidiary or any ERISA Affiliate is
required to provide security under section 401(a)(29) of the Code due to a
Plan amendment that results in an increase in current liability for the
Plan.
Section 7.09 Taxes. Except as set out in Schedule 7.09, each of the
Borrower and its Subsidiaries has filed all United States Federal income tax
returns and all other tax returns which are required to be filed by them and
have paid all material taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any Subsidiary. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of taxes
and other governmental charges are, in the opinion of the Borrower, adequate. No
tax lien has been filed and, to the knowledge of the Borrower, no claim is being
asserted with respect to any such tax, fee or other charge.
Section 7.10 Titles, etc.
(a) Except as set out in Schedule 7.10, each of the Borrower and its
Subsidiaries has good and defensible title to its material (individually or
in the aggregate) Properties, free and clear of all Liens except Liens
permitted by Section 9.02.
(b) All leases and agreements necessary for the conduct of the business
of the Borrower and its Subsidiaries are valid and subsisting, in full
force and effect and there exists no default or event or circumstance which
with the giving of notice or the passage of time or both would give rise to
a default under any such lease or leases, which would adversely affect in
any material respect the conduct of the business of the Borrower and its
Subsidiaries.
(c) The rights, Properties and other assets presently owned, leased or
licensed by the Borrower and its Subsidiaries including, without
limitation, all easements and rights of way, include all rights, Properties
and other assets necessary to permit the
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Borrower and its Subsidiaries to conduct their business in all material
respects in the same manner as its business has been conducted prior to the
Closing Date.
(d) All of the assets and Properties of the Borrower and its
Subsidiaries which are reasonably necessary for the operation of its
business are in good working condition (ordinary wear and tear excepted)
and are maintained in accordance with prudent business standards.
Section 7.11 No Material Misstatements. No written information,
statement, exhibit, certificate, document or report furnished to the Agent by
the Borrower or any Subsidiary in connection with the negotiation of this
Agreement contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statement contained therein not
materially misleading in the light of the circumstances in which made and with
respect to the Borrower and its Subsidiaries taken as a whole. There is no fact
peculiar to the Borrower or any Subsidiary which has a Material Adverse Effect
or in the future is reasonably likely to have (so far as the Borrower can now
foresee) a Material Adverse Effect and which has not been set forth in this
Agreement or the other documents, certificates and statements furnished to the
Agent by or on behalf of the Borrower or any Subsidiary prior to, or on, the
Closing Date in connection with the transactions contemplated hereby.
Section 7.12 Investment Company Act. Neither the Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
Section 7.13 Public Utility Holding Company Act. Neither the Borrower
nor any Subsidiary is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," or a "public utility" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
Section 7.14 Subsidiaries. Except as set forth
on Schedule 7.14, the Borrower has no Subsidiaries.
Section 7.15 Location of Business and Offices. The Borrower's principal
place of business and chief executive offices are located at the address stated
on the signature page of this Agreement. The principal place of business and
chief executive office of each Subsidiary are located at the addresses stated on
Schedule 7.14.
Section 7.16 Defaults. Neither the Borrower nor any Subsidiary is in
default nor has any event or circumstance occurred which, but for the expiration
of any applicable grace period or the giving of notice, or both, would
constitute a default under any material agreement or instrument to which the
Borrower or any Subsidiary is a party or by which the Borrower or any Subsidiary
is bound which default would have a Material Adverse Effect. No Default
hereunder has occurred and is continuing.
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Section 7.17 Environmental Matters. Except (i) as provided in Schedule
7.17 or (ii) as would not have a Material Adverse Effect (or with respect to
(c), (d) and (e) below, where the failure to take such actions would not have a
Material Adverse Effect):
(a) Neither any Property of the Borrower or any Subsidiary nor the
operations conducted thereon violate any order or requirement of any court
or Governmental Authority or any Environmental Laws;
(b) Without limitation of clause (a) above, no Property of the Borrower
or any Subsidiary nor the operations currently conducted thereon or, to the
best knowledge of the Borrower, by any prior owner or operator of such
Property or operation, are in violation of or subject to any existing,
pending or, to the best knowledge of Borrower, threatened action, suit,
investigation, inquiry or proceeding by or before any court or Governmental
Authority or to any remedial obligations under Environmental Laws;
(c) All notices, permits, licenses or similar authorizations, if any,
required to be obtained or filed in connection with the operation or use of
any and all Property of the Borrower and each Subsidiary, including without
limitation past or present treatment, storage, disposal or release of a
hazardous substance or solid waste into the environment, have been duly
obtained or filed, and the Borrower and each Subsidiary are in compliance
with the terms and conditions of all such notices, permits, licenses and
similar authorizations;
(d) All hazardous substances, solid waste, and oil and gas exploration
and production wastes, if any, generated at any and all Property of the
Borrower or any Subsidiary have in the past been transported, treated and
disposed of in accordance with Environmental Laws and so as not to pose an
imminent and substantial endangerment to public health or welfare or the
environment, and, to the best knowledge of the Borrower, all such transport
carriers and treatment and disposal facilities have been and are operating
in compliance with Environmental Laws and so as not to pose an imminent and
substantial endangerment to public health or welfare or the environment,
and are not the subject of any existing, pending or threatened action,
investigation or inquiry by any Governmental Authority in connection with
any Environmental Laws;
(e) The Borrower has taken all steps reasonably necessary to determine
and has determined that no hazardous substances, solid waste, or oil and
gas exploration and production wastes, have been disposed of or otherwise
released and there has been no threatened release of any hazardous
substances on or to any Property of the Borrower or any Subsidiary except
in compliance with Environmental Laws and so as not to pose an imminent and
substantial endangerment to public health or welfare or the environment;
(f) To the extent applicable, all Property of the Borrower and each
Subsidiary currently satisfies all design, operation, and equipment
requirements imposed by the OPA or scheduled as of the Closing Date to be
imposed by OPA during the term of this Agreement, and the Borrower does not
have any reason to believe that such Property, to the extent subject to
OPA, will not be able to maintain compliance with the OPA requirements
during the term of this Agreement; and
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(g) Neither the Borrower nor any Subsidiary has any known contingent
liability in connection with any release or threatened release of any oil,
hazardous substance or solid waste into the environment.
Section 7.18 Compliance with the Law. Neither the Borrower nor any
Subsidiary has violated any Governmental Requirement or failed to obtain any
license, permit, franchise or other governmental authorization necessary for the
ownership of any of its Properties or the conduct of its business, which
violation or failure would have (in the event such violation or failure were
asserted by any Person through appropriate action) a Material Adverse Effect.
Section 7.19 Insurance. Schedule 7.19 attached hereto contains an
accurate and complete description of all material policies of fire, liability,
workmen's compensation and other forms of insurance owned or held by the
Borrower and each Subsidiary. All such policies are in full force and effect,
all premiums with respect thereto covering all periods up to and including the
date of the closing have been paid, and no notice of cancellation or termination
has been received with respect to any such policy. Such policies are sufficient
for compliance with all requirements of law and of all agreements to which the
Borrower or any Subsidiary is a party; are valid, outstanding and enforceable
policies; provide adequate insurance coverage in at least such amounts and
against at least such risks (but including in any event public liability) as are
usually insured against in the same general area by companies engaged in the
same or a similar business for the assets and operations of the Borrower and
each Subsidiary; will remain in full force and effect through the respective
dates set forth in Schedule 7.19 without the payment of additional premiums; and
will not in any way be affected by, or terminate or lapse by reason of, the
transactions contemplated by this Agreement. Schedule 7.19 identifies all
material risks, if any, which the Borrower and its Subsidiaries and their
General Partner's Board of Directors or officers have designated as being self
insured. To the best of Borrower's knowledge, neither the Borrower nor any
Subsidiary has been refused any insurance with respect to its assets or
operations, nor has its coverage been limited below usual and customary policy
limits, by an insurance carrier to which it has applied for any such insurance
or with which it has carried insurance during the last three years.
Section 7.20 Hedging Agreements. Schedule 7.20 sets forth, as of the
Closing Date, a true and complete list of all Hedging Agreements (including
commodity price swap agreements, forward agreements or contracts of sale which
provide for prepayment for deferred shipment or delivery of oil, gas or other
commodities) of the Borrower and each Subsidiary, the material terms thereof
(including the type, term, effective date, termination date and notional amounts
or volumes), the net xxxx to market value thereof, all credit support agreements
relating thereto (including any margin required or supplied), and the
counterparty to each such agreement.
Section 7.21 Restriction on Liens. Neither the Borrower nor any of its
Subsidiaries is a party to any agreement or arrangement (other than this
Agreement and the Security Instruments), or subject to any order, judgment, writ
or decree, which either restricts or purports to restrict its ability to grant
Liens to other Persons on or in respect of their respective assets of
Properties.
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Section 7.22 Material Agreements. Set forth on Schedule 7.22 hereto is
a complete and correct list of all material agreements, leases, indentures,
purchase agreements, obligations in respect of letters of credit, guarantees,
joint venture agreements, and other instruments in effect or to be in effect as
of the Closing Date (other than Hedging Agreements) providing for, evidencing,
securing or otherwise relating to any Debt of the Borrower or any of its
Subsidiaries, and all obligations of the Borrower or any of its Subsidiaries to
issuers of surety or appeal bonds issued for account of the Borrower or any such
Subsidiary, and such list correctly sets forth the names of the debtor or lessee
and creditor or lessor with respect to the Debt or lease obligations outstanding
or to be outstanding and the property subject to any Lien securing such Debt or
lease obligation. The Borrower has heretofore delivered to the Agent a complete
and correct copy of all such material credit agreements, indentures, purchase
agreements, contracts, letters of credit, guarantees, joint venture agreements,
or other instruments, including any modifications or supplements thereto, as in
effect on the Closing Date.
Section 7.23 Partnership Agreement. The Partnership Agreement has not
been terminated, is in full force and effect as of the date hereof and no
default has occurred and is in continuance thereunder which would have a
Material Adverse Effect.
ARTICLE VIII
Affirmative Covenants
The Borrower covenants and agrees that, so long as any of the Commitments
are in effect and until payment in full of all Indebtedness hereunder, all
interest thereon and all other amounts payable by the Borrower hereunder:
Section 8.01 Financial Statements. The Borrower shall deliver, or shall
cause to be delivered, to the Agent with sufficient copies of each for the
Lenders:
(a) As soon as available and in any event within 120 days after the end
of each fiscal year of the Borrower: (i) the unaudited consolidated and
consolidating statements of income, partners' equity, changes in financial
position and cash flow of the Borrower and its Consolidated Subsidiaries
for such fiscal year, and the related consolidated and consolidating
balance sheets of the Borrower and its Consolidated Subsidiaries as at the
end of such fiscal year, and (ii) the audited consolidated and
consolidating statements of income, partner's equity, changes in financial
position and cash flow of the Guarantor and its Consolidated Subsidiaries
for such fiscal year, and the related consolidated and consolidating
balance sheets of Guarantor and its Consolidated Subsidiaries at the end of
such fiscal year and accompanied by the related opinion of independent
public accountants of recognized national standing acceptable to the Agent
which opinion shall state that said financial statements of Guarantor and
its Consolidated Subsidiaries fairly present the consolidated and
consolidating financial condition and results of operations of the
Guarantor and its Consolidated Subsidiaries as at the end of, and for, such
fiscal year and that such financial statements have been prepared in
accordance with GAAP except for such changes in such principles with which
the
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independent public accountants shall have concurred and such opinion shall
not contain a "going concern" or like qualification or exception, and a
certificate of such accountants stating that, in making the examination
necessary for their opinion, they obtained no knowledge, except as
specifically stated, of any Default.
(b) As soon as available and in any event within 60 days after the end
of each of the first three fiscal quarterly periods of each fiscal year of
the Borrower and Guarantor, unaudited consolidated and consolidating
statements of income, partners' equity, changes in financial position and
cash flow of the Borrower and Guarantor for such period and for the period
from the beginning of the respective fiscal year to the end of such period,
and the related unaudited consolidated and consolidating balance sheets as
at the end of such period, accompanied by the certificate of a Responsible
Officer, which certificate shall state that said financial statements
fairly present the consolidated and consolidating financial condition and
results of operations of the Borrower and Guarantor in accordance with
GAAP, as at the end of, and for, such period (subject to normal year-end
audit adjustments).
(c) Promptly after the Borrower knows that any Default or any Material
Adverse Effect has occurred, a notice of such Default or Material Adverse
Effect, describing the same in reasonable detail and the action the
Borrower proposes to take with respect thereto.
(d) Promptly upon receipt thereof, a copy of each other report or
letter submitted to the Borrower or by independent accountants in
connection with any annual, interim or special audit made by them of the
books of the Borrower and Guarantor, and a copy of any response by the
Borrower or Guarantor, or the Board of Directors of the General Partner of
the Borrower or Guarantor, to such letter or report.
(e) Promptly upon its becoming available, each financial statement,
report, notice or proxy statement sent by the Guarantor to stockholders
generally and each regular or periodic report and any registration
statement, prospectus or written communication (other than transmittal
letters) in respect thereof filed by the Guarantor with or received by the
Guarantor in connection therewith from any securities exchange or the SEC
or any successor agency.
(f) Promptly after the furnishing thereof, copies of any statement,
report or notice furnished to or any Person pursuant to the terms of any
indenture, loan or credit or other similar agreement, other than this
Agreement and not otherwise required to be furnished to the Agent pursuant
to any other provision of this Section 8.01.
(g) From time to time such other information regarding the business,
affairs or financial condition of the Borrower or any Subsidiary
(including, without limitation, any Plan or Multiemployer Plan and any
reports or other information required to be filed under ERISA) as the
Required Lenders or the Agent may reasonably request.
(h) As soon as available and in any event within ten (10) Business Days
after the last day of each calendar quarter, a report, in form and
substance satisfactory to the
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Agent, setting forth as of the last Business Day of such calendar quarter a
true and complete list of all Hedging Agreements (including commodity price
swap agreements, forward agreements or contracts of sale which provide for
prepayment for deferred shipment or delivery of oil, gas or other
commodities) of the Borrower and each Subsidiary, the material terms
thereof (including the type, term, effective date, termination date and
notional amounts or volumes), the net xxxx to market value therefor, any
new credit support agreements relating thereto not listed on Schedule 7.20,
any margin required or supplied under any credit support document, and the
counterparty to each such agreement.
The Borrower will furnish to the Agent, at the time it furnishes each set of
financial statements pursuant to paragraph (a) or (b) above, a certificate
substantially in the form of Exhibit C hereto executed by a Responsible Officer
(i) certifying as to the matters set forth therein and stating that no Default
has occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail), and (ii) setting forth in
reasonable detail the computations necessary to determine whether the Borrower
is in compliance with Sections 9.12 and 9.13 as of the end of the respective
fiscal quarter or fiscal year.
Section 8.02 Litigation. The Borrower shall promptly give to the Agent
notice of all legal or arbitral proceedings, and of all proceedings before any
Governmental Authority affecting the Borrower or any Subsidiary, except
proceedings which, if adversely determined, would not have a Material Adverse
Effect. The Borrower will, and will cause each of its Subsidiaries to, promptly
notify the Agent of any claim, judgment, Lien or other encumbrance affecting any
Property of the Borrower or any Subsidiary if the value of the claim, judgment,
Lien, or other encumbrance affecting such Property shall exceed $250,000.
Section 8.03 Maintenance, Etc.
(a) The Borrower shall and shall cause each Subsidiary to: preserve and
maintain its existence and all of its material rights, privileges and
franchises; keep books of record and account in which full, true and
correct entries will be made of all dealings or transactions in relation to
its business and activities; comply with all Governmental Requirements if
failure to comply with such requirements will have a Material Adverse
Effect; pay and discharge all taxes, assessments and governmental charges
or levies imposed on it or on its income or profits or on any of its
Property prior to the date on which penalties attach thereto, except for
any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which
adequate reserves are being maintained; upon reasonable notice, permit
representatives of the Agent, during normal business hours, to examine,
copy and make extracts from its books and records, to inspect its
Properties, and to discuss its business and affairs with its officers, all
to the extent reasonably requested by the Agent; and keep, or cause to be
kept, insured by financially sound and reputable insurers all Property of a
character usually insured by Persons engaged in the same or similar
business similarly situated against loss or damage of the kinds and in the
amounts customarily insured against by such Persons and carry such other
insurance as is usually carried by such Persons including, without
limitation, environmental risk insurance to the extent reasonably
available.
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(b) Contemporaneously with the delivery of the financial statements
required by Section 8.01(a) to be delivered for each year, the Borrower
will furnish or cause to be furnished to the Agent a certificate of
insurance coverage from the insurer in form and substance satisfactory to
the Agent and, if requested, will furnish the Agent copies of the
applicable policies.
(c) The Borrower will and will cause each Subsidiary to operate its
Properties or cause such Properties to be operated in a careful and
efficient manner in accordance with the practices of the industry and in
compliance with all applicable contracts and agreements and in compliance
in all material respects with all Governmental Requirements.
Section 8.04 Environmental Matters.
(a) The Borrower will and will cause each Subsidiary to establish and
implement such procedures as may be reasonably necessary to continuously
determine and assure that any failure of the following does not have a
Material Adverse Effect: (i) all Property of the Borrower and its
Subsidiaries and the operations conducted thereon and other activities of
the Borrower and its Subsidiaries are in compliance with and do not violate
the requirements of any Environmental Laws, (ii) no oil, hazardous
substances or solid wastes are disposed of or otherwise released on or to
any Property owned by any such party except in compliance with
Environmental Laws, (iii) no hazardous substance will be released on or to
any such Property in a quantity equal to or exceeding that quantity which
requires reporting pursuant to Section 103 of CERCLA, and (iv) no oil, oil
and gas exploration and production wastes or hazardous substance is
released on or to any such Property so as to pose an imminent and
substantial endangerment to public health or welfare or the environment.
(b) The Borrower will promptly notify the Agent in writing of any
threatened action, investigation or inquiry by any Governmental Authority
of which the Borrower has knowledge in connection with any Environmental
Laws, excluding routine testing and corrective action.
Section 8.05 Further Assurances. The Borrower will cure promptly any
defects in the creation and issuance of the Notes and the execution and delivery
of the Security Instruments and this Agreement. The Borrower at its expense will
promptly execute and deliver to the Agent upon request all such other documents,
agreements and instruments to comply with or accomplish the covenants and
agreements of the Borrower in the Security Instruments and this Agreement, or to
further evidence and more fully describe the collateral intended as security for
the Notes, or to correct any omissions in the Security Instruments, or to state
more fully the security obligations set out herein or in any of the Security
Instruments, or to perfect, protect or preserve any Liens created pursuant to
any of the Security Instruments, or to make any recordings, to file any notices
or obtain any consents, all as may be necessary or appropriate in connection
therewith.
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Section 8.06 Performance of Obligations. The Borrower will pay the
Notes according to the reading, tenor and effect thereof; and the Borrower will
do and perform every act and discharge all of the obligations to be performed
and discharged by it under the Security Instruments and this Agreement, at the
time or times and in the manner specified.
Section 8.07 ERISA Information and Compliance. The Borrower will
promptly furnish and will cause the Subsidiaries and any ERISA Affiliate to
promptly furnish to the Agent with sufficient copies to the Lenders (i) promptly
after the filing thereof with the United States Secretary of Labor, the Internal
Revenue Service or the PBGC, copies of each annual and other report with respect
to each Plan or any trust created thereunder, (ii) immediately upon becoming
aware of the occurrence of any ERISA Event or of any "prohibited transaction,"
as described in section 406 of ERISA or in section 4975 of the Code, in
connection with any Plan or any trust created thereunder, a written notice
signed by a Responsible Officer specifying the nature thereof, what action the
Borrower, the Subsidiary or the ERISA Affiliate is taking or proposes to take
with respect thereto, and, when known, any action taken or proposed by the
Internal Revenue Service, the Department of Labor or the PBGC with respect
thereto, and (iii) immediately upon receipt thereof, copies of any notice of the
PBGC's intention to terminate or to have a trustee appointed to administer any
Plan. With respect to each Plan (other than a Multiemployer Plan), the Borrower
will, and will cause each Subsidiary and ERISA Affiliate to, (i) satisfy in full
and in a timely manner, without incurring any late payment or underpayment
charge or penalty and without giving rise to any lien, all of the contribution
and funding requirements of section 412 of the Code (determined without regard
to subsections (d), (e), (f) and (k) thereof) and of section 302 of ERISA
(determined without regard to sections 303, 304 and 306 of ERISA), and (ii) pay,
or cause to be paid, to the PBGC in a timely manner, without incurring any late
payment or underpayment charge or penalty, all premiums required pursuant to
sections 4006 and 4007 of ERISA.
Section 8.08 Replacement of Wachovia Bank of Georgia, N.A.. Borrower
will use its best efforts and will cooperate with First Union and the
Remarketing Agent to cause the Replacement Letter of Credit to replace the
existing letter of credit supporting the Bonds, on March 3, 1997.
ARTICLE IX
Negative Covenants
The Borrower covenants and agrees that, so long as any of the Commitments
are in effect and until payment in full of all Indebtedness hereunder, all
interest thereon and all other amounts payable by the Borrower hereunder,
without the prior written consent of the Majority Lenders:
Section 9.01 Debt. Neither the Borrower nor any
Subsidiary will incur, create, assume or suffer to exist
any Debt, except:
(a) the Notes or other Indebtedness arising under the Loan Documents or
any guaranty of or suretyship arrangement for the Notes or other
Indebtedness arising under the Loan Documents;
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(b) Debt of the Borrower existing on the Closing Date which is
reflected in the Financial Statements or is disclosed in Schedule 9.01, and
any renewals or extensions (but not increases) thereof;
(c) accounts payable (for the deferred purchase price of Property or
services) from time to time incurred in the ordinary course of business
which, if greater than 90 days past the invoice or billing date, are being
contested in good faith by appropriate proceedings if reserves adequate
under GAAP shall have been established therefor;
(d) Debt under capital leases (as required to be reported on the
financial statements of the Borrower pursuant to GAAP) not to exceed
$150,000 outstanding at any one time;
(e) Debt of the Borrower under Hedging Agreements with First Union or
as approved by the Majority Lenders.
(f) Debt of a Special Purpose Subsidiary which
is non recourse to the Borrower or the Guarantor on
terms acceptable to the Majority Lenders; and
(g) other Debt of the Borrower not to exceed $1,000,000 in the
aggregate outstanding at any time (excluding Debt owed to Wachovia Bank of
Georgia, N.A. under the Letter of Credit and Reimbursement Agreement dated
June 25, 1996 between Borrower and Wachovia Bank of Georgia, N.A. pending
issuance of the Replacement Letter of Credit).
Section 9.02 Liens. Neither the Borrower nor any Subsidiary will
create, incur, assume or permit to exist any Lien on any of its Properties (now
owned or hereafter acquired), except:
(a) Liens securing the payment of any
Indebtedness;
(b) Excepted Liens;
(c) Liens securing leases allowed under Section
9.01(d) but only on the Property under lease; and
(d) Liens disclosed on Schedule 9.02.
Section 9.03 Investments, Loans and Advances. Neither the Borrower nor
any Subsidiary will make or permit to remain outstanding any loans or advances
to or investments in any Person, except that the foregoing restriction shall not
apply to:
(a) investments, loans or advances reflected in
the Financial Statements or which are disclosed to
the Lenders in Schedule 9.03;
(b) accounts receivable arising in the ordinary
course of business;
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(c) direct obligations of the United States or any agency thereof, or
obligations guaranteed by the United States or any agency thereof, in each
case maturing within one year from the date of creation thereof;
(d) commercial paper maturing within one year from the date of creation
thereof rated in the highest grade by Standard & Poor's Corporation or
Xxxxx'x Investors Service, Inc.;
(e) deposits maturing within one year from the date of creation thereof
with, including certificates of deposit issued by, any Lender or any office
located in the United States of any other bank or trust company which is
organized under the laws of the United States or any state thereof, has
capital, surplus and undivided profits aggregating at least $100,000,000.00
(as of the date of such Lender's or bank or trust company's most recent
financial reports) and has a short term deposit rating of no lower than A2
or P2, as such rating is set forth from time to time, by Standard & Poor's
Corporation or Xxxxx'x Investors Service, Inc., respectively;
(f) deposits in money market funds investing
exclusively in investments described in Section
9.03(c), 9.03(d) or 9.03(e);
(g) other investments, loans or advances not to
exceed $500,000 in the aggregate at any time.
Section 9.04 Dividends, Distributions and Redemptions. The Borrower
will not declare or pay any dividend, purchase, redeem or otherwise acquire for
value any of its partnership interests now or hereafter outstanding, return any
capital to its partners or make any distribution of its assets to its partners,
except that the Borrower may make distributions to its partners provided that no
Default shall have occurred and be continuing or would result from such
distribution.
Section 9.05 Sales and Leasebacks. Neither the Borrower nor any
Subsidiary will enter into any arrangement, directly or indirectly, with any
Person whereby the Borrower or any Subsidiary shall sell or transfer any of its
Property, whether now owned or hereafter acquired, and whereby the Borrower or
any Subsidiary shall then or thereafter rent or lease as lessee such Property or
any part thereof or other Property which the Borrower or any Subsidiary intends
to use for substantially the same purpose or purposes as the Property sold or
transferred.
Section 9.06 Nature of Business. Neither the Borrower nor any
Subsidiary will allow any material change to be made in the character of its
business.
Section 9.07 Limitation on Leases. Neither the Borrower nor any
Subsidiary will create, incur, assume or suffer to exist any obligation for the
payment of rent or hire of Property of any kind whatsoever (real or personal
including capital leases), under leases or lease agreements which would cause
the aggregate amount of all payments made by the Borrower and its Subsidiaries
pursuant to all such leases or lease agreements to exceed $50,000 in any period
of twelve consecutive calendar months during the life of such leases.
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Section 9.08 Mergers, Etc. Neither the Borrower nor any Subsidiary will
merge into or with or consolidate with any other Person, or sell, lease or
otherwise dispose of (whether in one transaction or in a series of transactions)
all or substantially all of its Property or assets to any other Person.
Section 9.09 Proceeds of Notes. The Borrower will not permit the
proceeds of the Notes to be used for any purpose other than those permitted by
Section 7.07. Neither the Borrower nor any Person acting on behalf of the
Borrower has taken or will take any action which might cause any of the Loan
Documents to violate Regulation G, U or X or any other regulation of the Board
of Governors of the Federal Reserve System or to violate Section 7 of the
Securities Exchange Act of 1934 or any rule or regulation thereunder, in each
case as now in effect or as the same may hereinafter be in effect.
Section 9.10 ERISA Compliance. The Borrower will not at any time:
(a) Engage in, or permit any Subsidiary or ERISA Affiliate to engage
in, any transaction in connection with which the Borrower, any Subsidiary
or any ERISA Affiliate could be subjected to either a civil penalty
assessed pursuant to section 502(c), (i) or (l) of ERISA or a tax imposed
by Chapter 43 of Subtitle D of the Code;
(b) Terminate, or permit any Subsidiary or ERISA Affiliate to
terminate, any Plan in a manner, or take any other action with respect to
any Plan, which could result in any material liability to the Borrower, any
Subsidiary or any ERISA Affiliate to the PBGC;
(c) Fail to make, or permit any Subsidiary or ERISA Affiliate to fail
to make, full payment when due of all amounts which, under the provisions
of any Plan, agreement relating thereto or applicable law, the Borrower, a
Subsidiary or any ERISA Affiliate is required to pay as contributions
thereto;
(d) Permit to exist, or allow any Subsidiary or ERISA Affiliate to
permit to exist, any accumulated funding deficiency within the meaning of
Section 302 of ERISA or section 412 of the Code, whether or not waived,
with respect to any Plan;
(e) Permit, or allow any Subsidiary or ERISA Affiliate to permit, the
actuarial present value of the benefit liabilities under any Plan
maintained by the Borrower, any Subsidiary or any ERISA Affiliate which is
regulated under Title IV of ERISA to exceed the current value of the assets
(computed on a plan termination basis in accordance with Title IV of ERISA)
of such Plan allocable to such benefit liabilities. The term "actuarial
present value of the benefit liabilities" shall have the meaning specified
in section 4041 of ERISA;
(f) Contribute to or assume an obligation to contribute to, or permit
any Subsidiary or ERISA Affiliate to contribute to or assume an obligation
to contribute to, any Multiemployer Plan;
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(g) Acquire, or permit any Subsidiary or ERISA Affiliate to acquire, an
interest in any Person that causes such Person to become an ERISA Affiliate
with respect to the Borrower, any Subsidiary or any ERISA Affiliate if such
Person sponsors, maintains or contributes to, or at any time in the
six-year period preceding such acquisition has sponsored, maintained, or
contributed to, (1) any Multiemployer Plan, or (2) any other Plan that is
subject to Title IV of ERISA under which the actuarial present value of the
benefit liabilities under such Plan exceeds the current value of the assets
(computed on a plan termination basis in accordance with Title IV of ERISA)
of such Plan allocable to such benefit liabilities;
(h) Incur, or permit any Subsidiary or ERISA Affiliate to incur, a
liability to or on account of a Plan under sections 515, 4062, 4063, 4064,
4201 or 4204 of ERISA;
(i) Contribute to or assume an obligation to contribute to, or permit
any Subsidiary or ERISA Affiliate to contribute to or assume an obligation
to contribute to, any employee welfare benefit plan, as defined in section
3(1) of ERISA, including, without limitation, any such plan maintained to
provide benefits to former employees of such entities, that may not be
terminated by such entities in their sole discretion at any time without
any material liability; or
(j) Amend or permit any Subsidiary or ERISA Affiliate to amend, a Plan
resulting in an increase in current liability such that the Borrower, any
Subsidiary or any ERISA Affiliate is required to provide security to such
Plan under section 401(a)(29) of the Code.
Section 9.11 Sale or Discount of Receivables. Neither the Borrower nor
any Subsidiary will discount or sell (with or without recourse) any of its notes
receivable or accounts receivable.
Section 9.12 Current Ratio. The Borrower will not permit its ratio of
(i) consolidated current assets plus the amount of the unused Aggregate
Revolving Credit Commitments to (ii) consolidated current liabilities (excluding
current maturities of the Notes) to be less than 1.1 to 1.0 at any time.
Section 9.13 Debt Service Coverage Ratio. The Borrower will not permit
its Debt Service Ratio as of the end of any fiscal quarter of the Borrower
(calculated quarterly at the end of each fiscal quarter) to be less than 1.25 to
1.00. For purposes of this Section 9.13, "Debt Service Ratio" shall mean the
ratio of (i) EBITDA for the four fiscal quarters ending on such date to (ii)
cash payments made for principal and interest on Debt of the Borrower and its
Consolidated Subsidiaries other than as permitted under Section 9.01(f) for such
four fiscal quarters of the Borrower and its Consolidated Subsidiaries.
Section 9.14 Sale of Properties. The Borrower will not, and will not
permit any Subsidiary to, sell, assign, convey or otherwise transfer any
Property except for non Mortgaged Property and which shall not exceed $150,000
in the aggregate in any fiscal year.
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Section 9.15 Environmental Matters. Neither the Borrower nor any
Subsidiary will cause or permit any of its Property to be in violation of, or do
anything or permit anything to be done which will subject any such Property to
any remedial obligations under any Environmental Laws, assuming disclosure to
the applicable Governmental Authority of all relevant facts, conditions and
circumstances, if any, pertaining to such Property where such violations or
remedial obligations would have a Material Adverse Effect.
Section 9.16 Transactions with Affiliates. Neither the Borrower nor any
Subsidiary will enter into any transaction, including, without limitation, any
purchase, sale, lease or exchange of Property or the rendering of any service,
with any Affiliate unless such transactions are otherwise permitted under this
Agreement, are in the ordinary course of its business and are upon fair and
reasonable terms no less favorable to it than it would obtain in a comparable
arm's length transaction with a Person not an Affiliate.
Section 9.17 Subsidiaries. The Borrower shall not, and shall not permit
any Subsidiary to, create any additional Subsidiaries or partnerships except for
Subsidiaries which are established solely for the purpose of acquiring
Properties financed by Debt which is non recourse to the Borrower and the
Guarantor ("Special Purpose Subsidiary"). The Borrower shall not and shall not
permit any Subsidiary to sell or to issue any stock or ownership interest of a
Subsidiary except to the Borrower or Guarantor and except in compliance with
Section 9.03.
Section 9.18 Negative Pledge Agreements. Neither the Borrower nor any
Subsidiary will create, incur, assume or suffer to exist any contract, agreement
or understanding (other than this Agreement and the Security Instruments) which
in any way prohibits or restricts the granting, conveying, creation or
imposition of any Lien on any of its Property or restricts any Subsidiary from
paying dividends to the Borrower, or which requires the consent of or notice to
other Persons in connection therewith.
Section 9.19 Partnership Agreement. The Borrower will not amend or
permit to be amended the Partnership Agreement without the prior written consent
of the Majority Lenders.
ARTICLE X
Events of Default; Remedies
Section 10.01 Events of Default. One or more of
the following events shall constitute an "Event of
Default":
(a) the Borrower shall (i) default in the payment or prepayment when
due of any principal on any Loan or any reimbursement obligation for a
disbursement made under the Letter of Credit, (ii) default, and such
default shall continue unremedied for three (3) or more Business Days, in
the payment when due of any interest on any Loan or any fees or other
amount payable by it under the Loan Documents; or
(b) the Borrower, any Subsidiary or Xxxxxx
Xxxxxx Energy or any of its Subsidiaries shall
default in the payment when due of any principal of
or interest on any
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of its other Debt aggregating $1,000,000 or more, or any event specified in
any note, agreement, indenture or other document evidencing or relating to
any such Debt shall occur if the effect of such event is to cause, or (with
the giving of any notice or the lapse of time or both) to permit the holder
or holders of such Debt (or a trustee or agent on behalf of such holder or
holders) to cause, such Debt to become due prior to its stated maturity;
provided, however, that no default under Debt owed by Mont Belview
Associates which is non-recourse to Xxxxxx Xxxxxx Energy shall constitute
an Event of Default under Section 10.01(b); or
(c) any representation, warranty or certification made or deemed made
herein or in any Security Instrument by the Borrower or any Subsidiary or
the Guarantor, or any certificate furnished to any Lender or the Agent
pursuant to the provisions hereof or any Security Instrument, shall prove
to have been false or misleading as of the time made or furnished in any
material respect; or
(d) the Borrower shall default in the performance of any of its
obligations under Article IX or any other Article of this Agreement other
than under Article VIII; or the Borrower shall default in the performance
of any of its obligations under Article VIII or any Security Instrument
(other than the payment of amounts due which shall be governed by Section
10.01(a)) and such default shall continue unremedied for a period of thirty
(30) days after the earlier to occur of (i) notice thereof to the Borrower
by the Agent or any Lender (through the Agent), or (ii) the Borrower
otherwise becoming aware of such default; or
(e) the Borrower shall admit in writing its
inability to, or be generally unable to, pay its
debts as such debts become due; or
(f) the Borrower shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence
a voluntary case under the Federal Bankruptcy Code (as now or hereafter in
effect), (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up, liquidation
or composition or readjustment of debts, (v) fail to controvert in a timely
and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Federal Bankruptcy Code, or
(vi) take any partnership action for the purpose of effecting any of the
foregoing; or
(g) a proceeding or case shall be commenced, without the application or
consent of the Borrower, in any court of competent jurisdiction, seeking
(i) its liquida- tion, reorganization, dissolution or winding-up, or the
composition or readjustment of its debts, (ii) the appointment of a
trustee, receiver, custodian, liquidator or the like of the Borrower of all
or any substantial part of its assets, or (iii) similar relief in respect
of the Borrower under any law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, and such
proceeding or case shall continue undismissed, or an order, judgment or
decree approving or ordering any of the foregoing shall be entered and
continue unstayed and in effect, for a period of 60 days; or (iv) an
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order for relief against the Borrower shall be
entered in an involuntary case under the Federal
Bankruptcy Code; or
(h) a judgment or judgments for the payment of money in excess of
$250,000 in the aggregate shall be rendered by a court against the Borrower
or any Subsidiary and the same shall not be discharged (or provision shall
not be made for such discharge), or a stay of execution thereof shall not
be procured, within thirty (30) days from the date of entry thereof and the
Borrower or such Subsidiary shall not, within said period of 30 days, or
such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(i) the Security Instruments after delivery thereof shall for any
reason, except to the extent permitted by the terms thereof, cease to be in
full force and effect and valid, binding and enforceable in accordance with
their terms, or cease to create a valid and perfected Lien of the priority
required thereby on any of the collateral purported to be covered thereby,
except to the extent permitted by the terms of this Agreement, or the
Borrower shall so state in writing; or
(j) the Letter of Credit becomes the subject matter of any order,
judgment, injunction or any other such determination, or if the Borrower or
any other Person shall petition or apply for or obtain any order
restricting payment by First Union under the Letter of Credit or extending
First Union's liability under the Letter of Credit beyond the expiration
date stated therein or otherwise agreed to by First Union; or
(k) the Borrower discontinues its usual business
or suffers to exist any material change in its
ownership, control or management; or
(l) Guarantor takes, suffers or permits to exist any of the events or
conditions referred to in paragraphs (e), (f), (g) or (h) hereof or if any
provision of the Guaranty Agreement shall for any reason cease to be valid
and binding on Guarantor or if Guarantor shall so state in writing or the
Guarantor shall default on any of its covenants under the Guaranty
Agreement; or
(m) any Subsidiary takes, suffers or permits to exist any of the events
or conditions referred to in paragraphs (e), (f), (g) or (h) hereof which
results in a Material Adverse Effect; or
(n) Xxxxxx Xxxxxx, Inc., a Delaware corporation,
or Kinder Xxxxxx X.X. shall suffer any change of
control or ownership.
Section 10.02 Remedies.
(a) In the case of an Event of Default other than one referred to in
clauses (e), (f) or (g) of Section 10.01 or in clause (l) to the extent it
relates to clauses (e), (f) or (g), the Agent, upon request of the Majority
Lenders, shall, by notice to the Borrower, cancel the Commitments and/or
declare the principal amount then outstanding of, and the accrued interest
on, the Loans and all other amounts payable by the Borrower hereunder
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and under the Notes to be forthwith due and payable, whereupon such amounts
shall be immediately due and payable without presentment, demand, protest,
notice of intent to accelerate, notice of acceleration or other formalities
of any kind, all of which are hereby expressly waived by the Borrower.
(b) In the case of the occurrence of an Event of Default referred to in
clauses (e), (f) or (g) of Section 10.01 or in clause (l) to the extent it
relates to clauses (e), (f) or (g), the Commitments shall be automatically
canceled and the principal amount then outstanding of, and the accrued
interest on, the Loans and all other amounts payable by the Borrower
hereunder and under the Notes shall become automatically immediately due
and payable without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration or other formalities of any kind, all of
which are hereby expressly waived by the Borrower.
(c) All proceeds received after maturity of the Notes, whether by
acceleration or otherwise shall be applied first to reimbursement of
expenses and indemnities provided for in this Agreement and the Security
Instruments; second to accrued interest on the Notes; third to fees; fourth
pro rata to principal outstanding on the Notes and other Indebtedness;
fifth to serve as cash collateral to be held by First Union to secure the
LC Maximum Amount; and any excess shall be paid to the Borrower or as
otherwise required by any Governmental Requirement.
ARTICLE XI
The Agent
Section 11.01 Appointment, Powers and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent hereunder and
under the Security Instruments with such powers as are specifically delegated to
the Agent by the terms of this Agreement and the Security Instruments, together
with such other powers as are reasonably incidental thereto. The Agent (which
term as used in this sentence and in Section 11.05 and the first sentence of
Section 11.06 shall include reference to its Affiliates and its and its
Affiliates' officers, directors, employees, attorneys, accountants, experts and
agents): (i) shall have no duties or responsibilities except those expressly set
forth in the Loan Documents, and shall not by reason of the Loan Documents be a
trustee or fiduciary for any Lender; (ii) makes no representation or warranty to
any Lender and shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement, or in any
certificate or other document referred to or provided for in, or received by any
of them under, this Agreement, or for the value, validity, effectiveness,
genuineness, execution, effectiveness, legality, enforceability or sufficiency
of this Agreement, any Note or any other document referred to or provided for
herein or for any failure by the Borrower or any other Person (other than the
Agent) to perform any of its obligations hereunder or thereunder or for the
existence, value, perfection or priority of any collateral security or the
financial or other condition of the Borrower, its Subsidiaries or any other
obligor or guarantor; (iii) except pursuant to Section 11.07 shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder; and (iv) shall not be responsible for any action taken or omitted to
be
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taken by it hereunder or under any other document or instrument referred to or
provided for herein or in connection herewith including its own ordinary
negligence, except for its own gross negligence or willful misconduct. The Agent
may employ agents, accountants, attorneys and experts and shall not be
responsible for the negligence or misconduct of any such agents, accountants,
attorneys or experts selected by it in good faith or any action taken or omitted
to be taken in good faith by it in accordance with the advice of such agents,
accountants, attorneys or experts. The Agent may deem and treat the payee of any
Note as the holder thereof for all purposes hereof unless and until a written
notice of the assignment or transfer thereof permitted hereunder shall have been
filed with the Agent. The Agent is authorized to release any collateral that is
permitted to be sold or released pursuant to the terms of the Loan Documents.
Section 11.02 Reliance by Agent. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof by
telephone, telex, telecopier, telegram or cable) believed by it to be genuine
and correct and to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent.
Section 11.03 Defaults. The Agent shall not be deemed to have knowledge
of the occurrence of a Default (other than the non-payment of principal of or
interest on Loans or of fees or failure to reimburse for Letter of Credit
drawings) unless the Agent has received notice from a Lender or the Borrower
specifying such Default and stating that such notice is a "Notice of Default."
In the event that the Agent receives such a notice of the occurrence of a
Default, the Agent shall give prompt notice thereof to the Lenders. In the event
of a payment Default, the Agent shall give each Lender prompt notice of each
such payment Default.
Section 11.04 Rights as a Lender. With respect to its Commitments and
the Loans made by it and its participation in the issuance of the Letter of
Credit, First Union (and any successor acting as Agent) in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. First Union (and any successor
acting as Agent) and its Affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to and generally engage in any kind
of banking, trust or other business with the Borrower (and any of its
Affiliates) as if it were not acting as the Agent, and First Union and its
Affiliates may accept fees and other consideration from the Borrower for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
Section 11.05 Indemnification. The Lenders agree to indemnify the Agent
ratably in accordance with their Percentage Shares for the Indemnity Matters as
described in Section 12.03 to the extent not indemnified or reimbursed by the
Borrower under Section 12.03, but without limiting the obligations of the
Borrower under said Section 12.03 and for any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Agent in any way relating to or arising
out of: (i) this Agreement, the Security Instruments or any other
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documents contemplated by or referred to herein or the transactions contemplated
hereby, but excluding, unless a Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder or (ii) the enforcement of any of the terms of this Agreement,
any Security Instrument or of any such other documents; whether or not any of
the foregoing specified in this Section 11.05 arises from the sole or concurrent
negligence of the Agent, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Agent.
Section 11.06 Non-Reliance on Agent and other Lenders. Each Lender
acknowledges and agrees that it has, independently and without reliance on the
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Borrower and its
decision to enter into this Agreement, and that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own analysis and decisions in taking or not taking action under this Agreement.
The Agent shall not be required to keep itself informed as to the performance or
observance by the Borrower of this Agreement, the Notes, the Security
Instruments or any other document referred to or provided for herein or to
inspect the properties or books of the Borrower. Except for notices, reports and
other documents and information expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of the Borrower (or any
of its Affiliates) which may come into the possession of the Agent or any of its
Affiliates. In this regard, each Lender acknowledges that Xxxxxx & Xxxxxx L.L.P.
is acting in this transaction as special counsel to the Agent only, except to
the extent otherwise expressly stated in any legal opinion or any Loan Document.
Each Lender will consult with its own legal counsel to the extent that it deems
necessary in connection with the Loan Documents and the matters contemplated
therein.
Section 11.07 Action by Agent. Except for action or other matters
expressly required of the Agent hereunder, the Agent shall in all cases be fully
justified in failing or refusing to act hereunder unless it shall (i) receive
written instructions from the Majority Lenders (or all of the Lenders as
expressly required by Section 12.04) specifying the action to be taken, and (ii)
be indemnified to its satisfaction by the Lenders against any and all liability
and expenses which may be incurred by it by reason of taking or continuing to
take any such action.
The instructions of the Majority Lenders (or all of the Lenders as expressly
required by Section 12.04) and any action taken or failure to act pursuant
thereto by the Agent shall be binding on all of the Lenders. If a Default has
occurred and is continuing, the Agent shall take such action with respect to
such Default as shall be directed by the Majority Lenders (or all of the Lenders
as required by Section 12.04) in the written instructions (with indemnities)
described in this Section 11.07, provided that, unless and until the Agent shall
have received such directions, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interests of the Lenders. In no
event, however, shall the Agent be required to take any action which exposes the
Agent to personal liability or which is contrary to this Agreement and the
Security Instruments or applicable law.
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Section 11.08 Resignation or Removal of Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent may
resign at any time by giving notice thereof to the Lenders and the Borrower, and
the Agent may be removed at any time with or without cause by the Majority
Lenders. Upon any such resignation or removal, the Majority Lenders shall have
the right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Majority Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent. Upon
the acceptance of such appointment hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article XI and Section 12.03 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Agent.
ARTICLE XII
Miscellaneous
Section 12.01 Waiver. No failure on the part of the Agent or any Lender
to exercise and no delay in exercising, and no course of dealing with respect
to, any right, power or privilege under any of the Loan Documents shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
power or privilege under any of the Loan Documents preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
Section 12.02 Notices. All notices and other communications provided
for herein and in the other Loan Documents (including, without limitation, any
modifications of, or waivers or consents under, this Agreement or the other Loan
Documents) shall be given or made by telex, telecopy, courier or U.S. Mail or in
writing and telexed, telecopied, mailed or delivered to the intended recipient
at the "Address for Notices" specified below its name on the signature pages
hereof or in the Loan Documents, except that for notices and other
communications to the Agent other than payment of money, the Borrower need only
send such notices and communications to the Agent care of the Houston address of
First Union Corporation; or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in this Agreement or in the other Loan Documents, all such
communications shall be deemed to have been duly given when transmitted, if
transmitted before 1:00 p.m. local time on a Business Day (otherwise on the next
succeeding Business Day) by telex or telecopier and evidence or confirmation of
receipt is obtained, or personally delivered or, in the case of a mailed notice,
three (3) Business Days after the date deposited in the mails, postage prepaid,
in each case given or addressed as aforesaid.
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Section 12.03 Payment of Expenses, Indemnities,
etc. The Borrower agrees:
(a) whether or not the transactions hereby contemplated are
consummated, pay all reasonable expenses of the Agent in the administration
(both before and after the execution hereof and including advice of counsel
as to the rights and duties of the Agent and the Lenders with respect
thereto) of, and in connection with the negotiation, syndication,
investigation, preparation, execution and delivery of, recording or filing
of, preservation of rights under, enforcement of, and refinancing,
renegotiation or restructuring of, the Loan Documents and any amendment,
waiver or consent relating thereto (including, without limitation, travel,
photocopy, mailing, courier, telephone and other similar expenses of the
Agent, the cost of environmental audits, surveys and appraisals at
reasonable intervals, the reasonable fees and disbursements of counsel and
other outside consultants for the Agent and, in the case of enforcement,
the reasonable fees and disbursements of counsel for the Agent and any of
the Lenders); and promptly reimburse the Agent for all amounts expended,
advanced or incurred by the Agent or the Lenders to satisfy any obligation
of the Borrower under this Agreement or any Security Instrument, including
without limitation, all costs and expenses of foreclosure;
(b) to indemnify the Agent and each Lender and each of their Affiliates
and each of their officers, directors, employees, representatives, agents,
attorneys, accountants and experts ("Indemnified Parties") from, hold each
of them harmless against and promptly upon demand pay or reimburse each of
them for, the Indemnity Matters which may be incurred by or asserted
against or involve any of them (whether or not any of them is designated a
party thereto) as a result of, arising out of or in any way related to (i)
any actual or proposed use by the Borrower of the proceeds of any of the
Loans or The Letter of Credit, (ii) the execution, delivery and performance
of the Loan Documents, (iii) the operations of the business of the Borrower
and its Subsidiaries, (iv) the failure of the Borrower or any Subsidiary to
comply with the terms of any Security Instrument or this Agreement, or with
any Governmental Requirement, (v) any inaccuracy of any representation or
any breach of any warranty of the Borrower or any Guarantor set forth in
any of the Loan Documents, (vi) the issuance, execution and delivery or
transfer of or payment or failure to pay under the Letter of Credit, (vii)
the payment of a drawing under the Letter of Credit notwithstanding the
non-compliance, non-delivery or other improper presentation of the manually
executed draft(s) and certification(s), (viii) any assertion that the
Lenders were not entitled to receive the proceeds received pursuant to the
Security Instruments or (ix) any other aspect of the Loan Documents,
including, without limitation, the reasonable fees and disbursements of
counsel and all other expenses incurred in connection with investigating,
defending or preparing to defend any such action, suit, proceeding
(including any investigations, litigation or inquiries) or claim and
including all Indemnity Matters arising by reason of the ordinary
negligence of any Indemnified Party, but excluding all
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Indemnity Matters arising solely by reason of claims between the Lenders
or any Lender and the Agent or a Lender's shareholders against the Agent or
Lender or by reason of the gross negligence or willful misconduct on the
part of the Indemnified Party; and
(c) to indemnify and hold harmless from time to time the Indemnified
Party from and against any and all losses, claims, cost recovery actions,
administrative orders or proceedings, damages and liabilities to which any
such Person may become subject (i) under any Environmental Law applicable
to the Borrower or any Subsidiary or any of their Properties, including
without limitation, the treatment or disposal of hazardous substances on
any of their Properties, (ii) as a result of the breach or non-compliance
by the Borrower or any Subsidiary with any Environmental Law applicable to
the Borrower or any Subsidiary, (iii) due to past ownership by the Borrower
or any Subsidiary of any of their Properties or past activity on any of
their Properties which, though lawful and fully permissible at the time,
could result in present liability, (iv) the presence, use, release,
storage, treatment or disposal of hazardous substances on or at any of the
Properties owned or operated by the Borrower or any Subsidiary, or (v) any
other environmental, health or safety condition in connection with the Loan
Documents, provided, however, no indemnity shall be afforded under this
Section 12.03(c) in respect of any Property for any occurrence arising from
the acts or omissions of the Agent or any Lender during the period after
which such Person, its successors or assigns shall have obtained possession
of such Property (whether by foreclosure or deed in lieu of foreclosure, as
mortgagee-in-possession or otherwise).
(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 12.03.
(e) In the case of any indemnification hereunder, the Agent or Lender,
as appropriate shall give notice to the Borrower of any such claim or
demand being made against the Indemnified Party and the Borrower shall have
the non-exclusive right to join in the defense against any such claim or
demand provided that if the Borrower provides a defense, the Indemnified
Party shall bear its own cost of defense unless there is a conflict between
the Borrower and such Indemnified Party.
(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 affirma- tive
act or an omission, including without limitation, all types of
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negligent conduct identified in the restatement (second) of torts of one
or more of the Indemnified Parties or by reason of strict liability imposed
without fault on any one or more of the Indemnified Parties. To the
extent that an Indemnified Party is found to have committed an act of gross
negligence or willful misconduct, this contractual obligation of
indemnification shall continue but shall only extend to the portion of the
claim that is deemed to have occurred by reason of events other than the
gross negligence or willful misconduct of the Indemnified Party.
(g) The Borrower's obligations under this Section 12.03 shall survive
any termination of this Agreement and the payment of the Notes and shall
continue thereafter in full force and effect.
(h) The Borrower shall pay any amounts due under this Section 12.03
within thirty (30) days of the receipt by the Borrower of notice of the
amount due.
Section 12.04 Amendments, Etc. Any provision of this Agreement or any
Security Instrument may be amended, modified or waived with the Borrower's and
the Majority Lenders' prior written consent; provided that (i) no amendment,
modification or waiver which extends the final maturity of the Loans, increases
the Aggregate Revolving Credit Commitments, forgives the principal amount of any
Indebtedness outstanding under this Agreement, releases any guarantor of the
Indebtedness or releases all or substantially all of the collateral, reduces the
interest rate applicable to the Loans or the fees payable to the Lenders
generally, affects Section 2.03(a), this Section 12.04 or Section 12.06(a) or
modifies the definition of "Majority Lenders" shall be effective without consent
of all Lenders; (ii) no amendment, modification or waiver which increases the
Commitment of any Lender shall be effective without the consent of such Lender;
and (iii) no amendment, modification or waiver which modifies the rights, duties
or obligations of the Agent shall be effective without the consent of the Agent.
Section 12.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section 12.06 Assignments and Participations.
(a) The Borrower may not assign its rights or obligations hereunder or
under the Notes or the Letter of Credit without the prior consent of all of
the Lenders and the Agent.
(b) Any Lender may, upon the written consent of the Agent and, so long
as no Event of Default has occurred and is continuing, the Borrower (which
consent will not be unreasonably withheld), assign to one or more assignees
all or a portion of its rights and obligations under this Agreement
pursuant to an Assignment Agreement substantially in the form of Exhibit F
(an "Assignment") provided, however, that (i) any such assignment shall be
in the amount of the lesser of (y) $5,000,000 or (z) the aggregate rights
and obligations of the Lender making such assignment immediately
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before such assignment and (ii) the assignee or assignor shall pay to the
Agent a processing and recordation fee of $2,500 for each assignment].
Any such assignment will become effective upon the execution and delivery
to the Agent of the Assignment and the consent of the Agent and the
Borrower. Promptly after receipt of an executed Assignment, the Agent
shall send to the Borrower a copy of such executed Assignment. Upon receipt
of such executed Assignment and approval thereof by Borrower, the Borrower,
will, at its own expense, execute and deliver new Notes to the assignor
and/or assignee, as appropriate, in accordance with their respective
interests as they appear. Upon the effectiveness of any assignment
pursuant to this Section 12.06(b), the assignee will become a "Lender,"
if not already a "Lender," for all purposes of this Agreement and the
Security Instruments. The assignor shall
be relieved of its obligations hereunder to the extent of such assignment
(and if the assigning Lender no longer holds any rights or obligations
under this Agreement, such assigning Lender shall cease to be a "Lender"
hereunder except that its rights under Sections 4.06, 5.01, 5.05 and 12.03
shall not be affected). The Agent will prepare on the last Business Day of
each month during which an assignment has become effective pursuant to this
Section 12.06(b), a new Annex I giving effect to all such assignments
effected during such month, and will promptly provide the same to the
Borrower and each of the Lenders.
(c) Each Lender may transfer, grant or assign participations in all or
any part of such Lender's interests hereunder pursuant to this Section
12.06(c) to any Person, provided that: (i) such Lender shall remain a
"Lender" for all purposes of this Agreement and the transferee of such
participation shall not constitute a "Lender" hereunder; and (ii) no
participant under any such participation shall have rights to approve any
amendment to or waiver of any of the Loan Documents except to the extent
such amendment or waiver would (x) forgive any principal owing on any
Indebtedness or extend the final maturity of the Loans, (y) reduce the
interest rate (other than as a result of waiving the applicability of any
post-default increases in interest rates) or fees applicable to any of the
Commitments or Loans or the Letter of Credit in which such participant is
participating, or postpone the payment of any thereof, or (z) release any
guarantor of the Indebtedness or release all or substantially all of the
collateral (except as provided in the Loan Documents) supporting any of the
Commitments or Loans or the Letter of Credit in which such participant is
participating. In the case of any such participation, the participant shall
not have any rights under this Agreement or any of the Security Instruments
(the participant's rights against the granting Lender in respect of such
participation to be those set forth in the agreement with such Lender
creating such participation), and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such
participation, provided that such participant shall be entitled to receive
additional amounts under Article V on the same basis as if it were a Lender
and be indemnified under Section 12.03 as if it were a Lender. In addition,
each agreement creating any participation must include an agreement by the
participant to be bound by the provisions of Section 12.15.
(d) The Lenders may furnish any information concerning the Borrower in
the possession of the Lenders from time to time to assignees and
participants (including prospective assignees and participants); provided
that, such Persons agree to be bound by the provisions of Section 12.15
hereof.
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(e) Notwithstanding anything in this Section 12.06 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 of
the Board of Governors of the Federal Reserve System 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.
(f) Notwithstanding any other provisions of this Section 12.06, no
transfer or assignment of the interests or obligations of any Lender or any
grant of participations therein shall be permitted if such transfer,
assignment or grant would require the Borrower to file a registration
statement with the SEC or to qualify the Loans under the "Blue Sky" laws of
any state.
Section 12.07 Invalidity. In the event that any one or more of the
provisions contained in any of the Loan Documents or the Letter of Credit,
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of the Notes, this Agreement or any Security Instrument.
Section 12.08 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may execute this Agreement by
signing any such counterpart.
Section 12.09 References. The words "herein," "hereof," "hereunder" and
other words of similar import when used in this Agreement refer to this
Agreement as a whole, and not to any particular article, section or subsection.
Any reference herein to a Section shall be deemed to refer to the applicable
Section of this Agreement unless otherwise stated herein. Any reference herein
to an exhibit or schedule shall be deemed to refer to the applicable exhibit or
schedule attached hereto unless otherwise stated herein.
Section 12.10 Survival. The obligations of the parties under Section
4.06, Article V, and Sections 11.05 and 12.03 shall survive the repayment of the
Loans and the termination of the Commitments. To the extent that any payments on
the Indebtedness or proceeds of any collateral are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, debtor in possession, receiver or other Person under any bankruptcy
law, common law or equitable cause, then to such extent, the Indebtedness so
satisfied shall be revived and continue as if such payment or proceeds had not
been received and the Agent's and the Lenders' Liens, security interests,
rights, powers and remedies under this Agreement and each Security Instrument
shall continue in full force and effect. In such event, each Security Instrument
shall be automatically reinstated and the Borrower shall take such action as may
be reasonably requested by the Agent and the Lenders to effect such
reinstatement.
Section 12.11 Captions. Captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
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Section 12.12 No Oral Agreements. The Loan Documents embody the entire
agreement and understanding between the parties and supersede all other
agreements and understandings between such parties relating to the subject
matter hereof and thereof. The Loan Documents represent the final agreement
between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. there are no
unwritten oral agreements between the parties.
Section 12.13 Governing Law; Submission to Jurisdiction.
(a) This Agreement and the Notes shall be
governed by, and construed in accordance with, the
laws of the state of Texas except to the extent that
United States federal law permits any Lender to
charge interest at the rate allowed by the laws of
the state where such Lender is located. Tex. Rev.
Civ. Stat. Xxx. Art. 0000, Xx. 15 (which regulates
certain revolving credit loan accounts and revolving
tri-party accounts) shall not apply to this Agreement
or the notes.
(b) any legal action or proceeding with respect to the Loan Documents
shall be brought in the courts of the state of Texas or of the United
States of America for the Southern District of Texas, and, by execution and
delivery of this Agreement, the Borrower hereby accepts for itself and (to
the extent permitted by law) in respect of its Property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Borrower
hereby irrevocably waives any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any such
action or proceeding in such respective jurisdictions. This submission to
jurisdiction is non-exclusive and does not preclude the Agent or any Lender
from obtaining jurisdiction over the Borrower in any court otherwise having
jurisdiction.
(c) The Borrower irrevocably consents to the service of process of any
of the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid,
to the Borrower at its said address, such service to become effective
thirty (30) days after such mailing.
(d) Nothing herein shall affect the right of the Agent or any Lender or
any holder of a Note to serve process in any other manner permitted by law
or to commence legal proceedings or otherwise proceed against the Borrower
in any other jurisdiction.
(e) Each of the Borrower and each lender hereby (i) irrevocably waive,
to the maximum extent not prohibited by law, any right it may have to claim
or recover in any such litigation any special, exemplary, punitive or
consequential damages, or damages other than, or in addition
-63-
to, actual damages; (ii) certify that no party hereto nor any
representative or agent of counsel for any party hereto has represented,
expressly or otherwise, or implied that such party would not, in the event
of litigation, seek to enforce the foregoing waivers, and (iii) acknowledge
that it has been induced to enter into this Agreement, the Security
Instruments and the transactions contemplated hereby and thereby by, among
other things, the mutual waivers and certifications contained in this
Section 12.13.
Section 12.14 Interest. It is the intention of the parties hereto that
each Lender shall conform strictly to usury laws applicable to it. Accordingly,
if the transactions contemplated hereby would be usurious as to any Lender under
laws applicable to it (including the laws of the United States of America and
the State of Texas or any other jurisdiction whose laws may be mandatorily
applicable to such Lender notwithstanding the other provisions of this
Agreement), then, in that event, notwithstanding anything to the contrary in any
of the Loan Documents or any agreement entered into in connection with or as
security for the Notes, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under law applicable to any Lender that
is contracted for, taken, reserved, charged or received by such Lender under any
of the Loan Documents or agreements or otherwise in connection with the Notes
shall under no circumstances exceed the maximum amount allowed by such
applicable law, and any excess shall be canceled automatically and if
theretofore paid shall be credited by such Lender on the principal amount of the
Indebtedness (or, to the extent that the principal amount of the Indebtedness
shall have been or would thereby be paid in full, refunded by such Lender to the
Borrower); and (ii) in the event that the maturity of the Notes is accelerated
by reason of an election of the holder thereof resulting from any Event of
Default under this Agreement or otherwise, or in the event of any required or
permitted prepayment, then such consideration that constitutes interest under
law applicable to any Lender may never include more than the maximum amount
allowed by such applicable law, and excess interest, if any, provided for in
this Agreement or otherwise shall be canceled automatically by such Lender as of
the date of such acceleration or prepayment and, if theretofore paid, shall be
credited by such Lender on the principal amount of the Indebtedness (or, to the
extent that the principal amount of the Indebtedness shall have been or would
thereby be paid in full, refunded by such Lender to the Borrower). All sums paid
or agreed to be paid to any Lender for the use, forbearance or detention of sums
due hereunder shall, to the extent permitted by law applicable to such Lender,
be amortized, prorated, allocated and spread throughout the full term of the
Loans evidenced by the Notes until payment in full so that the rate or amount of
interest on account of any Loans hereunder does not exceed the maximum amount
allowed by such applicable law. If at any time and from time to time (i) the
amount of interest payable to any Lender on any date shall be computed at the
Highest Lawful Rate applicable to such Lender pursuant to this Section 12.14 and
(ii) in respect of any subsequent interest computation period the amount of
interest otherwise payable to such Lender would be less than the amount of
interest payable to such Lender computed at the Highest Lawful Rate applicable
to such Lender, then the amount of interest payable to such Lender in respect of
such subsequent interest computation period shall continue to be computed at the
Highest Lawful Rate applicable to such Lender until the total amount of interest
payable to such Lender shall equal the total amount of interest which would have
been payable to such Lender if the total amount of interest had been computed
without giving effect to this Section 12.14. To the extent that Article
5069-1.04 of the Texas Revised
-64-
Civil Statutes is relevant for the purpose of determining the Highest Lawful
Rate, such Lender elects to determine the applicable rate ceiling under such
Article by the indicated weekly rate ceiling from time to time in effect.
Section 12.15 Confidentiality. In the event that the Borrower provides
to the Agent or the Lenders written confidential information belonging to the
Borrower, if the Borrower shall denominate such information in writing as
"confidential", the Agent and the Lenders shall thereafter maintain such
information in confidence in accordance with the standards of care and diligence
that each utilizes in maintaining its own confidential information. This
obligation of confidence shall not apply to such portions of the information
which (i) are in the public domain, (ii) hereafter become part of the public
domain without the Agent or the Lenders breaching their obligation of confidence
to the Borrower, (iii) are previously known by the Agent or the Lenders from
some source other than the Borrower, (iv) are hereafter developed by the Agent
or the Lenders without using the Borrower's information, (v) are hereafter
obtained by or available to the Agent or the Lenders from a third party who owes
no obligation of confidence to the Borrower with respect to such information or
through any other means other than through disclosure by the Borrower, (vi) are
disclosed with the Borrower's consent, (vii) must be disclosed either pursuant
to any Governmental Requirement or to Persons regulating the activities of the
Agent or the Lenders, or (viii) as may be required by law or regulation or order
of any Governmental Authority in any judicial, arbitration or governmental
proceeding. Further, the Agent or a Lender may disclose any such information to
any other Lender, any independent petroleum engineers or consultants, any
independent certified public accountants, any legal counsel employed by such
Person in connection with this Agreement or any Security Instrument, including
without limitation, the enforcement or exercise of all rights and remedies
thereunder, or any assignee or participant (including prospective assignees and
participants) in the Loans; provided, however, that the Agent or the Lenders
shall receive a confidentiality agreement from the Person to whom such
information is disclosed such that said Person shall have the same obligation to
maintain the confidentiality of such information as is imposed upon the Agent or
the Lenders hereunder.
Section 12.16 Effectiveness. This Agreement
shall be effective on the Closing Date (the "Effective
Date").
Section 12.17 Exculpation Provisions. Each of the parties hereto
specifically agrees that it has a duty to read this Agreement and the Security
Instruments and agrees that it is charged with notice and knowledge of the terms
of this Agreement and the Security Instruments; that it has in fact read this
Agreement and is fully informed and has full notice and knowledge of the terms,
conditions and effects of this Agreement; that it has been represented by
independent legal counsel of its choice throughout the negotiations preceding
its execution of this Agreement and the Security Instruments; and has received
the advice of its attorney in entering into this Agreement and the Security
Instruments; and that it recognizes that certain of the terms of this Agreement
and the Security Instruments 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
-65-
exculpatory provision of this Agreement and the Security Instruments on the
basis that the party had no notice or knowledge of such provision or that the
provision is not "conspicuous."
The parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
BORROWER: XXXXXX XXXXXX OPERATING L.P.
"B" (formerly known as Enron
Transportation Services, L.P.)
By: Kinder Xxxxxx X.X., Inc.
its General Partner
By:________________________
Name: Xxxxxx X. Xxxx
Title: President
Address for Notices:
0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000)000-0000
Telephone No.: (000)000-0000
Attention: Xxxxxxx X.Xxxxxx
Chief Executive Office and Principal Place
of Business:
0000 XxXxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
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LENDER AND AGENT: FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By:_____________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
First Union National Bank of North Carolina
000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Syndication Agency Services
With copy to:
First Union Corporation of North Carolina
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
-67-
LENDERS: ________________________________
By: ____________________________
Lending Office for Base Rate
Loans:
________________________________
________________________________
________________________________
Lending Office for LIBOR Loans:
________________________________
________________________________
________________________________
Address for Notices:
________________________________
________________________________
________________________________
Telecopier No.: _______________
Telephone No.: _______________
Attention: _____________________
[With copy to:]
-68-
EXHIBIT A-1
FORM OF REVOLVING CREDIT NOTE
$_____________________________ ___________________, 199__
FOR VALUE RECEIVED, XXXXXX XXXXXX OPERATING L.P. "B",
a Delaware limited partnership (the "Borrower"), hereby
promises to pay to the order of
______________________________ (the "Lender"), at the Principal Office of FIRST
UNION NATIONAL BANK OF NORTH CAROLINA, (the "Agent"), at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, the principal sum of _____________ Dollars
($____________) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans made by the Lender to the Borrower under the
Credit Agreement, as hereinafter defined), in lawful money of the United States
of America and in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Loan, at such office, in like money and funds, for
the period commencing on the date of such Loan until such Loan shall be paid in
full, at the rates per annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate, Interest Period and maturity of each
Loan made by the Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Lender on its books and, prior to
any transfer of this Revolving Credit Note, may be endorsed by the Lender on the
schedules attached hereto or any continuation thereof or on any separate record
maintained by the Lender.
This Revolving Credit Note is one of the Revolving Credit Notes referred to
in the Credit Agreement dated as of ________________, 1997 among the Borrower,
the Lenders which are or become parties thereto (including the Lender) and the
Agent, and evidences Loans made by the Lender thereunder (such Credit Agreement
as the same may be amended or supplemented from time to time, the "Credit
Agreement"). Capitalized terms used in this Revolving Credit Note have the
respective meanings assigned to them in the Credit Agreement.
This Revolving Credit Note is issued pursuant to the Credit Agreement and
is entitled to the benefits provided for in the Credit Agreement and the
Security Instruments. The Credit Agreement provides for the acceleration of the
maturity of this Revolving Credit Note upon the occurrence of certain events,
for prepayments of Loans upon the terms and conditions specified therein and
other provisions relevant to this Revolving Credit Note.
A-1-1
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS.
XXXXXX XXXXXX OPERATING L.P. "B"
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By:
Name:
Title:
X-0-0
XXXXXXX X-0
REPLACEMENT TERM NOTE
$23,700,000 February 14, 1997
FOR VALUE RECEIVED, Xxxxxx Xxxxxx Operating L.P. "B" (formerly known as
Enron Transportation Services, L.P., a Delaware limited partnership (the
"Borrower"), hereby promises to pay to the order of First Union National Bank of
North Carolina ("First Union"), at its principal office in Charlotte, North
Carolina, the principal amount of the lesser of (a) $23,700,000 or (b) the
aggregate unpaid principal amount of all Advances (as defined in that certain
Credit Agreement dated as of February 14, 1997 among the Borrower, First Union
and the lenders party thereto (the "Credit Agreement")), with the principal
amount of each Advance payable on the Stated Expiration Date (as defined in the
Credit Agreement) (or such earlier date as may be required by Section 10.02 of
the Credit Agreement), together with interest from the date hereof to, and
after, maturity on the principal hereof from time to time unpaid, payable
quarterly in arrears on each principal payment date at a rate equal to the Base
Rate (as defined in the Credit Agreement) plus .5% per annum; provided, that in
the event that payment of any principal installment is not timely made, the
outstanding principal balance hereunder shall bear interest until paid in full
at the Post-Default Rate (as defined in the Credit Agreement) per annum payable
monthly in arrears on the first Business Day (as defined in the Credit
Agreement) of each month. All payments to First Union hereunder shall be made
without set-off, counterclaim or deduction of any kind in lawful currency of the
United States and in immediately available funds at First Union's principal
office as aforesaid, Attention: Letters of Credit. Payments falling due on a day
which is not a Business Day shall be made on the next occurring Business Day.
First Union is authorized to endorse the date and amount of each Advance,
the amount of each payment of principal made by the Borrower with respect
thereto on the schedule annexed hereto and made a part hereof, or a continuation
thereof which shall be attached hereto and made a part hereof, which endorsement
shall constitute prima facie evidence of the accuracy of the information
endorsed.
ALL SUMS paid hereon shall be applied first to the satisfaction of
accrued interest and the balance to the unpaid principal.
THIS NOTE is the Replacement Term Note referred to in the Credit
Agreement, and is subject to, and is executed in accordance with all of the
terms, conditions and provisions thereof, including those respecting prepayment
or acceleration and is further subject
A-2-1
to all of the terms, conditions and provisions of the
Credit Agreement.
The Borrower and any and each other Person liable for the payment or
collection of this Note expressly waive demand and presentment for payment,
notice of nonpayment, protest, notice of protest, notice of dishonor, notice of
intent to accelerate, notice of acceleration, bringing of suit, and diligence in
taking any action to collect amounts called for hereunder and in the handling of
property at any time existing as security in connection herewith, and shall be
directly and primarily liable for the payment of all sums owing and to be owing
hereon, regard- less of and without any notice, diligence, act or omission as or
with respect to the collection of any amount called for hereunder or in
connection with any lien at any time had or existing as security for any amount
called for hereunder.
THIS NOTE is a contract made under and shall be construed in accordance
with and governed by the laws of the United States of America and the State of
Texas.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Term Note
as of the 14th day of February, 1997.
XXXXXX XXXXXX OPERATING L.P. "B"
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By:________________________
Name:
Title:
A-2-2
EXHIBIT B
FORM OF BORROWING, CONTINUATION AND CONVERSION REQUEST
_____________________, 199__
XXXXXX XXXXXX OPERATING L.P. "B", a Delaware limited partnership (the
"Borrower"), pursuant to the Credit Agreement dated as of ___________________,
1997 (together with all amendments or supplements thereto, the "Credit
Agreement") among the Borrower, FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as
Agent for the lenders (the "Lenders") which are or become parties thereto, and
such Lenders, hereby makes the requests indicated below (unless otherwise
defined herein, capitalized terms are defined in the Credit Agreement):
1. Revolving Credit Loans:
(a) Aggregate amount of new Revolving Credit Loans to
be $__________________;
(b) Requested funding date is _________________,
199__;
(c) $_____________________ of such borrowings are to
be LIBOR Loans;
$_____________________ of such borrowings are to
be Base Rate Loans; and
(d) Length of Interest Period for LIBOR Loans is:
-------------------------.
2. LIBOR Loan Continuation for LIBOR Loans maturing
on __________________:
(a) Aggregate amount to be continued as LIBOR Loans
is $____________________;
(b) Aggregate amount to be converted to Base Rate
Loans is $__________________;
(c) Length of Interest Period for continued LIBOR
Loans is ___________________.
3. Conversion of Outstanding Base Rate Loans to
LIBOR Loans:
Convert $__________________ of the outstanding Base Rate Loans to LIBOR
Loans on _____________ with an Interest Period of
______________________.
B-1
4. Conversion of outstanding LIBOR Loans to Base
Rate Loans:
Convert $__________________ of the outstanding LIBOR Loans with
Interest Period maturing on ______________________, 199_, to Base Rate
Loans.
The undersigned certifies that he is the _____________________ of the
General Partner of the Borrower, and that as such he is authorized to execute
this certificate on behalf of the Borrower. The undersigned further certifies,
represents and warrants on behalf of the Borrower that the Borrower is entitled
to receive the requested borrowing, continuation or conversion under the terms
and conditions of the Credit Agreement.
XXXXXX XXXXXX OPERATING L.P. "B"
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By:__________________________
Name:
Title:
B-2
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
The undersigned hereby certifies that he is the ________________ of KINDER
XXXXXX X.X., INC., a Delaware corporation, general partner of XXXXXX XXXXXX
OPERATING L.P. "B", a Delaware limited partnership (the "Borrower"), and that as
such he is authorized to execute this certificate on behalf of the Borrower.
With reference to the Credit Agreement dated as of ______________, 1997
(together with all amendments or supplements thereto being the "Agreement")
among the Borrower, FIRST UNION NATIONAL BANK OF NORTH CAROLINA , as Agent for
the lenders (the "Lenders") which are or become a party thereto, and such
Lenders, the undersigned represents and warrants as follows (each capitalized
term used herein having the same meaning given to it in the Agreement unless
otherwise specified):
(a) The representations and warranties of the Borrower contained in
Article VII of the Agreement and in the Security Instruments and otherwise
made in writing by or on behalf of the Borrower pursuant to the Agreement
and the Security Instruments were true and correct when made, and are
repeated at and as of the time of delivery hereof and are true and correct
at and as of the time of delivery hereof, except to the extent such
representations and warranties are expressly limited to an earlier date or
the Majority Lenders have expressly consented in writing to the contrary.
(b) The Borrower has performed and complied with all agreements and
conditions contained in the Agreement and in the Security Instruments
required to be performed or complied with by it prior to or at the time of
delivery hereof.
(c) Since __________________, no change has occurred, either in any
case or in the aggregate, in the condition, financial or otherwise, of the
Borrower or any Subsidiary which would have a Material Adverse Effect.
(d) There exists, and, after giving effect to the loan or loans with
respect to which this certificate is being delivered, will exist, no
Default under the Agreement or any event or circumstance which constitutes,
or with notice or lapse of time (or both) would constitute, an event of
default under any loan or credit agreement, indenture, deed of trust,
security agreement or other agreement or instrument evidencing or
pertaining to any Debt of the Borrower or any Subsidiary, or under any
material agreement or instrument to which the Borrower or any Subsidiary is
a party or by which the Borrower or any Subsidiary is bound.
C-1
(e) Attached hereto are the detailed computations necessary to
determine whether the Borrower is in compliance with Sections 9.12 and 9.13
as of the end of the [fiscal quarter][fiscal year] ending
.
EXECUTED AND DELIVERED this ____ day of ______________, 19___.
XXXXXX XXXXXX OPERATING L.P. "B"
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By:
Name:
Title:
X-0
XXXXXXX X - XXXX XXXXXXXX
X-0
EXHIBIT E
LIST OF SECURITY INSTRUMENTS
1. Guaranty Agreement from Xxxxxx Xxxxxx Energy
Partners, L.P. ("Guarantor")
2. First Amendment to Mortgage and Security Agreement
with Assignment of Rents (Illinois) between the
Borrower and the Agent
3. Financing Statement Amendments and Financing
Statement Assignments executed by the Borrower and
the Agent with respect to item 2 above
4. First Amendment to Mortgage, Security Agreement and
Financing Statement (Wyoming) between the Borrower
and the Agent
5. Financing Statement Amendments and Financing
Statement Assignments executed by the Borrower and
the Agent with respect to item 4 above
6. Security Agreement covering partnership interests
from the Guarantor
7. Instruction letter and Confirmation of Registration
executed by the Guarantor in connection with item 6
above
8. Financing Statement executed by the Borrower with
respect to item 6 above
9. Security Agreement covering accounts, equipment,
inventory and general intangibles from the Borrower
10. Financing Statement executed by the Borrower with
respect to item 9 above
E-1
EXHIBIT F
FORM OF
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT ("Agreement") dated as of ________________, 199__
is between: _________________________________ (the "Assignor") and
__________________________ (the "Assignee").
RECITALS
A. The Assignor is a party to the Credit Agreement dated as of ___________,
1997 (as amended and supplemented and in effect from time to time, the "Credit
Agreement") among XXXXXX XXXXXX OPERATING L.P. "B", a Delaware limited
partnership (the "Borrower"), each of the lenders that is or becomes a party
thereto as provided in Section 12.06 of the Credit Agreement (individually,
together with its successors and assigns, a "Lender", and collectively, together
with their successors and assigns, the "Lenders"), and FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, in its individual capacity, ("First Union") and as agent for
the Lenders (in such capacity, together with its successors in such capacity,
the "Agent").
B. The Assignor proposes to sell, assign and transfer to the Assignee, and
the Assignee proposes to purchase and assume from the Assignor, [all][a portion]
of the Assignor's Revolving Credit Commitment, outstanding Loans and its
Percentage Share of the outstanding LC Commitment, all on the terms and
conditions of this Agreement.
C. In consideration of the foregoing and the mutual agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
Definitions.
Section 1.01 Definitions. All capitalized terms used but not defined herein
have the respective meanings given to such terms in the Credit Agreement.
Section 1.02 Other Definitions. As used herein, the
following terms have the following respective meanings:
"Assigned Interest" shall mean all of Assignor's (in its capacity as a
"Lender") rights and obligations (i) under the Credit Agreement and the
other Security Instruments in respect of the Revolving Credit Commitment of
the Assignor in the
E-1
principal amount equal to $____________________, including, without
limitation, any obligation to participate pro rata in any LC Commitment and
(ii) to make Loans under the Revolving Credit Commitment and any right to
receive payments for the Loans outstanding under the Revolving Credit
Commitment assigned hereby of $__________________ (the "Loan Balance"),
plus the interest and fees which will accrue from and after the Assignment
Date.
"Assignment Date" shall mean
_____________________, 199___.
ARTICLE II
Sale and Assignment.
Section 2.01 Sale and Assignment. On the terms and conditions set forth
herein, effective on and as of the Assignment Date, the Assignor hereby sells,
assigns and transfers to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, all of the right, title and interest of the Assignor
in and to, and all of the obligations of the Assignor in respect of, the
Assigned Interest. Such sale, assignment and transfer is without recourse and,
except as expressly provided in this Agreement, without representation or
warranty.
Section 2.02 Assumption of Obligations. The Assignee agrees with the
Assignor (for the express benefit of the Assignor and the Borrower) that the
Assignee will, from and after the Assignment Date, perform all of the
obligations of the Assignor in respect of the Assigned Interest. From and after
the Assignment Date: (a) the Assignor shall be released from the Assignor's
obligations in respect of the Assigned Interest, and (b) the Assignee shall be
entitled to all of the Assignor's rights, powers and privileges under the Credit
Agreement and the other Security Instruments in respect of the Assigned
Interest.
Section 2.03 Consent by Agent. By executing this Agreement as provided
below, in accordance with Section 12.06(b) of the Credit Agreement, the Agent
hereby acknowledges notice of the transactions contemplated by this Agreement
and consents to such transactions.
Section 2.04 Consent by Borrower. By executing this Agreement as provided
below, in accordance with Section 12.06(b) of the Credit Agreement, the Borrower
hereby acknowledges notice of the transactions contemplated by this Agreement
and consents to such transactions.
E-2
ARTICLE III
Payments.
Section 3.01 Payments. As consideration for the sale, assignment and
transfer contemplated by Section 2.01 hereof, the Assignee shall, on the
Assignment Date, assume Assignor's obligations in respect of the Assigned
Interest and pay to the Assignor an amount equal to the Loan Balance, if any. An
amount equal to all accrued and unpaid interest and fees shall be paid to the
Assignor as provided in Section 3.02 (iii) below. Except as otherwise provided
in this Agreement, all payments hereunder shall be made in Dollars and in
immediately available funds, without setoff, deduction or counterclaim.
Section 3.02 Allocation of Payments. The Assignor and the Assignee agree
that (i) the Assignor shall be entitled to any payments of principal with
respect to the Assigned Interest made prior to the Assignment Date, together
with any interest and fees with respect to the Assigned Interest accrued prior
to the Assignment Date, (ii) the Assignee shall be entitled to any payments of
principal with respect to the Assigned Interest made from and after the
Assignment Date, together with any and all interest and fees with respect to the
Assigned Interest accruing from and after the Assignment Date, and (iii) the
Agent is authorized and instructed to allocate payments received by it for
account of the Assignor and the Assignee as provided in the foregoing clauses.
Each party hereto agrees that it will hold any interest, fees or other amounts
that it may receive to which the other party hereto shall be entitled pursuant
to the preceding sentence for account of such other party and pay, in like money
and funds, any such amounts that it may receive to such other party promptly
upon receipt.
Section 3.03 Delivery of Notes. Promptly following the receipt by the
Assignor of the consideration required to be paid under Section 3.01 hereof, the
Assignor shall, in the manner contemplated by Section 12.06(b) of the Credit
Agreement, (i) deliver to the Agent (or its counsel) the Notes held by the
Assignor and (ii) notify the Agent to request that the Borrower execute and
deliver new Notes to the Assignor, if Assignor continues to be a Lender, and the
Assignee, dated the date of this Agreement in respective principal amounts equal
to the respective Revolving Credit Commitment of the Assignor (if appropriate)
and the Assignee after giving effect to the sale, assignment and transfer
contemplated hereby.
Section 3.04 Further Assurances. The Assignor and the Assignee hereby agree
to execute and deliver such other instruments, and take such other actions, as
either party may reasonably request in connection with the transactions
contemplated by this Agreement.
E-3
ARTICLE IV
Conditions Precedent.
Section 4.01 Conditions Precedent. The effectiveness of the sale,
assignment and transfer contemplated hereby is subject to the satisfaction of
each of the following conditions precedent:
(a) the execution and delivery of this
Agreement by the Assignor and the Assignee;
(b) the receipt by the Assignor of the payment
required to be made by the Assignee under
Section 3.01 hereof;
(c) the acknowledgment and consent by the
Agent contemplated by Section 2.03 hereof; and
(d) the acknowledgment and consent by the
Agent contemplated by Section 2.03 hereof.
ARTICLE V
Representations and Warranties.
Section 5.01 Representations and Warranties of the Assignor. The Assignor
represents and warrants to the Assignee as follows:
(a) it has all requisite power and authority, and has taken all action
necessary to execute and deliver this Agreement and to fulfill its
obligations under, and consummate the transactions contemplated by, this
Agreement;
(b) the execution, delivery and compliance with the terms hereof by
Assignor and the delivery of all instruments required to be delivered by it
hereunder do not and will not violate any Governmental Requirement
applicable to it;
(c) this Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor,
enforceable against it in accordance with its terms;
(d) all approvals and authorizations of, all filings with and all
actions by any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been obtained;
(e) the Assignor has good title to, and is the sole legal and
beneficial owner of, the Assigned Interest, free and clear of all Liens,
claims, participations or other charges of any nature whatsoever; and
E-4
(f) the transactions contemplated by this Agreement are commercial
banking transactions entered into in the ordinary course of the banking
business of the Assignor.
Section 5.02 Disclaimer. Except as expressly provided in Section 5.01
hereof, the Assignor does not make any representation or warranty, nor shall it
have any responsibility to the Assignee, with respect to the accuracy of any
recitals, statements, representations or warranties contained in the Credit
Agreement or in any certificate or other document referred to or provided for
in, or received by any Lender under, the Credit Agreement, or for the value,
validity, effectiveness, genuineness, execution, effectiveness, legality,
enforceability or sufficiency of the Credit Agreement, the Notes or any other
document referred to or provided for therein or for any failure by the Borrower
or any other Person (other than Assignor) to perform any of its obligations
thereunder or for the existence, value, perfection or priority of any collateral
security or the financial or other condition of the Borrower or the Subsidiaries
or any other obligor or guarantor, or any other matter relating to the Credit
Agreement or any other Security Instrument or any extension of credit
thereunder.
Section 5.03 Representations and Warranties of the Assignee. The Assignee
represents and warrants to the Assignor as follows:
(a) it has all requisite power and authority, and has taken all action
necessary to execute and deliver this Agreement and to fulfill its
obligations under, and consummate the transactions contemplated by, this
Agreement;
(b) the execution, delivery and compliance with the terms hereof by
Assignee and the delivery of all instruments required to be delivered by it
hereunder do not and will not violate any Governmental Requirement
applicable to it;
(c) this Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignee,
enforceable against it in accordance with its terms;
(d) all approvals and authorizations of, all filings with and all
actions by any Governmental Authority necessary for the validity or
enforceability of its obligations under this Agreement have been obtained;
(e) the Assignee has fully reviewed the terms of the Credit Agreement
and the other Security Instruments and has independently and without
reliance upon the Assignor, and based on such information as the Assignee
has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement;
E-5
(f) the Assignee hereby affirms that the representations contained in
Section 4.06(d)[(i)][ii)] of the Credit Agreement are true and accurate as
to it [IF (ii) IS SELECTED ADD: and, the Assignee has contemporaneously
herewith delivered to the Agent and the Borrower such certifications as are
required thereby to avoid the withholding taxes referred to in Section
4.06]; and
(g) the transactions contemplated by this Agreement are commercial
banking transactions entered into in the ordinary course of the banking
business of the Assignee.
ARTICLE VI
Miscellaneous.
Section 6.01 Notices. All notices and other communications provided for
herein (including, without limitation, any modifications of, or waivers,
requests or consents under, this Agreement) shall be given or made in writing
(including, without limitation, by telex or telecopy) to the intended recipient
at its "Address for Notices" specified below its name on the signature pages
hereof or, as to either party, at such other address as shall be designated by
such party in a notice to the other party.
Section 6.02 Amendment, Modification or Waiver. No provision of this
Agreement may be amended, modified or waived except by an instrument in writing
signed by the Assignor and the Assignee, and consented to by the Agent and
Borrower.
Section 6.03 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. The representations and warranties made herein by the
Assignee are also made for the benefit of the Agent and the Borrower, and the
Assignee agrees that the Agent and the Borrower are entitled to rely upon such
representations and warranties.
Section 6.04 Assignments. Neither party hereto may assign any of its rights
or obligations hereunder except in accordance with the terms of the Credit
Agreement.
Section 6.05 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
Section 6.06 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be identical and all of which, taken together,
shall constitute one and the same instrument, and each of the parties hereto may
execute this Agreement by signing any such counterpart.
E-6
Section 6.07 Governing Law. This Agreement shall be
governed by, and construed in accordance with, the law of
the State of Texas.
Section 6.08 Expenses. To the extent not paid by the Borrower pursuant to
the terms of the Credit Agreement, each party hereto shall bear its own expenses
in connection with the execution, delivery and performance of this Agreement.
Section 6.09 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. IN WITNESS WHEREOF, the
parties hereto have caused this Assignment Agreement to be executed and
delivered as of the date first above written.
ASSIGNOR
By:
Name:
Title:
Address for Notices:
Telecopier No.:
Telephone No.:
Attention:
E-7
ASSIGNEE
By:
Name:
Title:
Address for Notices:
Telecopier No.:
Attention: Telephone No.:
ACKNOWLEDGED AND CONSENTED TO:
,
as Agent
By:
Name:
Title:
XXXXXX XXXXXX OPERATING L.P. "B"
By: Kinder Xxxxxx X.X., Inc.
its General Partner
By:
Name:
Title:
E-8
EXHIBIT G-1
[FORM OF REPLACEMENT LETTER OF CREDIT]
IRREVOCABLE LETTER OF CREDIT
_______, 0000
Xxxx Xxx, Xxxxx, National Association
000 Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Corporate Trust Department
Re: Irrevocable Letter of Credit No. S113181
Ladies and Gentlemen:
At the request and for the account of Xxxxxx Xxxxxx Operating L.P. "B"
(formerly known as Enron Transportation Services, L.P.), a Delaware limited
partnership (the "Company"), we hereby establish this Irrevocable Letter of
Credit in your favor, as Trustee under the Indenture of Trust dated as of April
1, 1994 (as amended or supplemented from time to time, the "Trust Indenture"),
by and between Xxxxxxx-Union Counties Regional Port District, a political
subdivision, a body politic and a municipal corporation duly organized and
validly existing under the laws of the State of Illinois (the "Issuer"), and
you, pursuant to which the Issuer has issued $23,700,000 in aggregate original
principal amount of the Issuer's Port Facility Refunding Revenue Bonds (Enron
Transportation Services, L.P. Project) Series 1994 (the "Bonds"), in the stated
amount of $24,128,548.00 (hereinafter, as reduced and reinstated from time to
time in accordance with the provisions hereof, the "Stated Amount"), of which an
amount not exceeding $23,700,000.00 (as reduced and reinstated from time to time
in accordance with the terms hereof, the "Principal Component") may be drawn
upon with respect to payment of the unpaid principal of, or the portion of the
purchase price corresponding to principal of, the Bonds, and an amount not
exceeding $428,548.00 (as reduced and reinstated from time to time in accordance
with the terms hereof, the "Interest Component") may be drawn upon with respect
to payment of interest on, or the portion of the purchase price corresponding to
interest on, the Bonds, on or prior to the stated maturity thereof, effective
March 3, 1997, and expiring at our office in Charlotte, North Carolina at 5:00
p.m. (Charlotte, North Carolina time) on March 15, 1998 (the "Stated Expiration
Date") unless terminated earlier or extended in accordance with the provisions
hereof. Notwithstanding that this Letter of Credit is stated to expire on March
15, 1998 (subject to earlier termination), if the Company and the Trustee do not
receive a written notice (a "Notice of Non-Extension") from the Bank to the
effect that this Letter of Credit will not be extended beyond the Stated
Expiration Date then
G-1-1
in effect, the term of this Letter of Credit will be automatically extended for
successive additional periods of one calendar month each until the earlier of
(i) the first day of the thirteenth month following receipt by the Company and
the Trustee of Notice of Non-Extension from the Bank and (ii) the Termination
Date (as hereinafter defined).
Funds under this Letter of Credit will be made available to you, or to such
other person as shall be designated by you, against receipt by us of the
following items at the time required below.
(A) if a drawing is being made with respect to the payment of the
portion of the purchase price corresponding to the principal of the Bonds to be
purchased from the holder thereof pursuant to Section 4.01, 4.02, 4.03, 4.04 or
4.05 of the Trust Indenture (an "A Drawing"), receipt by us of your written
certificate in the form of Annex A attached hereto appropriately completed and
signed by an Authorized Officer (as hereinafter defined),
(B) if a drawing is being made with respect to the payment of principal
of the Bonds, whether at maturity or upon redemption or acceleration (a "B
Drawing"), receipt by us of your written certificate in the form of Annex B
attached hereto appropriately completed and signed by an Authorized Officer,
(C) if a drawing is being made with respect to the payment of interest
on the Bonds (other than the portion of the purchase price corresponding to
interest on the Bonds) pursuant to the Trust Indenture (a "C Drawing"), receipt
by us of your written certificate in the form of Annex C attached hereto
appropriately completed and signed by an Authorized Officer, and
(D) if a drawing is being made with respect to the payment of the
portion of the purchase price corresponding to interest on the Bonds to be
purchased from the holder thereof pursuant to Section 4.01, 4.02, 4.03, 4.04 or
4.05 of the Trust Indenture (a "D Drawing"), receipt by us of your written
certificate in the form of Annex D attached hereto appropriately completed and
signed by an Authorized Officer.
Such certificate or certificates shall be presented at our office located at 000
Xxxxx Xxxxx Xxxxxx, X0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Letters
of Credit, or by facsimile transmission to the following number: (000) 000-0000
(to be promptly confirmed by telephone at the following number: (000) 000-0000
and by delivery thereafter of the original executed certificate or certificates.
The facsimile and telephone numbers specified immediately above may be changed
by written notice from us to you.
Demands for payment under this Letter of Credit may be made by you, or such
other person as shall be designated by you, at any time during our business
hours at our aforesaid address on a Business Day (as hereinafter defined). If
demand for payment is made by you, or such other person designated by you, at or
prior to 11:30 a.m. (Charlotte, North Carolina time) on a Business Day; and
provided that such demand for payment and the documents presented in connection
therewith conform to the terms and conditions hereof, payment shall be made to
the Paying Agent, as defined below, by wire transfer of the amount demanded, in
same day funds, not later than 2:00 p.m. (Charlotte, North Carolina time) on the
same Business Day or
G-1-2
such later Business Day as may be specified in the demand. If demand for payment
is made by you, or such other person designated by you, after 11:30 a.m.
(Charlotte, North Carolina time) on a Business Day; and provided that such
demand for payment and the documents presented in connection therewith conform
to the terms and conditions hereof, payment shall be made to the Paying Agent by
wire transfer of the amount demanded, in same day funds, not later than 9:00
a.m. (Charlotte, North Carolina time) on the next succeeding Business Day or
such later Business Day as may be specified in the demand. All payments
hereunder will be made with our own funds.
Demands for payment hereunder honored by us shall not exceed the Stated
Amount, as the Stated Amount may have been reinstated by us as provided in the
second succeeding paragraph. Subject to the preceding sentence, each A Drawing
and each B Drawing honored hereunder shall pro tanto reduce the Principal
Component and each C Drawing and each D Drawing honored hereunder shall pro
tanto reduce the Interest Component. Any such reduction in accordance with the
preceding sentence shall result in a corresponding reduction in the Stated
Amount, it being understood that after the effectiveness of any such reduction
you shall no longer have any right to make a drawing hereunder in respect of the
amount of such principal of and/or interest on the Bonds or the purchase price
of the Bonds corresponding thereto.
Upon receipt by us of a Notice of Termination in the form attached hereto
as Annex E signed on your behalf by an Authorized Officer and appropriately
completed, this Letter of Credit shall be terminated.
Following any A Drawing, when (i) we have been reimbursed in an amount
equal to such A Drawing plus interest accrued on the unpaid amount of such A
Drawing to the date of payment, or (ii) we have received a notice from you or
the Paying Agent in the form of Annex G attached hereto appropriately completed
and signed by an Authorized Officer, the Stated Amount and the Principal
Component will be reinstated in an amount equal to the amount of such A Drawing
(or, in the case of a partial remarketing, in an amount equal to the aggregate
principal amount of the Bonds remarketed) and we will send you and the Paying
Agent notice in writing of such reinstatement. In addition, if you shall not
have received written notice from us by the close of business on the sixth
calendar day following the date of payment by the Bank of any C Drawing to the
effect that an Event of Default under that certain Credit Agreement dated as of
February 14, 1997 (as amended or supplemented from time to time, the "Credit
Agreement") between the Company and us, has occurred and is continuing, the
Stated Amount and the Interest Component will automatically be reinstated as of
the opening of business on the seventh calendar day following the date of
payment by the Bank in respect of such C Drawing by an amount equal to the
amount of such C Drawing exclusive of the portion of such C Drawing constituting
the interest portion of the redemption price of the Bonds. Furthermore,
following any D Drawing immediately upon our notifying you and the Paying Agent
that (i) we have been reimbursed in an amount equal to such D Drawing plus
interest accrued on the unpaid amount of such D Drawing to the date of payment
or (ii) we have received a notice from you or the Paying Agent in the form of
Annex G attached hereto appropriately completed and signed by an Authorized
Officer, the Stated Amount and the Interest Component will be reinstated in an
amount equal to the amount of such D Drawing (or, in the case of a partial
remarketing, in an amount equal to the portion of such D Drawing which related
to the aggregate principal amount of the Bonds remarketed).
G-1-3
Only you or a person designated by you in writing may make a drawing under
this Letter of Credit. Upon payment to the Paying Agent or to the Paying Agent's
account of the amount demanded hereunder, we shall be fully discharged on our
obligation under this Letter of Credit with respect such demand for payment and
we shall not thereafter be obligated to make any further payments under this
Letter of Credit in respect of such demand for payment to the Paying Agent. By
paying to the Paying Agent an amount demanded in accordance herewith, we make no
representation as to the correctness of the amount demanded.
This Letter of Credit applies only to the payment of principal of the Bonds
and up to 55 days' interest (computed at an assumed rate of 12% per annum and a
year of 365 days) accruing on the Bonds on or prior to the expiration of this
Letter of Credit and does not apply to any interest that may accrue thereon or
any principal which may be payable with respect thereto after such date.
Notwithstanding anything to the contrary contained in this Letter of Credit, the
Trust Indenture or the Credit Agreement, no payment shall be made under this
Letter of Credit in respect of any Bond which bears interest at the Fixed Rate,
as defined in the Trust Indenture, until maturity determined in accordance with
the Trust Indenture.
Upon the earliest of (i) the making by you or the person designated by you
of the final drawing available to be made hereunder and payment thereof, (ii)
our close of business on the Stated Expiration Date then in effect, (iii) the
surrender by you to us of this Letter of Credit in connection with delivery of a
certificate in the form of Annex E attached hereto stating that this Letter of
Credit is terminated, (iv) our close of business on the date of conversion of
all bonds outstanding to bear interest at a Fixed Rate, (v) our close of
business on the date Bonds are deemed to have been paid in accordance with
Article X of the Trust Indenture or (vi) our close of business on the date of
delivery of an Alternate Letter of Credit, this Letter of Credit shall forthwith
terminated and be of no further force or effect (such earliest date being the
"Termination Date").
Communications with respect to this Letter of Credit shall be in writing
and shall be addressed to us at the address specified above, or, if made by
facsimile transmission, at the facsimile number and confirmed by telephone at
the telephone number specified above, and shall specifically refer to this
Letter of Credit by number.
This Letter of Credit may not be transferred or assigned, either in whole
or in part, except to a successor trustee appointed pursuant to the Trust
Indenture. We agree to issue a substitute letter of credit to any such successor
trustee (and successively to replace any such substitute letter of credit) upon
the return to us for cancellation of the original of the letter of credit to be
replaced, accompanied by a request relating to such letter of credit which shall
(i) be in the form of Annex F attached hereto appropriately completed, (ii) be
signed by an Authorized Officer, (iii) specify where indicated therein the same
letter of credit number as the number of the letter of credit to be replaced and
(iv) state the name and address of the successor trustee. Each substitute letter
of credit will be in substantially the form of the letter of credit for which
the same is substituted except for the date, the letter of credit number and the
identity of the beneficiary thereof.
G-1-4
As used herein (a) "Authorized Officer" shall mean any person signing as
one of your Vice Presidents, Assistant Vice Presidents, Senior Trust Officers or
Trust Officers or any equivalent officer of a successor beneficiary hereof, (b)
"Business Day" shall mean a day on which the Trustee, any Paying Agent, the
Remarketing Agent, the Bank and banks or trust companies located in New York,
New York and Houston, Texas are not required or authorized by law to close and
on which the New York Stock Exchange is not closed; (c)"Paying Agent" shall mean
initially Bank One, Texas, National Association and any person who shall
thereafter be designated as Paying Agent pursuant to the Trust Indenture and so
identified to us by written notice; and (d) "Remarketing Agent" shall mean
initially Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and any person who
shall thereafter be designated as Remarketing Agent pursuant to the Trust
Indenture and so identified to us by written notice.
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited by
reference to any document, instrument or agreement referred to herein
(including, without limitation, the Bonds), except as specifically provided
herein; an any such reference shall not be deemed to incorporate herein by
reference any document, instrument or agreement except as so provided.
This Letter of Credit is subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500 (the "Uniform Customs"). This Letter of Credit shall be
deemed to be a contract made under the laws of the State of Texas and shall, as
to matters not governed by the Uniform Customs, be governed by and construed in
accordance with the laws of said State.
Anything to the contrary in Article 45 of the Uniform Customs
notwithstanding, this Letter of Credit is intended to remain in full force and
effect until it expires in accordance with its terms. Any failure by your or any
successor trustee under the Trust Indenture to draw upon this Letter of Credit
with respect to a scheduled payment on the Bonds in accordance with the terms
and conditions of the Trust Indenture shall not cause this Letter of Credit to
become unavailable for any future drawing in accordance with the terms and
conditions of the Trust Indenture.
Very truly yours,
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By:
Name:
Title:
G-1-5
Annex A
CERTIFICATE FOR A DRAWING
Date:__________________
First Union National Bank
of North Carolina
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Letters of Credit
Re: Irrevocable Letter of Credit No.
------------
(the "Letter of Credit")
Ladies and Gentlemen:
Bank One, Texas, National Association, as Trustee (the "Trustee"), through
its undersigned duly Authorized Officer, hereby certifies to First Union
National Bank of North Carolina (the "Bank") that:
(1) The Trustee is acting pursuant to the Trust
Indenture for the holders of the Bonds.
(2) The Trustee is making a drawing under the Letter of Credit in the
aggregate amount of $_______________ with respect to the payment of the portion
of the purchase price corresponding to principal of the bonds to be purchased
from the holder thereof pursuant to the following Sections of the Trust
Indenture:
4.01 $
4.02 $
4.03 $
4.04 $
4.05 $
and for the payment of which moneys are not otherwise available pursuant to the
Trust Indenture for such purposes prior to the utilization of the Letter of
Credit, and the Remarketing Agent (as defined in the Trust Indenture) and/or the
Paying Agent (as defined in the Trust Indenture) has received in connection with
this drawing a principal amount of the Bonds equal to the respective amount
demanded hereby. Payment of such amounts is demanded on ____________, 199_, the
date on which such amounts are due and payable under the Trust Indenture and
shall be made to the account of the Paying Agent as follows:
____________________..
G-1-6
(3) The Trustee will [cause the Paying Agent to] (delete bracketed language
if letter of Representations is in effect) hold the Bonds in connection with
which this drawing is being made in accordance with Section 4.08(c) of the Trust
Indenture.
(4) The amounts demanded hereby do not exceed the amount available on the
date hereof to be drawn under the Letter of Credit in respect of the Principal
Component.
(5) The amounts demanded hereby do not exceed the amount which the Trustee
is required to draw on the date specified in (2) above under the Trust
Indenture.
(6) Upon receipt by the Paying Agent of the amounts demanded hereby, (a)
the Trustee will cause the Paying Agent to apply the same directly to the
payment when due of the principal amount owing on account of the purchase price
of the Bonds pursuant to the Trust Indenture, (b) no portion of any such amount
shall be applied by the Paying Agent for any other purpose and (c) no portion of
any such amount shall be commingled with other funds held by the Trustee or the
Paying Agent.
Capitalized terms used herein and not otherwise defined herein but defined
in the Letter of Credit shall have the same respective meanings herein as in the
Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this Certificate
as of the ____day of ______________, 199 .
BANK ONE, TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
Name:
Title:
X-0-0
Xxxxx X
XXXXXXXXXXX XXX X DRAWING
Date:__________________
First Union National Bank
of North Carolina
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Letters of Credit
Re: Irrevocable Letter of Credit No.
------------
(the "Letter of Credit")
Ladies and Gentlemen:
Bank One, Texas, National Association, as (the "Trustee"), through its
undersigned duly Authorized Officer, hereby certifies to First Union National
Bank of North Carolina (the "Bank") that:
(1) The Trustee is acting pursuant to the Trust
Indenture for the holders of the Bonds.
(2) (a) The Trustee is making a drawing under the Letter of Credit in the
aggregate amount of $_______________ with respect to the payment of principal of
the Bonds, whether at maturity or upon acceleration, for the payment of which
moneys are not otherwise available pursuant to the Trust Indenture.
(b) The Trustee is making a drawing under the Letter of Credit in the
aggregate amount of $_______________ with respect to the payment of the
principal of the Bonds upon redemption thereof pursuant to the following
Sections of the Trust Indenture:
3.01 $
3.02 $
3.03 $
3.04 $
(c) Payment of the foregoing amounts is demanded on _____________, 19
__, the date on which such amounts are due and payable under the Trust Indenture
and shall be made to the account of the Paying Agent as
follows:____________________________.
(3) The amounts demanded hereby do not exceed the amount available on the
date hereof to be drawn under the Letter of Credit in respect of the Principal
Component.
G-1-8
(4) The amounts demanded hereby do not exceed the amount which the Trustee
is required to draw on the date specified in (2) above under the Trust
Indenture.
(5) Upon receipt by the Paying Agent of the amounts demanded hereby, (a)
the Trustee will cause the Paying Agent to apply the same directly to the
payment when due of the principal amount owing on account of the Bonds pursuant
to the Trust Indenture, (b) no portion of any such amount shall be applied by
the Paying Agent for any other purpose and (c) no portion of any such amount
shall be commingled with other funds held by the Trustee or the Paying Agent.
Capitalized terms used herein and not otherwise defined herein but defined
in the Letter of Credit shall have the same respective meanings herein as in the
Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this Certificate
as of the _______ day of ____________, 199 .
BANK ONE, TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
Name:
Title:
G-1-9
Annex C
CERTIFICATE FOR C DRAWING
Date:______________
First Union National Bank
of North Carolina
000 Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Letters of Credit
Re: Irrevocable Letter of Credit No.
------------
(the "Letter of Credit")
Ladies and Gentlemen:
Bank One, Texas, National Association, as Trustee (the "Trustee"), through
its undersigned duly Authorized Officer, hereby certifies to First Union
National Bank of North Carolina (the "Bank") that:
(1) The Trustee is acting pursuant to the Trust
Indenture for the holders of the Bonds.
(2) (a) The Trustee is making a drawing under the Letter of Credit in the
aggregate amount of $_____________ with respect to the payment of interest on
the Bonds (other than the portion of the purchase price corresponding to
interest on the Bonds and other than with respect to the redemption of the
Bonds) pursuant to the Trust Indenture.
(b) The Trustee is making a drawing under the Letter of Credit in the
aggregate amount of $_____________ with respect to the payment of accrued
interest on the Bonds upon redemption thereof pursuant to the following Sections
of the Trust Indenture:
3.01 $
3.02 $
3.03 $
3.04 $
(c) Payment of such amounts is demanded on ____________ 19__, the date
on which such amounts are due and payable under the Trust Indenture and shall be
made to the account of the Paying Agent as
follows:__________________________________.
(3) The Trustee hereby represents and warrants that the drawing does not
relate to interest on the Bonds accruing at a Fixed Rate.
G-1-10
(4) The amounts demanded hereunder do not exceed the amount available on
the date hereof to be drawn under the Letter of Credit in respect of the
Interest Component.
(5) The amounts demanded hereby do not exceed the amount which the Trustee
is required to draw on the date specified in (2) above under the Trust
Indenture.
(6) Upon receipt by the Paying Agent of the amounts demanded hereby, (a)
the Trustee will cause the Paying Agent to apply the same directly to the
payment when due of the interest owing on account of the Bonds pursuant to the
Trust Indenture, (b) no portion of any such amount shall be applied by the
Paying Agent for any other purpose and (c) no portion of any such amount shall
be commingled with other funds held by the Trustee or the Paying Agent.
Capitalized terms used herein and not otherwise defined herein but defined
in the Letter of Credit shall have the same respective meanings herein as in the
Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this Certificate
as of the____ day of _______________, 199 .
BANK ONE, TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
Name:
Title:
G-1-11
Annex D
CERTIFICATE FOR D DRAWING
Date:______________
First Union National Bank
of North Carolina
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Letters of Credit
Re: Irrevocable Letter of Credit No.
------------
(the "Letter of Credit")
Ladies and Gentlemen:
Bank One, Texas, National Association, as Trustee (the "Trustee"), through
its undersigned duly Authorized Officer, hereby certifies to First Union
National Bank of North Carolina (the "Bank") that:
(1) The Trustee is acting pursuant to the
Trust Indenture for the holders of the bonds.
(2) The Trustee is making a drawing under the Letter of Credit in the
aggregate amount of $_____________ with respect to the payment of the portion of
the purchase price corresponding to interest on the Bonds to be purchased from
the holder or holders hereof pursuant to the following Section of the Trust
Indenture:
4.01 $
4.02 $
4.03 $
4.04 $
4.05 $
and for the payment of which moneys are not otherwise available pursuant to the
Trust Indenture for such purposes prior to the utilization of the Letter of
Credit. Payment of such amounts is demanded on ___________, 19__, the date on
which such amounts are due and payable under the Trust Indenture, and shall be
made to the account of the Paying Agent as follows:_________.
(3) The Trustee will [cause the Paying Agent to] (delete bracketed language
if Letter of Representations is in effect) hold the Bonds in connection with
which this drawing is being made in accordance with Section 4.08(c) of the Trust
Indenture.
G-1-12
(4) The Trustee hereby represents and warrants that the drawing does not
relate to interest on the Bonds accruing at a Fixed Rate.
(5) The amounts demanded hereby do not exceed the amount available on the
date hereof under the Letter of Credit in respect of the Interest Component.
(6) The amounts demanded hereby do not exceed the amount which the Trustee
is required to draw on the date specified in (2) above under the Trust
Indenture.
(7) Upon receipt by the Paying Agent of any such amounts demanded hereby,
(a) the Trustee will cause the Paying Agent to apply the same directly to the
payment when due of interest owing on account of the purchase price of the Bonds
pursuant to the Trust Indenture, (b) no portion of any such amount shall be
applied by the Paying Agent for any other purpose and (c) no portion of any such
amount shall be commingled with other funds held by the Trustee or the Paying
Agent.
Capitalized terms used herein and not otherwise defined herein but defined
in the Letter of Credit shall have the same respective meanings herein as in the
Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this Certificate
as of the____ day of _______________, 199 .
BANK ONE, TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
Name:
Title:
X-0-00
Xxxxx X
XXXXXX XX XXXXXXXXXXX
Date:______________
First Union National Bank
of North Carolina
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Letters of Credit
Re: Irrevocable Letter of Credit No.
------------
(the "Letter of Credit")
Ladies and Gentlemen:
Bank One, Texas, National Association, as Trustee (the "Trustee"), through
its undersigned duly Authorized Officer, hereby certifies to First Union
National Bank of North Carolina (the "Bank"), with reference to the Letter of
Credit (the terms defined therein and not otherwise defined herein being used
herein as therein defined) issued by the Bank in favor of the Trustee that:
(1) The Trustee is acting pursuant to the Trust
Indenture for the holders of the Bonds.
(2) The Trustee hereby informs you that the conditions precedent to the
delivery of an Alternate Letter of Credit set forth in Section 4.12 of the Trust
Indenture have been satisfied and the Trustee has accepted delivery of such
Alternate Letter of Credit.
(3) We submit hereby for cancellation the original of
the Letter of Credit.
IN WITNESS WHEREOF, the Trustee has executed and delivered this Certificate
as of the_______ day of _______________, 199 .
BANK ONE, TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
Name:
Title:
G-1-14
Annex F
INSTRUCTION TO ISSUE LETTER OF CREDIT
Date:_______________
First Union National Bank
of North Carolina
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Letters of Credit
Re: Irrevocable Letter of Credit No.
------------
(the "Letter of Credit")
Ladies and Gentlemen:
Reference is made to i) the above-referenced letter of credit (the "Old
Letter of Credit") and (ii) the Indenture of Trust, dated as of April 1, 1994
(as amended or supplemented from time to time, the "Trust Indenture"), by and
between Xxxxxxx-Union Counties Regional Port District and the undersigned, as
Trustee, as referred to in the Old Letter of Credit.
[Name and address of successor Trustee] (the "Successor Trustee") has been
properly appointed Successor Trustee pursuant to Section 8.02 of the Trust
Indenture. You are hereby requested to issue, in accordance with the terms of
the Old Letter of Credit, a new letter of credit to the Successor Trustee having
the same terms and providing for the same Stated Amount as the Old Letter of
Credit.
We submit for cancellation the original of the Old Letter of Credit.
Very truly yours,
BANK ONE, TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
Name:
Title:
G-1-15
Annex G
NOTICE OF RECEIPT OF REMARKETING PROCEEDS
Date:_____________
First Union National Bank of North Carolina
------------------
Charlotte, North Carolina _____
Attention: Letters of Credit
Re: Irrevocable Letter of Credit No.
------------
(the "Letter of Credit")
Ladies and Gentlemen:
Bank One, Texas, National Association, as Trustee (the "Trustee") or as
Paying Agent [strike inapplicable title] (the "Custodian"), through its
undersigned duly Authorized Officer, hereby certifies to First Union National
Bank of North Carolina (the "Bank"), with reference to the Letter of Credit (the
terms defined therein and not otherwise defined herein being used herein as
therein defined) issued by the Bank in favor of the Trustee that:
(1) The Custodian is acting pursuant to the Trust
Indenture for the benefit of the Bank.
(2) The Custodian hereby informs you that (A) Pledged Bonds, as defined in
the Trust Indenture, have been remarketed and (B) proceeds of such remarketing
in the amount of $___________ (including with respect to principal of the
Pledged Bonds so remarketed, and $___________ with respect to interest accrued
on such Bonds) have been received by us and are being held for your benefit.
IN WITNESS WHEREOF, the Custodian has executed and delivered this
Certificate as of the_______ day of _______________, 199 .
BANK ONE, TEXAS, NATIONAL
ASSOCIATION, as Trustee or Paying
Agent
(strike inapplicable title)
By:
Name:
Title:
G-1-16
Schedule 7.02
Liabilities
None other than those matters described in the Amended and Restated Purchase and
Sale Agreement dated February 14, 1997 between Xxxxxx Xxxxxx, Inc. and Enron
Liquids Holding Corp. (the "Purchase Agreement") and the most recent 10K and 10Q
reports filed by Xxxxxx Xxxxxx Energy with the Securities and Exchange
Commission.
G-1-17
Schedule 7.03
Litigation
None other than those matters described in the Purchase Agreement and the most
recent 10K and 10Q reports filed by Xxxxxx Xxxxxx Energy with the Securities and
Exchange
Commission.
G-1-18
Schedule 7.09
Taxes
None other than those matters described in the Purchase Agreement and the most
recent 10K and 10Q reports filed by Xxxxxx Xxxxxx Energy with the Securities and
Exchange
Commission.
G-1-19
Schedule 7.10
Titles, etc.
None other than those matters described in the Purchase Agreement and the most
recent 10K and 10Q reports filed by Xxxxxx Xxxxxx Energy with the Securities and
Exchange
Commission.
G-1-20
Schedule 7.14
Subsidiaries and Partnerships
Subsidiaries of Borrower
None.
G-1-21
Schedule 7.17
Environmental Matters
None other than those matters described in the most recent 10K and 10Q reports
filed by Xxxxxx Xxxxxx Energy with the Securities and Exchange
Commission.Schedule 7.19
Insurance
Insurance Certificates Attached.
G-1-22
Schedule 7.20
Hedging Agreements
SWAP transaction to Enron Transportation Services, L.P.
from First Union National Bank of North Carolina dated
February 13, 1996.
G-1-23
Schedule 7.22
Material Agreements
1. Documents and agreements relating to $23,000,000 Port
Facility Refunding Revenue Bonds (Enron
Transportation Services, L.P. Project) Series 1994 of
the Xxxxxxx-Union Counties Regional Port District.
2. Letter of Credit Agreement and Reimbursement
Agreement between Borrower and Wachovia Bank of
Georgia, N.A. relating to the Bonds described in
paragraph 1 above and all documents, instruments and
agreements related thereto.
3. Those other agreements to which Borrower or any Subsidiary is a party and
described in the most recent 10K and 10Q reports filed by Xxxxxx Xxxxxx
Energy with the Securities and Exchange Commission.
G-1-24
Schedule 9.01
Debt
See Schedule 7.22.
G-1-25
Schedule 9.02
Liens
Liens relating to the Bonds and related documents described in items 1 and 2 of
Schedule 7.22.
G-1-26
Schedule 9.03
Investments, Loans and Advances
None.
G-1-27
