Exhibit 10.31
BRIDGE LOAN
AGREEMENT
Dated as of August 1, 2005
among
COPANO ENERGY,
L.L.C.,
as the
Borrower,
BANC OF AMERICA BRIDGE
LLC,
as Administrative Agent
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES
LLC,
as
Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
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BRIDGE LOAN
AGREEMENT
This BRIDGE LOAN AGREEMENT (“
Agreement ”) is entered into as of August 1, 2005,
among COPANO ENERGY, L.L.C., a Delaware limited liability company
(the “ Borrower ”), each lender from time to
time party hereto (collectively, the “ Lenders ”
and individually, a “ Lender ”), and BANC OF
AMERICA BRIDGE LLC, as Administrative Agent.
The Borrower has requested that the
Lenders lend to the Borrower $170,000,000 hereunder, and the
Lenders are willing to do so on the terms and conditions set forth
herein.
In consideration of the mutual
covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01
Defined Terms. As used in this Agreement,
the following terms shall have the meanings set forth
below:
“ Acquisition ”
means the purchase by the Acquisition Subsidiary of all the Equity
Interests of ScissorTail pursuant to the Acquisition
Agreement.
“ Acquisition Agreement
” means that certain Membership Interest Purchase Agreement
dated as of June 20, 2005, by and among the Borrower, the
Acquisition Subsidiary, ScissorTail, Hamilton ScissorTail, LLC,
ScissorTail Holdings, LLC, Jay A. Precourt and Frederic C.
Hamilton.
“ Acquisition Documents
” means (a) the Acquisition Agreement, and (b) all other
agreements, assignments, deeds, conveyances, certificates and other
documents and instruments now or hereafter executed and delivered
in connection with the Acquisition.
“ Acquisition
Subsidiary ” means Copano Energy/Rocky Mountains and
Mid-Continent, L.L.C., a Delaware limited liability company, a
wholly-owned Subsidiary of the Borrower.
“ Additional Debt
” means Indebtedness for borrowed money other than
Indebtedness described in Section 7.03 hereof.
“ Additional Equity
” means any contribution to the equity capital of any Person
whether or not occurring in connection with the issuance or sale of
Equity Interests by such Person.
“ Administrative Agent
” means Banc of America Bridge in its capacity as
administrative agent under any of the Loan Documents, or any
successor administrative agent.
“ Administrative
Agent’s Office ” means the Administrative
Agent’s address and, as appropriate, account as set forth on
Schedule 10.02 , or such other address or account as the
Administrative Agent may from time to time notify to the Borrower
and the Lenders.
“ Administrative
Questionnaire ” means an Administrative Questionnaire in
a form supplied by the Administrative Agent.
“ Affiliate ”
means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person
specified.
“ Aggregate Commitments
” means the Commitments of all the Lenders.
“ Agreement ”
means this Bridge Loan Agreement.
“ Applicable Percentage
” means, with respect to any Lender at any time, the
percentage (carried out to the ninth decimal place) of the
Aggregate Commitments represented by (i) on or prior to the Closing
Date, such Lender’s Commitment at such time and (ii)
thereafter, the principal amount of such Lender’s Loans at
such time. The initial Applicable Percentage of each Lender
in respect of the Bridge Facility is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as
applicable.
“ Applicable Rate
” means, with respect to Eurodollar Rate Loans, a percentage
per annum initially equal to 5.00% per annum, which shall increase
by 0.50% per annum at the end of the first Interest Period after
the Closing Date, and the applicable percentage per annum will
continue to increase by 0.50% per annum at the end of each Interest
Period thereafter.
“ Approved Fund ”
means any Fund that is administered or managed by (a) a Lender, (b)
an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
“ Arranger ”
means Banc of America Securities LLC, in its capacity as sole lead
arranger and sole book manager.
“ Assignee Group
” means two or more Eligible Assignees that are Affiliates of
one another or two or more Approved Funds managed by the same
investment advisor.
“ Assignment and
Assumption ” means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any
party whose consent is required by Section 10.06(b) ),
and accepted by the Administrative Agent, in substantially the form
of Exhibit E or any other form approved by the
Administrative Agent.
“ Attributable
Indebtedness ” means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP, and (b) in respect of any Synthetic
Lease Obligation, the capitalized amount of the remaining lease
payments under the relevant lease that would appear on a balance
sheet of such Person prepared as of such date in accordance with
GAAP if such lease were accounted for as a capital
lease.
“ Audited Financial
Statements ” means the audited consolidated balance sheet
of the Borrower and its Subsidiaries for the fiscal year ended
December 31, 2004, and the related
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consolidated statements of income or operations,
members’ capital and cash flows for such fiscal year of the
Borrower and its Subsidiaries, including the notes
thereto.
“ Available Cash
” for any fiscal quarter has the meaning set forth in the
Borrower LLC Agreement.
“ Banc of America
Bridge ” means Banc of America Bridge LLC and its
successors.
“ Bank of America
” means Bank of America, N.A. and its successors.
“ BBA LIBOR ” has
the meaning specified in Section 1.01 under the definition
of “Eurodollar Rate”.
“ Borrower ” has
the meaning specified in the introductory paragraph
hereto.
“ Borrower LLC
Agreement ” means the Second Amended and Restated Limited
Liability Company Agreement of the Borrower dated as of November
15, 2004.
“ Borrower Materials
” has the meaning specified in Section 6.02
.
“ Bridge Borrowing
” means a borrowing consisting of simultaneous Bridge Loans
made by each of the Lenders pursuant to Section 2.01(a)
.
“ Bridge Facility
” means, at any time, (a) prior to the Bridge Borrowing, the
Aggregate Commitments, and (b) after the Bridge Borrowing, the
aggregate amount of Bridge Loans and Rollover Loans of all Lenders
at such time.
“ Bridge Loan ”
has the meaning specified in Section 2.01 .
“ Bridge Maturity Date
” means the first anniversary of the Closing Date.
“ Bridge Note ”
means a promissory note made by the Borrower in favor of a Lender
evidencing Bridge Loans made by such Lender, in substantially the
form of Exhibit B .
“ Business Day ”
means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent’s
Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar
market.
“ Capital Expenditures
” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, an amount equal to the sum of
(i) the aggregate amount of all expenditures of the Borrower and
its Restricted Subsidiaries for fixed or capital assets made during
such period which, in accordance with GAAP, would be classified as
capital expenditures plus (ii) the aggregate amount of all
capitalized lease liabilities incurred during such
period.
“ Change in Law ”
means the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any law,
rule, regulation or treaty, (b) any change
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in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any
Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of
law) by any Governmental Authority.
“ Change of Control
” means an event or series of events by which:
(a)
any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, but excluding any employee benefit plan of such person
or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of
any such plan) becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act
of 1934), except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such
person or group has the right to acquire (such right, an “
option right ”), whether such right is exercisable
immediately or only after the passage of time), directly or
indirectly, of 30% or more of the equity securities of the Borrower
entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis
(and taking into account all such securities that such person or
group has the right to acquire pursuant to any option
right);
(b)
during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing
body of the Borrower cease to be composed of individuals (i) who
were members of that board or equivalent governing body on the
first day of such period, (ii) whose election or nomination to that
board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to
that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in
the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an
actual or threatened solicitation of proxies or consents for the
election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors
by or on behalf of the board of directors); or
(c)
any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation thereof, will
result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management
or policies of the Borrower, or control over the equity securities
of the Borrower entitled to vote for members of the board of
directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities
that such Person or group has the right to acquire pursuant to any
option right) representing 30% or more of the combined voting power
of such securities.
“ Change of Control
Notice ” has the meaning specified in Section
2.04(c) .
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“ Change of Control
Offer ” has the meaning specified in Section
2.04(c) .
“ Change of Control
Payment ” has the meaning specified in Section
2.04(c) .
“ Change of Control Payment
Date ” has the meaning specified in Section
2.04(c) .
“ Closing Date ”
means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with
Section 10.01 and the Bridge Loans are made pursuant to
Section 2.01 .
“ Code ” means
the Internal Revenue Code of 1986.
“ Comerica Credit
Facility ” means that certain Credit Agreement among
Copano Houston Central, L.L.C., Copano Processing, L.P., Copano NGL
Services, L.P. and Comerica Bank dated as of November 15, 2004, as
the same has been amended prior to the date hereof.
“ Commitment ”
means, as to each Lender, its obligation to make Bridge Loans to
the Borrower pursuant to Section 2.01 in the aggregate
principal amount at any one time outstanding not to exceed the
amount set forth opposite such Lender’s name on Schedule
2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this
Agreement.
“ Compliance
Certificate ” means a certificate substantially in the
form of Exhibit D .
“ Consolidated EBITDA
” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income for such period plus (a) the
following to the extent deducted in calculating such Consolidated
Net Income: (i) Consolidated Interest Charges for such period, (ii)
the provision for Federal, state, local and foreign income taxes
payable by the Borrower and its Restricted Subsidiaries for such
period, (iii) depreciation and amortization expense and (iv) other
expenses of the Borrower and its Restricted Subsidiaries reducing
such Consolidated Net Income which do not represent a cash item in
such period or any future period and minus (b) the following
to the extent included in calculating such Consolidated Net
Income: (i) Federal, state, local and foreign income tax
credits of the Borrower and its Restricted Subsidiaries for such
period and (ii) all non-cash items increasing Consolidated Net
Income for such period; provided that for the purposes of
Section 7.21 , if the Borrower or any Restricted Subsidiary
shall acquire or dispose of any material property or a Subsidiary
shall be redesignated as either an Unrestricted Subsidiary or a
Restricted Subsidiary, in any case, during the period of four
fiscal quarters ending on the last day of the fiscal quarter
immediately preceding the date of determination for which financial
statements are available and up to and including the date of the
consummation of such acquisition, disposition or redesignation,
then Consolidated EBITDA shall be calculated, in a manner
satisfactory to the Administrative Agent in its reasonable
discretion, after giving pro forma effect to such acquisition
(including the revenues of the properties acquired), merger,
disposition or redesignation, as if such acquisition, merger,
disposition or redesignation had occurred on the first day of such
period.
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“ Consolidated Fixed Charge
Coverage Ratio ” means, as of any date of determination,
the ratio of (a) Consolidated EBITDA minus Maintenance Capital
Expenditures for the applicable period to (b) Consolidated Fixed
Charges for the applicable period.
“ Consolidated Fixed
Charges ” means, for any period, for the Borrower and its
Restricted Subsidiaries on a consolidated basis, an amount equal to
the sum (without duplication) of the following (in each case,
eliminating all offsetting debits and credits between the Borrower
and its Restricted Subsidiaries and all other items required to be
eliminated in the course of the preparation of consolidated
financial statements of the Borrower and its Restricted
Subsidiaries in accordance with GAAP): (a) Consolidated
Interest Charges; plus (b) all fees, expenses and charges in
respect of letters of credit issued for the account of the Borrower
or any of its Restricted Subsidiaries, which are accrued during
such period and whether expensed in such period or capitalized;
plus (c) payments of principal in respect of Indebtedness of
the Borrower or its Restricted Subsidiaries (including the
principal component of payments under capital leases) paid or
payable in such period (other than payments of principal of
Indebtedness under the Credit Agreement which is available to be
reborrowed under the Credit Agreement).
“ Consolidated Funded
Indebtedness ” means, as of any date of determination,
for the Borrower and its Restricted Subsidiaries on a consolidated
basis, the sum of (a) the outstanding principal amount of all
obligations, whether current or long-term, for borrowed money
(including Obligations hereunder) and all obligations evidenced by
bonds, debentures, notes, loan agreements or other similar
instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments, (d) all obligations in respect of
the deferred purchase price of property or services (other than
trade accounts payable in the ordinary course of business), (e)
Attributable Indebtedness in respect of capital leases and
Synthetic Lease Obligations, (f) without duplication, all
Guarantees with respect to outstanding Indebtedness of the types
specified in clauses (a) through (e) above of Persons other than
the Borrower or any Restricted Subsidiary, and (g) all Indebtedness
of the types referred to in clauses (a) through (f) above of any
partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which the
Borrower or a Restricted Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse
to the Borrower or such Restricted Subsidiary.
“ Consolidated Interest
Charges ” means, for any period, for the Borrower and its
Restricted Subsidiaries on a consolidated basis, the sum of (a) all
interest, premium payments, debt discount, fees, charges and
related expenses of the Borrower and its Restricted Subsidiaries in
connection with borrowed money (including capitalized interest) or
in connection with the deferred purchase price of assets, in each
case to the extent treated as interest in accordance with GAAP,
excluding (i) distributions and payments to the Borrower’s
preferred unitholders and warrantholders prior to November 15, 2004
and (ii) one-time charges in respect of loan origination or similar
fees and non-cash amortized amounts with respect thereto, and (b)
the portion of rent expense of the Borrower and its Restricted
Subsidiaries with respect to such period under capital leases that
is treated as interest in accordance with GAAP.
“ Consolidated Interest
Coverage Ratio ” means, as of any date of determination,
the ratio of (a) Consolidated EBITDA to (b) Consolidated
Interest Charges for the applicable period.
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“ Consolidated Net
Income ” means, for any period, for the Borrower and its
Restricted Subsidiaries’ gross revenues for such period,
including any cash dividends or distributions actually received
from any other Person during such period, minus the
Borrower’s and its Restricted Subsidiaries’ expenses
and other proper charges against income (including taxes on income
to the extent imposed), determined on a consolidated basis in
accordance with GAAP consistently applied after eliminating
earnings or losses attributable to outstanding minority interests
and excluding the net earnings of any Person other than a
Restricted Subsidiary in which the Borrower or any of its
Subsidiaries has an ownership interest. Consolidated Net
Income shall not include (i) any gain or loss from the Disposition
of assets, (ii) any extraordinary gains or losses or (iii) any
non-cash gains or losses resulting from mark to market activity as
a result of the implementation of Statement of Financial Accounting
Standards 133, “Accounting for Derivative Instruments and
Hedging Activities” (“SFAS 133”).
“ Consolidated Senior
Funded Indebtedness ” means, as of any date of
determination, Consolidated Funded Indebtedness, but excluding
Indebtedness under the Bridge Facility and Subordinated
Indebtedness.
“ Consolidated Senior
Leverage Ratio ” means, as of any date of determination,
the ratio of (a) Consolidated Senior Funded Indebtedness as of such
date to (b) Consolidated EBITDA for the applicable period ending on
such date.
“ Consolidated Total
Leverage Ratio ” means, as of any date of determination,
the ratio of (a) Consolidated Funded Indebtedness as of such date
to (b) Consolidated EBITDA for the applicable period ending on such
date.
“ Contractual
Obligation ” means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it
or any of its property is bound.
“ Control ” means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract
or otherwise. “ Controlling ” and “
Controlled ” have meanings correlative
thereto.
“ Covenant Release Date
” means the first date on which (a) the Rollover Date shall
have occurred, (b) the shelf registration statement shall have been
filed with the SEC pursuant to Section 6.17(c) , (c) no
Specified Default shall have occurred and be continuing (unless in
the case of a Specified Default under Section 8.0l(a) , such
Default shall have been cured or waived), and (d) no Event of
Default relating to Section 6.16 or Section 6.17
shall have occurred and be continuing (unless such Event of Default
shall have been cured or waived).
“ Covenant Release
Notice ” means a certificate by the Chief Financial
Officer of the Borrower certifying that each condition to the
Covenant Release Date has been satisfied.
“ Credit Agreement
” means the Credit Agreement dated as of the date hereof
among the Borrower, the lenders party thereto and the Credit
Facility Agent, as the same may be amended, supplemented, modified,
restated, renewed, refunded, replaced or refinanced from time to
time.
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“ Credit Facility Agent
” means Bank of America, as the administrative agent pursuant
to the Credit Agreement, and any successor as administrative agent
thereunder.
“ Credit Facility Loan
Documents ” means the Credit Agreement and each of the
other Loan Documents (as defined therein).
“ Debtor Relief Laws
” means the Bankruptcy Code of the United States, and all
other liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time
in effect and affecting the rights of creditors
generally.
“ Default ” means
any event or condition that constitutes an Event of Default or
that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
“ Default Rate ”
means an interest rate equal to the interest rate (including the
Applicable Rate) otherwise applicable to the Loans plus
2.00% per annum.
“ Disposition ”
or “ Dispose ” means the sale, transfer,
license, lease or other disposition (including any sale and
leaseback transaction) of any property by any Person, including any
sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
“ Dollar ” and
“ $ ” mean lawful money of the United
States.
“ Eligible Assignee
” means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other
than a natural person) approved by the Arranger; provided
that notwithstanding the foregoing, “Eligible Assignee”
shall not include the Borrower or any of the Borrower’s
Affiliates or Subsidiaries.
“ Engagement Letter
” means the letter agreement, dated June 20, 2005,
between the Borrower and the Arranger.
“ Environmental Laws
” means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses,
agreements or governmental restrictions relating to pollution and
the protection of the environment or the release of any Hazardous
Materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to
waste or public systems.
“ Environmental
Liability ” means any liability, contingent or otherwise
(including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower, any
other Loan Party or any Restricted Subsidiary directly or
indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release
or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
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“ Equity Interests
” means, with respect to any Person, all of the shares of
capital stock of (or other ownership or profit interests in) such
Person, all of the warrants, options or other rights for the
purchase or acquisition from such Person of shares of capital stock
of (or other ownership or profit interests in) such Person, all of
the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such
Person or warrants, rights or options for the purchase or
acquisition from such Person of such shares (or such other
interests), and all of the other ownership or profit interests in
such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such
shares, warrants, options, rights or other interests are
outstanding on any date of determination.
“ ERISA ” means
the Employee Retirement Income Security Act of 1974.
“ ERISA Affiliate
” means any trade or business (whether or not incorporated)
under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the
Code).
“ ERISA Event ”
means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which
it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that
is treated as such a withdrawal under Section 4062(e) of ERISA; (c)
a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice
of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan
or Multiemployer Plan; (e) an event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon the Borrower or any
ERISA Affiliate.
“ Eurodollar Rate
” means for any Interest Period with respect to a Eurodollar
Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate (“ BBA LIBOR ”), as
published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of
such Interest Period, for Dollar deposits (for delivery on the
first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not available at such time
for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars
for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London
interbank Eurodollar market at their request at approximately 11:00
a.m. (London time) two Business Days prior to the commencement of
such Interest Period.
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“ Eurodollar Rate Loan
” means a Loan that bears interest at a rate based on the
Eurodollar Rate.
“ Event of Default
” has the meaning specified in Section 8.01
.
“ Exchange Note
Indenture ” has the meaning specified in Section
6.17 .
“ Exchange Notes
” means the senior exchange notes of the Borrower, guaranteed
by the Guarantors, to be issued in exchange for certain Rollover
Loans pursuant to Section 2.03 and the Exchange Note
Indenture, in the form to be attached as an exhibit to the Exchange
Note Indenture.
“ Exchange Note Trustee
” means, on any date of determination, the trustee under the
Exchange Note Indenture.
“ Exchange Notice
” has the meaning specified in Section 2.03(a)
.
“ Excess Sale Proceeds
” has the meaning specified in Section 7.05(c)
.
“ Excluded Taxes
” means, with respect to the Administrative Agent, any Lender
or any other recipient of any payment to be made by or on account
of any obligation of the Borrower or any other Loan Party hereunder
or under any other Loan Document, (a) taxes imposed on or measured
by its net income (however denominated), and franchise taxes
imposed on it, by the United States or by the jurisdiction (or any
political subdivision thereof) under the laws of which such
recipient is organized or resident or in which its principal office
is located or in which it is doing or has done business or, in the
case of any Lender, in which its applicable Lending Office is
located or in which it is doing or has done business, (b) any
branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction (or any political subdivision
thereof) in which the Borrower is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 10.13 ), any withholding tax
that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a
new Lending Office) or is attributable to such Foreign
Lender’s failure to comply with Section 3.01(h) or its
failure or inability (other than as a result of a Change in Law) to
comply with Section 3.01(e) , except to the extent that
such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new Lending Office (or assignment), to
receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 3.01(a)
.
“ Existing Credit
Agreement ” means that certain Amended and Restated
Credit Agreement dated as of February 13, 2004, among Copano
Pipelines Group, L.L.C., Copano Field Services/Copano Bay, L.P.,
Copano Field Services/Agua Dulce, L.P., Copano Field Services/South
Texas, L.P., Copano Field Services/Live Oak, L.P., Copano Field
Services/Central Gulf Coast, L.P., Copano Field Services/Upper Gulf
Coast, L.P., Copano Pipelines/South Texas, L.P., Copano
Pipelines/Upper Gulf Coast, L.P., Copano Pipelines/Hebbronville,
L.P., Copano Energy Services/Upper Gulf Coast, L.P., Bank of
America, N.A. (successor by merger to Fleet National Bank), as
agent, and a syndicate of lenders, as amended or supplemented to
the Closing Date.
10
“ Federal Funds Rate
” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal
Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on
the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds
Rate for such day shall be the average rate (rounded upward, if
necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the
Administrative Agent.
“ Fee Letter ”
means the letter agreement, dated June 20, 2005, among the
Borrower, the Administrative Agent, the Arranger, and Bank of
America.
“ Foreign Lender
” means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for
tax purposes. For purposes of this definition, the United
States, each State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
“ FRB ” means the
Board of Governors of the Federal Reserve System of the United
States.
“ Fund ” means
any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary
course of its business.
“ GAAP ” means
generally accepted accounting principles in the United States set
forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession in
the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
“ Governmental
Authority ” means the government of the United States or
any other nation, or of any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government
(including any supra-national bodies such as the European Union or
the European Central Bank).
“ Granting Lender
” has the meaning specified in Section 10.06(h)
.
“ Guarantee ”
means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable
by another Person (the “primary obligor”) in any
manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or
pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring
the
11
obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness or
other obligation, (iii) to maintain working capital, equity capital
or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation, or
(iv) entered into for the purpose of assuring in any other manner
the obligee in respect of such Indebtedness or other obligation of
the payment or performance thereof or to protect such obligee
against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or
other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person (or any
right, contingent or otherwise, of any holder of such Indebtedness
to obtain any such Lien). The amount of any Guarantee shall
be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made. The term
“Guarantee” as a verb has a corresponding
meaning.
“ Guarantors ”
means, collectively, each Restricted Subsidiary of the
Borrower.
“ Guaranty ”
means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders, substantially in the form of
Exhibit F .
“ Hazardous Materials
” means all explosive or radioactive substances or wastes and
all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental
Law.
“ Hedging Contract
” means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts,
equity or equity index swaps or options, bond or bond price or bond
index swaps or options or forward bond or forward bond price or
forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of
any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by
or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are
subject to the terms and conditions of, or governed by, any form of
master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “ Master
Agreement ”), including any such obligations or
liabilities under any Master Agreement.
“ Hedging Termination
Value ” means, in respect of any one or more Hedging
Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Hedging Contracts,
(a) for any date on or after the date such Hedging Contracts have
been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Hedging Contracts, as determined
based upon one or more mid-
12
market or other readily available quotations
provided by any recognized dealer in such Hedging Contracts (which
may include a Lender or any Affiliate of a Lender).
“ Indebtedness ”
means, as to any Person at a particular time, without duplication,
all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a)
all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes,
loan agreements or other similar instruments;
(b)
all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;
(c)
net obligations of such Person under any Hedging
Contract;
(d)
all obligations of such Person to pay the deferred purchase price
of property or services (other than trade accounts payable in the
ordinary course of business and, in each case, not past due for
more than 60 days after the date on which such trade account
payable was created);
(e)
indebtedness (excluding prepaid interest thereon) secured by a Lien
(other than Liens described in Section 7.01( l ) )on
property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse;
(f)
capital leases and Synthetic Lease Obligations;
(g)
all obligations of such Person to purchase, redeem, retire, defease
or otherwise make any payment in respect of any Equity Interest in
such Person (other than as permitted pursuant to Section
7.06 ) or any other Person, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends;
and
(h)
all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which such
Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person.
The amount of any net obligation under any Hedging Contract on any
date shall be deemed to be the Hedging Termination Value thereof as
of such date. The amount of any capital lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such
date.
“ Indemnified Taxes
” means Taxes other than Excluded Taxes.
13
“ Indemnitee ”
has the meaning specified in Section 10.04(b)
.
“ Information ”
has the meaning specified in Section 10.07 .
“ Initial Financial
Statements ” means:
(a)
the Audited Financial Statements;
(b)
the audited consolidated financial statements of the Borrower as of
December 31, 2002 and December 31, 2003;
(c)
the unaudited consolidated financial statements of the Borrower as
of March 31, 2005; and
(d)
the pro forma consolidated balance sheet of the Borrower and
the Restricted Subsidiaries as of March 31, 2005 after giving
effect to the Acquisition.
“ Interest Payment Date
” means the last day of each Interest Period and the
applicable Maturity Date.
“ Interest Period
” means each successive three-month period commencing on the
Closing Date; provided that:
(i)
any Interest Period that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business
Day;
(ii)
any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
(iii)
no Interest Period shall extend beyond the applicable Maturity
Date.
“ Internal Control
Event ” means (a) a determination of a material weakness
in, or (b) any fraud that involves management or other employees
who have a significant role in, the Borrower’s internal
controls over financial reporting, in each case as described in the
Securities Laws.
“ Investment ”
means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or
other acquisition of Equity Interests of another Person, or (b) a
loan, advance or capital contribution to, Guarantee or assumption
of Indebtedness of, or purchase or other acquisition of any other
Indebtedness or Equity Interests of, another Person, including any
partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness
of such other Person. For purposes of covenant compliance,
the amount of any Investment shall be the amount
actually
14
invested, without adjustment for subsequent
increases or decreases in the value of such Investment.
“ IP Rights ” has
the meaning specified in Section 5.17 .
“ IRS ” means the
United States Internal Revenue Service.
“ Kinder Morgan Gas
Processing Agreement ” means that certain Gas Processing
Contract dated as of January 1, 2004, between Copano Processing,
L.P. and Kinder Morgan Texas Pipeline, L.P., and that certain
related Letter Agreement between Copano Processing, L.P. and Kinder
Morgan Texas Pipeline, L.P., regarding prepayment of carbon dioxide
handling fees, together with all amendments and modifications
thereto permitted to be made by this Agreement.
“ Laws ” means,
collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in
each case whether or not having the force of law.
“ Lender ” has
the meaning specified in the introductory paragraph
hereto.
“ Lending Office
” means, as to any Lender, the office or offices of such
Lender described as such in such Lender’s Administrative
Questionnaire, or such other office or offices as a Lender may from
time to time notify the Borrower and the Administrative
Agent.
“ Lien ” means
any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential
arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease
having substantially the same economic effect as any of the
foregoing).
“ Loan ” means a
Bridge Loan or a Rollover Loan, as applicable.
“ Loan Documents
” means this Agreement, each Note, the Fee Letter, the
Engagement Letter, the Guaranty and all other agreements,
certificates, documents, instruments and writings at any time
delivered in connection herewith (exclusive of term sheets and
commitment letters).
“ Loan Parties ”
means, collectively, the Borrower and each Guarantor.
“ Maintenance Capital
Expenditures ” means, for any period, all amounts
properly classified as capital expenditures under GAAP that are
employed to replace partially or fully depreciated assets to
maintain the existing operating capacity of assets and to extend
their useful lives, or other amounts classified as capital
expenditures under GAAP that are incurred in maintaining existing
system volumes and related cash flows, excluding all costs
associated with new well hook-ups.
15
“ Material Adverse
Effect ” means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties,
liabilities (actual or contingent) or condition (financial or
otherwise) of the Borrower or the Borrower and its Restricted
Subsidiaries taken as a whole; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan
Document to which it is a party; or (c) a material adverse effect
upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is a
party.
“ Material Contracts
” means (a) the Acquisition Documents, (b) the Kinder Morgan
Gas Processing Agreement, (c) the New Dominion Gas Purchase
Agreement, and (d) any other contract or arrangement to which the
Borrower or any of its Restricted Subsidiaries is a party (other
than the Loan Documents) that constitutes ten percent (10%) or more
of the aggregate revenue of the Loan Parties on a consolidated
basis.
“ Maturity Date ”
means, with respect to the Bridge Loans, the Bridge Maturity Date,
and with respect to the Rollover Loans, the Rollover Maturity
Date.
“ Maximum Rate ”
has the meaning specified in Section 10.09 .
“ Minimum Rate ”
means a percentage per annum initially equal to 8.50% per annum,
which shall increase by 0.50% per annum at the end of the first
Interest Period after the Closing Date, and the applicable
percentage per annum will continue to increase by 0.50% per annum
at the end of each Interest Period thereafter.
“ Moody’s ”
means Moody’s Investors Service, Inc. and any successor
thereto.
“ Multiemployer Plan
” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any
ERISA Affiliate makes or is obligated to make contributions, or
during the preceding five plan years, has made or been obligated to
make contributions.
“ Net Cash Proceeds
” means the remainder of (a) the gross proceeds received by
any Loan Party from (i) a Disposition, (ii) the issuance of
Additional Debt, or (iii) the issuance of Additional Equity, as
applicable, less (b) underwriter discounts and commissions,
investment banking fees, legal, accounting and other professional
fees and expenses, and other usual and customary transaction costs,
in each case only to the extent paid or payable by a Loan Party in
cash and related to such Disposition, Additional Debt issuance, or
Additional Equity issuance, as applicable.
“ New Dominion Gas Purchase
Agreement ” means that certain Amended and Restated Gas
Purchase and Processing Agreement dated May 1, 2005 between
ScissorTail, Buyer/Processor, and New Dominion, L.L.C.,
Supplier.
“ Non-Recourse Debt
” means any Indebtedness of any Unrestricted Subsidiary, in
each case in respect of which: (a) the holder or holders thereof
(i) shall have recourse only to, and shall have the right to
require the obligations of such Unrestricted Subsidiary to be
performed, satisfied, and paid only out of, the property of such
Unrestricted Subsidiary and/or one or more of its Subsidiaries (but
only to the extent that such Subsidiaries are Unrestricted
Subsidiaries)
16
and/or any other Person (other than the Borrower
and/or any Restricted Subsidiary) and (ii) shall have no direct or
indirect recourse (including by way of guaranty, support or
indemnity) to the Borrower or any Restricted Subsidiary or to any
of the property of the Borrower or any Restricted Subsidiary,
whether for principal, interest, fees, expenses or otherwise; and
(b) with respect to any such Indebtedness of any Unrestricted
Subsidiary in which the Borrower directly or indirectly owns 75% or
more of the Equity Interests thereof, the terms and conditions
relating to the non-recourse nature of such Indebtedness are in
form and substance reasonably acceptable to the Administrative
Agent.
“ Note ” means a
Bridge Note or a Rollover Note, as the context may
require.
“ Obligations ”
means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan, whether direct or
indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement
by or against any Loan Party of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding,
regardless of whether such interest and fees are allowed claims in
such proceeding.
“ Offering Materials
” has the meaning specified in Section 6.16
.
“ Offering Requirements
” means the provisions, conditions, requirements,
recommendations and preferences (a) under Regulation S-X under the
Securities Act (“ Regulation S-X ”) and all
other accounting rules and regulations of the SEC promulgated under
the Securities Act, applicable to a registration statement under
the Securities Act on Form S-1, (b) as would be necessary for
customary “comfort” (including “negative
assurance” comfort) from independent accountants in
connection with any offering of any Permanent Financing, and (c) as
are customary and appropriate for such a document and as may
otherwise be reasonably required by the Arranger (including,
without limitation, all audited, pro forma and other
financial statements and schedules of the type that would be
required in a registered public offering of any Permanent Financing
on Form S-1).
“ Organization
Documents ” means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or
equivalent or comparable constitutive documents with respect to any
non-U.S. jurisdiction); (b) with respect to any limited liability
company, the certificate or articles of formation or organization
and operating agreement; and (c) with respect to any partnership,
joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of
formation or organization and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation
or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable,
any certificate or articles of formation or organization of such
entity.
“ Other Taxes ”
means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from
any payment made hereunder or under any other Loan Document or from
the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
17
“ Outstanding Amount
” means, with respect to, (a) Loans on any date, the
aggregate outstanding principal amount thereof after giving effect
to any borrowings and prepayments or repayments of Loans, as the
case may be, occurring on such date; and (b) Exchange Notes on any
date, the aggregate outstanding principal amount thereof after
giving effect to any exchanges, issuances, prepayments, repayments
and redemptions of Exchange Notes, as the case may be, occurring on
such date.
“ Participant ”
has the meaning specified in Section 10.06(d)
.
“ PBGC ” means
the Pension Benefit Guaranty Corporation.
“ Pension Plan ”
means any “employee pension benefit plan” (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, that is subject to Title IV of ERISA and is sponsored or
maintained by the Borrower or any ERISA Affiliate or to which the
Borrower or any ERISA Affiliate contributes or has an obligation to
contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at
any time during the immediately preceding five plan
years.
“ Permanent Financing
” means any debt securities or other Indebtedness issued or
incurred by the Borrower for the purpose of refinancing the Bridge
Facility.
“ Permanent Financing
Documents ” means, with respect to any Permanent
Financing, the agreements, indentures, notes, guaranties,
supplements, instruments and other documents (including any
exchange notes and securities) pursuant to which such Permanent
Financing, if any, is issued or incurred or otherwise setting forth
the terms of the Permanent Financing.
“ Person ” means
any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental
Authority or other entity.
“ Plan ” means
any “employee benefit plan” (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect
to any such plan that is subject to Section 412 of the Code or
Title IV of ERISA, any ERISA Affiliate.
“ Register ” has
the meaning specified in Section 10.06(c) .
“ Registered Public
Accounting Firm ” has the meaning specified in the
Securities Laws and shall be independent of the Borrower as
prescribed by the Securities Laws.
“ Registration Rights
Agreement ” has the meaning specified in Section
6.17(a) .
“ Related Parties
” means, with respect to any Person, such Person’s
Affiliates and the partners, directors, officers, employees, agents
and advisors of such Person and of such Person’s
Affiliates.
“ Reportable Event
” means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has
been waived.
18
“ Required Lenders
” means, as of any date of determination, registered holders
of Exchange Notes and Lenders holding more than 50% of the sum of
the Outstanding Amounts.
“ Responsible Officer
” means the chief executive officer, president, chief
financial officer, vice president, manager, treasurer or assistant
treasurer of a Loan Party (or any general partner, managing member
or Person in a similar capacity with respect thereto). Any
document delivered hereunder that is signed by a Responsible
Officer of a Loan Party shall be conclusively presumed to have been
authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer
shall be conclusively presumed to have acted on behalf of such Loan
Party.
“ Restricted Payment
” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interest
of the Borrower or any Restricted Subsidiary, or any payment
(whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of
any such Equity Interest, or on account of any return of capital to
the Borrower’s stockholders, partners or members (or the
equivalent Person thereof).
“ Restricted Subsidiary
” means each Subsidiary of the Borrower that is not an
Unrestricted Subsidiary.
“ Risk Management
Policy ” means the Risk Management Policy attached hereto
as Exhibit I , as the same may be revised, amended,
supplemented, modified or replaced from time to time (with any
material revisions, amendments, supplements, modifications or
replacements being reasonably satisfactory to Administrative
Agent).
“ Rollover Date ”
means the first anniversary of the Closing Date if the conditions
set forth in Section 2.02 shall have been satisfied, or such
later date as permitted by Section 2.02 .
“ Rollover Loan ”
has the meaning specified in Section 2.02 .
“ Rollover Maturity
Date ” means, if the Rollover Date shall have occurred,
the seventh anniversary of the Closing Date.
“ Rollover Note ”
means a promissory note made by the Borrower in favor of a Lender,
in substantially the form of Exhibit C , issued by the
Borrower to such Lender in exchange for its Bridge Note.
“ S&P ” means
Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
“ Sarbanes-Oxley
” means the Sarbanes-Oxley Act of 2002.
“ ScissorTail ”
means ScissorTail Energy, LLC, a Delaware limited liability
company.
“ ScissorTail Credit
Facility ” means that certain Amended and Restated Loan
and Security Agreement, dated as of May 30, 2002, as amended, among
ScissorTail, Bank of America, N.A. and the other lenders party
thereto.
19
“ SEC ” means the
Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
“ Security Act ”
means the Security Act of 1933, as amended.
“ Securities Laws
” means the Securities Act, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing
principles, rules, standards and practices promulgated, approved or
incorporated by the SEC or the Public Company Accounting Oversight
Board, as each of the foregoing may be amended and in effect on any
applicable date hereunder.
“ Solvent ” and
“ Solvency ” mean, with respect to any Person on
a particular date, that on such date both (a) (i) the fair value of
the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities,
of such Person, (ii) the present fair salable value of the assets
of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they
become absolute and matured, (iii) such Person does not intend to,
and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and
liabilities as they mature, and (iv) such Person is not engaged in
business or a transaction, and is not about to engage in business
or a transaction, for which such Person’s property would
constitute an unreasonably small capital, and (b) such Loan Party
is “solvent” within the meaning given that term and
similar terms under applicable laws relating to fraudulent
transfers and conveyances. The amount of contingent
liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability (irrespective of whether such
contingent liabilities meet the criteria for accrual under
Statement of Financial Accounting Standard No. 5).
“ Southern Dome ”
means Southern Dome, LLC, a Delaware limited liability company, in
which Borrower owns, directly or indirectly, a majority
interest.
“ SPC ” has the
meaning specified in Section 10.06(h) .
“ Specified Default
” means any Event of Default under Section 8.01(a), (f) or
(g) .
“ Subordinate Documents
” means those agreements, documents, instruments and writings
at any time delivered in connection with or evidencing Subordinated
Debt, as amended, supplemented or restated.
“ Subordinated Debt
” means all Indebtedness of the Borrower and its Restricted
Subsidiaries on a consolidated basis for money borrowed (a) the
structure, amount, term, tenor and incurrence thereof is approved
in writing by the Required Lenders, (b) on terms and conditions
less restrictive than the Loan Documents, and (c) subordinated,
upon terms satisfactory to the Administrative Agent (which may
include payment restrictions, restrictions on enforcement of
remedies, restrictions on amendment or modification of the terms
and conditions of such Indebtedness and restrictions on such
creditor’s rights in insolvency or bankruptcy proceedings),
in right of payment to the payment in full in cash of all
Obligations.
20
“ Subsidiary ” of
a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of
the shares of securities or other interests having ordinary voting
power for the election of directors or other governing body (other
than securities or interests having such power only by reason of
the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to
a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Borrower.
“ Syndication
Information ” means any written marketing materials,
including all financial information and data, and any information
memorandum used by the Arranger in connection with the syndication
of the Bridge Facility.
“ Synthetic Lease
Obligation ” means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property
creating obligations that do not appear on the balance sheet of
such Person but which, upon the insolvency or bankruptcy of such
Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).
“ Taxes ” means
all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
“ Threshold Amount
” means $5,000,000.
“ Unfunded Pension
Liability ” means the excess of a Pension Plan’s
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Pension Plan’s assets, determined in
accordance with the assumptions used for funding the Pension Plan
pursuant to Section 412 of the Code for the applicable plan
year.
“ United States ”
and “ U.S. ” mean the United States of
America.
“ Unrestricted
Subsidiary ” means Estes Cove Facilities, L.L.C., Nueces
Gathering, L.L.C., Southern Dome, Webb/Duval Gatherers, or any
other Subsidiary of the Borrower designated as such on Schedule
5.13 or which the Borrower has designated in writing to the
Administrative Agent to be an Unrestricted Subsidiary pursuant to
Section 7.18 .
1.02
Other Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:
(a)
The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “ include
,” “ includes ” and “
including ” shall be deemed to be followed by the
phrase “without limitation.” The word “
will ” shall be construed to have the same meaning and
effect as the word “ shall .” Unless the
context requires otherwise, (i) any definition of or reference to
any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time
amended, supplemented or
21
otherwise modified (subject
to any restrictions on such amendments, supplements or
modifications set forth herein or in any other Loan Document), (ii)
any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “
herein ,” “ hereof ” and “
hereunder ,” and words of similar import when used in
any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any
Law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such Law and any
reference to any Law or regulation shall, unless otherwise
specified, refer to such Law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “
asset ” and “ property ” shall be
construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.
(b)
In the computation of periods of time from a specified date to a
later specified date, the word “ from ” means
“ from and including ;” the words “
to ” and “ until ” each mean
“ to but excluding ;” and the word “
through ” means “ to and including
.”
(c)
Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan
Document.
1.03
Accounting Terms.
(a)
Generally . All accounting terms not specifically
or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial
Statements, except as otherwise specifically prescribed
herein.
(b)
Changes in GAAP . If at any time any change in
GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower
or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend
such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with
GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial
statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and
after giving effect to such change in GAAP.
(c)
Consolidation of Variable Interest Entities . All
references herein to consolidated financial statements of the
Borrower and its Subsidiaries or to the determination of any amount
for the Borrower and its Subsidiaries on a consolidated basis or
any similar reference shall, in
22
each case, be deemed to
include each variable interest entity that the Borrower is required
to consolidate pursuant to FASB Interpretation No. 46 —
Consolidation of Variable Interest Entities: an interpretation of
ARB No. 51 (January 2003) as if such variable interest entity
were a Subsidiary as defined herein.
1.04
Rounding. Any financial ratios
required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component
by the other component, carrying the result to one place more than
the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.05
Times of Day. Unless otherwise specified,
all references herein to times of day shall be references to
Eastern time (daylight or standard, as applicable).
ARTICLE II.
THE BRIDGE FACILITY
2.01
The Bridge Loans. (a) Subject to the
terms and conditions set forth herein, each Lender severally agrees
to make a loan (each a “ Bridge Loan ”) to the
Borrower on the Closing Date in the amount of such Lender’s
Commitment. The Bridge Borrowing shall consist of Bridge
Loans made simultaneously by the Lenders in accordance with their
respective Applicable Percentage of the Bridge Facility.
Amounts borrowed under this Section 2.01 and repaid or
prepaid may not be reborrowed.
(b)
Each Lender shall make the amount of its Bridge Loan available to
the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the
Closing Date. Upon satisfaction of the conditions set forth
in Section 4.01 , the Administrative Agent shall make all
funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the
account of the Borrower on the books of Banc of America Bridge with
the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the
Borrower.
(c)
The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period upon
determination of such interest rate.
2.02
Conversion to Rollover Loans. (a) On the Bridge
Maturity Date, or such later date as permitted by the next sentence
of this Section 2.02(a) , the Bridge Loans of each Lender
shall automatically be converted to a senior term loan maturing on
the Rollover Maturity Date (each, a “ Rollover Loan
”) if the following conditions shall have been satisfied on
such date: (i) no Default or Event of Default shall have occurred
and be continuing, (ii) all fees due to the Arranger and the
Lenders shall have been paid in full and (iii) the Administrative
Agent shall have received a certificate from a Responsible Officer
of the Borrower certifying to the foregoing and requesting a
conversion of the Bridge Loans to Rollover Loans (the “
Conversion Notice ”). If the foregoing
conditions shall not have been satisfied on the Bridge Maturity
Date, the Rollover Date shall not occur unless and until (x) each
Lender waives satisfaction of the foregoing conditions, or (y) each
Lender otherwise agrees. The Borrower shall repay to
the
23
Administrative Agent for the
ratable account of the Lenders the aggregate principal amount of
the Rollover Loans on the Rollover Maturity Date.
(b)
Each Lender shall deliver its Bridge Note to the Administrative
Agent within three Business Days following delivery of the
Conversion Notice. Not later than the third Business Day
after delivery of the Conversion Notice, the Administrative Agent
shall deliver each Bridge Note so delivered to it to the Borrower
for cancellation and the Borrower shall issue a replacement
Rollover Note to each Lender in an amount equal to the then
outstanding principal amount of such Lender’s
Loan.
(c)
Upon the Rollover Date, the obligations of the Borrower and each of
its Subsidiaries under Section 7.21 shall be discharged and
released and, thereafter, any failure to comply with Section
7.21 will not constitute a Default or Event of Default;
provided, that, notwithstanding the foregoing, if it is
subsequently determined or discovered that a Default under
Section 8.0l(f) or ( g ) had occurred and was
continuing on the Rollover Date, (i) this Section 2.02(c)
shall not be, or be deemed to constitute, a waiver thereof, and
(ii) each of the discharges, release set forth in this Section
2.02(c) shall automatically be rescinded and the provisions of
Section 7.21 shall be reinstated and apply to the Borrower
and each of its Subsidiaries, in each case, as in effect prior to
giving effect to the release and modifications contemplated in this
Section 2.02(c) .
2.03
Option to Exchange Rollover Loans for Exchange Notes; Exchange
Notes Provisions. (a) On any Business Day on or
after the Rollover Date, any Lender may elect to exchange all or
any portion of its Rollover Loan for one or more Exchange Notes by
giving not less than three Business Days’ prior irrevocable
written notice of such election to the Borrower, the Administrative
Agent and the Exchange Note Trustee, specifying the principal
amount of its Rollover Loan to be exchanged (which shall be at
least $1,000,000 and integral multiples in excess thereof), the
name of the proposed registered holder and, subject to the terms of
the Exchange Note Indenture, the amount of each Exchange Note
requested to be issued (each such notice, an “ Exchange
Notice ”). Upon Lenders holding an aggregate
principal amount of the Rollover Loans in an amount equal to or
greater than $42,500,000 having made such election, the Borrower
shall issue Exchange Notes in exchange for such Rollover Loans and
any additional Rollover Loans elected to be exchanged for Exchange
Notes. Any such exchanging Lender shall deliver any Rollover
Notes held by it evidencing the amount of its Rollover Loan
requested to be exchanged to the Administrative Agent within three
Business Days following delivery of an Exchange Notice.
Rollover Loans exchanged for Exchange Notes pursuant to this
Section 2.03 shall be deemed repaid and canceled and the
Exchange Notes so issued shall be governed by the provisions of the
Exchange Note Indenture.
(b)
Not later than the third Business Day after delivery of an Exchange
Notice:
(i)
the Administrative Agent shall deliver each Rollover Note so
delivered to it to the Borrower for cancellation and, if
applicable, the Borrower shall issue a replacement Rollover Note to
each exchanging Lender in an amount equal to the principal amount
of such Lender’s Rollover Loan that is not being exchanged,
or the Administrative Agent shall make a notation on the
surrendered Rollover Note to the effect that a portion of the
Rollover Loan represented thereby has been repaid; and
24
(ii)
the Administrative Agent shall deliver the applicable Exchange
Notes to the Exchange Note Trustee for authentication and delivery
to the holder or holders thereof specified in the Exchange
Notice.
(c)
Each Exchange Note issued pursuant to this Section 2.03
shall continue to bear and accrue interest at the rate per
annum applicable to the Rollover Loans until such rate per
annum shall become fixed in accordance with the terms of the
Exchange Note Indenture, in which case, the applicable rate per
annum shall be determined pursuant to the Exchange Note
Indenture. Unless otherwise provided in the Exchange Note
Indenture, accrued but unpaid interest on Rollover Loans through
the date of such exchange shall be paid on the date of such
exchange, together with any additional amounts required pursuant to
Section 3.05 , and the Exchange Notes received in such
exchange shall bear and accrue interest from and including the date
of issuance of such Exchange Note.
(d)
If the Covenant Release Date shall have occurred, upon delivery of
a Covenant Release Notice to the Administrative Agent, (A) the
obligations of the Borrower and each of its Subsidiaries under each
of the covenants set forth in Article VI and Article
VII shall be discharged and released and, thereafter, any
failure to comply with those covenants will not constitute a
Default or Event of Default, (B) concurrently with such discharge
and release, each of the covenants set forth in the Exchange Note
Indenture applicable to the Borrower or the “Company”,
the “Issuer”, a “Guarantor”, a
“Subsidiary” or a “Restricted Subsidiary”
thereunder shall automatically be incorporated herein by reference,
and form a part hereof, and shall automatically apply mutatis
mutandis to the Borrower and each of its Subsidiaries hereunder as
if the Borrower were the “Company” or the
“Issuer” thereunder, each Guarantor were a
“Guarantor” thereunder and each Subsidiary of the
Borrower were a “Subsidiary” and a “Restricted
Subsidiary” or “Unrestricted Subsidiary” of the
Borrower, as applicable, thereunder and the Administrative Agent
were the “Trustee” or “Indenture Trustee”
thereunder, and the Borrower and each of its Subsidiaries shall be,
and hereby agrees that it shall be, bound by the terms of such
covenants as if fully set forth herein, and (C) each of the Events
of Default set forth in Section 8.01 shall replaced in their
entirety with the events of default specified in the Exchange Notes
Indenture; provided, that, notwithstanding the foregoing, if it is
subsequently determined or discovered that a Default under
Section 8.0l(f) or ( g ) had occurred and was
continuing at the time of delivery of the Covenant Release
Certificate, (x) such Default and any other Default then continuing
shall nonetheless be, and continue to constitute, a Default
hereunder, which, for the avoidance of doubt shall automatically be
reinstated, and this Section 2.03(d) shall not be, or be
deemed to constitute, a waiver thereof, and (y) each of the
discharges, releases, replacements and modifications set forth in
clauses (A), (B), (C) and (D) shall automatically be
rescinded and the provisions of Articles VI, VII and
VIII shall be reinstated and apply to the Borrower and each
of its Subsidiaries or Restricted Subsidiaries, as applicable, in
each case, as in effect prior to giving effect to the discharges,
releases, replacements and modifications contemplated in this
Section 2.03(d) .
2.04
Prepayments. (a)
Optional . The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily
prepay Loans, in whole or in part, without premium or penalty;
provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. three Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (ii)
any prepayment of Eurodollar Rate Loans shall be
25
in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof or, if
less, the entire principal amount thereof then outstanding.
Each such notice shall specify the date and amount of such
prepayment. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount
of such Lender’s ratable portion of such prepayment (based on
such Lender’s Applicable Percentage). If such notice is
given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest
thereon, together with any additional amounts required pursuant to
Section 3.05 .
(b)
Mandatory
. (i) If any
Permanent Financing is issued or incurred, on the date any Loan
Party receives the Net Cash Proceeds of the issuance or incurrence
of such Permanent Financing, the Borrower shall immediately apply
all such Net Cash Proceeds to prepay the aggregate principal
Outstanding Amounts under the Bridge Facility and, thereafter, in
accordance with Section 8.03 .
(ii)
Upon the sale or
issuance by the Borrower of any of its Equity Interests (other than
any sales or issuances of Equity Interests by the Borrower to any
directors, officers or employees of the Borrower or any of its
Subsidiaries), the Borrower shall prepay an aggregate principal
amount of Bridge Facility equal to 100% of all Net Cash Proceeds
received therefrom immediately upon receipt thereof.
(iii)
Upon the
incurrence or issuance by any Loan Party or any of its Subsidiaries
of any unsecured Indebtedness not permitted to be incurred or
issued pursuant to Section 7.03 , the Borrower shall prepay
an aggregate principal amount of the Bridge Facility equal to 100%
of all Net Cash Proceeds received therefrom immediately upon
receipt thereof.
(c)
Change of
Control (i) Within 30 days after the
occurrence of a Change of Control, the Borrower shall either repay
all obligations under the Credit Agreement or obtain any required
consents under the Credit Agreement to make the offer described
below (the “ Change of Control Offer
”).
(ii)
Upon the
occurrence of a Change of Control, each Lender will have the right
to require the Borrower to prepay all or any part of such
Lender’s Loans pursuant to the Change of Control Offer at a
prepayment price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest thereon, if
any, to the date of prepayment (the “ Change of Control
Payment ”). Within 10 days following any Change of
Control, the Borrower will deliver a written notice (the “
Change of Control Notice ”) to the Administrative
Agent in the manner provided for notices in Section 10.02
and the Administrative Agent will promptly forward such Change of
Control Notice to each Lender in such manner. The Change of
Control Notice shall describe the transaction or transactions that
constituted the Change of Control and offer to repay the Loans on
the date specified in such Change of Control Notice, which date
shall be no earlier than 30 days but no later than 60 days from the
date of the occurrence of the Change of Control (the “
Change of Control Payment Date ”), pursuant to the
procedures set forth below.
26
(iii)
The Change of
Control Offer shall remain open from the time of mailing of the
Change of Control Notice until ten Business Days prior to the
anticipated Change of Control Payment Date. The Change of
Control Notice shall contain all instructions and materials
necessary to enable the Lenders to elect to be prepaid pursuant to
the Change of Control Offer. To accept the Change of Control
Offer, in whole or in part, a Lender shall notify the Borrower in
writing (with a copy to the Administrative Agent) in the manner
provided for notices in Section 10.02 or as otherwise
provided in the Change of Control Offer not later than ten Business
Days prior to the anticipated Change of Control Payment
Date.
(iv)
On the Change of
Control Payment Date, the Borrower shall (A) make the Change of
Control Payment for each Loan (or portion thereof) elected to be
repaid pursuant to the Change of Control Offer by delivering the
Change of Control Payments to the Administrative Agent for
transmittal to the applicable Lenders (such delivery by the
Borrower constituting the satisfaction of its obligations to make
such Change of Control Payments) and (B) deliver to each such
Lender a new Note (if requested) equal in principal amount
(excluding premiums, if any) to the unpurchased portion of the
corresponding Note surrendered by such Lender, if any. Each
Lender requesting a new Note shall, as a condition to the issuance
of a new Note deliver its existing Note to the Borrower or to the
Administrative Agent on the Borrower’s behalf in which case
the Administrative Agent shall deliver such Note to the Borrower
upon the Borrower’s issuance of the new Note. The
Administrative Agent will notify the remaining Lenders of the
results of the Change of Control Offer on or as soon as practicable
after the Change of Control Payment Date.
2.05
Reduction of
Commitments. The aggregate Commitments
shall be automatically and permanently reduced to zero on the date
of the Bridge Borrowing.
2.06
Repayment of Bridge
Loans. The Bridge Loans will mature
on the Bridge Maturity Date. Subject to Section 2.02 ,
the Borrower shall repay to the Administrative Agent for the
ratable account of the Lenders the aggregate principal amount of
the Bridge Loans on the Bridge Maturity Date.
2.07
Interest. (a) Subject to the
provisions of Section 2.07(b) , each Loan shall bear and
accrue interest on the outstanding principal amount thereof for
each Interest Period at a rate equal to the greater of (a) the
Eurodollar Rate for such Interest Period (as determined pursuant to
Section 2.09 ) plus the Applicable Rate and (b) the Minimum
Rate in effect during such Interest Period; provided , that,
except as provided in Section 2.07(b) , such interest shall
not exceed a rate of 11.00% per annum; provided ,
further , that the portion, if any, of any interest payable
at a rate in excess of 10.50% per annum may be paid by capitalizing
such interest and adding it to the principal of such
Loan.
(b)
Notwithstanding
the limitations set forth in Section 2.07(a) :
(i)
upon the
occurrence and during the continuance of any Specified Default, the
Borrower shall pay interest on all outstanding Obligations under
the Loan Documents
27
at a rate per annum equal to
the Default Rate to the fullest extent permitted by applicable
Laws;
(ii)
if a shelf
registration statement shall not have been filed pursuant to
Section 6.17(c) on or prior to the date that is 270 days
after the Closing Date, the Borrower shall pay additional interest
on all outstanding Obligations under the Loan Documents until the
shelf registration shall have been filed at a rate per annum
equal to (A) 0.25% per annum from and including the date
that is 271 days after the Closing Date to and excluding the date
that is 360 days after the Closing Date, (B) 0.50% per annum
from and including the date that is 360 days after the Closing Date
to and excluding the date that is 450 days after the Closing Date,
(C) 0.75% per annum from and including the date that is 450
days after the Closing Date to and excluding the date that is 540
days after the Closing Date, and (D) 1.00% per annum from
and including the date that is 540 days after the Closing Date to
and excluding the date on which the shelf registration shall have
been filed;
(iii)
if a shelf
registration statement shall have been filed, but not declared
effective, pursuant to Section 6.17(c) on or prior to the
date that is 450 days after the Closing Date, the Borrower shall
pay additional interest on all outstanding Obligations under the
Loan Documents until the shelf registration shall have been
declared effective at a rate per annum equal to 0.25% per
annum from and including the date that is 451 days after the
Closing Date to and excluding the date on which the shelf
registration shall have been declared effective; and
(iv)
if the Offering
Materials shall not have been completed and made available pursuant
to Section 6.16(a) on or prior to the date that is 60 days
after the Closing Date, the Borrower shall pay additional interest
on all outstanding Obligations; under the Loan Documents until the
Offering Materials shall have been completed and made available at
a rate per annum equal to (A) 0.25% per annum from
and including the date that is 61 days after the Closing Date to
and excluding the date that is 90 days after the Closing Date, (B)
0.50% per annum from and including the date that is 90 days
after the Closing Date to and excluding the date that is 180 days
after the Closing Date, (C) 0.75% per annum from and
including the date that is 180 days after the Closing Date to and
excluding the date that is 270 days after the Closing Date, and (D)
1.00% per annum from and including the date that is 270 days
after the Closing Date to and excluding the date on which the
Offering Materials shall have been completed and made
available;
provided , that (A) interest payable under clauses
(i), (ii), (iii) and (iv) shall be cumulative and not mutually
exclusive, and (B) the aggregate rate per annum with respect
to additional interest payable pursuant to clauses (ii) and
(iv) shall not exceed 1.00% per annum.
(c)
Interest on each
Loan shall be due and payable in arrears on each Interest Payment
Date applicable thereto and at such other times as may be specified
herein. Interest hereunder shall be due and payable in
accordance with the terms hereof before and after judgment, and
before and after the commencement of any proceeding with respect to
the Borrower under any Debtor Relief Law.
28
2.08
Fees. The Borrower shall pay to
the Arranger and the Administrative Agent for their own respective
accounts fees in the amounts and at the times specified in the Fee
Letter. The Borrower shall pay to the Administrative Agent
such fees as shall have been separately agreed upon in writing in
the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason
whatsoever.
2.09
Computation of Interest and
Fees. The Administrative Agent
shall determine the Eurodollar Rate no more than 3 Business Days,
and no less than 1 Business Day, prior to the Closing Date and
thereafter, the first day of each subsequent Interest Period.
Upon such determination, the Administrative Agent shall notify the
Borrower and each Lender of such determination. All
computations of fees and interest shall be made on the basis of a
360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for
the day on which the Loan is made, and shall not accrue on a Loan,
or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section
2.11(a) , bear interest for one day. Each determination
by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest
error.
2.10
Evidence of Debt.
The Loans
made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent
in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Loans made by
the Lenders to the Borrower and the interest and payments
thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the
accounts and records of the Administrative Agent (set forth in the
Register) shall control in the absence of manifest error.
Upon the request of any Lender made through the Administrative
Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Bridge Note, which shall
evidence such Lender’s Bridge Loans in addition to such
accounts or records. Each Lender may attach schedules to its
Bridge Note and endorse thereon the date, amount and maturity of
its Bridge Loans and payments with respect thereto.
2.11
Payments Generally; Administrative
Agent’s Clawback. (a) General All
payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or
setoff. Except as otherwise expressly provided herein, all
payments by the Borrower hereunder shall be made to the
Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at the Administrative Agent’s
Office in Dollars and in immediately available funds not later than
2:00 p.m. on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Applicable
Percentage (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such
Lender’s Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on
the next succeeding Business Day and any applicable interest or fee
shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment
shall be made on the
29
next following Business Day,
and such extension of time shall be included in computing interest
or fees, as the case may be.
(b)
(i) Funding by
Lenders; Presumption by Administrative Agent . Unless the
Administrative Agent shall have received notice from a Lender prior
to the Closing Date that such Lender will not make available to the
Administrative Agent such Lender’s share of the Bridge Loans,
the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.01
and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender
has not in fact made its share of the Bridge Loans available to the
Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount in immediately available funds
with interest thereon, for each day from and including the date
such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (A) in the case of
a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation
and (B) in the case of a payment to be made by the Borrower, the
Minimum Rate. If the Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such
period. If such Lender pays its share of the Bridge Loans to
the Administrative Agent, then the amount so paid shall constitute
such Lender’s Bridge Loans. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have
against a Lender that shall have failed to make such payment to the
Administrative Agent.
(ii)
Payments by
Borrower; Presumptions by Administrative Agent
. Unless
the Administrative Agent shall have received notice from the
Borrower prior to the time at which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that
the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders the amount due. In such event, if
the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender, in
immediately available funds with interest thereon, for each day
from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation.
A notice of the Administrative Agent
to any Lender or the Borrower with respect to any amount owing
under this subsection (b) shall be conclusive, absent manifest
error.
(c)
Failure to
Satisfy Conditions Precedent . If any Lender makes
available to the Administrative Agent funds for any Bridge Loan to
be made by such Lender as provided in the foregoing provisions of
this Article II , and such funds are not made
available to the Borrower by the Administrative Agent because the
conditions to the borrowing of Bridge Loans set forth in Article
IV are not satisfied or waived in accordance with the terms
hereof, the Administrative
30
Agent shall return such
funds (in like funds as received from such Lender) to such Lender,
without interest.
(d)
Obligations of
Lenders Several . The obligations of
the Lenders hereunder to make Bridge Loans and to make payments
pursuant to Section 10.04(c) are several and not
joint. The failure of any Lender to make any Bridge Loan or
to make any payment under Section 10.04(c) on any date
required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall
be responsible for the failure of any other Lender to so make its
Bridge Loan or to make its payment under Section 10.04(c)
.
(e)
Funding
Source . Nothing herein shall
be deemed to obligate any Lender to obtain the funds for any Loan
in any particular place or manner or to constitute a representation
by any Lender that it has obtained or will obtain the funds for any
Loan in any particular place or manner.
(f)
Insufficient
Payment . Whenever any payment
received by the Administrative Agent under this Agreement or any of
the other Loan Documents is insufficient to pay in full all amounts
due and payable to the Administrative Agent and the Lenders under
or in respect of this Agreement and the other Loan Documents on any
date, such payment shall be distributed by the Administrative Agent
and applied by the Administrative Agent and the Lenders in the
order of priority set forth in Section 8.03 .
2.12
Sharing of Payments by
Lenders. If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of the
Loans made by it held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such
Loans or participations and accrued interest thereon greater than
its pro rata share thereof of Bridge Facility as provided herein,
then the Lender receiving such greater proportion shall (a) notify
the Administrative Agent of such fact, and (b) purchase (for cash
at face value) participations in the Loans of the other Lenders, or
make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued
interest on the Outstanding Amount of their respective Loans and
other amounts owing them, provided that:
(i)
if any such
participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such
recovery, without interest; and
(ii)
the provisions of
this Section shall not be construed to apply to (A) any payment
made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or (B) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in
any of its Loans to any assignee or participant, other than to the
Borrower or any Subsidiary thereof (as to which the provisions of
this Section shall apply).
Each Loan Party consents to the foregoing and
agrees, to the extent it may effectively do so under applicable
Law, that any Lender acquiring a participation pursuant to the
foregoing
31
arrangements may exercise against such Loan
Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of
such Loan Party in the amount of such participation.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01
Taxes.
(a)
Payments Free
of Taxes . Any and all
payments by or on account of any obligation of the Borrower
hereunder or under any other Loan Document shall be made free and
clear of and without reduction or withholding for any Indemnified
Taxes or Other Taxes, provided that if the Borrower shall be
required by applicable Law to deduct any Indemnified Taxes
(including any Other Taxes) from such payments, then (i) the sum
payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or
Lender, as the case may be, receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall
timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable Law.
(b)
Payment of
Other Taxes by the Borrower . Without limiting
the provisions of subsection (a) above, the Borrower shall timely
pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable Law.
(c)
Indemnification by the
Borrower . The Borrower
shall indemnify the Administrative Agent and each Lender, within 10
days after demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under
this Section) paid by the Administrative Agent or such Lender, as
the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest
error.
(d)
Evidence of
Payments . As soon as
practicable after any payment of Indemnified Taxes or Other Taxes
by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e)
Status of
Lenders . Each Foreign
Lender that is entitled to an exemption from or reduction of
withholding tax under the Law of the jurisdiction in which the
Borrower is resident for tax purposes, or any treaty to which such
jurisdiction is a party, with respect to payments hereunder or
under any other Loan Document shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed
by applicable Law or reasonably
32
requested by the Borrower or
the Administrative Agent, such properly completed and executed
documentation prescribed by applicable Law as will permit such
payments to be made without withholding or at a reduced rate of
withholding. In addition, any Lender, if requested by the
Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable Law or reasonably requested
by the Borrower or the Administrative Agent as will enable the
Borrower or the Administrative Agent to determine whether or not
such Lender is subject to backup withholding or information
reporting requirements.
Without limiting the generality of
the foregoing, in the event that the Borrower is resident for tax
purposes in the United States, each Foreign Lender shall deliver to
the Borrower and the Administrative Agent (in such number of copies
as shall be requested by the recipient) on or prior to the date on
which such Foreign Lender becomes a Lender under this Agreement
(and from time to time thereafter upon the request of the Borrower
or the Administrative Agent, but only if such Foreign Lender is
legally entitled to do so), whichever of the following is
applicable:
(i)
duly completed
copies of Internal Revenue Service Form W-8BEN claiming eligibility
for benefits of an income tax treaty to which the United States is
a party,
(ii)
duly completed
copies of Internal Revenue Service Form W-8ECI,
(iii)
in the case of a
Foreign Lender claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (x) a certificate to the
effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Code, (B) a
holder of ten percent (10%) or more of the capital or profit
interests of the Borrower within the meaning of section
871(h)(3)(B) of the Code, or (C) a “controlled foreign
corporation” described in section 881(c)(3)(C) of the Code
and (y) duly completed copies of Internal Revenue Service
Form W-8BEN, or
(iv)
any other form
prescribed by applicable Law as a basis for claiming exemption from
or a reduction in United States Federal withholding tax duly
completed together with such supplementary documentation as may be
prescribed by applicable Law to permit the Borrower to determine
the withholding or deduction required to be made.
(f)
United States
Lenders . Upon request of the
Borrower or the Administrative Agent, a Lender that is a United
States person within the meaning of Section 7701(a)(30) of the Code
shall deliver to such requesting party (in such number of copies as
shall be requested thereby) duly completed copies of Internal
Revenue Service Form W-9, or any successor or other applicable
form.
(g)
Treatment of
Certain Refunds . If the
Administrative Agent or any Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant
to this Section, it shall pay to the Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such
refund),
33
net of all out-of-pocket
expenses of the Administrative Agent or such Lender, as the case
may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund),
provided that the Borrower, upon the request of the
Administrative Agent, or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative
Agent or such Lender is required to repay such refund to such
Governmental Authority. This subsection shall not be
construed to require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its
taxes that it deems confidential) to the Borrower or any other
Person.
3.02
Illegality.
If any Lender
determines that any Change in Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates
based upon the Eurodollar Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender to the
Borrower through the Administrative Agent, any obligation of such
Lender to make or continue Eurodollar Rate Loans shall be suspended
until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, the Borrower
shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all
Eurodollar Rate Loans of such Lender to Loans bearing interest at
the Minimum Rate in effect at such time, either on the last day of
the Interest Period therefor, if such Lender may lawfully continue
to maintain such Eurodollar Rate Loans to such day, or immediately,
if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted.
3.03
Inability to Determine
Rates. If the Required Lenders
determine that for any reason in connection with any Eurodollar
Rate Loans that (a) Dollar deposits are not being offered to
banks in the London interbank eurodollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loans,
(b) adequate and reasonable means do not exist for determining
the Eurodollar Rate for any Interest Period with respect to a
Eurodollar Rate Loan, or (c) the Eurodollar Rate for any
Interest Period with respect to a Eurodollar Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding
such Loan, the Administrative Agent will promptly so notify the
Borrower and each Lender. In such event, the rate of interest
for the applicable Interest Period shall be the Minimum Rate in
effect at such time. Thereafter, the obligation of the
Lenders to make or continue Eurodollar Rate Loans shall be
suspended until the Administrative Agent (upon the instruction of
the Required Lenders) revokes such notice.
3.04
Increased Costs; Reserves on
Eurodollar Rate Loans.
(a)
Increased
Costs Generally . If any Change in Law
shall:
(i)
impose, modify or
deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits
with
34
or for the
account of, or credit extended or participated in by, any Lender
(except any reserve requirement contemplated by Section
3.04(e) );
(ii)
subject any
Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurodollar Rate Loan made by it, or change the
basis of taxation of payments to such Lender in respect thereof
(except for Indemnified Taxes or Other Taxes covered by
Section 3.01 and the imposition of, or any change in
the rate of, any Excluded Tax payable by such Lender);
or
(iii)
impose on any
Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by
such Lender;
and the result of any of the foregoing shall be
to increase the cost to such Lender of making or maintaining any
Eurodollar Rate Loan (or of maintaining its obligation to make any
such Loan), or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest
or any other amount) then, upon request of such Lender, the
Borrower will pay to such Lender such additional amount or amounts
as will compensate such Lender for such additional costs incurred
or reduction suffered.
(b)
Capital
Requirements . If any Lender
determines that any Change in Law affecting such Lender or any
Lending Office of such Lender or such Lender’s holding
company, if any, regarding capital requirements has or would have
the effect of reducing the rate of return on such Lender’s
capital or on the capital of such Lender’s holding company,
if any, as a consequence of this Agreement, the Commitments of such
Lender or the Loans made by such Lender to a level below that which
such Lender or such Lender’s holding company could have
achieved but for such Change in Law (taking into consideration such
Lender’s policies and the policies of such Lender’s
holding company with respect to capital adequacy), then from time
to time the Borrower will pay to such Lender such additional amount
or amounts as will compensate such Lender or such Lender’s
holding company for any such reduction suffered.
(c)
Certificates
for Reimbursement . A certificate of
a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be,
as specified in subsection (a) or (b) of this Section and delivered
to the Borrower shall be conclusive absent manifest error.
The Borrower shall pay such Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.
(d)
Delay in
Requests . Failure or delay
on the part of any Lender to demand compensation pursuant to the
foregoing provisions of this Section shall not constitute a waiver
of such Lender’s right to demand such compensation,
provided that the Borrower shall not be required to
compensate a Lender pursuant to the foregoing provisions of this
Section for any increased costs incurred or reductions suffered
more than nine months prior to the date that such Lender notifies
the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s intention to claim
compensation therefor (except that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include
the period of retroactive effect thereof).
35
(e)
Reserves on
Eurodollar Rate Loans . The Borrower shall
pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting
of or including Eurocurrency funds or deposits (currently known as
“Eurocurrency liabilities”), additional interest on the
unpaid principal amount of each Eurodollar Rate Loan equal to the
actual costs of such reserves allocated to such Loan by such Lender
(as determined by such Lender in good faith, which determination
shall be conclusive absent manifest error), which shall be due and
payable on each date on which interest is payable on such Loan,
provided the Borrower shall have received at least 10 days’
prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to
give notice 10 days prior to the relevant Interest Payment Date,
such additional interest shall be due and payable 10 days from
receipt of such notice.
3.05
Compensation for
Losses. Upon demand of any Lender
(with a copy to the Administrative Agent) from time to time, the
Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a)
any continuation,
conversion, payment or prepayment of any Loan on a day other than
the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);
(b)
any failure by
the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan on the
date or in the amount notified by the Borrower; or
(c)
any assignment of
a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower
pursuant to Section 10.13;
including any loss of anticipated profits and
any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to
terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by
the Borrower to the Lenders under this Section 3.05 ,
each Lender shall be deemed to have funded each Eurodollar Rate
Loan made by it at the Eurodollar Rate for such Loan by a matching
deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether
or not such Eurodollar Rate Loan was in fact so funded.
3.06
Mitigation Obligations; Replacement
of Lenders.
(a)
Designation of
a Different Lending Office . If any Lender
requests compensation under Section 3.04 , or the
Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant
to Section 3.01 , or if any Lender gives a notice
pursuant to Section 3.02 , then such Lender shall use
reasonable efforts to designate a different Lending Office for
funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such
designa
