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REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of April 14, 2005
among
ATLAS PIPELINE PARTNERS, L.P.,
as BORROWER
ATLAS PIPELINE NEW YORK, LLC
ATLAS PIPELINE OHIO, LLC
ATLAS PIPELINE PENNSYLVANIA, LLC
ATLAS PIPELINE OPERATING PARTNERSHIP, L.P.
ATLAS PIPELINE MID-CONTINENT LLC
ETC OKLAHOMA PIPELINE, LTD.
ELK CITY OKLAHOMA GP, LLC,
as GUARANTORS
WACHOVIA BANK, NATIONAL ASSOCIATION,
as ADMINISTRATIVE AGENT and ISSUING BANK
and
THE LENDERS SIGNATORY HERETO
FLEET NATIONAL BANK,
SYNDICATION AGENT
BANK OF OKLAHOMA N.A.
KEYBANK NATIONAL ASSOCIATION
WELLS FARGO BANK, N.A.,
CO-DOCUMENTATION AGENTS
WACHOVIA CAPITAL MARKETS, LLC and BANC OF AMERICA SECURITIES
LLC,
CO-LEAD ARRANGERS
WACHOVIA CAPITAL MARKETS, LLC,
SOLE BOOK RUNNER
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TABLE OF CONTENTS
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ARTICLE I Definitions and Accounting
Matters.................................................................2
Section 1.01 Terms Defined
Above....................................................................2
Section 1.02 Certain Defined
Terms..................................................................2
Section 1.03 Accounting Terms and
Determinations...................................................19
ARTICLE II
Commitments......................................................................................19
Section 2.01 Loans and Letters of
Credit...........................................................19
Section 2.02 Borrowings, Continuations and Conversions, Letters
of Credit..........................20
Section 2.03 Changes of
Commitments................................................................22
Section 2.04
Fees..................................................................................22
Section 2.05 Several
Obligations...................................................................23
Section 2.06
Notes.................................................................................23
Section 2.07
Prepayments...........................................................................23
Section 2.08 Assumption of
Risks...................................................................24
Section 2.09 Obligation to Reimburse and to
Prepay.................................................25
Section 2.10 Lending
Offices.......................................................................26
ARTICLE III Payments of Principal and
Interest..............................................................26
Section 3.01 Repayment of
Loans....................................................................26
Section 3.02
Interest..............................................................................27
ARTICLE IV Payments; Pro Rata Treatment; Computations;
Etc..................................................28
Section 4.01
Payments..............................................................................28
Section 4.02 Pro Rata
Treatment....................................................................28
Section 4.03
Computations..........................................................................29
Section 4.04 Non-receipt of Funds by the Administrative
Agent......................................29
Section 4.05 Set-off, Sharing of Payments,
Etc.....................................................29
Section 4.06
Taxes.................................................................................30
ARTICLE V Capital
Adequacy..................................................................................32
Section 5.01 Additional
Costs......................................................................32
Section 5.02 Limitation on LIBOR
Loans.............................................................34
Section 5.03
Illegality............................................................................34
Section 5.04 Base Rate Loans Pursuant to Sections 5.01, 5.02 and
5.03..............................34
Section 5.05
Compensation..........................................................................34
ARTICLE VI Conditions
Precedent.............................................................................35
Section 6.01 Initial
Funding.......................................................................35
Section 6.02 Initial and Subsequent Loans and Letters of
Credit....................................37
Section 6.03 Conditions Precedent for the Benefit of
Lender........................................38
Section 6.04 No
Waiver.............................................................................38
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ARTICLE VII Representations and
Warranties..................................................................38
Section 7.01 Corporate
Existence...................................................................38
Section 7.02 Financial
Condition...................................................................38
Section 7.03
Litigation............................................................................39
Section 7.04 No
Breach.............................................................................39
Section 7.05
Authority.............................................................................39
Section 7.06
Approvals.............................................................................39
Section 7.07 Use of
Loans..........................................................................39
Section 7.08
ERISA.................................................................................39
Section 7.09
Taxes.................................................................................40
Section 7.10 Titles,
etc...........................................................................41
Section 7.11 No Material
Misstatements.............................................................41
Section 7.12 Investment Company
Act................................................................41
Section 7.13 Public Utility Holding Company
Act....................................................41
Section 7.14 Operation of the
Pipeline.............................................................41
Section 7.15 Capitalization of General Partner and
Subsidiaries....................................42
Section 7.16 Location of Business and
Offices......................................................42
Section 7.17 Defaults under Material
Agreements....................................................42
Section 7.18 Environmental
Matters.................................................................42
Section 7.19 Compliance with
Laws..................................................................43
Section 7.20
Insurance.............................................................................43
Section 7.21 Hedging
Agreements....................................................................44
Section 7.22 Restriction on
Liens..................................................................44
Section 7.23 Material
Agreements...................................................................44
Section 7.24
Imbalances............................................................................44
Section 7.25 Relationship of
Obligors..............................................................44
Section 7.26
Solvency..............................................................................44
ARTICLE VIII Affirmative
Covenants..........................................................................45
Section 8.01 Reporting
Requirements................................................................45
Section 8.02
Litigation............................................................................46
Section 8.03 Maintenance,
Etc......................................................................47
Section 8.04 Environmental
Matters.................................................................48
Section 8.05 Further
Assurances....................................................................48
Section 8.06 Performance of
Obligations............................................................48
Section 8.07 Reserve
Reports.......................................................................49
Section 8.08 Title
Curative........................................................................49
Section 8.09 Additional
Collateral.................................................................49
Section 8.10 Corporate
Identity....................................................................51
Section 8.11 ERISA Information and
Compliance......................................................51
Section 8.12 Material
Agreements...................................................................51
Section 8.13
Guaranties............................................................................51
Section 8.14 Proceeds of Equity
Offerings..........................................................52
ARTICLE IX Negative
Covenants...............................................................................52
Section 9.01
Debt..................................................................................52
Section 9.02
Liens.................................................................................53
Section 9.03 Investments, Loans and
Advances.......................................................53
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Section 9.04 Dividends, Distributions and
Redemptions..............................................54
Section 9.05 Sales and
Leasebacks..................................................................54
Section 9.06 Nature of
Business....................................................................54
Section 9.07 Hedging
Agreements....................................................................55
Section 9.08 Limitation on
Leases..................................................................55
Section 9.09 Mergers,
Etc..........................................................................56
Section 9.10 Proceeds of Notes and Letters of
Credit...............................................56
Section 9.11 ERISA
Compliance......................................................................56
Section 9.12 Sale or Discount of
Receivables.......................................................56
Section 9.13 Consolidated EBITDA to Consolidated Interest
Expense..................................56
Section 9.14 Consolidated Funded Debt to Consolidated
EBITDA.......................................56
Section 9.15 Consolidated Senior Secured Debt to Consolidated
EBITDA...............................57
Section 9.16 Disposition of Pipeline
Properties....................................................57
Section 9.17 Environmental
Matters.................................................................57
Section 9.18 Transactions with
Affiliates..........................................................57
Section 9.19
Subsidiaries..........................................................................57
Section 9.20 Negative Pledge
Agreements............................................................57
Section 9.21 Imbalances or Other
Prepayments.......................................................57
Section 9.22 Amendments to Material
Agreements.....................................................58
Section 9.23 Accounting
Changes....................................................................58
ARTICLE X Events of Default;
Remedies.......................................................................58
Section 10.01 Events of
Default.....................................................................58
Section 10.02
Remedies..............................................................................60
Section 10.03 Gathering Fees;
Distributions.........................................................60
ARTICLE XI The Administrative
Agent.........................................................................61
Section 11.01 Appointment, Powers and
Immunities....................................................61
Section 11.02 Reliance by Administrative
Agent......................................................62
Section 11.03
Defaults..............................................................................62
Section 11.04 Rights as a
Lender....................................................................62
Section 11.05
Indemnification.......................................................................62
Section 11.06 Non-Reliance on Administrative Agent and other
Lenders................................63
Section 11.07 Action by Administrative
Agent........................................................63
Section 11.08 Resignation or Removal of Administrative
Agent........................................64
Section 11.09 No Other
Duties.......................................................................64
Section 11.10 Collateral and Guaranty
Matters.......................................................64
ARTICLE XII
Miscellaneous...................................................................................65
Section 12.01
Waiver................................................................................65
Section 12.02
Notices...............................................................................65
Section 12.03 Payment of Expenses, Indemnities,
etc.................................................65
Section 12.04 Amendments,
Etc.......................................................................67
Section 12.05 Successors and
Assigns................................................................68
Section 12.06 Assignments and
Participations........................................................68
Section 12.07
Invalidity............................................................................71
Section 12.08
Counterparts..........................................................................71
Section 12.09 References, Use of Word
"Including"...................................................71
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Section 12.10
Survival..............................................................................71
Section 12.11
Captions..............................................................................72
Section 12.12 NO ORAL
AGREEMENTS....................................................................72
Section 12.13 GOVERNING LAW, SUBMISSION TO
JURISDICTION.............................................72
Section 12.14 USA PATRIOT Act
Notice................................................................73
Section 12.15
Interest..............................................................................73
Section 12.16
Confidentiality.......................................................................74
Section 12.17 Restatement of Existing Credit
Agreement..............................................74
Exhibits
Exhibit A-1 Form of Revolver Note
Exhibit A-2 Form of Term Loan Note
Exhibit B Form of Borrowing, Continuation and Conversion
Request
Exhibit C Form of Compliance Certificate
Exhibit D Security Instruments
Exhibit E Form of Assignment and Assumption
Exhibit F Form of Consent to Assignment
Exhibit G-1 Form of Guaranty
Exhibit G-2 Form of Confirmation of Guaranty
Schedules
Schedule 1.01 Elk City Scheduled Adjustments
Schedule 3.01 Term Loan Amortization
Schedule 6.01 Post-Closing Requirements
Schedule 6.01(e) Historical Financial Summary
Schedule 7.03 Litigation
Schedule 7.09 Tax Obligations
Schedule 7.10 Title Exceptions
Schedule 7.15 Subsidiary Interests
Schedule 7.20 Insurance
Schedule 7.21 Hedging Agreements
Schedule 7.23 Material Agreements
Schedule 7.24 Imbalances
Schedule 9.01 Debt
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of April
14,
2005, among ATLAS PIPELINE PARTNERS, L.P., a Delaware limited
partnership (the
"BORROWER"); ATLAS PIPELINE NEW YORK, LLC, a Pennsylvania
limited liability
company ("APL NEW YORK"); ATLAS PIPELINE OHIO, LLC, a
Pennsylvania limited
liability company ("APL OHIO"); ATLAS PIPELINE PENNSYLVANIA,
LLC, a Pennsylvania
limited liability company ("APL PENNSYLVANIA"); ATLAS PIPELINE
OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership ("APL
OPERATING"); ATLAS
PIPELINE MID-CONTINENT LLC, a Delaware limited liability company
("APL
MID-CONTINENT"); ETC OKLAHOMA PIPELINE, LTD., a Texas limited
partnership ("ELK
CITY"); and ELK CITY OKLAHOMA GP, LLC, a Delaware limited
liability company
("ELK CITY GP"; Elk City GP, Elk City, APL Mid-Continent, APL
New York, APL
Ohio, APL Pennsylvania and APL Operating are collectively
referred to herein as
the "INITIAL GUARANTORS," and the Borrower and the Initial
Guarantors are
collectively referred to herein as the "INITIAL OBLIGORS"); each
of the lenders
that is a signatory hereto or which becomes a signatory hereto
as provided in
SECTION 12.06 (individually, together with its successors and
assigns, a
"LENDER," and collectively, the "LENDERS"); WACHOVIA BANK,
NATIONAL ASSOCIATION,
as administrative agent for the Lenders (in such capacity,
together with its
successors in such capacity, the "ADMINISTRATIVE AGENT");
WACHOVIA BANK,
NATIONAL ASSOCIATION, as issuing bank (in such capacity,
together with its
successors in such capacity, the "ISSUING BANK"); and WACHOVIA
CAPITAL MARKETS,
LLC AND BANC OF AMERICA SECURITIES LLC, as co-lead arrangers (in
such capacity,
together with their successors in such capacity, the "CO-LEAD
ARRANGERS").
R E C I T A L S
A. WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative
agent,
issuing bank and a lender, the Borrower, the guarantors named
therein and the
lenders parties thereto (collectively, the "ORIGINAL LENDERS")
entered into that
certain Credit Agreement dated as of December 27, 2002, as
amended by that
certain First Amendment to Credit Agreement dated as of January
31, 2003, Second
Amendment to Credit Agreement dated as of March 28, 2003, Third
Amendment to
Credit Agreement dated as of September 15, 2003, and Fourth
Amendment to Credit
Agreement dated as of March 12, 2004 (as amended, the "ORIGINAL
CREDIT
AGREEMENT").
B. The Original Credit Agreement was amended and restated by
that
certain Revolving Credit and Term Loan Agreement dated as of
July 16, 2004 among
Borrower, certain lenders (collectively, the "EXISTING
LENDERS"), and Wachovia
Bank, National Association, as administrative agent, as amended
by that certain
First Amendment to Revolving Credit and Term Loan Agreement
dated as of December
3, 2004 (as amended prior to the date hereof, the "EXISTING
CREDIT AGREEMENT"),
pursuant to which the Existing Lenders agreed to make loans and
extend credit to
the Borrower, as evidenced by promissory notes of the Borrower
in favor of the
Existing Lenders issued pursuant to the Existing Credit
Agreement (which
promissory notes and other indebtedness, obligations and
liabilities under the
Existing Credit Agreement are collectively referred to herein as
the "EXISTING
DEBT").
C. The Existing Lenders have assigned to Administrative Agent
all
of their rights and obligations under the Existing Credit
Agreement.
D. The Borrower has requested that the Administrative Agent
amend
and restate the Existing Credit Agreement and provide certain
loans to and
extensions of credit on behalf of the Borrower.
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E. The Administrative Agent has agreed to amend and, together
with
the Lenders, restate the Existing Credit Agreement and make
loans and extend
credit to the Borrower, subject to the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual
covenants
and agreements herein contained and of the loans, extensions of
credit and
commitments hereinafter referred to, the parties hereto agree to
amend and
restate the Existing Credit Agreement as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01 TERMS DEFINED ABOVE. As used in this Agreement, the
terms
"Administrative Agent," "APL New York," "APL Ohio," "APL
Pennsylvania," "APL
Operating," "APL Mid-Continent," "Borrower," "Initial
Guarantors," "Issuing
Bank," "Lender," "Lenders," "Initial Obligors," "Original Credit
Agreement,"
"Original Lenders," "Elk City", "Elk City GP", "Co-Lead
Arrangers", "Existing
Credit Agreement," "Existing Debt," and "Existing Lenders" shall
have the
meanings indicated above.
Section 1.02 CERTAIN DEFINED TERMS. As used herein, the
following
terms shall have the following meanings (all terms defined in
this Article I or
in other provisions of this Agreement in the singular to have
equivalent
meanings when used in the plural, and vice versa):
ADDITIONAL COSTS shall have the meaning assigned such term in
SECTION
5.01(a).
ADJUSTED LIBOR shall mean, with respect to any LIBOR Loan, a
rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined by
the Administrative Agent to be equal to the quotient of (i)
LIBOR for such Loan
for the Interest Period for such Loan divided by (ii) 1 minus
the Reserve
Requirement for such Loan for such Interest Period.
ADMINISTRATIVE QUESTIONNAIRE means an Administrative
Questionnaire in a
form supplied by the Administrative Agent.
AFFECTED LOANS shall have the meaning assigned such term in
SECTION
5.04.
AFFILIATE of any Person shall mean (i) any Person directly or
indirectly
controlled by, controlling or under common control with such
first Person, (ii)
any director or officer of such first Person or of any Person
referred to in
clause (i) above and (iii) if any Person in clause (i) above is
an individual,
any member of the immediate family (including parents, spouse
and children) of
such individual and any trust whose principal beneficiary is
such individual or
one or more members of such immediate family and any Person who
is controlled by
any such member or trust. For purposes of this definition, any
Person which owns
directly or indirectly 10% or more of the securities having
ordinary voting
power for the election of directors or other governing body of a
corporation or
10% or more of the partnership or other ownership interests of
any other Person
(other than as a limited partner of such other Person) will be
deemed to
"control" (including, with its correlative meanings, "controlled
by" and "under
common control with") such corporation or other Person.
AGREEMENT shall mean this Revolving Credit and Term Loan
Agreement, as
the same may from time to time be further renewed, extended,
amended, restated
or supplemented.
AGGREGATE MAXIMUM REVOLVER AMOUNT at any time shall equal the
sum of the
Maximum Revolver Amounts of the Revolver Lenders (Two Hundred
Twenty-Five
Million Dollars ($225,000,000)), as the same may be reduced
pursuant to SECTION
2.03(a).
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AMORTIZATION PAYMENT has the meaning set forth in SECTION
3.01(a)(ii).
APPLICABLE LENDING OFFICE shall mean, for each Lender and for
each Type
of Loan, the lending office of such Lender (or an Affiliate of
such Lender)
designated for such Type of Loan on the signature pages hereof
or such other
offices of such Lender (or of an Affiliate of such Lender) as
such Lender may
from time to time specify to the Administrative Agent and the
Borrower as the
office by which its Loans of such Type are to be made and
maintained.
APPLICABLE MARGIN shall mean with respect to Revolver Loans and
the Term
Loan, the applicable per annum percentage set forth at the
appropriate
intersection in the table shown below, based on the Leverage
Ratio as in effect
from time to time:
APPLICABLE MARGIN
-----------------------
LIBOR
LOANS AND BASE RATE
LEVERAGE RATIO L/C FEES LOANS
---------------------------------------------------- ----------
----------
Less than or equal to 2.50 to 1.00 1.50% 0.50%
Greater than 2.50 to 1.00, 1.75% 0.75%
but less than or equal to 3.00 to 1.00
Greater than 3.00 to 1.00, 2.00% 1.00%
but less than or equal to 3.50 to 1.00
Greater than 3.50 to 1.00, but less than or equal 2.25%
1.25%
to 4:00 to 1:00
Greater than 4.00 to 1.00, but less than or equal 2.50%
1.50%
to 4:50 to 1:00
Greater than 4.50 to 1.00 2.75% 1.75%
Notwithstanding the foregoing, the Applicable Margin for LIBOR
Loans and Base
Rate Loans at all levels on the above table shall be reduced by
0.50% during any
period in which the Senior Secured Leverage Ratio is less than
1.50 to 1.00.
Each change in the Applicable Margin resulting from a change in
the Leverage
Ratio or the Senior Secured Leverage Ratio shall take effect on
the date of
delivery by the Borrower to the Administrative Agent of notice
thereof pursuant
to SECTION 8.01(j). However, if the Borrower fails to deliver a
compliance
certificate when required pursuant to SECTION 8.01(j), then the
Applicable
Margin shall be set at the highest level until such date as the
Borrower
delivers such compliance certificate to the Administrative
Agent.
APPROVED FUND means any Fund that is administered or managed by
(i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an
entity that administers or manages a Lender.
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 12.06(b)), and
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accepted by the Administrative Agent, in substantially the form
of EXHIBIT E or
any other form approved by the Administrative Agent.
ATLAS shall mean Atlas America, Inc., a Delaware corporation,
and
successor in interest to Atlas America, Inc., a Pennsylvania
corporation.
ATLAS DIRECT SUBSIDIARIES shall mean AIC, INC., a Delaware
corporation;
ATLAS AMERICA, INC., a Pennsylvania corporation; ATLAS ENERGY
CORPORATION, an
Ohio corporation; ATLAS ENERGY GROUP, INC., an Ohio Corporation;
ATLAS ENERGY
HOLDINGS, INC., a Delaware corporation, ATLAS NOBLE CORP., a
Delaware
corporation; ATLAS RESOURCES, INC., a Pennsylvania corporation;
ATLAS AMERICA
MIDCONTINENT, INC., a Pennsylvania corporation; REI; General
Partner; and
Viking.
AVAILABILITY means, at any time, (i) the Revolver Lenders'
aggregate
Revolver Commitments, minus (ii) the sum of (a) the Effective
Amount of all
outstanding Revolver Loans and (b) the Effective Amount of all
LC Exposure.
BASE RATE shall mean, with respect to any Base Rate Loan, for
any day, a
rate per annum equal to the higher of (i) the Federal Funds Rate
for any such
day plus 1/2 of 1% or (ii) the Prime Rate for such day. Each
change in any
interest rate provided for herein based upon the Base Rate
resulting from a
change in the Base Rate shall take effect at the time of such
change in the Base
Rate.
BASE RATE LOANS shall mean Loans that bear interest at rates
based upon
the Base Rate.
BUSINESS DAY shall mean any day other than a day on which
commercial
banks are authorized or required to close in Texas, North
Carolina or New York
and, where such term is used in the definition of "QUARTERLY
DATE" or if such
day relates to a borrowing or continuation of, a payment or
prepayment of
principal of or interest on, or a conversion of or into, or the
Interest Period
for, a LIBOR Loan or a notice by the Borrower with respect to
any such borrowing
or continuation, payment, prepayment, conversion or Interest
Period, any day
which is also a day on which dealings in Dollar deposits are
carried out in the
London interbank market.
CHANGE IN CONTROL shall mean (i) except as permitted by CLAUSES
(iii)(c)
and (iii)(d) hereof, any person or group of persons (within the
meaning of
Subsections 13(d) or 14(a) of the Securities Exchange Act of
1934, as amended)
shall have acquired subsequent to the date hereof beneficial
ownership (within
the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission
under said Act) 25% or more of the equity securities of such
Person entitled to
vote for members of the board of directors or equivalent
governing body of such
Person (and taking into account all such securities that such
Person or group
has the right to acquire pursuant to any option right) (provided
however, that
the acquisition by the General Partner or any Affiliate thereof
of 25% or more
of the partnership interests of the Borrower shall not
constitute a Change in
Control); (ii) within a period of twelve (12) consecutive
calendar months,
individuals who were managing board members of the General
Partner on the first
day of such period shall cease to constitute a majority of the
managing board
members of the General Partner or individuals who were board
members of Atlas on
the first day of such period shall cease to constitute a
majority of the board
members of Atlas, or (iii) the occurrence of any of the
following:
(a) the sale, transfer, lease, conveyance or other
disposition (other than by way of a permitted merger or
consolidation),
in one or a series of related transactions, of all or
substantially all
of the assets of the Borrower and its Wholly Owned Subsidiaries
taken as
a whole to any "person" (as such term is used in Section
13(d)(3) of the
Securities Exchange Act of 1934, as amended);
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(b) the adoption of a plan relating to the liquidation or
dissolution of the Borrower or the General Partner unless, in
the case
of the General Partner, the General Partner is replaced by an
affiliate
of Atlas acceptable to the Lenders in their reasonable
discretion, such
acceptance not to be unreasonably withheld;
(c) the General Partner ceases to own, directly or
indirectly, at least 51% of the general partner interests of
the
Borrower or of APL Operating, or the General Partner ceases to
serve as
the only general partner of the Borrower or APL Operating
unless, in the
case of the General Partner, the General Partner is replaced by
an
affiliate of Atlas acceptable to the Lenders in their
reasonable
discretion, such acceptance not to be unreasonably withheld;
or
(d) Atlas and/or one or more of its directly or indirectly
wholly-owned subsidiaries ceases to own at least 51% of the
membership
units of the General Partner.
CLOSING DATE shall mean the date upon which the conditions
precedent for
initial funding set forth in SECTION 6.01 are satisfied.
CODE shall mean the Internal Revenue Code of 1986, as amended
from time
to time and any successor statute.
COMMITMENT shall mean (i) for any Revolver Lender, its
Revolver
Commitment, and (ii) for any Term Loan Lender, its Term Loan
Commitment.
CONFIRMATION OF GUARANTY AGREEMENT shall mean each Confirmation
of
Guaranty Agreement dated of even date herewith, executed and
delivered by the
Guarantor party thereto in favor of Administrative Agent, for
the benefit of
Lenders, substantially in the form of EXHIBIT G-2 hereto.
CONSENT TO ASSIGNMENT shall mean, collectively, each Consent
to
Assignment substantially in the form of EXHIBIT F hereto by and
between the
Borrower, each counterparty to a Material Agreement that
requires such
counterparty's consent to the pledge or assignment thereof in
favor of the
Administrative Agent, and the Administrative Agent.
CONSOLIDATED EBITDA shall mean, for any trailing twelve-month
period,
the sum of (i) Consolidated Net Income for such period, plus
(ii) the following
expenses or charges to the extent deducted from Consolidated Net
Income in such
period: interest, income taxes, depreciation, depletion,
amortization, non-cash
compensation on long-term incentive plans, and other non-cash
charges to
Consolidated Net Income, minus (iii) non-cash credits to
Consolidated Net
Income, provided, that, the following adjustments shall be made
with respect to
APL Mid-Continent: (a) Consolidated EBITDA for 2004 and for the
first two fiscal
quarters of 2005 shall be calculated after giving effect to the
Spectrum
Acquisition and annualizing such financial results from July 16,
2004 through
the end of the applicable fiscal quarter; and (b) Consolidated
EBITDA for each
quarter of 2005 shall be calculated after giving pro forma
effect to the Elk
City Acquisition and the adjustments described on SCHEDULE 1.01
hereto.
CONSOLIDATED FUNDED DEBT shall mean, for any Person and its
Consolidated
Subsidiaries, the sum of the following (without duplication):
(i) all
obligations of such Person and its Consolidated Subsidiaries for
borrowed money
or evidenced by bonds, debentures, notes or other similar
instruments (including
principal, interest, fees and charges); (ii) all obligations of
such Person and
its Consolidated Subsidiaries (whether contingent or otherwise)
in respect of
bankers' acceptances, letters of credit, surety or other bonds
and similar
instruments; (iii) all obligations of such Person and its
Consolidated
Subsidiaries to pay the deferred purchase price of Property or
services (other
than for borrowed money); (iv) all obligations under leases
which shall have
been, or should have been, in accordance with GAAP, recorded as
capital
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leases in respect of which such Person and its Consolidated
Subsidiaries is
liable (whether contingent or otherwise); (v) obligations to pay
for goods or
services whether or not such goods or services are actually
received or utilized
by such Person and its Consolidated Subsidiaries; (vi) any
capital stock of such
Person and its Consolidated Subsidiaries in which such Person
has a mandatory
obligation to redeem such stock; and (vii) all obligations of
such Person under
Hedging Agreements.
CONSOLIDATED INTEREST EXPENSE shall mean with respect to such
Person and
its Consolidated Subsidiaries, for any period, the aggregate
cash interest
payments made or required to be made for such Person and its
Consolidated
Subsidiaries on a consolidated basis for such period; provided,
that (i)
Consolidated Interest Expense for the fiscal quarter ending June
30, 2005 shall
be calculated by annualizing the Consolidated Interest Expense
for such fiscal
quarter, (ii) Consolidated Interest Expense for the fiscal
quarter ending
September 30, 2005 shall be calculated by annualizing the
Consolidated Interest
Expense for such fiscal quarter and the previous fiscal quarter,
and (iii)
Consolidated Interest Expense for the fiscal quarter ending
December 31, 2005
shall be calculated by annualizing the Consolidated Interest
Expense for such
fiscal quarter and the two (2) previous fiscal quarters.
CONSOLIDATED NET INCOME shall mean with respect to such Person
and its
Consolidated Subsidiaries, for any period, the aggregate of the
net income (or
loss) of such Person and its Consolidated Subsidiaries after
allowances for
taxes for such period, determined on a consolidated basis in
accordance with
GAAP; provided, that there shall be excluded from such net
income (to the extent
otherwise included therein) the following: (i) the net income of
any other
entity in which such Person or any Consolidated Subsidiary has
an interest
(which interest does not cause the net income of such other
entity to be
consolidated with the net income of such Person and its
Consolidated
Subsidiaries in accordance with GAAP), except to the extent of
the amount of
dividends or distributions actually paid in such period by such
other entity to
such Person or to a Consolidated Subsidiary, as the case may be;
(ii) the net
income (but not loss) of any Consolidated Subsidiary to the
extent that the
declaration or payment of dividends or similar distributions or
transfers or
loans by that Consolidated Subsidiary is not at the time
permitted by operation
of the terms of its charter or any agreement, instrument or
Governmental
Requirement applicable to such Consolidated Subsidiary, or is
otherwise
restricted or prohibited in each case determined in accordance
with GAAP; (iii)
the net income (or loss) of any entity acquired in a
pooling-of-interests
transaction for any period prior to the date of such
transaction; and (iv) the
cumulative effect of a change in accounting principles and any
gains or losses
attributable to writeups or write downs of assets.
CONSOLIDATED SENIOR SECURED DEBT shall mean, for any Person and
its
Consolidated Subsidiaries, Consolidated Funded Debt (other than
Subordinated
Debt) that is secured by a Lien.
CONSOLIDATED SUBSIDIARIES shall mean each Subsidiary of a
Person
(whether now existing or hereafter created or acquired) the
financial statements
of which shall be (or should have been) consolidated with the
financial
statements of such Person in accordance with GAAP, provided,
however, that the
Consolidated Subsidiaries of Borrower shall not include the
Unrestricted
Entities.
DEBT shall mean, for any Person the sum of the following
(without
duplication): (i) all obligations of such Person for borrowed
money or evidenced
by bonds, debentures, notes or other similar instruments
(including principal,
interest, fees and charges); (ii) all obligations of such Person
(whether
contingent or otherwise) in respect of bankers' acceptances,
letters of credit,
surety or other bonds and similar instruments; (iii) all
obligations of such
Person to pay the deferred purchase price of Property or
services (other than
for borrowed money); (iv) all obligations under leases which
shall have been, or
should have been, in accordance with GAAP, recorded as capital
leases in respect
of which such Person is liable (whether contingent or
otherwise); (v) all
obligations under operating leases which require such Person or
its Affiliate to
make payments over the term of such lease, including payments at
termination,
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based on the purchase price or appraisal value of the Property
subject to such
lease plus a marginal interest rate, and used primarily as a
financing vehicle
for, or to monetize, such Property; (vi) all Debt (as described
in the other
clauses of this definition) and other obligations of others
secured by a Lien on
any asset of such Person, whether or not such Debt is assumed by
such Person;
(vii) all Debt (as described in the other clauses of this
definition) and other
obligations of others guaranteed by such Person or in which such
Person
otherwise assures a creditor against loss of the debtor or
obligations of
others; (viii) all obligations or undertakings of such Person to
maintain or
cause to be maintained the financial position or covenants of
others or to
purchase the Debt or Property of others; (ix) obligations to
gather or transport
Hydrocarbons in consideration of advance payments; (x)
obligations to pay for
goods or services whether or not such goods or services are
actually received or
utilized by such Person; (xi) any capital stock of such Person
in which such
Person has a mandatory obligation to redeem such stock; (xii)
any Debt of a
Subsidiary for which such Person is liable either by agreement
or because of a
Governmental Requirement; and (xiii) all obligations of such
Person under
Hedging Agreements.
DEFAULT shall mean an Event of Default or an event which with
notice or
lapse of applicable grace period or both would become an Event
of Default.
DEFAULTING LENDER means any Lender that (i) has failed to fund
any
portion of the Loans or Letter of Credit reimbursement
obligations required to
be funded by it hereunder within one Business Day of the date
required to be
funded by it hereunder, (ii) has otherwise failed to pay over to
the
Administrative Agent or any other Lender any other amount
required to be paid by
it hereunder within one Business Day of the date when due,
unless the subject of
a good faith dispute, or (iii) has been deemed insolvent or
become the subject
of a bankruptcy or insolvency proceeding.
DISPOSITION or DISPOSE means the sale, transfer or other
disposition
(including any sale-leaseback transaction) of any property by
any Person, other
than the settlement or resolution of a claim that is unrelated
to the collateral
securing the Indebtedness. For the avoidance of doubt,
"DISPOSITION" includes
Equity Offerings.
DOLLARS and $ shall mean lawful money of the United States of
America.
EFFECTIVE AMOUNT means (i) with respect to any Revolver Loans on
any
date, the aggregate outstanding principal amount thereof after
giving effect to
any Revolver Loans and prepayments or repayments thereof
occurring on such date
under the Revolver Facility; and (ii) with respect to any
outstanding LC
Exposure on any date, the amount of such LC Exposure on such
date after giving
effect to any issuances of Letters of Credit occurring on such
date and any
other changes in the aggregate amount of the LC Exposure as of
such date,
including as a result of any reimbursements of drawings under
any Letters of
Credit or any reductions in the maximum amount available for
drawing under
Letters of Credit taking effect on such date.
ELIGIBLE ASSIGNEE means (i) a Lender; (ii) an Affiliate of a
Lender;
(iii) an Approved Fund; and (iv) any other Person (other than a
natural Person)
approved by (a) the Administrative Agent and the Issuing Bank,
and (b) unless a
Default or Event of Default has occurred and is continuing, the
Borrower (each
such approval not to be unreasonably withheld or delayed);
provided, that
notwithstanding the foregoing, "Eligible Assignee" shall not
include the
Borrower or any of the Borrower's Affiliates or
Subsidiaries.
ELK CITY ACQUISITION means the acquisition by Borrower of the
Elk City
Partnership Interests pursuant to the Elk City Acquisition
Documents.
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ELK CITY ACQUISITION DOCUMENTS means the Elk City Purchase and
Sale
Agreement and each other agreement, document and instrument
executed and
delivered by Borrower or any other Obligor and any counterparty
thereto in
connection with the Elk City Acquisition.
ELK CITY PARTNERSHIP INTERESTS means the "Interests" as defined
in the
Elk City Purchase and Sale Agreement.
ELK CITY PURCHASE AND SALE AGREEMENT means the Purchase and
Sale
Agreement dated as of March 8, 2005, between Borrower and the
Elk City Seller,
with such amendments as may be satisfactory to the
Administrative Agent.
ELK CITY SELLER means, collectively, LG PL, LLC, a Texas
limited
liability company, and La Grange Acquisition, L.P., a Texas
limited partnership.
ENVIRONMENTAL LAWS shall mean any and all Governmental
Requirements
pertaining to health or the environment in effect in any and all
jurisdictions
in which any Obligor or any Subsidiary is conducting or at any
time has
conducted business, or where any Property of any Obligor or any
Subsidiary is
located, including without limitation, the Oil Pollution Act of
1990 ("OPA"),
the Clean Air Act, as amended, the Comprehensive Environmental,
Response,
Compensation, and Liability Act of 1980 ("CERCLA"), as amended,
the Federal
Water Pollution Control Act, as amended, the Occupational Safety
and Health Act
of 1970, as amended, the Resource Conservation and Recovery Act
of 1976
("RCRA"), as amended, the Safe Drinking Water Act, as amended,
the Toxic
Substances Control Act, as amended, the Superfund Amendments and
Reauthorization
Act of 1986, as amended, the Hazardous Materials Transportation
Act, as amended,
and other environmental conservation or protection laws. The
term "OIL" shall
have the meaning specified in OPA, the terms "HAZARDOUS
SUBSTANCE" and "RELEASE"
or "THREATENED RELEASE" have the meanings specified in CERCLA,
and the terms
"SOLID WASTE" and "DISPOSAL" or "DISPOSED" have the meanings
specified in RCRA;
provided, however, that (i) in the event either OPA, CERCLA or
RCRA is amended
so as to broaden the meaning of any term defined thereby, such
broader meaning
shall apply subsequent to the effective date of such amendment
and (ii) to the
extent the laws of the state in which any Property of any
Obligor or any
Subsidiary is located establish a meaning for "OIL," "HAZARDOUS
SUBSTANCE,"
"RELEASE," "SOLID WASTE" or "DISPOSAL" which is broader than
that specified in
either OPA, CERCLA or RCRA, such broader meaning shall
apply.
EQUITY NET CASH PROCEEDS means Net Cash Proceeds received in
connection
with an Equity Offering.
EQUITY OFFERING means the issuance or sale of equity interests
in the
Borrower pursuant to a public or private offering.
ERISA shall mean the Employee Retirement Income Security Act of
1974, as
amended from time to time and any successor statute.
ERISA AFFILIATE shall mean each trade or business (whether or
not
incorporated) which together with the Borrower or any Subsidiary
would be deemed
to be a "SINGLE EMPLOYER" within the meaning of section
4001(b)(1) of ERISA or
subsections (b), (c), (m) or (o) of section 414 of the Code.
ERISA EVENT shall mean (i) a "REPORTABLE EVENT" described in
Section
4043 of ERISA and the regulations issued thereunder, (ii) the
withdrawal of the
Borrower, any Subsidiary or any ERISA Affiliate from a Plan
during a plan year
in which it was a "SUBSTANTIAL EMPLOYER" as defined in Section
4001(a)(2) of
ERISA, (iii) the filing of a notice of intent to terminate a
Plan or the
treatment of a Plan amendment as a termination under Section
4041 of ERISA, (iv)
the institution of proceedings to terminate a Plan by the
8
<PAGE>
PBGC or (v) any other event or condition which might constitute
grounds under
Section 4042 of ERISA for the termination of, or the appointment
of a trustee to
administer, any Plan.
EVENT OF DEFAULT shall have the meaning assigned such term in
SECTION
10.01.
EXCEPTED LIENS shall mean: (i) Liens for taxes, assessments or
other
governmental charges or levies not yet due or which are being
contested in good
faith by appropriate action and for which adequate reserves have
been
maintained; (ii) Liens in connection with worker's compensation,
unemployment
insurance or other social security, old age pension or public
liability
obligations not yet due or which are being contested in good
faith by
appropriate action and for which adequate reserves have been
maintained in
accordance with GAAP; (iii) vendors', carriers', warehousemen's,
repairmen's,
mechanics', workmen's, materialmen's, construction or other like
Liens arising
by operation of law in the ordinary course of business or
incident to the
gathering, transportation, operation and maintenance of the
Pipeline Properties
or statutory landlord's liens, each of which is in respect of
obligations that
have not been outstanding more than 90 days or which are being
contested in good
faith by appropriate proceedings and for which adequate reserves
have been
maintained in accordance with GAAP; (iv) encumbrances of third
party surface
owners and owners of other estates in lands (other than lands to
which any
Obligor has fee simple title) covered by Pipeline right-of-ways,
permits and
easements; (v) encumbrances (other than to secure the payment of
borrowed money
or the deferred purchase price of Property or services),
easements,
restrictions, servitudes, permits, conditions, covenants,
exceptions or
reservations in any rights of way or other Property of any
Obligor or any
Subsidiary for the purpose of roads, pipelines, transmission
lines,
transportation lines, distribution lines for the removal of gas,
oil, or timber,
and other like purposes, or for the joint or common use of real
estate, rights
of way, facilities and equipment, and defects, irregularities,
zoning
restrictions and deficiencies in title of any rights of way or
other Property
which in the aggregate do not materially impair the use of such
rights of way or
other Property for the purposes of which such rights of way and
other Property
are held by any Obligor or any Subsidiary or materially impair
the value of such
Property subject thereto; (vi) that certain Surface Lease
Agreement dated as of
February 1, 2000, by and between Texaco Exploration and
Production, Inc.,
predecesssor in interest to APL Mid-Continent, as lessor, and
Velma Federal
Credit Union, as lessee; (vii) deposits of cash or securities to
secure the
performance of bids, trade contracts, leases, statutory
obligations and other
obligations of a like nature incurred in the ordinary course of
business; and
(viii) Liens which do not materially interfere with the
occupation, use, and
enjoyment by Borrower of the Pipeline Properties in the ordinary
course of
business as presently conducted or materially impair the value
thereof for the
purposes thereof.
FACILITIES means, collectively, the Revolver Facility and the
Term Loan
Facility, and FACILITY means either of the Revolver Facility or
the Term Loan
Facility.
FEDERAL FUNDS RATE shall mean, for any day, the rate per annum
(rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average
of the rates on overnight federal funds transactions with a
member of the
Federal Reserve System arranged by federal funds brokers on such
day, as
published by the Federal Reserve Bank of New York on the
Business Day next
succeeding such- day, provided, that (i) if the date for which
such rate is to
be determined is not a Business Day, the Federal Funds Rate for
such day shall
be such rate on such transactions on the next preceding Business
Day as so
published on the next succeeding Business Day, and (ii) if such
rate is not so
published for any day, the Federal Funds Rate for such day shall
be the average
rate charged to the Administrative Agent on such day on such
transactions as
determined by the Administrative Agent.
FEE LETTERS shall mean, collectively, (i) that certain letter
agreement
from Wachovia Bank, National Association, Fleet National Bank,
Wachovia Capital
Markets, LLC, and Banc of America Securities LLC to the Borrower
dated March 8,
2005, and (ii) that certain letter agreement from Wachovia
9
<PAGE>
Bank, National Association and Wachovia Capital Markets, LLC to
the Borrower
dated March 8, 2005, each concerning certain fees in connection
with this
Agreement and any agreements or instruments executed in
connection therewith, as
the same may be amended or replaced from time to time.
FINANCIAL STATEMENTS shall mean the financial statement or
statements of
the Borrower and its Consolidated Subsidiaries described or
referred to in
SECTION 7.02.
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.
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 shall mean generally accepted accounting principles in the
United
States of America in effect from time to time.
GENERAL PARTNER means Atlas Pipeline Partners GP, LLC, a
Delaware
limited liability company.
GOVERNMENTAL AUTHORITY shall include the country, the state,
county,
city and political subdivisions in which any Person or such
Person's Property is
located or which exercises valid jurisdiction over any such
Person or such
Person's Property, and any court, agency, department,
commission, board, bureau
or instrumentality of any of them including monetary authorities
which exercises
valid jurisdiction over any such Person or such Person's
Property. Unless
otherwise specified, all references to Governmental Authority
herein shall mean
a Governmental Authority having jurisdiction over, where
applicable, any Obligor
or any of their Property or the Administrative Agent, any Lender
or any
Applicable Lending Office.
GOVERNMENTAL REQUIREMENT shall mean any law, statute, code,
ordinance,
order, determination, rule, regulation, judgment, decree,
injunction, franchise,
permit, certificate, license, authorization or other directive
or requirement
(whether or not having the force of law), including, without
limitation,
Environmental Laws, energy regulations and occupational, safety
and health
standards or controls, of any Governmental Authority.
GUARANTOR shall mean each Initial Guarantor and each Subsidiary
of
Borrower hereafter formed or acquired, except for the
Unrestricted Entities (if
any).
GUARANTY AGREEMENT shall mean, collectively, (i) an agreement
executed
by a Guarantor in form and substance satisfactory to the
Administrative Agent
guarantying, unconditionally, payment of the Indebtedness,
together with (ii)
any related Confirmation of Guaranty Agreement and any other
amendment,
modification, supplement, restatement, ratification, or
reaffirmation of any
Guaranty Agreement made in accordance with the Loan
Documents.
HEDGING AGREEMENTS shall mean any commodity, interest rate or
currency
swap, cap, floor, collar, forward agreement or other exchange or
protection
agreements or any option with respect to any such
transaction.
HIGHEST LAWFUL RATE means, as of a particular date, the
highest
non-usurious rate of interest, if any, permitted from day to day
by applicable
law. To the extent Texas law is applicable, the Lenders hereby
notify and
disclose to the Borrower that, for purposes of Texas Finance
Code Section
303.001, as it may
10
<PAGE>
from time to time be amended, the "applicable ceiling" shall be
the "weekly
ceiling" from time to time in effect as limited by Texas Finance
Code Section
303.009; provided however, that to the extent permitted by
applicable law, the
Lender reserves the right to change the "applicable ceiling"
from time to time
by further notice and disclosure to the Borrower.
HYDROCARBONS shall mean oil, gas, casinghead gas, drip gasoline,
natural
gasoline, condensate, distillate, liquid hydrocarbons, gaseous
hydrocarbons and
all products refined or separated therefrom.
INDEBTEDNESS shall mean any and all amounts owing or to be owing
by the
Borrower or any other Obligor to the Administrative Agent, the
Issuing Bank
and/or the Lenders or any Affiliates of Lenders in connection
with the Loan
Documents now or hereafter arising between the Borrower or any
other Obligor and
the Administrative Agent, the Issuing Bank, any Lender or its
Affiliate and
permitted by the terms of this Agreement, and all renewals,
extensions and/or
rearrangements of any of the foregoing. INDEBTEDNESS shall also
include any
obligation owing to any Person under Hedging Agreements to the
extent such
Person was a Lender or Affiliate thereof when such Hedging
Agreement was
executed.
INDEMNIFIED PARTIES shall have the meaning assigned such term in
SECTION
12.03(a)(ii).
INITIAL FUNDING shall mean the funding of the initial Loans or
issuance
of the initial Letters of Credit upon satisfaction of the
conditions set forth
in SECTIONS 6.01 and 6.02.
INTERCOMPANY DEBT shall mean funded Debt that is owed by an
Obligor to
the Borrower or to any other Obligor, or by the Borrower or any
other Obligor to
another Obligor.
INTERCOMPANY NOTES shall mean the promissory notes executed to
evidence
the Intercompany Debt.
INTEREST PERIOD shall mean, with respect to any LIBOR Loan, the
period
commencing on the date such LIBOR Loan is made and ending on the
numerically
corresponding day in the first, second, third or sixth calendar
month
thereafter, as the Borrower may select as provided in SECTION
2.02, except that
each Interest Period which commences on the last Business Day of
a calendar
month (or on any day for which there is no numerically
corresponding day in the
appropriate subsequent calendar month) shall end on the last
Business Day of the
appropriate subsequent calendar month. Notwithstanding the
foregoing: (i) no
Interest Period with respect to Revolver Loans may end after the
Termination
Date in respect of the Revolver Facility, and no Interest Period
with respect to
Term Loans may end after the Termination Date in respect of the
Term Loan
Facility; (ii) no Interest Period for any LIBOR Loan may end
after the due date
of any installment, if any, provided for in SECTION 3.01 to the
extent that such
LIBOR Loan would need to be prepaid prior to the end of such
Interest Period in
order for such installment to be paid when due; (iii) each
Interest Period which
would otherwise end on a day which is not a Business Day shall
end on the next
succeeding Business Day (or, if such next succeeding Business
Day falls in the
next succeeding calendar month, on the next preceding Business
Day); and (iv) no
Interest Period shall have a duration of less than one month
and, if the
Interest Period for any LIBOR Loans would otherwise be for a
shorter period,
such Loans shall not be available hereunder.
ISSUING BANK shall have the meaning assigned to such term in
the
introductory paragraph to this Agreement, or any other Revolver
Lender agreed to
between the Borrower and the Administrative Agent to issue
Letters of Credit.
LC COMMITMENT at any time shall mean Ten Million Dollars
($10,000,000).
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<PAGE>
LC EXPOSURE at any time shall mean the sum of (i) the aggregate
amount
available to be drawn under all outstanding Letters of Credit
plus (ii) the
aggregate of all amounts drawn under all Letters of Credit and
not yet
reimbursed.
LETTER OF CREDIT AGREEMENTS shall mean the written agreements
with the
Issuing Bank, as issuing lender for any Letter of Credit,
executed in connection
with the issuance by the Issuing Bank of the Letters of Credit,
such agreements
to be on the Issuing Bank's customary form for letters of credit
of comparable
amount and purpose as from time to time in effect or as
otherwise agreed to by
the Borrower and the Issuing Bank.
LETTERS OF CREDIT shall mean the stand-by letters of credit
issued
pursuant to SECTION 2.01(b) and all reimbursement obligations
pertaining to any
such letters of credit, and "LETTER OF CREDIT" shall mean any
one of the Letters
of Credit and the reimbursement obligations pertaining
thereto.
LEVERAGE RATIO has the meaning set forth in SECTION 9.14.
LIBOR shall mean the rate per annum (rounded upwards, if
necessary, to
the nearest 1/100 of 1%) of interest determined on the basis of
the rate for
deposits in Dollars for a period equal to the applicable
Interest Period
commencing on the first day of such Interest Period appearing on
Dow Jones
Market Service Page 3750 as of 11:00 a.m. (London time) two (2)
Business Days
prior to the first day of the applicable Interest Period. In the
event that such
rate does not appear on Dow Jones Market Service Page 3750,
"LIBOR" shall be
determined by the Administrative Agent to be the rate per annum
(rounded
upwards, if necessary, to the nearest 1/100 of 1%) at which
deposits in Dollars
are offered by leading reference banks in the London interbank
market to the
Administrative Agent at approximately 11:00 a.m. (London time)
two Business Days
prior to the first day of the applicable Interest Period for a
period equal to
such Interest Period and in an amount substantially equal to the
amount of the
applicable Loan.
LIBOR LOANS shall mean Loans the interest rates on which are
determined
on the basis of rates referred to in the definition of "ADJUSTED
LIBOR".
LIEN shall mean any interest in Property securing an obligation
owed to,
or a claim by, a Person other than the owner of the Property,
whether such
interest is based on the common law, statute or contract, and
whether such
obligation or claim is fixed or contingent, and including but
not limited to the
lien or security interest arising from a mortgage, encumbrance,
pledge, security
agreement, conditional sale or trust receipt or a lease,
consignment or bailment
for security purposes. The term "LIEN" shall include
reservations, exceptions,
encroachments, easements, rights of way, covenants, conditions,
restrictions,
leases and other title exceptions and encumbrances affecting
Property. For the
purposes of this Agreement, each Obligor shall be deemed to be
the owner of any
Property which it has acquired or holds subject to a conditional
sale agreement,
or leases under a financing lease or other arrangement pursuant
to which title
to the Property has been retained by or vested in some other
Person in a
transaction intended to create a financing.
LIMITED PARTNERSHIP AGREEMENT shall mean that certain Second
Amended and
Restated Agreement of Limited Partnership of Borrower dated as
of March 9, 2004,
as such agreement may be amended, extended, revised or replaced
from time to
time.
LOAN DOCUMENTS shall mean this Agreement, the Notes, the
Guaranty
Agreements, all Letters of Credit, all Letter of Credit
Agreements, the Fee
Letters, the Security Instruments, Hedging Agreements entered
into between
Borrower or any other Obligor and any Lender or Affiliate of any
Lender and the
Consent to Assignment.
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LOANS shall mean the loans as provided for by SECTION 2.01(a) or
any
continuations or conversions thereof.
MASTER NATURAL GAS GATHERING AGREEMENTS shall mean those
agreements
listed as ITEMS 1, 2, 3, 4 and 5 on SCHEDULE 7.23, as such
agreements may be
amended, extended, renewed or replaced from time to time.
MATERIAL ADVERSE CHANGE shall mean any change, effect, event,
occurrence
or circumstance that (a) prevents the Borrower from performing
its obligations
under the Elk City Purchase and Sale Agreement or makes
impossible the
consummation of the transactions contemplated by that agreement
or (b) results
in, or is reasonably expected to result in, a material adverse
change in, or
effect on (including diminution in value), the business, assets,
results of
operations or financial condition of the Borrower, in each case
taken as a
whole, but excluding, in the case of clause (b), (i) any change
or effect in, or
that is attributable to or resulting from general international,
national,
regional or local economic, financial or market conditions, or
the industry in
which the Borrower and Elk City operate, including market prices
for
commodities, goods or services within that industry, (ii) any
change in laws,
regulations, rules or accounting standards, principles or
interpretations, or
(iii) any change, effect, event, occurrence or circumstance that
is attributable
to (A) the announcement or consummation of the transactions
contemplated by the
Elk City Purchase and Sale Agreement, (B) events, actions or
agreements
contemplated by the Elk City Purchase and Agreement, or (C)
actions of the Elk
City Seller or Elk City taken or omitted to be taken at the
direction of, or
with the express consent of, the Borrower. For purposes of
clause (b) of the
immediately preceding sentence, if the change, effect, event,
occurrence or
circumstance has an effect on the Borrower is quantifiable in
monetary terms,
then, notwithstanding such clause, (1) it is not a material
adverse change to
the Borrower unless its negative effect exceeds, or is
reasonably expected to
exceed on a present value basis, $10,000,000 and (2) it is a
material adverse
change to the Borrower if its negative effect exceeds, or is
reasonably expected
to exceed on a present value basis, $10,000,000.
MATERIAL ADVERSE EFFECT shall mean any material and adverse
effect on
(i) the assets, liabilities, financial condition, business,
operations or
affairs of the Borrower, the General Partner, and the Guarantors
taken as a
whole, or (ii) the ability of the Borrower, the General Partner,
or any
Guarantor to carry out its business as at the Closing Date
(excluding the
dissolution or liquidation of any Guarantor pursuant to a merger
to the extent
permitted under SECTION 9.09) or meet its obligations under the
Loan Documents
on a timely basis, or (iii) the Administrative Agent's and the
Lenders'
interests in the collateral securing the Indebtedness, or the
Administrative
Agents' or the Lenders' ability to enforce their rights and
remedies under this
Agreement or any other Loan Document, at law or in equity.
MATERIAL AGREEMENTS shall have the meaning assigned to such term
in
SECTION 7.23.
MAXIMUM REVOLVER AMOUNT shall mean, as to each Revolver Lender,
the
dollar amount of such Revolver Lender's Percentage Share of the
Revolver
Facility (as the same may be reduced pursuant to SECTION 2.03(a)
pro rata to
each Revolver Lender based on its Percentage Share of the
Revolver Facility), as
modified from time to time to reflect any assignments permitted
by SECTION
12.06(b).
MAXIMUM TERM LOAN AMOUNT shall mean, as to each Term Loan
Lender, the
dollar amount of such Term Loan Lender's Percentage Share of the
Term Loan
Facility.
MOODY'S means Moody's Investor Service, Inc. and any successor
thereto.
MORTGAGED PROPERTY shall mean the Property owned by the Obligors
and
which is subject to the Liens existing and to exist under the
terms of the
Security Instruments.
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MULTIEMPLOYER PLAN shall mean a Plan defined as such in Section
3(37) or
4001(a)(3) of ERISA.
NET CASH PROCEEDS means (i) with respect to any Disposition,
cash
(including any cash received by way of deferred payment as and
when received and
payment of amounts due under insurance policies) received by the
Borrower or any
of its Subsidiaries in connection therewith and as consideration
therefor, on or
after the date of consummation of such transaction, after (a)
deduction of Taxes
payable in connection with or as a result of such Disposition,
and (b) payment
of all usual and customary fees and expenses related to such
Disposition
(including, without limitation, reasonable attorneys' fees and
closing costs
incurred in connection with such transaction), and (ii) with
respect to issuance
of any Debt (other than Intercompany Debt), proceeds of such
Debt after payment
of all reasonable closing costs associated with the issuance
thereof.
NOTES shall mean, collectively, the Revolver Notes and the Term
Loan
Notes provided for by SECTION 2.06, together with any and all
renewals,
extensions for any period, increases, rearrangements,
substitutions or
modifications thereof.
OBLIGOR shall mean each Initial Obligor and each additional
Person party
to a Guaranty.
OIL AND GAS PROPERTIES shall mean all present and future
Hydrocarbon
reserves located in fields and regions accessed by the Pipelines
for gathering
and transportation to interstate and intrastate third party
pipelines.
OMNIBUS AGREEMENT shall mean that certain Omnibus Agreement by
and among
the Borrower, Atlas, REI, Viking and APL Operating dated as of
February 2, 2000,
as such agreement may be amended, extended, renewed or replaced
from time to
time.
OTHER TAXES shall have the meaning assigned such term in
SECTION
4.06(b).
PARTICIPANT has the meaning set forth in SECTION 12.06.
PBGC shall mean the Pension Benefit Guaranty Corporation or any
entity
succeeding to any or all of its functions.
PERCENTAGE SHARE for each Lender means on any date of
determination (i)
for purposes of sharing any amount or fee payable to any Lender
in respect of a
specific Facility (or subfacility thereof), the proportion that
the portion of
the Principal Debt for the applicable Facility (or subfacility
thereof) owed to
such Lender (whether held directly or through a participation in
respect of the
Letter of Credit subfacility and determined after giving effect
thereto) bears
to the Principal Debt under the applicable Facility (or
subfacility thereof)
owed to all Lenders thereunder at the time in question, and (b)
for all other
purposes, the proportion that the portion of the Principal Debt
owed to such
Lender bears to the Principal Debt owed to all Lenders at the
time in question,
or if no Principal Debt is outstanding, then the proportion that
the aggregate
of such Lender's Commitment then in effect under the Facilities
bears to the
Total Commitment then in effect.
PERMITTED MERGER shall mean such merger or consolidation as is
permitted
under SECTION 9.09.
PERSON shall mean any individual, corporation, company,
voluntary
association, partnership, joint venture, trust, unincorporated
organization or
government or any agency, instrumentality or political
subdivision thereof, or
any other form of entity.
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PIPELINES shall mean the natural gas gathering system and
related
processing facilities now owned and operated as private use
gathering systems by
the Obligors located in the states of New York, Ohio,
Pennsylvania, Oklahoma and
Texas, and all additions thereto, and such other natural gas
gathering systems
and related processing facilities owned and operated by the
Obligors hereafter.
PIPELINE PROPERTIES shall mean all Property now or hereafter
acquired
related to the Pipelines and processing facilities including all
buildings,
structures, fuel separators, processing plants, treatment,
dehydration, and
fractionation facilities, storage and transportation equipment,
liquid
extraction plants, compressors, compressor stations, pipeline
interconnections,
fee lands, pumps, pumping units, field gathering systems, pipes
and pipelines,
tanks and tank batteries, fixtures, valves, fittings, machinery
and parts,
engines, boilers, meters, SCADA systems and software, apparatus,
equipment,
appliances, tools, implements, surface leases, rights-of-way,
permits, licenses,
crossing permits, easements and servitudes; all operating
agreements, gathering
agreements, processing agreements, contracts and other
agreements which relate
to any of the Pipelines or the gathering, transmission,
exchange, processing,
hedging and sale of Hydrocarbons through the Pipelines; all
Hydrocarbons used as
linefill or pad gas in the Pipelines, and all tariffs, rents,
issues, profits,
proceeds, revenues and other incomes from or attributable to the
Pipelines and
sale of Hydrocarbons; all Property, real or personal, now owned
or hereinafter
acquired and situated upon, used, held for use or useful in
connection with the
Pipelines (excluding automotive equipment or other personal
property which may
be on such premises for the purpose of constructing the
Pipelines or for other
similar temporary uses), together with all additions,
substitutions,
replacements, accessions and attachments to any and all of the
foregoing.
PLAN shall mean any employee pension benefit plan, as defined in
Section
3(2) of ERISA, which (i) is currently or hereafter sponsored,
maintained or
contributed to by the Borrower, any Subsidiary or an ERISA
Affiliate or (ii) was
at any time during the preceding six calendar years sponsored,
maintained or
contributed to, by the Borrower, any Subsidiary or an ERISA
Affiliate.
PLEDGES shall have the meaning assigned to such term in
SECTION
10.03(d).
POST-DEFAULT RATE shall mean, in respect of any principal of any
Loan or
any other amount payable by the Borrower under this Agreement or
any other Loan
Document, a rate per annum equal to three and three-quarters
percent (3.75%) per
annum above the Base Rate as in effect from time to time, but in
no event to
exceed the Highest Lawful Rate.
PRIME RATE shall mean the rate of interest from time to time
announced
publicly by the Administrative Agent as its prime commercial
lending rate. Such
rate is set by the Administrative Agent as a general reference
rate of interest,
taking into account such factors as the Administrative Agent may
deem
appropriate, it being understood that many of the Administrative
Agent's
commercial or other loans are priced in relation to such rate,
that it is not
necessarily the lowest or best rate actually charged to any
customer and that
the Administrative Agent may make various commercial or other
loans at rates of
interest having no relationship to such rate.
PRINCIPAL DEBT means the sum of Revolver Principal Debt and Term
Loan
Principal Debt.
PRINCIPAL OFFICE shall mean the principal office of the
Administrative
Agent, presently located at 1001 Fannin, Suite 2255, Houston,
Texas 77002-6709.
PROPERTY shall mean any interest in any kind of property or
asset,
whether real, personal or mixed, moveable or immoveable,
tangible or intangible.
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<PAGE>
QUARTERLY DATE shall mean the first day of each January, April,
July,
and October in each year, the first of which shall be July,
2005; provided,
however, that if any such day is not a Business Day, such
Quarterly Date shall
be the next succeeding Business Day.
QUARTERLY REPORTS shall have the meaning assigned to such term
under
Section 8.01(f).
REGISTER has the meaning set forth in SECTION 12.06.
REGULATION D shall mean Regulation D of the Board of Governors
of the
Federal Reserve System (or any successor), as the same may be
amended or
supplemented from time to time.
REGULATORY CHANGE shall mean, with respect to any Lender, any
change
after the Closing Date in any Governmental Requirement
(including Regulation D)
or the adoption or making after such date of any
interpretations, directives or
requests applying to a class of lenders (including such Lender
or its Applicable
Lending Office) of or under any Governmental Requirement
(whether or not having
the force of law) by any Governmental Authority charged with the
interpretation
or administration thereof.
REI shall mean Resource Energy, Inc., a Delaware
corporation.
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.
REQUIRED LENDERS shall mean Lenders holding (i) at least 66-2/3%
of the
Total Commitment, if no Default or Event of Default exists, or
(ii) at least
66-2/3% of the outstanding Principal Debt, if a Default or Event
of Default
exists.
REQUIRED PAYMENT shall have the meaning assigned such term in
SECTION
4.04.
REQUIRED REVOLVER LENDERS shall mean Revolver Lenders holding
(i) at
least 66-2/3% of the aggregate Revolver Commitments, if no
Default or Event of
Default exists, or (ii) at least 66-2/3% of the outstanding
Revolver Principal
Debt, if a Default or Event of Default exists.
RESERVE REPORT shall mean a report, in form and substance
satisfactory
to the Administrative Agent, setting forth, as of each January
1, (i) the oil
and gas reserves attributable to the Oil and Gas Properties
connected to the
Pipelines accounting for eighty percent (80%) of the Pipelines'
throughput,
together with a projection of the rate of production and future
net income,
taxes, operating expenses and capital expenditures with respect
thereto as of
such date, based upon the pricing assumptions consistent with
SEC reporting
requirements at the time and (ii) such other information as the
Administrative
Agent may reasonably request.
RESERVE REQUIREMENT shall mean, for any Interest Period for any
LIBOR
Loan, the average maximum rate at which reserves (including any
marginal,
supplemental or emergency reserves) are required to be
maintained during such
Interest Period under Regulation D by member banks of the
Federal Reserve System
in New York City with deposits exceeding one billion Dollars
against
"EUROCURRENCY LIABILITIES" (as such term is used in Regulation
D). Without
limiting the effect of the foregoing, the Reserve Requirement
shall reflect any
other reserves required to be maintained by such member banks by
reason of any
Regulatory Change against (i) any category of liabilities which
includes
deposits by reference to which LIBOR is to be determined as
provided in the
definition of "LIBOR" or (ii) any category of extensions of
credit or other
assets which include a LIBOR Loan.
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RESPONSIBLE OFFICER shall mean, as to any Person, the Chief
Executive
Officer, the President or any Vice President of such Person and,
with respect to
financial matters, the term "RESPONSIBLE OFFICER" shall include
the Chief
Financial Officer of such Person. Unless otherwise specified,
all references to
a Responsible Officer herein shall mean a Responsible Officer of
the General
Partner.
REVOLVER COMMITMENT shall mean, for any Revolver Lender, its
obligation
to make Revolver Loans as provided in SECTION 2.01(a)(i) and
participate in the
issuance of Letters of Credit as provided in SECTION 2.01(b) up
to such Revolver
Lender's Maximum Revolver Amount (as the same may be decreased
pursuant to
SECTION 2.03(a)).
REVOLVER FACILITY means the credit facility as described in and
subject
to the limitations set forth in SECTION 2.01(a)(i) hereof (as
the same may be
decreased pursuant to SECTION 2.03(a)).
REVOLVER LENDERS means, collectively, on any date of
determination,
Lenders having Commitments under the Revolver Facility or that
are owed Revolver
Principal Debt.
REVOLVER LOAN means any Loan made under the Revolver
Facility.
REVOLVER NOTE means a promissory note in substantially the form
of
EXHIBIT A-1, and all renewals and extensions of all or any part
thereof.
REVOLVER PRINCIPAL DEBT means, on any date of determination,
the
aggregate unpaid principal balance of all Revolver Loans,
together with the
aggregate unpaid reimbursement obligations of Borrower in
respect of drawings
under any Letter of Credit.
S&P means Standard & Poor's Ratings Services, a division
of the
McGraw-Hill Companies, Inc., and any successor thereto.
SEC shall mean the Securities and Exchange Commission or any
successor
Governmental Authority.
SECURITY INSTRUMENTS shall mean the agreements or instruments
described
or referred to in EXHIBIT D, and any and all other agreements or
instruments now
or hereafter executed and delivered by the Obligors or any other
Person (other
than participation or similar agreements between any Lender and
any other lender
or creditor with respect to any Indebtedness pursuant to this
Agreement) in
connection with, or as security for the payment or performance
of, the Notes,
the Guaranty Agreements, the Hedging Agreements constituting
Loan Documents,
this Agreement, or reimbursement obligations under the Letters
of Credit, as
such agreements may be amended, supplemented or restated from
time to time.
SENIOR SECURED LEVERAGE RATIO has the meaning set forth in
SECTION 9.15.
SPECIAL ENTITY shall mean any joint venture, limited liability
company
or partnership, general or limited partnership or any other type
of partnership
or company other than a corporation in which the Borrower or one
or more of its
other Subsidiaries is a member, owner, partner or joint venturer
and owns,
directly or indirectly, at least a majority of the equity of
such entity or
controls such entity, but excluding any tax partnerships that
are not classified
as partnerships under state law. For purposes of this
definition, any Person
which owns directly or indirectly an equity investment in
another Person which
allows the first Person to manage or elect managers who manage
the normal
activities of such second Person will be deemed to "CONTROL"
such second Person
(e.g. a sole general partner controls a limited
partnership).
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SPECTRUM ACQUISITION means the acquisition by APL Operating of
the
Spectrum Shares pursuant to the Spectrum Securities Purchase
Agreement and the
other documents delivered in connection therewith.
SPECTRUM SECURITIES PURCHASE AGREEMENT means the Securities
Purchase
Agreement dated as of June 10, 2004, between APL Operating, as
buyer, and
Spectrum Field Services, Inc., a Delaware corporation, Energy
Spectrum Partners
II LP, a Delaware limited partnership, Energy Spectrum Partners
III LP, a
Delaware limited partnership, and each of the "Management
Sellers" defined in
and parties to the Spectrum Securities Purchase Agreement, as
sellers.
SPECTRUM SHARES means the "Shares" defined in the Spectrum
Securities
Purchase Agreement.
SUBORDINATED DEBT means any Indebtedness for borrowed money for
which an
Obligor is directly and primarily obligated, so long as such
Debt (i) does not
have any stated maturity before the maturity of the Facilities,
(ii) has terms
that are no more restrictive upon the Obligor than the terms of
the Loan
Documents, (iii) is subordinated, upon terms satisfactory to
Administrative
Agent, to the payment and collection of the Indebtedness, and
(iv) is unsecured.
SUBSIDIARY shall mean (i) any corporation of which at least a
majority
of the outstanding shares of stock having by the terms thereof
ordinary voting
power to elect a majority of the board of directors of such
corporation
(irrespective of whether or not at the time stock of any other
class or classes
of such corporation shall have or might have voting power by
reason of the
happening of any contingency) is at the time directly or
indirectly owned or
controlled by the Borrower or one or more of its Subsidiaries or
by the Borrower
and one or more of its Subsidiaries and (ii) any Special
Entity.
TAXES shall have the meaning assigned such term in SECTION
4.06(a).
TERM LOAN means any Loan made under the Term Loan Facility.
TERM LOAN COMMITMENT means, for any Term Loan Lender, its
obligation to
make Term Loans as provided in SECTION 2.01(a)(ii) up to such
Term Loan Lender's
Maximum Term Loan Amount.
TERM LOAN FACILITY means the credit facility as described in and
subject
to the limitations set forth in SECTION 2.01(a)(ii) hereof.
TERM LOAN LENDERS means, collectively, on any date of
determination,
Lenders having Commitments under the Term Loan Facility or that
are owed Term
Loan Principal Debt.
TERM LOAN NOTE means a promissory note substantially in the form
of
EXHIBIT A-2, and all renewals and extensions of all or any part
thereof.
TERM LOAN PRINCIPAL DEBT means, on any date of determination,
the
aggregate unpaid principal balance of all Loans under the Term
Loan Facility.
TERMINATION DATE means (i) for purposes of the Revolver
Facility, the
earlier of (a) April 13, 2010, and (b) the effective date that
Revolver Lenders'
Revolver Commitments are otherwise canceled or terminated, and
(ii) for purposes
of the Term Loan Facility, (a) the earlier of April 13, 2010,
and (b) the
effective date of any other termination, cancellation or
acceleration of the
Term Loan Facility.
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<PAGE>
TOTAL COMMITMENT means, at any time, the sum of the aggregate
Revolver
Commitments and aggregate Term Loan Commitments in effect for
all Lenders in
respect of the Revolver Facility and the Term Loan Facility.
TRANSFER shall mean any sale, assignment, sub-lease, conveyance
or other
transfer of any Pipeline Property, or any interest in any
Pipeline Property of
any Obligor, except for (i) the sale of firm transportation
space or
interruptible transportation space in the Pipelines in the
ordinary course of
business on a current basis, or (ii) the sale or transfer of
equipment in the
ordinary course of business that is no longer necessary for the
business of any
Obligor or is contemporaneously replaced by equipment of at
least comparable
value and use.
TYPE shall mean, with respect to any Loan, a Base Rate Loan or a
LIBOR
Loan.
UNRESTRICTED ENTITIES shall mean Subsidiaries of the Borrower
designated
as UNRESTRICTED ENTITIES by the Borrower and approved by
Required Lenders.
VIKING shall mean Viking Resources Corporation, a
Pennsylvania
corporation.
WACHOVIA means Wachovia Bank, National Association.
WHOLLY OWNED SUBSIDIARY shall mean a Subsidiary for which all of
the
outstanding shares of stock or other equity of such entity is
owned directly or
indirectly by Borrower.
Section 1.03 ACCOUNTING TERMS AND DETERMINATIONS. Unless
otherwise
specified herein, all accounting terms used herein shall be
interpreted, all
determinations with respect to accounting matters hereunder
shall be made, and
all financial statements and certificates and reports as to
financial matters
required to be furnished to the Administrative Agent or the
Lenders hereunder
shall be prepared, in accordance with GAAP, applied on a basis
consistent with
the audited financial statements of the Borrower referred to in
SECTION 7.02
(except for changes concurred with by the Borrower's independent
public
accountants).
ARTICLE II
COMMITMENTS
Section 2.01 LOANS AND LETTERS OF CREDIT.
(a) LOANS.
(i) Subject to and in reliance upon the terms,
conditions, representations and warranties in the Loan
Documents, each Revolver Lender severally agrees to make
Revolver Loans to the Borrower during the period from and
including (i) the Closing Date or (ii) such later date that
such
Revolver Lender becomes a party to this Agreement as provided
in
SECTION 12.06(b), to and up to, but excluding, the
Termination
Date in respect of the Revolver Facility in an aggregate
principal amount at any one time outstanding up to, but not
exceeding, the amount of such Revolver Lender's Revolver
Commitment as then in effect; provided however, that the
aggregate principal amount of all such Revolver Loans by all
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Revolver Lenders hereunder at any one time outstanding
together
with the LC Exposure shall not exceed the Aggregate Maximum
Revolver Amount. Subject to the terms of this Agreement,
during
the period from the Closing Date to and up to, but
excluding,
the Termination Date in respect of the Revolver Facility,
the
Borrower may borrow, repay and reborrow the amount described
in
this SECTION 2.01(a).
(ii) Subject to and in reliance upon the terms,
conditions, representations and warranties in the Loan
Documents, each Term Loan Lender severally, but not jointly,
agrees to lend to the Borrower in a single advance on the
Closing Date a Term Loan in an amount equal to such Lender's
Term Loan Commitment. The aggregate principal amount of the
the
Term Loans of the Lenders shall not exceed Forty-Five
Million
Dollars ($45,000,000). If all or any portion of the Term
Loan
Principal Debt is paid or prepaid by the Borrower, then the
amount so paid or prepaid may not be reborrowed.
(b) LETTERS OF CREDIT. During the period from and including
the
Closing Date to, but excluding, five (5) Business Days prior to
the
Termination Date in respect of the Revolver Facility, the
Issuing Bank,
as issuing bank for the Revolver Lenders, agrees to extend
credit for
the account of any Obligor at any time and from time to time by
issuing,
renewing, extending or reissuing Letters of Credit; provided
however,
that the LC Exposure at any one time outstanding shall not
exceed the
lesser of (i) the LC Commitment or (ii) the Aggregate Maximum
Revolver
Amount, as then in effect, minus the aggregate principal amount
of all
Revolver Loans then outstanding. The Revolver Lenders shall
participate
in such Letters of Credit according to their respective
Percentage
Shares of the Revolver Facility. Each of the Letters of Credit
shall (i)
be issued by the Issuing Bank, (ii) contain such terms and
provisions as
are reasonably required by the Issuing Bank, (iii) be for the
account of
such Obligor, and (iv) expire not later than the earlier of (A)
twelve
months from the date of issuance of such Letter of Credit and
(B) five
(5) Business Days before the Termination Date in respect of the
Revolver
Facility.
(c) LIMITATION ON TYPES OF LOANS. Subject to the other terms
and
provisions of this Agreement, at the option of the Borrower, the
Loans
may be Base Rate Loans or LIBOR Loans; provided that, without
the prior
written consent of the Required Lenders, no more than seven
LIBOR Loans
may be outstanding at any time.
Section 2.02 BORROWINGS, CONTINUATIONS AND CONVERSIONS, LETTERS
OF
CREDIT.
(a) BORROWINGS. The Borrower shall give the Administrative
Agent
(which shall promptly notify the Lenders) advance notice as
hereinafter
provided of each borrowing hereunder, which shall specify (i)
the
aggregate amount of such borrowing, (ii) the Type and (iii) the
date
(which shall be a Business Day) of the Loans, and (iv) (in the
case of
LIBOR Loans) the duration of the Interest Period therefor.
(b) MINIMUM AMOUNTS. If a borrowing consists in whole or in
part
of LIBOR Loans, such LIBOR Loans shall be in amounts of at least
Five
Hundred Thousand Dollars ($500,000) or any whole multiple of Two
Hundred
Fifty Thousand Dollars ($250,000) in excess thereof. If a
borrowing
consists in whole or in part of Base Rate Loans, such Base Rate
Loans
shall be in amounts of at least One Hundred Thousand Dollars
($100,000)
or integral multiples of One Hundred Thousand Dollars ($100,000)
in
excess thereof.
(c) NOTICES. All borrowings, continuations and conversions
shall
require advance written notice to the Administrative Agent
(which shall
promptly notify the Lenders) in the form of EXHIBIT B (or
telephonic
notice promptly confirmed by such a written notice), which in
each case
shall be irrevocable, from the Borrower to be received by
the
Administrative Agent not later than 12:00 p.m. Charlotte, North
Carolina
time at least one Business Day prior to the date of each Base
Rate Loan
borrowing and three Business Days prior to the date of each
LIBOR Loan
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borrowing, continuation or conversion. Without in any way
limiting the
Borrower's obligation to confirm in writing any telephonic
notice, the
Administrative Agent may act without liability upon the basis
of
telephonic notice believed by the Administrative Agent in good
faith to
be from the Borrower prior to receipt of written confirmation.
In each
such case, the Borrower hereby waives the right to dispute
the
Administrative Agent's record of the terms of such telephonic
notice
except in the case of gross negligence or willful misconduct by
the
Administrative Agent.
(d) CONTINUATION OPTIONS. Subject to the provisions made in
this
SECTION 2.02(d), the Borrower may elect to continue all or any
part of
any LIBOR Loan beyond the expiration of the then current
Interest Period
relating thereto by giving advance notice as provided in SECTION
2.02(c)
to the Administrative Agent (which shall promptly notify the
Lenders) of
such election, specifying the amount of such Loan to be
continued and
the Interest Period therefor. In the absence of such a timely
and proper
election, the Borrower shall be deemed to have elected to
convert such
LIBOR Loan to a Base Rate Loan pursuant to SECTION 2.02(e). All
or any
part of any LIBOR Loan may be continued as provided herein,
provided
that (i) any continuation of any such Loan shall be (as to each
Loan as
continued for an applicable Interest Period) in amounts of at
least Five
Hundred Thousand Dollars ($500,000) or any whole multiple of Two
Hundred
Fifty Thousand Dollars ($250,000) in excess thereof and (ii) no
Default
shall have occurred and be continuing. If a Default shall have
occurred
and be continuing, each LIBOR Loan shall be converted to a Base
Rate
Loan on the last day of the Interest Period applicable
thereto.
(e) CONVERSION OPTIONS. The Borrower may elect to convert all
or
any part of any LIBOR Loan on the last day of the then current
Interest
Period relating thereto to a Base Rate Loan by giving advance
notice to
the Administrative Agent (which shall promptly notify the
Lenders) of
such election. Subject to the provisions made in this SECTION
2.02(e),
the Borrower may elect to convert all or any part of any Base
Rate Loan
at any time and from time to time to a LIBOR Loan by giving
advance
notice as provided in SECTION 2.02(c) to the Administrative
Agent (which
shall promptly notify the Lenders) of such election. All or any
part of
any outstanding Loan may be converted as provided herein,
provided that
(i) any conversion of any Base Rate Loan into a LIBOR Loan shall
be (as
to each such Loan into which there is a conversion for an
applicable
Interest Period) in amounts of at least Five Hundred Thousand
Dollars
($500,000) or any whole multiple of Two Hundred Fifty Thousand
Dollars
($250,000) in excess thereof and (ii) no Default shall have
occurred and
be continuing. If a Default shall have occurred and be
continuing, no
Base Rate Loan may be converted into a LIBOR Loan.
(f) ADVANCES. Not later than 12:00 p.m. Charlotte, North
Carolina time on the date specified for each the borrowing
hereunder,
each Lender shall make available the amount of the Loan to be
made by it
on such date to the Administrative Agent, to an account which
the
Administrative Agent shall specify, in immediately available
funds, for
the account of the Borrower. The amounts so received by the
Administrative Agent shall, subject to the terms and conditions
of this
Agreement, be made available to the Borrower by depositing the
same, in
immediately available funds, in an account of the Borrower,
designated
by the Borrower and maintained at the Principal Office, or in
such other
accounts designated by the Borrower.
(g) LETTERS OF CREDIT. The Borrower shall give the Issuing
Bank
(which shall promptly notify the Lenders of such request and
their
Percentage Share of such Letter of Credit) advance notice to be
received
by the Issuing Bank not later than 12:00 p.m. Charlotte, North
Carolina
time not less than three Business Days prior thereto of each
request for
the issuance, and at least ten Business Days prior to the date
of the
renewal or extension, of a Letter of Credit hereunder which
request
shall specify (i) the amount of such Letter of Credit, (ii) the
date
(which shall be a Business Day) such Letter of Credit is to be
issued,
renewed or extended, (iii) the duration
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thereof, (iv) the name and address of the beneficiary thereof,
and (v)
such other information as the Issuing Bank may reasonably
request, all
of which shall be reasonably satisfactory to the Issuing Bank.
Subject
to the terms and conditions of this Agreement, on the date
specified for
the issuance, renewal or extension of a Letter of Credit,
the
Administrative Agent shall issue, renew or extend such Letter of
Credit
to the beneficiary thereof.
In conjunction with the issuance of each Letter of Credit, the
Borrower
shall execute a Letter of Credit Agreement. In the event of any
conflict between
any provision of a Letter of Credit Agreement and this
Agreement, the Borrower,
the Issuing Bank, the Administrative Agent and the Revolver
Lenders hereby agree
that the provisions of this Agreement shall govern.
The Issuing Bank will send to the Borrower and each Revolver
Lender,
immediately upon issuance of any Letter of Credit, or an
amendment thereto, a
true and complete copy of such Letter of Credit, or such
amendment thereto.
Section 2.03 CHANGES OF COMMITMENTS.
(a) The Borrower shall have the right to terminate or to
reduce
the amount of the Aggregate Maximum Revolver Amounts at any
time, or
from time to time, upon not less than thirty (30) days' prior
notice to
the Administrative Agent (who shall promptly notify the Lenders)
of each
such termination or reduction, which notice shall specify the
effective
date thereof and the amount of any such reduction (which shall
not be
less than One Million Dollars ($1,000,000) or any whole multiple
of One
Million Dollars ($1,000,000) in excess thereof, and no more than
an
amount by which the Aggregate Maximum Revolver Amounts would be
less
than the aggregate outstanding principal amount of the Revolver
Loans
plus the LC Exposure) and shall be irrevocable and effective
only upon
receipt by the Administrative Agent.
(b) The Aggregate Maximum Revolver Amounts, once terminated
or
reduced, may not be reinstated.
Section 2.04 FEES.
(a) COMMITMENT FEE. The Borrower shall pay to the
Administrative
Agent for the account of each Revolver Lender a commitment fee
on the
daily average unused amount of the aggregate Revolver
Commitments, up
to, but excluding, the Termination Date in respect of the
Revolver
Facility at a rate per annum equal to (i) 0.375% during any
period in
which the Leverage Ratio is less than or equal to 3.00 to 1.00,
or (ii)
0.50% during any period in which the Leverage Ratio is greater
than 3.00
to 1.00. Accrued commitment fees shall be payable quarterly in
arrears
on each Quarterly Date and on the Termination Date in respect of
the
Revolver Facility. Each change in the commitment fee resulting
from a
change in the Leverage Ratio shall take effect on the date of
delivery
by the Borrower to the Administrative Agent of notice thereof
pursuant
to SECTION 8.01(j). If the Borrower fails to deliver a
compliance
certificate when required pursuant to SECTION 8.01(j), then
the
commitment fee shall equal 0.50% until such date as the
Borrower
delivers such compliance certificate to the Administrative
Agent.
(b) LETTER OF CREDIT FEES.
(i) The Borrower agrees to pay the Administrative Agent,
for the account of each Revolver Lender, commissions for
issuing
the Letters of Credit on the daily average outstanding of
the
maximum liability of the Issuing Bank existing from time to
time
under such Letter of Credit (calculated separately for each
Letter of Credit) at the rate per
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annum equal to the Applicable Margin in effect from time to
time
for LIBOR Loans, provided, that each Letter of Credit shall
bear
a minimum commission of Five Hundred Dollars ($500) and
further
provided, during any period commencing on the date of an
Event
of Default until the same is paid in full or all Events of
Default are cured and waived, equal to the Post-Default
Rate.
Each Letter of Credit shall be deemed to be outstanding up
to
the full face amount of the Letter of Credit until the
Issuing
Bank has received the canceled Letter of Credit or a written
cancellation of the Letter of Credit from the beneficiary of
such Letter of Credit in form and substance acceptable to
the
Issuing Bank, or for any reductions in the amount of the
Letter
of Credit (other than from a drawing), written notification
from
the beneficiary of such Letter of Credit. Such commissions
are
payable in advance at issuance of the Letter of Credit for
the
first year thereof and thereafter, quarterly in arrears on
each
Quarterly Date and upon cancellation or expiration of each
such
Letter of Credit.
(ii) The Borrower agrees to pay the Administrative
Agent, for the account of the Issuing Bank, commissions for
issuing the Letters of Credit (calculated separately for
each
Letter of Credit) equal to 0.125% of the face amount of each
Letter of Credit, payable upon issuance of such Letter of
Credit.
(iii) The Borrower shall pay to the Administrative
Agent, for the account of the Issuing Bank, other customery
fees
assessed by the Issuing Bank in connection with the
administration of its Letters of Credit.
(c) FEE LETTERS. The Borrower shall pay to Administrative
Agent
and the Co-Lead Arrangers for their respective accounts such
other fees
as are set forth in the Fee Letters on the dates specified
therein to
the extent not paid prior to the Closing Date.
Section 2.05 SEVERAL OBLIGATIONS. The failure of any Lender to
make
any Loan to be made by it or to provide funds for disbursements
or
reimbursements under Letters of Credit on the date specified
therefor shall not
relieve any other Lender of its obligation to make its Loan or
provide funds on
such date, but no Lender shall be responsible for the failure of
any other
Lender to make a Loan to be made by such other Lender or to
provide funds to be
provided by such other Lender.
Section 2.06 NOTES. The Revolver Loans made by each Revolver
Lender
shall be evidenced by a Revolver Note dated as of (i) the
Closing Date or (ii)
the effective date of an Assignment and Assumption, payable to
the order of such
Revolver Lender in a principal amount equal to its Maximum
Revolver Amount as
originally in effect and otherwise duly completed and such
substitute Notes as
required by SECTION 12.06. The Term Loan made by each Term Loan
Lender shall be
evidenced by a Term Loan Note dated as of (x) the Closing Date
or (y) the
effective date of an Assignment and Assumption, payable to the
order of such
Term Loan Lender in a principal amount equal to its Maximum Term
Loan Amount as
originally in effect and otherwise duly completed and such
substitute Term Loan
Notes as required by SECTION 12.06. The date, amount, Type,
interest rate and
Interest Period of each Loan made by each Lender, and all
payments made on
account of the principal thereof, shall be recorded by such
Lender on its books
for its Note, and, prior to any transfer may be endorsed by such
Lender on the
schedule attached to such Note or any continuation thereof or on
any separate
record maintained by such Lender. Failure to make any such
notation or to attach
a schedule shall not affect any Lender's or the Borrower's
rights or obligations
in respect of such Loans or affect the validity of such transfer
by any Lender
of its Note.
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Section 2.07 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS. The Borrower may prepay the Base
Rate
Loans upon not less than one (1) Business Day's prior notice to
the
Administrative Agent (which shall promptly notify the Lenders),
which
notice shall specify the prepayment date (which shall be a
Business Day)
and the amount of the prepayment (which shall be at least One
Hundred
Thousand Dollars ($100,000) or the remaining aggregate principal
balance
outstanding on the Notes) and shall be irrevocable and effective
only
upon receipt by the Administrative Agent, provided that interest
on the
principal prepaid, accrued to the prepayment date, shall be paid
on the
prepayment date. The Borrower may prepay LIBOR Loans on the
same
conditions as for Base Rate Loans (except that prior notice to
the
Administrative Agent shall be not less than three (3) Business
Days for
LIBOR Loans) and in addition such prepayments of LIBOR Loans
shall be
subject to the terms of SECTION 5.05 and shall be in an amount
equal to
all of the LIBOR Loans for the Interest Period prepaid. In the
event of
a voluntary prepayment of any Revolver Loans pursuant to this
SECTION
2.07(a), Borrower shall be entitled to reborrow such amounts
pursuant to
SECTION 2.01(a)(i).
(b) MANDATORY PREPAYMENTS.
(i) The Borrower shall prepay the Principal Debt in an
amount equal to the portion of Net Cash Proceeds (other than
Equity Net Cash Proceeds) in excess of Five Hundred Thousand
Dollars ($500,000) on the first Business Day following the
receipt thereof.
(ii) The Borrower shall prepay the Principal Debt in an
amount equal to Equity Net Cash Proceeds required to reduce
the
Borrower's Senior Secured Leverage Ratio to or below 3.50 to
1.00 on the first Business Day following receipt of such
Equity
Net Cash Proceeds.
(c) GENERALLY. Prepayments permitted under this SECTION 2.07
shall be without premium or penalty, except as required under
SECTION
5.05 for prepayment of LIBOR Loans. Any voluntary prepayment of
the
Principal Debt shall be applied to the Revolver Principal Debt
and the
Term Loan Principal Debt at the Borrower's discretion; provided,
that
upon any Default or Event of Default, any such prepayment shall
be
allocated pro rata to each Revolver Lender and each Term Loan
Lender in
accordance with its Percentage Share of the Principal Debt.
Any
mandatory prepayment of the Principal Debt under CLAUSE (b)
above shall
be applied first against the Term Loan Principal Debt, and the
balance,
if any, shall be applied against the Revolver Principal Debt.
With
respect to the Revolver Loans, any mandatory prepayments made
pursuant
to CLAUSE (b)(ii) above and any voluntary prepayments may be
reborrowed
subject to the then effective Aggregate Maximum Revolver
Amount.
Section 2.08 ASSUMPTION OF RISKS. The Borrower assumes all risks
of
the acts or omissions of any beneficiary of any Letter of Credit
or any
transferee thereof with respect to its use of such Letter of
Credit. Neither the
Issuing Bank (except in the case of gross negligence or willful
misconduct on
the part of the Issuing Bank or any of its employees), its
correspondents nor
any Revolver Lender shall be responsible for the validity,
sufficiency or
genuineness of certificates or other documents or any
endorsements thereon, even
if such certificates or other documents should in fact prove to
be invalid,
insufficient, fraudulent or forged; for errors, omissions,
interruptions or
delays in transmissions or delivery of any messages by mail,
telex, or
otherwise, whether or not they be in code; for errors in
translation or for
errors in interpretation of technical terms; the validity or
sufficiency of any
instrument transferring or assigning or purporting to transfer
or assign any
Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective
for any reason;
the failure of any beneficiary or any transferee of any Letter
of Credit to
comply fully with conditions required in order to draw upon any
Letter of
Credit; or for any other consequences arising from
24
<PAGE>
causes beyond the Issuing Bank's control or the control of the
Issuing Bank's
correspondents. In addition, neither the Issuing Bank, the
Administrative Agent
nor any Revolver Lender shall be responsible for any error,
neglect, or default
of any of the Issuing Bank's correspondents; and none of the
above shall affect,
impair or prevent the vesting of any of the Issuing Bank's, the
Administrative
Agent's or any Revolver Lender's rights or powers hereunder or
under the Letter
of Credit Agreements, all of which rights shall be cumulative.
The Issuing Bank
and its correspondents may accept certificates or other
documents that appear on
their face to be in order, without responsibility for further
investigation of
any matter contained therein regardless of any notice or
information to the
contrary. In furtherance and not in limitation of the foregoing
provisions, the
Borrower agrees that any action, inaction or omission taken or
not taken by the
Issuing Bank or by any correspondent for the Issuing Bank in
good faith in
connection with any Letter of Credit, or any related drafts,
certificates,
documents or instruments, shall be binding on the Borrower and
shall not put the
Issuing Bank or its correspondents under any resulting liability
to the
Borrower.
Section 2.09 OBLIGATION TO REIMBURSE AND TO PREPAY.
(a) If a disbursement by the Issuing Bank is made under any
Letter of Credit, the Borrower shall pay to the Administrative
Agent
within two (2) Business Days after notice of any such
disbursement is
received by the Borrower, the amount of each such disbursement
made by
the Issuing Bank under the Letter of Credit (if such payment is
not
sooner effected as may be required under this SECTION 2.09 or
under
other provisions of the Letter of Credit), together with
interest on the
amount disbursed from and including the date of disbursement
until
payment in full of such disbursed amount at a varying rate per
annum
equal to (i) the then applicable interest rate for Base Rate
Loans
through the second Business Day after notice of such
disbursement is
received by the Borrower and (ii) thereafter, the Post-Default
Rate for
Base Rate Loans (but in no event to exceed the Highest Lawful
Rate) for
the period from and including the third Business Day following
the date
of such disbursement to and including the date of repayment in
full of
such disbursed amount. The obligations of the Borrower under
this
Agreement with respect to each Letter of Credit shall be
absolute,
unconditional and irrevocable and shall be paid or performed
strictly in
accordance with the terms of this Agreement under all
circumstances
whatsoever, including, without limitation, but only to the
fullest
extent permitted by applicable law, the following circumstances:
(i) any
lack of validity or enforceability of this Agreement, any Letter
of
Credit or any of the Security Instruments; (ii) any amendment or
waiver
of (including any default), or any consent to departure from
this
Agreement (except to the extent permitted by any amendment or
waiver),
any Letter of Credit or any of the Security Instruments; (iii)
the
existence of any claim, set-off, defense or other rights which
the
Borrower may have at any time against the beneficiary of any
Letter of
Credit or any transferee of any Letter of Credit (or any Persons
for
whom any such beneficiary or any such transferee may be acting),
the
Issuing Bank, the Administrative Agent, any Revolver Lender or
any other
Person, whether in connection with this Agreement, any Letter of
Credit,
the Security Instruments, the transactions contemplated hereby
or any
unrelated transaction; (iv) any statement, certificate, draft,
notice or
any other document presented under any Letter of Credit proves
to have
been forged, fraudulent, insufficient or invalid in any respect
or any
statement therein proves to have been untrue or inaccurate in
any
respect whatsoever; (v) payment by the Issuing Bank under any
Letter of
Credit against presentation of a draft certificate which appears
on its
face to comply, but does not comply, with the terms of such
Letter of
Credit; and (vi) any other circumstance or happening whatsoever,
whether
or not similar to any of the foregoing.
Notwithstanding anything in this Agreement to the contrary, the
Borrower
will not be liable for payment or performance that results from
the
gross negligence or willful misconduct of the Issuing Bank,
except (i)
where the Borrower or any Subsidiary actually recovers the
proceeds for
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<PAGE>
itself or the Issuing Bank of any payment made by the Issuing
Bank in
connection with such gross negligence or willful misconduct or
(ii) in
cases where the Administrative Agent makes payment to the
named
beneficiary of a Letter of Credit.
(b) In the event of the occurrence of any Event of Default
or
the maturity of the Revolver Notes, whether by acceleration
or
otherwise, an amount equal to the LC Exposure shall be deemed to
be
forthwith due and owing by the Borrower to the Issuing Bank,
the
Administrative Agent and the Revolver Lenders as of the date of
any such
occurrence; and the Borrower's obligation to pay such amount
shall be
absolute and unconditional, without regard to whether any
beneficiary of
any such Letter of Credit has attempted to draw down all or a
portion of
such amount under the terms of a Letter of Credit, and, to the
fullest
extent permitted by applicable law, shall not be subject to any
defense
or be affected by a right of set-off, counterclaim or recoupment
which
the Borrower may now or hereafter have against any such
beneficiary, the
Issuing Bank, the Administrative Agent, the Revolver Lenders or
any
other Person for any reason whatsoever. Such payments shall be
held by
the Issuing Bank on behalf of the Revolver Lenders as cash
collateral
securing the LC Exposure in an account or accounts at the
Principal
Office; and the Borrower hereby grants to and by its deposit
with the
Administrative Agent grants to the Administrative Agent a
security
interest in such cash collateral. In the event of any such
payment by
the Borrower of amounts contingently owing under outstanding
Letters of
Credit and in the event that thereafter drafts or other demands
for
payment complying with the terms of such Letters of Credit are
not made
prior to the respective expiration dates thereof, the
Administrative
Agent agrees, if no Event of Default has occurred and is
continuing or
if no other amounts are outstanding under this Agreement, the
Notes or
the Security Instruments, to remit to the Borrower amounts for
which the
contingent obligations evidenced by the Letters of Credit have
ceased.
(c) Each Revolver Lender severally and unconditionally
agrees
that it shall promptly reimburse the Issuing Bank an amount
equal to
such Revolver Lender's Percentage Share of any disbursement made
by the
Issuing Bank under any Letter of Credit that is not reimbursed
according
to this SECTION 2.09.
(d) Notwithstanding anything to the contrary contained
herein,
if no Event of Default has occurred and is continuing, and
subject to
Availability under the Revolver Facility, to the extent the
Borrower has
not reimbursed the Issuing Bank for any drawn upon Letter of
Credit
within one (1) Business Day after notice of such disbursement
has been
received by the Borrower, the amount of such Letter of
Credit
reimbursement obligation shall automatically be funded by the
Revolver
Lenders as a Revolver Loan hereunder and used by the Revolver
Lenders to
pay such Letter of Credit reimbursement obligation. If an Event
of
Default has occurred and is continuing, or if the funding of
such Letter
of Credit reimbursement obligation as a Revolver Loan would
cause the
aggregate amount of all Revolver Loans outstanding to exceed
the
Aggregate Maximum Revolver Amount (after reduction for LC
Exposure),
such Letter of Credit reimbursement obligation shall not be
funded as a
Revolver Loan, but instead shall accrue interest as provided in
SECTION
2.09(a).
Section 2.10 LENDING OFFICES. The Loans of each Type made by
each
Lender shall be made and maintained at such Lender's Applicable
Lending Office
for Loans of such Type.
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ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 REPAYMENT OF LOANS.
(a) LOANS.
(i) The Revolver Principal Debt is due and payable on
the Termination Date in respect of the Revolver Facility.
(ii) The Term Loan Principal Debt is due and payable in
quarterly installments in the amounts set forth on SCHEDULE
3.01
hereto (each, an "AMORTIZATION PAYMENT"), commencing on
October
1, 2005, and continuing thereafter on each Quarterly Date,
with
a final payment due on the Termination Date in respect of
the
Term Loan Facility in an amount equal to all Term Loan
Principal
Debt then outstanding; provided, that each prepayment by the
Borrower of outstanding Term Loan Principal Debt in
accordance
with the provisions set forth in SECTIONS 2.07(b)(i) AND
2.07(b)(ii) hereof shall ratably reduce the remaining
Amortization Payments due under this Agreement by an amount
that, in the aggregate, equals the amount of such
prepayments.
(b) GENERALLY. The Borrower will pay to the Administrative
Agent, for the account of each Lender, the principal payments
required
by this SECTION 3.01.
Section 3.02 INTEREST.
(a) INTEREST RATES. The Borrower will pay to the
Administrative
Agent, for the account of each Lender, interest on the unpaid
principal
amount of each Loan made by such Lender for the period
commencing on the
date such Loan is made to, but excluding, the date such Loan
shall be
paid in full, at the following rates per annum:
(i) if such a Loan is a Base Rate Loan, the Base Rate
(as in effect from time to time) plus the Applicable Margin,
but
in no event to exceed the Highest Lawful Rate; and
(ii) if such a Loan is a LIBOR Loan, for each Interest
Period relating thereto, the Adjusted LIBOR for such Loan
plus
the Applicable Margin (as in effect from time to time), but
in
no event to exceed the Highest Lawful Rate.
(b) POST-DEFAULT RATE. Notwithstanding the foregoing, the
Borrower will pay to the Administrative Agent, for the account
of each
Lender, interest at the applicable Post-Default Rate on any Loan
made by
such Lender, and (to the fullest extent permitted by law) on any
other
amount payable by the Borrower hereunder, under any Loan
Document or
under any Note held by such Lender to or for account of such
Lender, for
the period commencing on the date of an Event of Default until
the same
is paid in full or all Events of Default are cured or
waived.
(c) DUE DATES. Accrued interest on Base Rate Loans shall be
payable on each Quarterly Date commencing on July 1, 2005, and
accrued
interest on each LIBOR Loan shall be payable on the last day of
the
Interest Period therefor and, if such Interest Period is longer
than
three months, at three-month intervals following the first day
of such
Interest Period, except that interest payable at the
Post-Default Rate
shall be payable from time to time on demand and interest on any
LIBOR
Loan that is converted into a Base Rate Loan (pursuant to
SECTION 5.04)
shall be payable on the date of conversion (but only to the
extent so
converted). Any accrued and unpaid interest on the Revolver
Loans on the
Termination Date in respect of the Revolver Facility shall be
paid on
such date and any accrued and unpaid interest on the Term Loans
on the
Termination Date in respect of the Term Loan Facility shall be
paid on
such date.
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<PAGE>
(d) DETERMINATION OF RATES. Promptly after the determination
of
any interest rate provided for herein or any change therein,
the
Administrative Agent shall notify the Lenders to which such
interest is
payable and the Borrower thereof. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall,
except
in cases of manifest error, be final, conclusive and binding on
the
parties.
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01 PAYMENTS. Except to the extent otherwise provided
herein,
all payments of principal, interest and other amounts to be made
by the Borrower
under this Agreement, the Notes, Letters of Credit, and the
Letter of Credit
Agreements shall be made in Dollars, in immediately available
funds, to the
Administrative Agent at such account as the Administrative Agent
shall specify
by notice to the Borrower from time to time, not later than
12:00 p.m.
Charlotte, North Carolina time on the date on which such
payments shall become
due (each such payment made after such time on such due date to
be deemed to
have been made on the next succeeding Business Day). Such
payments shall be made
without (to the fullest extent permitted by applicable law)
defense, set-off or
counterclaim. Each payment received by the Administrative Agent
under this
Agreement or any Note for account of a Lender shall be paid
promptly to such
Lender in immediately available funds. Except as otherwise
provided in the
definition of "Interest Period", if the due date of any payment
under this
Agreement or any Note would otherwise fall on a day which is not
a Business Day
such date shall be extended to the next succeeding Business Day
and interest
shall be payable for any principal so extended for the period of
such extension.
At the time of each payment to the Administrative Agent of any
principal of or
interest on any borrowing, the Borrower shall notify the
Administrative Agent of
the Loans to which such payment shall apply. In the absence of
such notice the
Administrative Agent may specify the Loans to which such payment
shall apply,
but to the extent possible such payment or prepayment will be
applied first to
the Loans comprised of Base Rate Loans.
Section 4.02 PRO RATA TREATMENT. Except to the extent
otherwise
provided herein, each Lender agrees that: (i) each borrowing
from the Lenders
under SECTION 2.01 and each continuation and conversion under
SECTION 2.02 shall
be made from the Lenders pro rata in accordance with their
Percentage Share of
the aggregate Revolver Commitments or aggregate Term Loan
Commitments, as the
case may be, each payment of fees under SECTIONS 2.04(a) and
2.04(b)(i), shall
be made for account of the Revolver Lenders pro rata in
accordance with their
Percentage Share of the aggregate Revolver Commitments, and each
termination or
reduction of the amount of the Aggregate Maximum Revolver Amount
under SECTION
2.03(a) shall be applied to the Revolver Commitment of each
Revolver Lender, pro
rata according to the amounts of its respective Revolver
Commitment; (ii) each
payment of principal of Revolver Loans by the Borrower shall be
made for account
of the Revolver Lenders pro rata in accordance with the
respective unpaid
principal amount of the Revolver Loans held by the Revolver
Lenders; (iii) each
payment of interest on Revolver Loans by the Borrower shall be
made for account
of the Revolver Lenders pro rata in accordance with the amounts
of interest due
and payable to the respective Revolver Lenders; (iv) each
payment of principal
of Term Loans by the Borrower shall be made for account of the
Term Loan Lenders
pro rata in accordance with the respective unpaid principal
amount of the Term
Loans held by the Term Loan Lenders; (v) each payment of
interest on Term Loans
by the Borrower shall be made for account of the Term Loan
Lenders pro rata in
accordance with the amounts of interest due and payable to the
respective Term
Loan Lenders; and (vi) each reimbursement by the Borrower of
disbursements under
Letters of Credit shall be made for account of the Issuing Bank
or, if funded by
the Revolver Lenders, pro rata for the account of the Revolver
Lenders in
accordance with the amounts of reimbursement obligations due and
payable to each
respective Revolver Lender.
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Section 4.03 COMPUTATIONS. Interest on LIBOR Loans and fees
shall be
computed on the basis of a year of 360 days and actual days
elapsed (including
the first day but excluding the last day) occurring in the
period for which such
interest is payable, unless such calculation would exceed the
Highest Lawful
Rate, in which case interest shall be calculated on the per
annum basis of a
year of 365 or 366 days, as the case may be. Interest on Base
Rate Loans shall
be computed on the basis of a year of 365 or 366 days, as the
case may be, and
actual days elapsed (including the first day but excluding the
last day)
occurring in the period for which such interest is payable.
Section 4.04 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.
Unless
the Administrative Agent shall have been notified by a Lender or
the Borrower
prior to the date on which such notifying party is scheduled to
make payment to
the Administrative Agent (in the case of a Lender) of the
proceeds of a Loan or
a payment under a Letter of Credit to be made by it hereunder or
(in the case of
the Borrower) a payment to the Administrative Agent for account
of one or more
of the Lenders hereunder (such payment being herein called the
"REQUIRED
PAYMENT"), which notice shall be effective upon receipt, that it
does not intend
to make the Required Payment to the Administrative Agent, the
Administrative
Agent may assume that the Required Payment has been made and
may, in reliance
upon such assumption (but shall not be required to), make the
amount thereof
available to the intended recipient(s) on such date and, if such
Lender or the
Borrower (as the case may be) has not in fact made the Required
Payment to the
Administrative Agent, the recipient(s) of such payment shall, on
demand, repay
to the Administrative Agent the amount so made available
together with interest
thereon in respect of each day during the period commencing on
the date such
amount was so made available by the Administrative Agent until,
but excluding,
the date the Administrative Agent recovers such amount at a rate
per annum
which, for any Lender as recipient, will be equal to the Federal
Funds Rate, and
for the Borrower as recipient, will be equal to the Base Rate
plus the
Applicable Margin.
Section 4.05 SET-OFF, SHARING OF PAYMENTS, ETC.
(a) The Borrower agrees that, in addition to (and without
limitation of) any right of set-off, bankers' lien or
counterclaim a
Lender may otherwise have, each Lender shall have the right and
be
entitled (after consultation with the Administrative Agent), at
its
option, to offset balances held by it or by any of its
Affiliates for
account of the Borrower or any Subsidiary at any of its offices,
in
Dollars or in any other currency, against any principal of or
interest
on any of such Lender's Loans, or any other amount payable to
such
Lender hereunder, which is not paid when due (regardless of
whether such
balances are then due to the Borrower), in which case it shall
promptly
notify the Borrower and the Administrative Agent thereof,
provided that
such Lender's failure to give such notice shall not affect the
validity
thereof.
(b) If any Lender shall obtain payment of any principal of
or
interest on any Loan made by it to the Borrower under this
Agreement (or
reimbursement as to any Letter of Credit) through the exercise
of any
right of set-off, banker's lien or counterclaim or similar right
or
otherwise, and, as a result of such payment, such Lender shall
have
received a greater percentage of the principal or interest
(or
reimbursement) then due hereunder by the Borrower to such Lender
than
the percentage received by any other Lenders, it shall promptly
(i)
notify the Administrative Agent and each other Lender thereof
and (ii)
purchase from such other Lenders participations in (or, if and
to the
extent specified by such Lender, direct interests in) the Loans
(or
participations in Letters of Credit) made by such other Lenders
(or in
interest due thereon, as the case may be) in such amounts, and
make such
other adjustments from time to time as shall be equitable, to
the end
that all the Lenders shall share the benefit of such excess
payment (net
of any expenses which may be incurred by such Lender in
obtaining or
preserving such excess payment) pro rata in accordance with the
unpaid
principal and/or interest on the Loans held by each of the
Lenders (or
reimbursements of Letters of Credit). To such end all the
Lenders shall
make appropriate
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adjustments among themselves (by the resale of participations
sold or
otherwise) if such payment is rescinded or must otherwise be
restored.
The Borrower agrees that any Lender so purchasing a
participation (or
direct interest) in the Loans made by other Lenders (or in
interest due
thereon, as the case may be) may exercise all rights of
set-off,
banker's lien, counterclaim or similar rights with respect to
such
participation as fully as if such Lender were a direct holder of
Loans
(or Letters of Credit) in the amount of such participation.
Nothing
contained herein shall require any Lender to exercise any such
right or
shall affect the right of any Lender to exercise, and retain
the
benefits of exercising, any such right with respect to any
other
indebtedness or obligation of the Borrower. If under any
applicable
bankruptcy, insolvency or other similar law, any Lender receives
a
secured claim in lieu of a set-off to which this SECTION 4.05
applies,
such Lender shall, to the extent practicable, exercise its
rights in
respect of such secured claim in a manner consistent with the
rights of
the Lenders entitled under this SECTION 4.05 to share the
benefits of
any recovery on such secured claim.
Section 4.06 TAXES.
(a) PAYMENTS FREE AND CLEAR. Any and all payments by the
Borrower hereunder shall be made, in accordance with SECTION
4.01, free
and clear of and without deduction for any and all present or
future
taxes, levies, imposts, deductions, charges or withholdings, and
all
liabilities with respect thereto, excluding, in the case of each
Lender,
the Issuing Bank and the Administrative Agent, taxes imposed on
its
income, and franchise or similar taxes imposed on it, by (i)
any
jurisdiction (or political subdivision thereof) of which the
Administrative Agent, the Issuing Bank or such Lender, as the
case may
be, is a citizen or resident or in which such Lender has an
Applicable
Lending Office, (ii) the jurisdiction (or any political
subdivision
thereof) in which the Administrative Agent, the Issuing Bank or
such
Lender is organized, or (iii) any jurisdiction (or political
subdivision
thereof) in which such Lender, the Issuing Bank or the
Administrative
Agent is presently doing business which taxes are imposed solely
as a
result of doing business in such jurisdiction (all such
non-excluded
taxes, levies, imposts, deductions, charges, withholdings
and
liabilities being hereinafter referred to as "Taxes"). If the
Borrower
shall be required by law to deduct any Taxes from or in respect
of any
sum payable hereunder to the Lenders, the Issuing Bank or
the
Administrative Agent (i) the sum payable shall be increased by
the
amount necessary so that after making all required deductions
(including
deductions applicable to additional sums payable under this
SECTION
4.06) such Lender, the Issuing Bank or the Administrative Agent
(as the
case may be) shall receive an amount equal to the sum it would
have
received had no such deductions been made, (ii) the Borrower
shall make
such deductions and (iii) the Borrower shall pay the full
amount
deducted to the relevant taxing authority or other
Governmental
Authority in accordance with applicable law.
(b) OTHER TAXES. In addition, to the fullest extent permitted
by
applicable law, the Borrower agrees to pay any present or future
stamp
or documentary taxes or any other excise or property taxes,
charges or
similar levies that arise from any payment made hereunder or
from the
execution, delivery or registration of, or otherwise with
respect to,
this Agreement, any Assignment and Assumption or any Security
Instrument
(hereinafter referred to as "OTHER TAXES").
(c) INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWER WILL INDEMNIFY EACH LENDER, THE
ISSUING
BANK AND THE ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF TAXES
AND OTHER
TAXES (INCLUDING, BUT NOT LIMITED TO, ANY TAXES OR OTHER TAXES
IMPOSED
BY ANY GOVERNMENTAL AUTHORITY ON AMOUNTS PAYABLE UNDER THIS
SECTION
4.06) PAID BY SUCH LENDER, THE ISSUING BANK OR THE
ADMINISTRATIVE AGENT
(ON THEIR BEHALF OR ON BEHALF OF ANY LENDER), AS THE CASE MAY
BE, AND
ANY LIABILITY (INCLUDING PENALTIES, INTEREST
30
<PAGE>
AND EXPENSES) ARISING THEREFROM OR WITH RESPECT THERETO, WHETHER
OR NOT
SUCH TAXES OR OTHER TAXES WERE CORRECTLY OR LEGALLY ASSERTED
UNLESS THE
PAYMENT OF SUCH TAXES WAS NOT CORRECTLY OR LEGALLY ASSERTED AND
SUCH
LENDER'S PAYMENT OF SUCH TAXES OR OTHER TAXES WAS THE RESULT OF
ITS
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ANY PAYMENT PURSUANT TO
SUCH
INDEMNIFICATION SHALL BE MADE WITHIN THIRTY (30) DAYS AFTER THE
DATE ANY
LENDER, THE ISSUING BANK OR THE ADMINISTRATIVE AGENT, AS THE
CASE MAY
BE, MAKES WRITTEN DEMAND THEREFOR. IF ANY LENDER, ISSUING BANK
OR THE
ADMINISTRATIVE AGENT RECEIVES A REFUND OR CREDIT IN RESPECT OF
ANY TAXES
OR OTHER TAXES FOR WHICH SUCH LENDER, ISSUING BANK OR THE
ADMINISTRATIVE
AGENT HAS RECEIVED PAYMENT FROM THE BORROWER, IT SHALL PROMPTLY
NOTIFY
THE BORROWER OF SUCH REFUND OR CREDIT AND SHALL, IF NO DEFAULT
HAS
OCCURRED AND IS CONTINUING, WITHIN THIRTY (30) DAYS AFTER
RECEIPT OF A
REQUEST BY THE BORROWER (OR PROMPTLY UPON RECEIPT, IF THE
BORROWER HAS
REQUESTED APPLICATION FOR SUCH REFUND OR CREDIT PURSUANT
HERETO), PAY AN
AMOUNT EQUAL TO SUCH REFUND OR CREDIT TO THE BORROWER WITHOUT
INTEREST
(BUT WITH ANY INTEREST SO REFUNDED OR CREDITED), PROVIDED, THAT
THE
BORROWER, UPON THE REQUEST OF SUCH LENDER, THE ISSUING BANK OR
THE
ADMINISTRATIVE AGENT, AGREES TO RETURN SUCH REFUND OR CREDIT
(PLUS
PENALTIES, INTEREST OR OTHER CHARGES) TO SUCH LENDER OR THE
ADMINISTRATIVE AGENT IN THE EVENT SUCH LENDER OR THE
ADMINISTRATIVE
AGENT IS REQUIRED TO REPAY SUCH REFUND OR CREDIT.
(d) LENDER REPRESENTATIONS.
(i) Each Lender represents that it is either (1) a
banking association or corporation organized under the laws
of
the United States of America or any state thereof or (2) it
is
entitled to complete exemption from United States
withholding
tax imposed on or with respect to any payments, including
fees,
to be made to it pursuant to this Agreement (A) under an
applicable provision of a tax convention to which the United
States of America is a party or (B) because it is acting
through
a branch, agency or office in the United States of America
and
any payment to be received by it hereunder is effectively
connected with a trade or business in the United States of
America. Each Lender that is not a banking association or
corporation organized under the laws of the United States of
America or any state thereof agrees to provide to the
Borrower
and the Administrative Agent on the Closing Date, or on the
date
of its delivery of the Assignment and Assumption pursuant to
which it becomes a Lender, and at such other times as
required
by United States law or as the Borrower or the
Administrative
Agent shall reasonably request, two accurate and complete
original signed copies of either (1) Internal Revenue
Service
Form W-8ECI (or successor form) certifying that all payments
to
be made to it hereunder will be effectively connected to a
United States trade or business (the "FORM W-8ECI
CERTIFICATION") or (2) Internal Revenue Service Form W-8BEN
(or
successor form) certifying that it is entitled to the benefit
of
a provision of a tax convention to which the United States
of
America is a party which completely exempts from United
States
withholding tax all payments to be made to it hereunder (the
"FORM W-8BEN CERTIFICATION"). In addition, each Lender
agrees
that if it previously filed a Form W-8ECI Certification, it
will
deliver to the Borrower and the Administrative Agent a new
Form
W-8ECI Certification prior to the first payment date
occurring
in each of its subsequent taxable years; and if it
previously
filed a Form W-8BEN Certification, it will deliver to the
Borrower and the Administrative Agent a new certification
prior
to the first payment date falling in the third year
following
the previous filing of such certification. Each Lender also
agrees to deliver to the Borrower and the Administrative
Agent
such other or supplemental forms as may at any time be
required
as a result of changes in applicable law or regulation in
order
to confirm or maintain in effect its entitlement to
exemption
from United States withholding tax on any payments
hereunder,
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<PAGE>
provided that the circumstances of such Lender at the
relevant
time and applicable laws permit it to do so. If a Lender
determines, as a result of any change in either (i) a
Governmental Requirement or (ii) its circumstances, that it
is
unable to submit any form or certificate that it is obligated
to
submit pursuant to this SECTION 4.06, or that it is required
to
withdraw or cancel any such form or certificate previously
submitted, it shall promptly notify the Borrower and the
Administrative Agent of such fact. If a Lender is organized
under the laws of a jurisdiction outside the United States
of
America, unless the Borrower and the Administrative Agent
have
received a Form W-8BEN Certification or Form W-8ECI
Certification satisfactory to them indicating that all
payments
to be made to such Lender hereunder are not subject to
United
States withholding tax, the Borrower shall withhold taxes
from
such payments at the applicable statutory rate. Each Lender
agrees to indemnify and hold harmless the Borrower or
Administrative Agent, as applicable, from any United States
taxes, penalties, interest and other expenses, costs and
losses
incurred or payable by (i) the Administrative Agent as a
result
of such Lender's failure to submit any form or certificate
that
it is required to provide pursuant to this SECTION 4.06 or
(ii)
the Borrower or the Administrative Agent as a result of
their
reliance on any such form or certificate which such Lender
has
provided to them pursuant to this SECTION 4.06.
(ii) For any period with respect to which a Lender has
failed to provide the Borrower with the form required
pursuant
to this SECTION 4.06, if any (other than if such failure is
due
to a change in a Governmental Requirement occurring
subsequent
to the date on which a form originally was required to be
provided), such Lender shall not be entitled to
indemnification
under this SECTION 4.06 with respect to taxes imposed by the
United States which taxes would not have been imposed but
for
such failure to provide such forms; provided, however, that if
a
Lender, which is otherwise exempt from or subject to a
reduced
rate of withholding tax, becomes subject to taxes because of
its
failure to deliver a form required hereunder, the Borrower
shall
take such steps as such Lender shall reasonably request to
assist such Lender to recover such taxes.
(iii) Any Lender claiming any additional amounts payable
pursuant to this SECTION 4.06 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file
any
certificate or document requested by the Borrower or the
Administrative Agent or to change the jurisdiction of its
Applicable Lending Office or to contest any tax imposed if
the
making of such a filing or change or contesting such tax
would
avoid the need for or reduce the amount of any such
additional
amounts that may thereafter accrue and would not, in the
sole
determination of such Lender, be otherwise disadvantageous
to
such Lender.
ARTICLE V
CAPITAL ADEQUACY
Section 5.01 ADDITIONAL COSTS.
(a) LIBOR REGULATIONS, ETC. The Borrower shall pay directly
to
each Lender from time to time such amounts as such Lender may
determine
to be necessary to compensate such Lender for any costs which
it
determines are attributable to its making or maintaining of any
LIBOR
Loans or issuing or participating in Letters of Credit hereunder
or its
obligation to make any LIBOR Loans or issue or participate in
any
Letters of Credit hereunder, or any reduction in any amount
receivable
by such Lender hereunder in respect of any of such LIBOR Loans,
Letters
of Credit (such increases in costs and reductions in amounts
receivable
being herein called
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<PAGE>
"ADDITIONAL COSTS"), resulting from any Regulatory Change which:
(i)
changes the basis of taxation of any amounts payable to such
Lender
under this Agreement or any Note in respect of any of such LIBOR
Loans
or Letters of Credit (other than taxes imposed on the overall
net income
of such Lender or of its Applicable Lending Office for any of
such LIBOR
Loans by the jurisdiction in which such Lender has its principal
office
or Applicable Lending Office); or (ii) imposes or modifies any
reserve,
special deposit, minimum capital, capital ratio or similar
requirements
relating to any extensions of credit or other assets of, or any
deposits
with or other liabilities of such Lender, or the Commitment or
Loans of
such Lender or the London interbank market; or (iii) imposes any
other
condition affecting this Agreement or any Note (or any of
such
extensions of credit or liabilities) or such Lender's Commitment
or
Loans. Each Lender will notify the Administrative Agent and the
Borrower
of any event occurring after the Closing Date which will entitle
such
Lender to compensation pursuant to this SECTION 5.01(a) as
promptly as
practicable after it obtains knowledge thereof and determines to
request
such compensation, and will designate a different Applicable
Lending
Office for the Loans of such Lender affected by such event if
such
designation will avoid the need for, or reduce the amount of,
such
compensation and will not, in the sole opinion of such Lender,
be
disadvantageous to such Lender, provided that such Lender shall
have no
obligation to so designate an Applicable Lending Office located
in the
United States. If any Lender requests compensation from the
Borrower
under this SECTION 5.01(a), the Borrower may, by notice to such
Lender,
suspend the obligation of such Lender to make additional Loans
of the
Type with respect to which such compensation is requested until
the
Regulatory Change giving rise to such request ceases to be in
effect (in
which case the provisions of SECTION 5.04 shall be
applicable).
(b) REGULATORY CHANGE. Without limiting the effect of the
provisions of SECTION 5.01(a), in the event that at any time (by
reason
of any Regulatory Change or any other circumstances arising
after the
Closing Date affecting (i) any Lender, (ii) the London interbank
market
or (iii) such Lender's position in such market), the Adjusted
LIBOR, as
determined in good faith by such Lender, will not adequately and
fairly
reflect the cost to such Lender of funding its LIBOR Loans,
then, if
such Lender so elects, by notice to the Borrower and the
Administrative
Agent, the obligation of such Lender to make additional LIBOR
Loans
shall be suspended until such Regulatory Change or other
circumstances
ceases to be in effect (in which case the provisions of SECTION
5.04
shall be applicable).
(c) CAPITAL ADEQUACY. Without limiting the effect of the
foregoing provisions of this SECTION 5.01 (but without
duplication), the
Borrower shall pay directly to any Lender from time to time on
request
such amounts as such Lender may reasonably determine to be
necessary to
compensate such Lender or its parent or holding company for any
costs
which it determines are attributable to the maintenance by such
Lender
or its parent or holding company (or any Applicable Lending
Office),
pursuant to any Governmental Requirement following any
Regulatory
Change, of capital in respect of its Commitment, its Note, or
its Loans
or any interest held by it in any Letter of Credit, such
compensation to
include, without limitation, an amount equal to any reduction of
the
rate of return on assets or equity of such Lender or its parent
or
holding company (or any Applicable Lending Office) to a level
below that
which such Lender or its parent or holding company (or any
Applicable
Lending Office) could have achieved but for such
Governmental
Requirement. Such Lender will notify the Borrower that it is
entitled to
compensation pursuant to this SECTION 5.01(c) as promptly as
practicable
after it determines to request such compensation.
(d) COMPENSATION PROCEDURE. Any Lender notifying the Borrower
of
the incurrence of Additional Costs under this SECTION 5.01 shall
in such
notice to the Borrower and the Administrative Agent set forth
in
reasonable detail the basis and amount of its request for
33
<PAGE>
compensation. Determinations and allocations by each Lender for
purposes
of this SECTION 5.01 of the effect of any Regulatory Change
pursuant to
SECTION 5.01(a) or (b), or of the effect of capital maintained
pursuant
to SECTION 5.01(c), on its costs or rate of return of
maintaining Loans
or its obligation to make Loans or issue Letters of Credit, or
on
amounts receivable by it in respect of Loans or Letters of
Credit, and
of the amounts required to compensate such Lender under this
SECTION
5.01, shall be conclusive and binding for all purposes, provided
that
such determinations and allocations are made on a reasonable
basis. Any
request for additional compensation under this SECTION 5.01
shall be
paid by the Borrower within thirty (30) days of the receipt by
the
Borrower of the notice described in this SECTION 5.01(d).
Section 5.02 LIMITATION ON LIBOR LOANS. Anything herein to
the
contrary notwithstanding, if, on or prior to the determination
of any Adjusted
LIBOR for any Interest Period:
(a) the Administrative Agent determines (which determination
shall be conclusive, absent manifest error) that quotations of
interest
rates for the relevant deposits referred to in the definition
of
"Adjusted LIBOR" in SECTION 1.02 are not being provided in the
relevant
amounts or for the relevant maturities for purposes of
determining rates
of interest for LIBOR Loans as provided herein; or
(b) the Administrative Agent determines (which determination
shall be conclusive, absent manifest error) that the relevant
rates of
interest referred to in the definition of "Adjusted LIBOR" in
SECTION
1.02 upon the basis of which the rate of interest for LIBOR
Loans for
such Interest Period is to be determined are not sufficient
to
adequately cover the cost to the Lenders of making or
maintaining LIBOR
Loans; then the Administrative Agent shall give the Borrower
prompt
notice thereof, and so long as such condition remains in effect,
the
Lenders shall be under no obligation to make additional LIBOR
Loans.
Section 5.03 ILLEGALITY. Notwithstanding any other provision of
this
Agreement, in the event that it becomes unlawful for any Lender
or its
Applicable Lending Office to honor its obligation to make or
maintain LIBOR
Loans hereunder, then such Lender shall promptly notify the
Borrower thereof and
such Lender's obligation to make LIBOR Loans shall be suspended
until such time
as such Lender may again make and maintain LIBOR Loans (in which
case the
provisions of SECTION 5.04 shall be applicable).
Section 5.04 BASE RATE LOANS PURSUANT TO SECTIONS 5.01, 5.02 AND
5.03.
If the obligation of any Lender to make LIBOR Loans shall be
suspended pursuant
to SECTIONS 5.01, 5.02 or 5.03 ("AFFECTED LOANS"), all Affected
Loans which
would otherwise be made by such Lender shall be made instead as
Base Rate Loans
(and, if an event referred to in SECTION 5.01(b) or SECTION 5.03
has occurred
and such Lender so requests by notice to the Borrower, all
Affected Loans of
such Lender then outstanding shall be automatically converted
into Base Rate
Loans on the date specified by such Lender in such notice) and,
to the extent
that Affected Loans are so made as (or converted into) Base Rate
Loans, all
payments of principal which would otherwise be applied to such
Lender's Affected
Loans shall be applied instead to its Base Rate Loans.
Section 5.05 COMPENSATION. The Borrower shall pay to each
Lender
within thirty (30) days of receipt of written request of such
Lender (which
request shall set forth, in reasonable detail, the basis for
requesting such
amounts and which shall be conclusive and binding for all
purposes provided that
such determinations are made on a reasonable basis), such amount
or amounts as
shall compensate it for any loss, cost, expense or liability
which such Lender
determines are attributable to:
(a) any payment, prepayment or conversion of a LIBOR Loan
properly made by such Lender or the Borrower for any reason
(including,
without limitation, the acceleration of the
34
<PAGE>
Loans pursuant to SECTION 10.02) on a date other than the last
day of
the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including
but
not limited to, the failure of any of the conditions precedent
specified
in ARTICLE VI to be satisfied) to borrow, continue or convert a
LIBOR
Loan from such Lender on the date for such borrowing,
continuation or
conversion specified in the relevant notice given pursuant to
SECTION
2.02(c).
Without limiting the effect of the preceding sentence, such
compensation shall
include an amount equal to the excess, if any, of (i) the amount
of interest
which would have accrued on the principal amount so paid,
prepaid or converted
or not borrowed for the period from the date of such payment,
prepayment or
conversion or failure to borrow to the last day of the Interest
Period for such
Loan (or, in the case of a failure to borrow, the Interest
Period for such Loan
which would have commenced on the date specified for such
borrowing) at the
applicable rate of interest for such Loan provided for herein
over (ii) the
interest component of the amount such Lender would have bid in
the London
interbank market for Dollar deposits of leading banks in amounts
comparable to
such principal amount and with maturities comparable to such
period (as
reasonably determined by such Lender).
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.01 INITIAL FUNDING. The obligation of the Lenders to
make
the Initial Funding is subject to the receipt by the
Administrative Agent and
the Lenders of all fees then due and payable pursuant to SECTION
2.04 on or
before the Closing Date and the receipt by the Administrative
Agent of the
following documents and satisfaction of the other conditions
provided in this
SECTION 6.01, each of which shall be satisfactory to the Co-Lead
Arrangers in
form and substance (other than each item, if any, listed on
SCHEDULE 6.01, which
items are hereby permitted to be delivered after the Closing
Date but not later
than the date for delivery of each such item specified on
SCHEDULE 6.01, or such
later date as the Administrative Agent may agree):
(a) A certificate of the Secretary or an Assistant Secretary
of
the General Partner setting forth (i) resolutions of its board
of
managers with respect to the authorization of the General
Partner to
execute and deliver on behalf of itself and each Obligor the
Loan
Documents to which each is a party and to enter into the
transactions
contemplated in those documents, (ii) the officers of the
General
Partner who are authorized to sign the Loan Documents to which
each
Obligor is a party and who will, until replaced by another
officer or
officers duly authorized for that purpose, act as its
representative for
the purposes of signing documents and giving notices and
other
communications in connection with this Agreement and the
transactions
contemplated hereby, (iii) specimen signatures of such
authorized
officers, and (iv) the agreement of limited partnership for
Borrower,
APL Operating and Elk City, as amended, certified as being true
and
complete and (v) the articles of organization of the General
Partner,
APL New York, APL Ohio, APL Pennsylvania, APL Mid-Continent and
Elk City
GP, as amended, certified as being true and complete. The
Administrative
Agent and the Lenders may conclusively rely on such certificate
until
the Administrative Agent receives notice in writing from the
Borrower to
the contrary.
(b) Certificates of the appropriate state agencies with
respect
to the existence, qualification and good standing of the
Obligors.
(c) The Notes, duly completed and executed for each Lender.
35
<PAGE>
(d) The Security Instruments, duly completed and executed in
sufficient number of counterparts for recording, if necessary,
including
delivery of any requisite mortgage tax affidavit and payment
for
applicable mortgage tax, if any due; all original certificates
of
partnership units or members' equity, blank stock powers,
and
Intercompany Notes duly endorsed as required under such
Security
Instruments.
(e) Receipt of statement of Obligors setting forth pro forma
Consolidated EBITDA of at least Forty-Six Million Dollars
($46,000,000),
in a form substantially similar to SCHEDULE 6.01(e).
(f) An opinion of counsel to the Obligors (including local
counsel) acceptable to the Co-Lead Arrangers, with respect to
the
existence of the Obligors, due authorization and execution of
the Loan
Documents and the Elk City Acquisition Documents, enforceability
of the
Loan Documents and the Elk City Acquisition Documents, including
without
limitation the Security Instruments, under the laws of the
states
wherein the Pipeline Properties are located, and other matters
incident
to the transactions herein contemplated as the Co-Lead Arrangers
may
reasonably request, each in form and substance satisfactory to
the
Co-Lead Arrangers.
(g) A certificate of insurance coverage of the Obligors
evidencing that the Obligors are carrying insurance in
accordance with
SECTION 7.20 and SECTION 8.03(b).
(h) Title information as the Co-Lead Arrangers may require
setting forth the status of title to the Properties (including,
without
limitation, the Pipeline Properties (including title to the
Pipelines
acquired in connection with the Elk City Acquisition, which
shall not
reflect more than Ten Million Dollars ($10,000,000) in "Title
Defects"
(as defined in the Elk City Purchase and Sale Agreement) as
identified
by Borrower, for which Borrower shall receive a reduction in
the
purchase price or a direct payment from or cure of such Title
Defects by
the Elk City Seller (in excess of a Two Hundred Fifty Thousand
Dollar
($250,000) threshold amount under the Elk City Purchase and
Sale
Agreement))) acceptable to the Co-Lead Arrangers, including
delivery of
mortgagee's policies of title insurance for such Properties as
the
Co-Lead Arrangers shall request, to the extent any Obligor
obtains an
owner's title policy thereon.
(i) Appropriate UCC search certificates and other evidence
satisfactory to the Co-Lead Arrangers with respect to the
Obligors'
Properties reflecting no prior Liens, other than Excepted
Liens.
(j) Environment
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