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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended DECEMBER 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from ___________ to ___________
Commission File Number: 1-10934
LAKEHEAD PIPE LINE PARTNERS, L.P.
(Exact name of Registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of
incorporation or organization)
39-1715850
(I.R.S. Employer
Identification No.)
LAKE SUPERIOR PLACE
21 WEST SUPERIOR STREET
DULUTH, MINNESOTA 55802-2067
(Address of principal executive offices and zip code)
(218) 725-0100
(Registrant's telephone number, including area code)
-------------------------
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
------------------- -----------------------------------------
<C> <C>
Preference Units New York Stock Exchange
</TABLE>
Securities registered pursuant to Section 12(g) of the Act: NONE
-------------------------
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No __
As of February 3, 1997, the aggregate market value of the Registrant's
Preference units held by non affiliates of the Registrant was $763,420,000 based
on the reported closing sale price of such units on the New York Stock Exchange
on that date.
As of February 3, 1997, there were 20,090,000 of the Registrant's
Preference units outstanding.
-------------------------
DOCUMENTS INCORPORATED BY REFERENCE: NONE
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
PART I
ITEMS 1 & 2. Business and Properties..................................... 1
ITEM 3. Legal Proceedings........................................... 14
ITEM 4. Submission of Matters to a Vote of Security Holders......... 15
PART II
ITEM 5. Market for Registrant's Common Equity and Related
Stockholder Matters......................................... 15
ITEM 6. Selected Financial Data..................................... 16
ITEM 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................... 17
ITEM 8. Financial Statements and Supplementary Data................. 20
ITEM 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure.................................... 20
PART III
ITEM 10. Directors and Executive Officers of the Registrant.......... 21
ITEM 11. Executive Compensation...................................... 22
ITEM 12. Security Ownership of Certain Beneficial Owners and
Management.................................................. 22
ITEM 13. Certain Relationships and Related Transactions.............. 23
PART IV
ITEM 14. Exhibits, Financial Statement Schedules and Reports on Form
8-K......................................................... 24
SIGNATURES................................................................ 26
INDEX TO FINANCIAL STATEMENTS, SUPPLEMENTARY INFORMATION AND FINANCIAL
STATEMENT SCHEDULES..................................................... F-1
</TABLE>
When used in this document, the words "anticipate," "believe," "expect,"
"estimate," and similar expressions are intended to identify forward-looking
statements. Such statements are subject to certain risks, uncertainties and
assumptions. Should one or more of these risks or uncertainties materialize, or
should underlying assumptions prove incorrect, actual results may vary
materially from those anticipated, believed, expected or estimated. For
additional discussion of such risks, uncertainties and assumptions, see "Items 1
& 2, Business and Properties -- Business Risks" included elsewhere in this
report.
<PAGE> 3
PART I
ITEMS 1 & 2. BUSINESS AND PROPERTIES
GENERAL
Lakehead Pipe Line Partners, L.P. is a publicly traded Delaware limited
partnership ("Registrant" or "Partnership"), which owns a 99% limited partner
interest in Lakehead Pipe Line Company, Limited Partnership ("Operating
Partnership"), also a Delaware limited partnership. Unless the context otherwise
requires, references herein to the Partnership include the Registrant and the
Operating Partnership.
The Partnership was formed in 1991 to acquire, own and operate the crude
oil and natural gas liquids pipeline business of Lakehead Pipe Line Company,
Inc. (the "General Partner"), a wholly-owned subsidiary of Interprovincial Pipe
Line Inc. ("Interprovincial"). Interprovincial is a Canadian company owned by
IPL Energy Inc. ("IPL Energy") of Calgary, Alberta, Canada. The General Partner
has a 16% limited partner (in the form of 3,912,750 Common units) and 1% general
partner interest in the Registrant, as well as a 1% general partner interest in
the Operating Partnership (an effective 18% combined interest in the
Partnership). The remaining 82% limited partner interest in the Partnership is
represented by 20,090,000 publicly traded Preference units.
Interprovincial and the Partnership are engaged in the transportation of
crude oil and other liquid hydrocarbons through a common carrier pipeline system
("System"). The System, which is the primary transporter of crude oil from
Canada to the United States and is the only pipeline that transports crude oil
from western Canada to eastern Canada, serves all the major refining centers in
the Great Lakes region of the United States, as well as the province of Ontario,
Canada. The System consists of the IPL and IPL(NW) Systems in Canada and the
Lakehead System, which is owned by the Partnership, in the United States.
The Lakehead System traverses approximately 1,750 miles from the Canadian
border near Neche, North Dakota, to the Canadian border near Marysville,
Michigan. The Lakehead System consists of three separate lines extending from
the Canadian border near Neche to Superior, Wisconsin, and a line from the
Canadian border near Neche to Clearbrook, Minnesota. At Superior, the pipeline
continues as two separate lines, one traversing through the upper Great Lakes
region and the other through the lower Great Lakes region of the United States,
with both lines re-entering Canada at a point near Marysville. The Lakehead
System also includes a lateral line from the Canadian border near Niagara Falls,
Ontario to the Buffalo, New York area.
The IPL System, which is owned and operated by Interprovincial, extends
approximately 1,200 miles from Edmonton, Alberta, across the Canadian Prairies
to the U.S. border near Neche, and continues from the U.S. border near
Marysville, to Toronto, Ontario, and Montreal, Quebec, with lateral lines to
Nanticoke, Ontario, and Niagara Falls.
The IPL(NW) System, which is owned and operated by Interprovincial Pipe
Line (NW) Ltd., a wholly owned subsidiary of IPL Energy, extends approximately
540 miles between Norman Wells, Northwest Territories and Zama, Alberta.
PROPERTIES
The Lakehead System consists of approximately 2,600 miles of pipe with
diameters ranging from 12 inches to 48 inches, 57 main line pump station
locations with a total of approximately 551,000 installed horsepower and 45
tanks with an aggregate capacity of approximately 9 million barrels. The volume
of liquid hydrocarbons in the Lakehead System that is required at all times for
operation amounts to approximately 12 million barrels, all of which is owned by
the shippers on the Lakehead System.
The Lakehead System is comprised of a number of separate segments as
follows:
(i) (a) the portion of Line 13 that extends from the Canadian border
near Neche to Clearbrook consisting of 18 inch pipe;
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(b) the portions of Lines 1, 2, and 3 that extend from the Canadian
border near Neche to Superior consisting of 20 (18 inch from Clearbrook
to Superior), 26 and 34 inch pipe, respectively; Line 3 is looped with
approximately 120 miles of 48 inch pipe;
(ii) Line 5, a 30 inch line from Superior through the upper Great
Lakes region via the upper peninsula of Michigan and across the Straits of
Mackinac to the Canadian border near Marysville;
(iii) the portion of Line 6 that is a 34 inch line from Superior to
the Chicago area;
(iv) the portion of Line 6 that is a 30 inch line extending from the
Chicago area to the Canadian border near Marysville; and
(v) the portion of Line 10 that is a lateral line from the Canadian
border near Niagara Falls to the Buffalo area consisting of 12 inch pipe,
which is looped with a 4 mile section of 20 inch pipe.
The Lakehead System regularly transports up to 35 different types of liquid
hydrocarbons including light, medium and heavy crude oil (including bitumen),
condensate, synthetic crudes and natural gas liquids ("NGL").
Estimated capacities of the various segments of the Lakehead System for
1997 are as follows:
<TABLE>
<CAPTION>
DESIGN ANNUAL
LINE SEGMENT CAPACITY CAPACITY
------------ -------- --------
(THOUSANDS OF
BARRELS PER DAY)
<S> <C> <C>
Canadian border to Clearbrook............................... 1,729 1,452
Clearbrook to Superior...................................... 1,512 1,218
Superior to Canadian border near Marysville (through the
upper Great Lakes region)................................. 566 509
Superior to Chicago area.................................... 782 704
Chicago area to Canadian border near Marysville............. 409 368
Canadian border near Niagara Falls to the Buffalo area...... 66 59
</TABLE>
Design capacity is the absolute theoretical system capacity and assumes
that all required horsepower is fully operational at all times. Annual capacity,
which takes into account receipt and delivery patterns and ongoing pipeline
maintenance, reflects achievable rates over long periods of time.
The Lakehead System has been constructed and is maintained in accordance
with applicable federal, state and local laws and regulations, standards
prescribed by the American Petroleum Institute and accepted industry practice.
To prolong the useful life of the Lakehead System, pipeline crews perform
scheduled maintenance and make repairs when necessary. The Partnership attempts
to control corrosion of the pipeline through use of pipe coatings and cathodic
protection systems. These preventive measures are supported by internal
inspections using electronic instruments. On a bi-weekly basis, the entire right
of way is inspected from the air. Trained and skilled operators use computerized
monitoring systems to identify pressure drops that might indicate potential
disruptions in flow, and operate remote controlled valves and pumps that allow
the Lakehead System to be shut down quickly if required.
The Partnership continued its integrity program of periodic internal
inspections of the Lakehead System during 1996 as inspections were conducted on
selected sections of Line 3 and all of Line 5. Additional internal inspections
will continue in 1997.
TITLE TO PROPERTIES
The Partnership conducts business and owns properties located in seven
states. The Lakehead System is, in general, located on land owned by others and
is operated under perpetual easements or rights of way granted by land owners,
public authorities, railways or public utilities. In certain of the states
through which the pipeline passes, the Partnership has rights of condemnation.
These rights have been exercised from time to time.
The pumping stations, tanks, terminals and certain other facilities of the
Lakehead System are located on land that is owned by the Partnership, except for
five pumping stations that are situated on land owned by
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others and operated under easements or permits. Substantially all of the
Lakehead System assets are subject to a first mortgage securing indebtedness of
the Operating Partnership.
BUSINESS RISKS
The Lakehead System is dependent upon the level of supply of crude oil and
other liquid hydrocarbons from western Canada. For a discussion of the most
recent report by the National Energy Board of Canada ("NEB") relating to
long-term trends in the supply of crude oil produced in western Canada, see "--
Supply and Demand Projections for Western Canadian Crude Oil". If a decline in
western Canadian crude oil does occur, the Partnership expects that throughput
on the Lakehead System will also decline.
The Partnership's business depends in part on the level of demand for crude
oil and natural gas liquids in the geographic areas in which deliveries are made
by the Lakehead System and the ability and willingness of shippers having access
to the Lakehead System to supply such demand by deliveries through the Lakehead
System. The Partnership cannot predict the impact of future economic conditions,
fuel conservation measures, alternative fuel requirements, governmental
regulation or technological advances in fuel economy and energy generation
devices, all of which could reduce the demand for crude oil and other liquid
hydrocarbons in the areas in which deliveries are made by the Lakehead System.
For a discussion of the most recent report by the NEB relating to long-term
trends in the demand for crude oil produced in western Canada, see "-- Supply
and Demand Projections for Western Canadian Crude Oil".
The Lakehead System is dependent upon the utilization of the IPL System by
producers of western Canadian crude oil to reach markets in the United States
and eastern Canada. The diversion of western Canadian crude oil away from the
IPL System, whether by virtue of increased demand by western Canadian refiners
or the shipment of crude oil by other pipelines, would be likely to have a
direct impact on the volumes transported by the Lakehead System. The Lakehead
System encounters competition in serving shippers to the extent that shippers
have alternative opportunities for transporting liquid hydrocarbons from their
sources to customers. In addition, the Lakehead System is affected by the
conditions in the markets for liquid hydrocarbons in the areas to which the
Lakehead System makes deliveries. For a discussion of competition, see "--
Competition". In addition, reduced throughput on the IPL System as a result of
testing, line repair, reduced operating pressures or other causes could result
in reduced throughput on the Lakehead System.
The operations of the Partnership are subject to federal and state laws and
regulations relating to environmental protection and federal and state laws and
regulations relating to operational safety. Although the General Partner
believes that the operations of the Lakehead System are in general compliance
with applicable environmental and safety regulations, risks of substantial costs
and liabilities are inherent in pipeline operations, and there can be no
assurance that such costs and liabilities will not be incurred. Moreover, it is
possible that other developments, such as increasingly strict environmental and
safety laws, regulations and enforcement policies thereunder, and claims for
damages to property or persons resulting from the Partnership's operations,
could result in substantial costs and liabilities to the Partnership. For a
discussion on environmental and safety regulation, see "-- Environmental and
Safety Regulation".
The interstate common carrier pipeline operations of the Partnership are
subject to rate regulation by the Federal Energy Regulatory Commission ("FERC").
For a discussion of FERC regulation and Partnership tariff rates, see "--
Regulation" and "-- Tariffs".
REGULATION
FERC Regulation
The interstate common carrier pipeline operations of the Partnership are
subject to rate regulation by the FERC under the Interstate Commerce Act. The
Interstate Commerce Act requires, among other things, that petroleum products
and crude oil pipeline rates be just, reasonable and nondiscriminatory, and
permits challenges to new, changed and existing rates through either a "protest"
or "complaint". At the FERC, a protest normally applies only to a proposed
change in a pipeline's rates or practices and subjects the pipeline to a
forward-looking investigation and possible refund obligation if the commission
chooses to suspend the
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proposed change. A complaint, by comparison, can apply either to an existing
rate or practice or a proposed change and subjects the pipeline, in certain
circumstances, to possible retroactive liability for past rates or practices
found to be unlawful.
The Energy Policy Act of 1992 required the FERC to issue rules establishing
a simplified and generally applicable ratemaking methodology for oil pipelines
and to streamline procedures in oil pipeline proceedings. In response, the FERC
issued Orders No. 561 and No. 561-A which prescribe an indexing methodology for
setting rate ceilings beginning in 1995. Rates in effect at December 31, 1994,
if not subject to protest or complaint, became the base rates for application of
the indexing mechanism. The index selected for use is the Producer Price Index
for Finished Goods minus 1% ("PPIFG-1"). On an ongoing basis, rate ceiling
levels are adjusted each July 1, and the PPIFG-1 for use on July 1, 1996 was
approximately 0.9%. Indexed rates are subject both to protests and to
complaints, but in either case the FERC's existing regulations specify that the
party challenging a rate must show reasonable grounds for asserting that the
amount of any rate increase resulting from application of the index is so
substantially in excess of the pipeline's increase in costs as to be unjust and
unreasonable (or that the amount of any rate decrease is so substantially less
than the actual cost decrease incurred that the rate is unjust and
unreasonable).
Prior to the indexing methodology, and since 1985, the propriety of crude
oil pipeline rates was generally assessed on the basis of a trended original
cost methodology (FERC Opinion No. 154-B/C). In general, under this cost-based
methodology, crude oil pipeline rates were permitted to generate operating
revenues, based on projected volumes, not greater than the total of the
following components: (i) operating expenses, (ii) depreciation and
amortization, (iii) federal and state income taxes and (iv) an overall allowed
rate of return on the pipeline's rate base.
In Orders No. 561 and No. 561-A, the FERC stated that, as a general rule,
pipelines must utilize the indexing methodology to change rates. The FERC
indicated, however, that it was retaining cost-based ratemaking, market-based
rates and settlements as alternatives to the indexing approach. A pipeline can
follow a cost-based approach when it can demonstrate that there is a substantial
divergence between the actual costs experienced by the carrier and the rates
resulting from application of the index such that rates at the ceiling level
would preclude the carrier from being able to charge a just and reasonable rate.
In addition, a pipeline can seek to charge market-based rates if it can
establish that it lacks significant market power, and a pipeline can establish
rates pursuant to a settlement if agreed upon by all current shippers. Initial
rates for new services can be established through a cost-based filing or through
agreement between the pipeline and at least one shipper not affiliated with the
pipeline.
In May 1996, the United States Court of Appeals for the District of
Columbia Circuit denied the petitions for review of FERC Orders No. 561 and No.
561-A filed by the Association of Oil Pipe Lines, the Canadian Association of
Petroleum Producers and others. No further legal review of these Orders is
pending.
Other Regulation
The Operating Partnership and the portion of the Lakehead System in
Michigan is, or may be, subject to the jurisdiction of the Michigan Public
Service Commission with respect to the construction and operation of the
pipeline and the issuance of the Partnership's securities in that state. The
Michigan Public Service Commission does not regulate the tariffs charged for
transportation on the Lakehead System.
International border crossing permits received from the U.S. Government
authorize the Partnership to make and maintain its pipeline crossings of the
international boundary between the United States and Canada. These permits
provide that they may be terminated or amended at the will of the U.S.
Government and that the pipelines they govern may be inspected by or subject to
orders issued by federal or state government agencies.
The governments of the United States and Canada have, by treaty, agreed to
ensure nondiscriminatory treatment with respect to the passage of oil and gas
through the pipelines of one country across the territory of the other.
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TARIFFS
Rate Cases
In October 1996, the FERC approved an agreement (the "Settlement
Agreement") between the Partnership and customer representatives on all
outstanding contested tariff rates. The Settlement Agreement provided for a
tariff rate reduction of approximately 6% and total rate refunds and interest of
$120.0 million through the effective date of October 1, 1996. Refunds of $41.8
million were made in the fourth quarter of 1996, with the remaining balance
($79.3 million at December 31, 1996) to be paid through a 10% reduction on
future rates. This reduction will continue until all refunds have been made,
which is expected to take approximately three years. Interest will continue to
accrue on the unpaid balance. The Settlement Agreement also provides that the
agreed tariff rates will be subject to indexing as prescribed by FERC regulation
and that the Partnership's customer representatives will not challenge any rates
within the indexed ceiling for a period of five years. Furthermore, the
Settlement Agreement provides for the terms of an incremental tariff rate
surcharge to recover the cost of, and allow a rate of return on, the
Partnership's future new line from Superior to Chicago (for additional details
about this new line, please read the information under the caption "Capital
Expenditures"). The rate of return on this new line will be based on the
utilization level of the additional capacity constructed. As per the Settlement
Agreement, higher utilization will result in a greater rate of return, subject
to a minimum and maximum rate of return of 7.5% and 15%, respectively.
Subsequent to the Settlement Agreement, both the Partnership and customer
representatives withdrew appeals filed with the U.S. Court of Appeals for the
District of Columbia Circuit in response to the June 1995 FERC decision (Opinion
No. 397) on the Partnership's tariff rates as well as the related May 1996 FERC
Opinion No. 397-A. In Opinion No. 397 the FERC decided: (1) as provided in FERC
Opinion No. 154-B, the Partnership's use of the trended original cost
methodology is appropriate, and the Partnership is entitled to a starting, or
transition, rate base; (2) the Partnership is not entitled to recover in cost of
service a tax allowance with respect to income attributable to individual
limited partners; and (3) the Partnership's rates in effect on October 24, 1991
were deemed by the FERC to have been subject to a complaint and are therefore
not deemed "just and reasonable" by the Energy Policy Act. However, for the
purposes of making refunds under Opinion No. 397, the Partnership is obligated
to do so only down to the level of its rates in effect immediately preceding a
May 1992 increase. In Opinion No. 397-A, which denied rehearing and clarified
Opinion No. 397, the FERC further limited the income tax allowance by denying
entitlement to any income tax allowance in connection with "curative
allocations" which cause the General Partner's proportion of taxable income to
be greater than its proportion of ownership in the Partnership.
Current Tariffs
Under published tariffs, the rates for transportation through the Lakehead
System of light crude oil from the Canadian border near Neche to principal
delivery points at December 31, 1996, were as follows:
<TABLE>
<CAPTION>
RATE
PER BARREL
----------
<S> <C>
Clearbrook, Minnesota....................................... $0.144
Superior, Wisconsin......................................... $0.271
Chicago, Illinois area...................................... $0.532
Canadian border near Marysville, Michigan................... $0.607
Buffalo, New York area...................................... $0.648
</TABLE>
The rates at December 31, 1996 for medium and heavy crude oils were higher,
while those for NGL's were lower, than the rates set forth in the above table to
compensate for differences in costs for shipping different grades of liquid
hydrocarbons. In addition, effective November 1, 1996, the Partnership's
published rates are subject to a 10% reduction, which will continue until all
rate refunds and interest resulting from the Settlement Agreement have been
paid.
The Partnership finalized an agreement with Mustang Pipe Line Partners in
October 1996 to provide for a future joint tariff covering shipments of western
Canadian crude oil to the Patoka, Illinois market area south
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of Chicago. The shipments will travel on the Lakehead System to Chicago, and on
to Patoka through the Mustang pipeline system. The joint tariff agreement will
provide for lower transportation costs to shippers desiring access to the Patoka
market, an incentive which the General Partner believes complements the
Partnership's future new line from Superior to Chicago. For additional details
about this new line, please read the information under the caption "-- Capital
Expenditures". Mustang Pipe Line Partners is a Delaware general partnership
owned by Mobil Illinois Pipe Line Company and a wholly-owned subsidiary of IPL
Energy (U.S.A.) Inc. ("IPL Energy USA"), an affiliated Delaware corporation
owned by IPL Energy.
DELIVERIES FROM THE LAKEHEAD SYSTEM
Deliveries from the Lakehead System are made in the Great Lakes region of
the United States and to the province of Ontario, principally to refineries,
either directly or through connecting pipelines of other companies. Major
refining centers within these regions are located near Sarnia, Nanticoke and
Toronto, Ontario; the Minneapolis-St. Paul area of Minnesota; Superior,
Wisconsin; the Chicago area of Illinois and Indiana; the pipeline hub at Patoka,
Illinois; and the Detroit, Michigan; Toledo, Ohio; and Buffalo, New York areas.
Crude oils and NGLs transported by the Lakehead System are feedstock for
refineries and petrochemical plants.
The U.S. Government segregates the United States into five districts,
Petroleum Administration for Defense Districts ("PADD"), for purposes of its
strategic planning to ensure crude oil supply to key refining areas in the event
of a national emergency. The oil industry utilizes these districts in reporting
statistics regarding oil supply and demand. The Lakehead System services the
northern tier of PADD 2, and governmental publications project that crude oil
demand in this area will remain relatively constant. In addition, such
publications project the supply of crude oil from producing areas in the U.S.
Rocky Mountains and Midwest that currently serve the entire PADD 2 market to
decline in the near term as reserves are depleted, resulting in a need for
additional supplies of crude oil to replace the continuing demand. As a result
of these factors, the General Partner believes that the Lakehead System will be
able to maintain its current level of deliveries into PADD 2. Express Pipeline
Ltd. ("Express Pipeline"), a joint venture between Alberta Energy Company, Ltd.
and TransCanada PipeLines Limited, has constructed a 170,000 barrel per day
pipeline which will compete for this market. For additional details on Express
Pipeline, see "-- Competition".
The following table sets forth Lakehead System deliveries and barrel miles
for each of the years in the five-year period ended December 31, 1996.
<TABLE>
<CAPTION>
DELIVERIES
-------------------------------------
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
(THOUSANDS OF BARRELS PER DAY)
<S> <C> <C> <C> <C> <C>
UNITED STATES
Light crude oil.......................... 309 345 335 332 333
Medium and heavy crude oil............... 569 513 452 421 401
NGL...................................... 23 18 8 4 3
----- ----- ----- ----- -----
901 876 795 757 737
----- ----- ----- ----- -----
EASTERN CANADA
Light crude oil.......................... 348 332 321 333 335
Medium and heavy crude oil............... 102 96 108 97 83
NGL...................................... 100 105 102 101 96
----- ----- ----- ----- -----
550 533 531 531 514
----- ----- ----- ----- -----
1,451 1,409 1,326 1,288 1,251
===== ===== ===== ===== =====
BARREL MILES (billions).................... 384 385 366 358 353
===== ===== ===== ===== =====
</TABLE>
Deliveries on the Lakehead System in 1996 averaged approximately 1,451,000
barrels per day, a slight increase over 1995. Deliveries to U.S. destinations
have increased over the past five years and made up 62% of
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the total volumes shipped on the Lakehead System in 1996. Deliveries to eastern
Canada have remained relatively stable since 1992.
SOURCES OF SHIPMENTS
Substantially all of the shipments delivered through the Lakehead System
originate in oil fields in the Canadian provinces of Alberta, Saskatchewan,
Manitoba and British Columbia and in the Northwest Territories of Canada. The
shipments reach the Lakehead System from the portion of the System located in
western Canada, which receives its shipments primarily through pipelines owned
and operated by others. The Lakehead System also receives U.S. and Canadian
production at Clearbrook (through a connection with Portal Pipe Line Company, an
affiliate of the General Partner), U.S. production at Stockbridge and Lewiston,
Michigan, and both U.S. and offshore production in the Chicago area.
SUPPLY AND DEMAND PROJECTIONS FOR WESTERN CANADIAN CRUDE OIL
By virtue of the integrated nature of the System, the following discussion
provides an assessment of the total supply and demand for western Canadian crude
oil. The forecast supply and demand information is based on the analysis
provided in the NEB's report "Canadian Energy Supply and Demand 1993 - 2010,
Trends and Issues" ("NEB Report"), published in December 1994. The NEB Report
focuses on broad prospective energy market developments under different
scenarios but does not set forth detailed descriptions of the analytical methods
used or the quantitative results supporting the scenarios.
Supply
The NEB Report assesses the prospects for Canadian crude oil supply under
two different assumptions about the progress of production and development
technology. The "Current Tech Case" assumes crude oil supply costs associated
with technologies that are currently in use or that have already been
extensively tested and are close to becoming commercially viable. The "High Tech
Case" assumes supply cost estimates associated with technologies that are in the
early stages of research. These estimates were based on consultation with
industry participants, the NEB's own assessment of historical trends and the
NEB's own judgement. In both the Current Tech Case and the High Tech Case, the
NEB assumed crude oil prices that rose from the 1993 average of $19 per barrel
to $23 per barrel in 2010 (in 1993 constant dollars).
The NEB also examined the impact that price sensitivity would have on crude
oil supply. They developed two scenarios that assume technologies consistent
with the Current Tech Case, but estimated supply at crude oil prices of $30 per
barrel, the "High Price Case" and supply at crude oil prices of $15 per barrel,
the "Low Price Case". The $15 to $30 window, in the NEB's view, represents a
sustainable range of crude oil prices.
The tables below set forth the NEB's projections of western Canadian
productive capacity of crude oil and equivalent under each of their four
scenarios:
PRODUCTIVE CAPACITY OF WESTERN CANADIAN CRUDE OIL AND EQUIVALENT
CURRENT TECH CASE
<TABLE>
<CAPTION>
1995 2000 2005 2010
---- ---- ---- ----
(THOUSANDS OF BARRELS PER DAY)
<S> <C> <C> <C> <C>
Light crude oil................................... 1,290 1,140 1,020 850
Heavy crude oil................................... 810 940 780 700
----- ----- ----- -----
2,100 2,080 1,800 1,550
===== ===== ===== =====
</TABLE>
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PRODUCTIVE CAPACITY OF WESTERN CANADIAN CRUDE OIL AND EQUIVALENT
HIGH TECH CASE
<TABLE>
<CAPTION>
1995 2000 2005 2010
---- ---- ---- ----
(THOUSANDS OF BARRELS PER DAY)
<S> <C> <C> <C> <C>
Light crude oil................................... 1,300 1,140 1,030 920
Heavy crude oil................................... 820 1,090 1,080 1,090
----- ----- ----- -----
2,120 2,230 2,110 2,010
===== ===== ===== =====
</TABLE>
PRODUCTIVE CAPACITY OF WESTERN CANADIAN CRUDE OIL AND EQUIVALENT
CURRENT TECH AND LOW PRICE CASE
<TABLE>
<CAPTION>
1995 2000 2005 2010
---- ---- ---- ----
(THOUSANDS OF BARRELS PER DAY)
<S> <C> <C> <C> <C>
Light crude oil................................... 1,270 1,100 870 690
Heavy crude oil................................... 720 590 320 170
----- ----- ----- -----
1,990 1,690 1,190 860
===== ===== ===== =====
</TABLE>
PRODUCTIVE CAPACITY OF WESTERN CANADIAN CRUDE OIL AND EQUIVALENT
CURRENT TECH AND HIGH PRICE CASE
<TABLE>
<CAPTION>
1995 2000 2005 2010
---- ---- ---- ----
(THOUSANDS OF BARRELS PER DAY)
<S> <C> <C> <C> <C>
Light crude oil................................... 1,320 1,230 1,050 1,090
Heavy crude oil................................... 840 1,150 1,250 1,340
----- ----- ----- -----
2,160 2,380 2,300 2,430
===== ===== ===== =====
</TABLE>
The NEB states in their summary and conclusions that total Canadian crude
oil production could increase over the study period so long as world oil prices
are consistently above the mid-point of their sustainable range and/or
technological progress further reduces supply costs. Any expansion in oil supply
is likely to feature increases in heavy oil production, in bitumen production
from the oil sands and light oil production from the frontiers. Light oil
production from western Canada is expected to gradually decline over the study
period. The state of resource depletion in western Canada suggests that supply
of western Canadian conventional crude oil, particularly light crude oil, is
unlikely to be sustained in the long run even under conditions of rapid
technological progress. However, horizontal drilling and other new technologies
may lead to a continued gradual increase in production in the near term and
could delay the decline by several years.
The NEB further summarizes their analysis by stating that the size and
composition of Canadian crude oil supply is very sensitive to oil prices between
$15 and $26. In a world in which oil prices track at the bottom of the
sustainable range, total Canadian crude oil supply declines quite rapidly as no
new supply sources are economically viable. In contrast, all sources are viable
above $26. Canada should remain a net exporter of crude oil when oil prices are
sustained at or above the mid-range level. At lower prices Canadian production
declines sufficiently rapidly that Canada becomes a net importer toward the end
of their forecast term.
Demand
Refineries in Canada generally use light crude oil to manufacture petroleum
products, while the bulk of western Canadian heavy crude oil production is
exported. Because of this, the NEB separately determined supply and demand
balances for light and heavy crude oil. The NEB Report only developed demand
scenarios
8
<PAGE> 11
for western Canadian crude oil for the Current Tech Case and the High Tech Case,
which are summarized in the following tables:
DISPOSITION OF WESTERN CANADIAN CRUDE OIL AND EQUIVALENT
CURRENT TECH CASE
<TABLE>
<CAPTION>
1995 2000 2005 2010
---- ---- ---- ----
(THOUSANDS OF BARRELS PER DAY)
<S> <C> <C> <C> <C>
LIGHT CRUDE OIL
Western Canada.................................. 430 430 430 430
Eastern Canada.................................. 390 470 470 330
United States................................... 560 330 210 190
----- ----- ----- -----
1,380 1,230 1,110 950
----- ----- ----- -----
HEAVY CRUDE OIL
Western Canada.................................. 40 50 50 50
Eastern Canada.................................. 90 90 100 100
United States................................... 590 710 540 450
----- ----- ----- -----
720 850 690 600
----- ----- ----- -----
2,100 2,080 1,800 1,550
===== ===== ===== =====
</TABLE>
DISPOSITION OF WESTERN CANADIAN CRUDE OIL AND EQUIVALENT
HIGH TECH CASE
<TABLE>
<CAPTION>
1995 2000 2005 2010
---- ---- ---- ----
(THOUSANDS OF BARRELS PER DAY)
<S> <C> <C> <C> <C>
LIGHT CRUDE OIL
Western Canada.................................. 430 430 430 430
Eastern Canada.................................. 380 430 470 470
United States................................... 590 370 270 190
----- ----- ----- -----
1,400 1,230 1,170 1,090
----- ----- ----- -----
HEAVY CRUDE OIL
Western Canada.................................. 40 50 50 50
Eastern Canada.................................. 80 90 100 100
United States................................... 600 860 790 770
----- ----- ----- -----
720 1,000 940 920
----- ----- ----- -----
2,120 2,230 2,110 2,010
===== ===== ===== =====
</TABLE>
The NEB assumed that western Canadian crude oil will be used first to
satisfy refinery demand in western Canada and then to maintain a minimum level
of exports to U.S. markets. The NEB assumed that market forces will result in a
sustained level of light crude oil deliveries to U.S. markets of approximately
190,000 barrels per day. Their assumption reflects the expectation that crude
oil currently moving to the U.S. on the Rangeland and Milk River pipeline
systems will likely continue, and other U.S. refiners that are partially
dependent on Canadian supply will continue to purchase western Canadian crude
oil. Remaining volumes of western Canadian light crude oil would then be
available to satisfy the needs of Quebec and Ontario.
As has been the case for many years, the available supply of western
Canadian heavy crude oil will continue to exceed Canadian requirements. This
trend is expected to continue until the end of the NEB's plan period. The NEB
assumed it very unlikely that Canadian refineries will significantly increase
their use of heavy crude oil, unless the light/heavy crude oil price
differentials widen sufficiently to justify large capital expenditures
associated with the construction of the necessary processing facilities.
9
<PAGE> 12
Current Tech Case light/heavy price differentials are expected to increase
only marginally through the forecast period. At these differentials, U.S.
refiners can expand existing heavy crude oil upgrading facilities at a marginal
cost below that which would be required by Canadian refiners. In the High Tech
Case, differentials are projected to widen substantially, providing additional
incentive for U.S. refiners to expand conversion facilities. The High Tech Case
accounts for some upgrading in Alberta later in the plan period, when price
differentials between light and heavy crude oil are assumed to widen
significantly as a consequence of the growing production of bitumen. Investments
in such upgrading projects remain highly speculative, and may result in
alternate markets being required to absorb the incremental supply.
The NEB based their projection of the U.S. market for Canadian heavy crude
oil on a number of considerations. No major changes in U.S. product demand are
expected in the northern tier area of PADD 2 served by Canadian heavy crude oil.
U.S. domestic production currently supplying refineries in this area is
declining, providing an opportunity for Canadian heavy crude oil to capture
additional market share. U.S. refiners in this area began an upgrading program
some years ago, and therefore, incremental refinery conversion capacity is much
less costly than in Canada.
The NEB concludes that Canadian heavy crude oil could well play an
increasing role in meeting the U.S. demand for feedstocks over the projection
period. Additionally, to the extent that upgrading projects in western Canada do
not materialize in the post-2000 period, there will be greater reliance on this
market to accommodate the growth in western Canadian crude oil production.
Assuming no installation of conversion capacity in eastern Canadian refineries,
the likely alternative market outlet would be the Wood River/Patoka, Illinois
hub area near St. Louis, Missouri. The NEB's High Tech Case assumes that western
Canadian heavy crude oil penetrates this area, although it is recognized that
this is a highly competitive market, and subject to pressures from offshore
imports.
The NEB Report indicates that the NEB's analysis is not intended to provide
a forecast but rather to give a broad assessment of the implications of possible
variations in key underlying variables, such as world oil prices, for long-term
trends in Canadian oil production. The NEB Report specifically disclaims any
attempt to assess year-to-year fluctuations in the demand for and supply of
energy or in energy prices. The NEB Report does not speculate on the future
course of government policies, including energy and environmental policies, but
rather analyzes plausible trends in energy market variables within the currently
existing policy framework.
Eastern Canadian demand for western Canadian crude oil could be impacted by
the reversal of a portion of the IPL System located in Ontario and Quebec. For
additional details on this reversal, see "-- Competition".
CUSTOMERS
The Lakehead System conducts operations without the benefit of exclusive
franchises from government entities or long-term contractual arrangements with
shippers. During 1996, 44 shippers tendered crude oil and other liquid
hydrocarbons for delivery through the Lakehead System. These customers included
integrated oil companies with production facilities in western Canada and
refineries in eastern Canada, major oil companies, refiners and marketers.
Shipments by the top ten shippers during 1996 accounted for approximately 80% of
total revenues during that period. Revenue from Amoco (through affiliated
companies), Mobil Oil Company of Canada Ltd. and Imperial Oil Limited accounted
for approximately 22%, 13% and 12%, respectively, of total operating revenue
generated by the Lakehead System during 1996. The remaining shippers each
accounted for less than 10% of such revenue.
CAPITAL EXPENDITURES
In 1996, the Partnership made capital expenditures of $76.7 million, of
which $59.0 million was for the 1996 expansion program which consisted primarily
of several new pump stations on Line 6 from Superior to Chicago and a new tank
at Clearbrook. The 1996 expansion has increased delivery capacity into Chicago
area markets by up to 120,000 barrels per day. Approximately 40,000 barrels per
day of this added capacity will be required to offset the effects of moving
increased volumes of heavy crude oil, which can lower system delivery
capability. Of the remaining capital expenditures, $5.9 million was spent for
core maintenance capital
10
<PAGE> 13
expenditures and $11.8 million for other enhancements to the Lakehead System,
which includes $7.1 million for an additional expansion in response to the
increased Midwest U.S. demand for cost effective and timely access to western
Canadian production. The Partnership and Interprovincial have begun working on
this additional expansion, which is expected to increase delivery capacity to
this important market by approximately 170,000 barrels per day. On the Lakehead
System, this expansion will consist primarily of a new 450-mile 24 inch pipeline
from Superior to Chicago at an approximate cost of $300 million. Right-of-way
and environmental permitting work began in 1996 and will continue in 1997. The
General Partner believes that the majority of the expenditures for pipeline
construction will be incurred in 1998, with completion planned for the second
half of that same year.
The Partnership's recurring capital program to maintain and enhance the
service capability of the Lakehead System, excluding the new pipeline from
Superior to Chicago, will require future expenditures which are estimated to be
up to approximately $30 million annually. Excluding the new pipeline, capital
expenditures in 1997 are expected to total approximately $40 million.
TAXATION
For federal and state income tax purposes, the Partnership and Operating
Partnership are not taxable entities. Federal and state income taxes on
Partnership taxable income are borne by the individual partners through the
allocation of Partnership taxable income. Such taxable income may vary
substantially from net income reported in the statement of income.
COMPETITION
Because pipelines are generally the lowest cost method for intermediate and
long haul overland movement of crude oil, the System's most significant existing
competitors (other than indigenous consumption in western Canada) are other
pipelines. Of the pipelines transporting western Canadian crude oil out of
Canada (including Express Pipeline discussed below), the System provides
approximately 75% of the total pipeline design capacity. Competition among
common carrier pipelines is based primarily on transportation charges, access to
producing areas and proximity to end users. Interprovincial and the General
Partner believe that high capital requirements, environmental considerations and
problems in acquiring rights of way and related permits make it unlikely that a
competing pipeline system comparable in size and scope to the System will be
built in the foreseeable future. However, the System is experiencing a
competitive challenge for crude oil deliveries to the U.S. Midwest market by
Express Pipeline. Express Pipeline has constructed a 170,000 barrel per day
pipeline to carry western Canadian crude oil to the Wood River, Illinois market
as well as the U.S. Rocky Mountain region. This pipeline is expected to be in
service in 1997. Interprovincial and the General Partner believe, however, that
the IPL/Lakehead System (including the future new line from Superior to Chicago)
will be more attractive to western Canadian producers shipping to the Chicago or
Patoka/Wood River based markets as it offers lower tolls, shorter transit times
and no shipper volume commitments.
The System encounters competition in serving shippers to the extent that
shippers have alternate opportunities for transporting liquid hydrocarbons from
their sources to customers. As U.S. domestic production declines in markets
which are currently served by other pipelines from the western Canadian supply
basin, Canadian crude oil may be drawn to those markets to meet shortfalls.
Generally, it is expected that producers will receive the highest netback price
from markets served by the System, but alternate markets may for periods of time
offer equal or better returns for the producer. These could potentially be the
U.S. Rocky Mountain region for sweet crude oil and the Washington state market
for light sour crude oil.
The General Partner estimates that the System transported approximately 70%
of total western Canadian crude oil production to markets in the United States
and eastern Canada in 1996, of which approximately 90% was transported by the
Lakehead System. The remainder was refined in Alberta or transported through
other pipelines to British Columbia and the states of Washington and Montana.
In the United States, the Lakehead System encounters competition from other
crude oil and refined product pipelines and other modes of transportation
delivering crude oil and refined products to the refining
11
<PAGE> 14
centers of Minneapolis-St. Paul, Chicago, Detroit and Toledo. The Lakehead
System transports approximately 45% of all crude oil deliveries into the Chicago
area, 75% of all crude oil deliveries into the Minneapolis-St. Paul area, and
virtually all deliveries of crude oil to Ontario, Canada. The Minneapolis-St.
Paul refineries are serviced by three crude oil pipelines which compete with the
Lakehead System. The Wood River Pipeline delivers imported and domestic crude
oil from the south. The Minnesota Pipeline, in addition to moving Canadian crude
oil, delivers North Dakota production received from the Portal Pipeline (an
affiliate of the General Partner). The Williams Pipeline delivers crude oil and
refined products from the Midcontinent. The Chicago area is served by both
common carrier and proprietary pipelines. The Chicap/Capline system and the Arco
/Seaway Pipeline are both common carriers which deliver domestic and imported
crude oil to the Chicago market. Chicago is also served by proprietary pipelines
operated by affiliates of Amoco. The Detroit and Toledo markets are serviced by
the Mid-Valley Pipeline and other pipelines which connect to the Capline system.
The Patoka/Wood River market area receives crude oil flows originating from the
U.S. Gulf Coast from the Capline and Seaway pipelines. At Cushing, Oklahoma, the
Seaway pipeline can feed into the Ozark pipeline for delivery to the Patoka/Wood
River area. Domestic U.S. supplies can reach the Patoka/Wood River area by these
lines as well. As previously stated, it is expected that the Express Pipeline
will begin deliveries of western Canadian crude to this area in 1997. The
Lakehead System also competes with the Cochin Pipeline for the transportation of
natural gas liquids produced in western Canada.
The IPL System includes a section which extends from Sarnia, Ontario to
Montreal, Quebec (the "Montreal Extension"). The portion of the Montreal
Extension from Sarnia to North Westover, Ontario is currently in west to east
service. The section from North Westover to Montreal has been purged with
nitrogen and remains available for service. Interprovincial is investigating
economic alternatives for the Montreal Extension. A detailed evaluation has
shown the most efficient use to be reversal of the direction of flow over the
entire length of the Montreal Extension to bring offshore oil to Ontario
refineries. While a reversal of the Montreal Extension could result in
Interprovincial or a subsidiary of Interprovincial becoming a competitor for
supplying crude oil to the Ontario market, such a reversal is expressly
permitted by the agreements entered into at the time of formation of the
Partnership. A reversal of the Montreal Extension is not anticipated to have a
material adverse impact on the Partnership, as displaced volumes are expected to
be redirected to existing U.S. markets served by the Partnership.
ENVIRONMENTAL AND SAFETY REGULATION
General
The operations of the Partnership are subject to federal, state and local
laws and regulations relating to protection of the environment and safety.
Although the General Partner believes that the operations of the Lakehead System
are in general compliance with applicable environmental and safety laws and
regulations, the risk of substantial liabilities are inherent in pipeline
operations, and there can be no assurance that such liabilities will not be
incurred. To the extent that the Partnership is unable to recover environmental
costs in its rates or through insurance, the General Partner has agreed to
indemnify the Partnership from and against any costs relating to environmental
liabilities associated with the Lakehead System prior to its transfer to the
Partnership in 1991. This excludes any liabilities resulting from a change in
laws after such transfer. If the Partnership is held to be responsible for
liabilities not covered by the General Partner's indemnification obligation,
such liabilities could have an adverse impact on the financial condition of the
Partnership and the Partnership's ability to make distributions.
Air
The operations of the Partnership are subject to the federal Clean Air Act
and comparable state statutes. The General Partner believes that the operations
of the Lakehead System are in substantial compliance with such statutes in all
states in which it operates.
12
<PAGE> 15
Water
The federal Water Pollution Control Act, as amended by the Oil Pollution
Act of 1990 ("WPCA"), imposes strict controls against the discharge of oil into
navigable waters. The WPCA provides penalties for any discharges of petroleum
products in reportable quantities, imposes liability for clean-up costs and
natural resource damage, and allows for third party lawsuits. State laws also
provide varying civil and criminal penalties and liabilities in the case of a
release of petroleum into surface water or groundwater. Spill prevention control
and countermeasure requirements of federal laws require diking and similar
structures to help prevent contamination of navigable waters in the event of a
petroleum overflow, rupture or leak. In response to regulations mandated by the
WPCA, the Partnership has submitted to the Office of Pipeline Safety ("OPS") of
the U.S. Department of Transportation ("DOT") oil spill emergency response
plans, which have been approved, and a certification that it has the resources
to respond to a worst case spill. Expenses of routine compliance with these and
other similar regulations are not expected to have a material adverse impact on
the Partnership.
The operations of the Partnership are subject to state and federal
regulations concerning the discharge of water associated with pipeline system
operations or testing, or of stormwater run-off from facilities. The General
Partner believes that the operations of the Lakehead System are in substantial
compliance with such regulations in all states in which it operates.
Remediation Matters
Contamination resulting from spills of crude oil and petroleum products is
not unusual within the petroleum pipeline industry. The Lakehead System has, in
the past, experienced such spills. Historic spills along the Lakehead System as
a result of past operations may have resulted in soil or groundwater
contamination for which further remediation may be required. The General Partner
does not expect that any cleanup liabilities not covered by the General
Partner's indemnification obligation will have a material adverse effect on the
financial condition of the Partnership.
Superfund
The Comprehensive Environmental Response, Compensation and Liability Act of
1989, as amended ("CERCLA"), also known as "Superfund", and comparable state
laws impose liability, without regard to fault or the legality of the original
act, on certain classes of persons that contributed to the release of a
"hazardous substance" into the environment. These persons include the owner or
operator of a site and companies that disposed, or arranged for the disposal of,
the hazardous substances found at a site. Such statutes also authorize
government environmental authorities such as the Environmental Protection Agency
("EPA") and, in some instances, third parties to take actions in response to
threats to the public health or the environment and to seek to recover from the
responsible classes of persons the costs incurred. In the course of its ordinary
operations, the Lakehead System generates wastes, some of which fall within the
federal and state statutory definitions of a "hazardous substance" and some of
which were disposed of at sites that may require cleanup under Superfund and
related state statutes.
Uncertainty remains under current law as to whether certain petroleum
contaminated wastes constitute hazardous substances for the purposes of CERCLA
and comparable state laws. This uncertainty may, in the future, be resolved by a
conclusive judicial or administrative determination that such wastes are
considered hazardous substances. To the extent that such resolution would be
considered to constitute a change in the law, the General Partner's
indemnification obligations to the Partnership would not cover remedial
liability that may, in the future, be asserted relating to the historical
disposal of such waste generated by operation of the Lakehead System. The
remedial liability associated with such waste may be material, although the
General Partner believes that the Partnership would not be adversely impacted to
a greater extent than its competitors.
13
<PAGE> 16
Waste
The Partnership generates hazardous and nonhazardous solid wastes that are
subject to requirements of the federal Resource Conservation and Recovery Act
("RCRA") and comparable state statutes. The Partnership reports, as required, to
environmental regulatory agencies regarding the disposal of such wastes. The EPA
is currently in the process of developing stricter disposal standards for
nonhazardous waste. Further, it is possible that some wastes that are currently
classified as nonhazardous, possibly including wastes generated during pipeline
operations, may, in the future, be designated as "hazardous waste", which is
subject to more costly disposal requirements.
Safety Regulation
The Partnership's operations are subject to construction, operating and
safety regulation by the DOT and various other federal, state and local
agencies. The Pipeline Safety Act of 1992, as amended by the Accountable
Pipeline Safety and Partnership Act of 1996, requires the OPS to consider
environmental impacts and do a risk assessment, as well as satisfy its
traditional public safety mandate, when developing pipeline safety regulations.
This legislation also mandates the OPS to establish pipeline operator
qualification rules, requires pipeline operators to provide maps and records to
the OPS, and authorizes the OPS to require pipelines to be modified to
accommodate internal inspection devices. Recent regulations have also been
issued requiring pipeline operators to implement alcohol testing programs, to
supplement already established drug testing programs previously required by
regulation, for employees and contractors that are engaged in safety-sensitive
activities. Additional legislation or regulations have been proposed requiring
remotely controlled shutoff valves in populated or environmentally sensitive
areas, increased public education of pipeline safety and accident prevention and
periodic integrity testing of pipelines by internal inspection or hydrostatic
testing. The Partnership currently has an integrity testing program utilizing
internal inspection devices and has conducted additional hydrostatic testing for
selected segments of the Lakehead System. Facilities have been constructed and
permits obtained to treat and dispose of hydrostatic test water generated.
The Partnership is also subject to the requirements of federal and state
Occupational Safety and Health Acts ("OSHA"). The General Partner believes that
the operations of the Lakehead System are in substantial compliance with such
statutes in all states in which it operates.
In general, the General Partner expects to incur future ongoing
expenditures to comply with industry and regulatory safety standards. Such
expenditures cannot be accurately estimated at this time, although the General
Partner does not expect that they will have a material adverse effect on the
Partnership.
EMPLOYEES
Neither the General Partner nor the Partnership has any employees. On
January 1, 1996, the General Partner transferred its employees to IPL Energy
USA. As the General Partner is responsible for management and operation of the
Partnership, it has entered into a services agreement with IPL Energy USA to
provide the required services. The General Partner also receives, for the
benefit of the Partnership, certain administrative, engineering, treasury and
computer services from Interprovincial and IPL Energy. The Partnership
reimburses the General Partner or its affiliates for expenses incurred in
performing these services.
ITEM 3. LEGAL PROCEEDINGS
In response to the Settlement Agreement, both the Partnership and customer
representatives withdrew appeals filed with the U.S. Court of Appeals for the
District of Columbia Circuit in response to the June 1995 FERC decision (Opinion
No. 397) on the Partnership's tariff rates as well as the related May 1996 FERC
Opinion No. 397-A.
The Partnership is, and the General Partner prior to the formation of the
Partnership has been, in the ordinary course of business, a defendant in various
lawsuits and a party to various legal proceedings, some of which are covered, in
whole or in part, by insurance. Certain of these claims were assumed by the
Partnership in connection with the Partnership's formation. The Partnership
believes that the outcome of all such lawsuits
14
<PAGE> 17
and other proceedings will not, individually or in the aggregate, have a
material adverse effect on the financial condition of the Partnership. In
connection with the transfer of its pipeline business to the Partnership, the
General Partner agreed to indemnify the Partnership from and against
substantially all liabilities, including liabilities relating to environmental
matters, arising from operations prior to the transfer. This indemnification
does not apply to amounts that the Partnership would be able to recover in its
tariffs or to any liabilities relating to a change in laws after December 27,
1991.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the fourth
quarter of 1996.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Preference units of the Registrant are listed and traded on the New
York Stock Exchange, the principal market for the Partnership's Preference
units, under the symbol LHP. The quarterly price range per Preference unit and
cash distributions paid per unit for 1996 and 1995 are summarized below:
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
1996 QUARTERS ----- ------ ----- ------
<S> <C> <C> <C> <C>
High........................................................ $ 29 $ 28 1/8 $ 31 1/8 $ 34 7/8
Low......................................................... $ 25 1/2 $ 21 5/8 $ 25 1/4 $ 30 3/8
Cash distributions paid..................................... $0.64 $0.64 $0.64 $0.68
1995 QUARTERS
High........................................................ $ 29 1/4 $ 30 5/8 $ 27 1/4 $ 27 1/2
Low......................................................... $ 26 3/8 $ 22 $ 25 $ 24
Cash distributions paid..................................... $0.64 $0.64 $0.64 $0.64
</TABLE>
At February 3, 1997, there were approximately 35,000 Preference Unitholders
of which there were 3,610 registered Preference Unitholders of record. There is
no established public trading market for the Registrant's Common units, all of
which are held by the General Partner.
15
<PAGE> 18
ITEM 6. SELECTED FINANCIAL DATA
The following table sets forth, for the periods and at the dates indicated,
summary historical financial and operating data for the Partnership. The table
is derived from the consolidated financial statements of the Partnership and
notes thereto, and should be read in conjunction with those audited financial
statements.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------------------
1996(1) 1995(1) 1994 1993 1992
------- ------- ---- ---- ----
(DOLLARS IN MILLIONS, EXCEPT PER UNIT AMOUNTS)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Operating revenue.............................. $274.5 $268.5 $246.0 $240.1 $222.2
Operating expenses(2).......................... 187.1 195.2 159.7 159.6 148.7
------ ------ ------ ------ ------
Operating income............................... 87.4 73.3 86.3 80.5 73.5
Other income................................... 9.6 7.1 4.1 3.1 3.5
Interest expense............................... (43.9) (40.3) (29.8) (30.9) (29.4)
Minority interest.............................. (0.7) (0.5) (0.7) (0.7) (0.6)
------ ------ ------ ------ ------
Net income..................................... $ 52.4 $ 39.6 $ 59.9 $ 52.0 $ 47.0
====== ====== ====== ====== ======
Net income per unit(3)......................... $ 2.11 $ 1.60 $ 2.61 $ 2.36 $ 2.13
====== ====== ====== ====== ======
Cash distributions paid per unit............... $ 2.60 $ 2.56 $ 2.51 $ 2.36 $ 1.80(4)
====== ====== ====== ====== ======
FINANCIAL POSITION DATA
(AT YEAR END):
Property, plant and equipment, net............. $763.5 $725.1 $727.6 $622.1 $615.7
Total assets................................... $975.9 $915.2 $868.6 $758.8 $722.3
Long-term debt................................. $463.0 $395.0 $364.0 $344.0 $320.0
Partners' capital
General Partner............................. $ 1.6 $ 1.5 $ 1.6 $ 0.7 $ 0.5
Common Unitholder........................... 21.7 21.7 23.5 11.8 9.7
Preference Unitholders...................... 376.3 387.9 409.3 354.4 356.7
------ ------ ------ ------ ------
$399.6 $411.1 $434.4 $366.9 $366.9
====== ====== ====== ====== ======
CASH FLOW DATA:
Cash provided from operating activities........ $ 93.9 $121.5 $108.1 $ 92.5 $ 68.5
Capital expenditures........................... $ 76.7 $ 35.5 $136.9 $ 35.6 $ 32.6
OPERATING DATA:
Barrel miles (billions)........................ 384 385 366 358 353
Deliveries
(thousands of barrels per day)
United States............................... 901 876 795 757 737
Eastern Canada.............................. 550 533 531 531 514
------ ------ ------ ------ ------
1,451 1,409 1,326 1,288 1,251
====== ====== ====== ====== ======
</TABLE>
- -------------------------
(1) 1996 results reflect the impact of the 1996 agreement between the
Partnership and customer representatives on all outstanding contested tariff
rates. 1995 results reflect the impact of the June 1995 FERC decision.
(2) Operating expenses include provisions for prior years' rate refunds of $20.1
million and $22.9 million in 1996 and 1995, respectively.
(3) The General Partner's allocation of net income has been deducted before
calculating net income per unit.
(4) Distributions paid in 1992 consist of $0.03 per unit with respect to the
period from December 27, 1991 (the Partnership's inception) through December
31, 1991 and $0.59 per unit with respect to each of the first three quarters
of 1992.
16
<PAGE> 19
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
In October 1996, the FERC approved the Settlement Agreement between the
Partnership and customer representatives on all outstanding contested tariff
rates. The agreement provided for a tariff rate reduction of approximately 6%
and total rate refunds and interest of $120.0 million through the effective date
of October 1, 1996. Refunds of $41.8 million were made in the fourth quarter of
1996, with the remaining balance ($79.3 million at December 31, 1996) to be paid
through a 10% reduction on future rates. This reduction will continue until all
refunds have been made, which is expected to take approximately three years.
Interest will continue to accrue on the unpaid balance. The Settlement Agreement
also provides that the agreed tariff rates will be subject to indexing as
prescribed by FERC regulations and that the Partnership's customer
representatives will not challenge any rates within the indexed ceiling for a
period of five years.
On October 16, 1996, the Board of Directors of the General Partner
increased the quarterly cash distribution to $0.68 per unit ($2.72 per unit on
an annualized basis) from $0.64 per unit. This increase, the second since the
Partnership's inception, is the result of continued earnings growth and the
removal of the uncertainty relating to the Partnership's tariff rates.
RESULTS OF OPERATIONS
The Partnership continued its strong operational performance in 1996 as
deliveries averaged a record 1,451,000 barrels per day, up 3% from the 1,409,000
barrels averaged in 1995. System utilization, measured in barrel miles, remained
relatively unchanged from last year, reflecting a higher proportion of shorter
haul deliveries to the significant Midwest markets served by the Partnership.
Deliveries and barrel miles during 1995 were up 6% and 5%, respectively, over
1994 as a result of the Partnership's 1994 expansion.
Net income for 1996 was $52.4 million ($2.11 per unit) compared with $39.6
million ($1.60 per unit) in 1995 and $59.9 million ($2.61 per unit) in 1994. Net
income is impacted in all years by the rate refunds and related interest
recorded in response to various tariff rate regulatory developments. In order to
eliminate the retroactive aspects of these developments and to facilitate
comparison, operating results have been recalculated as shown below. This
information includes the impact of the Settlement Agreement on the years
presented and excludes any amounts related to prior years.
Recalculated Operating Results
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
(DOLLARS IN MILLIONS, EXCEPT PER UNIT
AMOUNTS)
<S> <C> <C> <C>
Operating Revenue................................ $ 274.5 $ 268.5 $ 237.0
Operating Expenses............................... (167.0) (172.3) (159.7)
Interest Income.................................. 9.6 7.1 4.1
Interest Expense................................. (40.7) (38.8) (30.9)
Minority Interest................................ (0.9) (0.7) (0.6)
------- ------- -------
Net Income....................................... $ 75.5 $ 63.8 $ 49.9
======= ======= =======
Net Income Per Unit.............................. $ 3.06 $ 2.60 $ 2.17
======= ======= =======
</TABLE>
Recalculated net income for 1996 was $11.7 million, or $0.46 per unit,
higher than in 1995. A combination of higher operating revenue, lower total
operating expenses and greater interest income, partially offset by higher
interest expense, led to the increase. Recalculated net income for 1995 reflects
the positive impact of the Partnership's 1994 expansion program and was $13.9
million, or $0.43 per unit, greater than 1994. This expansion resulted in higher
1995 operating revenue which was partially offset by increased operating and
interest expense.
Recalculated operating revenue is computed at the tariff rates implied in
the Settlement Agreement. These implied rates include an approximate 5% increase
on November 30, 1994, allowed to reflect the additional costs associated with
the 1994 expansion, and an approximate 0.9% increase on July 1, 1996 allowed
17
<PAGE> 20
under the FERC's indexing methodology. Operating revenue for 1996 was $6.0
million higher than 1995 primarily due to a greater proportion of heavy crude
oil deliveries (up 29% to 471,000 barrels per day) and the 1996 tariff rate
increase. The tariff rate for heavier crude oil is greater than that for lighter
crude oils primarily due to its higher viscosity which requires more power to
pump. The Partnership's current tariff rate for heavy crude oil deliveries to
the Chicago area is approximately 10% to 18% higher than that for lighter crude
oils. Operating revenue for 1995 was 13% above the previous year's recalculated
amount of $237.0 million. This increase was due to both the transportation of
greater volumes and the November 1994 tariff rate increase.
Total 1996 recalculated operating expenses were $5.3 million less than in
1995 primarily due to lower power costs ($2.2 million) and oil losses ($2.8
million). Efficiencies gained from the Partnership's ongoing power cost
management initiative, partially offset by the transportation of greater amounts
of heavy crude oil, led to the decrease in power costs. Oil losses are impacted
by operational considerations, including changing customer delivery
requirements, and the volatility of crude oil prices, resulting in variances in
the level of oil losses from year to year. Despite growth in property, plant and
equipment, 1996 depreciation expense increased only slightly over 1995 due to
the impact of new depreciation rates, effective July 1, 1996, which better
represent the service life of the pipeline system. This change in depreciation
rates, approved by the FERC, resulted in 1996 depreciation expense being
approximately $1.8 million lower than it would have been utilizing the prior
rates. Total 1995 recalculated operating expenses were $12.6 million greater
than in 1994 primarily due to a combination of additional ongoing costs
resulting from the 1994 expansion program (depreciation and property taxes --
$9.6 million) and lower overhead costs capitalized ($5.6 million), partially
offset by lower oil losses ($2.4 million) and maintenance costs ($2.3 million).
Overhead costs capitalized were more in 1994 as a higher proportion of employee
time was spent on capital projects (as opposed to maintenance and repair
projects) due to the 1994 capacity expansion. Efficiencies implemented with the
1994 expansion, as well as management initiatives, contributed to oil losses
being less than in 1994. A reduction in periodic pipeline inspection costs led
to lower maintenance costs in 1995.
Interest income in 1996 increased over 1995 due to higher average
investment balances. Interest income in 1995 was greater than in 1994 due to
both higher average interest rates and investment balances.
Recalculated interest expense for 1996 was $1.9 million greater than in
1995 primarily due to the impact of additional borrowings under the
Partnership's credit facility to finance enhancement capital expenditures. 1995
recalculated interest expense increased $7.9 million over the previous year
primarily due to the impact of higher average balances and interest rates with
respect to accrued rate refunds ($2.8 million) and borrowings under the credit
facility ($2.3 million). In addition, interest capitalized in 1995 was $2.8
million lower than in 1994. Larger capital projects, primarily the 1994
expansion program, allowed more interest to be capitalized in 1994.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1996, cash, cash equivalents and short-term investments
totaled $173.3 million, up $20.6 million since December 31, 1995, as cash
generated from operating activities and borrowings exceeded cash required for
distributions, capital expenditures and rate refunds. Of this $173.3 million,
$17.0 million ($0.68 per unit) was set aside for the cash distribution paid on
February 14, 1997, with the remaining $156.3 million available for capital
expenditures, distributions or other business needs.
Cash generated from operating activities in 1996 decreased $27.6 million
from 1995 primarily due to the repayment of rate refunds and related interest,
partially offset by higher net income. Cash generated from operating activities
in 1995 was $13.4 million over 1994 as higher cash flow from income before
non-cash deductions for depreciation and accrued rate refunds was partially
offset by greater working capital requirements. Timing differences in the
collection of accounts receivable and payment of accrued obligations led to the
year-to-year changes in working capital requirements.
In 1996, the Partnership made capital expenditures of $76.7 million, of
which $59.0 million was for the 1996 expansion program. The 1996 expansion
consisted primarily of several new pump stations on Line 6 from Superior to
Chicago and a new tank at Clearbrook, and increased delivery capacity into
Chicago area markets by up to 120,000 barrels per day. Approximately 40,000
barrels per day of this added capacity will be required
18
<PAGE> 21
to offset the effects of moving increased volumes of heavy crude oil, which can
lower system delivery capability. Of the remaining capital expenditures, $5.9
million (1995 -- $7.6 million; 1994 -- $14.5 million) was spent for core
maintenance capital expenditures and $11.8 million (1995 -- $27.9 million; 1994
- --$122.4 million) for other enhancements.
Distributions paid to partners increased $1.0 million to $63.9 million
($2.60 per unit) in 1996. The $0.04 per unit quarterly distribution increase
first paid in November 1996 accounted for the increase. 1995 distributions
increased $5.7 million over 1994 to $62.9 million ($2.56 per unit). The full
year effect of distributions paid on the additional 2.2 million Preference units
issued in September 1994 primarily accounted for this increase. In February
1997, the Partnership paid a $0.68 per unit distribution related to the fourth
quarter of 1996. This was the last distribution subject to certain preferential
rights of the Preference Unitholders and certain support obligations of the
General Partner. With respect to subsequent cash distributions, the Preference
and Common units will be treated as one class of units. For additional details,
please read Note 3 to the Partnership's Consolidated Financial Statements.
The Partnership borrowed $68.0 million under its $205.0 million revolving
credit facility in 1996, primarily to finance the 1996 expansion in accordance
with an appropriate regulatory capital structure. This brings total borrowings
under the facility to $153.0 million at December 31, 1996. For additional
details relating to the revolving credit facility, please read Note 5 to the
Partnership's Consolidated Financial Statements.
The General Partner believes that the Partnership will continue to have
adequate liquidity to fund future recurring operating, investing and financing
activities. Cash distributions and certain recurring capital expenditure
programs are expected to be funded with internally-generated cash. Significant
enhancement capital expenditures are expected to be funded with
internally-generated cash, borrowings or the proceeds from additional equity
offerings.
FUTURE PROSPECTS
Income and cash flows are sensitive to oil industry supply and demand in
both Canada and the United States, as well as the regulatory environment. As the
Lakehead System is operationally integrated with the IPL System, the
Partnership's revenues are dependent upon the utilization of the IPL System by
producers of western Canadian crude oil. Interprovincial and the General Partner
believe demand for the System will continue in light of industry's increasing
production forecasts for western Canadian crude oil.
The Partnership intends to maintain and enhance the service capability of
the Lakehead System. This will require future capital expenditures which are
estimated to be up to $30 million on a recurring annual basis. In addition, in
response to the increased Midwest U.S. demand for cost effective and timely
access to western Canadian production, the Partnership and Interprovincial have
begun working on an additional expansion which is expected to increase delivery
capacity to this important market by approximately 170,000 barrels per day. On
the Lakehead System, this expansion will consist primarily of a new 450-mile 24
inch pipeline from Superior to Chicago at an approximate cost of $300 million.
Right-of-way and environmental permitting work began in 1996 and will continue
in 1997. The General Partner believes that the majority of the expenditures for
pipeline construction will be incurred in 1998, with completion planned for the
second half of that same year. The Partnership plans on financing this expansion
with existing cash balances, borrowings and proceeds from the issuance of
additional Partnership units.
The Partnership's 1996 expansion is not expected to significantly impact
net income at this time. However, the General Partner believes that it adds the
long-term flexibility necessary to meet emerging supply and transportation
trends in North America and complements the Partnership's future new pipeline
from Superior to Chicago. The General Partner believes that these combined
expansions will position the Partnership to realize increased cash flows which
will enhance the Partnership's future distribution capability.
The Partnership finalized an agreement with Mustang Pipe Line Partners in
October 1996 to provide for a future joint tariff covering shipments of western
Canadian crude oil to the Patoka, Illinois market area south of Chicago. These
shipments will travel on the Partnership's system to Chicago, and on to Patoka
through the
19
<PAGE> 22
Mustang pipeline system. The joint tariff agreement will provide for lower
transportation costs to shippers desiring access to the Patoka market, an
incentive which the General Partner believes complements the Partnership's
future new pipeline from Superior to Chicago. Mustang Pipe Line Partners is a
Delaware general partnership owned by Mobil Illinois Pipe Line Company and a
wholly-owned subsidiary of IPL Energy USA.
BP Exploration & Oil Inc. has announced a proposal to convert 110,000
barrels per day of light crude oil processing capacity to medium/heavy crude oil
capacity at its Toledo, Ohio refinery. In conjunction with this, IPL Energy has
proposed construction of a 75-mile 16 inch pipeline which would connect the
Partnership's system near Stockbridge, Michigan to BP's Toledo refinery. The
General Partner believes these proposals also complement the future line from
Superior to Chicago as they offer another market for western Canadian producers
of medium and heavy crude oil. Various approvals and agreements are required
before these proposals can proceed.
The Partnership and Interprovincial are committed to remaining the primary
transporter of western Canadian crude oil to the U.S. Midwest and eastern
Canada. As such, and in light of potential further demand for capacity, the
Partnership and Interprovincial have entered into preliminary discussions with
shippers to provide for additional expansions beyond the new pipeline from
Superior to Chicago.
The Partnership is subject to a rate regulatory methodology which
prescribes rate ceilings adjusted every July 1. The rate ceilings are adjusted
by reference to annual changes in the Producer Price Index for Finished Goods
minus one percent ("PPIFG-1"). The General Partner does not anticipate that
PPIFG-1 will change significantly enough (July 1, 1996 = 0.9%) to have a
material effect on 1997 operating revenue. The General Partner also believes
that the 1997 impact of inflation on the Partnership's overall operating
expenses will be mitigated by ongoing cost-control initiatives.
The Settlement Agreement will benefit the Partnership by restoring
stability and providing predictable tariff rates as customer representatives
have agreed not to challenge any rates within the indexed ceiling for a period
of five years. In addition, the Partnership and customer representatives agreed
to the terms of an incremental tariff rate surcharge to recover the cost of, and
allow a rate of return on, the new line from Superior to Chicago. The rate of
return on this new line will be based on the utilization level of the additional
capacity constructed.
The Partnership is also subject to the risks of environmental costs and
liabilities inherent in pipeline operations. To the extent that the Partnership
is unable to recover environmental costs in its rates or through insurance, the
General Partner has agreed to indemnify the Partnership from and against any
costs relating to environmental liabilities associated with the Lakehead System
prior to its transfer to the Partnership in 1991. This indemnity excludes any
liabilities resulting from a change in laws after such transfer.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The consolidated financial statements of the Partnership together with the
notes thereto and the independent accountants' reports thereon, appear on pages
F-2 through F-11 of this Report. Reference should be made to the Index to
Financial Statements, Supplementary Information and Financial Statement
Schedules on page F-1 of this Report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
20
<PAGE> 23
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
(a) Directors and Executive Officers
The Registrant is a limited partnership and has no officers, directors or
employees. Set forth below is certain information concerning the directors and
executive officers of the General Partner. As the sole stockholder of the
General Partner, Interprovincial elects the directors of the General Partner on
an annual basis. All officers of the General Partner serve at the discretion of
the directors of the General Partner.
<TABLE>
<CAPTION>
NAME AGE POSITION WITH GENERAL PARTNER
---- --- -----------------------------
<S> <C> <C>
E. C. Hambrook..................... 59 Chairman and Director
P. D. Daniel....................... 50 President and Director
R. C. Sandahl...................... 46 Vice President and Director
F. W. Fitzpatrick.................. 64 Director
B. F. MacNeill..................... 57 Director
C. A. Russell...................... 63 Director
D. P. Truswell..................... 53 Director
J. R. Bird......................... 47 Treasurer
S. Q. DeVinck...................... 37 Chief Accountant
P. W. Norgren...................... 43 Secretary
</TABLE>
Mr. Hambrook was elected a Director of the General Partner in January 1992
and has served as Chairman of the General Partner since July 1996. He also
serves on the Audit Committee. Mr. Hambrook is the President of Hambrook
Resources Inc.
Mr. Daniel has served as President and a Director of the General Partner
since July 1996. Mr. Daniel has served as President and Chief Executive Officer
of Interprovincial since August 1996 and President and Chief Operating Officer
of Interprovincial from May 1994 to August 1996. He has also served as Senior
Vice President of IPL Energy since May 1994. Prior thereto, he served as Vice
President, Planning of IPL Energy. Mr. Daniel has served as President and
Chairman of IPL Energy USA since August 1996.
Mr. Sandahl has served as Vice President and a Director of the General
Partner since July 1996. Mr. Sandahl was Vice President, Operations of the
General Partner from May 1994 to August 1996. Prior thereto, he was employed by
Interprovincial for six years where he served in various capacities, most
recently as Director of Engineering Services from June 1990 to May 1994. On
January 1, 1996, Mr. Sandahl was transferred from employment with the General
Partner to employment with IPL Energy USA. He has served as Vice President of
IPL Energy USA since August 1996.
Mr. Fitzpatrick was elected a Director of the General Partner in April 1993
and serves on the Audit Committee. He is also a Director of IPL Energy.
Mr. MacNeill has served as a Director of the General Partner since May 1990
and previously served as Chairman and Chief Executive Officer of the General
Partner from May 1994 to July 1996. From May 1991 to May 1994, he served as
President and Chief Executive Officer of the General Partner. Mr. MacNeill has
served as Chief Executive Officer, President and a Director of IPL Energy since
December 1992 and Chairman of Interprovincial since August 1996. He was Chairman
and Chief Executive Officer of Interprovincial from May 1994 to August 1996.
Prior thereto, he served as President and Chief Executive Officer of
Interprovincial from May 1991 to May 1994.
Mr. Russell was elected a Director of the General Partner in October 1985
and serves as the Chairman of the Audit Committee. Mr. Russell served as
Chairman and Chief Executive Officer of Norwest Bank Minnesota North, N.A. from
January 1, 1995 to December 31, 1995. Prior thereto, he served as President of
Norwest Bank Minnesota North, N.A. He also served as a Director of Minnesota
Power and Light Co. until May 1996.
21
<PAGE> 24
Mr. Truswell was elected a Director of the General Partner in May 1991 and
previously served as a Vice President of the General Partner from October 1991
to May 1994. Mr. Truswell has served as Senior Vice President and Chief
Financial Officer of IPL Energy since May 1994 and prior thereto, as Vice
President, Finance since 1992. Prior thereto, he served in various senior
executive capacities with Interprovincial, including as Vice President, Finance
from May 1991 to May 1994.
Mr. Bird has served as Treasurer of the General Partner since October 1996.
He has served as Vice President and Treasurer of IPL Energy since February 1995.
Prior thereto, Mr. Bird was employed by Gulf Canada Resources Ltd. as Vice
President, Treasury and Corporate Development from April 1993 to January 1995.
Prior thereto, he was employed by GW Utilities Ltd. as Vice President and
Controller.
Mr. DeVinck has served as Chief Accountant of the General Partner since
July 1996. Prior thereto, he held management and supervisory positions with the
General Partner in the areas of tax and accounting. On January 1, 1996, Mr.
DeVinck was transferred from employment with the General Partner to employment
with IPL Energy USA. He has served as Chief Accountant of IPL Energy USA since
August 1996.
Mr. Norgren has served as Secretary of the General Partner since July 1996.
Prior thereto, he served as Assistant Secretary and in professional and
management positions within the Law department of the General Partner. On
January 1, 1996, Mr. Norgren, General Counsel, was transferred from employment
with the General Partner to employment with IPL Energy USA. He has served as
Secretary of IPL Energy USA since August 1996, and prior thereto as Assistant
Secretary from November 1995 to August 1996.
(b) Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires the General
Partner's directors and officers, and persons who own more than ten percent of a
registered class of the Partnership's equity securities, to file reports of
ownership and changes in ownership (Forms 3, 4 and 5) of such securities with
the Securities and Exchange Commission and the New York Stock Exchange. Mr. J.R.
Bird, Treasurer of the General Partner, Mr. P.D. Daniel, President and a
director of the General Partner, Mr. S.Q. DeVinck, Chief Accountant of the
General Partner and Mr. P.W. Norgren, Secretary of the General Partner, were
each late in filing an initial report on Form 3.
ITEM 11. EXECUTIVE COMPENSATION
The General Partner is responsible for the management and operation of the
Partnership. The Partnership does not directly employ any of the persons
responsible for managing or operating the Partnership's operations, but instead
reimburses the General Partner or its affiliates for the services of such
persons. As the General Partner has no employees, it has entered into a services
agreement with IPL Energy USA to provide the services required by the
Partnership.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
(a) Security Ownership of Certain Beneficial Owners
<TABLE>
<CAPTION>
TITLE OF CLASS NAME AND ADDRESS AMOUNT PERCENT OF CLASS
-------------- ---------------- ------ ----------------
<S> <C> <C> <C>
Preference units No person or group is known to be the
beneficial owner of more than 5% of the
Preference Units as at February 1, 1997
Common units Lakehead Pipe Line Company, Inc. 3,912,750 100
Lake Superior Place
21 West Superior Street
Duluth, Minnesota 55802-2067
</TABLE>
22
<PAGE> 25
(b) Security Ownership of Management
As of February 3, 1997, S.Q. DeVinck beneficially owned 400 Preference
units. Preference units beneficially held by all directors and officers as a
group represented less than 1% of the Partnership's outstanding Preference
units.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Partnership is managed by the General Partner pursuant to the Amended
and Restated Agreements of Limited Partnership of the Partnership and the
Operating Partnership, dated December 27, 1991 ("Partnership Agreements"). The
General Partner has entered into a services agreement with IPL Energy USA
whereby the General Partner will utilize the resources of IPL Energy USA to
operate the Partnership. Under this agreement, IPL Energy USA will be reimbursed
for all direct and indirect expenses it incurs or payments it makes on behalf of
the Partnership. The General Partner also receives certain administrative,
engineering, treasury and computer services from Interprovincial and IPL Energy
for the benefit of the Partnership. The Partnership reimburses the General
Partner for the cost of these services. For information about reimbursements to
the General Partner, please read Note 6 to the Partnership's Consolidated
Financial Statements.
Under the terms of the Revolving Credit Facility Agreement, Lakehead
Services, Limited Partnership ("Services Partnership") and the Partnership may
draw down funds up to a combined maximum of $205.0 million. The Partnership has
a 1% general partner interest in the Services Partnership, with the General
Partner having a 99% limited partner interest. For additional details, please
read Note 6 to the Partnership's Consolidated Financial Statements.
For discussion of distribution restrictions and incentive distributions
payable to the General Partner, please read Note 3 to the Partnership's
Consolidated Financial Statements.
23
<PAGE> 26
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) As to financial statements, supplementary information and financial
statement schedules, reference is made to "Index to Financial Statements,
Supplementary Information and Financial Statement Schedules" on page F-1 of this
Report.
(b) The Registrant did not file any reports on Form 8-K during the fourth
quarter of 1996.
(c) The following Exhibits (numbered in accordance with Item 601 of
Regulation S-K) are filed or incorporated herein by reference as part of this
Report.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
3.1 Certificate of Limited Partnership of the Partnership.
(Partnership's Registration Statement No. 33-43425 --
Exhibit 3.1)
4.1 Form of Certificate representing Preference Units. (1991
Form 10-K -- Exhibit 4.1)
4.2 Amended and Restated Agreement of Limited Partnership of the
Partnership, dated December 27, 1991. (1991 Form 10-K --
Exhibit 4.2)
10.1 Note Agreement and Mortgage, dated December 12, 1991. (1991
Form 10-K -- Exhibit 10.1)
10.2 Revolving Credit and Term Loan Facility Agreement, dated
December 12, 1991, among Lakehead Pipe Line Company, Inc.,
Lakehead Pipe Line Partners, L.P., Lakehead Services,
Limited Partnership, Lakehead Pipe Line Company, Limited
Partnership and the Bank of Montreal and Harris Trust and
Savings Bank. (1991 Form 10-K -- Exhibit 10.2)
10.3 Distribution Support Agreement, dated December 27, 1991,
among the Partnership, Lakehead Pipe Line Company, Inc. and
Interprovincial Pipe Line Inc. (1991 Form 10-K -- Exhibit
10.3)
10.4 Assumption and Indemnity Agreement, dated December 18, 1992,
between Interprovincial Pipe Line Inc. and Interprovincial
Pipe Line System Inc. (1992 Form 10-K -- Exhibit 10.4)
10.5 Amended Services Agreement, dated February 29, 1988, between
Interprovincial Pipe Line Inc. and Lakehead Pipe Line
Company, Inc. (1991 Form 10-K -- Exhibit 10.4)
10.6 Amended Services Agreement, dated January 1, 1992, between
Interprovincial Pipe Line Inc. and Lakehead Pipe Line
Company, Inc. (1992 Form 10-K -- Exhibit 10.6)
10.7 Certificate of Limited Partnership of the Operating
Partnership. (Partnership's Registration Statement No.
33-43425 -- Exhibit 10.1)
10.8 Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, dated December 27, 1991. (1991 Form
10-K -- Exhibit 10.6)
10.9 Certificate of Limited Partnership of Lakehead Services,
Limited Partnership. (Partnership's Registration Statement
No. 33-43425 -- Exhibit 10.4)
10.10 Amendment No. 1 to the Certificate of Limited Partnership of
Lakehead Services, Limited Partnership. (Partnership's
Registration Statement No. 33-43425 -- Exhibit 10.16)
10.11 Amended and Restated Agreement of Limited Partnership of
Lakehead Services, Limited Partnership, dated December 27,
1991. (1991 Form 10-K -- Exhibit 10.9)
10.12 Contribution, Conveyance and Assumption Agreement, dated
December 27, 1991, among Lakehead Pipe Line Company, Inc.,
Lakehead Pipe Line Partners, L.P. and Lakehead Pipe Line
Company, Limited Partnership. (1991 Form 10-K -- Exhibit
10.10)
10.13 LPL Contribution and Assumption Agreement, dated December
27, 1991, among Lakehead Pipe Line Company, Inc., Lakehead
Pipe Line Partners, L.P. and Lakehead Pipe Line Company,
Limited Partnership and Lakehead Services, Limited
Partnership. (1991 Form 10-K -- Exhibit 10.11)
</TABLE>
24
<PAGE> 27
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.14 Services Agreement, dated January 1, 1996, between IPL
Energy (U.S.A.) Inc. and Lakehead Pipe Line Company, Inc.
(1995 Form 10-K -- Exhibit 10.14)
10.15 Amended and Restated Revolving Credit Agreement, dated
September 6, 1996, among Lakehead Pipe Line Company, Inc.,
Lakehead Pipe Line Partners, L.P., Lakehead Services,
Limited Partnership, Lakehead Pipe Line Company, Limited
Partnership and the Bank of Montreal and Harris Trust and
Savings Bank.
10.16 First Amendment to Amended and Restated Revolving Credit
Agreement, dated September 6, 1996, among Lakehead Pipe Line
Company, Inc., Lakehead Pipe Line Partners, L.P., Lakehead
Services, Limited Partnership, Lakehead Pipe Line Company,
Limited Partnership and the Bank of Montreal.
10.17 Settlement Agreement, dated August 28, 1996, between
Lakehead Pipe Line Company, Limited Partnership and the
Canadian Association of Petroleum Producers and the Alberta
Department of Energy.
10.18 Treasury Services Agreement, dated January 1, 1996, between
IPL Energy Inc. and Lakehead Pipe Line Company, Inc.
21 Subsidiaries of the Registrant.
27 Financial Data Schedule as of and for the year ended
December 31, 1996.
</TABLE>
All Exhibits listed above, with the exception of Exhibits 10.15, 10.16,
10.17, 10.18, 21 and 27 are incorporated herein by reference to the
documents identified in parentheses.
Copies of Exhibits may be obtained upon written request of any Unitholder
to Investor Relations, Lakehead Pipe Line Company, Inc., Lake Superior Place, 21
West Superior Street, Duluth, Minnesota 55802-2067.
(d) As to financial statement schedules, reference is made to "Financial
Statement Schedules" on page F-1 of this report.
25
<PAGE> 28
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF SECTION 13 OR 15(d)OF THE SECURITIES
EXCHANGE ACT OF 1934, THE REGISTRANT HAS DULY CAUSED THIS REPORT TO BE SIGNED ON
ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED.
Lakehead Pipe Line Partners, L.P.
(Registrant)
By: Lakehead Pipe Line Company, Inc.,
as General Partner
Date: February 17, 1997 By: /s/ P. D. DANIEL
------------------------------------
P.D. Daniel
(President)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, THIS
REPORT HAS BEEN SIGNED BELOW ON FEBRUARY 17, 1997 BY THE FOLLOWING PERSONS ON
BEHALF OF THE REGISTRANT AND IN THE CAPACITIES INDICATED WITH LAKEHEAD PIPE LINE
COMPANY, INC., GENERAL PARTNER.
<TABLE>
<C> <C>
/s/ P.D. DANIEL /s/ E.C. HAMBROOK
- ------------------------------------------ ------------------------------------------
P.D. Daniel E.C. Hambrook
President and Director Chairman and Director
(Principal Executive Officer)
/s/ R.C. SANDAHL /s/ S.Q. DEVINCK
- ------------------------------------------ ------------------------------------------
R.C. Sandahl S.Q. DeVinck
Vice President and Director Chief Accountant
(Principal Financial and Accounting
Officer)
/s/ F.W. FITZPATRICK /s/ B.F. MACNEILL
- ------------------------------------------ ------------------------------------------
F.W. Fitzpatrick B.F. MacNeill
Director Director
/s/ C.A. RUSSELL /s/ D.P. TRUSWELL
- ------------------------------------------ ------------------------------------------
C.A. Russell D.P. Truswell
Director Director
</TABLE>
26
<PAGE> 29
INDEX TO FINANCIAL STATEMENTS, SUPPLEMENTARY INFORMATION
AND FINANCIAL STATEMENT SCHEDULES
LAKEHEAD PIPE LINE PARTNERS, L.P.
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Financial Statements
Report of Independent Accountants......................... F-2
Consolidated Statement of Income for the Years Ended
December 31, 1996, 1995, 1994.......................... F-3
Consolidated Statement of Cash Flows for the Years Ended
December 31, 1996, 1995, 1994.......................... F-4
Consolidated Statement of Financial Position as at
December 31, 1996 and 1995............................. F-5
Consolidated Statement of Partners' Capital for the Years
Ended December 31, 1996,
1995, 1994............................................. F-6
Notes to the 1996 Consolidated Financial Statements....... F-7
Supplementary Information (Unaudited)
Selected Quarterly Financial Data......................... F-13
</TABLE>
FINANCIAL STATEMENT SCHEDULES
Financial statement schedules not included in this Report have been omitted
because they are not applicable or the required information is shown in the
financial statements or notes thereto.
F-1
<PAGE> 30
REPORT OF INDEPENDENT ACCOUNTANTS
To the Partners of
Lakehead Pipe Line Partners, L.P.
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of income, of partners' capital and of cash
flows present fairly, in all material respects, the financial position of
Lakehead Pipe Line Partners, L.P. and its investment in Lakehead Pipe Line
Company, Limited Partnership at December 31, 1996 and 1995, and the results of
their operations and their cash flows for each of the three years in the period
ended December 31, 1996 in conformity with generally accepted accounting
principles. These financial statements are the responsibility of the
Partnership's management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of these
statements in accordance with generally accepted auditing standards which
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for the opinion expressed above.
PRICE WATERHOUSE LLP
Minneapolis, Minnesota
January 13, 1997
F-2
<PAGE> 31
LAKEHEAD PIPE LINE PARTNERS, L.P.
CONSOLIDATED STATEMENT OF INCOME
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------
1996 1995 1994
---- ---- ----
(DOLLARS IN MILLIONS,
EXCEPT PER UNIT AMOUNTS)
<S> <C> <C> <C>
Operating Revenue (Note 8).................................. $274.5 $268.5 $246.0
------ ------ ------
Expenses
Power..................................................... 62.0 64.2 62.6
Operating and administrative.............................. 66.7 70.1 65.7
Depreciation.............................................. 38.3 38.0 31.4
Provision for prior years' rate refunds (Note 8).......... 20.1 22.9 --
------ ------ ------
187.1 195.2 159.7
------ ------ ------
Operating Income............................................ 87.4 73.3 86.3
Interest Income............................................. 9.6 7.1 4.1
Interest Expense (Note 5)................................... (43.9) (40.3) (29.8)
Minority Interest........................................... (0.7) (0.5) (0.7)
------ ------ ------
Net Income.................................................. $ 52.4 $ 39.6 $ 59.9
====== ====== ======
Net Income Per Unit (Note 2)................................ $ 2.11 $ 1.60 $ 2.61
====== ====== ======
Weighted Average Units Outstanding (millions)............... 24.0 24.0 22.4
====== ====== ======
</TABLE>
The accompanying notes to the consolidated financial statements are an integral
part of these statements.
F-3
<PAGE> 32
LAKEHEAD PIPE LINE PARTNERS, L.P.
CONSOLIDATED STATEMENT OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------
1996 1995 1994
---- ---- ----
(DOLLARS IN MILLIONS)
<S> <C> <C> <C>
Operating Activities
Net income................................................ $ 52.4 $ 39.6 $ 59.9
Adjustments to reconcile net income to cash provided from
operating activities:
Depreciation........................................... 38.3 38.0 31.4
Accrued rate refunds and related interest (Note 8)..... 42.6 46.4 9.7
Minority interest...................................... 0.7 0.5 0.7
Other.................................................. 0.6 0.8 0.2
Changes in operating assets and liabilities:
Accounts receivable and other........................ (0.7) 4.3 (5.6)
Materials and supplies............................... (1.6) (0.7) --
Due to General Partner and affiliates................ 0.2 0.2 (0.8)
Accounts payable and other........................... 3.6 (12.1) 12.9
Interest payable..................................... 0.7 1.1 (0.4)
Property and other taxes............................. (1.1) 3.4 0.1
Payment of rate refunds and related interest (Note
8).................................................. (41.8) -- --
------ ------ -------
93.9 121.5 108.1
------ ------ -------
Investing Activities
Short-term investments, net............................... (8.0) (18.5) 34.2
Additions to property, plant and equipment................ (76.7) (35.5) (136.9)
------ ------ -------
(84.7) (54.0) (102.7)
------ ------ -------
Financing Activities
Issuance of variable rate financing....................... 68.0 31.0 20.0
Proceeds from unit issuance (Note 1)...................... -- -- 64.8
Distributions to partners (Note 3)........................ (63.9) (62.9) (57.2)
Minority interest......................................... (0.7) (0.6) 0.1
------ ------ -------
3.4 (32.5) 27.7
------ ------ -------
Increase in Cash and Cash Equivalents....................... 12.6 35.0 33.1
Cash and Cash Equivalents at Beginning of Year.............. 77.0 42.0 8.9
------ ------ -------
Cash and Cash Equivalents at End of Year.................... $ 89.6 $ 77.0 $ 42.0
====== ====== =======
</TABLE>
The accompanying notes to the consolidated financial statements are an integral
part of these statements.
F-4
<PAGE> 33
LAKEHEAD PIPE LINE PARTNERS, L.P.
CONSOLIDATED STATEMENT OF FINANCIAL POSITION
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------
1996 1995
---- ----
(DOLLARS IN MILLIONS)
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents................................. $ 89.6 $ 77.0
Short-term investments.................................... 83.7 75.7
Accounts receivable and other............................. 27.2 26.5
Materials and supplies.................................... 7.0 5.4
------ ------
207.5 184.6
Deferred Charges and Other.................................. 4.9 5.5
Property, Plant and Equipment, Net (Note 4)................. 763.5 725.1
------ ------
$975.9 $915.2
====== ======
LIABILITIES AND PARTNERS' CAPITAL
Current Liabilities
Due to General Partner and affiliates..................... $ 1.5 $ 1.3
Accounts payable and other................................ 16.8 13.2
Interest payable.......................................... 3.2 2.5
Property and other taxes.................................. 11.1 12.2
Current portion of accrued rate refunds and related
interest (Note 8)...................................... 29.0 78.5
------ ------
61.6 107.7
Long-Term Debt (Note 5)..................................... 463.0 395.0
Accrued Rate Refunds and Related Interest (Note 8).......... 50.3 --
Minority Interest........................................... 1.4 1.4
Contingencies (Note 9)......................................
------ ------
576.3 504.1
Partners' Capital
General Partner........................................... 1.6 1.5
Common Unitholder (Units issued -- 3,912,750)............. 21.7 21.7
Preference Unitholders (Units issued -- 20,090,000)....... 376.3 387.9
------ ------
399.6 411.1
------ ------
$975.9 $915.2
====== ======
</TABLE>
The accompanying notes to the consolidated financial statements are an integral
part of these statements.
F-5
<PAGE> 34
LAKEHEAD PIPE LINE PARTNERS, L.P.
CONSOLIDATED STATEMENT OF PARTNERS' CAPITAL
<TABLE>
<CAPTION>
GENERAL COMMON PREFERENCE
PARTNER UNITHOLDER UNITHOLDERS TOTAL
------- ---------- ----------- -----
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C>
Partners' capital at December 31, 1993.................. $ 0.7 $ 11.8 $354.4 $366.9
Allocation of proceeds from unit issuance (Note 1)...... 0.6 9.1 55.1 64.8
Net income allocation................................... 1.4 12.4 46.1 59.9
Distributions to partners............................... (1.1) (9.8) (46.3) (57.2)
----- ------ ------ ------
Partners' capital at December 31, 1994.................. 1.6 23.5 409.3 434.4
Net income allocation................................... 1.2 8.2 30.2 39.6
Distributions to partners............................... (1.3) (10.0) (51.6) (62.9)
----- ------ ------ ------
Partners' capital at December 31, 1995.................. 1.5 21.7 387.9 411.1
Net income allocation................................... 1.6 10.2 40.6 52.4
Distributions to partners............................... (1.5) (10.2) (52.2) (63.9)
----- ------ ------ ------
Partners' capital at December 31, 1996.................. $ 1.6 $ 21.7 $376.3 $399.6
===== ====== ====== ======
</TABLE>
The accompanying notes to the consolidated financial statements are an integral
part of these statements.
F-6
<PAGE> 35
LAKEHEAD PIPE LINE PARTNERS, L.P.
NOTES TO THE 1996 CONSOLIDATED FINANCIAL STATEMENTS
(dollars in millions)
1. PARTNERSHIP ORGANIZATION AND NATURE OF OPERATIONS
Lakehead Pipe Line Partners, L.P. ("Lakehead Partnership") is a publicly
traded limited partnership that owns a 99% limited partner interest in Lakehead
Pipe Line Company, Limited Partnership ("Operating Partnership"), both Delaware
limited partnerships, and collectively known as the "Partnership". The
Partnership was formed in 1991 to acquire, own and operate the crude oil and
natural gas liquids pipeline business of Lakehead Pipe Line Company, Inc. (the
sole "General Partner"). The General Partner is a wholly-owned subsidiary of
Interprovincial Pipe Line Inc. ("Interprovincial"), a Canadian company owned by
IPL Energy Inc. of Calgary, Alberta, Canada.
In September 1994, the Lakehead Partnership issued an additional 2,200,000
Preference units (total proceeds, including the General Partner's contribution,
were $64.8 million), bringing the total number of Preference units issued to
20,090,000. Preference units are publicly traded and represent an 82.0% limited
partner interest in the Partnership. The General Partner has a 16.1% limited
partner (in the form of 3,912,750 Common units) and 1.0% general partner
interest in the Lakehead Partnership, as well as a 1.0% general partner interest
in the Operating Partnership (an effective 18.0% combined interest in the
Partnership).
The Partnership holds a 1% general partner interest in Lakehead Services,
Limited Partnership ("Services Partnership"), a Delaware limited partnership,
formed to facilitate the ongoing financing of the Operating Partnership.
The Operating Partnership is engaged in the transportation of crude oil and
natural gas liquids through a common carrier pipeline system. Substantially all
of the shipments delivered originate in western Canadian oil fields. The
majority of the shipments reach the Operating Partnership at the Canada/United
States border in North Dakota, through a Canadian pipeline system owned by
Interprovincial. Deliveries are made in the Great Lakes region of the United
States and to the Canadian Province of Ontario, principally to refineries,
either directly or through the connecting pipelines of other companies.
Approximately 60% of the Operating Partnership's deliveries were made in the
United States in each of the last three years.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The consolidated financial statements of the Partnership are prepared in
accordance with generally accepted accounting principles in the United States
and conform in all material respects with the historical cost accounting
standards of the International Accounting Standards Committee. The preparation
of financial statements in conformity with generally accepted accounting
principles requires management to make estimates and assumptions that affect the
reported amounts of assets, liabilities, revenues, expenses and disclosure of
contingent assets and liabilities.
PRINCIPLES OF CONSOLIDATION
The financial statements of the Partnership include the accounts of the
Lakehead Partnership and the Operating Partnership on a consolidated basis. The
equity method is used to account for the Partnership's 1% general partner
interest in the Services Partnership. The General Partner's 1% interest in the
Operating Partnership is accounted for by the Partnership as a minority
interest.
REGULATION OF PIPELINE SYSTEM
As an interstate common carrier oil pipeline, rates and accounting
practices are under the regulatory authority of the Federal Energy Regulatory
Commission ("FERC").
F-7
<PAGE> 36
LAKEHEAD PIPE LINE PARTNERS, L.P.
NOTES TO THE 1996 CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(dollars in millions)
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
REVENUE RECOGNITION
Substantially all pipeline system revenues are derived from transportation
of crude oil and natural gas liquids and are recognized in income upon delivery.
Amounts provided for accrued rate refunds are recognized as a direct reduction
from revenues except for amounts related to prior years (Note 8), which are
separately stated as a provision for prior years' rate refunds.
CASH EQUIVALENTS AND SHORT-TERM INVESTMENTS
Cash equivalents are defined as all highly marketable securities with a
maturity of three months or less when purchased. Short-term investments are
marketable securities with a maturity of more than three months when purchased.
Both are accounted for as held-to-maturity securities and valued at amortized
cost.
MATERIALS AND SUPPLIES
Materials and supplies are stated at the lower of cost or net realizable
value.
DEFERRED FINANCING CHARGES
Deferred financing charges are amortized on the straight line basis over
the life of the related debt.
PROPERTY, PLANT AND EQUIPMENT
Expenditures for system expansion and major renewals and betterments are
capitalized; maintenance and repair costs are expensed as incurred. An allowance
for interest incurred on external borrowings during construction is capitalized.
Depreciation of property, plant and equipment is provided on the straight line
basis over their estimated service lives. When property, plant and equipment are
retired or otherwise disposed of, the cost less net proceeds is normally charged
to accumulated depreciation and no gain or loss is recognized.
INCOME TAXES
For federal and state income tax purposes, the Partnership is not a taxable
entity. Accordingly, no recognition has been given to income taxes for financial
reporting purposes. The tax on Partnership net income is borne by the individual
partners through the allocation of taxable income. Such taxable income may vary
substantially from net income reported in the consolidated statement of income.
NET INCOME PER UNIT
Net income per unit is computed by dividing net income, after deduction of
the General Partner's allocation, by the weighted average number of Preference
and Common units outstanding. The General Partner's allocation is equal to an
amount based upon its 1% general partner interest, adjusted to reflect an amount
equal to incentive distributions and an amount required to reflect depreciation
on the General Partner's historical cost basis for assets contributed on
formation of the Partnership. The General Partner was allocated 3.0%, 3.0% and
2.3% of net income before minority interest in 1996, 1995 and 1994,
respectively.
COMPARATIVE AMOUNTS
Certain comparative amounts are reclassified to conform with the current
year's financial statement presentation.
F-8
<PAGE> 37
LAKEHEAD PIPE LINE PARTNERS, L.P.
NOTES TO THE 1996 CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(dollars in millions)
3. CASH DISTRIBUTIONS
The Partnership distributes quarterly all of its "Available Cash", which is
generally defined in the Partnership Agreement as cash receipts less cash
disbursements and net additions to reserves for future requirements. These
reserves are retained to provide for the proper conduct of the Partnership
business and as necessary to comply with the terms of any agreement or
obligation of the Partnership. Distributions by the Partnership of its Available
Cash generally are made 98% to the Common and Preference Unitholders and 2% to
the General Partner, subject to the payment of incentive distributions to the
General Partner to the extent that certain target levels of cash distributions
to the Unitholders are achieved. The incremental incentive distributions payable
to the General Partner are 15%, 25% and 50% of all quarterly distributions of
Available Cash that exceed target levels of $0.59, $0.70, and $0.99 per
Preference and Common unit, respectively. Such incentive distributions totaled
$0.9 million in 1996 (1995 -- $0.7 million; 1994 -- $0.5 million).
In 1996, the Partnership paid cash distributions of $2.60 per unit
consisting of $0.64 per unit paid in February, May and August, and $0.68 per
unit paid in November. In 1995, distributions of $2.56 per unit were paid,
representing four distributions of $0.64 per unit. In 1994, distributions of
$2.51 per unit were paid, consisting of $0.59 per unit paid in February and
$0.64 per unit paid in May, August and November.
The cash distribution in respect of the fourth quarter 1996 will be the
last distribution subject to certain preferential rights of the Preference
Unitholders and certain support obligations of the General Partner. For
distributions related to quarters ending before 1997, in the event that there
was not sufficient Available Cash to pay a minimum quarterly distribution
("MQD") of $0.59 per unit to all Unitholders at the end of a quarter, Preference
Unitholders were entitled to receive the MQD, plus any arrearages, prior to any
distribution of Available Cash to the Common Unitholders. With no arrearages of
cash distributions, this preferential right will expire after the payment of the
distribution related to the fourth quarter of 1996. With respect to subsequent
cash distributions, the Preference and Common units will be treated as one class
of units. In addition, the General Partner had agreed, for quarterly
distributions prior to 1997, to support the MQD to a maximum aggregate amount of
$60.0 million. This support has not been required.
4. PROPERTY, PLANT AND EQUIPMENT, NET
<TABLE>
<CAPTION>
AVERAGE DECEMBER 31,
DEPRECIATION -----------------
RATES 1996 1995
------------ ---- ----
<S> <C> <C> <C>
Land........................................................ -- $ 5.4 $ 5.2
Rights-of-way............................................... 3.6% 12.4 12.4
Pipeline.................................................... 4.1 506.1 504.2
Pumping equipment, buildings and tanks...................... 4.6 310.8 257.7
Vehicles, office and communications equipment............... 13.6 27.1 24.6
Construction in progress.................................... -- 22.4 4.7
------- -------
884.2 808.8
Accumulated depreciation.................................... (120.7) (83.7)
------- -------
$ 763.5 $ 725.1
======= =======
</TABLE>
Effective July 1, 1996, the Partnership revised the estimated service lives
of its property, plant and equipment to better represent the service life of its
pipeline system. Prior to this change, the average depreciation rate for
rights-of-way was 4.0%, pipeline -- 4.0%, pumping equipment, buildings and
tanks -- 6.9% and vehicles, office and communications equipment -- 6.2%. The
change in depreciation rates resulted in 1996 net income being $1.8 million, or
$0.07 per unit, higher than it would have been utilizing the prior rates.
F-9
<PAGE> 38
LAKEHEAD PIPE LINE PARTNERS, L.P.
NOTES TO THE 1996 CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(dollars in millions)
5. DEBT
<TABLE>
<CAPTION>
DECEMBER 31,
----------------
1996 1995
---- ----
<S> <C> <C>
First Mortgage Notes........................................ $310.0 $310.0
Revolving Credit Facility Agreement......................... 153.0 85.0
------ ------
$463.0 $395.0
====== ======
</TABLE>
FIRST MORTGAGE NOTES
The Partnership has issued, in a private placement to institutional
investors, $310.0 million aggregate principal amount of First Mortgage Notes.
The Notes are secured by a first mortgage on substantially all of the property,
plant and equipment of the Partnership and are due and payable in ten equal
annual installments beginning in the year 2002. The interest rate on the Notes
is 9.15% per annum, payable semi-annually. The Notes contain various restrictive
covenants applicable to the Partnership, and restrictions on the incurrence of
additional indebtedness, which is subject to compliance with certain issuance
tests. The General Partner believes these issuance tests will not negatively
impact the Partnership's ability to finance current expansion projects. Under
the Note Agreements, the Partnership is permitted to make cash distributions not
more frequently than quarterly in an amount not to exceed Available Cash (Note
3) for the immediately preceding calendar quarter.
REVOLVING CREDIT FACILITY AGREEMENT
The Partnership has a $205.0 million Revolving Credit Facility Agreement
which was amended in September 1996 to effectively reduce the interest rate
spread and extend the maturity date to at least September 2001. The maturity
date is subject to extension on an annual basis. Upon drawdown, the loans are
secured by a first lien on the mortgaged property that ranks equally with the
Notes or may be fully collateralized with U.S. government securities. The
facility contains restrictive covenants substantially identical to those in the
Note Agreements, provides for variable interest rates and currently carries a
facility fee of 0.085% per annum on the entire $205.0 million. At December 31,
1996, $153.0 million of the facility was utilized and is classified as long-term
debt (1995 -- $85.0 million). The interest rate on loans averaged 6.8% (1995 --
6.9%; 1994 -- 5.1%) and was 6.0% at the end of 1996 (1995 -- 7.2%).
INTEREST
Interest expense includes $9.7 million related to accrued rate refunds
(1995 -- $7.3 million; 1994 -- $1.8 million) and is net of amounts capitalized
of $2.4 million (1995 -- $1.0 million; 1994 -- $3.8 million). Interest paid
amounted to $44.8 million (1995 -- $31.9 million; 1994 -- $31.0 million).
6. RELATED PARTY TRANSACTIONS
The Partnership, which does not have any employees, uses the services of
the General Partner and its affiliates for managing and operating its pipeline
business. These services, which are reimbursed at cost in accordance with
service agreements, amounted to $33.9 million (1995 -- $33.8 million; 1994 --
$34.0 million) and are included in operating and administrative expenses.
Under the terms of the Revolving Credit Facility Agreement, the Services
Partnership and the Partnership may draw down funds up to a combined maximum of
$205.0 million. The Partnership is entitled to require the Services Partnership
to repay any amounts owed by the Services Partnership in order to allow the
Partnership to borrow thereunder. During 1996, the Partnership paid the Services
Partnership a standby
F-10
<PAGE> 39
LAKEHEAD PIPE LINE PARTNERS, L.P.
NOTES TO THE 1996 CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(dollars in millions)
6. RELATED PARTY TRANSACTIONS (CONTINUED)
fee of $0.4 million (1995 -- $0.8 million; 1994 -- $1.0 million) as
consideration for the agreement by the Services Partnership that the Partnership
will have priority over the Services Partnership to borrow up to the full amount
available under the facility. Effective September 1996, the standby fee was
eliminated and replaced with a facility fee which the Partnership pays directly.
The Partnership will continue to have borrowing priority over the Services
Partnership.
7. MAJOR CUSTOMERS
Operating revenue received from major customers was as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Amoco Oil Company.................................... $63.2 $62.3 $54.6
Mobil Oil Company of Canada Ltd. .................... $37.2 $34.7 $33.9
Imperial Oil Limited................................. $35.4 $31.4 $27.3
</TABLE>
The Partnership has a concentration of trade receivables from companies
operating in the oil and gas industry. These receivables are collateralized by
the crude oil and other products contained in the Partnership's pipeline and
storage facilities.
8. ACCRUED RATE REFUNDS AND RELATED INTEREST
In October 1996, the FERC approved a July 1996 agreement between the
Partnership and customer representatives on all outstanding contested tariff
rates. The agreement resulted in an approximate tariff rate reduction of 6% and
total rate refunds and related interest of $120.0 million through the effective
date of October 1, 1996. Refunds of $41.8 million were made during the fourth
quarter of 1996, with the remaining balance ($79.3 million at December 31, 1996)
to be repaid through a 10% reduction on future rates. This reduction will
continue until all refunds have been made, which is expected to take
approximately three years. Interest will continue to accrue on the unpaid
balance.
The Partnership provided for $42.6 million of rate refunds and related
interest in 1996 to reflect the settlement agreement. In 1995, the Partnership
provided for $46.4 million of rate refunds and related interest to reflect a
June 1995 FERC decision. In 1994, $9.7 million was provided for rate refunds and
related interest to reflect an October 1994 FERC Administrative Law Judge
initial decision. The balance of accrued rate refunds and related interest was
provided for prior to 1994. Of the amounts provided, rate refunds related to the
current year have reduced operating revenue, with the prior years' portion
separately stated as a provision for prior years' rate refunds. Interest has
been reflected in interest expense.
9. CONTINGENCIES
The Partnership is subject to federal and state laws and regulations
relating to the protection of the environment. Environmental risk is inherent to
liquid pipeline operations and the Partnership could, at times, be subject to
environmental cleanup and enforcement actions. The General Partner manages this
environmental risk through appropriate environmental policies and practices to
minimize the impact to the Partnership. To the extent that the Partnership is
unable to recover environmental costs in its rates or through insurance, the
General Partner has agreed to indemnify the Partnership from and against any
costs relating to environmental liabilities associated with the pipeline system
prior to its transfer to the Partnership in 1991. This excludes any liabilities
resulting from a change in laws after such transfer. The Partnership continues
to
F-11
<PAGE> 40
LAKEHEAD PIPE LINE PARTNERS, L.P.
NOTES TO THE 1996 CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
(dollars in millions)
9. CONTINGENCIES (CONTINUED)
voluntarily investigate past leak sites for the purpose of assessing whether any
remediation is required in light of current regulations, and to date no material
environmental risks have been identified.
10. FAIR VALUE OF FINANCIAL INSTRUMENTS
The carrying amounts of cash equivalents and short-term investments
approximate fair value because of the short maturity of these instruments. The
short-term investments consist primarily of government obligations and high
quality commercial paper.
Based on the borrowing rates currently available for instruments with
similar terms and remaining maturities, the carrying values of borrowings under
the Revolving Credit Facility approximate fair value and the fair value of the
First Mortgage Notes approximates $344 million (1995 -- $366 million). Due to
contractual arrangements defined in the Note Agreements, refinancing of the
Notes would not result in any financial benefit to the Partnership.
F-12
<PAGE> 41
LAKEHEAD PIPE LINE PARTNERS, L.P.
SUPPLEMENTARY INFORMATION (UNAUDITED)
SELECTED QUARTERLY FINANCIAL DATA
(dollars in millions, except per unit amounts)
<TABLE>
<CAPTION>
FIRST(2) SECOND THIRD FOURTH TOTAL
-------- ------ ----- ------ -----
<S> <C> <C> <C> <C> <C>
1996 QUARTERS
Operating revenue...................................... $ 68.0 $65.9 $67.9 $72.7 $274.5
Operating income....................................... $ 5.2 $27.6 $25.7 $28.9 $ 87.4
Net income (loss)...................................... $ (6.3) $19.2 $17.7 $21.8 $ 52.4
Net income (loss) per unit(1).......................... $(0.27) $0.78 $0.72 $0.88 $ 2.11
1995 QUARTERS
Operating revenue...................................... $ 64.9 $68.7 $66.2 $68.7 $268.5
Operating income....................................... $ 0.2 $27.6 $22.6 $22.9 $ 73.3
Net income (loss)...................................... $ (9.3) $19.5 $14.5 $14.9 $ 39.6
Net income (loss) per unit(1).......................... $(0.39) $0.79 $0.59 $0.61 $ 1.60
</TABLE>
- -------------------------
(1) The General Partner's allocation of net income (loss) has been deducted
before calculating net income (loss) per unit.
(2) The first quarter of 1996 was restated to reflect the 1996 agreement between
the Partnership and customer representatives on all outstanding contested
tariff rates, and the first quarter of 1995 was restated to reflect the June
1995 FERC decision.
F-13
<PAGE> 1
1996 FORM 10-K
EXHIBIT 10.15
AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT
AMONG
LAKEHEAD PIPE LINE COMPANY, INC.,
LAKEHEAD PIPE LINE PARTNERS, L.P.,
LAKEHEAD SERVICES, LIMITED PARTNERSHIP,
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP;
BANK OF MONTREAL
AS AGENT FOR THE BANKS;
HARRIS TRUST AND SAVINGS BANK
AS COLLATERAL AGENT FOR THE
BANKS FROM TIME TO TIME PARTY HERETO;
AND
THE BANKS SHOWN ON SCHEDULE 1.01
AND THE OTHER BANKS FROM
TIME TO TIME PARTY HERETO
SEPTEMBER 6, 1996
<PAGE> 2
TABLE OF CONTENTS
Article I - Definitions; Construction ................................... 2
Section 1.01 - Definitions ......................................... 2
Section 1.02 - Construction ........................................ 26
Section 1.03 - References, Exhibits ................................ 26
Section 1.04 - Accounting Matters .................................. 26
Section 1.05 - Types of Loans ...................................... 27
Section 1.06 - Computation of Time Periods ......................... 27
Article II - Amount and Terms of Credit ................................. 27
Section 2.01 - Loan Commitments .................................... 27
Section 2.02 - Notice of Borrowing ................................. 29
Section 2.03 - [Intentionally Omitted] ............................. 29
Section 2.04 - Disbursement of Funds ............................... 29
Section 2.05 - Notes ............................................... 30
Section 2.06 - Assumption of Loans by Another Borrower,
Several Liability of Borrowers, Etc. ................ 30
Section 2.07 - Interest and Fee Provisions ......................... 30
Section 2.08 - Security ............................................ 32
Section 2.09 - Pro Rata Borrowings ................................. 33
Section 2.10 - Illegality .......................................... 34
Section 2.11 - Increased Costs; Capital Adequacy ................... 34
Section 2.12 - Change of Lending Office ............................ 36
Section 2.13 - Deposits Unavailable ................................ 36
Section 2.14 - Continuation and Conversion Elections ............... 36
Section 2.15 - Funding ............................................. 37
Section 2.16 - Non-receipt of Funds by the Agent ................... 37
Section 2.17 - Interest Rate Determination ......................... 38
Section 2.18 - Interest ............................................ 38
Section 2.19 - Certain Events ...................................... 39
Section 2.20 - Voluntary Termination by Borrower ................... 39
Section 2.21 - Mandatory Action When Certain Indebtedness
Exceeds Required Amount ............................. 39
Section 2.22 - Adequate Stated Interest ............................ 39
Article III - Fees; Loan Commitments; Payments .......................... 40
Section 3.01 - Facility Fee ........................................ 40
Section 3.02 - Voluntary Reduction of Loan Commitments ............. 40
Section 3.03 - Mandatory Reduction of Total Loan Commitment ........ 40
Section 3.04 - Voluntary Prepayments ............................... 41
Section 3.05 - Mandatory Prepayments ............................... 42
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<PAGE> 3
Section 3.06 - Method and Place of Payment ........................... 42
Section 3.07 - Net Payments .......................................... 42
Section 3.08 - Pro Rata Treatment .................................... 44
Article IV - Conditions Precedent ......................................... 46
Section 4.01 - Conditions Precedent to the Initial Credit Event ..... 46
Section 4.02 - Conditions Precedent to Loans ........................ 48
Section 4.03 - Use of Proceeds ...................................... 48
Section 4.04 - Takeover Notification ................................ 48
Article V - Representations and Warranties ................................ 50
Section 5.01 - Organization ......................................... 50
Section 5.02 - Power and Authority, Licenses and Permits ............ 51
Section 5.03 - Authorization of Credit Documents; No Violation ...... 51
Section 5.04 - Enforceability of Credit Documents ................... 52
Section 5.05 - Financial Statements ................................. 52
Section 5.06 - [Intentionally Omitted] .............................. 52
Section 5.07 - Payment of Taxes ..................................... 52
Section 5.08 - Environmental Matters ................................ 53
Section 5.09 - Foreign Assets Control Regulations, etc............... 54
Section 5.10 - Disclosure ........................................... 54
Section 5.11 - Chief Executive Office ............................... 54
Section 5.12 - [Intentionally Omitted] .............................. 54
Section 5.13 - [Intentionally Omitted] .............................. 54
Section 5.14 - Indebtedness ......................................... 55
Section 5.15 - Assets and Business .................................. 55
Section 5.16 - Compliance with Other Instruments, etc................ 56
Section 5.17 - Governmental Consent ................................. 56
Section 5.18 - Federal Reserve Regulations .......................... 56
Section 5.19 - Investment Company Act ............................... 56
Section 5.20 - Public Utility Holding Company Act; Federal Power Act. 56
Section 5.21 - ERISA ................................................ 57
Article VI - Affirmative Covenants ........................................ 57
Section 6.01 - [Intentionally Omitted] ............................... 57
Section 6.02 - [Intentionally Omitted] ............................... 57
Section 6.03 - Reporting Covenants ................................... 57
Section 6.04 - Visitation, Inspection, Etc............................ 61
Article VII - Procedures on Prepayment .................................... 62
Section 7.01 - Notice of Optional Prepayments: Officer's Certificate. 62
Section 7.02 - [Intentionally omitted] .............................. 62
Section 7.03 - Contingent Prepayments on Disposition of Mortgaged
Properties ........................................... 62
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<PAGE> 4
Section 7.04 - Prepayment on Taking or Destruction .................... 63
Section 7.05 - Pro Rata Payment of Mortgage Notes ..................... 63
Article VIII - Business and Financial Covenants ............................ 64
Section 8.01 - Indebtedness ........................................... 64
Section 8.02 - Liens .................................................. 66
Section 8.03 - Investments/Guaranties, etc............................. 70
Section 8.04 - Restricted Payments .................................... 71
Section 8.05 - Transactions with Affiliates ........................... 72
Section 8.06 - Subsidiary Stock and Indebtedness ...................... 72
Section 8.07 - Mergers and Consolidations ............................. 73
Section 8.08 - Partnership or Corporate Existence, etc.; Business;
Compliance with Laws ................................... 75
Section 8.09 - Payment of Taxes and Claims, Etc........................ 76
Section 8.10 - Compliance with ERISA .................................. 76
Section 8.11 - Maintenance of Properties/Insurance .................... 77
Section 8.12 - Security Documents ..................................... 78
Section 8.13 - Chief Executive Office ................................. 78
Section 8.14 - Intentionally Omitted .................................. 78
Section 8.15 - Intentionally Omitted .................................. 78
Section 8.16 - Intentionally Omitted .................................. 78
Section 8.17 - Covenant to Secure Notes Equally ....................... 78
Section 8.18 - Intentionally Omitted .................................. 78
Section 8.19 - Rate Refund Reserve .................................... 78
Section 8.20 - More Restrictive Provisions ............................ 79
Article IX - Events of Default ............................................. 79
Section 9.01 - Events of Default ...................................... 79
Section 9.02 - Other Remedies ......................................... 82
Section 9.03 - No Cross-default ....................................... 82
Article X - The Agent and the Collateral Agent ............................. 82
Section 10.01 - Appointment ........................................... 82
Section 10.02 - Nature of Duties ...................................... 83
Section 10.03 - Lack of Reliance on the Agent and the Collateral Agent. 83
Section 10.04 - Certain Rights of the Agent, the Collateral Agent ..... 84
Section 10.05 - Reliance .............................................. 85
Section 10.06 - Indemnification ....................................... 85
Section 10.07 - Bank of Montreal/Harris Trust and Savings Bank ........ 85
Section 10.08 - Holders ............................................... 86
Section 10.09 - Resignation ........................................... 86
Section 10.10 - Representations and Warranties of the Banks
and the Collateral Agent .............................. 87
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Section 10.11 - Collateral Agent May Act Through Agents ............... 88
Section 10.12 - Indemnification ....................................... 88
Section 10.13 - Copies, etc............................................ 88
Article XI - Miscellaneous ................................................. 88
Section 11.01 - Payment of Expenses. etc............................... 88
Section 11.02 - Notices ............................................... 89
Section 11.03 - Benefit of Agreement; Participations and Assignments .. 89
Section 11.04 - No Waiver; Remedies Cumulative ........................ 92
Section 11.05 - Governing Law ......................................... 92
Section 11.06 - Counterparts .......................................... 92
Section 11.07 - Headings Descriptive .................................. 92
Section 11.08 - Amendment and Waiver .................................. 92
Section 11.09 - Collateral Agent Authorization ........................ 93
Section 11.10 - Transfer by Banks ..................................... 93
Section 11.11 - Debt Service Reserve .................................. 94
Section 11.12 - Indemnity by MLP and the Services Partnership ......... 95
Section 11.13 - Survival .............................................. 96
Section 11.14 - Severability .......................................... 96
Section 11.15 - Forum Selection and Consent to Jurisdiction ........... 96
Section 11.16 - Final Agreement ....................................... 97
Section 11.17 -[Intentionally omitted] ................................ 97
Section 11.18 - Renewal, Extension, and Amendment ..................... 97
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<PAGE> 6
SCHEDULES
Schedule 1.01 - Banks
Schedule 1.02 - Notes
Schedule 5.08 - Environmental Matters
Schedule 5.15(b)(ii) - Counties with Pipeline Assets
Schedule 5.15(c)(ii) - Counties / Facilities
Schedule 5.21(a) - ERISA Plans
EXHIBITS
Exhibit A - Notice of Non-Continuation
Exhibit B - Notice of Borrowing
Exhibit C - Notice of Continuation/Conversion
Exhibit D - Credit Event Certificate
Exhibit E - Operating Partnership Compliance Certificate
Exhibit F - Subordination Provisions
Exhibit G - Form of Assignment Agreement
-v-
<PAGE> 7
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of September
6, 1996 is made and entered into by and among LAKEHEAD PIPE LINE COMPANY, INC.,
a Delaware corporation (the "General Partner"), LAKEHEAD PIPE LINE PARTNERS,
L.P., a Delaware limited partnership (the "MLP"), LAKEHEAD SERVICES, LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Services Partnership"),
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP, a Delaware limited partnership
(the "Operating Partnership" and together with the MLP and the Services
Partnership, the "Borrowers"); the financial institutions listed on Schedule
1.01 hereto; BANK OF MONTREAL, a Canadian chartered bank as agent for the
"Banks" (hereinafter defined); and HARRIS TRUST AND SAVINGS BANK, an Illinois
banking corporation, as collateral agent for the Banks.
WITNESSETH:
WHEREAS, the General Partner and the Borrowers entered into that certain
Revolving Credit and Term Loan Facility Agreement dated as of December 12, 1991
(as the same may have been amended, modified or supplemented prior to the date
hereof, the "Existing Credit Agreement"), with Bank of Montreal as "Agent" and
"Technical Agent" (as each of said terms is therein defined) for the banks from
time to time party thereto; Harris Trust and Savings Bank as Collateral Agent
for such banks; and the banks listed in Schedule 1.01 thereto, pursuant to which
the banks from time to time party thereto agreed to make revolving loans to the
Borrowers in a maximum amount not to exceed $275,000,000 (which amount was
subsequently reduced by the Borrowers first to $225,000,000 and then to
$205,000,000);
WHEREAS, the General Partner and the Borrowers have requested that the
Banks continue to make available to the Borrowers revolving loans in a maximum
aggregate amount not to exceed $205,000,000 in accordance with the terms and
conditions of the Existing Credit Agreement as amended and restated as
hereinafter set forth;
WHEREAS, the Banks, subject to the terms and conditions hereinafter set
forth, have agreed and hereby agree so to do;
WHEREAS, Bank of Montreal has agreed to continue to act as Agent for the
Banks in accordance with terms and conditions of the Existing Credit Agreement
as amended and restated as hereinafter set forth and in accordance with certain
of the "Security Documents" (hereinafter defined);
<PAGE> 8
WHEREAS, Harris Trust and Savings Bank has agreed to continue to act as
Collateral Agent for the Banks in accordance with terms and conditions of the
Existing Credit Agreement as amended and restated as hereinafter set forth and
in accordance with certain of the Security Documents; and
WHEREAS, accordingly, the General Partners, the Borrowers, the Banks listed
in Schedule 1.01 hereto, the Agent, and the Collateral Agent have agreed to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
SECTION 1.01 Definitions. As used herein and in any other of the "Credit
Documents" (hereinafter defined) unless otherwise defined therein, the following
terms shall have the meanings specified hereinbelow unless the context otherwise
requires. Each term defined in this Section 1.01 or in any other provision of
this Agreement in the singular shall have the same meanings in the plural and
vice versa.
"Affiliate" shall mean as applied to any Person, any Person directly or
indirectly controlling or controlled by or under common control with such
Person, provided that, for purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with") as used with respect to any Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether as a general partner or through the ownership
of voting securities or by contract or otherwise.
"Agent" shall mean, Bank of Montreal, acting hereunder in its capacity as
agent for the Banks and its successors appointed pursuant to Article X.
"Agreement" shall mean this Amended and Restated Revolving Credit
Agreement, as amended, supplemented or modified from time to time, including,
but not limited to, by that certain First Amendment to Amended and Restated
Credit Agreement dated of even date herewith executed by the General Partner,
the Borrowers and the Agent (for so long as the same shall be in effect).
"Acquired Assets" shall mean, at any date of determination, any assets
other than Newly Constructed Assets acquired by the Operating Partnership or any
of its Subsidiaries from any Person at any time during the four consecutive
calendar quarter period used to determine Consolidated Cash Flow as at such date
of determination.
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"Allocable Excess Sales Proceeds" shall have the meaning assigned to such
term in Section 7.03(a).
"Applicable Anniversary Date" shall have the meaning assigned to such term
in Section 2.01.
"Applicable Margin" and "Applicable Facility Fee" shall mean, as
applicable, the following percentages for the specified Levels, Types of Loans,
and Collateral:
PRICING CHART
<TABLE>
<CAPTION>
PRIME LIBOR
COLLATERAL RATE CD RATE RATE APPLICABLE
LEVELS TYPE LOAN LOAN LOAN FACILITY FEE
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
I Qualifying Securities -0- .125% .125% .075%
Mortgaged Properties -0- .125% .125% .075%
II Qualifying Securities -0- .125% .125% .085%
Mortgaged Properties -0- .165% .165% .085%
III Qualifying Securities -0- .125% .125% .100%
Mortgaged Properties -0- .225% .225% .100%
IV Qualifying Securities -0- .125% .125% .1875%
Mortgaged Properties -0- .3125% .3125% .1875%
V Qualifying Securities -0- .125% .125% .250%
Mortgaged Properties -0- .750% .750% .250%
</TABLE>
For purposes of the foregoing Pricing Chart:
Level I shall be applicable, as at any date of determination, if the Cash
Flow/Interest Coverage Pricing Ratio as at such date shall be equal to or
greater than 3.75; or, upon notice to the Agent, at any time that the senior,
secured debt of either the MLP or the Operating Partnership is rated AA- or
better (or the comparable equivalent thereof if the rating system is changed) by
S&P or Aa3 (or the comparable equivalent thereof if the rating system is
changed) by Moody s;
Level II shall be applicable, as at any date of determination, if the Cash
Flow/Interest Coverage Pricing Ratio as at such date shall be equal to or
greater than 3.00 but less than 3.75, or upon notice to the Agent, at any time
that the senior, secured debt of either the MLP or the Operating Partnership is
rated A- or better but not as high as AA- (or the comparable equivalents
thereof if the rating system is changed) by S&P or A3 or better but not as high
as Aa3 (or the comparable equivalents thereof if the rating system is changed)
by Moody s, unless Borrowers otherwise qualify for the Applicable Margin and
Applicable Facility Fee specified above for Level I;
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<PAGE> 10
Level III shall be applicable, as at any date of determination, if the Cash
Flow/Interest Coverage Pricing Ratio as at such date shall be equal to or
greater than 2.50 but less than 3.00, or upon notice to the Agent, at any time
that the senior, secured debt of either the MLP or the Operating Partnership is
rated BBB or better but not as high as A- (or the comparable equivalents thereof
if the rating system is changed) by S&P or Baa2 or better but not as high as A3
(or the comparable equivalents thereof if the rating system is changed) by
Moody's, unless Borrowers otherwise qualify for the Applicable Margin and
Applicable Facility Fee specified above for Level I or Level II;
Level IV shall be applicable, as at any date of determination, if the Cash
Flow/Interest Coverage Pricing Ratio as at such date shall be equal to or
greater than 2.25 but less than 2.50, or upon notice to the Agent, at any time
that the senior, secured debt of either the MLP or the Operating Partnership is
rated BBB- (or the comparable equivalent thereof if the rating system is
changed) by S&P or Baa3 (or the comparable equivalent thereof if the rating
system is changed) by Moody's, unless Borrowers otherwise qualify for the
Applicable Margin and Applicable Facility Fee specified above for Levels I, II
or III; and
Level V shall be applicable, as at any date of determination, if the Cash
Flow/Interest Coverage Pricing Ratio as at such date shall be less than 2.25,
unless Borrowers provide notice to the Agent in respect of the rating of the
senior, secured debt of either the MLP or the Operating Partnership, and as a
result of such rating, Borrowers qualify for the Applicable Margin and
Applicable Facility Fee specified above for Levels I, II, III or IV, as
applicable.
"Assessment Rate" shall mean, for any date, the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Agent as the then-current net annual assessment rate that would be employed in
determining amounts payable by the Banks to the FDIC for insurance by the FDIC
of time deposits made in Dollars at the Agent's Domestic Lending Office.
"Assets" shall mean, collectively, the regulated crude oil and natural gas
liquids pipeline business and assets of the MLP (including, without limitation,
approximately 2,600 miles of pipeline with diameters ranging from 12 inches to
48 inches, 45 main line pump station locations with a total of approximately
470,000 installed horsepower and 43 tanks with a capacity of approximately 8.5
million barrels).
"Assignee" shall have the meaning assigned to such term in Section
11.03(b).
"Assignment Agreement" shall have the meaning assigned to such term in
Section 11.03(b).
"Assignor" shall have the meaning assigned to such term in Section
11.03(b).
"Assumption Agreements" shall mean, collectively, the assumption agreements
executed, respectively, by any of the Borrowers pursuant to Section 2.06.
"Available Cash" shall mean, with respect to any calendar quarter:
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<PAGE> 11
(a) the sum of (i) all cash receipts of the Operating Partnership
during such quarter from all sources and (ii) any reduction in cash
reserves established in prior quarters, less (b) the sum of (i) all cash
disbursements of the Operating Partnership during such quarter (excluding
Restricted Payments), plus (ii) any cash reserves established in such
quarter or any increase in cash reserves established in prior quarters in
such amounts as the general partner of the Operating Partnership shall
determine to be necessary or appropriate in its reasonable discretion (A)
to provide for the proper conduct of the business of the Operating
Partnership (including cash reserves for future capital expenditures), (B)
to provide for reserves in an amount equal to the incremental revenues
collected by the Operating Partnership and its Subsidiaries pursuant to a
rate increase that are subject to possible refund or (C) to provide funds
for the payment of debt service (including the payment of principal,
prepayment amounts, if applicable, and interest) of the Operating
Partnership in respect of the Notes, the Mortgage Notes and any other
Indebtedness of the Operating Partnership with respect to any of the next
four quarters, plus (iii) any other cash reserves established in such
quarter in such amounts as the general partner of the Operating Partnership
determines in its reasonable discretion to be necessary because the payment
of Restricted Payments in such amounts would be prohibited by applicable
law or other agreement (including this Agreement), security agreement,
mortgage, debt instrument or other agreement or obligation to which the
Operating Partnership is a party or by which it is bound or its assets are
subject; provided that Available Cash shall reflect (w) in each calendar
quarter a reserve equal to at least 50% of the aggregate amount of all
interest in respect of the Notes, the Mortgage Notes and any other
Indebtedness of the Operating Partnership secured pursuant to Section
8.02(i) to be paid in the next quarter (assuming, in the case of the Notes,
that the rate of interest will be the Fluctuating Rate and, in the case of
other Indebtedness bearing interest at fluctuating interest rates which
cannot be determined in advance, that the interest rate in effect on the
last Business Day of the immediately preceding calendar quarter will remain
in effect until such Indebtedness is due to be paid), (x) with respect to
the Mortgage Notes and any of such other Indebtedness of which principal is
payable annually, in the third calendar quarter immediately preceding each
calendar quarter in which any scheduled principal payment is due with
respect to such Mortgage Notes and other Indebtedness (a "principal payment
quarter"), a reserve equal to at least 25% of the aggregate amount of all
principal to be paid in respect of such Mortgage Notes and other
Indebtedness in such principal payment quarter; in the second calendar
quarter immediately preceding a principal payment quarter, a reserve equal
to at least 50% of the aggregate amount of all principal to be paid in
respect of such Mortgage Notes and other Indebtedness in such principal
payment quarter, and in the calendar quarter immediately preceding a
principal payment quarter, a reserve equal to at least 75% of the aggregate
amount of all principal to be paid in respect of such Mortgage Notes and
other such Indebtedness in such principal payment quarter, (y) with respect
to any other Indebtedness of which principal is payable semi-annually or
more frequently, in each calendar quarter a reserve equal to at least 50%
of the aggregate amount of all principal to be paid in respect of such
other Indebtedness in the next quarter, and (z) a reserve comprised of any
other amounts required pursuant to Section 11.11(b) of this Agreement.
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<PAGE> 12
"Bankruptcy Code" shall mean Title 11 of the United States Code, as
amended.
"Banks" shall mean the financial institutions listed in Schedule 1.01
hereto and all Persons who become Banks pursuant to subsections 2.01, 11.03(b)
or 11.03(c).
"Base CD Rate" means, relative to any Interest Period for CD Rate Loans,
the secondary rate (adjusted to the basis of a year of 365 or 366 days, as the
case may be) for certificates of deposit having a maturity approximately equal
to such Interest Period reported as being in effect on such day (or, if such day
shall not be a Business Day, the next preceding Business Day) by the Board of
Governors of the Federal Reserve System (the "Board") through the public
information telephone line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published in the Federal
Reserve Statistical Release H.15(519) during the week following such day), or if
such rate shall not be so reported on such day or such next preceding Business
Day, the average of the secondary market quotations for certificates of deposit
having a maturity approximately equal to such Interest Period of major money
center banks in New York City received at approximately 10:00 A.M., New York
City time on such day (or, if such day shall not be a Business Day, on the next
preceding Day) by the Agent from three New York City negotiable certificate of
deposit dealers of recognized standing selected by the Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States or any successor thereto.
"Borrowers" shall have the meaning assigned to such term in the
introductory paragraph hereof, provided, however, that such term shall not
include any such Person which has as of the date of determination has ceased to
be a Borrower under this Agreement pursuant to Section 2.20, and "Borrower"
shall mean any of the Borrowers.
"Borrowing" shall mean a borrowing by a Borrower of any Loan pursuant to a
Notice of Borrowing or a conversion of a Loan from one Type of Loan to another
Type of Loan pursuant to a Notice of Continuation/Conversion. Each Borrowing
shall be of one Type of Loan.
"Business" shall mean the operation by the Operating Partnership and its
Subsidiaries of the regulated crude oil and natural gas liquids pipeline system.
"Business Day" shall mean any day excluding Saturday, Sunday, and any other
day on which banks are required or authorized to close in New York City, New
York or Chicago, Illinois and, if the applicable day relates to LIBOR Rate
Loans, on which trading is carried on by and between banks in Dollar deposits in
the interbank eurodollar market.
"Capital Lease" shall mean, as applied to any Person, any lease of any
property (whether real, personal or mixed) by such Person (as lessee or
guarantor or other surety) which would, in accordance with GAAP, be required to
be classified and accounted for as a capital lease on a balance sheet of such
Person.
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<PAGE> 13
"Cash Flow Available for Debt Service" shall mean, as of any calendar
quarter-end (a) EBITDA for the most recently-ended four calendar quarter period
(including the calendar quarter then ending), less (b) the amount of investment
income generated by such Person and its Subsidiaries on a consolidated basis
from the investment of cash and cash equivalents during such period.
"Cash Flow/Interest Coverage Pricing Ratio" means, as of the end of each
calendar quarter, the quotient obtained by dividing (A) the sum of (a) EBITDA
plus (b) to the extent not included in EBITDA, EBITDA with respect to Acquired
Assets, excluding, however, (c) any nonrecurring amounts (including, without
limitation, amounts paid to shippers (or accrued) pursuant to decisions of
regulatory bodies or negotiated settlement agreements) to the extent included in
the foregoing clauses (a) and (b), less (d) the amount of investment income
generated by such Person and its Subsidiaries on a consolidated basis from the
investment of cash and cash equivalents, in each case for the period of four
consecutive calendar quarters ending on such calendar quarter ending date by (B)
the sum of (x) the Consolidated Gross Interest Expense less (y) the amount of
investment income generated by such Person and its Subsidiaries on a
consolidated basis from the investment of cash and cash equivalents for the same
four consecutive calendar quarter period.
"CD" shall mean Certificate of Deposit.
"CD Rate" for any Interest Period shall mean for each CD Rate Loan an
interest rate per annum determined by the Agent to be the sum (rounded upwards
to the nearest 1/16th of 1%) of: (a) the product of (i) the Base CD Rate and
(ii) Statutory Reserves plus (b) the Assessment Rate.
"CD Rate Loan" shall mean any Loan made or converted at the CD Rate plus
the Applicable Margin pursuant to a Notice of Borrowing or a Notice of
Continuation/Conversion or otherwise pursuant to the terms of this Agreement.
"CD Reserve Percentage" shall mean, relative to any Interest Period for CD
Rate Loans, a percentage (expressed as a decimal) equal to the maximum aggregate
reserve requirements (including all basic, supplemental, marginal and other
reserves and taking into account any transitional adjustments or other scheduled
changes in reserve requirements), specified under regulations issued from time
to time by the Board and then applicable to the class of banks of which Agent is
a member, on deposits of the type used as a reference in determining the CD Rate
and having a maturity approximately equal to such Interest Period.
"CERCLA" shall mean the Federal Comprehensive Environmental Response,
Compensation and Liability Act, as amended.
"Change" shall have the meaning assigned to such term in Section
2.11(a)(i).
"Closing" shall mean the closing of the transactions contemplated by this
Agreement.
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<PAGE> 14
"Closing Date" shall mean the date on which the conditions precedent
specified in Section 4.01 are first satisfied and the Initial Credit Event shall
have occurred.
"Closing Date Pricing Certificate" shall have the meaning assigned to such
term in Section 4.01(c).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collateral" shall mean, as applicable, Qualifying Securities or Mortgaged
Properties.
"Collateral Agent" shall mean Harris Trust and Savings Bank acting in its
capacity as collateral agent for the Banks and its successors appointed pursuant
to Article X.
"Communications" shall have the meaning assigned to such term in Section
11.02.
"Consolidated Cash Flow" shall mean, at any date of determination, (a) all
cash receipts of the Operating Partnership and its Subsidiaries from operations
(except in respect of Acquired Assets or Newly Constructed Assets which are
treated below in this definition) during the period of four consecutive calendar
quarters most recently ended prior to such date of determination, but excluding
(A) cash proceeds from Interim Capital Transactions and (B) net cash receipts
from operations in respect of assets sold pursuant to Section 8.07(c), less (b)
the amount of investment income received by such Person and its Subsidiaries on
a consolidated basis during such period from the investment of cash and cash
equivalents, less (c) the sum of:
(i) all cash operating expenditures of the Operating Partnership and
its Subsidiaries during such period (including, without limitation, cash
operating expenditures of Subsidiaries prior to the acquisition thereof by
the Operating Partnership and taxes paid by the Operating Partnership as an
entity and by its Subsidiaries during such period),
(ii) an amount equal to the actual reserves, if any, established by
the general partner of the Operating Partnership during such period for the
incremental revenues collected by the Operating Partnership and its
Subsidiaries during such period pursuant to a rate increase which revenues
are, at such date of determination, subject to possible refund,
(iii) the amount, if any, by which cash reserves outstanding as of the
end of the period that the general partner of the Operating Partnership
determines in its reasonable discretion to be necessary or appropriate to
provide for the future cash payment of expenditures of the type referred to
in clause (i) above exceeds such cash reserves outstanding at the beginning
of such period, plus
(iv) the amount, if any, by which cash reserves outstanding at the end
of the period that the general partner of the Operating Partnership
determines in its reasonable discretion to be necessary or appropriate to
provide funds for distributions with respect to the four
-8-
<PAGE> 15
calendar quarters following the end of such period exceeds such cash
reserves outstanding at the beginning of such period,
plus (d) with respect to Acquired Assets, an amount equal to the cash receipts
generated by such Acquired Assets (less actual cash operating expenditures paid
with respect to such Acquired Assets) during the four consecutive calendar
quarters ending on the date of determination (regardless of the ownership
thereof during such period), plus (e) with respect to Newly Constructed Assets,
an amount equal to the product obtained by multiplying (i) the cost thereof by
(ii) the interest rate applicable to United States Treasury Bonds with a
maturity of 30 years (which interest rate shall be determined as of the
applicable date of determination) plus 1%,
all as determined on a consolidated basis and after elimination of intercompany
items. For the purposes of the foregoing clause (ii) of this definition, the
Operating Partnership shall be deemed to have established a cash reserve in the
maximum amount required to be established (or, if not so required, the maximum
amount which the holders of a majority of the aggregate principal amount of the
MP Loans, in their discretion, may require the Operating Partnership to
establish) pursuant to Section 8.19 (the "Deemed Reserve Amount") if at the date
of determination the actual cash reserve, if any, established as described in
clause (ii) of this definition is less than the Deemed Reserve Amount.
"Consolidated Gross Interest Expense" means, as of the end of any calendar
quarter, Consolidated Interest Expense plus the amount of capitalized interest
(as determined in accordance with GAAP) of the Operating Partnership and its
Consolidated Subsidiaries during the same four calendar quarters used to
determine Consolidated Interest Expense as of such calendar quarter-end.
"Consolidated Interest Expense" means, as of the end of any calendar
quarter, the interest expense of the Operating Partnership and its consolidated
Subsidiaries incurred for the financing of the ordinary course of business
operations of the Operating Partnership and its consolidated Subsidiaries during
the period of the four most recently completed calendar quarters ending on such
calendar quarter ending date (as determined in accordance with GAAP).
"Consolidated Net Worth" of any Person shall mean the amount by which (a)
the total assets of such Person and, if applicable, its Subsidiaries appearing
on a balance sheet (consolidated, if applicable) of such Person and, if
applicable, its Subsidiaries prepared in accordance with GAAP on a consolidated
basis, as of the date of determination exceeds (b) the total liabilities of such
Person and, if applicable, its Subsidiaries appearing on a balance sheet of such
Person and, if applicable, its Subsidiaries prepared in accordance with GAAP as
of the date of determination on a consolidated basis, in each case after
eliminating all intercompany transactions.
"Consolidated Pro Forma Debt Service" means, at any date of determination,
(a) the total amount payable by any Person and its Subsidiaries on a
consolidated basis, after eliminating all intercompany transactions, during the
four consecutive calendar quarters next succeeding the date of determination, in
respect of scheduled principal payments and all interest charges with respect
to
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<PAGE> 16
Indebtedness of such Person and its Subsidiaries outstanding on such date of
determination, after giving effect to any Indebtedness proposed to be incurred
on such date and to the substantially concurrent repayment of any other
Indebtedness, including actual payments under Capital Lease obligations, (b)
less the amount of investment income received by such Person and its
Subsidiaries on a consolidated basis during such period from the investment of
cash and cash equivalents, (i) assuming, in the case of the Indebtedness under
this Agreement (other than Indebtedness secured by Qualifying Securities), that
such Indebtedness will bear interest at the Fluctuating Rate and, in the case of
other Indebtedness bearing interest at fluctuating interest rates which cannot
be determined in advance, that the rate in effect on such date will remain in
effect throughout such period; (ii) in the case of any Working Capital Facility,
including only actual interest payments paid pursuant thereto during the most
recent four calendar quarters; and (iii) treating the principal amount of all
Indebtedness outstanding as of such date of determination under a revolving
credit or similar agreement other than any Working Capital Facility, as maturing
and becoming due and payable in equal quarterly installments over (A) a term of
seven years if the maturity or termination date thereof is seven years or less
or (B) if the maturity or termination date thereof is more than seven years,
over such longer term.
"Coverage Ratio" shall mean as of the end of any calendar quarter after the
Closing Date, the quotient obtained by dividing Cash Flow Available for Debt
Service as of the end of such calendar quarter by the Consolidated Pro Forma
Debt Service as of the end of such calendar quarter.
"Credit Documents" shall mean this Agreement, the Assumption Agreements,
the Notes, the Security Documents, the Special Agency Agreement, each Notice of
Borrowing and each Notice of Continuation/Conversion.
"Credit Event" shall mean an advance of funds made by the Banks pursuant to
Article II (including any reborrowings under the Loan Commitment), a conversion
from one Type of Loan to any other Type of Loan, the continuation of a Loan
pursuant to Section 2.14 or the assumption by one Borrower of Loans outstanding
to another Borrower pursuant to an Assumption Agreement.
"Credit Transactions" shall mean the credit transactions governed by this
Agreement.
"Debt Service Reserve" shall mean the reserve for debt service for the MP
Loans and the Mortgage Notes established and maintained by the Operating
Partnership with the Special Agent and described in Section 11.11.
"Deemed Reserve Amount" shall have the meaning assigned to such term in the
definition of Consolidated Cash Flow.
"Default" shall mean any condition or event which, with notice or lapse of
time or both, would constitute an Event of Default.
"Defaulting Borrower" shall have the meaning assigned to such term in
Section 9.01.
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<PAGE> 17
"Dollar" and the sign "$" shall mean lawful money of the United States of
America.
"Domestic Lending Office" shall mean, with respect to any Bank, the office
of such Bank specified as its "Domestic Lending Office" on Schedule 1.01 to this
Agreement, or such other office of such Bank as such Bank may from time to time
specify to the Borrowers and the Agent.
"EBITDA" shall mean, for any period, (a) Net Income for such period plus
(b) depreciation, amortization, interest expense, and income taxes for such
period, in each case to the extent deducted in determining Net Income for such
period, less the Rate Refund Reserve to the extent contributions thereto are not
deducted in determining Net Income for such period, all as determined on a
consolidated basis for the Operating Partnership and its Subsidiaries.
"Electing Bank" shall mean any Bank which elects not to continue the Loan
Period and is so identified in a Notice of Non-Continuation provided to the
Borrowers as contemplated in Section 2.01(a).
"Environmental Laws" shall mean applicable federal, state, local, and
foreign laws, rules or regulations relating to emissions, discharges, releases
or threatened releases of pollutants, contaminants, chemicals or industrial,
toxic or hazardous substances or wastes into the environment (including, without
limitation, air, surface water, ground water, or land), or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, chemicals or industrial,
toxic or hazardous substances or wastes.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Eurocurrency Liabilities" shall have the meaning currently assigned to
such term in Regulation D of the Board.
"Event of Default" shall have the meaning assigned to such term in Article
IX.
"Excess Sales Proceeds" shall have the meaning specified in Section
8.07(c)(ii)(B).
"Existing Credit Agreement" shall have the meaning assigned to such term in
the recitals hereof.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor thereto.
"FERC" shall mean the Federal Energy Regulatory Commission or any successor
thereto with authority to regulate crude oil and natural gas liquids pipelines.
"Federal Funds Rate" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to (a) the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as
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<PAGE> 18
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York; or (b) if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such transactions received by the Agent from three federal funds
brokers of recognized standing selected by the Agent.
"Fluctuating Rate" shall mean, as of any date of determination, the rate of
interest which is equal to the greater of (a) the LIBOR Quoted Rate for one
month loans on such date of determination plus the Applicable Margin, and (b)
the LIBOR Quoted Rate for 12-month loans on such date of determination plus the
Applicable Margin.
"Foreign Bank" shall have the meaning assigned to such term in Section
3.07(e).
"Form 1001 Certification" shall have the meaning assigned to such term in
Section 3.07(e).
"Form 4224 Certification" shall have the meaning assigned to such term in
Section 3.07(e).
"Funded Debt" means with respect to any Person, all Indebtedness of such
Person which by its terms or by the terms of any instrument or agreement
relating thereto matures one year or more from the date of the initial creation
thereof, provided that Funded Debt shall include any Indebtedness which does not
otherwise come within the foregoing definition but which is directly or
indirectly renewable or extendible at the option of the debtor to a date one
year or more (including an option of the debtor under a revolving credit or
similar agreement obligating the lender or lenders to extend credit over a
period of one year or more) from the date of the initial creation thereof,
except any Working Capital Facility.
"GAAP" shall mean generally accepted accounting principles in effect in the
United States from time to time.
"General Partner" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Guaranty" shall mean, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person with respect to any
indebtedness, lease, dividend or other obligation of another, including, without
limitation, any such obligation directly or indirectly guaranteed, endorsed
(other than for collection or deposit in the ordinary course of business) or
discounted or sold with recourse by such Person, or in respect of which such
Person is otherwise directly or indirectly liable or any other obligation under
any contract which, in economic effect, is substantially equivalent to a
guaranty, including, without limitation, any such obligation of a partnership in
which such Person is a general partner or of a joint venture in which such
Person is a joint venturer, and any such obligation in effect guaranteed by such
Person through any agreement (contingent or otherwise) to purchase, repurchase
or otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), or to
maintain the solvency or any balance sheet or
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<PAGE> 19
other financial condition of the obligor of such obligation, or to make payment
for any products, materials or supplies or for any transportation or services
regardless of the non-delivery or non-furnishing thereof, in any such case if
the purpose or intent of such agreement is to provide assurance that such
obligation will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such obligation will be protected
against loss in respect thereof.
"Highest Lawful Rate" shall mean, at any date, the maximum nonusurious
interest rate that may under applicable law then be contracted for, charged,
received, taken, or reserved by a Bank in connection with the Loans made by such
Bank.
"Indebtedness" of any Person shall mean (without duplication):
(a) any indebtedness for borrowed money which such Person has directly
or indirectly created, incurred or assumed;
(b) any indebtedness, whether or not for borrowed money, secured by
any Lien in respect of property owned by such Person, whether or not such
Person has assumed or become liable for the payment of such indebtedness,
provided that the amount of such Indebtedness if not so assumed shall in no
event be deemed to be greater than the fair market value from time to time
(as determined in good faith by such Person) of the property subject to
such Lien;
(c) any indebtedness, whether or not for borrowed money, with respect
to which such Person has become directly or indirectly liable and which
represents the deferred purchase price (or a portion thereof) or has been
incurred to finance the purchase price (or a portion thereof) of any
property, service or business acquired by such Person, whether by purchase,
consolidation, merger or otherwise, excluding, however, trade accounts
payable incurred in the ordinary course of business by the Person whose
Indebtedness is being determined;
(d) any obligations under Capital Leases to the extent such
obligations would, in accordance with GAAP, appear on a balance sheet of
such Person;
(e) any indebtedness of the character referred to in clause (a), (b),
or (d) of this definition deemed to be extinguished under GAAP but for
which such Person remains legally liable; and
(f) any indebtedness of any other Person of the character referred to
in clause (a), (b), (c), (d) or (e) of this definition with respect to
which the Person whose Indebtedness is being determined has become liable
by way of a Guaranty.
"Indirect Obligations" shall have the meaning assigned to such term in
Section 2.06.
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<PAGE> 20
"Initial Credit Event" shall have the meaning assigned to such term in
Section 4.01 hereof.
"Interest Payment Date" shall mean: (a) with respect to any CD Rate Loan or
LIBOR Rate Loan, the last day of the Interest Period applicable thereto, except
that in the case of any LIBOR Rate Loan or CD Rate Loan secured by Qualifying
Securities with an Interest Period of more than six months duration, the
Interest Payment Date shall also be such day that would have been the Interest
Payment Date for such Loan had successive Interest Periods of six months been
applicable to such Loan; and (b) with respect to any Prime Rate Loan, the last
day of each calendar month.
"Interest Period" means, with respect to each CD Rate Loan and LIBOR Rate
Loan, the duration of such Loan and:
(a) as to any LIBOR Rate Loan, the period commencing on the date such
Loan is made, or continued as, or converted into, a LIBOR Rate Loan and
ending on any date not more than 12 months thereafter, as the relevant
Borrower may elect;
(b) as to any CD Rate Loan, the period commencing on the date such
Loan is made, or continued, as or converted into, a CD Rate Loan and ending
on any date not more than 365 days thereafter, as the relevant Borrower may
elect; and
(c) as to any Prime Rate Loan, the period commencing on the date such
Loan is made, or continued as, or converted into, a Prime Rate Loan and
ending on the next succeeding Business Day;
provided, however, that:
(a) Borrowers may not select any Interest Period for any Loan which
ends on a day which is later than the Loan Termination Date;
(b) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day unless, with
respect to LIBOR Rate Loans only, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day; and
(c) the Borrowers shall select Interest Periods so as not to require a
payment or prepayment of any LIBOR Rate Loan or CD Rate Loan other than on
the last day of an Interest Period for such Loan.
"Interest Rate Agreement" shall mean any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to protect the Operating Partnership, or any
of its Subsidiaries against fluctuations in interest rates on Parity Debt
outstanding under this Agreement.
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<PAGE> 21
"Interest Rate Unwind Obligations" shall mean any "breakage" amount or
other similar amount due as a result of early termination of an Interest Rate
Agreement upon the occurrence of a default or other special termination event
thereunder.
"Interim Capital Transactions" shall mean (a) borrowings and sales of debt
securities (other than for working capital purposes and other than for items
purchased on open account in the ordinary course of business) by the Operating
Partnership, (b) sales of equity interests by the Operating Partnership or
capital contributions to the Operating Partnership, and (c) sales or other
voluntary or involuntary dispositions of any assets of the Operating Partnership
(other than (i) sales or other dispositions of inventory in the ordinary course
of business, (ii) sales or other dispositions of other current assets including
accounts receivable or (iii) sales or other dispositions of assets as a part of
normal retirements or replacements), in each case prior to the commencement of
the dissolution and liquidation of the Operating Partnership.
"Interprovincial System" shall mean the 3,200-mile crude oil pipeline which
extends from western Canada through the upper and lower Great Lakes region of
the United States to eastern Canada.
"Inventory" shall mean goods held by a Person for sale or lease or to be
furnished under contracts of services or if such Person has so furnished them,
or if they are raw materials, work in process or materials used or consumed in
the Business (but not goods which are, or may become, fixed assets, or which
have a relatively long period of use).
"Investments" shall mean, as applied to any Person, any direct or indirect
purchase or other acquisition by such Person of stock or other securities of any
other Person, or any direct or indirect loan, advance or capital contribution by
such Person to any other Person and any other item which would be classified as
an investment on a balance sheet of such Person prepared in accordance with
GAAP, including, without limitation, any direct or indirect contribution by such
Person of property or assets to a joint venture, partnership or other business
entity in which such Person retains an interest. For the purposes of Section
8.03, the amount involved in Investments made during any period shall be the
aggregate cost to such Person of all such Investments made during such period,
determined in accordance with GAAP, but without regard to unrealized increases
or decreases in value, or write-ups, write-downs or write-offs, of such
investments and without regard to the existence of any undistributed earnings or
accrued interest with respect thereto accrued after the respective dates on
which such Investments were made, less any net return of capital realized during
such period upon the sale, repayment or other liquidation of such Investment
(determined in accordance with GAAP, but without regard to any amounts received
during such period as earnings (in the form of dividends not constituting a
return of capital, interest or otherwise) on such Investment) or as loans from
any Person in whom such Investments have been made.
"IPL" shall mean Interprovincial Pipe Line Inc., a Canadian corporation.
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<PAGE> 22
"It" or "it" shall have the meaning assigned to such terms in Article V,
Article VI and Article VIII.
"Legal Requirement" shall mean any law, statute, ordinance, decree,
requirement, order, judgment, rule or regulation (or published official
interpretation by any governmental authority of any of the foregoing) of any
governmental authority.
"LIBOR Office" shall mean, with respect to any Bank, the office of such
Bank specified as its "LIBOR Office" in Schedule 1.01 to this Agreement, or such
other office of such Bank as such Bank may from time to time specify to the
Borrowers and the Agent.
"LIBOR Quoted Rate" shall mean the average rate of interest reported, as of
4:00 p.m. (New York City time) on the Business Day next preceding the date of
determination, on the display designated as Page 4136 on the Telerate Service
(or such other display as may replace Page 4136 on the Telerate Service).
"LIBOR Rate" for any Interest Period shall mean for each LIBOR Rate Loan an
interest rate per annum (rounded upwards, if necessary, to the next 1/16th of
1%) determined by the Agent by multiplying (a) the arithmetic average of rates
at which Dollar deposits approximately equal to the principal amount of each
Reference Bank's LIBOR Rate Loan and for a maturity comparable to such Interest
Period are offered to the LIBOR Office of each such Reference Bank, at or about
11:00 am., New York time, two Business Days before the first day of such
Interest Period, by (b) Statutory Reserves.
"LIBOR Rate Loan" shall mean any Loan made or converted at the LIBOR Rate
plus the Applicable Margin pursuant to a Notice of Borrowing or a Notice of
Conversion or otherwise pursuant to the terms of the Agreement.
"LIBOR Reserve Percentage" means, relative to any Interest Period for LIBOR
Rate Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) specified under regulations
issued from time to time by the Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the Board, having a term approximately equal or
comparable to such Interest Period.
"Lien" shall mean, as to any Person, any mortgage, lien (statutory or
otherwise), pledge, reservation, right of entry, encroachment, easement,
right-of-way, restrictive covenant, license, charge, security interest or other
encumbrance in or on, or any interest or title of any vendor, lessor, lender or
other secured party to or of such Person under any conditional sale or other
title retention agreement or Capital Lease with respect to, any property or
asset owned or held by such Person, or the signing or filing of a financing
statement with respect to any of the foregoing which names such Person as
debtor, or the signing of any security agreement with respect to any of the
foregoing
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<PAGE> 23
authorizing any other party as the secured party thereunder to file any
financing statement or any other agreement to give or grant any of the
foregoing. For the purposes of this Agreement, a Person shall be deemed to be
the owner of any asset which it has placed in trust for the benefit of the
holders of Indebtedness of such Person and such trust shall be deemed to be a
Lien if such Indebtedness is deemed to be extinguished under GAAP and such
Person remains legally liable therefor.
"Loan" shall have the meaning assigned to such term in Section 2.01.
"Loan Commitment" shall mean, with respect to each Bank, the amount set
forth opposite such Bank s name in Schedule 1.01 under the heading "Loan
Commitment", as the same may be reduced from time to time pursuant to Article
II, Article III or Article IX.
"Loan Maturity Date" shall mean that date on which the indebtedness owing
under the Loans shall be due and payable in full in accordance with Section 2.01
or as a result of acceleration thereof pursuant to Article IX hereof.
"Loan Period" shall mean the period commencing on the Closing Date and
ending on the Loan Termination Date.
"Loan Termination Date" shall mean the Loan Maturity Date or, if earlier,
the date on which the Borrowers or the Banks terminate in full the Loan
Commitment pursuant to Article II, Article III or Article IX.
"Material Adverse Effect" shall mean, as to any Person, a material adverse
change in the business, financial condition, properties or assets, or results of
operations of, such Person which could reasonably be expected to have a material
adverse effect on such Person s ability to perform its obligations under this
Agreement or any other Credit Document to which such Person is a party.
"Maximum Consolidated Pro Forma Debt Service" means, as at any date of
determination, (a) the highest total amount payable by any Person and its
Subsidiaries on a consolidated basis, after eliminating all intercompany
transactions, during any period of four consecutive calendar quarters,
commencing with the fiscal quarter in which such date of determination occurs
(and based on Indebtedness outstanding as of such date of determination) and
ending on December 31, 2011, in respect of scheduled principal payments and all
interest charges with respect to all Indebtedness of any Person and its
Subsidiaries outstanding on such date of determination, after giving effect to
any Indebtedness proposed to be incurred on such date and to the substantially
concurrent repayment of any other Indebtedness, including actual payments under
Capital Lease obligations, less (b) the amount of investment income received by
such Person and its Subsidiaries on a consolidated basis during such period from
the investment of cash and cash equivalents, (i) assuming, in the case of the
Indebtedness under this Agreement (other than Indebtedness secured by Qualifying
Securities), that such indebtedness will bear interest at the Fluctuating Rate,
and, in the case of other Indebtedness bearing interest at fluctuating interest
rates which cannot be determined in advance, that the rate in effect on such
date will remain in effect throughout such period, (ii) in the case of any
Working
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<PAGE> 24
Capital Facility, including only actual interest payments paid pursuant thereto
during the four most recent calendar quarters, and (iii) treating the principal
amount of all Indebtedness outstanding as of such date of determination under a
revolving credit or similar agreement (other than any Working Capital Facility)
as maturing and becoming due and payable in equal quarterly installments over
(A) a term of seven years if the maturity or termination date thereof is seven
years or less or (B) if the maturity or termination date is more than seven
years, over such longer term.
"Minimum Debt Service Reserve" shall have the meaning assigned to such term
in Section 11.11(a).
"MLP" shall have the meaning assigned to such term in the introductory
paragraph hereof.
"MLP Assumed Obligations" shall mean the obligations of any Borrower under
the Loans, which obligations are assumed by the MLP pursuant to any one or more
Assumption Agreements.
"MLP Partnership Agreement" shall mean the Amended and Restated Agreement
of Limited Partnership of the MLP as in effect on the Closing Date, as the same
may from time to time be amended, modified or supplemented in accordance with
the terms thereof.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgage" shall mean, collectively, the mortgage, security agreement and
fixture filings between the Operating Partnership and the Trustee, each dated as
of December 12, 1991, as amended from time to time, and covering Assets located
in Illinois, Indiana, Michigan, Minnesota, New York, North Dakota and Wisconsin.
"Mortgage Note Agreements" shall mean, collectively, those certain Note
Agreements, each dated as of December 12, 1991, between the Operating
Partnership and each of the respective purchasers of the Mortgage Notes as
amended, modified or supplemented from time to time.
"Mortgage Notes" shall mean, collectively, the promissory notes aggregating
$310,000,000 principal amount issued pursuant to the Mortgage Note Agreements,
dated December 12, 1991 and executed by the Operating Partnership, together with
and any loan agreement and security documents executed in connection therewith,
any and all instruments given in renewal, extension, modification, or
rearrangement of or in substitution or replacement for any one or more of the
foregoing described promissory notes and other documents, whether given to the
original purchaser thereof (or its designee) or any other Person and other
documents.
"Mortgaged Properties" shall mean, collectively, the properties described
as "Mortgaged Property" in the Mortgage and as the "Security" in the Trust
Agreement.
"MP Loans" shall have the meaning assigned to such term in Section 2.08(b).
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<PAGE> 25
"Multiemployer Plan" shall mean a Plan which is a "multiemployer plan"
within the meaning of Section 4001(a)(3) of ERISA.
"Net Income" shall mean, for any period, the net earnings income (or loss)
after taxes for such period taken as a single accounting period on a
consolidated basis for the Operating Partnership and its Subsidiaries determined
in accordance with GAAP.
"Newly Constructed Assets" shall mean, at any date of determination, any
pipeline assets and facilities related thereto which are intended to be included
in the common carrier rate base of the Operating Partnership and which are then
being either constructed by or on behalf of the Operating Partnership or any of
its Subsidiaries or if already owned by the Operating Partnership or its
Subsidiaries, substantially rehabilitated or enhanced.
"Notes" shall mean (a) the promissory notes executed by each of the
Borrowers pursuant to the Existing Credit Agreement, which Notes are further
described in Schedule 1.02, (b) any and all promissory notes executed as
contemplated hereby (including by Sections 2.01, 11.03 and 11.10), and (c) any
and all promissory notes issued in renewal, extension, or amendment thereof or
in substitution or replacement therefor.
"Notice of Borrowing" shall have the meaning assigned to such term in
Section 2.02.
"Notice of Continuation/Conversion" shall have the meaning assigned to such
term in Section 2.14.
"Notice of Non-Continuation" shall have the meaning assigned to such term
in Section 2.01.
"Officers' Certificate" shall mean, as to any corporation, a certificate
executed on its behalf by (i) the Chairman of the Board of Directors (if an
officer) or its President or one of its Vice Presidents and (ii) its Treasurer,
or Controller, or one of its Assistant Treasurers or Assistant Controllers, and,
as to any partnership, a certificate executed on behalf of such partnership by
its general partner in a manner which would qualify such certificate as an
Officers Certificate of such general partner.
"Operating Partnership" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Operating Partnership Agreement" shall mean the Amended and Restated
Agreement of Limited Partnership of the Operating Partnership dated December 27,
1991 and as in effect on the Closing Date, as the same may from time to time be
amended, modified, or supplemented in accordance with the terms thereof.
"Operating Partnership Compliance Certificate" shall mean a compliance
certificate in the form of Exhibit "E" hereto.
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<PAGE> 26
"Other Taxes" shall have the meaning assigned to such term in Section
3.07(b) hereof.
"Parity Debt" shall mean indebtedness of the Operating Partnership
(including, without limitation, indebtedness of the Operating Partnership
evidenced by Mortgage Notes) which satisfies the definition of "Parity Debt" as
defined as of the date hereof in the Mortgage Note Agreements.
"Participation Percentage" shall mean, for each Bank, the percentage
obtained by dividing the amount of such Bank's Loan Commitment by the Total Loan
Commitment.
"Partners' Equity" of any Person that is a partnership shall mean, at any
date, the sum of:
(a) the amounts reflected as partners' capital (including both stated
capital and additional paid-in capital, if applicable) attributable to all
classes of partners on a balance sheet of such Person prepared in
accordance with generally accepted accounting principles as of the date of
determination, plus
(b) the amount of surplus (including both capital surplus and earned
surplus) of such Person on a balance sheet of such Person prepared in
accordance with generally accepted accounting principles as of the date of
determination.
"Partnership Agreements" shall mean each of the MLP Partnership Agreement,
the Operating Partnership Agreement and the Services Partnership Agreement.
"Partnerships" shall mean, collectively, the MLP, the Services Partnership
and the Operating Partnership, and Partnership shall mean any of the
foregoing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation of any
governmental authority succeeding to any of its functions.
"Permitted Amount" shall mean, at any date of determination, an amount
equal to $25,000,000 minus the sum (without duplication) of the then outstanding
Indebtedness incurred or made pursuant to Section 8.01(g).
"Permitted Banks" shall have the meaning assigned to such term in Section
8.03(a)(vi).
"Permitted Encumbrances" shall mean the encumbrances and exceptions to
title to the Assets described in the Security Documents.
"Permitted Exceptions" shall have the meaning assigned to such term in
Section 5.15(a).
"Permitted Insurers" shall mean insurers with ratings of A or better
according to Best's Insurance Reports or a comparable rating agency for
insurance companies located outside of the
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<PAGE> 27
United States and Canada and with assets of no less than $500 million and the
Underwriters at Lloyds, London.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, trust or other entity or enterprise, or any
governmental or political subdivision or agency, department or instrumentality
thereof.
"Pipeline Assets" shall mean all pipelines for the transmission of crude
oil and natural gas liquids and fixtures related thereto included in the Assets,
including interests in real property relating thereto.
"Plan" shall mean an employee benefit plan (as defined in Section 3(2) of
ERISA) which is subject to Title IV of ERISA or Section 412 of the Code and is
or has been established or maintained, or to which contributions are or have
been made, by a Person or any Related Person or to which such Person or any
Related Person is or has been obligated to contribute, or any such plan as to
which a Person or any Related Person would be treated as a contributory sponsor
under Section 4069 or Section 4212 of ERISA if such plan were terminated.
"Pledge Agreement - Debt Service Reserve" shall mean that certain Pledge
Agreement - Debt Service Reserve dated December 27, 1991 and executed by the
Operating Partnership in favor of the Special Agent, as the same may be amended,
modified or supplemented from time to time.
"Pledge Agreements" shall mean those three certain Pledge Agreements, each
dated December 27, 1991 executed, respectively, by each of the Borrowers in
favor of the Collateral Agent, as the same may be amended, modified or
supplemented from time to time.
"Potential Assignee" shall have the meaning assigned to such term in
subsection 11.03(b).
"Potential Assignor" shall have the meaning assigned to such term in
subsection 11.03(b).
"Potential Loan Maturity Date" shall have the meaning assigned to such term
in subsection 2.01.
"Prime Rate" shall mean, on any date and with respect to all Prime Rate
Loans, a fluctuating rate of interest per annum equal to the higher of (a) the
rate of interest most recently announced by the Agent at its Domestic Lending
Office as its Prime Rate; and (b) the Federal Funds Rate plus 1%.
The Prime Rate is not necessarily intended to be the lowest rate of
interest determined by the Agent in connection with extensions of credit.
Changes in the rate of interest on Prime Rate Loans will take effect
simultaneously with each change in the Prime Rate. The Agent will give notice
promptly to the relevant Borrower of changes in the Prime Rate.
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"Prime Rate Loan" shall mean any Loan made or converted at the Prime Rate
plus the Applicable Margin pursuant to a Notice of Borrowing or a Notice of
Continuation/Conversion or otherwise pursuant to the terms of this Agreement.
"Prospective Debt Service" shall mean, in respect of any Person, the sum of
(a) the payment obligations of such Person and its Subsidiaries on a
consolidated basis, after eliminating all intercompany transactions, in respect
of a relevant calendar quarter for which the calculation thereof is being made,
and based on Funded Debt outstanding as of the date of determination, for
scheduled principal payments and all interest charges with respect to, Funded
Debt, less (b) the amount of investment income generated by such Person and its
Subsidiaries on a consolidated basis from the investment of cash and cash
equivalents during such period, (i) assuming, in the case of the Loans (other
than Loans secured by Qualifying Securities), that the rate of interest will be
the Fluctuating Rate and, in the case of other Funded Debt bearing interest at
fluctuating interest rates which cannot be determined in advance, that the rate
in effect on such date will remain in effect throughout such period, (ii) in the
case of any Working Capital Facility, including only actual interest payments
paid thereunder during such calendar quarter, (iii) treating the principal
amount of all Funded Debt outstanding as of such date of determination under a
revolving credit or similar agreement (other than any Working Capital Facility)
as maturing and becoming due and payable in equal quarterly installments over
(A) a term of seven years if the maturity or termination date thereof is seven
years or less or (B) if the maturity or termination date is more than seven
years, over such larger term, and (iv) deeming (A) with respect to the Mortgage
Notes and any of such other Funded Debt of which principal is payable annually,
that 25% of the aggregate amount of all principal to be paid in respect of such
Mortgage Notes and other Funded Debt in such year is being payable in such
quarter, and (B) with respect to any other Funded Debt of which principal is
payable semi-annually or more frequently, that at least 50% of the aggregate
amount of all principal to be paid in respect of such other Funded Debt in such
period as being payable in such quarter.
"Purchase Money Lien" shall have the meaning assigned to such term in
Section 8.02(j).
"Qualifying Securities" shall mean (a) short-term Dollar denominated debt
obligations of the United States of America, (b) short-term Dollar denominated
debt obligations of any agency or instrumentality of the United States of
America, the timely payment of principal and interest on which is fully
guaranteed by the government of the United States of America, (c) short-term
Dollar denominated debt obligations of Canada or short-term Dollar denominated
debt obligations of any agency or instrumentality of Canada, the timely payment
of principal and interest of which is fully guaranteed by the government of
Canada and which are rated at least AA- (or comparably if the rating system is
changed) by S&P or at least Aa3 (or comparably if the rating system is changed)
by Moody's, and (d) any other short-term instruments issued or guaranteed by
other sovereign governments and rated at least AA- (or comparably if the rating
system is changed) by S&P or at least Aa3 by Moody's (or comparably if the
rating system is changed) consented to by all of the Banks, which consent Banks
shall not unreasonably withhold.
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"Quarterly Cash Flow Available for Debt Service" shall mean with respect to
any calendar quarter (a) EBITDA for such calendar quarter excluding EBITDA
pertaining to assets sold during such quarter, if any, less (b) an amount equal
to one-fourth of the investment income generated by such Person and its
Subsidiaries on a consolidated basis during the most recently-ended four
calendar quarters (including the calendar quarter then ending) from the
investment of cash and cash equivalents.
"Rate Refund Reserve" shall have the meaning assigned to such term in
Section 8.19.
"Rate Reserve Account" shall mean the reserve account or accounts for rate
refunds established and maintained by the Operating Partnership with Harris
Trust and Savings Bank or such other institutions from time to time selected by
the Operating Partnership.
"RCRA" shall mean the Federal Resource Conservation and Recovery Act, as
amended.
"Reference Banks" shall mean Bank of Montreal and two other Banks appointed
by the Agent and reasonably acceptable to the Borrower, which shall initially be
The Toronto-Dominion Bank and the Canadian Imperial Bank of Commerce.
"Regulation D" means Regulation D of the Board (respecting reserve
requirements), as the same is from time to time in effect, and all published
official rulings and interpretations thereunder or thereof.
"Related Person" shall mean, as to any Person or Persons, any trade or
business, whether or not incorporated, which, as of any date of determination,
would be treated as a single employer together with such Person or Persons,
under Section 414(b) or (c) of the Code.
"Required Banks" shall mean at any time Banks holding at least 66 2/3% of
the then aggregate unpaid principal amount of the Notes, or, if no such
principal amount is then outstanding, Banks having Loan Commitments in an
aggregate amount equal to at least 66 2/3% of the Total Loan Commitment.
"Required Collateral Amount" shall mean, as to each Credit Event to be
secured by Qualifying Securities, except the assumption by the MLP of the MLP
Assumed Obligations, such principal amount of Qualifying Securities the value at
maturity (comprised of principal and interest, if any) of which will be equal to
101% of the total of the principal being advanced, assumed, continued or
converted, as the case may be, plus the interest which will accrue thereon
during the applicable Interest Period. In the case of the assumption by the MLP
of the MLP Assumed Obligations, Required Collateral Amount shall mean such
principal amount of Qualifying Securities the value at maturity (comprised of
principal and interest, if any) of which will equal 100% of the total principal
being assumed, continued or converted, as the case may be, plus the interest
which will accrue thereon during the applicable Interest Period.
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"Required Compliance" shall have the meaning assigned to such term in
subsection 2.11(a)(ii).
"Required Payment" shall have the meaning assigned to such term in Section
2.16.
"Reserve Difference" shall have the meaning assigned to such term in
Section 8.19.
"Residue Excess Sales Proceeds" shall have the meaning assigned to such
term in subsection 7.03(c).
"Restricted Payment" shall mean (a) any payment or other distribution,
direct or indirect, in respect of any partnership interest in the Operating
Partnership, except a distribution payable solely in additional partnership
interests in the Operating Partnership, and (b) any payment, direct or indirect,
on account of the redemption, retirement, purchase or other acquisition of any
partnership interest in the Operating Partnership; or, if the Operating
Partnership is at any time reorganized as a corporation, (i) any dividend or
other distribution, direct or indirect, on account of any shares of any class of
stock of the Operating Partnership now or hereafter outstanding, except a
dividend payable solely in shares of stock of the Operating Partnership, and
(ii) any redemption, retirement, purchase or other acquisition, direct or
indirect, of any shares of any class of stock of the Operating Partnership, now
or hereafter outstanding, or of any warrants, rights or options to acquire any
such shares, except to the extent that the consideration therefor consists of
shares of common stock of the Operating Partnership.
"S & P" shall mean Standard & Poor's Corporation.
"Security" shall mean, the Qualifying Securities pledged pursuant to the
Pledge Agreements, the Debt Service Reserve pledged pursuant to the Pledge
Agreement - Debt Reserve and the Mortgaged Properties.
"Security Documents" shall mean the Trust Agreement, the Pledge Agreements,
the Mortgage and with respect to MP Loans only (and the Mortgage Notes, but not
any other Parity Debt) the Pledge Agreement - Debt Service Reserve.
"Services Partnership" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Services Partnership Agreement" shall mean the Amended and Restated
Agreement of Limited Partnership of the Services Partnership, as in effect on
the Closing Date, as the same may from time to time be amended, modified or
supplemented in accordance with the terms thereof and Section 8.12 hereof.
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"Special Agency Agreement" shall mean the Special Agency Agreement, dated
as of December 27, 1991, among Harris Trust and Savings Bank, as Special Agent,
and the Operating Partnership, as the same may be amended, modified or
supplemented from time to time.
"Special Agent" shall mean Harris Trust and Savings Bank, an Illinois
banking corporation, acting in its capacity as agent under the Pledge Agreement
- - Debt Service Reserve for the benefit of the holders of the Mortgage Notes and
the Banks, in accordance with the Special Agency Agreement.
"Special General Partnership Purposes Indebtedness" shall have the meaning
assigned to such term in Section 8.02(i)(B).
"Statutory Reserves" shall mean a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus, in the case of LIBOR Rate Loans, the LIBOR Reserve Percentage and in
the case of CD Rate Loans, the CD Reserve Percentage.
"Subsidiary" shall mean any corporation, association, partnership, joint
venture or other business entity at least a majority (by number of votes) of the
stock of any class or classes (or equivalent interests) of which is at the time
owned by a Person or by one or more Subsidiaries of such Person or by a Person
and one or more Subsidiaries of such Person, if the holders of the stock of such
class or classes (or equivalent interests) (a) are ordinarily, in the absence of
contingencies, entitled to vote for the election of a majority of the directors
(or Persons performing similar functions) of such business entity, even though
the right so to vote has been suspended by the happening of such a contingency,
or (b) are at the time entitled, as such holders, to vote for the election of
the majority of the directors (or Persons performing similar functions) of such
business entity, whether or not the right so to vote exists by reason of the
happening of a contingency.
"System" shall mean the portion of the Interprovincial System that is in
the United States.
"Takeover" shall have the meaning assigned to such term in Section 4.04.
"Taxes" shall have the meaning assigned to such term in Section 3.07(a).
"Total Loan Commitment" shall mean $205,000,000, as the same may be reduced
from time to time pursuant to Article III or Article IX of this Agreement.
"Treasury Rate" shall mean the rate of interest reported, as of 4:00 p.m.
(New York City time) on the Business Day immediately preceding the date of
determination, on the display designated as "Page 0#TB=AA!" on the Reuters
Service (or such other display as may replace Page 0#TB=AA! on the Reuters
Service) for actively traded U.S. Treasury securities having a maturity
approximately equal to the relevant maturity.
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"Trust Agreement" shall mean the Trust Agreement, dated as of December 12,
1991, between the Operating Partnership and the Trustee, as the same may be
amended, modified or supplemented from time to time.
"Trustee" shall mean Norwest Bank Minnesota, National Association, a
national banking association, as Trustee under the Trust Agreement.
"Type" shall have the meaning assigned to such term in Section 1.05.
"Wholly-Owned" as applied to any Subsidiary, a Subsidiary all of the
outstanding shares (other than directors qualifying shares, if required by law)
of every class of stock or other equity interests of which are at the time owned
by the relevant Person or by one or more of its Wholly-Owned Subsidiaries or by
the relevant Person and one or more of its Wholly-Owned Subsidiaries.
"Withholding Notice" shall have the meaning assigned to such term in
Section 3.07(e).
"Working Capital Facility" shall mean any one or more working capital
credit facilities pursuant to any one or more agreements entered into by the
Operating Partnership and one or more banks, which shall permit borrowings
thereunder in an aggregate amount at any time outstanding thereunder not in
excess of $25,000,000, which borrowings may be secured by the Operating
Partnership in accordance with Section 8.02(l).
SECTION 1.02 Construction. The meanings of defined terms are equally
applicable to the singular and plural forms of the defined terms. Unless
otherwise specified or the context clearly requires otherwise, the terms
"hereof", "herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. This Agreement and the other Loan
Documents are the result of negotiations among and have been reviewed by
counsel to the Agents, each Borrower and the other parties, and are the
products of all parties. Accordingly, they shall not be construed against any
party hereto merely because of the Agent's or Bank's involvement in their
preparation.
SECTION 1.03 References, Exhibits. All articles, sections, subsections,
schedules, exhibits and like references are to this Agreement unless otherwise
specified. Each exhibit and schedule to this Agreement is incorporated into
this Agreement for all purposes as if fully set forth herein.
SECTION 1.04 Accounting Matters. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be delivered
hereunder shall be prepared, in accordance with GAAP, applied on a basis
consistent with those followed in the preparation of the most recent financial
statements delivered pursuant to Section 6.03(a) or (b) hereof. All accounting
determinations hereunder with respect to the General Partner shall be made on a
consolidated basis for the General Partner and its consolidated subsidiaries at
the time of such determination.
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SECTION 1.05 Types of Loans. Loans hereunder are distinguished by
"Type." The "Type" of a Loan refers to the determination whether such Loan is a
LIBOR Rate Loan, a CD Rate Loan or a Prime Rate Loan.
SECTION 1.06. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding."
ARTICLE II
AMOUNT AND TERMS OF CREDIT
SECTION 2.01 Loan Commitments. Each Bank severally agrees, on the terms
and conditions hereinafter set forth, at any time and from time to time on and
after the Closing Date and prior to the Loan Termination Date to make a loan or
loans (each a "Loan" or a "Loan" and collectively, the "Loans" or the "Loans")
to any one or more of the Borrowers, which Loans:
(a) shall, at the option of the Borrower to whom such Loan is made, be
made pursuant to one or more Borrowings comprised of Prime Rate Loans, CD
Rate Loans or LIBOR Rate Loans; provided, that except as otherwise
specifically provided herein, all Loans comprising all or a portion of the
same Borrowing shall at all times be of the same Type and shall have the
same Interest Period;
(b) may be repaid and reborrowed in accordance with the provisions
hereof;
(c) shall not exceed in aggregate principal amount at any time
outstanding (after giving effect to the principal amount of all Loans
repaid prior to or concurrently with the making of any such Loan) such
Bank's Loan Commitment at such time;
(d) shall consist of Borrowings made on the same day from the Banks
ratably in accordance with their respective Participation Percentage; and
(e) shall be in a minimum aggregate amount of $5,000,000 and in
integral multiples of $1,000,000.
Unless terminated in accordance with the provisions hereinafter set forth, the
Loan Period shall continue in existence on and after the Closing Date. Subject
to earlier termination of the Loan Period in accordance with Article III or
Article IX, the Loan Period shall end on that date (such date, the "Potential
Loan Maturity Date") specified in a notice from the Agent to the Borrowers (such
notice, a "Notice of Non-Continuation") in the form of Exhibit "A" (if there
shall be any such Notice of Non-Continuation), received by the Borrowers no less
than 90 days nor more than 120 days prior to the next following anniversary of
the Closing Date (such anniversary date, the "Applicable Anniversary Date")
stating that as of the Potential Loan Maturity Date, all indebtedness under the
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Loans shall be due and payable in full unless the Borrowers replace each of the
Electing Banks (which Electing Banks the Agent shall identify in such Notice of
Non-Continuation) in accordance with the immediately following paragraph;
provided, however, that, (a) the Potential Loan Maturity Date shall be on a date
which is an anniversary of the Closing Date (or the next Business Day
thereafter); (b) the Potential Loan Maturity Date shall not, in any event, be on
a date earlier than five years after the Closing Date; and (c) if any such
Notice of Non-Continuation shall be provided to the Borrowers, the Potential
Loan Maturity Date specified therein shall be not less than four years after the
Applicable Anniversary Date; it being expressly agreed and understood that the
first Applicable Anniversary Date shall be no earlier than September 6, 1997,
and that the first Potential Loan Maturity Date shall be no earlier than
September 6, 2001.
Borrowers shall have the right immediately upon receipt of a Notice of
Non-Continuation to replace all (but not fewer than all) of the Electing Banks
by providing notice (each such notice, a "Notice of Replacement") to each such
Electing Bank (with a copy to the Agent) that it has selected a bank(s) or other
financial institution(s) (which may be one or more of the Banks) to purchase all
of each such Electing Bank's outstanding Loans, Notes and Loan Commitment (which
notice shall identify such bank(s) or other financial institution(s)),
provided, however, that, unless the Banks which are not Electing Banks and the
Agent shall otherwise agree, any such replacement bank or other financial
institutions shall be rated "A" (or a comparable rating if the rating system
changes) or better by S&P or A2 (or a comparable rating if the rating system
changes) or better by Moody's. Each Electing Bank hereby agrees that upon a
bank(s) or other financial institution(s) receipt of a Notice of Replacement and
payment to it of the amounts provided below, it shall, in accordance with the
provisions of Section 11.03, promptly transfer and assign its Loan Commitment,
Loans, Notes and interest in this Agreement and the other Credit Documents to
any such financial institution or institutions, without recourse or warranty by,
or expense to, such Electing Bank, for a purchase price equal to the outstanding
principal amount of the Loans payable to such Electing Bank, plus any accrued,
unpaid interest on such Loans, plus any accrued, unpaid facility fees pursuant
to Section 3.01, and upon such purchase, each such purchasing bank shall become
a Bank for purposes of this Agreement and the other Credit Documents and each
such Electing Bank shall cease to be a Bank hereunder, provided that Borrowers
(x) will pay to the Electing Bank any other amounts then due and payable to such
Electing Bank hereunder and under the other Credit Documents and (y) will
reimburse the Electing Bank for its reasonable out-of-pocket costs or expenses
incurred by such Electing Bank to effect such sale. In the event, Borrowers
fail, in accordance with the foregoing, prior to the Applicable Anniversary Date
to provide a Notice of Replacement to each of the Electing Banks, then the
Potential Loan Maturity Date shall be the Loan Maturity Date, and all amounts
due and owing under the Notes, both principal and accrued, unpaid interest shall
be due and payable in full on the Loan Maturity Date, and the Loan Commitments
of each Bank shall be terminated automatically without further notice or action
on the Loan Maturity Date.
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SECTION 2.02 Notice of Borrowing.
(a) Whenever any Borrower desires to make a Borrowing hereunder, such
Borrower shall provide to the Agent written notice (or telephonic notice
promptly confirmed in writing) in the form annexed hereto as Exhibit "B" (each
such notice, a "Notice of Borrowing"); (i) in the case of a Borrowing to be
comprised of Prime Rate Loans not later than 11:00 a.m. on the date on which the
proceeds of such Borrowing are to be made available to such Borrower, (ii) in
the case of a Borrowing to be comprised of CD Rate Loans, not later than 11:00
a.m. (New York time) two Business Days prior to the date on which the proceeds
of such Borrowing are to be made available to such Borrower; and (iii) in the
case of a Borrowing to be comprised of LIBOR Rate Loans, not later than 11:00
a.m. (New York time) three Business Days prior to the date upon which the
proceeds of such Borrowing are to be made available to such Borrower. Each
Notice of Borrowing shall be irrevocable.
Any Borrower may submit one or more Notices of Borrowing on any
Business Day. The Banks acknowledge that the Operating Partnership shall have
the first priority with respect to Borrowings under this Agreement, and, in this
regard, Borrowers will arrange their Borrowings so that the Operating
Partnership will not be precluded from obtaining Loans hereunder.
(b) Without in any way limiting the Borrower's obligation to confirm in
writing any telephonic notice and only in respect of the events set forth herein
in which telephonic notice is specifically permitted, the Agent may act without
liability upon the basis of telephonic notice believed by the Agent in good
faith to be from any Borrower prior to receipt of written confirmation, except
to the extent of the Agent's gross negligence or willful misconduct.
(c) The Agent shall promptly give each Bank written or telephonic notice
(promptly confirmed in writing) of each proposed Borrowing, of the amount
thereof which such Bank is required to loan pursuant to this Agreement (which
amount shall be equal to the amount of each Borrowing multiplied by such Bank's
Participation Percentage) and of the other matters covered by the Notice of
Borrowing.
SECTION 2.03 [Intentionally Omitted.]
SECTION 2.04 Disbursement of Funds. No later than 12:00 noon (New York
time) on the date of each Borrowing, each Bank will make available its pro rata
portion of the amount of such Borrowing in Dollars and in immediately available
funds at the Agent's Domestic Lending Office, and no later than 1:00 p.m. (New
York time) on the date of each Borrowing, the Agent will make available to such
Borrower or to its order at its Domestic Lending Office the aggregate of the
amounts so made available by the Banks.
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SECTION 2.05 Notes.
(a) Each Borrower's obligation to pay the principal of, and interest on,
all the Loans made by each Bank to such Borrower shall be evidenced by the
Notes. All principal thereof to the extent not required to be earlier paid in
accordance with the terms and provisions hereof, shall be due and payable in
full on the Loan Maturity Date.
(b) Each Bank will note on its internal records, to the extent applicable,
the date, amount, Type, and Interest Period for each Loan made by such Bank to
each Borrower hereunder, whether the same is secured by Qualifying Securities or
Mortgaged Properties, and the amount of each payment in respect thereof and
will, prior to any transfer of any of its Notes, endorse on the reverse side
thereof the outstanding principal amount of Loans evidenced thereby. Failure to
make any such notation shall not affect a Borrower's obligations in respect of
such Loans.
SECTION 2.06 Assumption of Loans by Another Borrower, Several Liability
of Borrowers, Etc. Any Borrower may from time to time and at any time assume
any Loan or any portion thereof made to or assumed by any other Borrower
pursuant to this Agreement. Each Bank agrees that upon a Borrower s delivery to
the Agent of a properly executed Assumption Agreement, the delivery of
reasonably equivalent value by the Borrower whose Loan is being assumed to the
Borrower assuming such Loan, and the satisfaction of the requirements of Section
2.08, such Borrower whose Loans or portion(s) thereof are being assumed shall be
released from all liability therefor except as set forth in the penultimate
sentence of this Section 2.06. Notwithstanding anything contained herein or
elsewhere to the contrary or which could be construed to the contrary, each
Borrower shall be liable with respect only to Loans made to it and Loans or
portion(s) thereof expressly assumed by it pursuant to an Assumption Agreement
and, in both of the foregoing cases, from which it has not been released
pursuant to the preceding sentence, and no other Loans. Without limiting the
foregoing, it is expressly agreed and understood that no Borrower shall be
liable with respect to any Loans made to any other Borrower unless such Loans or
portion(s) thereof are specifically assumed in writing by such Borrower pursuant
to an Assumption Agreement and such Borrower shall not have been released
therefrom pursuant to the provisions hereof. It is expressly agreed and
understood that notwithstanding anything contained herein, neither the General
Partner nor any Borrower shall be released from its liability as general partner
of any Borrower arising pursuant to applicable partnership law or pursuant to
the partnership agreement of such Borrower for any Loan or any other obligations
of such Borrower pursuant hereto or the Credit Documents (collectively, the
"Indirect Obligations"), including, without limitation, any such liability
arising as a result of the assumption of any Loan or portion thereof by any
Borrower pursuant to an Assumption Agreement, but it is expressly agreed and
understood that such general partner's failure to perform any of its Indirect
Obligations shall not give rise to a Default or Event of Default.
SECTION 2.07 Interest and Fee Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 2.07.
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(a) Rates. Pursuant to an appropriately delivered Notice of Borrowing or
Notice of Continuation/Conversion, the relevant Borrower may elect that Loans
comprising a Borrowing accrue interest at the following rates per annum, as
applicable:
(i) on that portion maintained from time to time as a Prime Rate
Loan, a per annum interest rate equal to the sum of the Prime Rate from
time to time in effect plus the Applicable Margin;
(ii) on that portion maintained as a CD Rate Loan, a per annum
interest rate equal to the sum of the CD Rate for each Interest Period
applicable thereto plus the Applicable Margin; and
(iii) on that portion maintained as a LIBOR Rate Loan, a per annum
interest rate equal to the sum of the LIBOR Rate for each Interest Period
applicable thereto plus the Applicable Margin.
(b) All CD Rate Loans and LIBOR Rate Loans shall bear interest from and
including the first day of the applicable Interest Period to (but not including)
the last day of such Interest Period at the interest rate determined as
applicable to such Loan. Interest shall accrue on each Prime Rate Loan from the
first day thereof to (but not including) the day on which such Loan is paid in
full.
(i) After the date any principal amount of any Loan is due and payable
(whether on the stated maturity date, upon acceleration or otherwise), or
after any other monetary obligation of any Borrower shall have become due
and payable, the relevant Borrower shall pay, but only to the extent
permitted by law, interest (after as well as before judgment) on such
amounts at a rate per annum equal to the Prime Rate plus the Applicable
Margin plus 1 1/2% per annum.
(ii) Payment Dates. Interest accrued on each Loan shall be payable,
without duplication on each of the following dates, as applicable: (A) on
the Loan Maturity Date; (B) on the date of any payment or prepayment, in
whole or in part, of principal outstanding on such Loan; (C) on each
Interest Payment Date; and (D) with respect to any Prime Rate Loans
converted into LIBOR Rate Loans or CD Rate Loans on the date of such
conversion.
Interest accrued on Loans or other monetary obligations arising under this
Agreement or any other Credit Document after the date such amount is due and
payable (whether on the stated maturity date, upon acceleration or otherwise)
shall be due and payable upon demand.
(c) All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of (i) 360 days in the case of interest accruing on LIBOR Rate Loans
and CD Rate Loans, and (ii) 365 days or 366 days, as the case may be, in the
case of interest accruing on Prime Rate Loans and in the case of fees.
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(d) (i) The Applicable Margin and the Applicable Facility Fee shall be
equal to the specified percent per annum set forth in the definitions of
Applicable Margin and Applicable Facility Fee, in each case based upon the
applicable Level as determined in accordance herewith.
(ii) During the period from the Closing Date through the last day of
the fiscal quarter in which the Closing Date occurs, for purposes of the Pricing
Chart set forth in the definitions of Applicable Margin and Applicable Facility
Fee, the Cash Flow/Interest Coverage Pricing Ratio shall be the ratio set forth
in the Closing Date Pricing Certificate and shall be calculated in reliance on
the financial reports of the Operating Partnership and its Subsidiaries with
respect to the four fiscal quarters ending immediately prior to the Closing
Date. Thereafter, the Applicable Margin and Applicable Facility Fee shall be
calculated in reliance on the financial reports and the Operating Partnership
Compliance Certificate most recently delivered pursuant to Sections 6.03(a), (b)
and (c) with respect to the four fiscal quarter period ending as of the date of
such financial statements. The Applicable Margin and Applicable Facility Fee
shall be adjusted (if an adjustment shall be required in accordance with the
terms hereof) reasonably promptly after the receipt by the Agent of the
applicable financial statements by the Agent and in any event within 60 days
after the end of the Borrower's first three fiscal quarters and within 120 days
after Borrower's fiscal year end, and shall apply to all Loans then outstanding
(without regard to the timing of Interest Periods) as of the effective date of
any change in the Applicable Margin and Applicable Facility Fee.
(e) The Agent, upon determining the CD Rate or LIBOR Rate for any Interest
Period, shall promptly notify the Borrowers and the Bank thereof by telephone
(confirmed in writing or by telecopy) or in writing or by telecopy. Each such
determination shall, absent manifest error, be final and conclusive and binding
on all parties hereto.
SECTION 2.08 Security. Each Loan, including any Loan assumed by a
Borrower, will be secured at the time of the applicable Credit Event by either
(but not both), (a) a first perfected priority Lien on Qualifying Securities in
the Required Collateral Amount supplied by the applicable Borrower and delivered
or constructively delivered (unless already on deposit with the Collateral
Agent) to the Collateral Agent, or (b) with respect to Loans to the Operating
Partnership only and at the sole option of the Operating Partnership, by a first
priority Lien on the Mortgaged Properties (such Loans to the Operating
Partnership which are secured by the Mortgaged Properties shall be referred to
herein as the "MP Loans"). The foregoing notwithstanding, it is expressly
agreed and understood that upon any Borrower's payment of any interest on an
Interest Payment Date other than the last day of the Interest Period applicable
thereto, if such Lien secures Qualifying Securities in an amount in excess of
the Required Collateral Amount determined, after giving effect to any such
interim interest payment, Borrowers shall have the right to request and upon
such request the Agent shall, and the Banks hereby direct the Agent to, direct
the Collateral Agent, upon such Borrower's request (which shall specify the
amount of Qualifying Securities which should be released and the Borrower to
whom the same should be released) to release to such Borrower that portion of
the Qualified Securities in excess of the Required Collateral Amount as
confirmed by the Collateral Agent.
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The foregoing notwithstanding, the Operating Partnership shall have the
right at any time and from time to time so long as no Event of Default shall
then exist to substitute collateral (i.e. from Qualifying Securities to a first
priority Lien on Mortgaged Properties and vice versa) for the Loans for which it
is liable. Such first priority Liens on the Mortgaged Properties shall rank
pari passu with the Liens securing the obligations of the Operating Partnership
under the Mortgage Notes and the Mortgage Note Agreements. Upon the conversion,
if any, by the Operating Partnership of an MP Loan to a Loan secured by
Qualifying Securities, the Operating Partnership shall secure such Loan with a
principal amount of Qualifying Securities the value at maturity (comprised of
principal and interest, if any) of which will be equal to 101% of (i) the
principal amount of such MP Loan converted to a Loan secured by Qualifying
Securities, plus (ii) the interest which will accrue thereon during the
remainder of the applicable Interest Period.
The term of the Qualifying Securities supplied as collateral for the
Borrowings shall be (i) in the case of Borrowings of CD Rate Loans and LIBOR
Rate Loans, substantially identical to the Interest Period for the requested
Borrowing, which for purposes hereof shall mean that such maturities shall occur
on, or in the event Qualifying Securities maturing on such date are not
available in sufficient quantities, within three Business Days prior to, the
last day of the relevant Interest Period; it being expressly agreed and
understood that the cash proceeds of Qualifying Securities the maturities of
which are prior to the maturities of the Loans secured thereby shall be
collateral security for such Loans; provided, however, that the foregoing
notwithstanding, in the case of CD Rate Loans and LIBOR Rate Loans secured by
Qualifying Securities, the maturities of such Qualifying Securities may be for a
term of up to 60 days after the relevant Interest Period or (ii) in the case of
Borrowings of Prime Rate Loans, less than 11 days. Upon (i) the payment of the
interest or principal, or prepayment, of any Loan, (ii) the conversion by the
Operating Partnership of a Loan secured by Qualifying Securities to an MP Loan,
or (iii) the assumption of any Loan, the Agent shall, and the Banks hereby
direct the Agent to, direct the Collateral Agent, upon such Borrower's request
(which will specify the amount of Qualifying Securities which should be released
and the Borrower to whom the same should be released), to release to the
Borrower obligated on such Loan repaid, prepaid, assumed or so converted that
portion of the Qualifying Securities the value (including principal and accrued
interest) of which equals the sum of the principal and interest so repaid,
prepaid, assumed, or converted. The Collateral Agent agrees that upon receipt
of such a direction (which will specify the amount of Qualifying Securities
which should be released and the Borrower to whom the same should be released),
on which direction the Collateral Agent shall be entitled to rely, the
Collateral Agent shall release Qualifying Securities in such amount to such
Borrower.
SECTION 2.09 Pro Rata Borrowings. All Loans under this Agreement shall be
made by the Banks pro rata on the basis of their respective Loan Commitments.
It is understood that no Bank shall be responsible for any default by any other
Bank in its obligation to make Loans hereunder, and that each Bank shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Bank to fulfill its commitments hereunder.
Notwithstanding anything contained herein to the contrary, no Bank shall be
permitted or required to make any Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all Loans (a) owing to all Banks
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would exceed the Total Loan Commitment or (b) owing to such Bank would exceed
such Bank s Loan Commitment.
SECTION 2.10 Illegality.
(a) In the event that any Bank shall have determined at any time in good
faith that the making, continuance or maintenance of any CD Rate Loan or LIBOR
Rate Loan or the conversion of any Loan into a Loan of the other Type has become
unlawful or any governmental authority asserts that it is unlawful, then, in any
such event, such Bank shall give prompt notice (by telephone, confirmed in
writing) to the Borrowers and to the Agent of such determination and the reasons
therefor (which notice the Agent shall promptly transmit to the other Banks).
(b) Upon occurrence of the matter referred to in subsection (a) above, (i)
Borrowers right to request and such Bank s obligation to make, continue or
maintain CD Rate Loans or LIBOR Rate Loans, as the case may be, shall be
immediately suspended until the circumstances causing such suspension no longer
exist (notice of which each Bank hereby agrees promptly to forward to the
Borrowers), and until such time, such Bank shall make any requested Borrowing of
CD Rate Loans or LIBOR Rate Loans, as the case may be, as a Prime Rate Loan,
which Prime Rate Loan shall, for all other purposes, be considered part of such
Borrowing; and (ii) if any CD Rate Loans or LIBOR Rate Loans which are then
outstanding are affected by such matter, such affected Loans shall
automatically, convert into a Prime Rate Loan on the last day of the Interest
Period applicable to the affected CD Rate Loans or LIBOR Rate Loans or sooner if
required by such law or assertion; provided, that if more than one Bank is
affected by such matter at any time, then all affected Banks must be treated in
the same manner pursuant to this Section 2.10(b). Each affected Bank shall
immediately notify the Agent with respect to any change in circumstance that
would permit the making of CD Rate Loans or LIBOR Rate Loans, and such Bank s
obligation to make such Types of Loans thereupon shall be reinstated.
SECTION 2.11 Increased Costs; Capital Adequacy.
(a) Subject to the provisions of subsection 2.11(c) and Section 2.12, if,
at any time after the Closing Date, due to either (i) the introduction of, or
any change (other than any change by way of imposition or increase of reserve
requirements) in, law, rule, or regulation or in the interpretation or
administration thereof (a "Change"); or (ii) the compliance with any guideline
or request from any central bank or other governmental authority or
quasi-governmental authority exercising control over banks or financial
institutions (whether or not having the force of law) ("Required Compliance"),
any Bank has incurred increased costs with respect to (or suffered a reduction
of any amount receivable in respect of) making, funding or maintaining CD Rate
Loans or LIBOR Rate Loans, then, upon demand by such Bank to the relevant
Borrower explaining in reasonable detail such circumstances and increased costs
or reduced amount (with a copy of such demand to the Agent), such Borrower
shall, pursuant to Section 2.11(d), pay to such Bank such additional amounts as
shall be sufficient to compensate such Bank for such increased cost (or
reduction in the amount
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of any sum receivable) to be thereafter incurred by such Bank. In determining
such additional amounts, each such Bank agrees to act reasonably and in good
faith.
(b) Subject to the provisions of subsection 2.11(c) and Section 2.12, if
any Bank determines that any Change or Required Compliance applicable to it
does, or shall have, the effect of reducing the rate of return on such Bank s
capital as a consequence of its obligations hereunder to a level below that
which such Bank would have achieved but for such Change or Required Compliance
(taking into consideration such Bank s policies with respect to capital
adequacy) by an amount reasonably deemed by such Bank to be material, then, upon
demand by such Bank to each relevant Borrower explaining such circumstances and
increased costs in reasonable detail (with a copy of such demand to the Agent),
such relevant Borrowers shall, pursuant to Section 2.11(d), pay to such Bank,
from time to time as specified by such Bank, additional amounts sufficient to
compensate such Bank or such corporation in the light of such circumstances for
any such reduction to be thereafter suffered by such Bank. In determining such
additional amounts, each such Bank agrees to act reasonably and in good faith to
allocate all increases resulting from any such capital adequacy requirement on a
fair and reasonable basis.
(c) The foregoing provisions of this Section 2.11 notwithstanding, no Bank
shall be entitled to claim any additional compensation unless (i) such Bank is
also generally claiming such additional compensation from its customers which
are similar to the Borrowers as a result of circumstances similar to the
circumstances which have resulted in such Bank's claiming additional
compensation pursuant hereto, and (ii) other banks and financial institutions in
the same class as such Bank have generally claimed or are generally claiming
compensation from their respective customers as a result of the circumstances
resulting in such Bank s claiming additional compensation hereunder.
(d) Each Bank will notify each relevant Borrower and the Agent of any event
occurring after the Closing Date which will entitle such Bank to compensation
pursuant to subsections 2.11(a) or 2.11(b), as promptly as practical after such
Bank becomes aware thereof and determines to request compensation pursuant to
this Section 2.11. Such notice shall be accompanied by a certificate of such
Bank submitted to Borrowers and the Agent, setting forth the amount or amounts
necessary to compensate such Bank as specified in subsections 2.11(a) or
2.11(b) and setting forth the basis for the determination of such additional
amount or amounts. No Bank shall claim compensation pursuant to this Section
2.11 for any period prior to the date of the postal mark shown on the envelope
in which such certificate is placed in the United States mail or, if such
certificate is delivered by hand, the date shown on the receipt for such
delivery. Each Borrower required pursuant to this subsection 2.11(d) to pay
additional amounts shall pay to such Bank the amounts due pursuant to this
subsection 2.11(d) within ten Business Days after its receipt of such notice.
(e) In the event any Bank shall seek compensation pursuant to this Section
2.11 at any time other than during the existence and continuation of an Event of
Default, Borrowers shall have the right to replace each such Bank as a Bank
hereunder by giving notice to such Bank (with a copy to the Agent) that it
wishes to seek one or more financial institutions (which may be one or more of
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the Banks) to assume the Loan Commitment of such Bank and to purchase its
outstanding Loans and its Notes and Loan Commitment, without recourse or
warranty by, or expense to, such Bank, for a purchase price equal to the
outstanding principal amount of the Loans payable to such Bank, plus any accrued
unpaid interest on such Loans, plus any accrued, unpaid facility fees pursuant
to Section 3.01 and any other amounts owing to such Bank hereunder, and upon
such purchase, the purchasing bank shall become a Bank for purposes of this
Agreement and the selling Bank shall cease to be a Bank hereunder; provided,
however, that the Borrowers will (i) pay to the selling Bank any other amounts
then due and payable to such Bank hereunder, and (ii) pay reasonably required
amounts to compensate such Bank for its reasonable out-of-pocket costs or
expenses incurred by such Bank to effect such sale, and provided, further that
in the event the purchasing bank is not rated at least "A" (or a comparable
rating if the rating system changes) by S&P or "A2" (or a comparable rating if
the rating system changes) by Moody's, the Agent shall have consented to such
purchasing bank, which consent shall not be unreasonably withheld or delayed.
Each Bank hereby agrees that upon Borrowers' notifying it that Borrowers have
elected to replace it as a Bank hereunder and upon receipt of the amounts
required pursuant to this Section 2.11, it shall promptly transfer and assign
its Loan Commitment, Loans, Notes and interest in this Agreement and the other
Credit Documents to any such financial institution or institutions pursuant, and
subject, to the conditions contained in this Section and Section 11.03.
SECTION 2.12 Change of Lending Office. Each Bank agrees that it will use
reasonable efforts to designate an alternate Domestic Lending Office with
respect to any of its CD Rate Loans or LIBOR Rate Loans affected by the matters
or circumstances described in subsection 2.11(a) and subsection 2.11(b) to
reduce the liability of Borrowers or avoid the results provided for thereunder,
so long as such designation is not disadvantageous to such Bank as determined by
such Bank in its sole discretion.
SECTION 2.13 Deposits Unavailable. If the Agent shall have determined
that (a) Dollar certificates of deposit or Dollar deposits, as the case may be,
in the relevant amount and for the relevant Interest Period are not available to
the Banks in the relevant market, or (b) by reason of circumstances affecting
the relevant market, adequate means do not exist for ascertaining the interest
rate applicable hereunder to CD Rate Loans or LIBOR Rate Loans, then, upon
notice from the Agent to the Borrowers and the Banks, the obligations of all
Banks to make or continue any Loans as, or to convert any Loans into, CD Rate
Loans or LIBOR Rate Loans, as the case may be, shall forthwith be suspended
until the Agent shall notify the Borrowers and the Banks that the circumstances
causing such suspension no longer exist. The Agent hereby agrees promptly to
notify Borrowers and the Banks that such circumstances causing such suspension
no longer exist.
SECTION 2.14 Continuation and Conversion Elections. By delivering a
notice in the form of Exhibit "C" hereto (each such notice, a Notice of
Continuation/Conversion) to the Agent on or before 11:00 a.m., New York time, on
any Business Day, any Borrower may from time to time irrevocably elect, on not
less than three nor more than five Business Days' notice that all, or any
portion in an aggregate minimum amount of $5,000,000 and an integral multiple of
$1,000,000, of any Loans be: (a) in the case of Prime Rate Loans, converted into
CD Rate Loans or LIBOR Rate
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Loans; (b) in the case of CD Rate Loans or LIBOR Rate Loans be converted into a
Prime Rate Loan; (c) in the case of CD Rate Loans, converted into LIBOR Rate
Loans; (d) in the case of LIBOR Rate Loans, converted into CD Rate Loans; or (e)
in the case of Prime Rate Loans, CD Rate Loans or LIBOR Rate Loans, be continued
as Prime Rate Loans, CD Rate Loans or LIBOR Rate Loans, as the case may be (in
the absence of delivery of a Notice of Conversion/Continuation with respect to
any CD Rate Loan or LIBOR Rate Loan at least three Business Days before the last
day of the then current Interest Period with respect thereto, each such Loan
shall, on such last day of the applicable Interest Period, automatically
continue as or convert to a Prime Rate Loan); provided, however, that (i) each
such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Banks, and (ii) no portion of the outstanding principal
amount of any Loans may be continued as, or be converted into, CD Rate Loans or
LIBOR Rate Loans when any Event of Default has occurred and is continuing.
SECTION 2.15 Funding. Each Bank may, if it so elects, fulfill its
obligation to make, continue or convert CD Rate Loans and LIBOR Rate Loans
hereunder by causing one of its foreign branches or Affiliates (or an
international banking facility created by such Bank) to make or maintain such CD
Rate Loans and LIBOR Rate Loans; provided, however, that such CD Rate Loans or
LIBOR Rate Loans shall nonetheless be deemed for all purposes of this Agreement
and the other Credit Documents to have been made and to be held by such Bank,
and the obligation of the Borrower to repay such CD Rate Loans or LIBOR Rate
Loans shall nevertheless be to such Bank for the account of such foreign branch,
Affiliate or international banking facility. The foregoing notwithstanding,
Borrowers shall have no liability under Section 2.11 for any costs or expenses
arising or resulting from, or related to, any such election, nor shall any Bank
have the right to make such election if, as a result thereof, Borrowers shall
incur or otherwise be or become responsible for additional taxes or increased
costs or expenses, or otherwise suffer any other adverse financial consequence.
In addition, each Borrower hereby consents and agrees that it shall be
conclusively assumed that each Bank elected to fund all CD Rate Loans and LIBOR
Rate Loans by purchasing, as the case may be, Dollar certificates of deposit in
the United States or Dollar deposits in its Domestic Lending Office's interbank
eurodollar market.
SECTION 2.16 Non-receipt of Funds by the Agent. Unless the Agent shall
have been notified by a Bank or a Borrower prior to the date on which such
notifying party is scheduled to make payment to the Agent of (in the case of a
Bank) the proceeds of a Loan to be made by it hereunder or (in the case of a
Borrower) a payment to the Agent for the account of one or more of the Banks
hereunder (such payment being herein called the "Required Payment"), which
notice shall be effective upon receipt, that it does not intend to make the
Required Payment to the Agent, the Agent may assume that the Required Payment
has been made and may, in reliance upon such assumption (but shall not be
required to) make the amount thereof available to the intended recipient(s) on
such date and, if such Bank or Borrower (as the case may be) has not in fact
made the Required Payment to the Agent, the recipient(s) of such payment shall
on demand, repay to the Agent the amount so made available together with
interest thereon in respect of each day during the period commencing on the date
such amount was so made available by the Agent at the Prime Rate.
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SECTION 2.17 Interest Rate Determination. Each Reference Bank agrees to
furnish to the Agent timely information for the purpose of determining each CD
Rate or LIBOR Rate, as applicable. If any one or more of the Reference Banks
shall fail timely to furnish such information to the Agent for any such interest
rate, the Agent shall determine such interest rate on the basis of the
information furnished by the remaining Reference Banks.
SECTION 2.18 Interest. It is the intention of the parties hereto that
each Bank shall conform strictly to usury laws applicable to it. Accordingly,
if the transactions contemplated hereby would be usurious as to any Bank under
laws applicable to it (including the laws of the United States of America or any
other jurisdiction whose laws may be mandatorily applicable to such Bank
notwithstanding the other provisions of this Agreement) then, in that event,
notwithstanding anything to the contrary in the Notes, this Agreement or in any
other Credit Document or agreement entered into in connection with or as
security for the Notes, it is agreed as follows:
(a) the aggregate of all consideration which constitutes interest under law
applicable to any Bank that is contracted for, taken, reserved, charged or
received by such Bank under the Notes, this Agreement or under any of the other
Credit Documents or agreements or otherwise in connection with the Notes shall
under no circumstances exceed the maximum amount allowed by such applicable law,
and any excess shall be canceled automatically, and if theretofore paid, shall
be credited by such Bank on the principal amount of the Indebtedness (or, to the
extent that the principal amount of the Indebtedness shall have been or would
thereby be paid in full, refunded by such Bank to the relevant Borrower or
Borrowers); and
(b) in the event that the maturity of the Notes is accelerated by reason of
an election of the holder thereof resulting from any Event of Default under this
Agreement or otherwise, or in the event of any required or permitted prepayment,
then such consideration that constitutes interest under law applicable to any
Bank may never include more than the maximum amount allowed by such applicable
law, and excess interest, if any, provided for in this Agreement or otherwise
shall be canceled automatically by such Bank as of the date of such acceleration
or prepayment and, if theretofore paid, shall be credited by such Bank on the
principal amount of the Indebtedness (or, to the extent that the principal
amount of the Indebtedness shall have been or would thereby be paid in full,
refunded by such Bank to the relevant Borrower or Borrowers).
All sums paid or agreed to be paid to any Bank for the use, forbearance or
detention of sums due hereunder shall, to the extent permitted by law applicable
to such Bank, be amortized, prorated, allocated and spread in equal parts
throughout the full term of the Loans evidenced by the Notes until payment in
full so that the rate or amount of interest on account of any Loans hereunder
does not exceed the maximum amount and rate of interest allowed by such
applicable law. If at any time and from time to time (i) the amount of interest
payable to any Bank on any date shall be computed at the Highest Lawful Rate
applicable to such Bank pursuant to this Section 2.18, and (ii) in respect of
any subsequent interest computation period the amount of interest otherwise
payable to such Bank would be less than the amount of interest payable to such
Bank computed at the Highest Lawful Rate applicable to such Bank, then the
amount of interest payable to such Bank in respect of such
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subsequent interest computation period shall continue to be computed at the
Highest Lawful Rate applicable to such Bank until the total amount of interest
payable to such Bank shall equal the total amount of interest which would have
been payable to such Bank if the total amount of interest had been computed
without giving effect to this Section 2.18.
SECTION 2.19 Certain Events. In respect of each Credit Event hereunder as
a result of which the total outstanding principal amount of Loans in the
aggregate to any Borrower is increased, or in the case of the Operating
Partnership, if the Collateral for any Loan is changed (including, without
limitation, as a result of the assumption by the Operating Partnership of a
Loan) from Qualifying Securities to Mortgaged Properties, then the relevant
Borrower shall provide the Agent with its certificate as to the accuracy of the
representations and warranties made by it in Section 5.04 as of the date of such
Credit Event or change in Collateral, as the case may be, and to the effect that
as of the date of such Credit Event or change in Collateral, as the case may be,
such Loan is secured as required by Section 2.08 and no Event of Default has
occurred and is then continuing. In respect of all other Credit Events
hereunder, the relevant Borrower shall provide the Agent with its certificate as
to the accuracy as of the date of such Credit Event of the representation and
warranty made by it in Section 5.04 hereof and to the effect that as of the date
of such Credit Event no Event of Default has occurred and is then continuing.
SECTION 2.20 Voluntary Termination by Borrower. Upon 30 days written
notice, any Borrower shall have the right to terminate itself as a Borrower
under this Agreement at any time, provided, however, that such Borrower shall
pay the principal amount of and accrued interest on all Loans, all accrued,
unpaid facility fees and other fees and any and all other amounts owing by such
Borrower hereunder and under any of the other Credit Documents and, upon
payment of such amounts, this Agreement as to such Borrower and the other
Credit Documents executed by such Borrower shall be terminated and of no
further force and effect as to such Borrower, and such Borrower shall be
released from all of its obligations hereunder, except as provided in Section
11.12. The Total Loan Commitment shall not be reduced as a result of such
termination.
SECTION 2.21 Mandatory Action When Certain Indebtedness Exceeds Required
Collateral Amount. If at any time the value at maturity (including principal
and accrued interest, if any) of Qualifying Securities on which the Collateral
Agent has a first perfected security interest is less than, as applicable (a)
101% of the sum of the principal of the Loans secured thereby plus interest
which will accrue thereon during the applicable Interest Period; or (b) in the
case of the MLP Assumed Obligations, 100% of the sum of total principal plus
interest which will accrue thereon during the applicable Interest Period, then
the Borrower of such Loan shall immediately pledge and subject to the Lien of
its Pledge Agreement additional Qualifying Securities having a term no greater
than 10 days and the value at maturity (comprised of principal and interest, if
any) of which is sufficient to increase the value of the Qualifying Securities
pledged as Security under such Pledge Agreement by an amount at least equal to
such shortfall.
SECTION 2.22. Adequate Stated Interest. This Agreement and the Borrowings
hereunder qualify as having adequate stated interest under Section 1274(d)(i)(D)
of the Code and Treasury
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Regulations Section 1.1274-4(a)(2)(iii), and the Borrowers and the Banks agree
to treat the Borrowings hereunder as having adequate stated interest under
Section 1274 of the Code.
ARTICLE III
FEES; LOAN COMMITMENTS; PAYMENTS
SECTION 3.01 Facility Fee. The Borrowers agree to pay the Agent for the
account of the Banks a facility fee for the period from and including the date
hereof to but excluding the Loan Termination Date, computed at a rate for each
day equal to the Applicable Facility Fee per annum on the Commitment of such
Bank.
Accrued facility fees shall be calculated to the last day of each calendar
quarter, and on the Loan Maturity Date or the date upon which the Total Loan
Commitment is terminated, as the case may be, and shall be due and payable in
arrears on the Business Day next succeeding the end of each such calendar
quarter and on the Loan Termination Date.
SECTION 3.02 Voluntary Reduction of Loan Commitments. Upon at least 30
days' prior written notice to the Agent (which notice the Agent shall promptly
transmit to each of the Banks), the Borrowers shall have the right, without
premium or penalty, to reduce the Total Loan Commitment in whole or in part;
provided that any such reduction shall apply proportionally to the Loan
Commitment of each Bank and any partial reduction of the Total Loan Commitment
pursuant to this Section 3.02 shall be in a minimum amount of $5,000,000 or, if
greater, in integral multiples of $1,000,000; provided, however, that in the
event Borrowers (or any of them) shall enter into a credit agreement with the
Banks providing for a credit facility in renewal, extension, or replacement of
the credit facility provided hereunder or otherwise to refinance the same, prior
notice of the termination of the Total Loan Commitment shall not be required.
SECTION 3.03 Mandatory Reduction of Total Loan Commitment.
(a) At any time that prepayment of the MP Loans would be required (whether
or not any MP Loans are then outstanding) pursuant to Section 7.03, the Total
Loan Commitment shall be automatically reduced, without premium or penalty, in
an amount equal to the product of (i) the amount of Allocable Excess Sale
Proceeds resulting from the applicable sale of Mortgaged Properties times (ii) a
fraction equal to (A) the Total Loan Commitment divided by (B) the sum of (x)
the Total Loan Commitment and (y) the aggregate unpaid principal amount of the
Parity Debt at the time outstanding.
(b) At any time that prepayment of the MP Loans would be required pursuant
to Section 7.04 (whether or not any MP Loans are then outstanding), the Total
Loan Commitment shall be automatically reduced, without premium or penalty, in
an amount equal to the product of (i) the amount of the aggregate proceeds
received by the Operating Partnership or the Trustee in respect of such damage,
destruction or taking times (ii) a fraction equal to (A) the Total Loan
Commitment
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divided by (B) the sum of (x) the Total Loan Commitment and (y) the aggregate
unpaid principal amount of the Parity Debt at the time outstanding.
SECTION 3.04 Voluntary Prepayments. Borrowers shall have the right to
prepay the Loans in whole or in part, at any time and from time to time, without
premium or penalty (except to the extent set forth in Section 3.04(c)) on the
following terms and conditions:
(a) each such prepayment shall be in a minimum amount of $5,000,000, or if
greater, in integral multiples of $1,000,000 and shall be applied pro rata among
Loans of the same Type and Interest Period;
(b) such Borrower shall by 12:00 noon New York time (i) not less than three
Business Days prior to the date of such prepayment in the case of prepayments of
principal of less than $25,000,000, or (ii) not less than five Business Days
prior to the date of such prepayment in the case of prepayments of principal of
$25,000,000 or more, give the Agent written notice of its intention to prepay
the Loans owing by it, the principal amount of such prepayment, the Type of
Loans to be prepaid and the specific Borrowing or Borrowings relating to such
Loans, which notice the Agent shall promptly transmit to each of the Banks;
(c) the relevant Borrower shall reimburse each Bank within 20 days after
demand for any resulting loss or expense actually incurred by any such Bank, to
the extent not recovered by such Bank in connection with the reemployment of
such funds, including, without limitation, any loss or expense incurred in
liquidating or re-employing deposits from third parties, but excluding loss of
margin for the period after any such prepayment as a result of (i) any
conversion, repayment, or prepayment of the principal amount of any CD Rate
Loans or LIBOR Rate Loans on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to this Section 3.04 or
otherwise; (ii) the relevant Borrower's not borrowing any Loans as CD Rate Loans
or LIBOR Rate Loans, as the case may be, after the relevant Borrower's
delivering to the Agent a Notice of Borrowing requesting such Loans; or (iii)
any Loans not being continued as, or converted into, CD Rate Loans or LIBOR Rate
Loans, as the case may be, after the relevant Borrower's delivering to the Agent
a Notice of Conversion/Continuation requesting such conversion or continuation,
provided, however, that any such Bank or Banks shall have delivered to Borrower
its certificate which sets forth in reasonable detail the amount of such loss or
expense; and (d) each prepayment pursuant to this Section 3.04 shall be applied
pro rata among the designated outstanding Loans of each of the Banks owing by
such Borrower, first, to the payment of accrued and unpaid interest, and then,
to the outstanding principal of such Loans, and interest shall cease to accrue
on all amounts of principal prepaid.
All prepayments made on the MP Loans pursuant to Article VII, if any, shall
reduce the Total Loan Commitment by the amount of such prepayment, and each
Bank's Loan Commitment shall be reduced by such Bank's Participation Percentage
of such prepayment amount, and each such amount so prepaid shall thereafter not
be available for additional Borrowings pursuant to this Agreement.
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SECTION 3.05 Mandatory Prepayments.
(a) Subject to the provisions of Section 2.11, Borrowers shall prepay the
outstanding principal amount of the Loans on any day, if any, on which the
aggregate outstanding principal amount of the Loans exceeds the Total Loan
Commitment in the following order, in each case to the extent of the amount of
the obligations owing by such Borrower to the Banks for Loans not to exceed,
however, such excess of outstanding Loans over the Total Loan Commitment:
firstly, the Services Partnership; secondly, the MLP and lastly, the Operating
Partnership.
(b) With respect to each prepayment of Loans required by this Section 3.05,
such Borrower may designate the Types of Loans which are to be prepaid and the
specific Borrowing or Borrowings pursuant to which made. If such prepayment is
of a LIBOR Rate Loan or a CD Rate Loan and occurs on a day other than the last
day of the Interest Period applicable thereto, the provisions of Section 3.04(c)
shall be applicable.
(c) In the case of Loans secured by Qualifying Securities, if within three
days after a Credit Event other than a Borrowing (including a reborrowing of
Loans, in which case Qualifying Securities in the Required Collateral Amount
shall be provided by the relevant Borrower at the time of the Credit Event as
provided in Section 2.08), the Relevant Borrower has not delivered or caused to
be delivered sufficient Qualifying Securities to the extent necessary such that
each such Loan is secured by a first perfected lien on Qualifying Securities in
the Required Collateral Amount, such Borrower shall prepay each such Loan.
(d) The Operating Partnership shall prepay the MP Loans as required by
Section 7.03 and 7.04.
SECTION 3.06 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement shall be made to
the Agent for the account of the Bank or Banks entitled thereto not later than
noon (New York time) on the date when due and shall be made in lawful money of
the United States of America in immediately available funds at the Agent's
Domestic Lending Office. Funds received after that time shall be deemed to have
been received by the Agent on the next succeeding Business Day. The Agent shall
promptly remit in same day funds to each Bank such Bank's share, if any, of such
payments received by the Agent for the account of such Bank. Whenever any
payment to be made under this Agreement or any other Credit Document shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day except as provided in the
definition of Interest Period, and interest shall accrue and be payable thereon
during such extension.
SECTION 3.07 Net Payments.
(a) Any and all payments by any Borrower shall be made free and clear of
and without deducting for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings and all liabilities with respect thereto,
excluding taxes on or measured by the net income of a Bank
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pursuant to the tax laws of the jurisdiction in which such Bank is organized (or
any political subdivision thereof) or the jurisdiction in which such Bank's
principal office or offices or Domestic Lending Office are located (or any
political subdivision thereof) (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If any Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable to any Bank, the Agent or the Collateral Agent
under this Agreement, any Note or any other Credit Document; (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.07), such Bank, the Agent or the Collateral Agent, as the case
may be, receives an amount equal to the sum it would have received had no such
deductions been made; (ii) such Borrower shall make such deductions; and (iii)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrowers agree to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges, or similar
levies which arise from any payment made under this Agreement, the Notes, or any
other Credit Document or from the execution, delivery, or registration of, or
otherwise with respect to, this Agreement, the Notes, or any other Credit
Document (hereinafter referred to as "Other Taxes").
(c) The Borrowers will indemnify each Bank, the Agent, and the Collateral
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on payments
payable under this Section 3.07) paid by such Bank, the Agent (on its own behalf
or on behalf of any Bank), or the Collateral Agent, as the case may be, in
respect of payments made or to be made hereunder and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date such Bank, the
Agent, or the Collateral Agent, as the case may be, makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes or Other Taxes,
the Borrowers will furnish to the Agent, at the Agent's Domestic Lending Office,
the original or a certified copy of a receipt evidencing payment thereof.
(e) Each Bank severally represents for itself and not otherwise that it is
either; (i) a corporation organized under the laws of the United States or any
State thereof, or (ii) 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 and the other Credit Documents (A)
under an applicable provision of a tax convention to which the United States is
a party or (B) because it is acting through a branch, agency or office in the
United States and any payment to be received by it under this Agreement and the
other Credit Documents is effectively connected with a trade or business in the
United States.
Each Bank that is not a corporation or association organized under the laws of
the United States or any State thereof (a "Foreign Bank") agrees to provide to
the Borrowers and the Agent on or prior
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to the Closing Date in the case of each Foreign Bank signatory hereto, and on
the date of the Assignment Agreement pursuant to which it became a Bank in the
case of each other Foreign Bank, and at such other times as required by United
States law or as the Borrowers or the Agent shall reasonably request, two
accurate and complete original signed copies of either (a) Internal Revenue
Service Form 4224 (or any successor form) certifying that all payments to be
made to such Foreign Bank under this Agreement and the other Credit Documents
will be effectively connected to a United States trade or business (the "Form
4224 Certification"); or (b) Internal Revenue Service Form 1001 (or any
successor form) certifying that such Foreign Bank is entitled to the benefits of
a provision of a tax convention to which the United States is a party which
completely exempts from United States withholding tax all payments to be made to
such Foreign Bank under this Agreement and the other Credit Documents (the "Form
1001 Certification"). In addition, each Foreign Bank agrees that if such
Foreign Bank previously filed a Form 1001 Certification it will deliver to the
Borrowers and the Agent a new Form 1001 Certification prior to the first payment
date falling in the third year following the previous filing of such Form 1001
Certification; and if such Foreign Bank previously filed a Form 4224
Certification it will deliver to the Borrowers and the Agent a new Form 4224
Certification prior to the first payment date occurring in each of its
subsequent taxable years. Each Foreign Bank also agrees to deliver to the
Borrowers and the Agent such other supplemental forms as may at any time be
required as a result of changes in applicable law, rule, regulation or treaty or
the circumstances of such Foreign Bank in order to confirm or maintain in effect
its entitlement to complete exemption from U.S. withholding tax on any payments
hereunder, provided that the circumstances of such Foreign Bank at the relevant
time and applicable laws permit it to do so. If a Foreign Bank determines, as a
result of any change in either (i) applicable law, rule, regulation or treaty,
or in any official application thereof, or (ii) its circumstances, that it is
unable to submit any form or certificate that it is obligated to submit pursuant
to this Section 3.07, or that it is required to withdraw or cancel any such form
or certificate previously submitted, it shall promptly notify the Borrowers and
the Agent of such fact (a "Withholding Notice"). If the Borrowers and the Agent
have timely received a Withholding Notice from any Foreign Bank, or have not
received from any Foreign Bank a Form 1001 Certification or Form 4224
Certification satisfactory to them indicating that all payments to be made to
such Foreign Bank under this Agreement and the other Credit Documents are exempt
from withholding or deduction of taxes in a situation in which the timely
delivery of such forms would eliminate some or all requirements for withholding
of United States federal income taxes by any Borrower in connection with
payments on the Notes or under this Agreement or any other Credit Document, then
such Borrower shall not be required to repay or reimburse to such Bank or the
Agent or the Collateral Agent any amount of such taxes withheld that would not
have been required to be withheld if such Bank had timely delivered such forms.
SECTION 3.08 Pro Rata Treatment.
(a) Each Borrowing by a Borrower from the Banks hereunder, each payment by
a Borrower on account of any facility fee hereunder and any reduction of the
Loan Commitments of the Banks (except as otherwise expressly provided herein)
shall be made pro rata according to the respective Participation Percentage of
the Banks. Each payment (including each prepayment) by the Borrower on account
of principal of and interest on the Loans shall be made pro rata according to
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the respective outstanding principal amounts of the Loans then held by the
Banks. Except as otherwise expressly provided, the Agent agrees that on the
date of its receipt of each payment in respect of the Loans or any other
obligation governed hereby, it shall distribute such payment in like funds as
received to each Bank at the Domestic Lending Office of such Bank (or otherwise
in accordance with instruction received from such Bank), pro rata based upon
such Bank s proportionate share of such obligations with respect to which such
payment was received.
(b) Except as otherwise expressly provided, each of the Banks agrees that
if it should receive any amount hereunder (whether by voluntary payment, by
realization upon security, by counterclaim or cross action, by the enforcement
of any right under the Credit Documents, or otherwise and including pursuant to
any applicable bankruptcy, insolvency or other similar law) which is applicable
to the payment of the principal of, or interest on, the Loans of a sum which
with respect to the related sum or sums received by other Banks is in a greater
proportion than the total of such obligation then owed and due to such Bank
bears to the total of such obligation then owed and due to all of the Banks
immediately prior to such receipt, then such Bank receiving such excess payment
shall purchase for cash without recourse or warranty from the other Banks an
interest in the obligations owing to such Banks in such amount as shall result
in a proportional participation by all of the Banks in such amount; provided,
that if all or any portion of such excess amount is thereafter recovered from
such Bank, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest. If under any applicable
bankruptcy, insolvency or other similar law, any Bank receives a secured claim
in respect of this Section 3.08(b) in lieu of a setoff, each Bank shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Banks entitled under this Section 3.08
to share in the benefits of any recovery on such secured claim.
(c) Each Bank shall, upon the occurrence and continuance of any Event of
Default, have the right to appropriate and apply to the payment of the
obligations owing to it by the Operating Partnership, and as security for such
obligations, the Operating Partnership hereby grants to each Bank upon the
occurrence and continuance of an Event of Default a continuing security interest
in, any and all balances, credits, deposits, accounts or moneys of the Operating
Partnership then or thereafter maintained with such Bank; it being expressly
agreed and understood that in no event shall the foregoing apply to amounts, if
any, maintained by the Operating Partnership with the Collateral Agent under the
Pledge Agreement executed by the Operating Partnership or with the Special Agent
under the Pledge Agreement-Debt Service Reserve or the Special Agency Agreement.
Each Bank agrees promptly to notify the Operating Partnership and the Agent
after any such setoff by it; provided, however, that the failure to give such
notice shall not affect the validity of such setoff and application. The rights
of each Bank under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Bank may have. The Operating Partnership agrees that if any Bank shall obtain
any payment or other recovery from the Operating Partnership by right of setoff
(whether by right of setoff under applicable law, pursuant to this Section
3.08(c) or otherwise), except any payment or other recovery from amounts, if
any, maintained by the Operating Partnership with the Collateral Agent under the
Pledge Agreement executed by the Operating Partnership or with the Special Agent
under the Pledge Agreement-Debt
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Service Reserve or the Special Agency Agreement, such payment or other recovery
shall constitute collateral to be distributed pursuant to the Trust Agreement as
hereinafter provided. Such Bank shall promptly deliver, and the Operating
Partnership hereby authorizes such Bank to deliver, the amount of such payment
or other recovery, if any, to the custody, possession or control of the Trustee
for disposition or distribution in accordance with the applicable provisions of
the Trust Agreement to holders of Parity Debt and the MP Loans. Until such Bank
shall have delivered such payment or other recovery to the Trustee, such Bank
shall be deemed to hold such collateral in trust for the parties under the Trust
Agreement. Notwithstanding the foregoing, no Bank shall have any obligation
whatsoever to obtain, or any liability to any person whatsoever for failure to
obtain, any payment or other recovery from the Operating Partnership by right of
setoff or otherwise. Each holder of Parity Debt shall be entitled to the
benefits of this Section 3.08(c) and to enforce the provisions of this Section
3.08(c) as a third party beneficiary hereof, and the Banks shall not permit the
terms of this Section 3.08(c) to be amended, modified or changed without the
consent of the holders of 66 2/3% of the outstanding principal amount of the
Parity Debt, provided, that for purposes hereof, a termination of this Agreement
for any reason whatsoever shall not be deemed an amendment, modification or
change. Each Bank agrees that if all or any portion of such payment or other
recovery is thereafter rescinded or recovered from such Bank which exercised
setoff, all or the pro rata portion, as the case may be, of such amount which it
received from the Trustee in respect thereof to the extent rescinded or
recovered from such Bank will be repaid to the Bank which exercised such setoff.
This provision shall not imply any obligation of the Operating Partnership to
maintain any deposit balances with any Bank.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01 Conditions Precedent to the Initial Credit Event. The
obligations of the Banks hereunder to continue, renew, and extend the revolving
loans made and existing pursuant to the Existing Credit Agreement on the Closing
Date (such renewal and extension, the "Initial Credit Event") are subject to the
following conditions precedent:
(a) The General Partner and the Borrowers shall have executed this
Agreement and delivered the same to the Agent;
(b) The Agent shall have received a certificate (the "Closing Date Pricing
Certificate") dated the Closing Date (i) stating that a copy of the financial
statements of the Operating Partnership and its Subsidiaries for the quarter
ending June 30, 1996 and referred to in Section 5.05 have been previously
delivered to the Agent and setting forth the Cash Flow/Interest Coverage Pricing
Ratio for purposes of Section 2.07(d).
(c) The Agent shall have received the Certificate of the Secretary or
Assistant Secretary of the General Partner (i) certifying the corporate
resolutions authorizing the transactions
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contemplated by this Agreement, together with an incumbency certificate in
respect of the officers executing this Agreement and any other Credit Documents
to be executed on the Closing Date; and (ii) confirming that each of the
documents described below has not been amended, modified, revoked, terminated,
rescinded or otherwise changed since the "Closing Date" (as defined in the
Existing Credit Agreement):
(A) the Certificate of Incorporation of the General Partner;
(B) the MLP Partnership Agreement;
(C) the Services Partnership Agreement; and
(D) the Operating Partnership Agreement;
(d) The Banks shall have received the opinion of Andrews & Kurth, L.L.P.,
special counsel for the General Partner and the Borrowers, dated the Closing
Date, in a form reasonably acceptable to the Banks;
(e) The Agent shall have been paid its fees as set forth in that certain
commitment letter dated June 12, 1996.
(f) The Borrowers shall have certified that the value of the Qualifying
Securities in which the Collateral Agent will have a first perfected security
interest contemporaneously with the occurrence of the Initial Credit Event shall
be no less than the Required Collateral Amount;
(g) The Trust Agreement shall be in full force and effect and shall
constitute the valid and binding obligation of the Operating Partnership and the
Trustee and no default on the part of the Operating Partnership shall exist
thereunder;
(h) Each Mortgage shall be in full force and effect and shall: (i)
constitute the valid and binding obligation of the Operating Partnership and
(ii) (A) constitute a valid first mortgage lien of record on the real property
and all other interests described therein which may be subjected to a mortgage
lien, subject only to Permitted Encumbrances; and (B) constitute a valid
assignment of, and create a valid, presently effective security interest of
record in, the pipelines, equipment and all other interests (other than real
property interests) described therein, subject to no prior security interest in
any such property other than as specifically permitted therein, and no default
on the part of the Operating Partnership shall exist thereunder;
(i) Each of the Partnership Agreements shall be in full force and effect,
shall constitute the legal, valid and binding obligations of the respective
parties thereto, and no default or accrued right of termination on the part of
any of the parties thereto shall exist thereunder as of the Closing Date;
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(j) Mayer, Brown & Platt shall have delivered its opinion to the Agent, the
Banks and the Collateral Agent in form and substance reasonably satisfactory to
the Agent; and
(k) All proceedings in connection with the transactions contemplated by
this Agreement and all documents and instruments incident to such transactions
shall be reasonably satisfactory to the Agent and its counsel, and the Banks,
the Agent, and the Collateral Agent shall have received all such counterpart
originals or certified or other copies of such documents as they may reasonably
request.
SECTION 4.02 Conditions Precedent to Loans. The obligation of the Banks
to make any Loan is subject to the conditions precedent that on the date such
Loan is made:
(a) The Initial Credit Event shall have occurred;
(b) The Agent shall have received a Notice of Borrowing executed by the
Borrower requesting such Loan; and
(c) The Borrower requesting such Loan shall have delivered its Credit Event
Certificate in the form annexed hereto as Exhibit "D" (each such certificate, a
"Credit Event Certificate") to the Agent.
SECTION 4.03 Use of Proceeds. As a condition precedent to the Initial
Credit Event and the Loans made thereafter, each Borrower hereby agrees to use
the proceeds of the Loans for general partnership purposes, including, without
limitation, acquisitions, operating expenditures, working capital, and capital
expenditures (whether for maintenance, enhancement, or otherwise). As a further
condition precedent to the making of Loans to the Operating Partnership, the
Operating Partnership shall not become liable with respect to any Indebtedness
unless at the time of incurrence thereof and after giving effect thereto and to
the substantially concurrent repayment of any other Indebtedness, the ratio of
the Indebtedness owing by the Operating Partnership to the Operating
Partnership's Partners Equity shall be no greater than 1.85 to 1.00, all as
determined on such date on which the Operating Partnership became liable for
such Indebtedness.
SECTION 4.04 Takeover Notification. In the event a Borrower wishes to
utilize the proceeds of Loans to make a take-over bid (as defined under
applicable securities laws) which is unsolicited (a "Takeover"), then:
(a) such Borrower shall provide to the Agent evidence satisfactory to
the Agent (acting reasonably) of the agreement of the board of
directors or its equivalent of the Person that is the target of
the Takeover approving the Takeover; or
(b) the following steps shall be followed:
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(i) at least five Business Days prior to the delivery of any notice
to the Agent pursuant to Section 4.02 requesting Loans to be
utilized for such Takeover, the president, chief financial
officer, vice president-finance or general counsel of the General
Partner (acting for such Borrower) shall advise the Agent and
each Bank of the particulars of such Takeover in reasonable
detail to enable each Bank to determine whether it has an actual
conflict of interest if Loans from such Bank were utilized by
such Borrower for such Takeover; and
(ii) within three Business Days after being so advised:
A. if a Bank shall not have notified such Borrower and the
Agent that an actual conflict of interest exists (such
determination to be made by each Bank in the exercise of its
sole discretion having regard to such considerations as it
deems appropriate), such Bank shall be deemed to have no
such actual conflict of interest; or
B. if a Bank has notified such Borrower and the Agent within
such period of three Business Days that an actual conflict
of interest exists, then upon such Borrower and the Agent
being so notified, such Bank shall have no obligation to
provide Loans to finance such Takeover notwithstanding any
other provision of this Agreement to the contrary.
If any notification has been made by a Bank pursuant to Section
4.04(b)(ii)(B), then, except as provided in the paragraph immediately below, any
Loans made to finance the Takeover in respect of which such notice was given
shall be determined without reference to the Loan Commitment of such Bank; it
being expressly agreed and understood that any such notification by a given Bank
shall not relieve any other Bank of any of its obligations hereunder, provided
that, for certainty, no Bank shall be obligated by this Section to make or
provide Loans in excess of its Loan Commitment.
If the conflict of interest giving rise to a notification under this
Section 4.04(b)(ii)(B) ceases to exist (whether by successful completion of the
Takeover or otherwise), then the Bank giving such notification shall, on the
next continuation or conversion of or, in the case of a Prime Rate Loan, the
next Interest Payment Date for, the Loans made to finance the relevant Takeover,
purchase, and the other Banks shall, on a rateable basis, sell and assign to
such Bank, portions of such Loans such that the notifying Bank holds its
rateable share of such Loans without regard to Section 4.04.
In the event that with respect to any Takeover, any Bank shall have
notified any Borrower that a conflict of interest exists as contemplated
hereinabove, Borrowers shall have the
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right to replace each such Bank as a Bank by giving notice to such Bank (with a
copy to the Agent) that it wishes to seek one or more financial institutions
(which may be one or more of the Banks) to assume the Loan Commitment of such
Bank and to purchase its outstanding Loans and its Notes and Loan Commitment,
without recourse or warranty by, or expense to, such Bank, for a purchase price
equal to the outstanding principal amount of the Loans payable to such Bank,
plus any accrued unpaid interest on such Loans, plus any accrued, unpaid
facility fees pursuant to Section 3.01 and any other amounts owing to such Bank
hereunder, and upon such purchase, the purchasing bank shall become a Bank for
purposes of this Agreement and the selling Bank shall cease to be a Bank
hereunder; provided, however, that the Borrowers will (i) pay to the selling
Bank any other amounts then due and payable to such Bank hereunder, and (ii) pay
reasonably required amounts to compensate such Bank for its reasonable
out-of-pocket costs or expenses incurred by such Bank to effect such sale, and
provided, further that in the event the purchasing bank is not rated at least
"A" (or a comparable rating if the rating system changes) by S&P or "A2" (or a
comparable rating if the rating system changes) by Moody's, the Agent shall have
consented to such purchasing bank, which consent shall not be unreasonably
withheld or delayed. Each Bank hereby agrees that upon Borrowers notifying it
that Borrowers have elected to replace it as a Bank hereunder and upon receipt
of the amounts required pursuant to this paragraph, it shall promptly transfer
and assign its Loan Commitment, Loans, Notes and interest in this Agreement and
the other Credit Documents to any such financial institution or institutions
pursuant, and subject, to the conditions contained in this Section and Section
11.03.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of the General Partner and each of the Borrowers severally represents
and warrants each for itself and not otherwise as set forth below as of the
Closing Date, as applicable: (For purposes of this Article V, the General
Partner and each Borrower shall be sometimes individually referred to as "It" or
"it".)
SECTION 5.01 Organization. (a) the General Partner is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Delaware and is qualified or registered and is in good standing as a foreign
corporation for the transaction of business in Illinois, Indiana, Michigan,
Minnesota, New York, North Dakota and Wisconsin, which are the only
jurisdictions in which the nature of its activities or the character of the
properties it owns, leases or uses makes such qualification or registration
necessary and in which the failure so to qualify or to be so registered would
have a Material Adverse Effect as to it.
(b) The MLP is a limited partnership duly organized, validly existing and
in good standing under the laws of the state of Delaware and is duly licensed,
organized or qualified and in good standing under the laws of each jurisdiction
where ownership of its properties or conduct of
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its business requires the same and where a failure so to be licensed, organized
or qualified would have a Material Adverse Effect as to it.
(c) The Operating Partnership is a limited partnership duly organized,
validly existing and in good standing under the Delaware Revised Uniform Limited
Partnership Act and is duly qualified or registered and in good standing as a
foreign limited partnership for the transaction of business in Illinois,
Indiana, Michigan, Minnesota, New York, North Dakota and Wisconsin, which are
the only jurisdictions in which the nature of its activities or the character of
the properties it owns, leases or uses makes such qualification or registration
necessary and in which the failure so to qualify or to be so registered would
have a Material Adverse Effect as to it. As of the Closing Date, its general
partner is the General Partner, who owns a 1.0101% general partner interest in
the Operating Partnership. The only limited partner of the Operating
Partnership is the MLP, which owns a 98.9899% limited partner interest in the
Operating Partnership. The Operating Partnership does not have any Subsidiaries
or any Investments in any Person (other than Investments of the types described
in Section 8.03).
(d) The Services Partnership is a limited partnership duly organized,
validly existing and in good standing under the laws of the state of Delaware
and is duly licensed, organized or qualified and in good standing under the laws
of each jurisdiction where ownership of its properties or conduct of its
business requires the same and where a failure so to be licensed, organized or
qualified would have a Material Adverse Effect on it. As of the Closing Date,
its general partner is the MLP.
SECTION 5.02 Power and Authority, Licenses and Permits. (a) It has all
requisite corporate or partnership power and authority to own and operate its
properties (including, without limitation, in the case of the Operating
Partnership, the Assets), to conduct its business as now being conducted, to
enter into this Agreement and each other Credit Document to which it is a party,
and to perform its obligations under this Agreement, the Notes, and each other
Credit Document. Except as contemplated by this Agreement and the other Credit
Documents to which it is a party, it is not required to obtain any consent,
approval or authorization of, or declaration or filing with, any governmental
authority for the valid execution and delivery of this Agreement or any of the
other Credit Documents to which it is a party (other than Permitted Exceptions).
SECTION 5.03 Authorization of Credit Documents; No Violation.
(a) The execution, delivery and performance by it of each Credit Document
to which it is a party (i) are within its corporate or partnership powers, as
the case may be, (ii) have been duly authorized by all necessary corporate or
partnership action, as the case may be, (iii) do not violate any material law,
rule, regulation, order, judgment, award or decree applicable to it, (iv) do not
violate its Certificate of Incorporation or bylaws or partnership agreement, as
the case may be, (v) do not result in a breach of, constitute a default under
any material loan agreement, indenture, trust deed or any other agreement or
instrument to which it is a party or by which it is bound and do not result in
the creation of (or impose any obligation on it to create) any Lien upon any of
its properties or assets other than as contemplated by the Security Documents
pursuant to its terms.
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(b) The execution, delivery, and performance by the General Partner on
behalf of and as general partner of the Operating Partnership and of the MLP and
by the MLP as general partner of the Services Partnership, of this Agreement,
and each other Credit Document to which the Operating Partnership or the
Services Partnership, respectively, is a party (i) are within its corporate
powers; (ii) have been duly authorized by all necessary corporate action; (iii)
do not violate any material law, rule, regulation, order, judgment award or
decree applicable to it; and (iv) do not violate its Certificate of
Incorporation or bylaws.
SECTION 5.04 Enforceability of Credit Documents. This Agreement, the
Notes and the other Credit Document to which it is a party have been duly
executed and delivered by it and constitute its legal, valid and binding
obligation enforceable against it in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors rights and to general principles of equity.
SECTION 5.05 Financial Statements. The audited financial statements
(consolidated, if applicable) of the General Partner, the MLP, the Services
Partnership, and the Operating Partnership for the period ending December 31,
1995 and their respective unaudited financial statements (consolidated, if
applicable) of the General Partner for the period ending June 30, 1996 present
fairly the respective financial conditions of said entities and if applicable,
their respective consolidated subsidiaries as of such date and their results of
operations (consolidated, if applicable) for the periods then ended, in
accordance with GAAP consistently applied. Since June 30, 1996 to the Closing
Date, there has been no material adverse change in the business, financial
condition or results of operations of said entities and, if applicable, their
respective consolidated subsidiaries, taken as a whole.
SECTION 5.06 [Intentionally Omitted]
SECTION 5.07 Payment of Taxes. It has filed all tax returns required by
law to be filed by it, and has paid all material taxes, assessments, and other
governmental charges levied upon it and its consolidated subsidiaries, if any,
or upon its properties, assets, income or franchises which are due and payable
by it, except those which are not past due or are presently being contested in
good faith by appropriate proceedings diligently conducted for which such
reserves or other appropriate provisions, if any, as shall be required by GAAP
have been made. The Operating Partnership, the Services Partnership and the MLP
each further represent and warrant that it is a limited partnership not subject
to taxation with respect to its income or gross receipts under applicable state
(other than Illinois or Michigan) and federal laws.
SECTION 5.08 Environmental Matters.
(a) Except as disclosed in Schedule 5.08, it is in compliance with all
Environmental Laws applicable to it and in the case of the Operating Partnership
only, to the Business or Assets, except where such noncompliance would not have
a material adverse effect on its financial condition or
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results of operations, or in the case of the general partner of the Operating
Partnership and the Operating Partnership only, the Business or the Assets. It
has timely and properly applied for renewal of all environmental permits or
licenses that have expired or are about to expire and are necessary for the
conduct of the Business as now conducted and as proposed to be conducted, except
where the failure to timely and properly reapply would not have a material
adverse effect on the Business or Assets or on the financial condition or
results of operations of the Operating Partnership. Schedule 5.08 lists: (i)
substantially all notices from federal, state or local environmental agencies to
the Operating Partnership or to the General Partner citing violations under
environmental permits or licenses that have not been finally resolved and
disposed of, and no such violation, whether or not notice regarding such
violations is listed on Schedule 5.08 if ultimately resolved against the
Operating Partnership or the General Partner, as the case may be, would
reasonably be expected to have a material adverse effect on the Business or
Assets or on the financial condition or results of operations of the Operating
Partnership, and (ii) substantially all current reports filed by the Operating
Partnership or the General Partner with any federal, state or local
environmental agency having jurisdiction over the Assets. Notwithstanding any
such notice, the Operating Partnership and the General Partner are currently
operating in all material respects within the limits set forth in such
environmental permits or licenses and any current noncompliance with such
permits or licenses will not result in any material liability or penalty to the
Operating Partnership or in the revocation, loss or termination of any such
environmental permits or licenses.
(b) Except as disclosed in Schedule 5.08, all facilities located on the
real property included in the Assets which are subject to regulation by RCRA are
and have been operated in compliance with RCRA, except where such noncompliance
would not have a material adverse effect on the Business or Assets or on the
financial condition or results of operations of the Operating Partnership, and
neither the Operating Partnership nor the General Partner has received, or, to
the knowledge of the Operating Partnership and the General Partner upon
reasonable inquiry, been threatened with, a notice of violation of RCRA
regarding such facilities.
(c) Except as disclosed in Schedule 5.08, no hazardous substance (as
defined in CERCLA) or hazardous waste (as defined in RCRA) is located or present
at any of the real property included in the Assets in violation of any
Environmental Law, which violation would reasonably be expected to have a
material adverse effect on the financial condition or results of operations of
the Operating Partnership or on the Business. With respect to such real
property there has not occurred: (i) any release or threatened release of any
such hazardous substance; (ii) any discharge or threatened discharge of any such
hazardous substance into ground, surface, or navigable waters which violates any
federal, state, local or foreign laws, rules or regulations concerning water
pollution; or (iii) any assertion of any lien pursuant to Environmental Laws
resulting from any use, spill, discharge or clean-up of any hazardous or toxic
substance or waste, which in the case of any occurrence described in the
foregoing clauses (i) through (iii) would reasonably be expected to have a
material adverse effect on the financial conditions or results of operations of
the Operating Partnership or on the Business.
(d) None of the matters disclosed in Schedule 5.08, either individually or
in the aggregate, involves a violation of or a liability under any Environmental
Law, the consequences of
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which will have a material adverse effect on the Business or Assets or financial
condition or results of operations of the Operating Partnership.
SECTION 5.09 Foreign Assets Control Regulations, etc. Neither the
execution and delivery of the Notes by it nor its use of the proceeds thereof as
contemplated by this Agreement will violate any of the regulations administered
by the Office of Foreign Assets Control, United States Department of the
Treasury, including, without limitation, the Foreign Assets Control Regulations,
the Transaction Control Regulations, the Cuban Assets Control Regulations, the
Foreign Funds Control Regulations, the Iranian Assets Control Regulations, the
Iranian Transactions Regulations, the Iraqi Sanctions Regulations, the Libyan
Sanctions Regulations, and the Soviet Gold Coin Regulations (31 C.F.R., Subtitle
B, Chapter V, as amended) or the restrictions set forth in Executive Orders No.
8389, 9193, 12543 (Libya), 12544 (Libya), 12722 (Iraq) or 12724 (Iraq), 12775
(Haiti) or 12779 (Haiti) as amended, of the President of the United States of
America or of any rules or regulations issued thereunder.
SECTION 5.10 Disclosure.
(a) Neither this Agreement, the other Credit Documents to which it is a
party, nor any other historical financial statement, document, certificate or
instrument delivered to any Bank or the Agent by it, or on its behalf in
connection with the transactions contemplated by this Agreement, contains any
untrue statement of a material fact or omits to state a material fact necessary
in light of the circumstances under which they are made to make the statements
contained therein not misleading as of the time when made or delivered.
(b) There is no fact known to it which materially adversely affects its
financial condition or its results of operations and in the case of the General
Partner and the Operating Partnership, the Business or Assets, which has not
been set forth or referred to in this Agreement or otherwise disclosed in
writing to the Agent and the Banks.
SECTION 5.11 Chief Executive Office. Its chief executive office and the
office where it maintains its records relating to the transactions contemplated
hereby is located at 21 West Superior Street, Duluth, Minnesota 55802.
SECTION 5.12 [Intentionally Omitted]
SECTION 5.13 [Intentionally Omitted]
SECTION 5.14 Indebtedness. Other than (a) the Indebtedness governed
hereby and (b) the Indebtedness evidenced by the Mortgage Notes, none of the
Borrowers has any secured or unsecured Indebtedness outstanding. No instrument
or agreement to which it is a party or by which it is bound or which is
applicable to it (other than this Agreement and the Mortgage Note Agreements)
contains any restrictions on the incurrence by it of additional Indebtedness.
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SECTION 5.15 Assets and Business.
(a) It is in possession of, and operating in compliance in all material
respects with, all franchises, grants, authorizations, approvals, licenses,
permits, easements, rights-of-way, consents, certificates and orders required to
own, lease or use its properties and to permit the conduct of the Business as
now conducted, except for those franchises, grants, authorizations, approvals,
licenses, permits, easements, rights-of-way, consents, certificates and orders
(collectively, "Permitted Exceptions") which, if not obtained or given, would
not individually or in the aggregate, materially and adversely affect the
Business or the operations of the Operating Partnership.
(b) The Operating Partnership has (i) sufficient title to the Pipeline
Assets to enable it to use the Pipeline Assets as the same are being used in the
Business and any lack of title to the Pipeline Assets has not had, and to the
best knowledge of the Operating Partnership would not reasonably be expected to
have, any material adverse effect on its ability to use the Pipeline Assets as
the same are being used in the Business and will not materially increase the
cost of such use, (it being understood that sufficient title as used in this
Section 5.15(b) shall mean such title to real property as is customarily held by
Persons in the pipeline business) and (ii) good and sufficient title to the
portion of the Assets constituting personal property for the use and operation
of such personal property as such property is being used in the Business and any
lack of title to such personal property has not had and would not reasonably be
expected to have, to the best knowledge of the Operating Partnership, any
material adverse effect on the use of the personal property as it is being used
in the Business and will not materially increase the cost of such use, in each
case subject to no Liens except such as are of the character permitted by
Section 8.02. The Pipeline Assets are located in the counties listed in Schedule
5.15(b)(ii). The Operating Partnership enjoys peaceful and undisturbed
possession under all leases necessary in any material respect for the operation
of its properties and assets, and all such leases are valid and subsisting and
are in full force and effect.
Except to perfect and to protect security interests of the character described
in Section 8.02 and in respect of Liens created or arising in connection with
the Existing Credit Agreement, (x) no presently effective financing statement
under the Uniform Commercial Code which names the Operating Partnership or the
General Partner (with respect to any of the Assets) as debtor, which
individually or in the aggregate relates to any material part of the Assets, is
on file in any jurisdiction in which any of the Assets are (or have been)
located or the Operating Partnership or the General Partner is organized or has
its principal place of business, and (y) neither the Operating Partnership nor
the General Partner (with respect to the Assets) has signed any presently
effective financing statement or any presently effective security agreement,
which individually or in the aggregate relates to any material part of the
Assets, authorizing any secured party thereunder to file any such financing
statement, except for financing statements to be executed and filed in
connection with the Existing Credit Agreement or the Closing.
(c) The Mortgages, or proper notices, statements or other instruments in
respect thereof, have been duly recorded, published, registered and filed with
respect to all or substantially all of the Assets located in not less than 58 of
the 72 counties in which Assets are located (including, in such
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58 counties, the counties in which the Operating Partnership's tankage,
maintenance and office facilities listed as items 1, 2 and 3 on Schedule
5.15(c)(ii) and at least five of the remaining seven facilities listed on
Schedule 5.15(c)(ii) are located).
SECTION 5.16 Compliance with Other Instruments, etc. It (a) is not in
violation of any term of its Partnership Agreement or, in the case of the
General Partner, of its certificate of incorporation or bylaws and (b) is not in
violation of any term of any other agreement or instrument to which it is a
party or by which it or any of its properties is bound or any term of any
applicable law, ordinance, rule or regulation of any governmental authority or
any term of any applicable order, judgment or decree of any court, arbitrator or
governmental authority which would reasonably be expected to result in a
Material Adverse Effect.
SECTION 5.17 Governmental Consent. No consent, approval or authorization
of, or declaration or filing with, any governmental authority is required for
the valid execution, delivery (except as expressly contemplated to the contrary
by this Agreement or the other Credit Documents), and performance by it of this
Agreement or the other Credit Documents to which it is a party (other than
Permitted Exceptions).
SECTION 5.18 Federal Reserve Regulations. It will not, directly or
indirectly, use any of the proceeds of the Loans for the purpose, whether
immediate, incidental or ultimate, of buying a "margin stock" or of maintaining,
reducing or retiring any indebtedness originally incurred to purchase a stock
that is currently a "margin stock", or for any other purpose which might
constitute the transactions a "purpose credit", in each case within the meaning
of Regulation G, U, or X of the Board of Governors of the Federal Reserve
System, or otherwise take or permit to be taken any action which would involve a
violation of Regulation G, U, or X or any other applicable regulation of the
Board. No indebtedness being reduced or retired, directly or indirectly, from
the proceeds of the Loans, if any, was incurred for the purpose of purchasing or
carrying any stock which is currently a "margin stock", and it has no present
intention of acquiring any amount of such "margin stock".
SECTION 5.19 Investment Company Act. It is not an "investment company",
or a company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 5.20 Public Utility Holding Company Act; Federal Power Act. It is
not a "holding company", or a "subsidiary company" of a "holding company", or
an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935, as amended, subject to regulation under such Act (except for Section
9(a)(2) thereof); and it is not a "public utility" as such term is defined in
the Federal Power Act, as amended.
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SECTION 5.21 ERISA.
(a) Except as set forth in Schedule 5.21, neither it nor any Related Person
has ever established, maintained, contributed to or been obligated to contribute
to, and neither it nor any Related Person has any liability or obligation with
respect to, any Plan. Except as set forth in Schedule 5.21, neither it nor any
Related Person has assumed, either by agreement, by operation of law or
otherwise, any liability or obligation with respect to any "employee benefit
plan" (as defined in ERISA) or any other compensation or benefit arrangement,
agreement, policy, practice or understanding, and neither it nor any Related
Person has any liability or obligation to provide any amount or type of
compensation or benefit to any employee or former employee of the Business .
(b) The execution and delivery of this Agreement and of the Notes to which
it is a party will not involve any non-exempt "prohibited transaction" within
the meaning of Section 406 of ERISA or 4975 of the Code.
ARTICLE VI
AFFIRMATIVE COVENANTS
Each of the Borrowers and, with respect to Sections 6.03(b), (c), (h), (i),
(j) and (k) only, the general partner of the Operating Partnership, severally
covenants and agrees, each for and as to itself and not otherwise, that on and
after the date hereof and until all the Loans owing by such Borrower, together
with interest thereon, fees and all other obligations incurred hereunder and
owing by such Borrower, are paid in full and the termination of the obligations
of the Banks to make, continue and/or convert Loans hereunder (for purposes of
this Article VI, each Borrower and, with respect to Sections 6.03(b), (c), (h),
(i), (j) and (k) only, the general partner of the Operating Partnership
sometimes shall be individually referred to as "It" or "it"):
SECTION 6.01 [Intentionally omitted.]
SECTION 6.02 [Intentionally omitted.]
SECTION 6.03 Reporting Covenants. It will maintain, and will cause each
of its Subsidiaries to maintain, a system of accounting established and
administered in accordance with GAAP and will accrue, and will cause each of its
Subsidiaries to accrue, all such liabilities as shall be required by GAAP. It
will furnish to the Agent and the Banks:
(a) Quarterly Financial Statements. As soon as practicable, but in any
event within 60 days after the end of each of the first three quarterly fiscal
periods in each fiscal year, consolidated and consolidating balance sheets for
itself and its Subsidiaries as at the end of such period and the related
consolidated (and, as to statements of income and cash flows, consolidating)
statements of income, surplus or partners' capital, and cash flows for such
period and (in the case of the second
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and third quarterly periods) for the period from the beginning of the current
fiscal year to the end of such quarterly period, setting forth in each case in
comparative form the consolidated and, where applicable, consolidating figures
for the corresponding periods of its previous fiscal year, all in reasonable
detail and certified by the principal financial officer of its general partner
as presenting fairly, in all material respects, the information contained
therein (subject to changes resulting from normal, year-end adjustments), in
accordance with GAAP applied on a basis consistent with prior fiscal periods.
(b) Annual Financial Statements. As soon as practicable, but in any event
within 120 days (or such longer period as the Required Banks in their discretion
may approve) after the end of its fiscal year, consolidated and consolidating
balance sheets for each Borrower and for its Subsidiaries and consolidated
balance sheets of the general partner of such Borrower as at the end of such
year and the related consolidated (and, as to statements of income and cash
flows, consolidating) statements of income, surplus or partners capital, and
cash flows of each Borrower and its Subsidiaries and the consolidated statements
of income, surplus, cash flow and stockholders' equity of the general partner of
each Borrower for such fiscal year, setting forth in each case in comparative
form the consolidated and, where applicable, consolidating figures for the
previous fiscal year, all in reasonable detail, accompanied by:
(i) in the case of the consolidated financial statements of each
Borrower and its Subsidiaries, a report thereon of Price Waterhouse or
other independent public accountants of recognized national standing
selected by it, which report shall state that such consolidated financial
statements present fairly, in all material respects, the financial position
of it and its Subsidiaries at the dates indicated and the results of their
operations and cash flows for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years and that the audit by such
accountants in connection with such consolidated financial statements has
been made in accordance with GAAP, and
(ii) in the case of the consolidated financial statements of the
general partner of each Borrower and the financial statements of each
Borrower, certified by its principal financial officer or the principal
financial officer of its general partner as presenting fairly, in all
material respects, the information contained therein in accordance with
GAAP applied on a basis consistent with prior fiscal periods.
(c) Operating Partnership Compliance Certificate. Together with each
delivery of financial statements pursuant to subsections (a) and (b) of this
Section 6.03, an Operating Partnership Compliance Certificate as of the end of
the immediately preceding fiscal quarter.
(d) [Intentionally omitted.]
(e) [Intentionally omitted.]
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(f) Copies of Communications with Security Holders, Filings, Etc. Promptly
upon their becoming publicly available, copies of all financial statements,
reports, notices, and proxy statements sent or made available by the Operating
Partnership or the MLP to all of its security holders in compliance with the
Securities Exchange Act of 1934, as amended from time to time, or any comparable
federal or state laws relating to the disclosure by any Person of information to
its security holders, of all regular and periodic reports and registration
statements and prospectuses filed by it with any securities exchange or the
Securities and Exchange Commission or any governmental authority succeeding to
any of its functions (other than registration statements on Form S-8 and Annual
Reports on Form 11-K), and of all press releases and other statements made
available by it to the public concerning material developments in its business.
(g) FERC Matters. In the case of the Operating Partnership only, (i)
promptly after the filing by the Operating Partnership of any material rate
application with the FERC, notice of such filing and, if requested, a copy of
such application, and (ii) promptly upon receipt of written notice of any
material protest or challenge of any such filing, copies of such written notice,
and (iii) promptly upon receipt thereof, documents reporting the resolution of
any such protest or challenge.
(h) Notice of Default. Promptly, but in any event within five Business
Days after any of its officers obtains knowledge of (i) any condition or event
which constitutes a Default or Event of Default, (ii) that any Bank has given
any notice or taken any other action with respect to a claimed Default or Event
of Default under this Agreement or the Security Documents, or (iii) that any
Person has given any notice to it or any Subsidiary or taken any other action
with respect to a claimed default or event or condition of the type referred to
in Section 9.01(f), an Officers' Certificate describing the same and the period
of existence thereof and what action it has taken, is taking and proposes to
take with respect thereto.
(i) Litigation. Promptly, but in any event within five Business Days after
any of its officers obtains knowledge of the commencement of or significant
development in any material litigation or material proceeding (including those
regarding environmental matters) with respect to, or affecting, it, a written
notice describing in reasonable detail such commencement of or significant
development in, such litigation or proceeding.
(j) ERISA Matters. Promptly, but in any event within five Business Days
after any of its officers obtains knowledge that any of the events or conditions
specified below with respect to any Plan has occurred or exists, and such event
or condition has resulted, or in its opinion, is reasonably expected to result,
in a Material Adverse Effect as to it, a statement setting forth details
respecting such event or condition and the action, if any, that it or any
Related Person has taken, is taking or proposes to take or cause to be taken
with respect thereto (and a copy of any notice or report filed with or given to
or communication received from the PBGC, the Internal Revenue Service or the
Department of Labor with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA and
the regulations issued thereunder;
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(ii) the filing under Section 4041 of ERISA of a notice of intent to
terminate any Plan or the termination of any Plan;
(iii) a substantial cessation of operations within the meaning of
Section 4062(e) of ERISA under circumstances which could result in the
treatment of it or any Related Person as a substantial employer under a
"multiple employer plan" or the application of the provisions of Section
4062, 4063 or 4064 of ERISA to it or any Related Person;
(iv) the institution by the PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by it or any Related Person of a
notice from a Multiemployer Plan that such action has been taken by the
PBGC with respect to such Multiemployer Plan;
(v) the complete or partial withdrawal by it or any Related Person
under Section 4063, 4203 or 4205 of ERISA from a Plan which is a "multiple
employer plan" or a Multiemployer Plan, or the receipt by it or any Related
Person of notice from a Multiemployer Plan that it intends to impose
withdrawal liability on it or any Related Person or that it is in
reorganization or is insolvent within the meaning of Section 4241 or 4245
of ERISA or that it intends to terminate a Plan under Section 4041A of
ERISA or withdraw from a "multiple employer plan" under Section 4063 of
ERISA;
(vi) the institution of a proceeding against it or any Related Person
to enforce Section 515 of ERISA;
(vii) the occurrence or existence of any event or series of events
which reasonably would be expected to result in a liability to it or any
Related Person pursuant to Section 4069(a) or 4212(c) of ERISA;
(viii) the failure to make a contribution to any Plan, which failure,
either alone or when taken together with any other such failure, is
sufficient to result in the imposition of a lien on any of its property or
on the property of any Related Person pursuant to Section 302(f) of ERISA
or Section 412(n) of the Code;
(ix) the amendment of any Plan in a manner which would be treated as a
termination of such Plan under Section 4041(e) of ERISA or require it or
any Related Person to provide security to such Plan pursuant to Section 307
of ERISA or Section 401(a)(29) of the Code; or
(x) the incurrence of liability in connection with the occurrence of a
"prohibited transaction" (within the meaning of Section 406 of ERISA or
Section 4975 of the Code).
(k) Notice Re: Hazardous Substance and Hazardous Waste. Promptly, but in
any event within five Business Days after any of its officers receives any
notice or request from any Person
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(other than any Affiliate or any agent, attorney or similar party employed by
it) for information, or if it or any of its Subsidiaries provides any notice or
information to any such Person (other than any Affiliate or any agent, attorney
or similar party employed by it), concerning the presence or release of any
hazardous substance (as defined in CERCLA) or hazardous waste (as defined in
RCRA) or other contaminants (as defined by any applicable federal, state, local
or foreign laws) within, on, from, relating to or affecting any property owned,
leased, or subleased by it or any of its Subsidiaries, in either event with
respect to any event or circumstance which has resulted in, or in its opinion is
reasonably expected to result in, a Material Adverse Effect, copies of each such
notice, request, or information; provided, however, this provision shall not
apply to notices or requests for information relating to the presence in the
ordinary course of business at such property of such substance, waste or
contaminant in containers meeting applicable legal standards and appropriate to
prevent any release or escape or otherwise present or released in compliance
with Environmental Laws.
(l) Other Financial Information. With reasonable promptness, such other
financial reports and information and data with respect to it or any of its
Subsidiaries as from time to time may be reasonably requested in writing by the
Agent or the Banks.
SECTION 6.04 Visitation, Inspection, Etc. It will permit, or cause its
general partner to permit, any authorized representative of the Agent or the
Collateral Agent, without expense to such Borrower, to visit and visually
inspect any of its properties or the properties of its Subsidiaries (and any
properties of its general partner or of such general partner's Subsidiaries
relating to the Business) including its books of account and the books of
account of its Subsidiaries, its general partner, and such general partner s
Subsidiaries (other than separately presented financial information of any
Subsidiary of such general partner not related to the Business), and to make
copies and take extracts therefrom, and to discuss its and their affairs,
finances, and accounts (other than separately presented financial information of
any Subsidiary of such general partner not related to the Business) with its and
their officers and independent public accounts (and by this provision it
authorizes such accountants to discuss with such representatives the affairs,
finances and accounts of itself and any Subsidiary, provided that it shall be
entitled to be present), all at such reasonable times during regular business
hours as the Agent or the Collateral Agent may reasonably request in writing.
ARTICLE VII
PROCEDURES ON PREPAYMENT
SECTION 7.01 Notice of Optional Prepayments: Officers' Certificate. The
Operating Partnership will give the Agent written notice of each optional
prepayment under Sections 7.04 and 7.05 not less than 10 days and not more than
30 days prior to the date fixed for such prepayment, in each case specifying
such prepayment date, the aggregate principal amount of the MP Loans, the
Mortgage Notes and any other Parity Debt and the principal amount of each Note
held by such Bank to be prepaid and the Section under which such prepayment is
to be made. Notice of prepayment
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having been given as aforesaid, the principal amount of the MP Loans and any
Parity Debt specified in such notice, together with interest thereon to the
prepayment date and, in the case of the MP Loans, together with breakage costs
with respect thereto where applicable, shall become due and payable on such
prepayment date. Each Bank shall receive, on the Business Day immediately
preceding the date scheduled for any such prepayment, an Officers Certificate
certifying that the conditions of the Section under which such prepayment is to
be made have been fulfilled and specifying the particulars of such fulfillment.
SECTION 7.02 Intentionally omitted.
SECTION 7.03 Contingent Prepayments on Disposition of Mortgaged
Properties.
(a) If at any time the Operating Partnership or its Subsidiaries dispose of
any of the Mortgaged Properties with the result that there are Excess Sale
Proceeds, and the Operating Partnership does not apply such Excess Sale Proceeds
in the manner described in subsection 8.07(c)(ii)(B)(x), the Operating
Partnership will prepay, upon notice as provided in subsection 7.03(b), a
principal amount of the outstanding MP Loans, equal to the amount of such Excess
Sale Proceeds allocable to the MP Loans (such amount being hereinafter called
the "Allocable Excess Sale Proceeds"), determined by allocating such Excess Sale
Proceeds pro rata among the Banks and the holders of Parity Debt, if any,
outstanding on the date such prepayment is to be made, according to the
aggregate then unpaid principal amounts of the MP Loans and Parity Debt,
respectively. Each prepayment of the MP Loans pursuant to this Section 7.03
shall be made at 100% of the principal amount of the MP Loans to be prepaid,
plus interest thereon to the prepayment date plus, to the extent provided in
Section 3.04(c), breakage costs.
(b) If at any time the Operating Partnership is required to prepay MP Loans
pursuant to subsection 7.03(a), the Operating Partnership will, if there are
Excess Sale Proceeds during any fiscal year resulting from a sale of Mortgaged
Properties, give written notice (which shall be in the form of an Officers'
Certificate) to the Agent not later than 180 days after the date of such sale of
Mortgaged Properties, (x) setting forth in reasonable detail all calculations
required to determine the amount of such Excess Sale Proceeds, (y) setting forth
the amount of the Allocable Excess Sale Proceeds, the amount of the Allocable
Excess Sale Proceeds which is allocable to each MP Loan, determined by
allocating the Allocable Excess Sale Proceeds pro rata among all MP Loans
outstanding on the date such prepayment is to be made according to the aggregate
then unpaid principal amounts of the MP Loans and in reasonable detail the
calculations used in determining such amounts, and (z) stating that the
Operating Partnership will prepay on the date specified in such notice, which
shall not be less than 30 nor more than 45 days after the date of such notice, a
principal amount of the outstanding MP Loans equal to the Allocable Excess Sale
Proceeds so allocable to each such MP Loan.
(c) In the event that the Excess Sale Proceeds allocable to the holders of
Parity Debt exceed the maximum principal amount of the Parity Debt which all the
holders thereof have agreed to have prepaid after each such holder shall have
exhausted every opportunity to have such Parity
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Debt prepaid (such amount being hereinafter called the "Residue Excess Sale
Proceeds"), the Operating Partnership will prepay a principal amount of the
outstanding MP Loans equal to the Residue Excess Sale Proceeds so allocable to
each such MP Loan. Such prepayment shall be made on the date specified in a
notice to the Banks, which date shall not be less than 15 nor more than 30 days
after the date of such notice. It is understood that Residue Excess Sale
Proceeds, if any, which shall remain unallocated following the prepayment of the
MP Loans in accordance with this clause (c) shall constitute cash receipts of
the Operating Partnership as used in the definition of "Available Cash".
(d) Each Bank shall receive, on the Business Day immediately preceding the
date scheduled for the payment of such Allocable Excess Sale Proceeds, an
Officers' Certificate setting forth the calculations used in computing the
amount of the prepayment in respect of such MP Loans.
SECTION 7.04 Prepayment on Taking or Destruction. In the event that
damage, destruction or a taking shall occur in respect of all or a portion of
the properties subject to any of the Security Documents, and in connection
therewith the Operating Partnership shall, in accordance with the Security
Documents, elect to apply any insurance or condemnation proceeds in respect
thereof to the prepayment of the MP Loans and any Parity Debt and not to the
restoration or modification of such properties, the Operating Partnership shall
prepay (or cause to be prepaid by the Trustee out of the funds held by the
Trustee under the Trust Agreement for such purpose), upon notice as provided in
Section 7.01 (which notice shall be given not more than 10 days after the
receipt of such proceeds), a principal amount of the outstanding MP Loans and
any Parity Debt equal to the aggregate proceeds received by the Operating
Partnership or the Trustee in respect of such damage, destruction or taking.
Such prepayment shall be allocated pro rata among all MP Loans and Parity Debt,
if any, outstanding on the date such prepayment is to be made according to the
aggregate then unpaid principal amounts of the MP Loans and the Parity Debt,
respectively; and, with respect to the MP Loans, shall be made at 100% of the
principal amount of the MP Loans to be prepaid, plus interest thereon to the
prepayment date.
SECTION 7.05 Pro Rata Payment of Mortgage Notes. In order for the
Operating Partnership to make an optional prepayment (which shall not include
scheduled prepayments, prepayments pursuant to Section 9.3 or 9.4 of the
Mortgage Note Agreements or payments at maturity) or purchase a Mortgage Note,
the Operating Partnership must (a) on the same day prepay pursuant to Section
3.04 a pro rata amount (based upon the then unpaid principal amount of the
Mortgage Notes and any MP Loans) to each holder of a MP Loan at 100% of the
principal amount thereof plus interest thereon to the prepayment date plus, to
the extent provided in Section 3.04(c), breakage costs and (b) provide notice of
any such optional prepayment to the holders of MP Loans in accordance with the
provisions of Section 7.01. Any default in the performance of or compliance
with any term contained in this Section 7.05 shall be deemed to be a payment
default for purposes of Section 9.01(a). At any time that prepayment of the MP
Loans would be required (whether or not any MP Loans are then outstanding)
pursuant to this Section 7.05 the Total Loan Commitment shall be automatically
reduced in an amount equal to the product of (i) the aggregate amount of such
optional prepayments and purchases of Mortgage Notes and MP Loans times (ii) a
fraction equal to
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the Total Loan Commitment divided by the sum of the Total Loan Commitment and
the aggregate unpaid principal amount of the Parity Debt at the time
outstanding.
ARTICLE VIII
BUSINESS AND FINANCIAL COVENANTS
The general partner of the Operating Partnership (with respect to Section
8.13 only) and each of the Borrowers severally covenants and agrees for itself
and not otherwise that on and after the date hereof and until all Loans owing by
such Borrower, together with interest thereon, fees and all other obligations
incurred hereunder and owing by it, are paid in full and the termination of the
obligations of the Banks to make, continue and/or convert Loans hereunder (for
the purposes of this Article VIII, each Borrower and, with respect to Section
8.13 only, the general partner of the Operating Partnership sometimes shall be
individually referred to as "It" or "it"):
SECTION 8.01 Indebtedness. It will not, and will not permit any
Subsidiary to, directly or indirectly, create, incur, assume, or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness,
except:
(a) the Operating Partnership may remain liable with respect to the
Indebtedness evidenced by the Mortgage Notes and become and remain liable with
respect to Funded Debt incurred in connection with any extension, renewal or
refunding of Indebtedness evidenced by the Mortgage Notes, provided that (i) the
principal amount of such Funded Debt shall not exceed the principal amount of
such Indebtedness evidenced by the Mortgage Notes being extended, renewed, or
refunded, and (ii) such Funded Debt complies with the requirements set forth in
clauses (i) and (ii) of Section 8.01(f);
(b) the Operating Partnership may become and remain liable with respect to
Funded Debt, including Borrowings under this Agreement, or to renew, refund or
refinance any such Funded Debt, provided that (i) the aggregate principal amount
of Funded Debt incurred under this Section 8.01(b) and outstanding at any time
shall not exceed the sum of (A) $75,000,000 plus (B) an amount equal to the net
cash proceeds received by it from the general partner of the Operating
Partnership or from the MLP as a capital contribution or as consideration for
the issuance by it of additional partnership interests, and (ii) if such Funded
Debt is to be secured under the Security Documents as provided in Section
8.02(i), the agreement or instrument pursuant to which such Funded Debt is
incurred (if not this Agreement as in effect on the Closing Date) (A) contains
no financial or business covenants that are more restrictive on it or its
Subsidiaries than, or that are in addition to, those contained in this Article
VIII and (B) specifies no events of default (other than with respect to the
payment of principal and interest on such Funded Debt or the accuracy of
representations and warranties made in connection with such agreement or
instrument) which are capable of occurring prior to the occurrence of the Events
of Default specified in Article IX;
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(c) any Subsidiary may become and remain liable with respect to
Indebtedness of such Subsidiary owing to its parent or to another Wholly-Owned
Subsidiary;
(d) the Operating Partnership may become and remain liable with respect to
unsecured Indebtedness owing to its general partner or an Affiliate of its
general partner, provided that (i) such Indebtedness is created and is
outstanding under an agreement or instrument pursuant to which such Indebtedness
is subordinated to the Mortgage Notes and the MP Loans and to Indebtedness
secured under the Security Documents as provided in Section 8.01(b) or 8.01(f)
at least to the extent provided in the subordination provisions set forth in
Exhibit "F", and (ii) the incurrence of such Indebtedness complies with the
provisions of Section 8.01(f)(i);
(e) The Operating Partnership may become and remain liable with respect to
Indebtedness incurred under any Working Capital Facility, or any extension,
renewal, or refunding thereof;
(f) The Operating Partnership may become and remain liable with respect to
Indebtedness, in addition to that otherwise permitted by the foregoing
subsections of this Section 8.01, including Borrowings under this Agreement, if
on the date the Operating Partnership becomes liable with respect to any such
additional Indebtedness and immediately after giving effect thereto and to the
substantially concurrent repayment of any other Indebtedness (i) (A) the ratio
of Consolidated Cash Flow to Consolidated Pro Forma Debt Service is greater than
2.25 to 1.0, and (B) the ratio of Consolidated Cash Flow to Maximum Consolidated
Pro Forma Debt Service is greater than 1.25 to 1.0; and (ii) any such
Indebtedness which is to be secured under the Security Documents as provided in
Section 8.02(i) is incurred pursuant to an agreement or instrument which
complies with the requirements set forth in clause ii of the proviso to Section
8.01(b), provided that if such Indebtedness is (A) Funded Debt incurred by the
Operating Partnership and (B) is to be secured under the Security Documents as
provided in Section 8.02(i), then on the date the Operating Partnership becomes
liable with respect to any such additional Funded Debt, the Operating
Partnership would not be permitted to incur any additional Funded Debt under
Section 8.01(b);
(g) It may become and remain liable with respect to unsecured Indebtedness,
in addition to that otherwise permitted by the foregoing subdivisions of this
Section 8.01; provided that after giving effect thereto the Permitted Amount
shall equal at least $1;
(h) [Intentionally Omitted]
(i) [Intentionally Omitted]
(j) the Operating Partnership and the Services Partnership may become and
remain liable with respect to obligations under Interest Rate Agreements; and
(k) the Services Partnership may become and remain liable with respect to
any interest rate swap agreement, interest rate cap agreement, interest rate
collar agreement, or other similar
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agreement or arrangement designed to protect the Services Partnership or any of
its subsidiaries against fluctuations in interest rates on Indebtedness;
provided that (x) any Indebtedness secured by Qualifying Securities permitted by
Section 8.01(b) or (f) shall be secured at all times by such principal amount of
Qualifying Securities the value at maturity (comprised of principal and
interest, if any) of which will be equal to or greater than 100% of the
principal amount of such Indebtedness plus the interest which will accrue on
such Indebtedness during the applicable Interest Periods, and (y) the Operating
Partnership shall be deemed to become liable with respect to any such
Indebtedness on the date such Indebtedness is no longer secured to the extent
required by the immediately preceding clause (x); and
(l) The MLP and the Services Partnership may become and remain liable with
respect to the Indebtedness under this Agreement.
For purposes of this Section 8.01, any Person becoming a Subsidiary after
the date of this Agreement shall be deemed to have become liable with respect to
all of its then outstanding Indebtedness at the time it becomes a Subsidiary,
and any Person extending, renewing or refunding any Indebtedness shall be deemed
to have become liable with respect to such Indebtedness at the time of such
extension, renewal or refunding. The Operating Partnership or any Subsidiary
shall be deemed to have become liable with respect to any Indebtedness securing
any real property acquired by the Operating Partnership or such Subsidiary, as
the case may be, at the time of such acquisition.
SECTION 8.02 Liens. It will not, and will not permit any Subsidiary to,
directly or indirectly create, incur, assume or permit to exist any Lien on or
with respect to any property or asset (including any document or instrument in
respect of goods or accounts receivable) of it or any of its Subsidiaries,
whether now owned or held or hereafter acquired, or any income or profits
therefrom (whether or not provision is made for the equal and ratable securing
of the Notes in accordance with the provisions of Section 8.17), except:
(a) Liens for taxes, assessments or other governmental charges, the payment
of which is not at the time required pursuant to Section 8.09;
(b) Liens of landlords and carriers, vendors, warehousemen, mechanics,
materialmen, repairmen, and other like Liens incurred in the ordinary course of
business for sums not yet due or the payment of which is not at the time
required by Section 8.09, in each case not incurred or made in connection with
the borrowing of money, the obtaining of advances or credit or the payment of
the deferred purchase price of property;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits made
in the ordinary course of business (i) in connection with workers' compensation,
unemployment insurance and other types of social security, or (ii) to secure (or
to obtain letters of credit that secure) the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, performance bonds, purchase,
construction or sales contracts and other similar obligations, in each case not
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incurred or made in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of property;
(d) Any attachment or judgment Lien, unless the judgment it secures shall
not, within 60 days after the entry thereof, have been discharged or execution
thereof stayed pending appeal, or shall not have been discharged within 60 days
after expiration of any such stay;
(e) Leases or subleases granted to others, easements, rights-of-way,
restrictions, and other similar charges or encumbrances, which, in each case are
granted, entered into or created in the ordinary course of the business of such
Person or any of its Subsidiaries;
(f) Liens on property or assets of any Subsidiary securing Indebtedness of
such Subsidiary owing to the respective Borrower or a Wholly-Owned Subsidiary;
(g) Liens existing on the Assets on December 27, 1991 and Liens existing on
any Acquired Assets or Newly Constructed Assets at the time of, or upon, the
acquisition thereof by the Operating Partnership;
(h) Liens created by any of the Security Documents in favor of the holders
of the Mortgage Notes;
(i) Liens created by any of the Security Documents securing:
(x) (A) Indebtedness incurred in accordance with Section 8.01(b);
(B) Indebtedness incurred under this Agreement in an aggregate
principal amount outstanding at any time not in excess of (I)
$25,000,000 for general partnership purposes, provided that, on the
date the Operating Partnership becomes liable with respect to such
additional Indebtedness and after giving effect thereto, the sum of
(w) the aggregate principal amount of Funded Debt incurred and
outstanding under Section 8.01(b) and (y) such Indebtedness described
in this clause (B) shall not exceed $75,000,000 or (II) such greater
amount for general partnership purposes as may be permitted to be so
secured by the Mortgage Note Agreements, as the same may be amended,
modified or supplemented from time to time (such Indebtedness
described in this clause (B), "Special General Partnership Purposes
Indebtedness"); and
(C) to the extent incurred to finance the making of capital
improvements, repairs and additions to the Operating Partnership's
Mortgaged Property, 8.01(f), provided that:
(i) such Liens are effected through an amendment to the Mortgages to
the extent necessary to provide the holders of such Indebtedness equal and
ratable security in the
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property and assets subject to the Security Documents with the holders of
the MP Loans and the Mortgage Notes and of other Indebtedness secured under
the Security Documents as provided in Section 8.01(b) or 8.01(f);
(ii) in the case of Indebtedness incurred in connection with Section
8.01(b) or 8.01(f), the Mortgages are amended to the extent necessary to
extend the Lien thereof to any property or assets acquired or otherwise
financed with the proceeds of such Indebtedness and
(iii) the Operating Partnership has delivered to the Trustee an
Officer's Certificate demonstrating that the principal amount of such
Indebtedness does not exceed the lesser of the cost to the Operating
Partnership of such property or assets and the fair market value of such
property or assets (as determined in good faith by the general partner of
the Operating Partnership), and
(iv) the Operating Partnership has delivered to the Trustee an opinion
of counsel reasonably satisfactory to the Trustee to the effect that such
incurrence of Indebtedness pursuant to subsections 8.01(b) or 8.01(f) or
the incurrence of Special General Partnership Purposes Indebtedness, as the
case may be, complies in all respects with the requirements of such
subsections, that the amendments to the Security Documents required by this
Section 8.02(i) and the filing and recordation of such amendments and
related supplements will not have an adverse effect on the security
interest of the holders of the MP Loans (whether then or thereafter
outstanding) in the Mortgaged Properties, and in the case of Indebtedness
incurred in accordance with Section 8.01(b) or 8.01(f), that the Lien of
the Security Documents has attached and is perfected with respect to such
additional property and assets;
and (y) Interest Rate Unwind Obligations;
(j) Liens existing on any real property of any Person at the time it
becomes a Subsidiary, or existing prior to the time of acquisition upon any real
property acquired by the Operating Partnership or any Subsidiary through
purchase, merger, or consolidation or otherwise, whether or not assumed by the
Operating Partnership or such Subsidiary, or created to secure Indebtedness
incurred under Section 8.01(f) to pay all or any part of the purchase price
("Purchase Money Lien" ) of property acquired by the Operating Partnership or a
Subsidiary, provided that
(i) any such Lien shall be confined solely to the item or items of
property so acquired and, if required by the terms of the instrument
originally creating such Lien, other property which is an improvement to or
is acquired for specific use in connection with such acquired property;
(ii) such item or items of property so acquired are not required to
become part of the Mortgaged Properties under the terms of the Security
Documents;
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(iii) the principal amount of the Indebtedness secured by any such
Lien shall at no time exceed an amount equal to the lesser of (A) the cost
of such property and (B) the fair market value of such property (as
determined in good faith by the general partner of the Operating
Partnership) at the time such Person owning such property becomes a
Subsidiary or at the time of such acquisition by the Operating Partnership
or such Subsidiary, as the case may be;
(iv) any such Purchase Money Lien shall be created not later than 30
days after, in the case of property, its acquisition, or, in the case of
improvements, their completion; and
(v) any such Lien (other than a Purchase Money Lien) shall not have
been created or assumed in contemplation of such Person's becoming a
Subsidiary or such acquisition of property by the Operating Partnership or
any Subsidiary;
(k) easements, exceptions or reservations in any of its property or the
property of any Subsidiary granted or reserved for the purpose of pipelines,
roads, the removal of oil, gas, coal or other minerals, and other like purposes,
or for the joint or common use of real property, facilities and equipment, which
are incidental to, and do not materially interfere with, the ordinary conduct of
its business or the business of any Subsidiary;
(l) Liens on the Operating Partnership's accounts receivable, Inventory and
investments in securities securing borrowings under any Working Capital Facility
incurred in accordance with Section 8.01(e);
(m) Liens arising under the Pledge Agreement-Debt Service Reserve for the
equal and ratable security and benefit of the holders of the Mortgage Notes and
any Indebtedness incurred under this Agreement in accordance with Section
8.01(b) or 8.01(f) that is secured by the Mortgaged Properties;
(n) Liens arising from or constituting Permitted Encumbrances;
(o) any Lien renewing, extending or refunding any Lien permitted by clauses
(g) or (h) of this Section 8.02, provided that (i) the Indebtedness secured by
any such Lien shall not exceed the amount of such Indebtedness outstanding
immediately prior to the renewal, extension or refunding of such Lien, and (ii)
no Assets encumbered by any such Lien other than the Assets encumbered
immediately prior to such renewal, extension or refunding shall be encumbered
thereby;
(p) Liens on Qualifying Securities securing Indebtedness incurred in
accordance with Section 8.01(b) or (f) or Special General Partnership Purposes
Indebtedness;
(q) Liens created pursuant to the Credit Documents;
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(r) Liens on property not securing the Loans (and not constituting
Mortgaged Properties) granted to secure the obligations of the Operating
Partnership or the Services Partnership under Interest Rate Agreements; and
(s) Liens on property not securing the Loans granted to secure the
obligations of the Services Partnership under any agreements described in
section 8.01(k).
Notwithstanding anything contained herein to the contrary or seemingly to
the contrary, nothing contained in this Section 8.02 shall be, or be deemed to
be, a prohibition, limitation, or restriction of any kind on the sale or
securitization by any Borrower of its accounts receivable.
SECTION 8.03 Investments/Guaranties, etc. It will not, and will not
permit any Subsidiary to, directly or indirectly make or own any Investment in
any Person or create or become liable with respect to any Guaranty, except:
(a) it and any Subsidiary may make and own Investments in:
(i) marketable obligations issued or unconditionally guaranteed by the
United States of America, or issued by any agency thereof and backed by the
full faith and credit of the government of the United States;
(ii) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof and rated at least A-2 (or comparably if the
rating system is changed) by S&P or at least P-2 (or comparably if the
rating system is changed) by Moody's;
(iii) marketable Dollar denominated obligations of Canada or Dollar
denominated obligations of any agency or instrumentality, the timely
payment of principal and interest of which is fully guaranteed by the
government of Canada, and which are rated at least AA- (or comparably if
the rating system is changed) by S&P or at least Aa3 (or comparably if the
rating system is changed) by Moody's;
(iv) marketable Dollar denominated obligations of any sovereign (other
than Canada or the United States of America, which are treated hereinabove)
or Dollar denominated obligations of any agency or instrumentality of any
sovereign, the timely payment of principal and interest of which is fully
guaranteed by such sovereign, and which are rated at least AA- (or
comparably if the rating system is changed) by S&P or at least Aa3 (or
comparably if the rating system is changed) by Moody's;
(v) Dollar denominated commercial paper rated at least A-2 (or
comparably if the rating system is changed) by S&P or at least P-2 (or
comparably if the rating system is changed) by Moody's;
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(vi) certificates of deposit issued by commercial banks incorporated
under the laws of the United States of America or any state thereof or the
District of Columbia or Canada, (A) the commercial paper or other
short-term unsecured debt obligations of which are rated either A-2 or
better (or comparably if the rating system is changed) by S&P or P-2 or
better (or comparably if the rating system is changed) by Moody's or (B)
the long-term debt obligations of which are rated either AA- or better (or
comparably if the rating system is changed) by S&P or Aa3 or better (or
comparably if the rating system is changed) by Moody's (such banks
"Permitted Banks");
(vii) Eurodollar time deposits purchased directly from any Permitted
Bank;
(viii) bankers' acceptances eligible for rediscount under requirements
of the Board and accepted by Permitted Banks; and
(ix) obligations of the type described in clause (i), (ii), (iii),
(iv), (v), (vi), (vii) or (viii) above purchased from a securities dealer
designated as a "primary dealer" by the Federal Reserve Bank of New York or
from a Permitted Bank as counterparty to a written repurchase agreement
obligating such counterparty to repurchase such obligations not later than
14 days after the purchase thereof and which provides that the obligations
which are the subject thereof are held for the benefit of the Operating
Partnership or a Subsidiary by a custodian which is a Permitted Bank and
which is not a counterparty to the repurchase agreement in question;
(b) it or any Subsidiary may make and own Investments in any Subsidiary or
any Person incorporated or otherwise formed pursuant to the laws of the United
States or any state thereof which is engaged in the United States in
substantially the same business as its business;
(c) it may become and remain liable with respect to Guaranties constituting
Indebtedness permitted under Section 8.01;
(d) it or any Subsidiary may make and own Investments (i) arising out of
loans and advances to employees for travel, entertainment and relocation
expenses, in each case incurred in the ordinary course of business, (ii)
acquired by reason of the exercise of customary creditors' rights upon default
or pursuant to the bankruptcy, insolvency, or reorganization of a debtor, or
(iii) arising out of the performance of any Guaranty made pursuant to Section
8.03(c);
(e) it may create or become liable with respect to any Guaranty
constituting an obligation, warranty, or indemnity, not guaranteeing
Indebtedness of any Person, which is undertaken or made in the ordinary course
of business;
(f) it may create and become liable with respect to any Interest Rate
Agreements; and
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(g) it may create and become liable with respect to any Agreement described
in Section 8.01(k).
SECTION 8.04 Restricted Payments. The Operating Partnership will not
directly or indirectly declare, order, pay, make, or set apart any sum for any
Restricted Payment, except that the Operating Partnership may make, pay, or set
apart once during each calendar quarter a Restricted Payment if: (a) such
Restricted Payment is in an amount not exceeding Available Cash for the
immediately preceding calendar quarter determined as of the last day of such
calendar quarter, (b) immediately after giving effect to any such proposed
action no condition or event shall exist which constitutes an Event of Default
(or a Default under Section 9.01(b)), and (c) the Operating Partnership shall
have given to each Bank 10 days' prior written notice thereof. The Operating
Partnership will not, in any event, directly or indirectly declare, order, pay
or make any Restricted Payment except in cash. The Operating Partnership will
not permit any Subsidiary to declare, order, pay, or make any Restricted Payment
or to set apart any sum or property for any such purpose.
SECTION 8.05 Transactions with Affiliates. It will not, and will not
permit any Subsidiary to, directly or indirectly, engage in any transaction with
any Affiliate, including, without limitation, the purchase, sale or exchange of
assets or the rendering of any service, except in the ordinary course of
business and pursuant to the reasonable requirements of it or its Subsidiary's
business and upon fair and reasonable terms that are no less favorable to it or
such Subsidiary, as the case may be, than those which might be obtained in an
arm's-length transaction at the time such transaction is agreed upon from
Persons which are not such an Affiliate, provided that the foregoing limitations
shall not apply to any transaction between two Wholly-Owned Subsidiaries.
SECTION 8.06 Subsidiary Stock and Indebtedness. It will not:
(a) directly or indirectly sell, assign, pledge or otherwise dispose of any
Indebtedness of or any shares of stock or similar interests of (or warrants,
rights or options to acquire stock or similar interest of) any Subsidiary,
except to a Wholly-Owned Subsidiary;
(b) permit any Subsidiary directly or indirectly to sell, assign, pledge or
otherwise dispose of any of its Indebtedness or the Indebtedness of any other
Subsidiary, or any shares of stock or similar interests of (or warrants, rights
or options to acquire stock or similar interests of) any other Subsidiary,
except to it or its Wholly-Owned Subsidiary;
(c) permit any Subsidiary to have outstanding any shares of stock or
similar interests which are preferred over any other shares of stock or similar
interests owned by it unless such shares of preferred stock or similar interests
are owned by it or its Wholly-Owned Subsidiary; or
(d) permit any Subsidiary directly or indirectly to issue or sell
(including, without limitation, in connection with a merger or consolidation of
a Subsidiary otherwise permitted by
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Section 8.07(a)) any shares of its stock or similar interests (or warrants,
rights or options to acquire its stock or similar interests) except to it or its
Wholly-Owned Subsidiary; provided, that,
(i) any Subsidiary may sell, assign or otherwise dispose of
Indebtedness of its parent if, assuming such Indebtedness were incurred
immediately after such sale, assignment or disposition, such Indebtedness
would be permitted under Section 8.01 and
(ii) subject to compliance with Section 8.07(c), all Indebtedness and
shares of stock or partnership interests of any Subsidiary owned by it may
be simultaneously sold as an entirety for a cash consideration at least
equal to the fair value thereof (as determined in good faith by its general
partner) at the time of such sale if such Subsidiary does not at the time
own (A) any Indebtedness of its parent (other than Indebtedness which, if
incurred immediately after such transaction, would be permitted under
Section 8.01) or (B) any Indebtedness, stock or other interest in any other
Subsidiary which is not also being simultaneously sold as an entirety in
compliance with this proviso or Section 8.07(b)(ii) and if, at the time of
such transaction and immediately after giving effect thereto, it could
incur at least $1 of additional Indebtedness in compliance with Section
8.01(f).
SECTION 8.07 Mergers and Consolidations. It will not, and will not
permit any Subsidiary to, directly or indirectly:
(a) consolidate with or merge into any other Person or permit any other
Person to consolidate with or merge into it, except that:
(i) any Subsidiary may consolidate with or merge into its parent
Borrower or a Wholly-Owned Subsidiary if such Borrower or a Wholly-Owned
Subsidiary, as the case may be, shall be the surviving Person and if,
immediately after giving effect to such transaction, no condition or event
shall exist which constitutes an Event of Default or a Default; and
(ii) anyentity (other than a Subsidiary) may consolidate with or
merge into the Borrower if the Borrower shall be the surviving Person and
if, immediately after giving effect to such transaction, 9c) the Borrower
(A) shall not have a Consolidated Net Worth, determined in accordance with
GAAP applied on a basis consistent with the financial statements of
the Borrower most recently delivered pursuant to Section 6.03(b), of less
than the Consolidated Net Worth of the Borrower immediately prior to the
effectiveness of such transaction, satisfaction of this requirement to be
set forth in reasonable detail in an Officers' Certificate delivered to
the Agent in Connection with such transaction, (B) shall not be liable
with respect to any Indebtedness or allow its pro[erty to be subject to
any Lien which it could not become liable with respect to or allow its
property to become subject to under this Agreement on the date of such
transaction, and (C) if such surviving Person is the Operating
Partnership, it could incur at least $1 of additional Indebtedness in
compliance with Section 8.01(f), (y) substantially all of the assets of
the Borrower shall be located, and substantially
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all of its business shall be conducted, within the continental United
States, and (z) no condition or event shall exist which constitutes an
Event of Default or Default; and
(iii) it may consolidate with or merge into any other entity if (w)
the surviving entity is a corporation or limited partnership organized and
existing under the laws of the United States of America or a state thereof
or the District of Columbia, with substantially all of its properties
located and its business conducted within the continental United States,
(x) such corporation or limited partnership expressly and unconditionally
assumes the obligations of the Borrower under this Agreement, the Security
Documents and the MP Loans, and delivers to each holder of a MP Loan at the
time outstanding in connection with such assumption an opinion of counsel
reasonably satisfactory to the holders of at least 66 2/3% in aggregate
principal amount of the MP Loans then outstanding with respect to such
matters incident to such assumption as may be reasonably requested by such
holders, including, without limitation, as to the due authorization and
execution of the related agreement of assumption and the enforceability of
such agreement against such corporation or partnership, (y) immediately
after giving effect to such transaction, such corporation or limited
partnership (A) shall not have a Consolidated Net Worth, determined in
accordance with GAAP applied on a basis consistent with the financial
statements of the Operating Partnership most recently delivered pursuant to
Section 6.03(b) of less than the Consolidated Net Worth of the Borrower
immediately prior to the effectiveness of such transaction, satisfaction of
this requirement to be set forth in reasonable detail in an Officers'
Certificate delivered to each holder of a Note in connection with such
transaction, (B) shall not be liable with respect to any Indebtedness or
allow its property to be subject to any Lien which it could not become
liable with respect to or allow its property to become subject to under
this Agreement on the date of such transaction, (C) if such surviving
Person is the Operating Partnership, it could incur at least $1 of
additional Indebtedness in compliance with Section 8.01(f), and (z)
immediately after giving effect to such transaction no condition or event
shall exist which constitutes an Event of Default or a Default; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all
of its assets, except that:
(i) any Subsidiary may sell, lease or otherwise dispose of all or
substantially all its assets to its parent or to a Wholly-Owned Subsidiary
of its parent Borrower; and
(ii) subject to compliance with subsection 8.07(c), any Subsidiary may
sell, lease or otherwise dispose of all or substantially all its assets as
an entirety for a cash consideration at least equal to the fair value
thereof (as determined in good faith by its general partner) at the time of
such sale if such Subsidiary does not at the time own (A) any Indebtedness
of its parent (other than Indebtedness which, if incurred immediately after
such transaction, would be permitted under Section 8.01) or (B) any
Indebtedness or stock of or other interest in any other Subsidiary which is
not also being simultaneously sold as an entirety in compliance with this
clause (b)(ii) and if, at the time of such transaction and immediately
after giving
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effect thereto, the Borrower could incur at least $1 of additional
Indebtedness in compliance with Section 8.01(f); and
(iii) it may sell, lease or otherwise dispose of all or substantially
all its assets to any corporation or limited partnership into which it
could be consolidated or merged in compliance with clause (a)(iii) of this
Section 8.07, provided that (A) each of the conditions set forth in such
subdivision (a)(iii) shall have been fulfilled, and (B) no such disposition
shall relieve it from its obligations under this Agreement or the MP Loans;
or
(c) sell, lease, abandon or otherwise dispose of any of the Mortgaged
Properties (except in a transaction permitted by clause (a)(iii) or (b)(iii) of
this Section 8.07) unless:
(i) immediately after giving effect to such proposed disposition no
condition or event shall exist which constitutes an Event of Default or a
Default, and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate net proceeds of all Mortgaged Properties so
disposed of (whether or not leased back) by it and its Subsidiaries
during the current fiscal year (including Mortgaged Properties
disposed of through dispositions of shares pursuant to Section 8.06 or
sales of assets pursuant to Section 8.07(b) and including proceeds
deemed to be proceeds of such dispositions pursuant to Section 4(b)(i)
of the Trust Agreement), less the amount of all net proceeds of prior
sales of Mortgaged Properties previously applied in accordance with
clause (ii)(B) of this Section 8.07(c), shall not exceed $5,000,000
during such fiscal year; or
(B) in the event that such net proceeds (less the amount thereof
previously applied in accordance with this clause (ii)(B)) during the
current fiscal year exceed $5,000,000 (such excess net proceeds
actually realized being herein called "Excess Sale Proceeds"), where
applicable, it shall promptly pay over to the Trustee under the Trust
Agreement such Excess Sale Proceeds for application by the Trustee (x)
within 180 days of the disposal of the Mortgaged Properties to the of
assets in replacement of the assets so disposed of or of assets which
may be productively used in the United States in the conduct of the
Business (and such newly acquired assets shall be subjected to the
Lien of the Mortgages), or (y) to the extent of Excess Sale Proceeds
not applied pursuant to the immediately preceding clause (x), to the
prepayment of the MP Loans and the Parity Debt, if any, pursuant to
Section 7.03, all as provided in Section 4(d) of the Trust Agreement
and such Section 7.03 and the Trustee shall have received an Officers'
Certificate from the general partner of the Operating Partnership
certifying that the consideration received for such Mortgaged
Properties is at least equal to its fair value (as determined in good
faith by the Board of Directors) and that such consideration has been
applied in accordance with the terms of this Agreement.
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SECTION 8.08 Partnership or Corporate Existence, etc.; Business;
Compliance with Laws.
(a) (i) It will at all times preserve and keep in full force and effect
its partnership existence and (subject to the provisions of subsection 8.08(b))
its status as a partnership not taxable as a corporation;
(ii) it will cause each of its Subsidiaries to keep in full force
and effect its partnership or corporate existence;
(iii) it will cause each of its Subsidiaries to, at all times
preserve and keep in full force and effect all of its material rights and
franchises (in each case except as otherwise specifically permitted in
Sections 8.06 and 8.07 and except that the partnership or corporate
existence of any Subsidiary, and any of its rights or franchises or the
rights or franchises of any Subsidiary, may be terminated if, in the good
faith judgment of its general partner, such termination is in its best
interest, and in the case of the Operating Partnership is not
disadvantageous to the MP Loans in any material respect and would not
have a material adverse effect on its assets or business) and
(iv) it will at all times comply with all laws and regulations
applicable to it, the failure with which to comply, individually or in
the aggregate, would materially adversely affect its business or its
operations.
(b) It shall not be obligated to preserve its status as a partnership not
taxable as a corporation if (i) its failure to preserve such status shall be
the result of an amendment to the tax laws enacted by the Congress of the
United States, and (ii) after giving effect to the loss of such status the
ratio of Consolidated Cash Flow to Maximum Consolidated Pro Forma Debt Service,
determined as of the date of the loss of such status, would be greater than 1.1
to 1.0, assuming, for the purposes of the computation of Consolidated Cash
Flow, that Consolidated Cash Flow would be reduced by taxes at its applicable
tax rate for such period had it been taxable as a corporation.
SECTION 8.09 Payment of Taxes and Claims, Etc. It will, and will cause
each Subsidiary to, pay all taxes, assessments and other governmental charges
imposed upon it or any of its properties or assets or in respect of any of its
franchises, business, income or profits when the same become due and payable,
but in any event before any penalty or interest accrues thereon, and all claims
(including, without limitation, claims for labor, materials and supplies) for
sums which have become due and payable and which by law have or might become a
Lien upon any of its properties or assets, and promptly reimburse the Banks for
any such taxes, assessments, charges or claims paid by them; provided that no
such tax, assessment, charge or claim need be paid or reimbursed if being
contested in good faith by appropriate proceedings properly initiated and
diligently conducted and if such reserves or other appropriate provision, if
any, as shall be required by GAAP shall have been made therefor and be adequate
in its good faith judgment.
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SECTION 8.10 Compliance with ERISA. It will not, nor will it permit any
Subsidiary to,
(a) (i) engage in any transaction in connection with which it or any
Subsidiary could be subject to either a civil penalty assessed pursuant to
Section 502(i) of ERISA or a tax imposed by Section 4975 of the Code, which
penalty or tax would reasonably be expected to have a material adverse effect
on its financial condition or results of operations,
(ii) terminate (within the meaning of Title IV of ERISA) or withdraw
from any Plan in a manner, or take any other action with respect to any
such Plan (including, without limitation, a substantial cessation of
operations within the meaning of Section 4062(e) of ERISA), which could
result in any liability of it or any Subsidiary or Related Person to the
PBGC, any Plan, any participant or beneficiary thereunder or any trustee
thereof appointed pursuant to Section 4042(b) or (c) of ERISA, which
liability would have a material adverse effect on its financial condition
or results of operations,
(iii) establish, maintain, contribute to or become obligated to
contribute to any welfare benefit plan (as defined in Section 3(1) of
ERISA) or other welfare benefit arrangement which provides
post-employment benefits, which cannot be unilaterally terminated by it
and under which its liability would not have a material adverse effect on
its financial condition or results of operations, other than benefits
required to be provided pursuant to Section 4980B of the Code, or
(iv) fail to make full payment when due of all amounts which, under
the provisions of any Plan or applicable law, it or any Subsidiary or
Related Person is required to pay as contributions thereto, which failure
would have a material adverse effect on its financial condition or results
of operations or permit to exist any material accumulated funding
deficiency, whether or not waived, with respect to any Plan, or
(v) engage in any transaction in connection with which it, any
Subsidiary or any Related Person could be subject to liability pursuant to
Section 4069(a) or 4212(c) of ERISA, which liability would have a material
adverse effect on its financial condition or results of operations; or
(b) as of any date of determination (i) permit the amount of unfunded
benefit liabilities under any Plan maintained at such time by it or any
of its Subsidiaries or Related Persons to exceed the current value of the
assets of any such Plan by more than $1,000,000 or (ii) permit the
aggregate liability incurred by it and its Subsidiaries and Related
Persons pursuant to Title IV of ERISA with respect to one or more
complete or partial withdrawals from any Plan to exceed $1,000,000.
As used in this Section 8.10, the term "accumulated funding deficiency" has the
meaning specified in Section 302 of ERISA and Section 412 of the Code, the term
"current value" has the meaning
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specified in Section 3 of ERISA and the terms "benefit liabilities" and "amount
of unfunded benefit liabilities" have the meanings specified in Section 4001 of
ERISA.
SECTION 8.11 Maintenance of Properties/Insurance. To the extent required
by the Mortgages, it will maintain or cause to be maintained in good repair,
working order and condition all properties used or useful in its business and
that of its Subsidiaries and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof. To the extent required
by the Mortgages, it will maintain or cause to be maintained, with Permitted
Insurers to the extent available on commercially reasonable terms from Permitted
Insurers and otherwise with financially sound and reputable insurers, insurance
with respect to its properties and business and the properties and business of
its Subsidiaries of the types and in the amounts specified in the Mortgages and
the Trustee shall be named as an additional insured party on each insurance
policy obtained or maintained pursuant thereto.
SECTION 8.12 Security Documents. It will perform and comply with all of
its obligations under each of the Security Documents to which it is a party.
SECTION 8.13 Chief Executive Office. It will not move its chief
executive office and the office at which it maintains its records relating to
the transactions contemplated by this Agreement and the Security Documents
unless (a) not less than 45 days prior written notice of its intention to do
so, clearly describing the new location, shall have been given to the Agent, the
Trustee, the Special Agent, the Collateral Agent and each Bank and (b) such
action, reasonably satisfactory (i) to the Trustee and the Agent, to maintain
any security interest in the property subject to the Security Documents and (ii)
to the Collateral Agent and the Agent, to maintain any security interest in the
property subject to the Security Documents, in each case, at all times fully
perfected and in full force and effect, shall have been taken.
SECTION 8.14 Intentionally Omitted.
SECTION 8.15 Intentionally Omitted.
SECTION 8.16 Intentionally Omitted.
SECTION 8.17 Covenant to Secure Notes Equally. The Operating Partnership
covenants that, if it or any Subsidiary shall create or assume any Lien upon any
of its property or assets, whether now owned or hereafter acquired, other than
Liens permitted by the provisions of Section 8.02 (unless prior written consent
to the creation or assumption thereof shall have been obtained pursuant to
Section 11.08), it will make or cause to be made effective provision whereby the
MP Loans will be secured by such Lien equally and ratably with any and all other
Indebtedness thereby secured so long as any such other Indebtedness shall be so
secured, it being understood that the provision of such equal and ratable
security shall not constitute a cure or waiver of any related Event of Default.
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SECTION 8.18 Intentionally Omitted.
SECTION 8.19 Rate Refund Reserve. If the difference between (a) the
actual gross revenues received by the Operating Partnership in respect of its
operations as of any date and (b) the amount obtained by multiplying the actual
throughput volumes as of such date by the approved existing rates applicable
thereto exceeds the actual level of the rate refund reserve maintained by the
Operating Partnership (the "Rate Refund Reserve"), and such difference (the
"Reserve Difference") is greater than $50,000,000, then the Banks with a
majority of the Loan Commitments or the holders of a majority of the aggregate
principal amount of the Mortgage Notes, in either of their discretion, may
require the Operating Partnership to increase its Rate Refund Reserve such that
the Reserve Difference is less than $50,000,000. The Operating Partnership
shall provide the Banks and the holders of the Mortgage Notes with copies of its
calculation of the Reserve Difference on a quarterly basis. The Operating
Partnership shall hold the Rate Refund Reserve in the Rate Reserve Account,
which shall be managed by the Operating Partnership, and such funds shall be
invested in Investments described in Section 8.03(a) with interest thereon
accruing to the Operating Partnership, and the Operating Partnership agrees that
it shall cause such interest to be deposited and maintained in the Rate Refund
Reserve. Notwithstanding anything contained herein or elsewhere to the contrary,
the Operating Partnership and the Banks hereby agree that the Rate Refund
Reserve shall not secure the obligations of the Operating Partnership (or any
other Person) pursuant hereto or under the Notes or any Security Document to
which the Operating Partnership is a party.
SECTION 8.20 More Restrictive Provisions. It will not amend any
provision of or add any provision to the Mortgage Note Agreements with the
result that the Mortgage Note Agreements would not comply with the requirements
set forth in clause (ii) in the proviso to Section 8.01(b).
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.01. Events of Default. A Borrower shall be in default (in this
Article IX such a Borrower who is in default shall sometimes be referred to as,
a "Defaulting Borrower") under this Agreement if any of the following events
(as to such Borrower, "Events of Default") shall occur and be continuing;
provided that the occurrence and continuance of the events described in Section
9.01(d) in respect of the general partner of the Operating Partnership shall be
an Event of Default as to the Operating Partnership:
(a) Such Borrower shall default in the payment of any principal of any Note
for which it is liable when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration or otherwise, and
such default shall continue for more than five Business Days after receipt by
such Borrower of written notice thereof from the Agent; or
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(b) Such Borrower shall default in the payment of any interest on any Note
for which it is liable or any fees due (i) hereunder pursuant to Section 3.01,
(ii) the Trustee pursuant to the Trust Agreement, (iii) the Special Agent
pursuant to the Special Agency Agreement, or (iv) the Collateral Agent pursuant
to the Pledge Agreement, and in each case, such default shall continue for more
than five Business Days after receipt by such Borrower of written notice thereof
from the Agent payable; or
(c) Such Borrower shall default in the performance of the provisions of
Section 2.21 and such default shall continue for three days, or such Borrower
shall default in the performance of or compliance with any term contained in
Section 6.03(h) or any of Sections 8.01 through 8.08 (excepting 8.08(a)(iv)),
inclusive, and 8.11 (other than the failure to deliver any broker report on a
timely basis as required by Section 15.3 of the Mortgage); or
(d) (i) Such Borrower or (ii) the general partner of the Operating
Partnership shall default in the performance of or compliance with any other
material term contained herein or in any of the Security Documents to be
performed or complied with by such Borrower or the general partner of the
Operating Partnership, as the case may be, and such Person s default shall not
have been remedied within 30 days after such default shall first have become
known to any officer of such Person or written notice thereof from the Agent
shall have been received by such Person or its general partner; or
(e) Any representation or warranty made in writing by or on behalf of such
Borrower herein, in any of the Security Documents, or in any instrument
furnished in connection with the transactions contemplated by this Agreement
shall prove to have been false or incorrect in any material respect on the date
as of which made; or
(f) Such Borrower or any Subsidiary (as principal or guarantor or other
surety) shall default in the payment of any amount of principal of, or premium
or interest on Indebtedness which is outstanding in a principal amount of at
least $15,000,000 (other than the Indebtedness governed by this Agreement); or
any event shall occur or condition shall exist in respect of any Indebtedness
which is outstanding in a principal amount of at least $15,000,000 (other than
the Indebtedness governed by this Agreement) or of any mortgage, indenture or
other agreement relating thereto, the effect of which is to cause (or to permit
one or more Persons to cause) such Indebtedness to become due and payable before
its stated maturity or before its regularly scheduled dates of payment, and such
default, event or condition shall continue for more than the period of grace, if
any, specified therein and shall not have been waived; or
(g) In respect of any Borrower, the filing by or behalf of such Borrower or
its general partner of a voluntary petition or an answer seeking reorganization,
arrangement, readjustment of its debts or for any other relief under any
bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of
debt, or dissolution, liquidation, or similar act or law, state or federal, now
or hereafter existing ("Bankruptcy Law"), or any action by such Borrower or its
general partner for, or consent or acquiescence to, the appointment of a
receiver, trustee or other custodian of such
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Borrower or its general partner or of all or a substantial part of its property;
or the making by such Borrower or its general partner of any assignment for the
benefit of creditors; or the admission by such Borrower or its general partner
in writing of its inability to pay its debts as they become due; or
(h) In respect of any Borrower, (i) the filing of any involuntary petition
against such Borrower or its general partner in bankruptcy or seeking
reorganization, arrangement, readjustment of its debts or for any other relief
under any Bankruptcy Law and an order for relief by a court having jurisdiction
in the premises shall have been issued or entered therein; (ii) any other
similar relief shall be granted under any applicable federal or state law; (iii)
a decree or order of a court having jurisdiction in the premises for the
appointment of a receiver, liquidator, sequestrator, trustee or other officer
having similar powers over such Borrower or its general partner or over all or a
part of its property shall have been entered; (iv) the involuntary appointment
of an interim receiver, trustee or other custodian of such Borrower or its
general partner or of all or a substantial part of its property; or (v) the
issuance of a warrant of attachment, execution or similar process against any
substantial part of the property of such Borrower or its general partner, and
the continuance of any such event described in the foregoing clauses (i) - (v),
both inclusive, for 60 consecutive days unless dismissed, bonded to the
satisfaction of the court having jurisdiction in the premises or discharged; or
(i) A final judgment or judgments (which is or are non-appealable or which
has not or have not been stayed pending appeal or as to which all rights to
appeal have expired or been exhausted) shall be rendered against such Borrower
for the payment of money in excess of $15,000,000 and the same shall not be
discharged or execution thereon stayed pending appeal within 60 days after entry
thereof, or, in the event of such a stay, such judgment shall not be discharged
within 30 days after such stay expires; or
(j) any of the Security Documents to which such Borrower is a party shall
at any time, for any reason, cease to be in force and effect, or shall be
declared to be null and void, in either case in whole or in material part by the
final judgment (which is non-appealable or has not been stayed pending appeal or
as to which all rights to appeal have expired or been exhausted) of any court or
other governmental or regulatory authority having jurisdiction in respect
thereof, or if the validity or the enforceability of any of the Security
Documents to which such Borrower is a party shall be contested by, or on behalf
of, such Borrower, or such Borrower shall renounce any of the Security Documents
to which it is a party, or deny that it is bound by the terms of any of the
Security Documents to which it is a party; or
(k) Any order, judgment or decree is entered in any proceedings against
such Borrower decreeing a split-up of such Borrower which requires the
divestiture of the assets of such Borrower or the divestiture of the stock of a
Subsidiary which would not be permitted if such divestiture were considered a
partial disposition of assets pursuant to Section 8.07(c) and such order,
judgment or decree shall not be dismissed or execution thereon stayed pending
appeal within 60 days after entry
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thereof, or, in the event of such a stay, such order, judgment or decree shall
not be discharged within 30 days after such stay expires;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Agent, upon the request of the Required Banks,
shall by written notice to the Defaulting Borrower take any or all of the
following actions, without prejudice to the rights of the Agent, the Collateral
Agent, any Bank or the holder of any Note to enforce its claims against the
Defaulting Borrower (provided, that, if an Event of Default specified in Section
9.01(g) or Section 9.01(h) shall occur, no such notice shall be required and
shall occur automatically without the giving of any such notice):
(i) the Total Loan Commitment shall be immediately and irrevocably
reduced by an amount equal to the amount of the Loans for which such
Borrower is liable pursuant hereto;
(ii) the principal of and any accrued interest in respect of all Loans
which the Defaulting Borrower is obligated to pay, and all obligations
owing by the Defaulting Borrower under the Credit Documents, shall become,
forthwith due and payable without presentment, demand, protest or other
notice of any other kind (including, without limitation, notice of intent
to accelerate), all of which are hereby waived by each Borrower; and
(iii) the Collateral Agent, the Trustee or the Special Agent, as the
case may be, shall have the right to exercise any rights or remedies in
their respective capacities under the Security Documents in accordance with
the provisions hereof and thereof.
SECTION 9.02. Other Remedies. Upon the occurrence and during the
continuance of any Event of Default, the Agent and the Collateral Agent, acting
at the request of the Required Banks may (subject to the provisions of the other
Credit Documents), proceed to protect and enforce their respective rights
against the Defaulting Borrower, either by suit in equity or by action at law or
both, whether for the specific performance of any covenant or agreement
contained in this Agreement or in any other Credit Document or in aid of the
exercise of any power granted in this Agreement or in any other Credit Document
or may proceed to enforce the payment of all amounts owing to the Agent, the
Collateral Agent and the Banks by such Defaulting Borrower under the Credit
Documents and interest thereon in the manner set forth herein or therein; it
being intended that no remedy conferred herein or in any of the other Credit
Documents is to be exclusive of any other remedy, and each and every remedy
contained herein or in any other Credit Document shall be cumulative and shall
be in addition to every other remedy given hereunder and under the other Credit
Documents or now or hereafter existing at law or in equity or by statute or
otherwise; provided, however, that the foregoing notwithstanding, except in the
case of Loans to the Operating Partnership, the Banks, the Agent, and the
Collateral Agent hereby agree to proceed first against the Security, if any, for
the Loans which the Defaulting Borrower is obligated to pay prior to proceeding
against the Defaulting Borrower, provided, that, notwithstanding the foregoing
to the extent such Defaulting Borrower is a necessary party to any such
proceeding against the Security, the Banks, the Agent, and the
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Collateral Agent are not precluded from naming such Defaulting Borrower as a
party in such proceeding; it being expressly agreed and understood that the
Banks' recourse is not limited to such Security.
SECTION 9.03 No Cross-default. It is expressly agreed and understood by
the parties hereto that the occurrence and continuance of an Event of Default in
respect of a Borrower shall not cause an Event of Default with respect to any
other Borrower.
ARTICLE X
THE AGENT AND THE COLLATERAL AGENT
SECTION 10.01 Appointment. The Banks hereby designate Bank of Montreal
as Agent and Harris Trust and Savings Bank as Collateral Agent, to act as
specified herein and in the other Credit Documents. Each Bank hereby
irrevocably authorizes, and each holder of any Note by the acceptance of such
Note shall be deemed irrevocably to authorize, the Agent and the Collateral
Agent to take such action on its or their behalf under the provisions of this
Agreement, the other Credit Documents and any other instruments and agreements
referred to herein or therein and to exercise such powers and to perform such
duties hereunder and thereunder as are specifically delegated to or required of
the Agent and the Collateral Agent, as the case may be, by the terms hereof and
thereof and such other powers as are reasonably incidental thereto. The Agent
and the Collateral Agent may perform any of their respective duties hereunder by
or through their respective agents or employees.
SECTION 10.02 Nature of Duties. Neither the Agent nor the Collateral
Agent shall have any duties or responsibilities except those expressly set forth
in this Agreement and the Security Documents. Without limiting the generality
of the foregoing, the Collateral Agent shall have no obligation whatsoever to
purchase Qualifying Securities to be used as Security pursuant hereto, to
determine whether the Required Collateral Amount of Qualifying Securities is
held as Security under the Pledge Agreements, to insure that the maturities of
the Qualifying Securities which are Security match the maturities of the Loans
as contemplated by Section 2.08 hereof or to determine whether the conditions
precedent to making any Loans hereunder have been satisfied. Neither the Agent
nor the Collateral Agent nor any of their respective officers, directors,
employees or agents shall be liable for any action taken or omitted by it
hereunder or under any other Credit Document or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct.
The Collateral Agent shall not be liable in any manner for any breach by the
Agent of any of its duties or obligations under this Agreement or any Credit
Document. It is the intent of the parties hereto that neither the Agent nor the
Collateral Agent shall be liable for any action taken or omitted by it hereunder
or under any other Credit Document or in connection therewith caused by the sole
or contributory ordinary negligence of the Agent or the Collateral Agent. The
duties of the Agent and the Collateral Agent shall be mechanical and
administrative in nature; neither the Agent nor the Collateral Agent shall have
by reason of this Agreement or any Credit Document a fiduciary relationship in
respect of any Bank; and nothing in this Agreement or any Credit Document,
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expressed or implied, is intended to, or shall be so construed as to, impose
upon the Agent or the Collateral Agent any obligations in respect of this
Agreement or any Credit Document except as expressly set forth herein. Any
inquiry made by the Agent or the Collateral Agent shall not obligate it to make
any further inquiry or to take any action. Each Bank hereby acknowledges that
it has made its own credit decision and will continue to make its own credit
decision to make or maintain the Loans and to exercise or not exercise all
rights and privileges available to it based on its own investigations and
appraisal of creditworthiness.
SECTION 10.03 Lack of Reliance on the Agent and the Collateral Agent.
Independently and without reliance upon the Agent or the Collateral Agent, each
Bank, to the extent it deems appropriate, has made and shall continue to make
(a) its own independent investigation of the financial condition and affairs of
the General Partner and each Borrower in connection with the making and the
maintaining of the Loans hereunder and the taking or not taking of any action in
connection herewith and (b) its own appraisal of the creditworthiness of each
Borrower, and, except as expressly provided in this Agreement, the Agent and the
Collateral Agent shall have no duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other information with
respect thereto, whether coming into its possession before the making of the
Loans or at any time or times thereafter. Neither the Agent nor the Collateral
Agent nor any of their directors, officers, employees or agents shall be liable
to any Bank for any action taken or omitted to be taken by them under this
Agreement or any other Credit Document, or in connection herewith or therewith,
(except for their own willful misconduct or gross negligence), or shall be
responsible to any Bank for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectability, priority or
sufficiency of this Agreement or any other Credit Document, for the creation,
perfection or priority of any Lien purported to be created by any of the Credit
Documents, or the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, or the financial condition of the
General Partner or any Borrower or be required to make any inquiry or keep
itself informed concerning either the performance or observance of any of the
terms, provisions or conditions of this Agreement or any other Credit Document,
(any such inquiry which may be made by the Agent or the Collateral Agent shall
not obligate the inquiring party to make any further inquiry or to take any
action), or the financial condition of the General Partner or any Borrower or to
inspect the properties or the books of any Borrower, or the existence or
possible existence of any Default or Event of Default. The Agent and the
Collateral Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which it believes to be genuine and to have been presented by a proper Person.
SECTION 10.04 Certain Rights of the Agent, the Collateral Agent.
(a) If the Agent shall request instructions from the Required Banks with
respect to any act or action (including failure to act) in connection with this
Agreement or any other Credit Document, the Agent shall be entitled to refrain
from such act or taking such action unless and until the Agent shall have
received instructions from the Required Banks; and the Agent shall not incur
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liability to any Person by reason of so refraining. Without limiting the
foregoing, no Bank shall have any right of action whatsoever against the Agent
as a result of the Agent acting or refraining from acting hereunder or under any
other Credit Document in accordance with the instructions of the Required Banks.
(b) The Collateral Agent shall be entitled to refrain from taking any act
or action (including failure to act) in connection with this Agreement or any
other Credit Document to which the provisions of this clause (b) do not apply
unless and until it shall have received instructions from the Agent; and the
Collateral Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, neither the Agent nor any Bank
shall have any right of action whatsoever against the Collateral Agent's acting
or refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Agent. No Bank shall have any right,
power or authority to direct any aspect of the activities or operations of the
Collateral Agent in connection with the administration of the Security or the
Credit Documents except pursuant to this Agreement, the Pledge Agreements and
the Pledge Agreement - Debt Service Reserve or otherwise exert control over the
exercise by the Collateral Agent of its duties and obligations. It is expressly
agreed and understood that this Section 10.04(b) shall not apply to Harris Trust
and Savings Bank in its capacity as Special Agent under the Special Agency
Agreement or the Pledge Agreement-Debt Service Reserve.
SECTION 10.05 Reliance. The Agent and the Collateral Agent each shall be
entitled to rely, and each shall be fully protected in relying, upon any Note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, radiogram, order or other document or telephone
message signed, sent or made or purported to be signed, sent or made by the
proper Person or entity, and, with respect to all legal matters pertaining to
this Agreement and its duties hereunder, upon advice of counsel selected by it
(which may be counsel to the Agent or the Borrower) and other experts selected
by the Agent or the Collateral Agent. As to all matters involving the transfer
of cash or other property constituting Collateral under any Pledge Agreement or
any release of the same, the Person who shall direct the Collateral Agent and on
whom the Collateral Agent may rely for such matters shall be the Agent and no
other Person.
SECTION 10.06 Indemnification. To the extent the Agent or the Collateral
Agent, as applicable, are not reimbursed and indemnified by the General Partner
or the relevant Borrower, the Banks, in proportion to their respective Loan
Commitments, will reimburse and indemnify the Agent and the Collateral Agent for
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, reasonable attorneys' fees)
which may be imposed on, incurred by or asserted against the Agent or the
Collateral Agent in performing their duties hereunder or under any other Credit
Document, in any way relating to or arising out of this Agreement or any other
Credit Document; provided, that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements which are determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from the Agent's or
the Collateral Agent's gross negligence or willful misconduct. Without
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limiting any provision of this Agreement and the other Credit Documents, it
is the express intention of the Banks that the Agent and the Collateral Agent
shall be indemnified hereunder against all such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements arising out of resulting from the ordinary, sole or contributory
negligence of such Person.
SECTION 10.07 Bank of Montreal/Harris Trust and Savings Bank. With
respect to its obligation to make Loans under this Agreement, Bank of Montreal
shall have the rights and powers specified herein for a "Bank" and may exercise
the same rights and powers as though it were not performing the duties of Agent
specified herein; and the terms "Banks", "Required Banks", "Holders of Notes",
or any similar terms shall, unless the context clearly otherwise indicates,
include Bank of Montreal in its individual capacity. Each of Bank of Montreal
and Harris Trust and Savings Bank and the affiliates of each may accept deposits
from, lend money to, and generally engage in any kind of business with the
General Partner or any Borrower as if Bank of Montreal were not the Agent and
Harris Trust and Savings Bank were not the Collateral Agent hereunder. Without
limiting the generality of the foregoing, the parties hereto acknowledge and
agree that the Borrowers have established deposit and custodial accounts with
Harris Trust and Savings Bank, and that Harris Trust and Savings Bank shall rely
exclusively on instructions from the relevant Borrower (and not the Agent or any
Bank) for all transactions involving such accounts, including deposits into and
withdrawals from the same.
SECTION 10.08 Holders.
(a) The Agent and the Collateral Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with such Persons, respectively. Any request, authority
or consent of any Person who, at the time of making of such request or giving
such authority or consent, is the holder of any Note shall be conclusive and
binding on any subsequent holder, transferee, assignee or endorsee, as the case
may be, of such Note or of any Note or Notes issued in exchange therefor.
(b) The Collateral Agent may deem and treat Bank of Montreal as the Agent
hereunder unless and until the Agent or the Required Banks shall otherwise
notify the Collateral Agent in writing.
SECTION 10.09 Resignation.
(a) Each of the Agent and the Collateral Agent may resign from the
performance of all its functions and duties hereunder and/or under the other
Credit Documents at any time by giving 60 days' prior written notice to the
Borrowers and the Banks. Additionally, provided that no Default or Event of
Default has occurred and is then continuing, the Borrowers shall have the right
to terminate any collateral agent as Collateral Agent hereunder, with or without
cause, upon 60 days prior written notice to such Collateral Agent. Such
resignation or termination shall take effect upon
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the appointment of a successor Agent or Collateral Agent pursuant to clauses (b)
or (c) below or as otherwise provided below.
(b) Upon any such notice of resignation or termination, the Required Banks
with the consent of the Borrowers, which shall not be unreasonably withheld or
delayed shall appoint a successor Agent or Collateral Agent, as the case may be,
which in each case shall be a commercial bank or trust company with a combined
capital and surplus in excess of $100,000,000 and which at the time of its
appointment shall make in writing representations and warranties to each of the
Borrowers substantially similar to those set forth in Section 10.10.
(c) If a successor Agent or Collateral Agent, as the case may be, shall not
have been so appointed within said 60-day period, the Agent or the Collateral
Agent, as the case may be, with the consent of the Borrowers, shall then appoint
its successor who shall serve as Agent or Collateral Agent, as the case may be,
hereunder or thereunder until such time, if any, as the Required Banks appoint a
successor Agent or Collateral Agent, as the case may be, as provided above.
(d) If no successor Agent or Collateral Agent, as the case may be, has been
appointed pursuant to clause (b) or (c) by the 60th day after the date such
notice of resignation was given, the Agent s or the Collateral Agent s
resignation or termination, as the case may be, shall become effective, the
Banks shall thereafter perform all the duties of the Agent or the Collateral
Agent hereunder and/or under the other Credit Documents until such time, if any,
as the Required Banks appoint a successor Agent or Collateral Agent as provided
above.
(e) Upon the acceptance of any appointment as Agent or Collateral Agent
under this Agreement by a successor Agent or successor Collateral Agent, as the
case may be, each successor Agent or Collateral Agent shall be entitled to
receive from the retiring Agent or Collateral Agent, as the case may be, such
documents of transfer and assignment as such successor Agent or Collateral Agent
may reasonably request and such successor Agent or Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent or Collateral Agent and shall function as the
Agent or Collateral Agent under this Agreement or the other Credit Documents,
and the retiring Agent or Collateral Agent shall be discharged from its duties
and obligations under this Agreement and the other Credit Documents.
(f) After the retiring Agent's or Collateral Agent's resignation hereunder,
the provisions of this Article X and Sections 11.01 and 11.12 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
or Collateral Agent under this Agreement.
SECTION 10.10 Representations and Warranties of the Banks and the
Collateral Agent.
(a) Each Bank hereby severally represents and warrants to the General
Partner and each of the Borrowers for itself and not otherwise that it does not,
directly or indirectly,
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(i) have the right, power or authority to direct any aspect of the
activities or operations of the Collateral Agent in connection with the
administration of the Security or the Credit Documents except pursuant to
this Agreement, the Pledge Agreements and the Pledge Agreement-Debt Service
Reserve or
(ii) otherwise exert any control over the exercise by the Collateral
Agent of its duties and obligations.
(b) The Collateral Agent hereby represents and warrants to the General
Partner and each of the Borrowers that no Bank, directly or indirectly,
(i) has the right, power or authority to direct any aspect of the
activities or operations of the Collateral Agent in connection with the
administration of the Security or the Credit Documents except pursuant to
this Agreement, the Pledge Agreements and the Pledge Agreement - Debt
Service Reserve or
(ii) otherwise exert any control over the exercise by the Collateral
Agent of its duties and obligations.
SECTION 10.11 Collateral Agent May Act Through Agents. The Collateral
Agent may execute any of its duties as Collateral Agent hereunder and under the
Pledge Agreements and the Pledge Agreement-Debt Service Reserve by or through
agents and attorneys-in-fact and shall not be responsible for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care.
SECTION 10.12 Indemnification. Neither the Agent nor the Collateral
Agent shall be under any obligation to take any action toward the execution or
enforcement of its duties hereunder and under the Pledge Agreements and the
Pledge Agreement-Debt Service Reserve which in the opinion of such Person acting
reasonably shall be likely to involve expense or liability unless such Person
has been indemnified to its complete satisfaction by the Agent or the Banks and
such Person shall have the right to require security for any such indemnity
which is satisfactory to it.
SECTION 10.13 Copies, etc. The Agent and the Collateral Agent shall give
prompt notice to each of the Banks of each notice or request required or
permitted to be given to it by the Borrowers pursuant to the terms of this
Agreement or any other of the Credit Documents (unless concurrently delivered to
the Banks by the Borrowers). The Agent will deliver a Notice of
Non-Continuation if timely requested to do so by a Bank which would be an
Electing Bank hereunder. The Agent and the Collateral Agent will distribute to
each of the Banks each document or instrument received for its account and
copies of all other communications received by it from the Borrowers for
distribution to the Banks by it in accordance with the terms of this Agreement
or any other of the Credit Documents.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Payment of Expenses, etc.
(a) Borrowers agree to pay all reasonable out-of-pocket costs and expenses
(which costs and expenses shall be itemized by type of expenditure) of the Agent
and the Collateral Agent in connection with the preparation, execution and
delivery and, to the extent applicable, the filing and recording of the Credit
Documents and the documents and instruments referred to therein (including,
without limitation, the reasonable fees in an amount not in excess of $15,000
and disbursements of Mayer, Brown & Platt, counsel to the Agent, and the
administration of the Credit Documents and the other documents and instruments
referred to therein, if any, and any amendment, waiver or consent relating
thereto and of the Agent, the Collateral Agent and each Bank in connection with
the preservation of rights under, and enforcement of, the Credit Documents and
the documents and instruments referred to therein (including, without
limitation, the reasonable fees and disbursements of counsel for the Agent, the
Collateral Agent, and for any of the Banks). Any statement of counsel to the
Agent, the Collateral Agent or any Bank for fees and disbursements referred to
in the immediately preceding sentence shall reference the attorney who performed
the legal services, a description of the services performed (provided, however,
that such description shall not require or constitute the waiver of any
attorney-client privilege) and the hours worked; all disbursements shall be
itemized by type of disbursement.
SECTION 11.02 Notices. All notices, requests, demands or other
communications (collectively, the "Communications" ) to or upon the respective
parties hereto shall be in writing (except as otherwise specifically permitted
herein) and deemed to have been duly given or made when delivered to the party
to which such notice, request, demand or other communication is required or
permitted to be given or made under this Agreement, the Notes or other Credit
Documents, by mail, delivery or courier service, or facsimile or other form of
rapid electronic transmission directed to such party at its address or facsimile
number set forth opposite its signature below, or at such other address or
facsimile number as any of the parties hereto may hereafter notify the others in
writing; provided, however, that Communications by facsimile or other form of
rapid electronic transmission shall be confirmed by the delivery of the original
thereof as soon as practicable in the manner permitted by this Section 11.02.
SECTION 11.03 Benefit of Agreement; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
provided, however, that except for the assumption of liability for the Loans of
the General Partner or Borrower by a Borrower as contemplated in this Agreement,
no Borrower may assign or transfer any of its interest hereunder without the
prior written consent of the Banks and; provided, further, that, although any
Bank may grant participations in its rights hereunder in accordance with the
terms hereinafter set forth, such
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Bank shall remain a "Bank" for all purposes hereunder and the participant shall
not constitute a "Bank" hereunder; and provided further, that no Bank shall
grant any participation under which the participant shall have rights to approve
any amendment to or waiver of this Agreement, other than an amendment,
modification or waiver of this Agreement which forgives principal, interest or
fees or reduces the interest rate or fees payable with respect to any Loan, Note
or Loan Commitment, postpones any date fixed for any payment of principal of, or
interest or fees on, or reimbursement obligations or releases all or
substantially all of the collateral, if any, securing any of the obligations
under the Credit Documents. Each Bank hereby agrees that it will not grant a
participation to any Person in a principal amount equal to less than $5,000,000.
Each Bank agrees to notify the relevant Borrower and the Agent of the amount of
each participation granted and the identity of the respective participant.
Notwithstanding anything contained herein or elsewhere to the contrary, no
participant shall be entitled to receive any greater payment pursuant to Section
3.07 than the originating Bank would have been entitled to receive with respect
thereto if it had not sold such participation.
(b) Subject to the terms and provisions hereinafter set forth in this
subsection 11.03(b), each Bank shall have the right to assign its rights and
delegate its obligations hereunder in accordance with the terms and provisions
of this Section 11.03(b). In the event any Bank shall elect to assign its
rights and delegate its obligations hereunder (such Bank, a "Potential
Assignor"), such Bank shall provide written notice (each such notice, a "Notice
of Intention") of such election to the Borrowers, and the Borrowers shall have
the right to select a bank or other financial institution rated "A" or higher
(or comparably if the rating system is changed) by S&P or A2 or higher (or
comparably if the rating system is changed) by Moody's to be the assignee (such
bank or other financial institution, a "Potential Assignee") of such rights and
obligations; the foregoing notwithstanding if an Assignment Agreement in respect
of such assignment is not executed and delivered to the Agent within a period of
60 days after receipt by the Borrowers of the Notice of Intention to Assign, the
Proposed Assignor shall have the right to assign its rights and delegate its
obligations hereunder to any Bank or other financial institution rated "A" or
higher by S&P with the prior consent of the Agent and the Borrowers, which
consents shall not be unreasonably withheld or delayed. No such assignment
shall be for an amount less than $5,000,000, unless such assignment is executed
by more than one Assignor, in which case the assignment in the aggregate shall
not be for an amount less than $5,000,000. The assignor Bank (the "Assignor")
and the assignee Bank or other financial institution (the "Assignee") shall
execute and deliver to the Agent, the Collateral Agent and the Borrowers, an
Assignment Agreement in the form of Exhibit "G" hereto (an "Assignment
Agreement"), whereupon the Assignee shall be deemed automatically to have
become a party signatory hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Assignee in such Assignment
Agreement, the Assignee shall have the rights and obligations of a Bank
hereunder and under the other Credit Documents, and the Assignor, to the extent
that rights and obligations hereunder have been assigned and delegated by it in
such Assignment Agreement, shall be released from its obligations hereunder and
under the other Credit Documents. Within five Business Days after the relevant
Borrowers receipt of notice that the Agent has received an executed Assignment
Agreement, the relevant Borrower shall execute and deliver to the Agent (for
delivery to the relevant assignee Bank on receipt from the Assignor of the
predecessor Notes marked "exchanged" as required below) new Notes evidencing
such Assignee's
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Loans and Loan Commitments and, if the Assignor has retained any Loans and
Loan Commitments hereunder, replacement Notes (for delivery to the Assignor on
receipt from the Assignor of the predecessor Notes marked "exchanged" as
required below) in the principal amount of the Loans and Loan Commitment
obligations retained by the Assignor hereunder (such Notes to be in exchange
for, but not in payment of, those Notes then held by such Assignor). Each such
Note shall be dated the date of the predecessor Notes. Within five (5)
Business Days after delivery of an Assignment Agreement to the Agent, the
Assignor shall mark the predecessor Notes "exchanged" and deliver them to the
Agent for delivery to the relevant Borrower(s) upon receipt by the Agent from
such Borrower or Borrowers of the new and replacement Notes as required above.
Accrued interest on that part of the predecessor Notes evidenced by the new
Notes, and accrued fees, shall be paid as provided in the Assignment Agreement.
Accrued interest on that part of the predecessor Notes evidenced by the
replacement Notes shall be paid to the Assignor. Accrued interest and accrued
fees shall be paid at the same time or times provided in the predecessor Notes
and in this Agreement. Any attempted assignment and delegation not made in
accordance with this Section 11.03 shall be null and void. Nothing contained
in this Section 11.03(b) shall alter or modify any Borrower's obligation to pay
any amount payable to or for the account of the replaced Bank pursuant to
Section 2.11, Section 3.01 or any other provision of this Agreement or the
other Credit Documents accruing prior to the replacement of the Assignor.
(c) Notwithstanding anything to the contrary contained in Section 11.03(a),
if at any time any Bank shall be in receivership or liquidation or at a time
when no Event of Default shall have occurred and be continuing shall seek
compensation pursuant to the provisions of Section 2.11, the Borrowers shall
have the right to replace such Bank with another financial institution;
provided, that such new financial institution shall be acceptable to the Agent
(unless the Bank to be replaced is the Agent). Each Bank agrees to its
replacement at the option of the Borrowers pursuant to this Section 11.03(c);
provided, that the successor financial institution shall purchase without
recourse such Bank's interest in the Loan Commitment and the obligations of the
Borrowers to such Bank for cash in an aggregate amount equal to the aggregate
unpaid principal thereof, all unpaid interest accrued thereon, all unpaid
facility and other fees accrued for the account of such Bank pursuant to the
terms hereof, and all other amounts (if any) then owing to such Bank hereunder
or under any of the other Credit Documents. In the event of any replacement,
(i) any reference in this Agreement or the other Credit Documents to the
replaced Bank or such replaced Bank's Loan Commitment or Notes shall thereafter
refer to the successor Bank, and the successor Bank shall have the same rights
and benefits as if it were the replaced Bank, (ii) the successor Bank shall
become party to this Agreement as a Bank by execution of an Assignment Agreement
and delivery of the same to the Agent and the replaced Bank, (iii) the Borrowers
as applicable will issue new Notes to the successor Bank in conformity with the
requirements of Section 2.05; and (iv) the replaced Bank shall have no further
Loan Commitment or other obligation hereunder, including, without limitation,
under Section 3.08(c), or under any other Credit Document and Schedule 1.01
shall be deemed amended to effect such replacement.
Each Bank and each Borrower each agree to execute such documents (including,
without limitation, amendments to this Agreement and the other Credit Documents)
as shall be necessary to effect the
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foregoing. Nothing contained in this Section 11.03 shall alter or modify any
Borrower's obligation to pay any amount payable to or for the account of the
replaced Bank pursuant to Section 2.11, Section 3.01 or otherwise accruing prior
to the replacement of such Bank.
(d) The Agent will give prompt notice to the Borrowers and the Banks of the
execution by it of any Assignment and Acceptance or supplement to this Agreement
pursuant this Section 11.03.
(e) The Agent and each Bank may from time to time furnish any information
concerning the Borrowers in the possession of the Agent or such Bank, as the
case may be, and not marked "Confidential" or otherwise known by such Person to
be confidential to the extent necessary for the purposes contemplated by this
Agreement (including, without limitation, the syndication of the credit
facilities contemplated hereby) and, in the case of each Bank, to assignees and
participants (including prospective assignees and participants) of such Bank.
The Agent and each Bank may furnish any information marked "Confidential" or
otherwise known by such Person to be confidential to a prospective assignee or
participant with the approval of the Borrowers provided that such prospective
assignee or participant takes reasonable steps to protect the confidentiality of
such information and such Bank identifies the prospective assignees and
participants that have received such information.
SECTION 11.04 No Waiver; Remedies Cumulative. No failure or delay on the
part of the Agent or any Bank or any holder of a Note in exercising any right,
power or privilege hereunder or under any other Credit Document and no course of
dealing between any Borrower and the Agent, the Collateral Agent or any Bank or
the holder of any Note shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights and remedies herein expressly provided are cumulative and not exclusive
of any rights or remedies which the Agent or any Bank or the holder of any Note
would otherwise have. No notice to or demand on any Borrower in any case shall
entitle any Borrower to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Agent, the
Collateral Agent, the Banks or the holder of any Note to any other or further
action in any circumstances without notice or demand.
SECTION 11.05 GOVERNING LAW. THE PARTIES HERETO AGREE AND INTEND THAT
THIS AGREEMENT BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 11.06 Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
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SECTION 11.07 Headings Descriptive. The captions and headings of the
several Articles, Sections and subsections of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Agreement.
SECTION 11.08 Amendment and Waiver. With the prior written consent of
the Required Banks and each Borrower, any provision of this Agreement may be
amended, waived, supplemented, restated, discharged or terminated; provided
that, no such waiver and no such amendment, supplement or modification shall (a)
extend the time of payment of any principal amount due under any Note, or reduce
the rate or extend the time of payment of interest thereof, extend the Loan
Period or reduce the rate or extend the time of payment of any fees required to
be paid by the Borrowers pursuant to Section 3.01 hereof, or reduce the
principal amount of any Note, or change the amount of or extend any Bank's Loan
Commitment, or amend, modify or waive any provision of this Section 11.08 or
reduce the percentage specified in the definition of Required Banks or dispense
with the requirement for the approval, consent or the assent of the Banks or the
Required Banks, as the case may be, whenever the same is required, without the
written consent of all the Banks, (b) amend, modify or waive any provision of
Article X without the written consent of the then acting Agent and Collateral
Agent, or (c) release any Borrower or release any Lien under any Security
Document (except as expressly provided for herein or in the Security Documents)
without the written consent of all Banks.
Notwithstanding anything to the contrary contained in the preceding sentence, so
long as the relevant Borrower shall have certified that no Default or Event of
Default shall have occurred and be continuing in respect of such Borrower, any
Qualifying Securities in excess of the Required Collateral Amount held to secure
the Loans of such Borrower shall be released from the coverage of the Security
Documents upon the Agent's instructions to the Collateral Agent after its
approval of such Borrower's request for such release (and the Agent hereby
agrees promptly to review any such request and, if satisfactory, to forward the
same to the Collateral Agent), and the Banks hereby authorize and instruct the
Collateral Agent to promptly execute such documents reasonably requested by such
Borrower to evidence such release.
SECTION 11.09 Collateral Agent Authorization. By its execution and
delivery of this Agreement, each Bank hereby authorizes the Collateral Agent to
enter into and perform all of the Security Documents contemplated by this
Agreement.
SECTION 11.10 Transfer by Banks. The Banks hereby agree that if a
financial institution or financial institutions selected by Borrowers agree to
purchase the Total Loan Commitment, the Notes and all Loans evidenced thereby,
the Banks, subject to the provisions of Section 11.03(c) will transfer and
assign their respective remaining Loan Commitments, Notes and Loans and direct
the Agent, the Collateral Agent and the Special Agent to transfer and assign
their respective interest in the Liens and Security securing the same to such
financial institution or financial institutions selected by Borrowers for an
amount equal to the outstanding principal amount of such Loans being transferred
and assigned plus accrued interest thereon plus fees and expenses, if any, and
any other amounts owing by the relevant Borrower or Borrowers hereunder or under
any of the other Credit
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Documents to which such Borrower is, or such Borrowers, are a party, including a
pro rata portion of the expenses and fees, if any, then due and owing hereunder
by all Borrowers; provided, however, that such transfer and assignment shall be
without recourse to the transferors, except to the extent, if any, expressly set
forth in the transfer documents evidencing such transfer and assignment.
Notwithstanding the foregoing, the Banks shall not be obligated to transfer or
assign their respective remaining Loan Commitment, Notes or Loans, unless (i)
the Agent, the Collateral Agent and the Banks shall have received, at no cost to
them, a favorable opinion of counsel reasonably acceptable to them that such
transfer or assignment is not in violation of the Securities Act of 1933, as
amended, or any rule or regulation promulgated thereunder, any applicable state
law, including without limitation, state securities laws, or any rule or
regulation promulgated thereunder, or any Canadian laws, including without
limitation Canadian securities law, or any rule or regulation promulgated
thereunder; (ii) each Borrower agrees to indemnify and release the Agent, the
Collateral Agent, and the Banks, (to the extent not reimbursed by the Borrowers
and without limiting the obligation of the Borrowers to do so), from and against
any and all liabilities, claims, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements or any kind
whatsoever except to the extent of the Bank's obligations, if any, under the
Transfer Documents which may at any time (including, without limitation, at any
time following the payment of the Notes or Loans) be imposed on, incurred by or
asserted against any of them as a result of or arising out of such Loans, Loan
Commitments, transfers or assignments, (the Agent, the Collateral Agent, and any
of the Banks shall in all cases be fully justified in failing or refusing to act
hereunder unless they shall be so indemnified to their reasonable satisfaction
by the Borrowers); (iii) each transferee or assignee represents and warrants to
the Agent, the Collateral Agent and the Banks that independently and without
reliance upon them, the transferee or assignee, to the extent it deems
appropriate, has made (a) its own independent investigation of the financial
condition and affairs of the General Partner and each Borrower in connection
with the assignment or transfer hereunder and the taking or not taking of any
action in connection herewith and (b) its own appraisal of the creditworthiness
of the General Partner and of each Borrower; (iv) each of the Banks, the Agent,
and the Collateral Agent (except to the extent the functions of any such Person
shall not in the sole discretion of the Assignee or transferee or the Borrowers
be necessary or appropriate after such transfer or assignment), shall have been
replaced (unless it shall otherwise have expressly agreed in writing),
irrespective of the restrictions and limitations contained in Section 10.09 of
this Agreement; (v) the General Partner, each Borrower and each assignee or
transferee agrees that neither the Agent nor the Collateral Agent, any Bank nor
any of their directors, officers, employees or agents shall be liable to any
General Partner, any Borrower, transferee or assignee for any action taken or
omitted to be taken by them under this Agreement or any other Credit Document,
or in connection therewith, nor responsible for any recitals or warranties
therein (except those set forth in the Transfer Documents, if any), nor for the
due execution (except by the Agent or the Banks, as applicable) nor the
effectiveness, enforceability or validity of this Agreement or any other Credit
Document, nor for the creation, perfection or priority of any Lien purported to
be created by any of the Credit Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security, nor
to make any inquiry respecting the performance by any of the Borrowers of their
respective obligations under this Agreement or any other Credit Document; and
(vi) each of the Banks agrees that the instruments and documents effectuating
such transfer or assignment pursuant to this Section
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<PAGE> 102
11.10 (the "Transfer Documents"), shall be in form and substance reasonably
satisfactory to them in their sole discretion. Each of the Banks agrees that
the form and substance of the Transfer Documents shall not be deemed
unsatisfactory as a result of the same s including a representation that such
Bank is the legal and beneficial owner of, and has not sold, assigned or
transferred its Loans, Notes and Loan Commitments described in the Transfer
Documents or a representation as to the outstanding amount, if any, of its Loans
and the remaining amount of its Loan Commitment.
SECTION 11.11 Debt Service Reserve.
(a) The Operating Partnership shall dedicate Quarterly Cash Flow Available
for Debt Service during each calendar quarter to the extent necessary so that by
the end of such quarter the Debt Service Reserve is in an amount equal to 50% of
Prospective Debt Service for the immediately following calendar quarter (the
"Minimum Debt Service Reserve").
(b) In the event that the Coverage Ratio as of the end of any calendar
quarter when MP Loans are outstanding is less than 1.5:1, and if the foregoing
provision of this Section 11.11(b) is not satisfied as of the end of the period
ending two calendar quarters thereafter, then the Operating Partnership shall
increase the Prospective Debt Service Reserve by dedicating thereto Quarterly
Cash Flow Available for Debt Service to the extent necessary so that the amount
of the Debt Service Reserve during each of the calendar quarters following
thereafter shall be equal to at least the total of Prospective Debt Service for
the three calendar quarters immediately thereafter provided, however, that if at
any time after the Operating Partnership is required to dedicate Quarterly Cash
Flow Available for Debt Service pursuant to this Section 11.11(b) the Coverage
Ratio is equal to at least 1.5:1 for a period of four consecutive calendar
quarters, the foregoing provisions of this Section 11.11(b) shall no longer be
applicable and the provisions of Section 11.11(a) shall be applicable until such
time as the Coverage Ratio is less than 1.5:1, and provided, further, that the
Operating Partnership shall not be required to maintain a Debt Service Reserve
other than as provided in Section 11.11(a) during any calendar quarter during
which there are no MP Loans outstanding.
(c) Notwithstanding anything contained herein or elsewhere to the contrary
or seemingly to the contrary, failure by the Operating Partnership to comply
with the provisions of Section 11.11(a) or 11.11(b) shall not constitute a
Default or Event of Default if such failure is a result of the Quarterly Cash
Flow Available for Debt Service s being insufficient to fund and/or increase the
Debt Service Reserve to the amount required by Section 11.11(a) or the
applicable provisions of Section 11.11(b), as applicable.
SECTION 11.12 Indemnity by MLP and the Services Partnership. The MLP and
the Services Partnership severally, but not jointly, will protect, indemnify and
save harmless each Bank, the Agent and the Collateral Agent and their respective
officers, directors, employees, agents and representatives (individually, an
"Indemnified Party" and collectively, the "Indemnified Parties") from and
against all losses, liabilities, obligations, claims, damages, penalties, causes
of action, costs and expenses (including, without limitation, attorneys' fees
and expenses) imposed upon or incurred by or asserted against any Indemnified
Party by reason of any failure on the part of MLP or the
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<PAGE> 103
Services Partnership, as the case may be, to perform or comply with any of the
terms of this Agreement or by reason of any other relationship that has arisen
or may arise between the MLP or the Services Partnership, as the case may be,
and the Indemnified Parties as a result of the delivery of this Agreement or any
action contemplated hereby or by any other document executed in connection
herewith; provided, however, that in no event will the MLP or the Services
Partnership, as the case may be, be liable or otherwise have any obligation
under this Section 11.12 with respect to any failure on the part of any other
Borrower to perform or comply with the terms of this Agreement. In case any
action, suit or proceeding is brought against an Indemnified Party by reason of
any such occurrence, the MLP or the Services Partnership, as the case may be,
upon the request of such Indemnified Party, will at the MLP's or the Services
Partnership's expense, resist and defend such action, suit or proceeding or will
cause the same to be defended by counsel for the insurer of the liability or by
counsel designated by the MLP or the Services Partnership, as the case may be,
and reasonably satisfactory to the Indemnified Party, as the case may be,
provided that any Indemnified Party shall be entitled to participate in any such
action, suit or proceeding with counsel of its own choice but at its own
expense. In any event, if the MLP or the Services Partnership, as the case may
be, fails to assume the defense within a reasonable time after such request, the
Indemnified Party may assume such defense or other indemnification obligation
and the fees and expenses of its attorney will be paid by the MLP or the
Services Partnership, as the case may be. The obligations of the MLP or the
Services Partnership, as the case may be, under this Section 11.12 shall survive
any termination of this Agreement. Any amounts payable to any Indemnified Party
under this Section 11.12 which are not paid within 15 days after written demand
therefor by any Indemnified Party shall bear interest at the Prime Rate from the
date of such demand.
SECTION 11.13 Survival. The obligations of the Borrowers under Sections
2.11 and 11.01, and the obligations of the Banks under Section 10.06, shall in
each case survive any termination of this Agreement, the payment in full of all
Loans and the termination of all Loan Commitments. The representations and
warranties made by the Borrowers in this Agreement and in each other Credit
Document shall survive the execution and delivery of this Agreement and each
such other Credit Document.
SECTION 11.14 Severability. Any provision of this Agreement or any other
Credit Document which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Credit Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 11.15 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE
COLLATERAL AGENT, THE BANK, THE GENERAL PARTNER OR ANY BORROWER SHALL BE BROUGHT
AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR
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<PAGE> 104
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY SECURITY OR
OTHER PROPERTY MAY BE BROUGHT, AT THE OPTION OF THE COLLATERAL AGENT OR THE
AGENT, IN THE COURTS OF ANY JURISDICTION WHERE SUCH SECURITY OR OTHER PROPERTY
MAY BE FOUND. EACH OF THE BORROWERS HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH OF THE PARTIES HERETO
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK.
EACH OF THE PARTIES HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER MAY HAVE TO
THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT ANY PARTY HERETO HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH PERSON
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS.
SECTION 11.16 FINAL AGREEMENT. THIS WRITTEN CREDIT AGREEMENT AND THE
OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[SECTION 11.17 [Intentionally omitted.]]
SECTION 11.18 Renewal, Extension, and Amendment. This Agreement is
entered into in renewal, extension and amendment of the Existing Credit
Agreement and of the Indebtedness and other obligations owing by the Borrowers
and the General Partner thereunder, but not in extinguishment nor release
thereof. Upon this Agreement's becoming effective in accordance with Section
4.01, it shall amend and restate in its entirety the Existing Credit Agreement
and continue and carry forward the Indebtedness of the Borrowers governed
thereby; it being expressly agreed and understood that in no event shall the
Liens of the Security Documents be extinguished nor released thereby; and the
Borrowers hereby acknowledge and reaffirm the Liens of the Security Documents
and continue and carry the same forward in full force and effect until payment
and performance in
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<PAGE> 105
full of all obligations, respectively, secured thereby. In connection with the
foregoing, the parties hereto further expressly acknowledge and agree that all
Indebtedness under the Existing Credit Agreement and under the Notes shall
continue as Indebtedness hereunder secured by (a) in the case of MP Loans, the
Mortgages and the Pledge Agreement - Debt Service Reserve and (b) in the case of
all other Loans, the Pledge Agreements, and that all references in the Notes and
in the Security Documents to the Existing Credit Agreement shall be deemed to be
references to this Agreement. Without limiting the generality of the foregoing,
the Borrowers hereby expressly acknowledge and agree that the term
"obligations" as defined in the Pledge Agreements shall include the
Indebtedness governed hereby. The Borrowers hereby further acknowledge and
confirm that the Notes evidence and shall continue to evidence the Indebtedness
under this Agreement, and that in no event whatsoever shall the Indebtedness
governed by the Existing Credit Agreement and evidenced by the Notes
immediately prior to the execution of this Agreement be, or be deemed to have
been, repaid upon the execution of this Agreement. The parties hereto further
agree that effective on the date hereof the "Technical Agent" and the
"Technical Banks" (as each of said terms is defined in the Existing Credit
Agreement) shall cease to be, respectively, said Technical Agent and said
Technical Banks.
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<PAGE> 106
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective officer or officers thereunto duly
authorized.
Address: BORROWERS:
21 West Superior Street LAKEHEAD PIPE LINE COMPANY, INC.
Duluth, Minnesota 55802-2067
By: /s/ Paul W. Norgren
-------------------------------
Name: Paul W. Norgren
------------------------------
Title: Secretary
-----------------------------
By: /s/ S.Q. DeVinck
---------------------------------
Name: S.Q. DeVinck
------------------------------
Title: Chief Accountant
-----------------------------
c/o Lakehead Pipe Line Company, Inc. LAKEHEAD PIPE LINE PARTNERS, L.P.
21 West Superior Street
Duluth, Minnesota 55802-2067 By: Lakeland Pipe Line Company, Inc.,
General Partner
By: /s/ Paul W. Norgren
-------------------------------
Name: Paul W. Norgren
----------------------------
Title: Secretary
---------------------------
By: /s/ S.Q. DeVinck
-------------------------------
Name: S.Q. DeVinck
-----------------------------
Title: Chief Accountant
----------------------------
S-1
<PAGE> 107
c/o Lakehead Pipe Line Company, Inc.
21 West Superior Street LAKEHEAD SERVICES
Duluth, Minnesota 55802-2067 LIMITED PARTNERSHIP
By: Lakehead Pipe Line Partners, L.P., a
Delaware Limited Partnership
By: Lakehead Pipe Line Company, Inc.,
General Partner
By: /s/ Paul W. Norgren
-------------------------------
Name: Paul W. Norgren
-----------------------------
Title: Secretary
----------------------------
By: /s/ S.Q. DeVinck
-------------------------------
Name: S.Q. DeVinck
-----------------------------
Title: Chief Accountant
----------------------------
c/o Lakehead Pipe Line Company, Inc. LAKEHEAD PIPE LINE COMPANY,
21 West Superior Street LIMITED PARTNERSHIP
Duluth, Minnesota 55802-2067
By: Lakehead Pipe Line Company, Inc.,
General Partner
By: /s/ Paul W. Norgren
-------------------------------
Name: Paul W. Norgren
--------------------------
Title: Secretary
--------------------------
By: /s/ S.Q. DeVinck
-------------------------------
Name: S.Q. DeVinck
--------------------------
Title: Chief Accountant
-------------------------
S-2
<PAGE> 108
115 South LaSalle Street BANK OF MONTREAL, a Canadian-chartered
Chicago, Illinois 60603 bank in its individual capacity as a Bank and as
Agent
By: /s/ J. Michael Linson
------------------------------
Name: J. Michael Linson
-----------------------------
Title: Director
---------------------------
The Collateral Agent joins in the execution
hereof only to evidence its agreement with the
provisions of Article X and other provisions
hereof dealing with the Collateral Agent:
Two Houston Center THE TORONTO-DOMINION BANK, a Canadian
909 Fannin Street chartered bank
Suite 1700
Houston, Texas 77010
By:
-----------------------------
Name:
----------------------------
Title:
---------------------------
Two Houston Center CANADIAN IMPERIAL BANK OF COMMERCE,
909 Fannin Street a Canadian chartered bank
Suite 1200
Houston, Texas 77010
By:
-----------------------------
Name:
----------------------------
Title:
---------------------------
<PAGE> 109
115 South LaSalle Street BANK OF MONTREAL, a Canadian-chartered
Chicago, Illinois 60603 bank in its individual capacity as a Bank and as
Agent
By:
---------------------------------
Name:
--------------------------------
Title:
-------------------------------
The Collateral Agent joints in the execution
hereof only to evidence its agreement with the
provisions of Article X and other provisions
hereof dealing with the Collateral Agent:
Two Houston Center THE TORONTO-DOMINION BANK, a Canadian
909 Fannin Street chartered bank
Suite 1700
Houston, Texas 77010
By: /s/ Neva Nesbitt
-----------------------------------
Name: Neva Nesbitt
---------------------------------
Title: MGR. CR. ADMIN
--------------------------------
Two Houston Center CANADIAN IMPERIAL BANK OF COMMERCE,
909 Fannin Street a Canadian chartered bank
Suite 1200
Houston, Texas 77010
By:
----------------------------------
Name:
---------------------------------
Title:
-------------------------------
S-3
<PAGE> 110
115 South LaSalle Street BANK OF MONTREAL, a Canadian-chartered
Chicago, Illinois 60603 bank in its individual capacity as a Bank and as
Agent
By:
------------------------------
Name:
-----------------------------
Title:
---------------------------
The Collateral Agent joints in the execution
hereof only to evidence its agreement with the
provisions of Article X and other provisions
hereof dealing with the Collateral Agent:
Two Houston Center THE TORONTO-DOMINION BANK, a Canadian
909 Fannin Street chartered bank
Suite 1700
Houston, Texas 77010
By:
-----------------------------
Name: ----------------------------
Title:
---------------------------
Two Houston Center CANADIAN IMPERIAL BANK OF COMMERCE,
909 Fannin Street a Canadian chartered bank
Suite 1200
Houston, Texas 77010
By: /s/ Gary C. Gaskill
---------------------------
Name: Gary C. Gaskill
---------------------------
Title: Authorized Signatory
---------------------------
<PAGE> 111
c/o ABN AMRO BANK, N.V. ABN AMRO BANK, N.V., CAYMAN ISLANDS
650 West Georgia Street BRANCH
Suite 2500
Internal Box No. 11587 By: /s/ P.K. CHAN
Vancouver, CANADA V6B 4N8 -----------------------------
Name: P.K. CHAN
---------------------------
Title: Vice President, Credit
--------------------------
111 West Monroe Street HARRIS TRUST AND SAVINGS BANK, an Illinois
Chicago, Illinois 60603 banking corporation in its capacity as
Collateral Agent
By:/s/ KEITH RICHARDSON
---------------------------------
Name: KEITH RICHARDSON
-------------------------------
Title: ASSISTANT VICE PRESIDENT
------------------------------
S-4
<PAGE> 112
<PAGE> 113
SCHEDULE 1.01
LIST OF BANKS
<TABLE>
<CAPTION>
LIST OF BANKS/LENDING OFFICES COMMITMENTS
---------------------------------- -----------
<S> <C>
1. Bank of Montreal $80,000,000
115th South LaSalle, 12th Floor
Chicago, Illinois 60603
2. The Toronto-Dominion Bank $50,000,000
Two Houston Center
909 Fannin Street
Suite 1700
Houston, Texas 77010
3. Canadian Imperial Bank of Commerce $50,000,000
909 Fannin Street
Suite 1200
Houston, Texas 77010
4. ABN AMRO Bank, N.V., $25,000,000
CAYMAN ISLANDS BRANCH
c/o ABN AMRO Bank
650 West Georgia Street
Suite 2500
Internal Box No. 11587
Vancouver, CANADA
V6B 4N8
</TABLE>
<PAGE> 114
SCHEDULE 1.02
EXISTING NOTES
1. Note dated December 27, 1991 by Lakehead Pipe Line Partners, L.P. to the
Bank of Montreal in the face amount of $80,000,000.00.
2. Note dated December 27, 1991 by Lakehead Pipe Line Partners, L.P. to The
Toronto-Dominion Bank in the face amount of $50,000,000.00.
3. Note dated December 27, 1991 by Lakehead Pipe Line Partners, L.P. to the
Canadian Imperial Bank of Commerce in the face amount of $50,000,000.00.
4. Note dated December 27, 1991 by Lakehead Pipe Line Partners, L.P. to ABN
AMRO Bank, N.V., Cayman Islands Branch in the face amount of
$25,000,000.00.
5. Note dated December 27, 1991 by Lakehead Services, Limited Partnership to
the Bank of Montreal in the face amount of $80,000,000.00.
6. Note dated December 27, 1991 by Lakehead Services, Limited Partnership to
The Toronto-Dominion Bank in the face amount of $50,000,000.00.
7. Note dated December 27, 1991 by Lakehead Services, Limited Partnership
to the Canadian Imperial Bank of Commerce in the face amount of
$50,000,000.00.
8. Note dated December 27, 1991 by Lakehead Services, Limited Partnership to
ABN AMRO Bank, N.V., Cayman Islands Branch in the face amount of
$25,000,000.00.
9. Note dated December 27, 1991 by Lakehead Pipe Line Company, Limited
Partnership to the Bank of Montreal in the face amount of $80,000,000.00.
10. Note dated December 27, 1991 by Lakehead Pipe Line Company, Limited
Partnership to The Toronto-Dominion Bank in the face amount of
$50,000,000.00.
11. Note dated December 27, 1991 by Lakehead Pipe Line Company, Limited
Partnership to the Canadian Imperial Bank of Commerce in the face amount
of $50,000,000.00.
12. Note dated December 27, 1991 by Lakehead Pipe Line Company, Limited
Partnership to ABN-AMRO Bank N.V., Cayman Islands Branch in the face
amount of $25,000,000.00.
<PAGE> 115
SCHEDULE 5.08
ENVIRONMENTAL MATTERS
IMPORTANT NOTE: The information set forth below is provided in order to
disclose fully Notices of Violation and Environmental Reports. Presentation of
such information herein does not constitute an admission or agreement by the
General Partner or the Borrowers that any of such matters would have a material
adverse effect on its financial condition or results of operations, or in the
case of the general partner of the Operating Partnership and the Operating
Partnership only, on the Business or Assets.
Notices of Violation
1. On November 5, 1991, the United States Environmental Protection
Agency ("EPA") issued a Notice of Violation to the General Partner regarding
discharges of wastewater from hydrostatic testing at the Superior terminal,
along with a Request for Information regarding the handling of this material.
The Company responded to the EPA in a letter dated December 18, 1991. The
Company believes its response adequately addressed the issues and no subsequent
correspondence was received from the EPA. The Company therefore believes this
issue is resolved.
2. On December 13, 1991 the Wisconsin Department of Natural Resources
(WDNR) issued a letter serving as a notice of noncompliance for violations of
dissolved oxygen limits and for insufficient sampling as reported in the
General Partners' September and October 1991 discharge monitoring reports. The
Company responded to the WDNR on January 8, 1992 and no further action has been
pursued by the WDNR.
3. On May 22, 1995 the Wisconsin Department of Natural Resources notified
the Company of alleged violations of pollution discharge elimination laws and
regulations, and that the matter had been referred to Wisconsin's Attorney
General for enforcement. On October 13, 1995, the Company signed a Stipulation
and Order for Judgment resolving the issue with the State of Wisconsin.
4. There are no other notices of environmental violations previously
received by the General Partner which the General Partner has reason to believe
have not been resolved.
Environmental Reports
The Company routinely submits reports to federal and state agencies
regarding spills, response and remediation activities, and certain other issues
on an as-needed basis.
1. Letter dated October 13, 1995 to the Wisconsin Department of Natural
Resources (WDNR) providing the Company's comments on the WDNR report "Newton
Creek
<PAGE> 116
System Sediment Contamination - Site Characterization," and responding to
WDNR comments on the Company's report "Harbor Sediment Sampling Documentation
Report."
2. Letter dated August 3, 1994 to the Wisconsin Department of Natural
Resources submitting a "Case Summary and Close Out Form" for the Company's
Ogdensburg Dock Site in Superior, Wisconsin.
3. Reports to the Minnesota Pollution Control Agency regarding groundwater
sampling and closure plans for the Grand Rapids, Minnesota spill site.
4. Letter dated August 21, 1996 to the Wisconsin Department of Natural
Resources requesting site closure regarding the Sheldon Station spill site.
5. Release Initial Response and Investigation Report dated June, 1994
submitted to the Wisconsin Department of Natural Resources regarding a leak at
Booster Pump #4 at the Superior Terminal.
6. Reports to the State of Michigan regarding final remediation and
closure activities regarding the Romeo, Michigan site.
7. Response dated June 1, 1994, and Supplemental Response dated July 1,
1994 to the United States Environmental Protection Agency (USEPA) regarding a
Request for Information pursuant to Section 104(e) of CERCLA for the Manistique
River/Harbor Area of Concern, Manistique, Michigan.
8. Minnesota Pollution Control Agency request dated August 1, 1991
regarding long-term pipeline release cleanup issues and Response dated October
8, 1991.
9. Response dated March 28, 1990 to Request for Information, and Response
dated May 9, 1990 to Supplemental Request for Information from United States
Environmental Protection Agency, and supplementary responses dated November 25,
1991 to Requests for Information provided to United States Environmental
Protection Agency and the State of Minnesota regarding Kummer landfill.
10. Summary report dated April 7, 1994, submitted to the State of
Wisconsin for clean-up of contaminated soil at the Saxon station facility.
Quarterly status reports submitted to date. Closure is anticipated yet in
1996.
11. Verbal notification on July 10, 1996 to the State of Michigan,
reporting a small release at the Leonard station site.
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<PAGE> 117
12. Report and follow-up verbal Communications with the State of Michigan
on discovery of contaminated soil in October 1994, from a previous leak in St.
Clair County, Michigan in 1970.
13. Verbal notification on August 1, 1996 to the State of Wisconsin,
reporting a small release at the Walworth station site.
14. Reports to the State of Michigan regarding a work plan for remediation
of two sites near Wakefield, MI, where test water was released during
hydrostatic testing of the pipeline on September 15 and 16, 1993. Final report
and site closure request submitted August 22, 1994 for one site and December
13, 1994 for the other.
15. Status report to State of Michigan dated November 15, 1994,
summarizing the response to a release of hydrostatic test water near
Marysville, Michigan.
16. Response dated June 19, 1996 to the United States Environmental
Protection Agency Request for Information pursuant to a leak at the Niles,
Michigan pumping station.
17. Written response dated December 20, 1995 to State of Michigan request
for information regarding discovery of contaminated soil at the Mackinaw pump
station during the removal of the station sump tank.
18. Letter dated May 28, 1993, to the Wisconsin Department of Natural
Resources documenting additional soil sampling and contaminated soil management
for closure of an underground storage tank removal site at Lakehead's Superior,
Wisconsin Pipeline Maintenance Shop.
19. Letter dated June 14, 1996, to the Minnesota Pollution Control Agency
documenting cleanup activities at a crude oil leak site near Floodwood,
Minnesota.
20. Letter dated May 21, 1996, to the Minnesota Pollution Control Agency
documenting the response to a leak at Lakehead's Viking, Minnesota pump
station.
21. Letter dated August 21, 1996, to the Illinois Environmental Protection
Agency responding to several questions regarding the Parker Road, Illinois
site.
22. Verbal report provided to Richard Kable of the Minnesota Pollution
Control Agency on August 28, 1996 regarding the status of the cleanup of a
crude oil leak at Lakehead's Donaldson, Minnesota Station which occurred on
August 24, 1996.
23. Letter dated June 20, 1996, to the Minnesota Pollution Control Agency
presenting the results of the most recent well sampling and documentation for a
well installation at the Wrenshall site which is being monitored jointly with
Conoco, Inc.
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<PAGE> 118
24. Focused Feasibility Study dated April 1996 to the Minnesota Pollution
Control Agency presenting an analysis of remedial alternatives and the
preferred alternative for remediation of a historic leak near the Tamarac
River, Marshall County, Minnesota.
25. Letter dated December 7, 1996, presenting the analytical results from
the annual groundwater sampling at a historic leak site near Argyle, Minnesota.
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<PAGE> 119
SCHEDULE 5.15(B)(II)
LIST OF COUNTIES
1. ILLINOIS (5) 4. MINNESOTA (13)
Cook Aitkin
Du Page Beltrami
Kane Carlton
McHenry Cass
Will Clearwater
Hubbard
2. INDIANA (4) Itasca
Kittson
Lake Marshall
La Porte Pennington
Porter Polk
St. Joseph Red Lake
St. Louis
3. MICHIGAN (29)
5. NEW YORK (1)
Arenac
Bay Erie
Berrien
Calhoun 6. NORTH DAKOTA (1)
Cheboygan
Cass Pembina
Crawford
Delta 7. WISCONSIN (19)
Dickinson
Emmet Adams
Gogebic Ashland
Ingham Bayfield
Iron Chippewa
Jackson Clark
Kalamazoo Columbia
Lapeer Dane
Livingston Douglas
Mackinac Iron
Macomb Jefferson
Marquette Marathon
Oakland Marquette
Ogemaw Rock
Oscoda Rusk
Otsego Sawyer
Saginaw Taylor
Schoolcraft Walworth
St. Clair Washburn
St. Joseph Wood
Tuscola
<PAGE> 120
SCHEDULE 5.15(C)(II)
LIST OF PRIMARY TANKAGE, MAINTENANCE
AND OFFICE FACILITIES
1. Superior, Wisconsin Tankage Terminal,
Pipeline Maintenance Facility and District Office
Douglas County, Wisconsin
2. Clearbrook, Minnesota Tankage Terminal
Clearwater County, Minnesota
3. Griffith, Indiana Tankage Terminal,
Pipeline Maintenance Facility and District Office
Lake County, Indiana
4. Bemidji, Minnesota Pipeline Maintenance Facility
and District Office
Beltrami County, Minnesota
5. Fort Atkinson, Wisconsin Area Office and
Pipeline Maintenance Facility
Jefferson County, Wisconsin
6. Bay City, Michigan Pipeline Maintenance Facility
and District Office
Bay County, Michigan
7. Ironwood, Michigan Pipeline Maintenance Facility
Gogebic County, Michigan
8. Escanaba, Michigan Pipeline Maintenance Facility
Delta County, Michigan
9. Thief River Falls, Minnesota Pipeline Maintenance
Facility
Pennington County, Minnesota
10. Marshall, Michigan Pipeline Maintenance Facility
Calhoun County, Michigan
<PAGE> 121
SCHEDULE 5.21(A)
ERISA PLANS
Plan Sponsorship
The General Partner had established, maintained, and contributed to a
Plan, as defined in the Agreement, called the Employees' Annuity Plan of
Lakehead Pipe Line Company, Inc. The General Partner's obligations with
respect to such Plan ceased on December 31, 1995, when the sponsorship of such
Plan was transferred to IPL Energy (U.S.A.) Inc., a Related Person, effective
January 1, 1996. The Plan has had a funding surplus for several years; for the
plan year ending December 31, 1995, Plan assets exceeded liabilities by
approximately $12,000,000.
Assumption of Liability
Effective January 1, 1996, IPL Energy (U.S.A.) Inc., a Related Person,
assumed liability with respect to all "employee benefit plans" (as defined in
ERISA) and fringe benefit plans formerly sponsored and maintained by the
General Partner. The employee benefit plans are the following: Employees'
Annuity Plan of Lakehead Pipe Line Company, Inc., Lakehead Pipe Line Company,
Inc. Employees' Savings Plan, Lakehead Pipe Line Company, Inc. Hospital-Medical
Plan, Lakehead Pipe Line Company, Inc. Dental Plan, Lakehead Pipe Line Company,
Inc. Flexible Benefit Plan, Lakehead Pipe Line Company, Inc. Group Life
Insurance Plan, Lakehead Pipe Line Company, Inc. Short Term Disability Plan,
Lakehead Pipe Line Company, Inc. Long Term Disability Plan, and Lakehead Pipe
Line Company, Inc. Accidental Death and Dismemberment Plan. The fringe benefit
plans are the following: Lakehead Pipe Line Company, Inc. Employee Assistance
Plan, Lakehead Pipe Line Company, Inc. Higher Education Awards Plan, and
Lakehead Pipe Line Company, Inc. Educational Refund Plan.
<PAGE> 122
EXHIBIT A
NOTICE OF NON-CONTINUATION
______________, 199___
Lakehead Pipe Line Company, Inc.
21 West Superior Street
Duluth, Minnesota 55802-2067
Lakehead Pipe Line Partners, L.P.
c/o Lakehead Pipe Line Company, Inc.
21 West Superior Street
Duluth, Minnesota 55802-2067
Lakehead Services Limited Partnership
c/o Lakehead Pipe Line Company, Inc.
21 West Superior Street
Duluth, Minnesota 55802-2067
Lakehead Pipe Line Company, Limited Partnership
c/o Lakehead Pipe Line Company, Inc.
21 West Superior Street
Duluth, Minnesota 55802-2067
Ladies and Gentlemen:
The undersigned hereby gives you notice, pursuant to Section 2.01 of that
certain Amended and Restated Revolving Credit Agreement, dated as of September
6, 1996 (as the same may be amended or restated from time to time, the "Amended
and Restated Credit Agreement") executed by and among Lakehead Pipe Line
Company, Inc., Lakehead Pipe Line Partners, L.P., Lakehead Services, Limited
Partnership, Lakehead Pipe Line Company, Limited Partnership; the Bank of
Montreal, as Agent for the Banks; Harris Trust and Savings Bank, as Collateral
Agent for the Banks; and the Banks shown in Schedule 1.01 thereto that the Loan
Period for each of the Loans made by the Electing Banks referenced below shall
end on the Potential Loan Maturity Date, and that unless you replace each of
the Electing Banks in accordance with Section 2.01 of the Amended and Restated
Credit Agreement, the Potential Loan Maturity Date shall become the Loan
Maturity Date, whereupon the Loans, including both principal and interest, and
all other amounts, if any, due and owing to the Banks, the Agent and the
Collateral Agent pursuant to the Amended and Restated Credit Agreement and the
Security Documents, shall be immediately due and payable in full.
<PAGE> 123
For purposes hereof, please be advised that the Electing Banks are
________________________, and the Potential Loan Maturity Date is
__________________.
Capitalized terms used herein without definition have the meanings
assigned to them in the Amended and Restated Credit Agreement.
BANK OF MONTREAL, as Agent
By:_____________________
Name:___________________
Title:__________________
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<PAGE> 124
EXHIBIT B
NOTICE OF BORROWING
______________, 199__
The undersigned ________________ (the "Borrower") hereby gives you
notice irrevocably, pursuant to Section 2.02 of that certain Amended and
Restated Revolving Credit Agreement, dated as of September 6, 1996 (as the same
may be amended or restated from time to time, the "Amended and Restated Credit
Agreement") executed by and among Lakehead Pipe Line Company, Inc., Lakehead
Pipe Line Partners, L.P., Lakehead Services, Limited Partnership, Lakehead Pipe
Line Company, Limited Partnership; the Bank of Montreal, as Agent for the Banks;
Harris Trust and Savings Bank, as Collateral Agent for the Banks; and the Banks
shown on Schedule 1.01 thereto of the Borrowing(s) specified below:
I. PRIME RATE LOAN:
(A) Aggregate Principal Amount: $__________________
(B) Date of Borrowing: _____________________, 199__
(C) Prime Rate Loan Security: Qualifying Securities_________OR
Mortgaged Properties__________
Collateral Account Number______________
Trust Number____________________
II. CD RATE LOAN:
(A) Aggregate Principal Amount: $______________________
(B) Date of Borrowing: ________________________, 199___
(C) CD Rate Loan Security: Qualifying Securities_______OR
Mortgaged Properties________
(D) CD Rate Initial Interest Period: _______ days(1)
Collateral Account Number______________
Trust Number____________________
_______________
1 Select Interest Period which is not more than 365 days, except that such
period may be longer with the prior consent of the Banks.
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<PAGE> 125
III. LIBOR RATE LOAN:
(A) Aggregate Principal Amount: $_________________
(B) Date of Borrowing: ____________________, 199__
(C) LIBOR Rate Loan Security: Qualifying Securities______OR
Mortgaged Properties_______
2
(D) LIBOR Rate Initial Interest Period: _______ months
Collateral Account Number______________
Trust Number____________________
IV. The Borrowing(s) herein requested are to be received in immediately
available funds on _______________________________, 199 __ in the
following account:
Bank Name: _______________________________
ABA Number: _______________________________
Account Title: _______________________________
Account Number: _______________________________
Capitalized terms used herein without definition have the meanings
assigned to them in the Amended and Restated Credit Agreement.
________________________
By:_____________________
Name:___________________
Title:__________________
CONFIRMATION OF RECEIPT BY AGENT [FAX TO: (403) 231-4848]
BANK OF MONTREAL
BY:_____________________ DATE:_______________________
(signed)
_______________
2 Select Interest Period which is not more than 12 months, except that such
period may be longer with the prior consent of the Banks.
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<PAGE> 126
EXHIBIT C
NOTICE OF CONTINUATION/CONVERSION
BORROWER: _____________________________________ (the "Borrower")
DATE: ______________________
FAX TO: BANK OF MONTREAL, AGENT
FAX #: (312) 750-3456
ATTENTION:
Per Section 2.14 of the Amended and Restated Revolving Credit and Term Loan
Facility Agreement dated September 6, 1996, the Borrower hereby provides notice
of its desire to continue and/or convert Loans, as follows:
<TABLE>
<CAPTION>
<S> <C>
MATURING INTEREST PERIOD(S) NEW INTEREST PERIOD(S)
Maturity Date: Effective Date:
Date Principal
Principal Amount: Maturity:
Type of Loan: Type of Loan:
(Prime Rate, CD Rate, LIBOR Rate) (Prime Rate, CD Rate, LIBOR Rate)
Collateral Trust Account #: Collateral Trust Account #:
Collateral: Collateral:
(Qualifying Securities or Mortgaged Property) (Qualifying Securities or Mortgaged Property)
</TABLE>
On behalf of the Borrower,
LAKEHEAD PIPE LINE COMPANY INC.,
its general partner
Per: ____________________________
Per: ____________________________
CONFIRMATION OF RECEIPT BY AGENT [FAX TO: (403) 231-4848]
BANK OF MONTREAL
BY:______________________________________ DATE:_______________________
(signed)
Notice Deadline: Before 11:00 a.m. New York Time, not less than 3 or more than
5 business days prior to Continuation/Conversation Date.
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<PAGE> 127
EXHIBIT D
CREDIT EVENT CERTIFICATE
______________, 199__
The undersigned ________ (the "Borrower"), pursuant to Section 2.19 of
that certain Amended and Restated Revolving Credit Agreement, dated as of
September 6, 1996 (as the same may be amended or restated from time to time,
the "Amended and Restated Credit Agreement") executed by and among Lakehead
Pipe Line Company, Inc., Lakehead Pipe Line Partners, L.P., Lakehead Services,
Limited Partnership, Lakehead Pipe Line Company, Limited Partnership; the Bank
of Montreal, as Agent for the Banks; Harris Trust and Savings Bank, as
Collateral Agent for the Banks; and the Banks shown on Schedule 1.01 thereto
hereby certifies as follows with respect to each Credit Event described in
Paragraph I below:
I. Complete only as applicable: The Credit Event(s) to which
this Credit Event Certificate applies
is:
(a) Borrowing(s) described in Notice of Borrowing
dated________;
(b) Conversion or Continuation of Loans (with a
change in Collateral) described in Notice of
Continuation/Conversion dated__________________;
(c) Conversion or Continuation of Loans (without a
change in Collateral) described in Notice of
Continuation/Conversion dated__________________;
(d) Assumption by_________________of Loans in the principal
amount of __________________ previously outstanding
to_________________________.
II. Complete only as applicable: The Borrower hereby certifies as
follows with respect to such Credit
Event(s):
(a) No Event of Default has occurred or is continuing
or would result from such Credit Event(s).
(b) The representation and warranty contained in Section 5.04 of
the Amended and Restated Credit Agreement is true and correct
as of the date of such Credit Event with the same effect as if
made on such date.
(c) With respect to any Loan to be secured by Qualifying
Securities, the value of the Qualifying Securities
of the undersigned in which the Collateral Agent will have a
first perfected security interest prior to or
contemporaneously
<PAGE> 128
with the making of such Loan shall be no
less than the Required Collateral Amount for such Loan.
(d) If the undersigned is the Operating Partnership and if such
Loan is an MP Loan, then (1) after giving effect
to the incurrence of such Loan, the Operating Partnership is
in compliance with the most stringent limitations on the
incurrence or maintenance of Funded Debt contained in any
instrument or agreement applicable to it or binding on it or
waivers of compliance with such limitations have been obtained
and are in full force and effect and have been made available
to the Agent, and (2) such Loan is permitted by and is being
incurred in full compliance with the provisions of Section
10.1(b), 10.1(f) or 10.1(i), as the case may be, of the
Mortgage Note Agreements and Section 10.2(i) thereof. The
opinion of counsel required to be delivered to the Trustee
under the Trust Agreement pursuant to Clause (3) of the
proviso to Section 10.2(i) of the Mortgage Note Agreements is
attached hereto.
(e) The proceeds of the Loans will be used for
general partnership purposes, including, without limitation,
acquisitions, operating expenditures, working capital, and
capital expenditures (whether for maintenance, enhancement, or
otherwise).
(f) At the time of the incurrence of the Loans and
after giving effect thereto and to the substantially
concurrent repayment of any other Indebtedness, the ratio of
the Indebtedness owing by the Operating Partnership to the
Operating Partnership's Partners' Equity is no greater than
1.85 to 1.00 as determined on the date on which the Operating
Partnership shall become liable for such Indebtedness. A
calculation in reasonable detail showing compliance with the
foregoing is attached hereto as Schedule II.
Capitalized terms used herein without definition have the meanings
assigned to them in the Amended and Restated Credit Agreement.
__________________________
By: ______________________
Name:_____________________
Title:____________________
<PAGE> 129
EXHIBIT E
OPERATING PARTNERSHIP COMPLIANCE CERTIFICATE
The undersigned___________________, _________________________ , of Lakehead
Pipe Line Company, Limited Partnership (the "Operating Partnership"), does
hereby certify pursuant to Section 6.03 of that certain Amended and
Restated Revolving Credit Agreement, dated as of September 6, 1996 (as the same
may be amended or restated from time to time, the "Amended and Restated Credit
Agreement") executed by and among Lakehead Pipe Line Company, Inc., Lakehead
Pipe Line Partners, L.P., Lakehead Services, Limited Partnership, Lakehead Pipe
Line Company, Limited Partnership; the Bank of Montreal, as Agent for the
Banks, and Harris Trust and Savings Bank, as Collateral Agent for the Banks;
and the Banks shown on Schedule 1.01 thereto, as follows:
I. I have reviewed the terms of the Amended and Restated Credit Agreement
and the other Credit Documents and have made, or caused to be made under
my supervision, a review in reasonable detail of the transactions and
condition of the General Partner and each Borrower and their respective
Subsidiaries during the fiscal [quarter] [year] ending______________.
The financial statements which accompany this certificate present
fairly, in all material respects, the information contained therein
(subject to changes resulting from normal, year-end adjustments), in
accordance with GAAP applied on a basis consistent with prior fiscal
periods. I also certify that I have no knowledge of the existence and
continuance as of the date set forth below of any condition or event which
constitutes a Default or an Event of Default.
II. During and at the end of the quarter ended the Operating Partnership was
in compliance with the restrictions contained in Sections 8.01(b), (d),
(e), (f) and (g), 8.07(a)(ii), 8.07(a)(iii), 8.07(c)(ii) and 8.19 of the
Amended and Restated Credit Agreement. Compliance with the foregoing
restrictions is demonstrated in reasonable detail in Schedule I attached
hereto.
III. The Cash Flow/Interest Coverage Pricing Ratio as of the end of the
immediately preceding fiscal quarter is____________________, calculated
as set forth below:
Cash Flow $_____Million(A)
Consolidated Gross Interest Expense $_____ Million(B)
Cash Flow/Interest Pricing Ratio ____A/B
<PAGE> 130
Capitalized terms used herein without definition have the meanings
assigned to them in the Amended and Restated Credit Agreement.
EXECUTED AND DELIVERED as of_____________________, 199___.
LAKEHEAD PIPE LINE COMPANY,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.,
General Partner
By:_________________________________
Name:____________________________
Title:___________________________
<PAGE> 131
EXHIBIT F
FORM OF SUBORDINATION PROVISIONS
Subordination. (a) The indebtedness ("Subordinated Debt") evidenced by
this instrument is subordinate and junior in right of payment to all Senior
Debt (as defined in subdivision (b) hereof) of the Operating Partnership to the
extent provided herein.
(b) For all purposes of these subordination provisions the term "Senior
Debt" shall mean all principal of and Make Whole Amount, if any, and interest
on (i) the Operating Partnership's Notes in the aggregate face amount of $______
pursuant to the Amended and Restated Revolving Credit Agreement
dated as of September 6, 1996, (and any notes issued in substitution therefor)
and (ii) all other indebtedness of the Operating Partnership for borrowed money
unless, under the instrument evidencing the same or under which the same is
outstanding, it is expressly provided that such other indebtedness is junior
and subordinate to other indebtedness and obligations of the Operating
Partnership. The Senior Debt shall continue to be Senior Debt and entitled to
the benefits of these subordination provisions irrespective of any amendment,
modification or waiver of any term of or extension or renewal of the Senior
Debt.
(c) Upon the happening of an event of default with respect any Senior
Debt, as defined therein or in the instrument under which the same is
outstanding, which occurs at the maturity thereof or which automatically
accelerates or permits the holders thereof to accelerate the maturity thereof,
then, unless and until such event of default shall have been remedied or waived
or shall have ceased to exist, no direct or indirect payment (in cash, property
or securities or by set off or otherwise) shall be made on account of the
principal of, or premium, if any, or interest on any Subordinated Debt, or as a
sinking fund for the Subordinated Debt, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Subordinated Debt.
(d) In the event of
(i) any insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to the
Operating Partnership, its creditors as such or its property,
(ii) any proceeding for the liquidation, dissolution or other
winding-up of the Operating Partnership, voluntary or involuntary, whether
or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Operating Partnership for the benefit of
creditors, or
(iv) any other marshalling of the assets of the Operating Partnership,
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<PAGE> 132
all Senior Debt (including any interest thereon accruing at the legal rate
after the commencement of any such proceedings and any additional interest that
would have accrued thereon but for the commencement of such proceedings) shall
first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any holder of any Subordinated
Debt on account of any Subordinated Debt. Any payment or distribution, whether
in cash, securities or other property (other than securities of the Operating
Partnership or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to Subordinated Debt,
to the payment of all Senior Debt at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment), which would otherwise (but for these subordination provisions)
be payable or deliverable in respect of this Subordinated Debt shall be paid or
delivered directly to the holders of Senior Debt in accordance with the
priorities then existing among such holders until all Senior Debt (including
any interest thereon accruing at the legal rate after the commencement of any
such proceedings and any additional interest that would have accrued thereon
but for the commencement of such proceedings) shall have been paid in full.
(e) In the event that any holder of Subordinated Debt shall have the right
to declare any Subordinated Debt due and payable as a result of the occurrence
of any one or more defaults in respect thereof, under circumstances when the
terms of subdivision (d) above are not applicable, such holder shall not
declare such Subordinated Debt due and payable or otherwise to be in default
and shall take no action at law or in equity in respect of any such default
unless and until all Senior Debt shall have been paid in full.
(f) If any payment or distribution of any character or any security,
whether in cash, securities or other property (other than securities of the
Operating Partnership or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to
Subordinated Debt, to the payment of all Senior Debt at the time outstanding
and to any securities issued in respect thereof under any such plan of
reorganization or readjustment), shall be received by a holder of Subordinated
Debt in contravention of any of the terms hereof and before all the Senior Debt
shall have been paid in full, such payment or distribution or security shall be
received in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Debt at the time outstanding in
accordance with the priorities then existing among such holders for
application to the payment of all Senior Debt remaining unpaid, to the extent
necessary to pay all such Senior Debt in full. In the event of the failure of
any holder of any Subordinated Debt to endorse or assign any such payment,
distribution or security, each holder of Senior Debt is hereby irrevocably
authorized to endorse or assign the same.
(g) No present or future holder of any Senior Debt shall be prejudiced in
the right to enforce subordination of Subordinated Debt by any act or failure
to act on the part of the Operating Partnership. Nothing contained herein
shall impair, as between the Operating Partnership and the holders of this
Subordinated Debt, the obligation of the Operating Partnership to pay to the
holder hereof the principal hereof and interest hereon as and when the same
shall become due and payable
-2-
<PAGE> 133
in accordance with the terms hereof, or prevent the holder of any Subordinated
Debt from exercising all rights, powers and remedies otherwise permitted by
applicable law or hereunder upon a default or Event of Default hereunder, all
subject to the rights of the holders of the Senior Debt to receive cash,
securities or other property otherwise payable or deliverable to the holders of
Subordinated Debt.
(h) Upon the payment in full of all Senior Debt, the holders of
Subordinated Debt shall be subrogated to all rights of any holders of Senior
Debt to receive any further payments or distributions applicable to the Senior
Debt until the Subordinated Debt shall have been paid in full, and, for
purposes of such subrogation, no payment or distribution received by the
holders of Senior Debt of cash, securities or other property to which the
holders of the Subordinated Debt would have been entitled except for these
subordination provisions shall, as between the Operating Partnership and its
creditors other than the holders of Subordinated Debt, on the one hand, and the
holders of Subordinated Debt, on the other, be deemed to be a payment or
distribution by the Operating Partnership to or on account of Senior Debt.
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<PAGE> 134
EXHIBIT G
ASSIGNMENT AGREEMENT
To: Lakehead Pipe Line Company, Inc. ("General Partner")
Lakehead Pipe Line Partners, L.P. ("MLP")
Lakehead Services, Limited Partnership ("Services Partnership")
Lakehead Pipe Line Company, Limited Partnership ("Operating Partnership")
To: BANK OF MONTREAL,
as the Agent
Re: Assignment by________________________[Assignor] to____________________
[Assignee] of Loans and Commitment under Amended and Restated Credit Agreement
Gentlemen and Ladies:
We refer to clause (b) of Section 11.03 of the Amended and Restated
Revolving Credit Agreement, dated as of September 6, 1996, (together with all
amendments, supplements, restatements and other modifications, if any, from
time to time thereafter made thereto, the "Amended and Restated Credit
Agreement"), among the General Partner, Services Partnership, MLP, and
Operating Partnership, the certain commercial lending institutions (the
"Banks") as are, or shall from time to time become, parties thereto, and Bank
of Montreal, as Agent (in such capacity, together with its successors, herein
called Agent) for the Banks and Harris Trust and Savings Bank, as collateral
agent for the Banks (together with its successors in such capacity, the
"Collateral Agent"). Unless otherwise defined herein or the context otherwise
requires, terms used herein have the meanings provided in the Amended and
Restated Credit Agreement.
This agreement is delivered to you pursuant to clause (b) of Section 11.03
of the Amended and Restated Credit Agreement and also constitutes notice to
each of you of the assignment and delegation to_______________ (the "Assignee")
of a portion of the Loans and Commitments of _______________ (the "Assignor")
outstanding under the Amended and Restated Credit Agreement on the date hereof.
After giving effect to the foregoing assignment and delegation, the Assignor's
and the Assignee's Commitment and Participation Percentage for the purposes of
the Amended and Restated Credit Agreement are set forth opposite such Person's
name on the signature pages hereof.
[Add paragraph dealing with accrued interest and fees with respect to the
Loans assigned.]
The Assignor hereby represents and warrants to the Assignee, that it is
the legal and beneficial owner of, and has not sold, assigned or transferred
any of the Loans, Notes and Commitments being assigned to Assignee hereunder.
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<PAGE> 135
The Assignee hereby acknowledges and confirms that it has received a copy
of the Amended and Restated Credit Agreement and the exhibits related thereto,
together with copies of the documents which were required to be delivered under
the Amended and Restated Credit Agreement as a condition to the making of the
Loans thereunder. The Assignee further confirms and agrees that in becoming a
Bank and in making its Commitments and Loans under the Amended and Restated
Credit Agreement, such actions have been and will be made without recourse to,
or representation or warranty by any Agent or the Assignor.
Except as otherwise provided in the Amended and Restated Credit Agreement,
effective as of the date of acceptance hereof by the Agent
(a) the Assignee
(i) shall be deemed automatically to have become a party to
the Amended and Restated Credit Agreement, have all the rights and
obligations of a "Bank" under the Amended and Restated Credit
Agreement and the other Credit Documents as if it were an original
signatory thereto to the extent specified in the second paragraph
hereof; and
(ii) agrees to be bound by the terms and conditions set forth
in the Amended and Restated Credit Agreement and the other Credit
Documents as if it were an original signatory thereto; and
(b) the Assignor shall be released from the obligations under the
Amended and Restated Credit Agreement and the other Credit
Documents to the extent specified in Section 11.03 of the Amended
and Restated Credit Agreement.
The Assignee hereby advises each of you of the following administrative
details with respect to the assigned Loans and commitments and requests the
Agent to acknowledge receipt of this document.
[NAME OF ASSIGNEE]
Domestic Office:
Address:_______________________
Address for Notices:
Address:_______________________
Telephone No.:
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<PAGE> 136
Attention:
with a copy to:
Address:___________________
Telecopier No.:
Telephone No.:
Attention:
This Agreement may be executed by the Assignor and Assignee in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute one and the
same agreement.
Loan Commitment [ASSIGNOR]
(as adjusted)
US$_______________
By:_____________________
Name:
Title:
Outstanding Term Loans
(as adjusted)
US$_______________________to MLP
US$_______________________to Operating Partnership
US$_______________________to Services Partnership
Participation Percentage
(as adjusted)
__________________________
Loan Commitment [ASSIGNEE]
(as adjusted)
US$_______________________
By:_____________________
Outstanding Term Loans Name:
(as adjusted) Title:
US$_______________________to MLP
US$_______________________to Operating Partnership
US$_______________________to Services Partnership
Participation Percentage
(as adjusted)
__________________________
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<PAGE> 137
(Signatures continued on the following page)
ACCEPTED AND ACKNOWLEDGED
this___day of___________________,
199____.
BANK OF MONTREAL,
as Agent
By:____________________________
Title:
-4-
<PAGE> 1
1996 FORM 10-K
EXHIBIT 10.16
FIRST AMENDMENT TO
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (as the same may be amended, modified, or supplemented from time to
time, this "Amendment") is entered into and effective as of the 6th day of
September, 1996 by and among LAKEHEAD PIPE LINE COMPANY, INC., a Delaware
corporation (the "General Partner"), LAKEHEAD PIPE LINE PARTNERS, L.P., a
Delaware limited partnership (the "MLP"), LAKEHEAD SERVICES LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Services Partnership"),
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Operating Partnership," and, together with the MLP and the
Services Partnership, collectively the "Borrowers"); BANK OF MONTREAL, a
Canadian chartered bank, THE TORONTO-DOMINION BANK, a Canadian chartered
bank, CANADIAN IMPERIAL BANK OF COMMERCE, a Canadian chartered bank, ABN AMRO
BANK, N.V., CAYMAN ISLANDS BRANCH; and said BANK OF MONTREAL as Agent for the
Banks.
WITNESETH:
WHEREAS, the General Partner, the Borrowers, the Banks, the Agent, and
the Collateral Agent have entered into that certain Amended and Restated
Credit Agreement dated as of September 6, 1996 (as the same may be amended,
modified, or supplemented from time to time, the "Credit Agreement"); and
WHEREAS, the Credit Agreement has been executed by the parties thereto
in amendment and restatement of the Existing Credit Agreement; and
<PAGE> 2
WHEREAS, the Existing Credit Agreement provides for "Revolving Loans"
(as defined in the Existing Credit Agreement), and for the conversion of such
Revolving Loans to term loans; and
WHEREAS, the Credit Agreement provides for, inter alia, the continuance
of such revolving facility and Revolving Loans; and
WHEREAS, the General Partner, the Borrowers, the Banks, and the Agent
have agreed, and hereby agree, to amend the Credit Agreement to the extent
necessary to provide for the conversion of one or more Loans into one or more
term loans (each a "Term Loan," and collectively, the "Term Loans") such that
the credit facility under the Credit Agreement shall, during the term of this
Amendment, provide for a revolving credit and term loan facility as does the
Existing Credit Agreement.
NOW, THEREFORE, the General Partner, the Borrowers, the Banks, and the
Agent hereby agree as follows:
1. Capitalized terms used herein (including in the recitals
hereinabove) and not otherwise defined herein shall have the meanings
respectively assigned to such terms in the Credit Agreement.
2. In accordance with Section 2.01 of the Credit Agreement, the Agent
has the right to forward to the Borrowers a Notice of Non-Continuation
specifying a Potential Loan Maturity Date, and the Borrowers have the right to
replace any Electing Banks. In the event that after receipt of a Notice of
Non-Continuation, the Agent and each Electing Bank do not, prior to the
Applicable Anniversary Date, receive a Notice of Replacement as contemplated by
said Section 2.01 of the Credit Agreement, then, notwithstanding anything
contained in said Section 2.01 of the Credit Agreement or elsewhere to the
contrary, all Loans then outstanding shall, without any further action of any
kind, be automatically converted to Term Loans to the respective Borrower or
Borrowers of
2
<PAGE> 3
such Loans on such Applicable Anniversary Date upon the receipt of a
certificate from each such Borrower certifying that as of such date of
conversion (a) No Event of Default has occurred and is continuing, (ii) the
representation and warranty contained in Section 5.04 of the Credit Agreement
is true and correct, and (c) with respect to any Term Loan to be secured by
Qualifying Securities, the value of the Qualifying Securities in which the
Collateral Agent will have a first perfected security interest
contemporaneously with the conversion of such Loan or Loans to a Term Loan or
Term Loans shall be no less than the Required Collateral Amount for each such
Term Loan.
3. Additionally, each Borrower shall have the option, on any one
or more Business Day(s) to convert all or a portion equal to not less than
$25,000,000 of the outstanding principal amount of the Loans to a Term Loan or
Term Loans by such Borrower's providing the Agent (a) (i) at least two
Business Days' prior notice in the case of a conversion to Term Loans bearing
interest at the LIBOR Rate or the CD Rate, or (ii) notice on the same day,
in the case of a conversion to Prime Rate Loans and (b) a certificate from
such Borrower certifying that as of such date of conversion (i) No Event of
Default has occurred and is continuing, (ii) the representation and warranty
contained in Section 5.04 of the Credit Agreement is true and correct, and
(iii) with respect to any Term Loan to be secured by Qualifying Securities,
the value of the Qualifying Securities in which the Collateral Agent will have
a first perfected security interest contemporaneously with the conversion of
such Loan or Loans to a Term Loan or Term Loans shall be no less than the
Required Collateral Amount for each such Term Loan.
4. It is expressly agreed and understood that the Total Loan
Commitment shall not be reduced by the principal amount of the Loan or Loans
converted to a Term Loan or Term Loans pursuant to this Amendment.
5. The Term Loans shall be evidenced by the Existing Notes, shall
be deemed to be "Loans" under and governed by the Credit Agreement as amended
hereby, and shall constitute Funded Debt, the principal of which is payable
quarterly pursuant to Paragraph 7 hereof.
3
<PAGE> 4
6. Accrued interest on the Term Loans shall be due and payable
thereon, without duplication, on each of the following dates: (a) on the
maturity thereof; (b) on the date of any payment or prepayment, in whole or in
part, of the principal thereof; and (c) on each "Interest Payment Date"
(hereinafter defined). For purposes hereof, the terms "Interest Payment Date"
and "Interest Period" shall have the meanings, respectively, assigned to them
in the Credit Agreement, except that references therein to CD Rate Loan, LIBOR
Rate Loan and Prime Rate Loan shall be deemed to be references to Term Loans
bearing interest at the CD Rate, LIBOR Rate and Prime Rate, respectively.
7. Mandatory prepayments of the principal amount of each Term Loan
shall be due and payable in respect of such Term Loan in equal quarterly
installments on the last day of each calendar quarter during the "Term"
(hereinafter defined) of such Term Loan, commencing on the last day of the
first quarter (or part thereof) during the Term applicable to each such Term
Loan. "Term" shall mean, as to each Term Loan, that period beginning on the
date of conversion to such Term Loan pursuant to Paragraphs 2 or 3 of this
Amendment and ending (a) if on the date of conversion to a Term Loan, the Loan
Maturity Date has not been established pursuant to the Credit Agreement, on the
first Potential Loan Maturity Date which, pursuant to Section 2.01 of the
Credit Agreement, could be, as of such date of determination, specified by the
Agent to the Borrowers in a Notice of Non-Continuation or (b) if on the date of
such conversion, the Loan Maturity Date has been so established, the Loan
Maturity Date. The foregoing notwithstanding, to the extent the Borrowers
convert any one or more of the Term Loans to Loans in accordance with Paragraph
8 hereinbelow, such Loans shall thereafter be subject to repayment in
accordance with the Note or Notes evidencing the same.
8. Each Borrower shall have the right at any time prior to the
termination of this Amendment to convert the outstanding principal amount of
any Term Loan owing by such Borrower to a Loan or Loans (which Loans will be
governed by the Credit Agreement) by such Borrower's (i) providing the Agent
(a) at least two Business Days' prior notice in the case of a conversion to
Loans bearing interest at the LIBOR Rate or the CD Rate, or (b) notice on the
same
4
<PAGE> 5
day, in the case of a conversion to Prime Rate Loans, in the form of
Exhibit "C" to the Credit Agreement.
9. Each Borrower shall have the right, at any time and from
time to time, at its option, to prepay any Term Loan in whole or in part
from time to time, without premium or penalty (except for breakage costs
to the extent set forth in Section 3.04(c) of the Credit Agreement). Any
such optional prepayments shall be applied to principal installments in
their inverse order of maturity and any payment or prepayment on any Term
Loan shall reduce (a) the Total Loan Commitment by the amount of such
payment or prepayment and (b) each Bank's Loan Commitment by an amount
equal to such Bank's Participation Percentage multiplied by the amount of
such payment or prepayment. Amounts so paid or prepaid may not be
reborrowed. In connection with the foregoing, the parties hereto
acknowledge that a conversion of Term Loans to Loans shall not constitute
a prepayment or payment thereof but rather a continuation thereof as a
Loan or Loans.
10. The parties hereto hereby agree that any automatic reduction
in the Total Loan Commitment pursuant to Section 7.05 of the Credit
Agreement shall be without duplication of any reduction in the Total Loan
Commitment as a result of any repayments of Loans under the Credit
Agreement.
11. Interest shall cease to accrue on all amounts prepaid,
whether pursuant to Paragraphs 7 or 9 hereof.
12. All principal prepayments (whether pursuant to Paragraphs 7
or 9 hereof) of the Term Loans shall be applied pro rata to the Term Loans
owing by such Borrower to all Banks.
13. At no time shall the principal amount of the Term Loans and
the Loans then outstanding exceed, in the aggregate, the amount of the
Total Loan Commitment as such Total Loan Commitment may be reduced
pursuant to the terms hereof and of the Credit Agreement.
5
<PAGE> 6
14. In connection with this Amendment, the parties hereto
acknowledge and agree that the Loans and the Term Loans, while representing,
respectively, revolving loans and term loans, evidence but one and the same
indebtedness advanced by the Banks to the Borrowers pursuant to the Existing
Credit Agreement and continued pursuant to the Credit Agreement. In
connection with the foregoing, the parties hereto expressly acknowledge and
agree that notwithstanding anything contained herein or elsewhere to the
contrary or seemingly to the contrary, neither the conversion of any one or
more Loans into one or more Term Loans nor the conversion of one or more Term
Loans into Loans pursuant to this Amendment shall constitute repayment of the
indebtedness evidenced thereby.
15. This Amendment is an instrument furnished in connection with
the transactions contemplated by the Credit Agreement. Each of the General
Partner and each of the Borrowers severally represents and warrants, each for
itself and not otherwise, that as of the date hereof, each of the
representations and warranties set forth in Article V of the Credit Agreement
is true and correct.
16. This Amendment shall terminate and be of no further force and
effect (a) upon the termination of the Credit Agreement, or (b) if earlier,
upon written notice by the Borrowers to the Agent; it being expressly agreed
and understood that termination of this Amendment pursuant to foregoing
clause (b) shall in not, in any way, affect the term or effectiveness, or
constitute a termination, of the Credit Agreement. Any reduction in the
Total Loan Commitment pursuant to the terms of this Amendment shall continue
in effect notwithstanding termination of this Amendment.
17. The Credit Agreement, as amended hereby, shall continue in
full force and effect. The Credit Agreement and this Amendment, during its
term, shall be read, taken, and construed as one and the same instrument.
6
<PAGE> 7
18. This Amendment may be signed in any number of
counterparts, and by different parties on separate counterparts, each of
which shall be construed as an original, but all of which taken together
shall constitute but one and the same instrument. This Amendment shall be
effective as of the date hereof when counterparts hereof executed by each
of the parties hereto shall have been delivered to the Agent.
19. The parties hereto agree and intend that this Amendment
shall be governed by, and construed in accordance with, the law of the
State of New York.
20. This Amendment, the Credit Agreement and the other Loan
Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties.
7
<PAGE> 8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective officer or officers thereunto
duly authorized.
LAKEHEAD PIPE LINE COMPANY, INC.
By: Paul W. Norgren
----------------------------
Name: Paul W. Norgren
----------------------
Title: Secretary
---------------------
By: S. Q. DeVinck
----------------------------
Name: S. Q. DeVinck
----------------------
Title: Chief Accountant
---------------------
LAKEHEAD PIPE LINE PARTNERS, L.P.
By: Lakehead Pipe Line Company, Inc.,
General Partner
By: Paul W. Norgren
----------------------------
Name: Paul W. Norgren
----------------------
Title: Secretary
---------------------
By: S. Q. DeVinck
----------------------------
Name: S. Q. DeVinck
----------------------
Title: Chief Accountant
---------------------
S-1
<PAGE> 9
LAKEHEAD SERVICES,
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Partners, L.P., a
Delaware Limited Partnership
By: Lakehead Pipe Line Company, Inc.,
General Partner
By: Paul W. Norgren
----------------------------
Name: Paul W. Norgren
----------------------
Title: Secretary
---------------------
By: S. Q. DeVinck
----------------------------
Name: S. Q. DeVinck
----------------------
Title: Chief Accountant
---------------------
LAKEHEAD PIPE LINE COMPANY
LIMITED PARTNERSHIP
By: Lakehead Pipe Line Company, Inc.,
General Partner
By: Paul W. Norgren
------------------------------
Name: Paul W. Norgren
------------------------
Title: Secretary
-----------------------
By: S. Q. DeVinck
------------------------------
Name: S. Q. DeVinck
------------------------
Title: Chief Accountant
-----------------------
S-2
<PAGE> 10
BANK OF MONTREAL, a Canadian-chartered
bank in its individual capacity as a Bank and as
Agent
By; J. Michael Linton
------------------------------
Name: J. Michael Linton
----------------------------
Title: Director
--------------------------
THE TORONTO-DOMINION BANK, a Canadian
chartered bank
By:
-----------------------------
Name:
----------------------------
Title:
--------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
a Canadian chartered bank
By:
-----------------------------
Name:
----------------------------
Title:
--------------------------
ABN AMRO BANK, N.V., CAYMAN ISLANDS
BRANCH
By:
-----------------------------
Name:
----------------------------
Title:
--------------------------
S-3
<PAGE> 11
BANK OF MONTREAL, a Canadian-chartered
bank in its individual cacity as a Bank and as
Agent
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
THE TORONTO-DOMINION BANK, a Canadian
chartered bank
By: Neva Nesbitt
-----------------------------
Name: NEVA NESBITT
---------------------------
Title: MGR. CR ADMIN.
--------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
a Canadian chartered bank
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
ABN AMRO BANK, N.V., CAYMAN ISLANDS
BRANCH
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
S-3
<PAGE> 12
BANK OF MONTREAL, a Canadian-chartered
bank in its individual capacity as a Bank and as
Agent
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
THE TORONTO-DOMINION BANK, a Canadian
chartered bank
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
a Canadian chartered bank
By: Gary C. Gaskill M A.G. Corkum
------------------------------------------
Name: GARY C. GASKILL M.A.G. Corkum
-----------------------------------------
Title:AUTHORIZED SIGNATORY AUTHORIZED SIGNATORY
-----------------------------------------
ABN AMRO BANK, N.V., a [Netherlands] bank
By:
-------------------------------------------
Name:
----------------------------------------
Title:
----------------------------------------
S-3
<PAGE> 13
BANK OF MONTREAL, a Canadian-chartered
bank in its individual capacity as a Bank and as
Agent
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
THE TORONTO-DOMINION BANK, a Canadian
chartered bank
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
a Canadian chartered bank
By:
-----------------------------
Name:
--------------------------
Title:
--------------------------
ABN AMRO BANK, N.V., CAYMAN ISLANDS
BRANCH
By: P.K. Chan
-----------------------------
Name: P.K. CHAN
---------------------------
Title: VICE PRESIDENT, CREDIT
--------------------------
S-3
<PAGE> 1
1996 FORM 10-K
EXHIBIT 10.17
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Lakehead Pipe Line Company, ) Docket Nos. IS92-27-000,
Limited Partnership ) IS93-4-000, IS93-33-000,
) IS94-20-000, IS94-24-000,
) IS95-5-000, IS95-26-000,
) IS95-27-000, and
) IS96-15-000
SETTLEMENT AGREEMENT
This Settlement Agreement is executed as of this 28th day of
August, 1996, between Lakehead Pipe Line Company, Limited Partnership
("Lakehead"), on the one hand, and the Canadian Association of Petroleum
Producers ("CAPP") and the Alberta Department of Energy ("ADOE")
(collectively "CAPP/ADOE"), on the other, each of which is a party to
various rate proceedings before the Federal Energy Regulatory Commission
("FERC" or "Commission") regarding Lakehead's interstate tariff rates, as
well as judicial review proceedings relating thereto (the "Lakehead
Proceedings"). In consideration of the provisions set forth in this
Settlement Agreement, Lakehead and CAPP/ADOE (collectively the "Settling
Parties") agree as follows:
<PAGE> 2
1. Following the execution of this Settlement Agreement, the
Settling Parties will jointly submit it to the FERC for approval as an offer of
settlement under 18 C.F.R. Section 385.602 (1995). The Settling Parties shall
cooperate fully, each at its own expense, in seeking and supporting such
approval, including the opposition, whether written or otherwise, of all
protests, interventions and comments that seek modification or rejection of the
Settlement Agreement. Lakehead will prepare the offer of settlement
documentation, including the Explanatory Statement, for submission to the FERC,
subject to approval by CAPP/ADOE. The Settling Parties agree to request and
support a stay of all aspects of the Lakehead Proceedings pending disposition
of this Settlement Agreement.
2. The Settling Parties intend this Settlement Agreement to be an
integrated package, no part of which is segregable from the whole. Each side
has made compromises on various positions in order to reach a voluntary,
negotiated resolution of the Lakehead Proceedings. Accordingly, as provided in
paragraph 15 below, this Settlement Agreement shall be deemed withdrawn, and
shall no longer be of any force or effect, in the event the Commission or a
reviewing court orders a modification of its terms.
- 2 -
<PAGE> 3
3. This Settlement Agreement is intended to resolve all
outstanding rate issues in all pending phases of the Lakehead Proceedings.
The FERC Dockets that are resolved by this Settlement Agreement, and that
will be terminated upon approval of this Settlement Agreement, are listed in
Appendix A hereto. In addition, within 20 days after the date on which this
Settlement Agreement has been approved by the FERC in an order that is no
longer subject to judicial review, the Settling Parties shall withdraw their
pending petitions for review at the United States Court of Appeals for the
District of Columbia Circuit in Docket Nos. 96-1177 and 96-1218.
4. The purpose of this Settlement Agreement is to avoid further
administrative and judicial proceedings with respect to Lakehead's interstate
tariff rates. This Settlement Agreement is not intended to be inconsistent
with any orders of the Commission previously entered in this proceeding,
including specifically Opinion No. 397, 71 FERC (CCH) 61,338 (1995) and
Opinion No. 397-A, 75 FERC (CCH) 61,181 (1996). This Settlement
Agreement also is not intended to affect the resolution of any issues
regarding facilities for transportation of natural gas liquids on the
Lakehead system.
5. Except with respect to paragraph 1 above and as otherwise
specified herein, the Effective Date of this Settlement
- 3 -
<PAGE> 4
Agreement shall be the date on which a FERC order is issued approving the
Settlement Agreement without modification.
6. Notwithstanding the Effective Date as specified in paragraph
5 above, no later than September 20, 1996, Lakehead shall file the rates set
forth in the pro forma tariff attached as Appendix B hereto ("Appendix B
rates") to take effect on October 1, 1996 pursuant to 18 C.F.R. Section
341.14 (1995), in place of the rates set forth in Lakehead FERC tariff nos.
18 and 19. The Appendix B rates constitute a rate decrease of approximately
6 percent across-the-board, and are intended to bring Lakehead's
forward-looking rates into compliance with Opinion Nos. 397 and 397-A on a
reasonable, compromise basis. If this Settlement Agreement has not received
FERC approval prior to October 1, 1996, it is the intent of the Settling
Parties that the Appendix B rates shall go into effect subject to
investigation and refund until such time as the Settlement Agreement is
acted upon by the FERC. If and when the FERC approves the Settlement
Agreement, the refund condition on the Appendix B rates will be removed and
any proceeding instituted with respect to those rates will be terminated.
If the Settlement Agreement is disapproved, disposition of the Appendix B
rates will be subject to further order of the Commission. The Appendix B
rates shall be subject to indexing under 18 C.F.R. Section 342.3 (1995)
commencing on July 1,
- 4 -
<PAGE> 5
1997. If and when the Settlement Agreement is approved by the FERC,
CAPP/ADOE agree that they will not thereafter challenge the Appendix B
rates, including any increases or decreases to those rates permitted under
the Commission's indexing regulations, 18 C.F.R. Section 342.3 (1995), in
any judicial or administrative forum during the Term of this Agreement as
defined in paragraph 12 below. If the Settlement Agreement is not approved
without modification, the Settling Parties shall retain all their rights
with respect to the Lakehead Proceedings.
7. The Settling Parties agree that Lakehead shall fulfill its
obligation to provide a remedy for the past rates found not to be just and
reasonable in Opinion Nos. 397 and 397-A by providing total monetary relief
of $120 million measured as of October 1, 1996. This relief shall be
provided in two components: (1) a Refund Component of $37,144,124 for Phase
I of Docket Nos. IS92-27-000, IS93-3-000 and IS93-33-000, which is
addressed in paragraph 8 below, and (2) a Surcredit Component of
$82,855,876 for Phase II and subsequent rate periods, which is addressed in
paragraph 9 below.
8. No later than 30 days after the Effective Date defined in
paragraph 5 above, Lakehead shall pay the sum of $37,144,l24 (measured as
of October 1, 1996) to its shippers of record under FERC tariff no. 2,
which shall fulfill Lakehead's
- 5 -
<PAGE> 6
refund obligation in Phase I of FERC Docket Nos. IS92-27-000, IS93-4-000 and
IS93-33-000. Interest shall accrue on the Phase I refund amount of
$37,144,124 from October 1, 1996 through the date of payment of the refunds
provided for in this paragraph at the 90-day Treasury bill rate measured for
each quarter at the close of business on the last day of the previous
quarter. The amount to be refunded for the period May 3, 1992 through
December 31, 1992 is based upon an agreed-upon test period cost-of-service of
$214,830,000, and the amount to be refunded for the period January 1, 1993
through July 5, 1993 is based upon an agreed-upon test period cost-of-service
of $219,090,000. The amount to be refunded to each shipper shall be
calculated by comparing the rate actually paid to the rate applicable to each
service at the agreed-upon cost-of-service level using Lakehead's existing
rate design and shall reflect the Commission's ruling in Opinion Nos. 397 and
397-A regarding rate floors. Within 30 days after the date of payment of the
Refund Component, Lakehead shall file a refund report with the Commission
showing the amounts refunded pursuant to this provision. In the event the
FERC's initial approval of the Settlement Agreement is overturned or modified
through further administrative or judicial proceedings after the date of
payment of the refunds as provided hereunder, such that the Lakehead
Proceedings are reinstituted, Lakehead
- 6 -
<PAGE> 7
shall be entitled to credit any refunds paid under this Settlement Agreement
against any refund obligation ultimately determined to apply in that
litigation.
9. Within 20 days after the Effective Date as defined in
paragraph 5 above, Lakehead shall file a tariff provision in the form set
forth in Appendix C hereto establishing a Surcredit over a period of
approximately three years. The Surcredit shall consist of a 10 percent
across-the-board reduction in Lakehead's interstate tariff rates that shall
remain in effect until the purpose of the Surcredit is accomplished. The
purpose of the Surcredit shall be to reduce Lakehead's tariff revenues by the
sum of $82,855,876 plus interest on the outstanding balance for the period
from October 1, 1996 through the termination of the Surcredit (the total
amount, including interest, being referred to as the Surcredit Amount). Once
the Surcredit Amount has been exhausted, the Surcredit tariff provision may
be cancelled by Lakehead pursuant to paragraph 10 below. The interest
component of the Surcredit Amount shall be calculated monthly on the
outstanding balance of the Surcredit Amount using the 90-day Treasury bill
rate measured for each quarter at the close of business on the last day of
the previous quarter.
- 7 -
<PAGE> 8
10. Lakehead shall keep account of the cumulative amount of tariff
reductions pursuant to the Surcredit provided under paragraph 9 above. When
the total amount of tariff reductions received is expected to equal the
Surcredit Amount (including interest) within 30 days, Lakehead shall file a
cancellation of the Surcredit tariff provision, together with a report
showing the total amount accumulated, or expected to be accumulated within
30 days, under the Surcredit. The cancellation of the Surcredit tariff
provision shall be effective upon 30 days' notice. Lakehead shall have no
further obligation to make the Surcredit available after it has provided
Surcredit tariff reductions equal to $82,855,876 as of October 1, 1996, plus
interest calculated as set forth in paragraph 9. CAPP/ADOE agree that, if
and when the Commission approves this Settlement Agreement, they will not
challenge the Surcredit or the cancellation of the Surcredit, provided such
cancellation conforms to the terms of this Settlement Agreement, in any
administrative or judicial forum.
11. In the case of the joint tariff between Lakehead and Portal
Pipe Line Company ("Portal") filed to be effective September 1, 1996 (FERC
Tariff No. 94), which sets forth joint rates for transportation via Portal
and Lakehead from the Canada-U.S. Border to various Lakehead destinations,
Lakehead
- 8 -
<PAGE> 9
will, within 20 days after the Effective Date as defined in paragraph 5
above, file a tariff reduction applicable to FERC Tariff No. 94. That
reduction will lower each joint rate by an amount at least equal to the
difference between (a) Lakehead's current local tariff rate for Lakehead's
portion of the joint movement and (b) the Appendix B local rate as reduced
by the Surcredit. For the duration of the Surcredit, Lakehead's share of
the Portal-Lakehead joint rates will be no greater than 90 percent of the
Appendix B local rates for corresponding local movements, as adjusted
pursuant to paragraphs 6 and 13. The Settling Parties accordingly agree
that Lakehead shall be entitled to credit 10 percent of the Appendix B local
rate otherwise applicable to each such movement against its Surcredit
obligation.
In the event Lakehead enters into additional joint rates in the
future, the Settling Parties agree to negotiate regarding the extent to
which (if at all) any portion of the reduction in Lakehead's share of such
joint rates below the corresponding Appendix B rates should be credited
against Lakehead's Surcredit obligation.
12. The Term of this Settlement Agreement shall be for five years
commencing on the Effective Date.
- 9 -
<PAGE> 10
13. During the Term of this Settlement Agreement, Lakehead may,
at its discretion, seek to file tariffs containing rates in excess of those
set forth in Appendix B as adjusted pursuant to the Commission's index
methodology. CAPP and the ADOE are free to pursue challenges to any such
rate filings in excess of the indexed Appendix B rates, except as follows:
A. CAPP and the ADOE agree not to challenge Lakehead's filing
of an incremental surcharge over and above the indexed Appendix B rates to
recover the costs of a significant enhancement to the Lakehead system
agreed to by CAPP, including the System Expansion Program II ("SEP II")
project anticipated in 1998, provided that the incremental surcharge
conforms to the terms set forth in Appendix D hereto, which were previously
agreed to between CAPP, Lakehead and the Canadian pipeline to which
Lakehead connects, Interprovincial Pipe Line Inc. ("IPL"), and provided
further that, in calculating the surcharge, Lakehead shall utilize a tax
allowance that is equal to 30 percent of the tax allowance that would apply
if Lakehead were a corporation; and
B. CAPP and the ADOE agree not to challenge Lakehead's filing
of an incremental surcharge over and above the indexed Appendix B rates,
solely to recover non-routine cost increases limited specifically to the
events set forth in
- 10 -
<PAGE> 11
sections 7.1(d) and 7.1(e) of the Incentive Toll Settlement Agreement Between
IPL and CAPP dated February 16, 1995, which are attached as Appendix E hereto,
to the extent events of the type described involve Lakehead.
14. Lakehead agrees that it will file with the FERC, as soon as
possible but in no event later than October 1, 1996, a depreciation study
incorporating a new truncation date of 2020 A.D. and corresponding revised
depreciation rates for Lakehead's assets. CAPP and the ADOE agree that they
will support Commission approval of Lakehead's revised depreciation rates.
CAPP and the ADOE further agree that the depreciation rates to be used in
calculating the incremental surcharge for the SEP II expansion costs
anticipated to be incurred in 1998 shall be determined using the same curves
and economic useful lives as in the depreciation study to be filed under this
paragraph.
15. If the FERC rejects this Settlement Agreement in its entirety,
or if FERC or a reviewing court makes approval of this Settlement Agreement
contingent upon modification of any provision of this Agreement, this
Settlement Agreement shall immediately terminate and shall be deemed withdrawn
as an offer of settlement or for any other purpose, and the Settling Parties
shall be free to pursue all appeals or other courses of action necessary to
protect their rights.
-11
<PAGE> 12
16. This Settlement Agreement is intended to supersede the
Settlement Agreement filed with the Commission by Lakehead and CAPP and the
ADOE on March 23, 1995 in Phase II of the Lakehead Proceedings ("March 23
Settlement"). If and when the present Settlement Agreement is approved by the
FERC without modification, the March 23 Settlement shall be deemed withdrawn
and shall no longer have any force or effect.
17. Unless and until this Settlement Agreement is approved by the FERC
without modification in an order that is final and no longer subject to
judicial review, it shall be privileged and shall not be admissible in evidence
or in any way described or discussed in any proceeding, other than as necessary
to secure approval by the FERC or to permit judicial review of any order of
FERC approving, disapproving or modifying the Settlement Agreement. Approval
of this Settlement Agreement by the FERC does not constitute approval of, or
precedent regarding, any principle or issue settled herein.
18. The language of this Settlement Agreement shall, in all cases, be
construed according to its fair meaning and not strictly for or against any of
the Settling Parties. This Settlement Agreement may be modified, amended or
supplemented only by a written instrument executed by the Settling Parties.
- 12 -
<PAGE> 13
No obligation under this Settlement Agreement shall be for the benefit of or
be enforceable by any third party.
19. This Settlement Agreement shall be governed by, and construed
in accordance with, federal law to the extent applicable and otherwise by the
laws of the State of Minnesota. It is the intent of the Settling Parties that
the terms of this Settlement Agreement, once approved by the FERC without
modification, shall be enforceable by the FERC.
20. All notices under this Settlement Agreement shall be effective
when deposited in the mails, postage prepaid, certified mail, return receipt
requested, or when dispatched by Federal Express or by telefacsimile, addressed
to the respective Settling Parties at the addresses set forth below:
R. C. Sandahl
Vice President, Operations
Lakehead Pipe Line Company, Inc.
21 West Superior Street
Duluth, MN 55802-2067
Mark Pinney
Manager, Markets & Transportation
Canadian Association of Petroleum Producers
2100, 350 Seventh Avenue, S.W.
Calgary, Alberta T2P 3N9
Canada
- 13 -
<PAGE> 14
Paul Kahler
Senior Regulatory Analyst
Markets and Regulatory Policy
The Alberta Department of Energy
1900, 250 Sixth Avenue, S.W.
Calgary, Alberta T2P 3H7
Canada
A Settling Party may, at any time, substitute in writing a different person or
address for the one shown in this paragraph.
21. This Settlement Agreement may be executed in separate and
identical counterparts.
WHEREFORE, the foregoing Settlement Agreement is executed on behalf
of the Settling Parties by their duly authorized representatives on the date
indicated below.
Lee A. Alexander Steven Reed
-------------------- ----------------
Lee A. Alexander Steven Reed
DICKSTEIN SHAPIRO MORIN STEPTOE & JOHNSON LLP
& OSHINSKY LLP 1330 Connecticut Avenue, NW
2101 L Street, NW Washington, DC 20036-1795
Washington, D.C. 20036-1526
Counsel for Lakehead Pipe Line
Counsel for Canadian Association Company, Limited Partnership
of Petroleum Producers and the
Alberta Department of Energy
Dated: August 28, 1996
- 14 -
<PAGE> 15
APPENDIX A
Below is a list of the FERC Docket Numbers associated with Lakehead's
rate prodeedings.
IS92-27-000
IS93-4-000
IS93-33-000
IS-94-20-000
IS94-24-000
IS95-5-000
IS95-26-000
IS95-27-000
IS96-15-000
<PAGE> 16
APPENDIX B
Attached is a proforma FERC No. 20 tariff filing reflecting the rates
agreed to in the Settlement Agreement.
<PAGE> 17
FERC No. 20
DRAFT Cancels FERC No. 18 & 19
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
LOCAL TARIFF APPLYING ON CRUDE PETROLEUM AND NATURAL GAS LIQUIDS
FROM
THE INTERNATIONAL BOUNDARIES NEAR NECHE, NORTH DAKOTA, AND
GRAND ISLAND, NEW YORK, AND POINTS IN THE STATES
OF ILLINOIS, INDIANA, MICHIGAN, AND MINNESOTA
TO
POINTS IN THE STATES OF ILLINOIS, INDIANA, MICHIGAN, MINNESOTA,
NEW YORK, WISCONSIN AND
THE INTERNATIONAL BOUNDARY NEAR MARYSVILLE, MICHIGAN
The rates listed in this tariff are for the transportation of Crude
Petroleum and Natural Gas Liquids by the Carrier. The transportation
rates listed in this tariff are subject to the Rules and Regulations
published in the Carrier's Tariffs FERC Nos. 16 and 17, supplements
thereto and reissues thereof.
The provisions published herein will, if effective, not result in an
effect on the quality of the human environment.
ISSUED EFFECTIVE
ISSUED BY
P.D. DANIEL
President and Chief Operating Officer
Lakehead Pipe Line Company, Inc.
General Partner
21 West Superior Street
Duluth, Minnesota 55802-2067
Tel. (218) 725-0100
<PAGE> 18
PAGE TWO DRAFT
FERC No.20
The rates listed in this tariff are payable in United States currency and are
applicable on the United States movement of Crude Petroleum and Natural Gas
Liquids tendered to the Carrier at established receiving points in the United
States for delivery to established delivery points in the United States.
TRANSPORTATION RATES
Commodities shall be classified on the basis of the density and
viscosity of such commodities at the earlier time of receipt by the Carrier or
Interprovincial Pipe Line Inc. and assessed a transportation rate as listed in
the transportation rate tables below. Density shall be based on 15 degrees
Celsius. Viscosity shall be based on the lower of the temperature of the
commodity at the time of receipt or the Carrier's reference line temperature at
the time of receipt. Where the density of a commodity falls within the
density range of one commodity classification and the viscosity of the
commodity falls within the viscosity range of another commodity classification,
then the commodity shall be deemed to be in the commodity classification with
the higher transportation rate.
NGL - A commodity having a maximum absolute vapor pressure of 1 100 kilopascals
at 37.8 degrees C and a density of up to but not including 600 kilograms
per cubic metre (kg/m(3)) and a viscosity of up to but not including 0.4 square
millimetres per second (mm(2)/s) will be classified as Natural Gas Liquids.
LIGHT CRUDE PETROLEUM - A commodity having a density from 600 kg/m3 up to but
not including 876 kg/m(3) and a viscosity from 0.4 mm(2)/s up to but not
including 20 mm(2)/s will be classified as Light Crude Petroleum.
MEDIUM CRUDE PETROLEUM - A commodity having a density from 876 kg/m(3) up to but
not including 904 kg/m(3) and a viscosity from 20 mm(2)/s up to but not
including 100 mm(2)/s will be classified as MEDIUM CRUDE PETROLEUM.
HEAVY CRUDE PETROLEUM - A commodity having a density from 904 kg/m(3) to 927
kg/m(3) inclusive and a viscosity from 100 to 250 mm(2)/s will be classified as
HEAVY CRUDE PETROLEUM.
NATURAL GAS LIQUIDS
TABLE OF TRANSPORTATION RATES FOR NGL IN DOLLARS PER CUBIC METRE
<TABLE>
<CAPTION>
FROM
TO International Boundary near Neche, North Dakota
<S> <C>
Superior, Wisconsin (c) 1.491 [D]
Rapid River, Michigan (i) 2.457 [U]
Marysville, Michigan (c), (g) 3.576 [D]
International Boundary near Marysville, Michigan (g) 3.410 [D]
</TABLE>
<PAGE> 19
ALL RATES ON THIS PAGE ARE DECREASES.
PAGE THREE
FERC No. 20
LIGHT CRUDE PETROLEUM
<TABLE>
<CAPTION>
TABLE OF TRANSPORTATION RATES FOR LIGHT CRUDE PETROLEUM IN DOLLARS PER CUBIC METRE
- ------------------------------------------------------------------------------------------------------------------------------------
TO FROM
- ------------------------------------------------------------------------------------------------------------------------------------
International
Boundary
near Neche, Clearbrook, Mokena, Griffith,
North Dakota Minnesota(a),(b) Illinois(b) Indiana(b),(h)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Clearbrook, Minnesota (c) 0.908 - - -
Superior, Wisconsin (c),(d) 1.704 1.545 - -
Lockport & Mokena, Illinois (c) 3.348 3.188 - -
Griffith, Indiana (c),(e) 3.348 3.188 0.757 0.656
Bay City, Michigan (c) 3.620 3.461 - -
Stockbridge, Michigan (c) 3.986 3.825 1.346 1.346
Marysville, Michigan (c) 3.986 3.825 1.707 1.707
International Boundary near Marysville,
Michigan 3.820 3.660 1.553 1.553
West Seneca, New York (c) 4.078 3.919 1.811 1.811
<CAPTION>
TABLE OF TRANSPORTATION RATES FOR LIGHT CRUDE PETROLEUM IN DOLLARS PER CUBIC METRE
- ------------------------------------------------------------------------------------------------------------------------------------
TO FROM
- ------------------------------------------------------------------------------------------------------------------------------------
International
Boundary near
Stockbridge, Lewiston, Grand Island,
Michigan(b) Michigan(b),(f) New York
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Clearbrook, Minnesota (c) - - -
Superior, Wisconsin (c),(d) - - -
Lockport & Mokena, Illinois (c) - - -
Griffith, Indiana (c),(e) - - -
Bay City, Michigan (c) - .967 -
Stockbridge, Michigan (c) - - -
Marysville, Michigan (c) 1.018 1.302 -
International Boundary near Marysville,
Michigan 0.863 1.147 -
West Seneca, New York (c) 1.122 1.400 0.498
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
MEDIUM CRUDE PETROLEUM
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
TABLE OF TRANSPORTATION RATES FOR MEDIUM CRUDE PETROLEUM IN DOLLARS PER CUBIC METRE
- ------------------------------------------------------------------------------------------------------------------------------------
TO FROM
- ------------------------------------------------------------------------------------------------------------------------------------
International
Boundary
near Neche, Clearbrook, Mokena, Griffith,
North Dakota Minnesota(a),(b) Illinois(b) Indiana(b),(h)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Clearbrook, Minnesota (c) 948 - - -
Superior, Wisconsin (c),(d) 1.801 1.601 - -
Lockport & Mokena, Illinois (c) 3.583 3.383 - -
Griffith, Indiana (c),(e) 3.583 3.383 0.765 0.656
Bay City, Michigan (c) 3.878 3.678 - -
Stockbridge, Michigan (c) 4.272 4.071 1.401 1.401
Marysville, Michigan (c) 4.272 4.071 1.791 1.791
International Boundary near Marysville,
Michigan 4.107 3.906 1.637 1.637
West Seneca, New York (c) 4.372 4.172 1.904 1.904
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
TABLE OF TRANSPORTATION RATES FOR MEDIUM CRUDE PETROLEUM IN DOLLARS PER CUBIC METRE
- ------------------------------------------------------------------------------------------------------------------------------------
TO FROM
- ------------------------------------------------------------------------------------------------------------------------------------
International
Boundary near
Stockbridge, Lewiston, Grand Island,
Michigan(b) Michigan(b),(f) New York
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Clearbrook, Minnesota (c) - - -
Superior, Wisconsin (c),(d) - - -
Lockport & Mokena, Illinois (c) - - -
Griffith, Indiana (c),(e) - - -
Bay City, Michigan (c) - .993 -
Stockbridge, Michigan (c) - - -
Marysville, Michigan (c) 1.047 1.354 -
International Boundary near Marysville,
Michigan 0.894 1.199 -
West Seneca, New York (c) 1.159 1.460 0.505
</TABLE>
<PAGE> 20
ALL RATES ON THIS PAGE ARE DECREASES.
PAGE FOUR
FERC No. 20
HEAVY CRUDE PETROLEUM
TABLE OF TRANSPORTATION RATES FOR HEAVY CRUDE PETROLEUM IN DOLLARS PER CUBIC
METRE
<TABLE>
<CAPTION>
TO FROM
International Clearbrook, Mokena, Griffith,
Boundary near Minnesota Illinois Indiana
Neche, North Dakota (a), (b) (b) (b),(h)
<S> <C> <C> <C> <C>
Clearbrook, Minnesota (c) 1.009 - - -
Superior, Wisconsin (c),(d) 1.945 1.686 - -
Lockport & Mokena, Illinois (c) 3.936 3.677 - -
Griffith, Indiana (c), (e) 3.936 3.677 0.778 0.656
Bay City, Michigan (c) 4.263 4.004 - -
Stockbridge, Michigan (c) 4.702 4.441 1.484 1.484
Marysville, Michigan (c) 4.702 4.441 1.917 1.917
International Boundary near Marysville, Michigan 4.537 4.275 1.765 1.765
West Seneca, New York (c) 4.813 4.553 2.042 2.042
TO FROM
International Boundary
Stockbridge, Lewiston, near
Michigan Michigan Grand Island, New York
(b) (b),(f)
<S> <C> <C> <C>
Clearbrook, Minnesota (c) - - -
Superior, Wisconsin (c),(d) - - -
Lockport & Mokena, Illinois (c) - - -
Griffith, Indiana (c), (e) - - -
Bay City, Michigan (c) - 1.030 -
Stockbridge, Michigan (c) - - -
Marysville, Michigan (c) 1.090 1.431 -
International Boundary near Marysville, Michigan 0.938 1.278 -
West Seneca, New York (c) 1.215 1.550 0.516
(a) RECEIPT TANKAGE-The transportation rates from this receiving point include a receipt tankage charge of $0.091 per cubic metre.
(b) RECEIPT TERMINALLING-The transportation rates from this receiving point include a receipt terminalling charge of $0.251 per
cubic metre.
(c) DELIVERY TERMINALLING-The transportation rates to this delivery point include a delivery terminalling charge of $0.165 per
cubic metre.
(d) DELIVERY TANKAGE- The transportation rates to this delivery point include a delivery tankage charge of $0.091 per cubic metre.
(e) In addition to the transportation rate shown, a delivery tankage charge of $0.091 per cubic metre will be assessed if the
Carrier's delivery tankage at Griffith, Indiana is used by the Shipper.
(f) BREAK-OUT TANKAGE CREDIT-The transportation rates from this receiving point include a break-out tankage credit of 1.992 cents
per hundred cubic metre miles for light crude petroleum, 2.151 cents per hundred cubic metre miles for medium crude petroleum,
and 2.390 cents per hundred cubic metre miles for heavy crude petroleum.
(g) BREAK-OUT TANKAGE CREDIT-The transportation rate to this delivery point includes a break-out tankage credit of 0.541 cents per
hundred cubic metre miles.
(h) In addition to the transportation rate shown, a receipt tankage charge of $0.091 per cubic metre will be assessed if the
Carrier's receipt tankage at Griffith, Indiana is used by the Shipper.
(i) The toll includes a delivery terminalling charge of $0.182 per cubic metre and a break-out tankage credit of 0.594 cents per
hundred cubic metre miles.
[D] - Denotes decrease in rate.
[U] - Denotes unchanged rate.
</TABLE>
<PAGE> 21
APPENDIX C
Attached is a proforma supplement to FERC No. 20 reflecting the 10% surcredit.
<PAGE> 22
SUPPLEMENT
DRAFT Supplement No. 1
to FERC No. 20
LAKEHEAD PIPE LINE COMPANY, LIMITED PARTNERSHIP
LOCAL TARIFF APPLYING ON CRUDE PETROLEUM AND NATURAL GAS LIQUIDS
From
THE INTERNATIONAL BOUNDARIES NEAR NECHE, NORTH DAKOTA, AND
GRAND ISLAND, NEW YORK, AND POINTS IN THE STATES
OF ILLINOIS, INDIANA, MICHIGAN, AND MINNESOTA
to
POINTS IN THE STATES OF ILLINOIS, INDIANA, MICHIGAN, MINNESOTA,
NEW YORK, WISCONSIN AND
THE INTERNATIONAL BOUNDARY NEAR MARYSVILLE, MICHIGAN
Issued under authority of 18 CFR 341.4(a). This supplement is issued pursuant
to F.E.R.C. Order No. approving the settlement agreement between Lakehead Pipe
Line Company, Limited Partnership, on the one hand, and the Canadian
Association of Petroleum Producers and the Alberta Department of Energy on the
other. As provided in F.E.R.C. Order No. , all rates in FERC No. 20,
supplements thereto and reissues thereof are subject to a 10% surcredit
reduction until such time as the total surcredit amount plus interest is
exhausted, at which time the surcredit will be subject to cancellation as
provided in the settlement agreement.
This supplement is issued on days notice under authority of 18 CFR 341.14.
This publication is conditionally accepted subject to refund pending a 30 day
review period.
The provisions published herein will, if effective, not result in an effect on
the quality of the human environment.
ISSUED EFFECTIVE
ISSUED BY
P. D. DANIEL
President and Chief Operating Officer
Lakehead Pipe Line Company, Inc.
General Partner
21 West Superior Street
Duluth, MN 55802-2067
Tel. (218) 725-0100
<PAGE> 23
Schedule of calculating the remaining refund Surcredit
to be Applied to Transportation Revenue Invoices in
Accordance with the Negotiated Settlement with Capp
Assuming Interest
Compounded
Monthly
---------------
Negotiated Settlement Contingent
Rate Refund and Interest
Amount as of October 1, 1996 $ 120,000,000
Less the Payment of Phase I of the Contingent
Rate Refund and Interest Amount on October 1, 1996 ($37,144,124)
--------------
Remaining Balance of the Contingent Rate Refund and
Interest to be Repaid by a Surcredit Over
the Next Three Years $ 82,855,876
Plus Estimated Interest Calculated on the Remaining
Balances of the Rate Refund over the 3 Year Pay Back
Period (See Attached Schedule) $ 7,702,581
--------------
Total Amount of Rate Refund Estimated Interest to
be Paid Over the Next Three Years $ 90,558,457
Divided by the Long Range Plan Planned Case Total
Transportation Revenue Over the Next Three Years
From January 1, 1997 Through December 31, 1999
(See Attached Schedule) $ 899,780,028
-------------
Surcredit as a Percentage of Invoiced Revenue to be
Applied to Each Transportation Revenue Invoice 10%
=============
N:\Fercdec\Repayment Summary of Refund over next three years monthly
compounding
<PAGE> 24
Lakehead Pipe Line Company, Limited Partnership
Example of Calculation of Interest on
Refund Balance Going Forward (Compounded Monthly)
Included as Part of the Settlement Agreement
<TABLE>
<CAPTION>
Interest Accrued
90 Day on Remaining
Description Beginning Balance T-Bill Rate Balance
- ----------- ----------------- ----------- ----------------
(a) (b) (c)
<S> <C> <C> <C>
10/1/96 120,000,000
12/31/96 82,855,876 5% 1,035,698
1/31/97 83,891,574 5% 349,548
2/28/97 81,741,722 5% 340,591
3/31/97 79,582,913 5% 331,595
4/30/97 77,415,108 5% 322,563
5/31/97 75,238,271 5% 313,493
6/30/97 73,052,364 5% 304,385
7/31/97 70,857,349 5% 295,239
8/31/97 68,653,188 5% 286,055
9/30/97 66,439,843 5% 276,833
10/31/97 64,217,277 5% 267,572
11/30/97 61,985,449 5% 258,273
12/31/97 59,744,322 5% 248,935
1/31/98 57,493,857 5% 239,558
<CAPTION>
Long Range Plan
-----------------------------
Estimate
Description Refund Payment Beginning Balance Period Revenue
- ----------- -------------- ----------------- ----------- --------------
(d) (e) (f) (g)
<S> <C> <C> <C> <C>
10/1/96 (37,144,124) 82,855,876 Jan-97 24,994
12/31/96 83,891,574 Feb-97 24,994
1/31/97 (2,499,400) 81,741,722 Mar-97 24,994
2/28/97 (2,499,400) 79,582,913 Apr-97 24,994
3/31/97 (2,499,400) 77,415,108 May-97 24,994
4/30/97 (2,499,400) 75,238,271 Jun-97 24,994
5/31/97 (2,499,400) 73,052,364 Jul-97 24,994
6/30/97 (2,499,400) 70,857,349 Aug-97 24,994
7/31/97 (2,499,400) 68,653,188 Sep-97 24,994
8/31/97 (2,499,400) 66,439,843 Oct-97 24,994
9/30/97 (2,499,400) 64,217,277 Nov-97 24,994
10/31/97 (2,499,400) 61,985,449 Dec-97 24,994
11/30/97 (2,499,400) 59,744,322 Jan-98 24,994
12/31/97 (2,499,400) 57,493,857 Feb-98 24,994
1/31/98 (2,499,400) 55,234,015 Mar-98 24,994
</TABLE>
<PAGE> 25
Lakehead Pipe Line Company, Limited Partnership
Example of Calculation of Interest on
Refund Balance Going Forward (Compounded Monthly)
Included as Part of the Settlement Agreement
<TABLE>
<CAPTION>
Interest Accrued
90 Day on Remaining
Description Beginning Balance T-Bill Rate Balance
- ----------- ----------------- ----------- ------------
(a) (b) (c)
<S> <C> <C> <C>
2/28/98 55,234,015 5% 230,142
3/31/98 52,964,757 5% 220,686
4/30/98 50,686,043 5% 211,192
5/31/98 48,397,835 5% 201,658
6/30/98 46,100,093 5% 192,084
7/31/98 43,792,777 5% 182,470
8/31/98 41,475,847 5% 172,816
9/30/98 39,149,263 5% 163,122
10/31/98 36,812,985 5% 153,387
11/30/98 34,466,972 5% 143,612
12/31/98 32,111,184 5% 133,797
1/31/99 29,745,581 5% 123,940
2/28/99 27,370,121 5% 114,042
3/31/99 24,984,763 5% 104,103
4/30/99 22,589,466 5% 94,123
<CAPTION>
Long Range Plan
------------------------
Estimated
Description Refund Payment Ending Balance Period Revenue
- ----------- -------------- --------------- ------ ----------
(d) (e) (f) (g)
<S> <C> <C> <C> <C>
2/28/98 (2,499,400) 52,964,757 Apr-98 24,994
3/31/98 (2,499,400) 50,686,043 May-98 24,994
4/30/98 (2,499,400) 48,397,835 Jun-98 24,994
5/31/98 (2,499,400) 46,100,093 Jul-98 24,994
6/30/98 (2,499,400) 43,792,777 Aug-98 24,994
7/31/98 (2,499,400) 41,475,847 Sep-98 24,994
8/31/98 (2,499,400) 39,149,263 Oct-98 24,994
9/30/98 (2,499,400) 36,812,985 Nov-98 24,994
10/31/98 (2,499,400) 34,466,972 Dec-98 24,994
11/30/98 (2,499,400) 32,111,184 Jan-99 24,994
12/31/98 (2,499,400) 29,745,581 Feb-99 24,994
1/31/99 (2,499,400) 27,370,121 Mar-99 24,994
2/28/99 (2,499,400) 24,984,763 Apr-99 24,994
3/31/99 (2,499,400) 22,589,466 May-99 24,994
4/30/99 (2,499,400) 20,184,189 Jun-99 24,994
</TABLE>
<PAGE> 26
Lakehead Pipe Line Company, Limited Partnership
Example of Calculation of Interest on
Refund Balance Going Forward (Compounded Monthly)
Included as Part of the Settlement Agreement
<TABLE>
<CAPTION>
Interest Accrued
90 Day on Remaining
Description Beginning Balance T-Bill Rate Balance
- ----------- ----------------- ----------- ----------------
(a) (b) (c)
<S> <C> <C> <C>
5/31/99 20,184,189 5% 84,101
6/30/99 17,768,890 5% 74,037
7/31/99 15,343,528 5% 63,931
8/31/99 12,908,059 5% 53,784
9/30/99 10,462,443 5% 43,594
10/31/99 8,006,637 5% 33,361
11/30/99 5,540,598 5% 23,086
12/31/99 3,064,284 5% 12,768
1/31/00 577,652 5% 2,407
---------
7,702,581
=========
<CAPTION>
Long Range Plan
-------------------------
Estimated
Description Refund Payment Ending Balance Period Revenue
- ----------- -------------- -------------- ----------- ------------
(d) (e) (f) (g)
<S> <C> <C> <C> <C>
5/31/99 (2,499,400) 17,768,890 Jul-99 24,994
6/30/99 (2,499,400) 15,343,528 Aug-99 24,994
7/31/99 (2,499,400) 12,908,059 Sep-99 24,994
8/31/99 (2,499,400) 10,462,443 Oct-99 24,994
9/30/99 (2,499,400) 8,006,637 Nov-99 24,994
10/31/99 (2,499,400) 5,540,598 Dec-99 24,994
11/30/99 (2,499,400) 3,064,284
12/31/99 (2,499,400) 577,652
1/31/00 (580,059) (0)
</TABLE>
(a) = PREVIOUS ENDING BALANCE CARRIED FORWARD
(b) = 90 DAY T-BILL RATE PER SETTLEMENT AGREEMENT
(c) = BEGINNING BALANCE x (B) x 1/12
(d) = MONTHLY ESTIMATED REVENUE x 10%
(e) = BEGINNING BALANCE + INTEREST ACCRUED - REFUND PAYMENTS
(g) = LONG RANGE PLAN ESTIMATED REVENUE
N:\RATES\REFUND INTEREST CALCULATION GOING FORWARD 2
<PAGE> 27
APPENDIX D
Attached is a copy of the terms and conditions of the Risk Sharing Agreement,
which were previously agreed upon by CAPP, Lakehead and IPL.
<PAGE> 28
IPL/LPL and CAPP
SEP II
Risk Sharing Agreement
- - Agreement relates to both IPL and Lakehead in respect to the System Expansion
Program Phase II facilities and is subject to National Energy Board and
Federal Energy Regulatory Commission approvals.
- - At 75% utilization of facilities or 90,000 b/d, the return on deemed
expansion equity will be the annual multi-pipeline rate as determined by the
National Energy Board.
- - Up to 50% facilities utilization or 60,000 b/d, the return on deemed
expansion equity capital would be the multi-pipeline rate less 3.00%, subject
to a minimum rate of return of 7.50% in years 1 through 10 and 8.50% in years
11 through 15.
- - Rate of return on deemed expansion equity increases with facilities
utilization on a straight line basis, to multi-pipeline rate plus 3.00% at
100% utilization, subject to a maximum rate of return of 15% during the term
of the agreement.
- - Drag reducing agent costs flow through as a surcharge if appropriate.
- - All costs including operating, interest and depreciation costs flow through
to tariffs.
- - Volume "at risk" would have incremental capacity expansions "stacked" on top.
- - Total tolls will be charged in a manner and amount consistent with existing
toll design for Lakehead and IPL. Point to point tolls will reflect a
volume-distance allocation of costs. Distribution of revenue and costs
between IPL and Lakehead will be at IPL/LPL's discretion, subject to
regulatory approval.
- - The agreement is subject to approval of IPL and LPL Boards of Directors.
- - The term of the agreement is for 15 years commencing on the date of
completion.
- - This agreement is without prejudice to any other discussions or negotiations,
and does not necessarily reflect the views of any of the parties as to
appropriate costs of capital in either Canada or the United States.
<PAGE> 29
APPENDIX E
Attached is the applicable section of the Incentive Toll Settlement Agreement
dated February 16, 1995, between Interprovincial Pipe Line Company and the
Canadian Association of Petroleum Producers.
<PAGE> 30
INCENTIVE TOLL PRINCIPLES OF SETTLEMENT
Between
Interprovincial Pipe Line Inc.
and
Canadian Association of Petroleum Producers
7.0 NON-ROUTINE ADJUSTMENTS TO ANNUAL REVENUE REQUIREMENTS
7.1 Circumstances may arise which necessitate adjustment to the
annual Revenue Requirement and resulting tolls. Events
resulting in Non-Routine Adjustments shall be:
(d) Changes in costs resulting from legislation,
regulations, orders or directions by any government
authority which result in changes to safety or
environmental requirements, practices, or procedures
for IPL.
(e) The cost of distinct and new programs necessary to
address new or unanticipated failure mechanisms and
significant increases in the rates of cracking and/or
corrosion in the pipeline or other existing failure
mechanisms experienced by IPL.
<PAGE> 1
1996 FORM 10-K
EXHIBIT 10.18
TREASURY SERVICES AGREEMENT
MEMORANDUM OF AGREEMENT with effect as of the 1st day of January, 1996.
A M O N G:
IPL ENERGY INC., a corporation incorporated
under the laws of Canada ("Energy")
OF THE FIRST PART
- and -
LAKEHEAD PIPE LINE COMPANY, INC., a
corporation incorporated under the laws of the
State of Delaware ("Lakehead")
OF THE SECOND PART
WHEREAS:
A. Energy has agreed to provide to Lakehead the treasury services
described in Schedule "A" hereto, with such deletions, additions or
modifications as the parties may agree upon (the "Treasury
Services");
B. Lakehead desires to obtain the Treasury Services and Energy is
prepared to make available and provide the Treasury Services to
Lakehead on the terms hereinafter set forth;
C. Energy incurs expenses (the "Treasury Expenses") to provide the
Treasury Services to its subsidiaries and affiliates including
Lakehead;
D. Lakehead agrees to pay its proportionate share of the Treasury
Expenses, on the terms and conditions set forth herein;
The parties hereto desire to reduce to writing the agreement pursuant to
which the Treasury Services will be provided and paid for hereunder.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and mutual covenants hereinafter contained, the parties hereto
agree as follows:
<PAGE> 2
Treasury Services Agreement
Page 2
ARTICLE I
PROVISION OF SERVICES
1.1 For each Lakehead fiscal year commencing January 1, 1996 Lakehead
shall pay to Energy an annual fee equal to the product of
Energy's total forecasted North American Treasury expenses for
Energy's corresponding fiscal year, multiplied by a percentage
amount equal to the following:
a) the percentage amount used in the prior year, which for the
1996 fiscal year has been deemed to be 28%; or
b) if either party proposes a variation to the percentage
amount from that used for the previous year, a percentage
amount mutually agreed upon by the Vice-President &
Treasurer of Energy and the Chief Accountant of Lakehead.
Such percentage amount will reflect a fair and reasonable
allocation to Lakehead of the total Treasury Expenses for the
applicable year.
If material, an adjustment will be made for the difference
between the year's actual Treasury Expenses compared to the
year's forecasted Treasury Expenses.
1.2 For 1996, Energy's total forecasted North American Treasury
expenses are $1,495,000 of which Lakehead's share pursuant to
Section 1.1 above is $420,000 subject to adjustment as provided
for in Section 1.1.
1.3 The fees to be paid pursuant to Section 1.1 hereof shall be paid
by Lakehead within 30 days of receiving a monthly invoice from
Energy for the Treasury Services.
1.4 The provisions of Article I of this Agreement will apply in
respect of Treasury Expenses until this Agreement is terminated
or amended in accordance with Section 2.1 or Section 2.18,
respectively.
1.5 All amounts payable under this Agreement are expressed in
Canadian dollars but payment may be made in equivalent U.S.
dollars.
ARTICLE II
MISCELLANEOUS
2.1 The obligations of a party hereto under this Agreement may be
terminated by such party upon 30 days written notice to the other
party. Such termination shall not relieve a terminating party of
its obligations up to and including the date of termination.
<PAGE> 3
Treasury Services Agreement
Page 3
2.2 This Agreement is not intended to create, and shall not be
construed as creating, any relationship of partnership, agency,
joint venture or association for profit between the parties.
2.3 Neither of the parties hereto shall have any fiduciary
obligations or duties to the other party by reason of this
Agreement. Either party may conduct any activity or business
for its own profit, whether or not such activity or business is
in competition with any activity or business of the other party.
2.4 In providing the Treasury Services, Energy shall not be liable
for damages to Lakehead for any delays or errors in providing
the Treasury Services or for loss of data or records save and
except where said delays or errors are the result of negligence
or a breach of this Agreement by Energy or its agents.
2.5 The Treasury Services shall be provided on the basis that Energy
does not make any warranties or representations, express or
implied, with respect to the Treasury Services save and except
that the Treasury Services shall be provided by qualified
personnel in a professional and timely manner.
2.6 Lakehead hereby releases Energy from any claims which it may
have with respect to the provision of the Treasury Services,
unless such claims are the result of the negligence of Energy or
a breach of this Agreement by Energy.
2.7 Lakehead shall indemnify and hold Energy harmless from and
against any loss, damage, claim, liability, debt, obligation or
expense (including reasonable legal fees and disbursements)
incurred or suffered by Energy and relating in any way to this
Agreement or the provision of the Treasury Services, excluding
any loss, damage, claim, liability, debt, obligation or expense
resulting from or arising from or in connection with a negligent
act or omission of Energy or a breach of this Agreement by
Energy.
2.8 If either party to this Agreement is rendered unable by force
majeure to carry out its obligations under this Agreement, other
than Lakehead's obligation to make payments to Energy as
provided for herein, that party shall give the other party
prompt written notice of the force majeure with reasonably full
particulars concerning it. Thereupon, the obligations of the
party giving the notice, so far as they are affected by the
force majeure, shall be suspended during, but no longer than the
continuance of, the force majeure. The affected party shall use
all reasonable diligence to remove or remedy the force majeure
situation as quickly as practicable.
The requirement that any force majeure situation be removed or
remedied with all reasonable diligence shall not require the
settlement of strikes, lockouts or other
<PAGE> 4
Treasury Services Agreement
Page 4
labour difficulty by the party involved, contrary to its wishes.
Rather, all such difficulties may be handled entirely within the
discretion of the party concerned.
The term "force majeure" means any one or more of:
(a) an act of God;
(b) a strike, lockout, labour difficulty or other industrial
disturbance;
(c) an act of a public enemy, war, blockade, insurrection or
public riot;
(d) lightning, fire, storm, flood or explosion;
(e) governmental action, delay, restraint or inaction;
(f) judicial order or injunction;
(g) material shortage or unavailability of equipment; or
(h) any other cause or event, whether of the kind specifically
enumerated above or otherwise, which is not reasonably
within the control of the party claiming suspension.
2.9 Each party shall from time to time, and at all times, do such
further acts and execute and deliver all such further deeds and
documents as shall be reasonably requested by the other party in
order to fully perform and carry out the terms of this Agreement.
2.10 Time is of the essence of this Agreement.
2.11 Any notice, request, demand, direction or other communication
required or permitted to be given or made under this Agreement to a
party shall be in writing and may be given by hand delivery to the
party to whom it is addressed or sent by telefax to such party at
its address noted below:
(a) in the case of Energy, to:
IPL ENERGY INC. 2900 Canada Trust Tower
421 - 7th Ave. S.W.
Calgary, Alberta T2P 4K9
Attention: Mr. J.R. Bird
Facsimile: (403) 231-3920
<PAGE> 5
Treasury Services Agreement
Page 5
(b) in the case of Lakehead, to:
LAKEHEAD PIPE LINE COMPANY, INC. 21 West Superior Street
Suite 400
Duluth, MN 55802
Attention: Mr. S.Q. DeVinck
Facsimile: (218) 725-0445
or at such other address of which notice may have been given
by such party in accordance with the provisions of this section.
Any such telefax shall, if a confirmation copy thereof is mailed by
first class mail from the office of the sender to the addressee of
such telefax at the foregoing address within 24 hours of the
transmission of such telefax, be deemed to have been received at
the opening of business at the premises of such addressee on the
first business day following the transmission of such telefax;
provided that, if at the time of mailing of any such confirmation
copy or, if during the seven (7) business days thereafter, there is
a strike, lock-out or other interruption relating to the mail
service of Canada or the United States, then such confirmation copy
shall be provided by personal delivery.
2.12 This Agreement may be executed in several counterparts, no one of
which needs to be executed by both of the parties. Each
counterpart, including a facsimile transmission of this Agreement,
shall be deemed to be an original and shall have the same force and
effect as an original. All counterparts together shall constitute
but one and the same instrument.
2.13 The provisions of this Agreement shall be construed in accordance
with the laws of the Province of Alberta and the laws of Canada
applicable therein.
2.14 This Agreement will enure to the benefit of and be binding upon the
parties hereto and their respective successors. This Agreement may
not be assigned by either of the parties hereto without the prior
written consent of the other party.
2.15 The division of this Agreement into Articles and Sections and the
insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation of this
Agreement. The terms "this Agreement", "hereof", "hereunder" and
similar expressions refer to this Treasury Services Agreement and
not to any particular Section or other portion hereof and include
any agreement supplemental hereto. Unless something in the subject
matter or context is inconsistent therewith, references herein to
Articles and Sections are to Articles and Sections of this
Agreement.
<PAGE> 6
Treasury Services Agreement
Page 6
2.16 Words importing the singular number shall include the plural and
vice versa, words importing the masculine gender shall include the
feminine and neuter genders and vice versa, and words importing
persons shall include individuals, partnerships, associations,
trusts, unincorporated organizations and corporations and vice
versa.
2.17 In the event that one or more of the provisions contained in this
Agreement shall be invalid, illegal or unenforceable in any
respect under any applicable law, the validity, legality or
enforceability of the remaining provisions hereof shall not be
affected or impaired thereby. Each of the provisions of this
Agreement is hereby declared to be separate and distinct.
2.18 Subject to obtaining the necessary regulatory approvals, this
Agreement may not be modified or amended except by an instrument
in writing signed by each of the parties hereto or by their
respective successors or permitted assigns.
2.19 This Agreement constitutes the whole and entire agreement between
the parties hereto and supersedes any prior agreement,
undertaking, declarations, commitments, representations, verbal or
oral, in respect of the subject matter hereof.
IN WITNESS WHEREOF the parties hereto have executed this Agreement with effect
as of the date first above written.
LAKEHEAD PIPE LINE COMPANY, INC,
Terms SDL 10/18/96 S.Q. DeVinck
Name: Steven Q. DeVinck
Description Title: Chief Accountant
Form SDL 10/18/96
IPL ENERGY INC.
IPL APPROVAL
Terms:_____________ J. R. Bird
Name: J. R. Bird
Title: Vice President and
Treasurer
Date:______________
Form: Sept. 24, 1996
Date: Sept. 26, 1991
<PAGE> 7
SCHEDULE "A"
Treasury Services to Lakehead (LAKEHEAD PIPELINE LP)
(a) Acting as primary interface between Lakehead and financial
markets.
(b) Short-term money management (investment of surplus funds and
short-term borrowing).
(c) Servicing long-term debt and equity obligations.
(d) Banking arrangements (compensation, operating lines of credit,
letters of credit, advice on banking and cash management issues).
(e) Advice relating to interest rate, foreign exchange, counterparty
credit risk management.
(f) Advice on major lease versus buy financing decisions, and project
financing as required.
(g) Advice on existing public and private debt and the structure and
arrangement of new debt and equity financing as required.
(h) Acting as primary interface with external credit rating agencies.
(i) Participation in preparation for rate hearings and planning,
corporate finance and cash management issues.
(j) Use of Platinum system for maintenance of treasury information
and generation of treasury transaction records.
<PAGE> 1
EXHIBIT 21
LAKEHEAD PIPE LINE PARTNERS, L.P.
PRINCIPAL SUBSIDIARIES
The Registrant's principal subsidiary is Lakehead Pipe Line Company,
Limited Partnership, a Delaware limited partnership, in which the Registrant
has a 99% limited partner interest.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 89,600
<SECURITIES> 83,700
<RECEIVABLES> 27,200
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 207,500
<PP&E> 884,200
<DEPRECIATION> 120,700
<TOTAL-ASSETS> 975,900
<CURRENT-LIABILITIES> 61,600
<BONDS> 463,000
0
0
<COMMON> 0
<OTHER-SE> 399,600
<TOTAL-LIABILITY-AND-EQUITY> 975,900
<SALES> 0
<TOTAL-REVENUES> 274,500
<CGS> 0
<TOTAL-COSTS> 187,100
<OTHER-EXPENSES> 700
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 43,900
<INCOME-PRETAX> 52,400
<INCOME-TAX> 0
<INCOME-CONTINUING> 52,400
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 52,400
<EPS-PRIMARY> 2.11
<EPS-DILUTED> 2.11
</TABLE>
