Exhibit 10(a)
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
DATED AS OF MAY 28, 2004
BY AND AMONG
SOUTHERN UNION COMPANY
as the Borrower
AND
THE BANKS NAMED HEREIN
as the Banks
AND
JPMORGAN CHASE BANK
as the Administrative Agent
AND
FLEET NATIONAL BANK
as the Syndication Agent
AND
WESTLB AG, NEW YORK BRANCH
as the Documentation Agent
AND
X.X. XXXXXX SECURITIES INC.
as the Sole Book Runner and Lead Arranger
8
050100:02807 : AUSTIN : 293492.6
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Reference is hereby made to that certain Second Amended and Restated
Revolving Credit Agreement (Long-Term Credit Facility) dated as of May 29, 2001,
executed by and between SOUTHERN UNION COMPANY, a corporation organized under
the laws of Delaware (the "Borrower"), the financial institutions listed on the
signature pages of said Revolving Credit Agreement (each of said financial
institutions now or hereafter a party to said Revolving Credit Agreement being
hereinafter referred to collectively as "Banks" and individually as a "Bank"),
and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association
now known as JPMORGAN CHASE BANK ("JPMorgan"), in its capacity as agent (the
"Agent") for the Banks.
The Borrower, the Banks and the Agent have previously amended said
Second Amended and Restated Revolving Credit Agreement pursuant to the terms of
a First Amendment to Second Amended and Restated Revolving Credit Agreement
(Long-Term Credit Facility) dated as of June 10, 2002 (the "First Amendment")
and the terms of a Second Amendment to Second Amended and Restated Revolving
Credit Agreement (Long-Term Credit Facility) dated as of April 3, 2003 (the
"Second Amendment"). Said Revolving Credit Agreement, as previously amended by
the First Amendment and the Second Amendment, is referred to herein as the
"Original Agreement."
As a result of certain discussions between the Borrower, the Agent and
the Banks, the parties to the Original Agreement now desire to amend and restate
the Original Agreement in its entirety. Accordingly, the Original Agreement is
hereby amended and restated in its entirety to hereafter be and read as follows:
SOUTHERN UNION COMPANY, a corporation organized under the laws of
Delaware (hereinafter called the "Borrower"), the financial institutions listed
on the signature pages hereof (collectively, the "Banks" and individually, a
"Bank"), JPMORGAN CHASE BANK, a New York banking corporation ("JPMorgan"), in
its capacity as administrative agent (the "Agent") for the Banks hereunder,
FLEET NATIONAL BANK, in its capacity as syndication agent ("Syndication Agent")
for the Banks hereunder, and WESTLB AG, NEW YORK BRANCH, in its capacity as
documentation agent ("Documentation Agent") for the Banks hereunder, hereby
agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
"Additional Costs" shall mean, with respect to any Rate Period in the
case of any Eurodollar Rate Loan, all costs, losses or payments, as determined
by any Bank in its sole and absolute discretion (which determination shall be
conclusive in the absence of manifest error) that such Bank or its Domestic
Lending Office or its Eurodollar Lending Office does, or would, if such
Eurodollar Rate Loan were funded during such Rate Period by the Domestic Lending
Office or the Eurodollar Lending Office of such Bank, incur, suffer or make by
reason of:
(a) any and all present or future taxes (including, without limitation,
any interest equalization tax or any similar tax on the acquisition of debt
obligations, or any stamp or registration tax or duty or official or sealed
papers tax), levies, imposts or any other charge of any nature whatsoever
imposed by any taxing authority on or with regard to any aspect of the
transactions contemplated by this Agreement, except such taxes as may be
measured by the overall net income of such Bank or its Domestic Lending Office
or its Eurodollar Lending Office and imposed by the jurisdiction, or any
political subdivision or taxing authority thereof, in which such Bank's Domestic
Lending Office or its Eurodollar Lending Office is located; and
(b) any increase in the cost to such Bank of agreeing to make or
making, funding or maintaining any Eurodollar Rate Loan because of or arising
from (i) the introduction of, or any change (other than any change by way of
imposition or increase of reserve requirements, in the case of any Eurodollar
Rate Loan, included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation or administration of, any law or regulation or (ii) the
compliance with any request from any central bank or other governmental
authority (whether or not having the force of law).
"Affiliate" shall mean any Person controlling, controlled by or under
common control with any other Person. For purposes of this definition, "control"
(including "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise. If any Person shall own, directly
or indirectly, beneficially or of record, twenty percent (20%) or more of the
voting equity (whether outstanding capital stock, partnership interests or
otherwise) of another Person, such Person shall be deemed to be an Affiliate.
"Agent" shall have the meaning set forth in the preamble hereto.
"Agreement" shall mean this Revolving Credit Agreement, as the same may
be amended, modified, supplemented or restated from time to time.
"Alternate Base Rate" shall mean, for any day, a rate, per annum
(rounds upward to the nearest 1/16 of 1%) equal to: (a) the greatest of (i) the
Prime Rate (computed on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as the case may be) in effect on such day; or (ii) the
Federal Funds Rate in effect for such day plus one-half of one percent (1/2%)
(computed on the basis of the actual number of days elapsed over a year of 360
days).
"Alternate Base Rate Loan" shall mean any Loan which bears interest at
the Alternate Base Rate.
"Applicable Lending Office" shall mean, with respect to each Bank, such
Bank's (a) Domestic Lending Office in the case of an Alternate Base Rate Loan;
and (b) Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Bank, (b) an Affiliate of a Bank or (c) an
entity or an Affiliate of an entity that administers or manages a Bank.
"Assignment and Acceptance" shall have the meaning set forth in Section
13.13.
"Bank" shall have the meaning set forth in the preamble hereto and
shall include the Agent, in its individual capacity.
"Borrower" shall have the meaning set forth in the preamble hereto.
"Borrowing Date" shall mean a date upon which the Borrower has
requested a Loan is to be made in a Notice of Borrowing delivered pursuant to
Section 2.1.
"Business Day" shall mean a day when the Agent is open for business,
provided that, if the applicable Business Day relates to any Eurodollar Rate
Loan, it shall mean a day when the Agent is open for business and banks are open
for business in the London interbank market and in New York City.
"Capital Lease" shall mean any lease of any Property (whether real,
personal, or mixed) which, in conformity with GAAP, is accounted for as a
capital lease on the balance sheet of the lessee.
"Capitalized Lease Obligations" shall mean, for the Borrower and its
Subsidiaries, any of their obligations that should, in accordance with GAAP, be
recorded as Capital Leases.
"Cash Interest Expense" shall mean, for any period, total interest
expense to the extent paid in cash (including the interest component of
Capitalized Lease Obligations and capitalized interest and all dividends and
interest paid on or with respect to Borrower's Structured Securities) of the
Borrower and any Subsidiary for such period all as determined in conformity with
GAAP.
"Closing Date" shall mean May 28, 2004.
"Code" shall mean the Internal Revenue Code of 1986, as amended, as now
or hereafter in effect, together with all regulations, rulings and
interpretations thereof or thereunder issued by the Internal Revenue Service.
"Commitment" shall have the meaning set forth in Section 2.1(a) and
"Commitments" shall mean, collectively, the Commitments of all of the Banks.
"Consolidated Net Income" shall mean for any period the consolidated
net income of the Borrower and all Subsidiaries, determined in accordance with
GAAP, for such period.
"Consolidated Net Worth" shall mean, for any period for the Borrower
and all Subsidiaries, (a) the sum of the following consolidated items, all
determined in accordance with GAAP and without duplication: the consolidated
stockholders' equity of all classes of stock (whether common, preferred,
mandatorily convertible preferred or preference) of the Borrower and its
Subsidiaries; the Equity-Preferred Securities; the other preferred securities of
the Borrower's Subsidiaries not constituting Equity-Preferred Securities; and
the minority interests in the Borrower's Subsidiaries, less (b) the sum of the
following consolidated items, without duplication: the book amount of any
deferred charges (including, but not limited to, unamortized debt discount and
expenses, organization expenses, experimental and development expenses, but
excluding prepaid expenses) that are not permitted to be recovered by the
Borrower or its applicable Subsidiaries under rates permitted under rate
tariffs, plus (c) the sum of all amounts contributed or paid by the Borrower to
the Rabbi Trusts for purposes of funding the same, but only to the extent such
contributions and payments are required to be deducted from the consolidated
stockholders' equity of the Borrower and its Subsidiaries in accordance with
GAAP.
"Consolidated Total Capitalization" shall mean at any time the sum of:
(a) Consolidated Net Worth at such time; plus (b) the principal amount of
outstanding Debt (other than Equity-Preferred Securities (to the extent included
in Debt of the Borrower and its Subsidiaries) not to exceed 10% of Consolidated
Total Capitalization [calculated for purposes of this clause without reference
to any Equity-Preferred Securities]) of the Borrower and its Subsidiaries.
"Consolidated Total Indebtedness" shall mean all Debt of the Borrower
and all Subsidiaries including any current maturities thereof, plus, without
duplication, all amounts outstanding under Standby Letters of Credit and,
without duplication, all Facility Letter of Credit Obligations, less, without
duplication and to the extent included in Debt of the Borrower and its
Subsidiaries, Equity-Preferred Securities not to exceed 10% of Consolidated
Total Capitalization (calculated for purposes of this clause without reference
to any Equity-Preferred Securities).
"Debt" means (without duplication), for any Person indebtedness for
money borrowed determined in accordance with GAAP but in any event including,
(a) indebtedness of such Person for borrowed money or arising out of any
extension of credit to or for the account of such Person (including, without
limitation, extensions of credit in the form of reimbursement or payment
obligations of such Person relating to letters of credit issued for the account
of such Person) or for the deferred purchase price of property or services,
except indebtedness which is owing to trade creditors in the ordinary course of
business and which is due within thirty (30) days after the original invoice
date; (b) indebtedness of the kind described in clause (a) of this definition
which is secured by (or for which the holder of such Debt has any existing
right, contingent or otherwise, to be secured by) any Lien upon or in Property
(including, without limitation, accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such indebtedness or obligations; (c) Capitalized Lease Obligations of such
Person; (d) obligations under direct or indirect Guaranties other than
Guaranties issued by the Borrower covering obligations of the Southern Union
Trusts under the Structured Securities. Whenever the definition of Debt is being
used herein in order to compute a financial ratio or covenant applicable to the
consolidated business of the Borrower and its Subsidiaries, Debt which is
already included in such computation by virtue of the fact that it is owed by a
Subsidiary of the Borrower will not also be added by virtue of the fact that the
Borrower has executed a guaranty with respect to such Debt that would otherwise
require such guaranteed indebtedness to be considered Debt hereunder. Nothing
contained in the foregoing sentence is intended to limit the other provisions of
this Agreement which contain limitations on the amount and types of Debt which
may be incurred by the Borrower or its Subsidiaries.
"Debtor Laws" shall mean all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization,
or similar laws, or general equitable principles from time to time in effect
affecting the rights of creditors generally.
"Default" shall mean any of the events specified in Section 11, whether
or not there has been satisfied any requirement in connection with such event
for the giving of notice, or the lapse of time, or the happening of any further
condition, event or act.
"Dollars" and "$" shall mean lawful currency of the United States of
America.
"Domestic Lending Office" shall mean, with respect to each Bank, the
office of such Bank located at its "Address for Notices" set forth below the
name of such Bank on the signature pages hereof or such other office of such
Bank as such Bank may from time to time specify to the Borrower and the Agent.
"EBDIT" shall mean for any period the sum of (a) consolidated net
earnings for the Borrower and its Subsidiaries (excluding for all purposes
hereof all extraordinary items), plus (b) each of the following to the extent
actually deducted in deriving such net earnings: (i) depreciation and
amortization expense; (ii) interest expense; (iii) federal and state income
taxes; and (iv) dividends charged against income on or with respect to
Structured Securities, in each case before adjustment for extraordinary items,
as shown in the financial statements of Borrower and its Subsidiaries referred
to in Section 7.2 hereof (excluding for all purposes hereof all extraordinary
items), and determined in accordance with GAAP, and (c) plus (or minus, if
applicable) the net amount of non-cash deductions from (or additions to, if
applicable) such net earnings for such period attributable to fluctuations in
the market price(s) of securities which the Borrower is obligated to purchase in
future periods under any of the Rabbi Trusts, but only to the extent that such
deductions (or additions, if applicable) are required to be taken in accordance
with GAAP.
"Eligible Assignee" shall mean: (i) any Bank, or any Affiliate of any
Bank, any Approved Fund, or any institution 100% of the voting stock of which is
directly, or indirectly owned by such Bank or by the immediate or remote parent
of such Bank; or (ii) a commercial bank, a foreign branch of a United States
commercial bank, a domestic branch of a foreign commercial bank or other
financial institution having in each case assets in excess of $1,000,000,000.00.
"Environmental Law" shall mean (a) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 U.S.C.A. ss. 9601 et seq.), as
amended from time to time, and any and all rules and regulations issued or
promulgated thereunder ("CERCLA"); (b) the Resource Conservation and Recovery
Act (as amended by the Hazardous and Solid Waste Amendment of 1984, 42 U.S.C.A.
ss. 6901 et seq.), as amended from time to time, and any and all rules and
regulations promulgated thereunder ("RCRA"); (c) the Clean Air Act, 42 U.S.C.A.
ss. 7401 et seq., as amended from time to time, and any and all rules and
regulations promulgated thereunder; (d) the Clean Water Act of 1977, 33 X.X.XX
ss. 1251 et seq., as amended from time to time, and any and all rules and
regulations promulgated thereunder; (e) the Toxic Substances Control Act, 15
U.S.C.A. ss. 2601 et seq., as amended from time to time, and any and all rules
and regulations promulgated thereunder; or (f) any other federal or state law,
statute, rule, or emulation enacted in connection with or relating to the
protection or regulation of the environment (including, without limitation,
those laws, statutes, rules, and regulations regulating the disposal, removal,
production, storing, refining, handling, transferring, processing, or
transporting of Hazardous Materials) and any rules and regulations issued or
promulgated in connection with any of the foregoing by any governmental
authority, and "Environmental Laws" shall mean each of the foregoing.
"EPA" shall mean the Environmental Protection Agency, or any successor
organization.
"Equity-Preferred Securities" means (i) Debt, preferred equity or any
other securities that are mandatorily convertible by the issuer thereof at a
date certain, without cash payment by the issuer, into common shares of stock of
the Borrower or (ii) any other securities (A) that are issued by the Borrower or
any Subsidiary, (B) that are not subject to mandatory redemption at any time,
directly or indirectly, (C) that are perpetual or mature not less than 30 years
from the date of issuance, (D) the Debt component, if any, issued in connection
therewith, including any guaranty, is subordinate in right of payment to all
other unsecured and unsubordinated Debt of the issuer of such Debt component
(including any such guaranty, if applicable), and (E) the terms of which permit
the issuer thereof to defer at any time, without any additional payment or
premium, the payment of any and all interest and/or distributions thereon, as
applicable, to a date occurring after the Maturity Date.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and all rules, regulations, rulings and
interpretations thereof issued by the Internal Revenue Service or the Department
of Labor thereunder.
"Eurocurrency Liabilities" shall have the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" shall mean, with respect to each Bank, the
office of such Bank located at its "Address for Notices" set forth below the
name of such Bank on the signature pages hereof, or such other office of such
Bank as such Bank may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" shall mean with respect to the applicable Rate Period
in effect for each Eurodollar Rate Loan, the sum of (a) the quotient obtained by
dividing (i) the rate appearing on Page 3750 of the Dow Xxxxx Market Service (or
on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the Agent from
time to time for purposes of providing quotations of interest rates applicable
to dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Rate Period, as
the rate for dollar deposits with a maturity comparable to such Rate Period (or
in the event that such rate quote is not available at such time for any reason,
then utilizing the rate at which dollar deposits of $5,000,000 and for a
maturity comparable to such Rate Period are offered by the principal London
office of the Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Rate Period) by (ii) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Rate Period, plus (b) an additional
percentage per annum changing with the rating of the Borrower's unsecured,
non-credit enhanced Senior Funded Debt and determined in accordance with the
following grid:
================================================================================
Additional
Rating of the Borrower's unsecured, non-credit enhanced Percentage Per
Senior Funded Debt Annum
--------------------------------------------------------------------------------
Equal to or greater than A3 by Xxxxx'x Investor Service, Inc.
and equal to or greater than A- by Standard and Poor's Ratings
Group 0.500%
--------------------------------------------------------------------------------
Baa1 by Xxxxx'x Investor Service, Inc. or BBB+ by Standard and
Poor's Ratings Group 0.625%
-------------------------------------------------------------------------------
Baa2 by Xxxxx'x Investor Service, Inc. or BBB by Standard and
Poor's Ratings Group 0.750%
--------------------------------------------------------------------------------
Baa3 by Xxxxx'x Investor Service, Inc. or BBB- by Standard and
Poor's Ratings Group 1.000%
--------------------------------------------------------------------------------
-
Equal to or less than Ba1 by Xxxxx'x Investor Service, Inc. and
equal to or less than BB+ by Standard and Poor's Ratings Group 1.750%
================================================================================
Notwithstanding the foregoing provisions, in the event that ratings of the
Borrower's unsecured, non-credit enhanced Senior Funded Debt under Standard &
Poor's Ratings Group and under Xxxxx'x Investor Service, Inc. fall within
different rating categories which are not functional equivalents, the Eurodollar
Rate shall be based on the higher of such ratings if there is only one category
differential between the functional equivalents of such ratings, and if there is
a two category differential between the functional equivalents of such ratings,
the component of pricing from the grid set forth above shall be based on the
rating category which is then in the middle of or between the two category
ratings which are then in effect, and if there is greater than a two category
differential between the functional equivalents of such ratings, the component
of pricing from the grid set forth above shall be based on the rating category
which is then one rating category above the lowest of the two category ratings
which are then in effect. Additionally, in the event that Borrower withdraws
from having its unsecured, non-credit enhanced Senior Funded Debt being rated by
Xxxxx'x Investor Service, Inc. or Standard and Poor's Ratings Group, so that one
or both of such ratings services fails to rate the Borrower's unsecured,
non-credit enhanced Senior Funded Debt, the component of pricing from the grid
set forth above for purposes of determining the applicable Eurodollar Rate for
all Rate Periods commencing thereafter shall be 1.750% until such time as
Borrower subsequently causes its unsecured, non-credit enhanced Senior Funded
Debt to be rated by both of said ratings services.
"Eurodollar Rate Loan" shall mean any Loan that bears interest at the
Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" of the Agent for any Rate Period for
any Eurodollar Rate Loan shall mean the reserve percentage applicable during
such Rate Period (or if more than one such percentages shall be so applicable,
the daily average of such percentages for those days in such Rate Period during
which any such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental, or other marginal reserve requirement)
for member banks of the Federal Reserve System with deposits exceeding
$1,000,000,000 with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Rate Period.
"Event of Default" shall mean any of the events specified in Section 11,
provided that there has been satisfied any requirement in connection with such
event for the giving of notice, or the lapse of time, or the happening of any
further condition, event or act.
"Expiration Date" shall mean the last day of a Rate Period.
"Facility Letter(s) of Credit" shall mean, in the singular form, any
Standby Letter of Credit issued by an Issuing Bank for the account of the
Borrower pursuant to Section 3 and, in the plural form, all such Standby Letters
of Credit issued for the account of the Borrower.
"Facility Letter of Credit Fee Percentage" shall mean a fee expressed as
a percent per annum for all periods equal to a percentage per annum changing
with the rating of the Borrower's unsecured, non-credit enhanced Senior Funded
Debt and determined in accordance with the following grid:
================================================================================
Rating of the Borrower's unsecured, non-credit enhanced Senior Additional
Funded Debt Percentage Per
Annum
--------------------------------------------------------------------------------
Equal to or greater than A3 by Xxxxx'x Investor Service, Inc. and
equal to or greater than A- by Standard and Poor's Ratings Group 0.500%
--------------------------------------------------------------------------------
Baa1 by Xxxxx'x Investor Service, Inc. or BBB+ by Standard and
Poor's Rating 0.625%
--------------------------------------------------------------------------------
-
Baa2 by Xxxxx'x Investor Service, Inc. or BBB by Standard and Poor's
Rating Group 0.750%
--------------------------------------------------------------------------------
Baa3 by Xxxxx'x Investor Service, Inc. or BBB- by Standard and
Poor's Rating Group 1.000%
--------------------------------------------------------------------------------
Equal to or less than Ba1 by Xxxxx'x Investor Service, Inc. and
equal to or less than BB+ by Standard and Poor's Rating Group 1.750%
================================================================================
Notwithstanding the foregoing provisions, in the event that ratings of the
Borrower's unsecured, non-credit enhanced Senior Funded Debt under Standard &
Poor's Ratings Group and under Xxxxx'x Investor Service, Inc. fall within
different rating categories which are not functional equivalents, the Facility
Letter of Credit Fee Percentage shall be based on the higher of such ratings if
there is only one category differential between the functional equivalents of
such ratings, and if there is a two category differential between the functional
equivalents of such ratings, the component of pricing from the grid set forth
above shall be based on the rating category which is then in the middle of or
between the two category ratings which are then in effect, and if there is
greater than a two category differential between the functional equivalents of
such ratings, the component of pricing from the grid set forth above shall be
based on the rating category which is then one rating category above the lowest
of the two category ratings which are then in effect. Additionally, in the event
that Borrower withdraws from having its unsecured, non-credit enhanced Senior
Funded Debt being rated by Xxxxx'x Investor Service, Inc. or Standard and Poor's
Ratings Group, so that one or both of such ratings services fails to rate the
Borrower's unsecured, non-credit enhanced Senior Funded Debt, the component of
pricing from the grid set forth above for purposes of determining the applicable
Facility Letter of Credit Fee Percentage for all periods thereafter shall be
1.750% until such time as the Borrower subsequently causes its unsecured,
non-credit enhanced Senior Funded Debt to be rated by both of said ratings
services.
"Facility Letter of Credit Obligations" shall mean, at any particular
time, the sum of (a) the Reimbursement Obligations, plus (b) the aggregate
undrawn face amount of all outstanding Facility Letters of Credit, in each case
as determined by the Agent.
"Federal Funds Rate" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates (rounded to the nearest 1/100 of 1%) on overnight federal fund
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as 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, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from Xxxxxx Prebon and Xxxxxx Xxx Xxxxxx or two other federal funds
brokers of recognized standing selected by the Agent.
"Funded Debt" means all Debt of a Person which matures more than one
year from the date of creation or matures within one year from such date but is
renewable or extendible, at the option of such Person, by its terms or by the
terms of any instrument or agreement relating thereto, to a date more than one
year from such date or arises under a revolving credit or similar agreement
which obligates Banks to extend credit during a period of more than one year
from such date, including, without limitation, all amounts of any Funded Debt
required to be paid or prepaid within one year from the date of determination of
the existence of any such Funded Debt.
"GAAP" shall mean generally accepted accounting principles, applicable
to the circumstances as of the date of determination, applied consistently with
such principles as applied in the preparation of the Borrowers audited financial
statements referred to in Section 7.2.
"General Intangibles" shall mean all of the Borrower's contract rights
now existing or hereafter acquired, arising or created under contracts or
arrangements for the purchase, sale, storage or transportation of gas or other
Inventory.
"Governmental Authority" shall mean any (domestic or foreign) federal,
state, county, municipal, parish, provincial, or other government, or any
department, commission, board, court, agency (including, without limitation, the
EPA), or any other instrumentality of any of them or any other political
subdivision thereof, and any entity exercising executive, legislative, judicial,
regulatory, or administrative functions of, or pertaining to, government,
including, without limitation, any arbitration panel, any court, or any
commission.
"Governmental Requirement" means any Order, Permit, law, statute
(including, without limitation, any Environmental Protection Statute), code,
ordinance, rule, regulation, certificate, or other direction or requirement of
any Governmental Authority.
"Guaranty" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing any
Debt of another Person, including, without limitation, by means of an agreement
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or to maintain financial covenants, or to assure the payment of such
Debt by an agreement to make payments in respect of goods or services regardless
of whether delivered or to purchase or acquire the Debt of another, or
otherwise, provided that the term "Guaranty" shall not include endorsements for
deposit or collection in the ordinary course of business.
"Hazardous Materials" shall mean any substance which, pursuant to any
Environmental Laws, requires special handling in its collection, use, storage,
treatment or disposal, including but not limited to any of the following: (a)
any "hazardous waste" as defined by RCRA; (b) any "hazardous substance" as
defined by CERCLA; (c) asbestos; (d) polychlorinated biphenyls; (e) any
flammables, explosives or radioactive materials; and (f) any substance, the
presence of which on any of the Borrower's or any Subsidiary's properties is
prohibited by any Governmental Authority.
"Highest Lawful Rate" shall mean, with respect to each Bank, the
maximum nonusurious interest rate, if any, that at any time or from time to time
may be contracted for, taken, reserved, charged, or received with respect to the
Notes or on other amounts, if any, due to such Bank pursuant to this Agreement,
under laws applicable to such Bank which are presently in effect, or, to the
extent allowed by law, under such applicable laws which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
"Indemnified Parties" shall have the meaning set forth in Section
13.16.
"Interest Payment Date" shall mean (a) as to any Eurodollar Rate Loan
in which the Rate Period with respect thereto is not greater than three (3)
months, the date on which such Rate Period ends; (b) as to any Eurodollar Rate
Loan in which the Rate Period with respect thereto is greater than three (3)
months, the date on which the third month of such Rate Period ends, and the date
on which each such Rate Period ends; (c) as to any Alternate Base Rate Loan in
which the Rate Period with respect thereto is not greater than ninety (90) days,
the date on which such Rate Period ends; (d) as to any Alternate Base Rate Loan
in which the Rate Period with respect thereto is greater than ninety (90) days,
the ninetieth (90th) day of such Rate Period, and the date on which each such
Rate Period ends; and (e) as to all Loans, such time as the principal of and
interest on the Notes shall have been paid in full.
"Inventory" means, with respect to Borrower or any Subsidiary, all of
such Person's now owned or hereafter acquired or created inventory in all of its
forms and of every nature, wherever located, whether acquired by purchase,
merger, or otherwise, and all raw materials, work in process therefor and
finished goods thereof, and all supplies, materials, and products of every
nature and description used, usable, or consumed in connection with the
manufacture, packing, shipping, advertising, selling, leasing, furnishing, or
production of such goods, and shall include, in any event, all "inventory"
(within the meaning of such term in the Uniform Commercial Code in effect in any
applicable jurisdiction), whether in mass or joint, or other interest or right
of any kind in goods which are returned to, repossessed by, or stopped in
transit by such Person, and all accessions to any of the foregoing and all
products of any of the foregoing.
"Investment" of any Person means any investment so classified under
GAAP, and, whether or not so classified, includes (a) any direct or indirect
loan advance made by it to any other Person; (b) any direct or indirect Guaranty
for the benefit of such Person; provided, however, that for purposes of
determining Investments of Borrower hereunder, the existing Guaranty by Borrower
of certain tax increment financing extended by The Fidelity Deposit and Discount
Bank to The Redevelopment Authority of the County of Lackawanna shall be deemed
to not be an Investment; (c) any capital contribution to any other Person; and
(d) any ownership or similar interest in any other Person; and the amount of any
Investment shall be the original principal or capital amount thereof (plus any
subsequent principal or capital amount) minus all cash returns of principal or
capital thereof.
"Issuing Bank" shall mean (a) any Bank and/or any Affiliate of any Bank
listed on the signature pages of this Agreement attached hereto and made a part
hereof, or (b) any Bank or any Affiliate of any Bank not listed on the signature
pages of this Agreement, but only in the event that such Bank or such Affiliate
agrees, in its sole discretion at the request of the Borrower, and on the terms
and conditions mutually acceptable to such Bank or such Affiliate, as the case
may be, to become an Issuing Bank for the purpose of issuing one or more
Facility Letters of Credit pursuant to Section 3. When a Bank is referred to as
an Issuing Bank under this Agreement, such reference to such Bank shall be
interpreted to refer to such Bank solely in its capacity as an Issuing Bank.
"L/C Subfacility" shall mean that portion of the Commitments equal to
$40,000,000.00.
"Letter(s) of Credit" shall mean, in the singular form, any letter of
credit issued by any Person for the account of the Borrower and, in the plural
form, all such letters of credit issued by any Person for the account of the
Borrower.
"Letter of Credit Commitment" shall mean, with respect to each Issuing
Bank, such Issuing Bank's commitment to issue Facility Letters of Credit.
"Letter of Credit Reimbursement Agreement" shall mean, with respect to
a Facility Letter of Credit, such form of application therefor and form of
reimbursement agreement therefor (whether in a single or several documents,
taken together) as the Issuing Bank from which the Facility Letter of Credit is
requested may employ in the ordinary course of business for its own account,
whether or not providing for collateral security, with such modifications
thereto as may be agreed upon by such Issuing Bank and the account party and as
are not materially adverse to the interests of any Bank; provided, however, in
the event of any conflict between the terms of any Letter of Credit
Reimbursement Agreement and this Agreement, the terms of this Agreement shall
control; and provided, further, that any grant or purported grant of a security
interest in favor of the Issuing Bank contained in any Letter of Credit
Reimbursement Agreement shall be void.
"Lien" shall mean any mortgage, deed of trust, pledge, security
interest, encumbrance, lien (including without limitation, any such interest
arising under any Environmental Law), or similar charge of any kind (including
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement or any lease in the nature thereof), or
the interest of the lessor under any Capital Lease.
"Loan" or "Loans" shall mean a loan or loans, respectively, from the
Banks to the Borrower made under Section 2.1.
"Loan Document" shall mean this Agreement, any Note, or any other
document, agreement or instrument now or hereafter executed and delivered by the
Borrower or any other Person in connection with any of the transactions
contemplated by any of the foregoing, as any of the foregoing may hereafter be
amended, modified, or supplemented, and "Loan Documents" shall mean,
collectively, each of the foregoing.
"Majority Bank" shall mean at any time Banks holding more than 50% of
the unpaid principal amounts outstanding under the Notes, or, if no such amounts
are outstanding, more than 50% of the Pro Rata Percentages.
"Material Adverse Effect" shall mean any material adverse effect on (a)
the financial condition, business, properties, assets, prospects or operations
of the Borrower and its Subsidiaries taken as a whole, or (b) the ability of the
Borrower to perform its obligations under this Agreement, any Note or any other
Loan Document on a timely basis.
"Maturity Date" shall mean May 28, 2009.
"Non-Facility Letter of Credit" shall mean any Letter of Credit which
is not a Facility Letter of Credit.
"Note" or "Notes" shall mean a promissory note or notes, respectively,
of the Borrower, executed and delivered under this Agreement.
"Notice of Borrowing" shall have the meaning set forth in Section
2.1(c).
"Obligations" shall mean (a) all obligations of the Borrower to the
Bank under this Agreement, the Notes and all other Loan Documents to which it is
a party; (b) all Reimbursement Obligations; and (c) any other obligations of the
Borrower with respect to a Facility Letter of Credit.
"Officer's Certificate" shall mean a certificate signed in the name of
the Borrower or a Subsidiary, as the case may be, by either its President, one
of its Vice Presidents, its Treasurer, its Secretary, or one of its Assistant
Treasurers or Assistant Secretaries.
"Panhandle Eastern" shall mean Panhandle Eastern Pipe Line Company, a
Delaware corporation.
"Panhandle Eastern Refinancing Debt" shall mean any Debt of Panhandle
Eastern and/or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund, any Debt of Panhandle Eastern and/or any of its Subsidiaries existing as
of the Closing Date, provided, that:
(a) the principal amount of such Panhandle Eastern Refinancing
Debt does not exceed the then outstanding principal amount of the Debt
so extended, refinanced, renewed, replaced, defeased or refunded;
(b) the interest rate or rates to accrue under such Panhandle
Eastern Refinancing Indebtedness do not exceed the lesser of (i) the
interest rate or rates then accruing on the Debt so extended,
refinanced, renewed, replaced, defeased or refunded or (ii) the
prevailing market interest rate or rates which are then applicable to,
and generally available for, Debt which is similar in type, amount,
maturity and other terms to the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded;
(c) the maturities, amortization schedules, covenants,
defaults, remedies, collateral security provisions (or absence thereof)
and other terms of such Panhandle Eastern Refinancing Indebtedness,
including without limitation, any restrictions on the payment by
Panhandle Eastern and/or its applicable Subsidiaries of any dividends
or other shareholder distributions, are in each case the same or more
favorable to Panhandle Eastern and/or its applicable Subsidiaries as
those in the Debt so extended, refinanced, renewed, replaced, defeased
or refunded; and
(d) no Default or Event of Default has occurred and is
continuing or would result from the issuance or origination of such
Panhandle Eastern Refinancing Indebtedness.
"Person" shall mean an individual, partnership, joint venture,
corporation, joint stock company, bank, trust, unincorporated organization
and/or a government or any department or agency thereof.
"Plan" shall mean any plan subject to Title IV of ERISA and maintained
for employees of the Borrower or of any member of a "controlled group of
corporations," as such term is defined in the Code, of which the Borrower or any
Subsidiary is a member, or any such plan to which the Borrower or any Subsidiary
is required to contribute on behalf of its employees.
"Prime Rate" shall mean, on any day, the rate determined by the Agent
as being its prime rate for that day. Without notice to the Borrower or any
other Person, the Prime Rate shall change automatically from time to time as and
in the amount by which said Prime Rate shall fluctuate, with each such change to
be effective as of the date of each change in such Prime Rate. The Prime Rate is
a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. The Agent may make commercial or other loans
at rates of interest at, above or below the Prime Rate.
"Prior Acquisitions" shall mean collectively the Borrower's previous
acquisitions of and mergers with Fall River Gas Company, Providence Energy
Corporation and Valley Resources, Inc.
"Pro-Rata Percentage" shall mean with respect to any Bank, a fraction
(expressed as a percentage), the numerator of which shall be the amount of such
Bank's Commitment and the denominator of which shall be the aggregate amount of
all the Commitments of the Banks, as adjusted from time to time in accordance
with Section 4.6.
"Property" shall mean any interest or right in any kind of property or
asset, whether real, personal, or mixed, owned or leased, tangible or
intangible, and whether now held or hereafter acquired.
"Qualifying Assets" shall mean (i) equity interests owned one hundred
percent (100%) by the Borrower in entities engaged primarily in one or more of
the Borrower's lines of business described in Section 7.15 (singly, a "Qualified
Entity," collectively, "Qualified Entities"), or productive assets used in one
or more of such lines of business; and (ii) equity interests of less than one
hundred percent (100%) owned by the Borrower in one or more Qualifying Entities,
provided that at any time the aggregate amount of the Borrower's investment in
Qualifying Assets described in clause (ii) that are then held by the Borrower as
of the applicable determination date (measured by the aggregate purchase price
paid therefor, including the aggregate amount of Debt assumed or deemed incurred
by Borrower in connection with such acquisitions) does not exceed twenty percent
(20%) of the Consolidated Net Worth of the Borrower and its Subsidiaries as of
the applicable determination date.
"Rabbi Trusts" shall mean those four (4) certain non-qualified deferred
compensation irrevocable trusts existing as of the Closing Date, previously
established by the Borrower for the benefit of its executive employees, so long
as the assets in each of such trusts which have not yet been distributed to one
or more executive employees of the Borrower remain subject to the claims of the
Borrower's general creditors.
"Rate Period" shall mean the period of time for which the Alternate
Base Rate or the Eurodollar Rate shall be in effect as to any Alternate Base
Rate Loan or Eurodollar Rate Loan, as the case may be, commencing with the
Borrowing Date or the Expiration Date of the immediately preceding Rate Period,
as the case may be, applicable to and ending on the effective date of any
reborrowing made as provided in Section 2.2(a) as the Borrower may specify in
the related Notice of Borrowing, subject, however, to the early termination
provisions of the second sentence of Section 2.3(c) relating to any Eurodollar
Rate Loan; provided, however, that any Rate Period that would otherwise end on a
day which is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month, in which
case such Rate Period shall end on the next preceding Business Day. For any
Alternate Base Rate Loan, the Rate Period shall be 90 days; and for any
Eurodollar Rate Loan the Rate Period may be 15 days, 1, 2, 3, or 6 months, in
each case as specified in the applicable Notice of Borrowing, subject to the
provisions of Sections 2.2 and 2.3.
"Reimbursement Obligations" shall mean the reimbursement or repayment
obligations of the Borrower to Issuing Banks pursuant to this Agreement or the
applicable Letter of Credit Reimbursement Agreement with respect to Facility
Letters of Credit issued for the account of the Borrower.
"Release" shall mean a "release", as such term is defined in CERCLA.
"Restricted Payment" shall mean the Borrower's declaration or payment
of any dividend on, or purchase or agreement to purchase any of, or making of
any other distribution with respect to, any of its capital stock, except any
such dividend, purchase or distribution consisting solely of capital stock of
the Borrower, and except any dividend or interest paid on or with respect to the
Borrower's Structured Securities to the extent that such amounts are included in
Cash Interest Expense.
"Securities Act" shall have the meaning set forth in Section 13.1.
"Senior Funded Debt" shall mean Funded Debt of the Borrower excluding
Debt that is contractually subordinated in right of payment to any other Debt.
"Senior Notes" means (a) the $475,000,000 of 7.6% Senior Notes of the
Borrower previously placed with investors on or about January 31, 1994, and (b)
the $300,000,000 of 8.25% Senior Notes of the Borrower previously placed with
investors on or about November 3, 1999, as such Senior Notes may be amended,
modified, or supplemented from time to time in accordance with the terms of this
Agreement; and "Senior Note" means each such note individually.
"Significant Property" shall mean at any time property or assets of the
Borrower or any Subsidiary having a book value (net of accumulated depreciation
taken in accordance with GAAP) of at least $5,000,000.00 or that contributed (or
is an integrated physical portion of an assemblage of assets that contributed)
at least 5% of the gross income of the owner thereof for the fiscal quarter most
recently ended.
"Southern Union Panhandle" shall mean Southern Union Panhandle Corp., a
Delaware corporation formed by the Borrower for the purpose of ultimately owning
and holding 100% of all issued and outstanding equity interests in Panhandle
Eastern.
"Southern Union Trust" means any of those certain Delaware business
trusts organized for the sole purpose of purchasing Subordinated Debt Securities
constituting a portion of, and described in the definition of, Structured
Securities and issuing the Preferred Securities and Common Securities also
constituting a portion of, and described in the definition of, Structured
Securities, and having no assets other than the Borrower's Subordinated Debt
Securities, the Guaranties (as described in the definition of Structured
Securities) and the proceeds thereof. Southern Union Trusts shall be considered
to be Subsidiaries for purposes hereof so long as their affairs are consolidated
under GAAP and for federal income tax purposes with the affairs of the Borrower.
"Standby Letter of Credit" shall mean any standby letter of credit
issued to support obligations (contingent or otherwise) of the Borrower.
"Structured Securities" shall mean collectively (a) the Subordinated
Debt Securities, the Guaranties, the Common Securities and the Preferred
Securities of the Southern Union Trusts, all as described and defined in the
Registration Statement on Form S-3 filed by the Borrower with the Securities and
Exchange Commission on March 25, 1995, and (b) subordinated debt securities,
guaranties, common securities and/or preferred securities issued in connection
with the consummation of the Prior Acquisitions in an aggregate face amount of
not more than $150,000,000 upon terms and conditions substantially similar in
all material respects to the terms and conditions described and defined in such
Registration Statement on Form S-3 filed by the Borrower with the Securities and
Exchange Commission on March 25, 1995. For all purposes of this Agreement, the
amounts payable by Southern Union Trusts under the Preferred Securities and
Common Securities (or similar securities provided for under subclause (b) above)
and the amounts payable by the Borrower under the Subordinated Debt Securities
or the Guaranties (or similar securities provided for under subclause (b) above)
shall be treated without duplication, it being recognized that the amounts
payable by Southern Union Trusts are funded with payments made or to be made by
the Borrower to Southern Union Trusts and are also guaranteed by the Borrower
under the Guaranties described in the S-3 mentioned above (or similar guaranties
provided for under subclause (b) above).
"Subsidiary" or "Subsidiaries" shall mean any corporation or
corporations organized under the laws of any state of the United States of
America, Canada, or any province of Canada, which conduct(s) the major portion
of business in the United States of America or Canada and of which not less than
50% of the voting stock of every class (except for directors' qualifying
shares), at the time as of which any determination is being made, is owned by
the Borrower either directly or indirectly through other Subsidiaries.
"Term Loan Facility" shall mean (a) that certain term loan facility to
be provided to the Borrower in an aggregate amount of $311,086,956.00 under the
terms of that certain Amended and Restated Term Loan Credit Agreement dated July
15, 2002 by and among the Borrower, JPMorgan Chase Bank, as administrative
agent, and the banks or financial institutions now or hereafter a party thereto,
and (b) any and all amendments, modifications, increases, supplements and/or
restatements of said credit facility now or hereafter existing from time to
time.
"Trunkline LNG Holdings" shall mean CMS Trunkline LNG Holdings, LLC, a
Delaware limited liability company.
"Trunkline LNG Holdings Sale" shall mean the sale by Panhandle Eastern
to a third-party that is not an Affiliate of the Borrower of all or
substantially all of the assets of Trunkline LNG Holdings and its Subsidiaries
or all or a portion of the issued and outstanding stock and other equity
interests, if any, in Trunkline LNG Holdings, so long as such sale is finalized
and consummated in substantial compliance with the following specified terms:
(a) all cash proceeds received by Panhandle Eastern from such
sale, less customary and reasonable transaction fees and the amount of
all taxes payable by the Panhandle Eastern attributable to such sale,
shall by fully distributed by Panhandle Eastern to Southern Union
Panhandle, and in turn by Southern Union Panhandle to the Borrower;
(b) all cash proceeds distributed to the Borrower from such sale
shall be immediately applied against the Borrower's Debt under the Term
Loan Facility, to the extent then outstanding; and
(c) all requisite approvals and consents from any Governmental
Authority with respect to such sale shall have been received by
Panhandle Eastern in a form acceptable to the Agent.
"Type" shall mean, with respect to any Loan, any Alternate Base Rate
Loan or any Eurodollar Rate Loan.
"Unused L/C Subfacility" shall mean, at any time, the amount, if any,
by which the L/C Subfacility then in effect exceeds the aggregate outstanding
amount of all Facility Letter of Credit Obligations.
2. THE LOANS
2.1 The Loans
(a) Subject to the terms and conditions and relying upon the
representations and warranties of the Borrower herein set forth, each
Bank severally agrees to make Loans to the Borrower on any one or more
Business Days prior to the Maturity Date, up to an aggregate principal
amount of Loans not exceeding at any time outstanding: (i) the amount
set opposite such Banks name on the signature pages hereof (such
Bank's "Commitment"); minus (ii) such Bank's Pro Rata Percentage of
the Facility Letter of Credit Obligations. Within such limits and
during such period and subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow hereunder.
(b) The Borrower shall execute and deliver to the Agent for each
Bank to evidence the Loans made by each Bank under such Bank's
Commitment, a Note, which shall be: (i) dated the date of the Closing
Date; (ii) in the principal amount of such Bank's maximum Commitment;
(iii) in substantially the form attached hereto as Exhibit A, with
blanks appropriately filled; (iv) payable to the order of such Bank on
the Maturity Date; and (v) subject to acceleration upon the occurrence
of an Event of Default. Each Note shall bear interest on the unpaid
principal amount thereof from time to time outstanding at the rate per
annum determined as specified in Sections 2.2(a), 2.2(b), 2.3(b) and
2.3(c), payable on each Interest Payment Date and at maturity,
commencing with the first Interest Payment Date following the date of
each Note.
(c) Each Loan shall be: (i) in the case of any Eurodollar Rate
Loan, in an amount of not less than $1,000,000.00 or an integral
multiple of $1,000,000.00 in excess thereof; or (ii) in the case of
any Alternate Base Rate Loan, in an amount of not less than
$500,000.00 or an integral multiple of $100,000.00 in excess thereof
and, at the option of the Borrower, any borrowing under this Section
2.1(c) may be comprised of two or more such Loans bearing different
rates of interest. Each such borrowing shall be made upon prior notice
from the Borrower to the Agent in the form attached hereto as Exhibit
B (the "Notice of Borrowing") delivered to the Agent not later than
11:00 am (Houston time): (i) on the third Business Day prior to the
Borrowing Date, if such borrowing consists of Eurodollar Rate Loans;
and (ii) on the Borrowing Date, if such borrowing consists of
Alternate Base Rate Loans. Each Notice of Borrowing shall be
irrevocable and shall specify: (i) the amount of the proposed
borrowing and of each Loan comprising a part thereof; (ii) the
Borrowing Date; (iii) the rate of interest that each such Loan shall
bear; (iv) the Rate Period with respect to each such Loan and the
Expiration Date of each such Rate Period; and (v) the demand deposit
account of the Borrower at JPMorgan into which the proceeds of the
borrowing are to be deposited by the Agent. The Borrower may give the
Agent telephonic notice by the required time of any proposed borrowing
under this Section 2.1(c); provided that such telephonic notice shall
be confirmed in writing by delivery to the Agent promptly (but in no
event later than the Borrowing Date relating to any such borrowing) of
a Notice of Borrowing. Neither the Agent nor any Bank shall incur any
liability to the Borrower in acting upon any telephonic notice
referred to above which the Agent believes in good faith to have been
given by the Borrower, or for otherwise acting in good faith under
this Section 2.1(c).
(d) In the case of a proposed borrowing comprised of Eurodollar
Rate Loans, the Agent shall promptly notify each Bank of the
applicable interest rate under Section 2.2. Each Bank shall, before
11:00 am (Houston time) on the Borrowing Date, make available for the
account of its Applicable Lending Office to the Agent at the Agent's
address set forth in Section 13.4, in same day funds, its Pro Rata
Percentage of such borrowing. After the Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Section
8, on the Borrowing Date, the Agent shall make the borrowing available
to the Borrower at its Applicable Lending Office in immediately
available funds. Each Bank shall post on a schedule attached to its
Note(s): (i) the date and principal amount of each Loan made under
such Note; (ii) the rate of interest each such Loan will bear; and
(iii) each payment of principal thereon; provided, however, that any
failure of such Bank so to xxxx such Note shall not affect the
Borrower's obligations thereunder; and provided further that such
Bank's records as to such matters shall be controlling whether or not
such Bank has so marked such Note. Any deposit to the Borrower's
demand deposit account by the Agent or by JPMorgan Chase Bank (of
funds received from the Agent) pursuant to a request (whether written
or oral) believed by the Agent or by JPMorgan Chase Bank to be an
authorized request by the Borrower for a Loan hereunder shall be
deemed to be a Loan hereunder for all purposes with the same effect as
if the Borrower had in fact requested the Agent to make such Loan.
(e) Unless the Agent shall have received notice from a Bank prior
to the date of any borrowing that such Bank will not make available to
the Agent such Bank's Pro Rata Percentage of such borrowing, the Agent
may assume that such Bank has made such portion available to the Agent
on the date of such borrowing in accordance with this Section 2.1 and
the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent
that such Bank shall not have so made such Pro Rata Percentage
available to the Agent, such Bank and the Borrower severally agree to
repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is repaid
to the Agent, (i) in the case of the Borrower, at the interest rate
applicable at the time to the Loans comprising such borrowing, and
(ii) in the case of such Bank, at the Federal Funds Rate. If such Bank
shall repay to the Agent such corresponding amount, such amount so
repaid shall constitute such Bank's Loan as part of such borrowing for
purposes of this Agreement.
(f) The failure of any Bank to make the Loan to be made by it as
part of any borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Loan on the date of such
borrowing, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on the date
of any borrowing.
2.2 Interest Rate Determination
(a) Except as specified in Sections 2.3(b) and 2.3(c), the Loans
shall bear interest on the unpaid principal amount thereof from time
to time outstanding, until maturity, at a rate per annum (calculated
based on a year of 360 days in the case of the Eurodollar Rate or the
Alternate Base Rate based on the Federal Funds Rate and a year of 365
or 366 days, as the case may be, in the case of the Alternate Base
Rate based on the Prime Rate) equal to the lesser of (A) the rate
specified in the Notice of Borrowing with respect thereto or (B) the
Highest Lawful Rate from the first day to, but not including, the
Expiration Date of the Rate Period then in effect with respect
thereto.
(b) Any principal, interest, fees or other amount owing
hereunder, under any Note or under any other Loan Document that is not
paid when due (whether at stated maturity, by acceleration or
otherwise) shall bear interest at a rate per annum equal to the lesser
of (i) two percent (2%) above the Alternate Base Rate in effect from
time to time or (ii) the Highest Lawful Rate.
2.3 Additional Interest Rate Provisions
(a) The Note may be held by each Bank for the account of its
respective Domestic Lending Office or its respective Eurodollar
Lending Office, and may be transferred from one to the other from time
to time as each Bank may determine.
(b) If the Borrower shall have chosen the Eurodollar Rate in a
Notice of Borrowing and prior to the Borrowing Date, any Bank in good
faith determines (which determination shall be conclusive) that (i)
deposits in Dollars in the principal amount of such Eurodollar Rate
Loan are not being offered to the Eurodollar Lending Office of such
Bank in the Eurodollar interbank market selected by such Bank in its
sole discretion in good faith or (ii) adequate and reasonable means do
not exist for ascertaining the chosen Eurodollar Rate in respect of
such Eurodollar Rate Loan or (iii) the Eurodollar Rate for any Rate
Period for such Eurodollar Rate Loan will not adequately reflect the
cost to such Bank of making such Eurodollar Rate Loan for such Rate
Period, then such Bank will so notify the Borrower and the Agent and
such Eurodollar Rate shall not become effective as to such Eurodollar
Rate Loan on such Borrowing Date or at any time thereafter until such
time thereafter as the Borrower receives notice from the Agent that
the circumstances giving rise to such determination no longer apply.
(c) Anything in this Agreement to the contrary notwithstanding,
if at any time any Bank in good faith determines (which determination
shall be conclusive) that the introduction of or any change in any
applicable law, rule or regulation or any change in the interpretation
or administration thereof by any governmental or other regulatory
authority charged with the interpretation or administration thereof
shall make it unlawful for the Bank (or the Eurodollar Lending Office
of such Bank) to maintain or fund any Eurodollar Rate Loan, such Bank
shall give notice thereof to the Borrower and the Agent. With respect
to any Eurodollar Rate Loan which is outstanding when such Bank so
notifies the Borrower, upon such date as shall be specified in such
notice the Rate Period shall end and the lesser of (i) the Alternate
Base Rate or (ii) the Highest Lawful Rate shall commence to apply in
lieu of the Eurodollar Rate in respect of such Eurodollar Rate Loan
and shall continue to apply unless and until the Borrower changes the
rate as provided in Section 2.2(a). No more than five (5) Business
Days after such specified date, the Borrower shall pay to such Bank
(x) accrued and unpaid interest on such Eurodollar Rate Loan at the
Eurodollar Rate in effect at the time of such notice to but not
including such specified date plus (y) such amount or amounts (to the
extent that such amount or amounts would not be usurious under
applicable law) as may be necessary to compensate such Bank for any
direct or indirect costs and losses incurred by it (to the extent that
such amounts have not been included in the Additional Costs in
calculating such Eurodollar Rate), but otherwise without penalty. If
notice has been given by such Bank pursuant to the foregoing
provisions of this Section 2.3(c), then, unless and until such Bank
notifies the Borrower that the circumstances giving rise to such
notice no longer apply, such Eurodollar Rate shall not again apply to
such Loan or any other Loan and the obligation of such Bank to
continue any Eurodollar Rate Loan as a Eurodollar Rate Loan shall be
suspended. Any such claim by such Bank for compensation under clause
(y) above shall be accompanied by a certificate setting forth the
computation upon which such claim is based, and such certificate shall
be conclusive and binding for all purposes, absent manifest error.
(d) THE BORROWER WILL INDEMNIFY EACH BANK AGAINST, AND REIMBURSE
EACH BANK ON DEMAND FOR, ANY LOSS (INCLUDING LOSS OF REASONABLY
ANTICIPATED PROFITS DETERMINED USING REASONABLE ATTRIBUTION AND
ALLOCATION METHODS), OR REASONABLE COST OR EXPENSE INCURRED OR
SUSTAINED BY SUCH BANK (INCLUDING WITHOUT LIMITATION, ANY LOSS OR
EXPENSE INCURRED BY REASON OF THE LIQUIDATION OR REEMPLOYMENT OF
DEPOSITS OR OTHER FUNDS ACQUIRED BY SUCH BANK TO FUND OR MAINTAIN ANY
EURODOLLAR RATE LOAN) AS A RESULT OF (i) ANY ADDITIONAL COSTS INCURRED
BY SUCH BANK; (ii) ANY PAYMENT OR REPAYMENT (WHETHER AUTHORIZED OR
REQUIRED HEREUNDER OR OTHERWISE) OF ALL OR A PORTION OF ANY LOAN ON A
DAY OTHER THAN THE EXPIRATION DATE OF A RATE PERIOD FOR SUCH LOAN;
(iii) ANY PAYMENT OR PREPAYMENT (WHETHER REQUIRED HEREUNDER OR
OTHERWISE) OF ANY LOAN MADE AFTER THE DELIVERY OF A NOTICE OF
BORROWING BUT BEFORE THE APPLICABLE BORROWING DATE IF SUCH PAYMENT OR
PREPAYMENT PREVENTS THE PROPOSED BORROWING FROM BECOMING FULLY
EFFECTIVE; OR (iv) AFTER RECEIPT BY THE AGENT OF A NOTICE OF
BORROWING, THE FAILURE OF ANY LOAN TO BE MADE OR EFFECTED BY SUCH BANK
DUE TO ANY CONDITION PRECEDENT TO A BORROWING NOT BEING SATISFIED BY
THE BORROWER OR DUE TO ANY OTHER ACTION OR INACTION OF THE BORROWER.
ANY BANK DEMANDING PAYMENT UNDER THIS SECTION 2.3(d) SHALL DELIVER TO
THE BORROWER AND THE AGENT A STATEMENT REASONABLY SETTING FORTH THE
AMOUNT AND MANNER OF DETERMINING SUCH LOSS, COST OR EXPENSE. THE FACTS
SET FORTH IN SUCH STATEMENT SHALL BE CONCLUSIVE AND BINDING FOR ALL
PURPOSES, ABSENT MANIFEST ERROR.
(e) If, after the date of this Agreement, any Bank shall have
determined that the adoption of any applicable law, rule, guideline,
interpretation or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital as a
consequence of its obligations hereunder and under similar lending
arrangements to a level below that which such Bank could have achieved
but for such adoption, change or compliance (taking into consideration
such Bank's policies with respect to capital adequacy) by an amount
deemed by such Bank to be material then the Borrower shall pay to such
Bank such additional amount or amounts as will compensate such Bank
for such reduction.
(f) A certificate of such Bank setting forth such amount or
amounts as shall be necessary to compensate such Bank as specified in
subparagraph (e) above shall be delivered as soon as practicable to
the Borrower (with a copy thereof to the agent) and to the extent
determined in accordance with subparagraph (e) above shall be
conclusive and binding, absent manifest error. The Borrower shall pay
such Bank the amount shown as due on any such certificate within
fifteen (15) days after such Bank delivers such certificate. In
preparing such certificate, such Bank may employ such assumptions and
allocations (consistently applied with respect to advances made by
such Bank or commitments by such Bank to make advances) of costs and
expenses as it shall in good xxxxx xxxx reasonable and may use any
reasonable averaging and attribution method (consistently applied with
respect to advances made by such Bank or commitments by such Bank to
make advances).
2.4 Increase of Commitments
(a) At any time after the Closing Date, provided that no Default
or Event of Default shall have occurred and be continuing, the
Borrower may request from time to time one or more increases of the
Commitments by notice to the Agent in writing of the amount of each
such proposed increase (each such notice, a "Commitment Increase
Notice"). Any such Commitment Increase Notice must offer each Bank the
opportunity to subscribe for its pro rata share of the requested
increase in the Commitments, and the Agent shall promptly provide to
each Bank a copy of any Commitment Increase Notice received by the
Agent. Within 10 Business Days after receipt by the Agent of the
applicable Commitment Increase Notice, each Bank wishing to subscribe
for its pro rata share of the requested increase in the Commitments
must deliver written notice of such fact to the Agent. If any portion
of the requested increase in the Commitments is not subscribed for by
the Banks within such 10-day period, the Borrower may, in its sole
discretion, but with the consent of the Agent as to any Person that is
not at such time a Bank (which consent shall not be unreasonably
withheld or delayed so long as such Person is an Eligible Assignee),
offer to any existing Bank or to one or more additional banks or
financial institutions the opportunity to participate in all or a
portion of such unsubscribed portion of the requested increase in the
Commitments pursuant to Section 2.4 (b) or (c) below, as applicable;
(b) Any additional bank or financial institution that the
Borrower selects to offer a participation in the unsubscribed portion
of the increased Commitments, and that elects to become a party to
this Agreement and obtain a Commitment, shall execute an agreement (a
"New Bank Agreement"), in the form required by the Agent, with the
Borrower and the Agent, whereupon such bank or financial institution
(a "New Bank") shall become a Bank for all purposes hereunder to the
same extent as if originally a party hereto and shall be bound by and
entitled to the benefits of this Agreement, and the signature pages
hereof shall be deemed to add the name and Commitment of such New
Bank, provided that the Commitment of any such New Bank shall be in an
amount not less than $5,000,000;
(c) Any Bank that accepts an offer by the Borrower to increase
its Commitment pursuant to this Section 2.4 shall, in each case,
execute a commitment increase agreement (a "Commitment Increase
Agreement"), in the form required by the Agent, with the Borrower and
the Agent, whereupon such Bank shall be bound by and entitled to the
benefits of this Agreement with respect to the full amount of its
Commitment as so increased, and the signature pages hereof shall be
deemed to be amended to reflect such increase in the Commitment of
such Bank;
(d) The effectiveness of any New Bank Agreement or Commitment
Increase Agreement shall be contingent upon receipt by the Agent of
such corporate resolutions of the Borrower and legal opinions of
in-house counsel to the Borrower, if any, as the Agent shall
reasonably request with respect thereto;
(e) If any bank or financial institution becomes a New Bank
pursuant to Section 2.4(b) or if any Bank's Commitment is increased
pursuant to Section 2.4(c), additional Loans and additional liability
for Facility Letters of Credit made or issued on or after the
effectiveness thereof (the "Re-Allocation Date") shall be made pro
rata based on each Bank's (including each New Bank's) respective
Commitment in effect on and after such Re-Allocation Date (except to
the extent that any such pro rata borrowings or incurring of liability
would result in any Bank making an aggregate principal amount of Loans
and incurring liability for the Facility Letters of Credit in excess
of its Commitment, in which case such excess amount will be allocated
to, and made or incurred by, such New Bank and/or Banks with such
increased Commitments to the extent of, and pro rata based on, their
respective Commitments), and continuations of Eurodollar Rate Loans
outstanding on such Re-Allocation Date shall be effected by repayment
of such Eurodollar Rate Loans on the last day of the Rate Period
applicable thereto and the extension of new Eurodollar Rate Loans pro
rata based on the Banks' respective Commitments in effect on and after
such Re-Allocation Date. In the event that on any such Re-Allocation
Date there are Alternate Base Rate Loans outstanding, the Borrower
shall make prepayments thereof and borrow new Alternate Base Rate
Loans so that, after giving effect thereto, the Alternate Base Rate
Loans outstanding are held pro rata based on the Banks' respective
Commitments in effect on and after such Re-Allocation Date. In the
event that on any such Re-Allocation Date there are Eurodollar Rate
Loans outstanding, such Eurodollar Rate Loans shall remain outstanding
with the respective holders thereof until the expiration of their
respective Rate Periods (unless the Borrower elects to prepay any
thereof in accordance with the applicable provisions of this
Agreement), and interest on and repayments of such Eurodollar Rate
Loans will be paid thereon to the respective Banks holding such
Eurodollar Rate Loans pro rata based on the respective principal
amounts thereof outstanding;
(f) Notwithstanding anything to the contrary in this Section 2.4,
(i) no Bank shall have any obligation to increase its Commitment under
this Section 2.4 unless it agrees in writing to do so in its sole
discretion, (ii) no Bank shall have any right to decrease the amount
of its Commitment as a result of any requested increase of the
Commitments pursuant to this Section 2.4, (iii) the Agent shall have
no obligation to find or locate any New Bank to participate in any
unsubscribed portion of any increase in the Commitments requested by
the Borrower, (iv) each increase in the Commitments requested by the
Borrower shall not be less than $10,000,000, (v) after giving effect
to any increase in the Commitments pursuant to this Section 2.4, the
sum of the Commitments shall not exceed $500,000,000, and (vi) in the
event the Borrower reduces the Commitments pursuant to Section 4.6 or
any other provision of this Agreement more than one time during the
term of this Agreement, the ability of the Borrower to request
increases in the Commitments pursuant to this Section 2.4 shall
automatically terminate; and
(g) The Borrower shall execute and deliver to the Agent (for
delivery by the Agent to each applicable Bank) a new Note payable to
each applicable Bank (including each New Bank) participating in any
increase of the Commitments in the original principal amount of such
Bank's Commitment after giving effect to any such increase of the
Commitments.
3. LETTERS OF CREDIT
3.1 Obligation to Issue. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations and warranties of
the Borrower set forth herein or in any other Loan Document, each
Issuing Bank hereby severally agrees to issue, from time to time
during the period commencing on the Closing Date and ending on the
Business Day immediately prior to the Maturity Date, for the account
of the Borrower through such of the Issuing Bank's branches as it and
the Borrower may jointly agree, one or more Facility Letters of Credit
in accordance with this Section 3. Notwithstanding the foregoing, no
Issuing Bank shall have any obligation to issue, and shall not issue,
any Facility Letter of Credit at any time if:
(a) the aggregate undrawn face amount of Facility Letters of
Credit theretofore issued by such Issuing Bank, after giving effect to
all requested but unissued Facility Letters of Credit, exceeds any
limit imposed by law or regulation upon such Issuing Bank;
(b) after taking into account the face amount of the requested
Facility Letter of Credit the aggregate principal amount of Facility
Letter of Credit Obligations with respect to Facility Letters of
Credit issued by such Issuing Bank for the account of the Borrower
(which amount shall be calculated without giving effect to the
participation of the Banks pursuant to Section 3.5) would exceed such
Issuing Bank's Letter of Credit Commitment;
(c) immediately after giving effect to the issuance of such
Facility Letter of Credit, the aggregate Facility Letter of Credit
Obligations would exceed the L/C Subfacility;
(d) immediately after giving effect to the issuance of such
Facility Letter of Credit, the aggregate of outstanding Loans, would
exceed the Banks' aggregate Commitments; or
(e) such Facility Letter of Credit has an expiry date (i) more
than one year after the date of issuance; or (ii) after the Business
Day immediately preceding the Maturity Date.
3.2 Conditions. The obligation of an Issuing Bank to issue any Facility
Letter of Credit, and of each Bank to participate therein as provided
in Section 3.5 is subject to the satisfaction in full of the
applicable conditions precedent set forth in Section 8 and each of the
following conditions:
(a) the Borrower shall have delivered to the Issuing Bank, at
such times and in such manner as such Issuing Bank may prescribe, a
Letter of Credit application, a Letter of Credit Reimbursement
Agreement, and such other documents and materials as may be required
pursuant to the terms thereof;
(b) the terms of the proposed Facility Letter of Credit shall not
be inconsistent with any term or provision of this Agreement and
otherwise shall be satisfactory to such Issuing Bank; and
(c) as of the date of issuance of such Facility Letter of Credit,
no order, judgment, or decree of any court, arbitrator, or
governmental authority shall purport by its terms to enjoin or
restrain the Issuing Bank from issuing such Facility Letter of Credit,
and no law, rule, or regulation applicable to such Issuing Bank, and
no request or directive (whether or not having the force of law) from
any governmental authority having jurisdiction over such Issuing Bank,
shall prohibit or request that such Issuing Bank refrain from the
issuance of Letters of Credit, generally or the issuance of such
Facility Letter of Credit.
3.3 Issuance of Facility Letters of Credit
(a) The Borrower shall give the Agent written notice (or
telephonic notice confirmed in writing by the Borrower not later than
the requested issuance date of the Facility Letter of Credit) of its
request for the issuance of a Facility Letter of Credit no later than
11:00 a.m. four (4) Business Days prior to the date such Facility
Letter of Credit is requested to be issued. Such notice shall be
irrevocable and shall specify, with respect to such requested Facility
Letter of Credit, the face amount, beneficiary, effective date of
issuance, expiry date (which effective date and expiry date shall be a
Business Day and, with respect to the expiry date, shall be no later
than the Business Day immediately preceding the Maturity Date), the
identity of the Issuing Bank selected by the Borrower, and the purpose
for which such Facility Letter of Credit is to be issued. At the time
a request for the issuance of a Facility Letter of Credit is made, the
Borrower shall also provide the Agent with a copy of the form of
Letter of Credit that the proposed Issuing Bank has agreed to issue.
If the face amount of the requested Facility Letter of Credit is less
than or equal to the Unused L/C Subfacility, as determined by the
Agent as of the close of business on the date of its receipt of
written notice of the requested issuance, the Agent shall so notify
the proposed Issuing Bank in writing (or by telephonic notice promptly
confirmed thereafter in writing) not later than the close of business
on the second Business Day following the Agent's receipt of the
Borrower's written notice. The Issuing Bank shall issue such Facility
Letter of Credit on the date requested by the Borrower, unless (i) on
or before the Business Day prior to such issuance date, such Issuing
Bank shall have received written notice from the Agent or any Bank
that the conditions precedent to the issuance of a Facility Letter of
Credit as set forth in Section 3.2 have not been met; or (ii) on the
requested issuance date, such Issuing Bank has actual knowledge that
such conditions precedent have not been met. If an Issuing Bank
receives written notice, or has actual knowledge, that the conditions
precedent to the issuance of a Facility Letter of Credit have not been
met, then such Issuing Bank shall have no obligation to issue, and
shall not issue, any Facility Letter of Credit until (i) such notice
is withdrawn; or (ii) such Issuing Bank receives a notice from the
Agent that the condition(s) described in such notice have been waived
in accordance with the provisions of this Agreement. The Issuing Bank
shall give the Agent prompt written notice (or telephonic notice
promptly confirmed in writing) of the issuance of any Facility Letter
of Credit. Any Letter of Credit issued by an Issuing Bank in
compliance with the provisions of this Section 3.3 shall be a Facility
Letter of Credit.
(b) An Issuing Bank shall not extend or amend any Facility Letter
of Credit unless the requirements of this Section 3.3 are met as
though a new Facility Letter of Credit was being requested and issued.
(c) An Issuing Bank or any Bank may issue Non-Facility Letters of
Credit for its own account, and at its own risk. None of the
provisions of this Section 3 shall apply to any Non-Facility Letter of
Credit.
3.4 Reimbursement Obligations; Duties of Issuing Bank
(a) Notwithstanding any provisions to the contrary in any Letter
of Credit Reimbursement Agreement:
(1) the Borrower shall reimburse the applicable Issuing Bank
for a drawing under a Facility Letter of Credit issued by such
Issuing Bank no later than the earlier of (A) the time specified
in the related Letter of Credit Reimbursement Agreement; or (B)
one (1) Business Day after the payment of such drawing by such
Issuing Bank; and
(2) the Borrower's Reimbursement Obligations with respect to
a drawing under a Facility Letter of Credit shall bear interest
from the date of such drawing to the date paid in full at the
higher of (A) the interest rate specified in the applicable
Letter of Credit Reimbursement Agreement; or (B) the interest
rate for past due Alternate Base Rate Loans; but not greater than
the Highest Lawful Rate.
(b) No action taken or omitted to be taken by an Issuing Bank in
connection with any Facility Letter of Credit shall (i) result in any
liability on the part of such Issuing Bank to any Bank, unless such
Issuing Bank's action or omission constitutes willful misconduct or
gross negligence; or (ii) relieve any Bank of any of its obligations
to such Issuing Bank hereunder, unless the Facility Letter of Credit
in question was issued in contravention of the provisions of Section
3.3 or at a time during which a notice, described in Section 3.3, from
such Bank to such Issuing Bank remained in effect. Each Bank agrees
that, prior to making any payment to a beneficiary with respect to a
drawing under a Facility Letter of Credit, the Issuing Bank shall be
responsible only to confirm that documents required by the terms of
such Facility Letter of Credit to be delivered as a condition
precedent to such drawing have been delivered and that the same appear
on their face to conform with the requirements thereof. Each Bank
further agrees that such Issuing Bank may assume that documents
appearing on their face to be the documents required to be delivered
as a condition precedent to a drawing do in fact comply.
3.5 Participations
(a) Immediately upon the issuance by an Issuing Bank of any
Facility Letter of Credit in compliance with the provisions of Section
3.3, and immediately upon conversion of a Letter of Credit of an
Issuing Bank to a Facility Letter of Credit pursuant to Section 3.10,
each Bank shall be deemed to have irrevocably and unconditionally
purchased and received from such Issuing Bank, without recourse or
warranty, an undivided interest and participation to the extent of
such Bank's Pro Rata Percentage in such Facility Letter of Credit,
including without limitation, all obligations of the Borrower with
respect thereto and any security therefor or guaranty pertaining
thereto.
(b) An Issuing Bank shall promptly notify the Agent, and the
Agent shall promptly notify the other Banks, if the Borrower fails to
reimburse such Issuing Bank for payments made by such Issuing Bank in
respect of drawings by a beneficiary under a Facility Letter of
Credit. Upon each such other Banks receipt of such notice, such Bank
shall unconditionally pay to the Agent, for the account of such
Issuing Bank, an amount equal to such Bank's Pro Rata Percentage of
the unreimbursed payment made by such Issuing Bank under the Facility
Letter of Credit. Such payment shall be made by such Bank in Dollars
and in same day funds on the day such Bank receives notice from the
Agent that such payment is owing, if such notice is received by such
Bank prior to 11:00 a.m. (Houston time) on a Business Day; if such
notice is not received by such time, then such Bank shall remit its
payment on the next Business Day following the day such notice is
received. Any amount payable by a Bank under this Section 3.5(b) which
is not paid when due pursuant to the terms hereof shall be payable on
demand, together with interest thereon at the Federal Funds Rate from
the date such payment was due until paid in full. The failure of any
Bank to make any payment owing by it under this Section 3.5(b) shall
neither relieve nor increase the obligation of any other Bank to make
any payment owing by it under this Section 3.5(b). The Agent shall
promptly remit to the applicable Issuing Bank all amounts received by
the Agent, for the account of such Issuing Bank, from each Bank
pursuant to this Section 3.5(b). No payment made by a Bank pursuant to
this Section 3.5(b) shall prejudice the ability of such Bank to claim
that the Issuing Bank to which such payment is made is subject to
liability under Section 3.4(b).
(c) Whenever an Issuing Bank receives a payment with respect to a
Reimbursement Obligation (including any interest thereon) for which
such Issuing Bank has received payments from a Bank pursuant to
Section 3.5(b), such Issuing Bank shall promptly remit to the Agent
and the Agent shall promptly remit to each Bank which has funded its
participating interest therein, in Dollars and in the kind of funds so
received, an amount equal to each Bank's Pro Rata Percentage thereof.
Each such payment shall be made by the Issuing Bank or the Agent, as
the case may be, on the Business Day on which such Person receives the
funds paid to such Person pursuant to the preceding sentence, if
received prior to 11:00 a.m. (Houston time) on such Business Day, and
otherwise on the next succeeding Business Day.
(d) Upon the request of the Agent or any Bank, an Issuing Bank
shall furnish to the Agent or each Bank copies of any Facility Letter
of Credit, Letter of Credit Reimbursement Agreement, or Letter of
Credit application to which Issuing Bank is party, and such other
documentation as may reasonably be requested by the Agent or such Bank
with respect to a Facility Letter of Credit issued by such Issuing
Bank.
(e) The obligations of a Bank under Section 3.5(b) to make
payments to the Agent for the account of an Issuing Bank with respect
to a Facility Letter of Credit shall be irrevocable, not subject to
any qualification or exception whatsoever, and shall be made in
accordance with, but not subject to, the terms and conditions of this
Agreement under all circumstances (assuming that such Issuing Bank has
issued such Facility Letter of Credit in compliance with the
provisions of Section 3.3), including, without limitation, any of the
following circumstances:
(i) any lack of validity or enforceability of this Agreement
or any other Loan Document;
(ii) the existence of any claim, set off, defense, or other
right which the Borrower may have at any time against a
beneficiary named in a Facility Letter of Credit or any
transferee of any Facility Letter of Credit (or any Person for
whom any such transferee may be acting), the Agent, any Bank, the
Issuing Bank, or any Person, whether in connection with this
Agreement, any Facility Letter of Credit, the transactions
contemplated herein, or any unrelated transactions (including any
underlying transactions between the Borrower and the beneficiary
named in any Facility Letter of Credit);
(iii) any draft, certificate, of any other document
presented under the Facility Letter of Credit proving to be
forged, fraudulent, invalid, or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any Loan
Document;
(v) any failure by the Agent or an Issuing Bank to make any
reports required pursuant to Section 3.8; or
(vi) the occurrence of any Default or Event of Default.
3.6 Payment of Reimbursement Obligations
(a) The Borrower agrees to pay to each Issuing Bank the amount of
all Reimbursement Obligations, interest, and other amounts payable to
such Issuing Bank under or in connection with any Facility Letter of
Credit immediately when due, irrespective of any claim, set off,
defense, or other right which the Borrower may have at any time
against any Issuing Bank or any other Person.
(b) In the event any payment by the Borrower received by an
Issuing Bank with respect to a Facility Letter of Credit and
distributed to Banks on account of their respective participation is
thereafter set aside, avoided, or recovered from such Issuing Bank in
connection with any Debtor Laws, each Bank which received such
distribution shall, upon demand by such Issuing Bank, contribute each
Bank's Pro Rata Percentage of the amount set aside, avoided, or
recovered together with interest at the rate required to be paid by
the Issuing Bank upon the amount required to be repaid by it.
3.7 Exoneration. As between the Borrower, each Bank, and each Issuing
Bank, the Borrower assumes all risks of the acts and omissions of, or
misuse of the Facility Letter of Credit issued by such Issuing Bank
by, the respective beneficiaries of such Facility Letter of Credit. In
furtherance and not in limitation of the foregoing, subject to the
provisions of the Letter of Credit applications, the Issuing Bank and
the Banks shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness, or
legal effect of any document submitted by any party in connection with
the application for and issuance of a Facility Letter of Credit, even
if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent, or forged;
(b) the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Facility Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason;
(c) failure of the beneficiary of a Facility Letter of Credit to
comply duly with conditions required in order to draw upon such
Facility Letter of Credit, provided that the Issuing Bank complies
with the provisions of Section 3.4(b);
(d) errors, omissions, interruptions, or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex, or
otherwise, whether or not they be in cipher;
(e) errors in interpretation of technical terms;
(f) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Facility Letter
of Credit or of the proceeds thereof;
(g) the misapplication by the beneficiary of a Facility Letter of
Credit; or
(h) any consequences arising from causes beyond the control of
the Agent, any Bank, or any Issuing Bank, including, without
limitation, any act or omission, whether rightful or wrongful, of any
present or future de jure or de facto government or Governmental
Authority. In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by an Issuing Bank under or in connection with the Facility Letters of
Credit or any related certificates, if taken or omitted in good faith
and not constituting gross negligence or willful misconduct, shall not
put the Issuing Bank, the Agent, or any Bank under any resulting
liability to the Borrower or relieve the Borrower of any of its
obligations hereunder to any such Person.
3.8 Issuing Bank's Reporting Requirements. In addition to the reports
required by Section 3.5, each Issuing Bank shall, no later than the
tenth (10th) Business Day following the last day of each quarter of
such Issuing Bank's fiscal year, provide to the Agent and the Borrower
a schedule for Standby Letters of Credit issued as Facility Letters of
Credit, in form and substance reasonably satisfactory to the Agent,
showing the date of issue, beneficiary, face amount, expiration date,
and the reference number of each Facility Letter of Credit issued by
such Issuing Bank which was outstanding at any time during such
quarter and the aggregate amount payable by the Borrower during the
quarter pursuant to Section 3.9.
3.9 Compensation for Facility Letters of Credit
(a) Facility Letter of Credit Fee. The Borrower agrees to pay to
the Agent, for the account of each Bank, in the case of each Letter of
Credit issued as, or converted to (for transactions which convert
Letters of Credit in existence on the Closing Date to Facility Letters
of Credit pursuant to Section 3.10), a Facility Letter of Credit, a
facility letter of credit fee (the "Facility Letter of Credit Fee")
payable quarterly in arrears equal to the applicable Facility Letter
of Credit Fee Percentage of the average amount available to be drawn
under such Letter of Credit during the quarter then ending multiplied
by the actual number of days during such quarter on which such Letter
of Credit was outstanding, divided by 360 but no less than $500.00 per
Facility Letter of Credit per year. The Borrower shall also pay to the
Agent in the event of any extension or modification of a Facility
Letter of Credit which extends the expiration date or increases the
maximum amount available for drawing thereunder an additional fee
calculated and payable on the same basis as that set forth in the
first sentence of this Section 3.9(a) with respect to any such
extension or additional amount. Whenever an Issuing Bank receives a
payment from the Borrower with respect to any fees incurred in
connection with any Facility Letter of Credit issued by such Issuing
Bank, such Issuing Bank shall promptly remit to the Agent, and the
Agent shall promptly remit to each Bank which has funded its
participation in such Facility Letter of Credit, in Dollars and in
same day funds, an amount equal to such Bank's Pro Rata Percentage of
such fees.
(b) Issuing Bank's Charges. Each Issuing Bank shall have the
right to receive, solely for its own account, such amounts as it and
the Borrower may agree, in writing, to compensate such Issuing Bank
with respect to issuance fees and such Issuing Bank's out-of-pocket
costs of issuing and servicing Facility Letters of Credit.
(c) Increased Capital. If either (i) the introduction of or any
change in or in the interpretation of any law or regulation, or (ii)
compliance by any Issuing Bank or any Bank with any guideline or
request from any central bank or other Governmental Authority (whether
or not having the force of law) affects or would affect (by an amount
deemed by such Issuing Bank to be material) the capital required or
expected to be maintained by it or any corporation controlling it, and
such Bank or such Issuing Bank determines, on the basis of reasonable
allocations, that the amount of such capital is increased by (an
amount deemed by such Issuing Bank to be material) or is based (to a
degree deemed by such Issuing Bank to be material) upon its issuance
or maintenance of or participation in, or commitment to issue or to
participate in, the Facility Letters of Credit then, upon demand by
such Bank or such Issuing Bank, the Borrower shall immediately pay to
the Agent (for the account of each Bank) or such Issuing Bank, from
time to time as specified by such Bank or such Issuing Bank,
additional amounts sufficient to compensate such Bank or such Issuing
Bank therefor. A certificate as to such amounts submitted to the
Borrower by such Bank or such Issuing Bank shall, in the absence of
manifest error, be conclusive and binding for all purposes.
3.10 Transitional Provisions. Schedule 3.10 contains a schedule of certain
Letters of Credit issued for the account of the Borrower prior to the
Closing Date by one or more of the Issuing Banks. Subject to the
satisfaction of the conditions precedent contained in Section 8, on
the Closing Date (a) such Letters of Credit shall be deemed to be
converted into Facility Letters of Credit issued pursuant to Section
3.3; and (b) the face amount of such Letters of Credit shall be
included in the calculation of the Facility Letter of Credit
Obligations.
4. PAYMENTS AND PREPAYMENTS
4.1 Required Prepayments
(a) The Borrower agrees that if at any time it or the Agent
determines that the sum of (i) the aggregate principal amount of Loans
outstanding and (ii) the face amount of Facility Letters of Credit
issued hereunder exceeds the Commitments, then the Borrower shall make
a prepayment of principal of the Loans in an amount at least equal to
such excess.
(b) Upon the Borrower's reduction or termination of the
Commitments under Section 4.6, the Borrower shall make such
prepayments as are required by the terms of Section 4.6.
(c) All cash proceeds distributed to the Borrower from the
Trunkline LNG Holdings Sale shall be immediately applied against the
Borrower's Debt under the Term Loan Facility, to the extent then
outstanding.
4.2 Repayment of the Loans. Borrower shall repay the principal amount of
each Loan, on the last day of the Rate Period for such Loan, together
with all accrued and unpaid interest thereon as of such date,
irrespective of any claim, set off, defense, or other right which the
Borrower may have at any time against any Bank, the Agent or any other
Person.
4.3 Place of Payment or Prepayment. All payments and prepayments made in
accordance with the provisions of this Agreement or of the Notes or of
any other Loan Document or of the Letter of Credit Reimbursement
Agreements in respect of commitment fees or of principal or interest
on the Notes shall be made to the Agent for the account of the Banks
at its Domestic Lending Office, no later than noon, Houston time, in
immediately available funds. Unless the Agent shall have received
notice from the Borrower prior to the date on which any payment is due
to the Banks hereunder that the Borrower will not make any payment due
hereunder in full, the Agent may assume that the Borrower has made
such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due to such Bank. If
and to the extent the Borrower shall not have so made such payment in
full to the Agent, each Bank shall repay to the Agent forthwith on
demand such amount distributed to such Bank together with interest
thereon, for each day from the date such amount is distributed to such
Bank until the date such Bank repays such amount to the Agent, at the
Federal Funds Rate. If and to the extent that the Agent receives any
payment or prepayment from the Borrower and fails to distribute such
payment or prepayment to the Banks ratably on the basis of their
respective Pro Rata Percentage on the day the Agent receives such
payment or prepayment, and such distribution shall not be so made by
the Agent in full on the required day, the Agent shall pay to each
Bank such Bank's Pro Rata Percentage thereof together with interest
thereon at the Federal Funds Rate for each day from the date such
amount is paid to the Agent by the Borrower until the date the Agent
pays such amount to such Bank.
4.4 No Prepayment Premium or Penalty. Each prepayment pursuant to Section
4.1 or 4.3 shall be without premium or penalty, subject in the case of
Eurodollar Rate Loans to the provisions of Section 2.3(d).
4.5 Taxes. All payments (whether of principal, interest, reimbursements or
otherwise) under this Agreement or on the Notes or in respect of
Facility Letter of Credit Obligations shall be made by the Borrower
without set off or counterclaim and shall be made free and clear of
and without deduction for any present or future tax, levy, impost or
any other charge, if any, of any nature whatsoever now or hereafter
imposed by any taxing authority. If the making of such payments is
prohibited by law, unless such a tax, levy, impost or other charge is
deducted or withheld therefrom, the Borrower shall pay to the Banks,
on the date of each such payment, such additional amounts as may be
necessary in order that the net amounts received by the Banks after
such deduction or withholding shall equal the amounts which would have
been received if such deduction or withholding were not required.
4.6 Reduction or Termination of Commitments. The Borrower may at any time
or from time to time reduce or terminate the Commitment of each Bank
by giving not less than ten (10) full Business Days' prior written
notice to such effect to the Agent, provided that any partial
reduction shall be in the amount of $1,000,000.00 or an integral
multiple thereof. Concurrently with each such reduction or
termination, all amounts in excess of the reduced Commitments shall be
automatically due and payable and it is a condition to the
effectiveness of such reduction that the Borrower shall immediately
prepay the entire amount of such excess together with all accrued
interest thereon and such other amounts that may be required to be
paid in consequence of such prepayment under Section 2.3(d). Promptly
after the Agent's receipt of such notice of reduction, the Agent shall
notify each Bank of the proposed reduction and such reduction shall be
effective on the date specified in the Borrower's notice with respect
to such reduction and shall reduce the Commitment of each Bank
proportionately in accordance with its Pro Rata Percentage (and such
reduction shall also ratably reduce the Commitments related to
Facility Letters of Credit). After each such reduction, the commitment
fee shall be calculated upon the Commitments as so reduced. The
Commitment of each Bank shall automatically terminate on the Maturity
Date or in the event of acceleration of the maturity date of the
Notes. Each reduction of the Commitment hereunder shall be
irrevocable.
5. COMMITMENT FEE AND OTHER FEES
5.1 Commitment Fee. The Borrower agrees to pay to the Agent for the
account of each Bank a commitment fee based on a year of 360 days,
from the Closing Date to, but not including, the Maturity Date (or
such earlier date as of which all Commitments shall have terminated),
on the daily average unused amount of each Bank's Commitment, such
commitment fee to be payable quarterly in arrears on (a) the last day
of each March, June, September, and December, commencing on June 30,
2004 and (b) the Maturity Date, at a rate per annum changing with the
rating of the Borrower's unsecured, non-credit enhanced Senior Funded
Debt, and determined in accordance with the following grid:
==============================================================================
Rating of the Borrower's unsecured, non-credit enhanced Senior Percentage Per
Funded Debt Annum
--------------------------------------------------------------------------------
Equal to or greater than A3 by Xxxxx'x Investor Service, Inc.
and equal to or greater than A- by Standard and Poor's Ratings
Group 0.100%
--------------------------------------------------------------------------------
Baa1 by Xxxxx'x Investor Service, Inc. or BBB+ by Standard and
Poor's Ratings Group 0.125%
--------------------------------------------------------------------------------
Baa2 by Xxxxx'x Investor Service, Inc. or BBB by Standard and
Poor's Ratings Group 0.150%
--------------------------------------------------------------------------------
Baa3 by Xxxxx'x Investor Service, Inc. or BBB- by Standard and
Poor's Ratings Group 0.175%
--------------------------------------------------------------------------------
Equal to or less than Ba1 by Xxxxx'x Investor Service, Inc. and
equal to or less than BB+ by Standard and Poor's Ratings Group 0.300%
================================================================================
Notwithstanding the foregoing provisions, in the event that ratings of the
Borrower's unsecured, non-credit enhanced Senior Funded Debt under Standard &
Poor's Ratings Group and under Xxxxx'x Investor Service, Inc. fall within
different rating categories which are not functional equivalents, the
above-described commitment fee shall be based on the higher of such ratings if
there is only one category differential between the functional equivalents of
such ratings, and if there is a two category differential between the functional
equivalents of such ratings, the component of pricing from the grid set forth
above shall be based on the rating category which is then in the middle of or
between the two category ratings which are then in effect, and if there is
greater than a two category differential between the functional equivalents of
such ratings, the component of pricing from the grid set forth above shall be
based on the rating category which is then one rating category above the lowest
of the two category ratings which are then in effect. Additionally, in the event
that Borrower withdraws from having its unsecured, non-credit enhanced Senior
Funded Debt being rated by Xxxxx'x Investor Service, Inc. or Standard and Poor's
Ratings Group, so that one or both of such ratings services fails to rate the
Borrower's unsecured, non-credit enhanced Senior Funded Debt, the component of
pricing from the grid set forth above for purposes of determining the applicable
commitment fee for all periods thereafter shall be 0.300% until such time as the
Borrower subsequently causes its unsecured, non-credit enhanced Senior Funded
Debt to be rated by both of said ratings services.
5.2 Facility Letter of Credit Fee. The Borrower shall pay to the Agent,
for the account of each Issuing Bank, the Facility Letter of Credit
Fees as set forth in Section 3.9.
5.3 Fees Not Interest; Nonpayment. The fees described in this Agreement
represent compensation for services rendered and to be rendered
separate and apart from the lending of money or the provision of
credit and do not constitute compensation for the use, detention, or
forbearance of money, and the obligation of the Borrower to pay each
fee described herein shall be in addition to, and not in lieu of, the
obligation of the Borrower to pay interest, other fees described in
this Agreement, and expenses otherwise described in this Agreement.
Fees shall be payable when due in Dollars and in immediately available
funds. The commitment fee referred to in Section 5.1 shall be
non-refundable, and shall, to the fullest extent permitted by law,
bear interest, if not paid when due, at a rate per annum equal to the
lesser of (a) five percent (5%) above the Alternate Base Rate as in
effect from time to time or (b) the Highest Lawful Rate.
5.4 Utilization Fee. The Borrower agrees to pay to Agent, for the account
of each Bank, a utilization fee at a rate per annum equal to 0.125%,
based on a year of 360 days, from the Closing Date to, but not
including, the Maturity Date (or such earlier date as of which the
Commitments have been terminated), on the daily average of the
aggregate principal amount of the Loans outstanding on those days when
such aggregate principal amount of the Loans outstanding exceeds
thirty-three percent (33%) of the aggregate amount of the Commitments,
such utilization fee to be payable quarterly in arrears on (a) the
last day of each March, June, September, and December, commencing on
June 30, 2004, and (b) the Maturity Date.
6. APPLICATION OF PROCEEDS
6.1 Application of Proceeds. The Borrower agrees that the proceeds of the
Loans shall be used to provide working capital and for general
corporate purposes, including without limitation, financing the
Borrower's (i) acquisition of Qualifying Assets, (ii) open market
acquisition of its Senior Notes, and (iii) repurchase of its own
common stock and preferred equity securities to the extent permitted
under the terms of Section 10.11.
7. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
7.1 Organization and Qualification. The Borrower and each Subsidiary: (a)
are corporations duly organized, validly existing, and in good
standing under the laws of their respective states of incorporation;
(b) have the corporate or organizational power to own their respective
properties and to carry on their respective businesses as now
conducted; and (c) are duly qualified as foreign corporations (or, in
the case of any Southern Union Trust, trusts) to do business and are
in good standing in every jurisdiction where such qualification is
necessary except when the failure to so qualify would not or does not
have a Material Adverse Effect. The Borrower is a corporation
organized under the laws of Delaware and has the Subsidiaries listed
on Schedule 7.1 attached hereto and made a part hereof for all
purposes, and no others, each of which is a Delaware corporation
unless otherwise noted on Schedule 7.1. None of the Subsidiaries
listed on Schedule 7.1 as "Inactive Subsidiaries" conducts or will
conduct any business, and none of such Subsidiaries has any assets
other than minimum legal capitalization.
7.2 Financial Statements. The Borrower has furnished the Banks with (a)
the Borrower's annual audit reports containing the Borrower's
consolidated balance sheets, statements of income and stockholder's
equity and a cash flow statements as at and for the twelve month
period ending June 30, 2003, accompanied by the certificate of Price
Waterhouse Coopers and (b) the Borrower's unaudited financial report
as of the fiscal quarter ending December 31, 2003. These statements
are complete and correct and present fairly in accordance with GAAP,
consistently applied throughout the periods involved, the consolidated
financial position of the Borrower and the Subsidiaries and the
results of its and their operations as at the dates and for the
periods indicated subject, as to interim statements only, to changes
resulting from customary end-of-year credit adjustments which in the
aggregate will not be material. There has been no material adverse
change in the condition, financial or otherwise, of the Borrower or
any Subsidiary since December 31, 2003.
7.3 Litigation. Except as disclosed on Schedule 7.3 or pursuant to Section
7.16, there is no: (a) action or proceeding pending or, to the
knowledge of the Borrower, threatened against the Borrower or any
Subsidiary before any court, administrative agency or arbitrator which
is reasonably expected to have a Material Adverse Effect; (b) judgment
outstanding against the Borrower for the payment of money; or (c)
other outstanding judgment, order or decree affecting the Borrower or
any Subsidiary before or by any administrative or governmental
authority, compliance with or satisfaction of which may reasonably be
expected to have a Material Adverse Effect.
7.4 Default. Neither the Borrower nor any Subsidiary is in default under
or in violation of the provisions of any instrument evidencing any
Debt or of any agreement relating thereto or any judgment, order,
writ, injunction or decree of any court or any order, regulation or
demand of any administrative or governmental instrumentality which
default or violation might have a Material Adverse Effect.
7.5 Title to Assets. The Borrower and each Subsidiary have good and
marketable title to their respective assets, subject to no Liens
except those permitted in Section 10.2.
7.6 Payment of Taxes. The Borrower and each Subsidiary have filed all tax
returns required to be filed and have paid all taxes shown on said
returns and all assessments which are due and payable (except such as
are being contested in good faith by appropriate proceedings for which
adequate reserves for their payment have been provided in a manner
consistent with the accounting practices followed by the Borrower as
of December 31, 2003). The Borrower is not aware of any pending
investigation by any taxing authority or of any claims by any
governmental authority for any unpaid taxes, except as disclosed on
Schedule 7.6.
7.7 Conflicting or Adverse Agreements or Restrictions. Neither the
Borrower nor any Subsidiary is a party to any contract or agreement or
subject to any restriction which would have a Material Adverse Effect.
Neither the execution and delivery of this Agreement or the Notes or
any other Loan Document nor the consummation of the transactions
contemplated hereby nor fulfillment of and compliance with the
respective terms, conditions and provisions hereof or of the Notes or
of any instruments required hereby will conflict with or result in a
breach of any of the terms, conditions or provisions of, or constitute
a default under, or result in any violation of, or result in the
creation or imposition of any lien (other than as contemplated or
permitted by this Agreement) on any of the property of the Borrower or
any Subsidiary pursuant to (a) the charter or bylaws applicable to the
Borrower or any Subsidiary; (b) any law or any regulation of any
administrative or governmental instrumentality; (c) any order, writ,
injunction or decree of any court; or (d) the terms, conditions or
provisions of any agreement or instrument to which the Borrower or any
Subsidiary is a party or by which it is bound or to which it is
subject.
7.8 Authorization, Validity, Etc. The Borrower has the corporate power and
authority to make, execute, deliver and carry out this Agreement and
the transactions contemplated herein, to make the borrowings provided
for herein, to execute and deliver the Notes and to perform its
obligations hereunder and under the Notes and the other Loan Documents
to which it is a party and all such action has been duly authorized by
all necessary corporate proceedings on its part. This Agreement has
been duly and validly executed and delivered by the Borrower and
constitutes the valid and legally binding agreement of the Borrower
enforceable in accordance with its terms, except as limited by Debtor
Laws; and the Notes and the other Loan Documents, when duly executed
and delivered by the Borrower pursuant to the provisions hereof, will
constitute the valid and legally binding obligation of the Borrower
enforceable in accordance with the terms thereof and of this
Agreement, except as limited by Debtor Laws.
7.9 Investment Company Act Not Applicable. Neither the Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act
of 1940, as amended.
7.10 Public Utility Holding Company Act Not Applicable. Neither the
Borrower nor any Subsidiary is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding
company", or an affiliate of a "subsidiary company" of a "holding
company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
7.11 Regulations G, T, U and X. No Loan shall be a "purpose credit secured
directly or indirectly by margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System
("margin stock"); none of the proceeds of any Loan will be used to
extend credit to others for the purpose of purchasing or carrying any
margin stock, or for any other purpose which would constitute this
transaction a "purpose credit secured directly or indirectly by margin
stock" within the meaning of said Regulation U, as now in effect or as
the same may hereafter be in effect. Neither the Borrower nor any
Subsidiary will take or permit any action which would involve the
Banks in a violation of Regulation G, Regulation T, Regulation U,
Regulation X or any other regulation of the Board of Governors of the
Federal Reserve System or a violation of the Securities Exchange Act
of 1934, in each case as now or hereafter in effect. After applying
proceeds of the Loans used to acquire the equity interests described
in the definition of "Qualifying Assets", not more than twenty-five
percent (25%) of the value (as determined by any reasonable method) of
the assets subject to the negative pledge set forth in Section 10.2 of
the Credit Agreement and the restrictions on disposition of assets set
forth in Section 10.8 of the Credit Agreement is represented by margin
stock.
7.12 ERISA. No Reportable Event (as defined in ss. 4043(b) of ERISA) has
occurred with respect to any Plan. Each Plan complies in all material
respects with a applicable provisions of ERISA, and the Borrower and
each Subsidiary have filed all reports required by ERISA and the Code
to be filed with respect to each Plan. The Borrower has no knowledge
of any event which could result in a liability of the Borrower or any
Subsidiary to the Pension Benefit Guaranty Corporation. The Borrower
and each Subsidiary have met all requirements with respect to funding
the Plans imposed by ERISA or the Code. Since the effective date of
Title IV of ERISA, there have not been any, nor are there now existing
any, events or conditions that would permit any Plan to be terminated
under circumstances which would cause the lien provided under ss. 4068
of ERISA to attach to any property of the Borrower or any Subsidiary.
The value of the Plans' benefits guaranteed under Title IV of ERISA on
the date hereof does not exceed the value of such Plans' assets
allocable to such benefits as of the date of this Agreement and shall
not be permitted to do so hereafter.
7.13 No Financing of Certain Security Acquisitions. None of the proceeds of
any Loan will be used to acquire any security in any transaction that
is subject to ss.13 or ss.14 of the Securities Exchange Act of 1934,
as amended, except the equity interests described in subparagraph (ii)
of the definition of "Qualifying Assets".
7.14 Franchises, Co-Licenses, Etc. The Borrower and each Subsidiary own or
have obtained all the material governmental permits, certificates of
authority, leases, patents, trademarks, service marks, trade names,
copyrights, franchises and licenses, and rights with respect thereto,
required or necessary (or, in the sole and independent judgment of the
Borrower, prudent) in connection with the conduct of their respective
businesses as presently conducted or as proposed to be conducted.
7.15 Lines of Business. The nature of the Borrower's lines of business are
predominately the following: (a) the operation of energy distribution
and transportation services, including without limitation, natural gas
sales and transportation and distribution, propane sales and
distribution and promotion, marketing and sale of compressed natural
gas and liquified natural gas; (b) the development and marketing of
fuel cell and distributive energy options; (c) electric
marketing/generation; (d) the operation of fuel oil distribution and
transportation networks; and (e) sales and rentals of appliances
utilizing one or more of the fuel or energy options specified in this
Section 7.15.
7.16 Environmental Matters. Except as disclosed in Schedule 7.16, all
facilities and property owned or leased by the Borrower or any
Subsidiary have been and continue to be, owned or leased and operated
by the Borrower and each Subsidiary in material compliance with all
Environmental Laws; (i) there has not been (during the period of the
Borrower's, or a Subsidiary's ownership or lease) any Release of
Hazardous Materials at, on or under any property now (or, to the
Borrower's knowledge, previously) owned or leased by the Borrower or
any Subsidiary (A) in quantities that would be required to be reported
under any Environmental Law, (B) that required, or may reasonably be
expected to require, the Borrower to expend funds on remediation or
cleanup activities pursuant to any Environmental Law except for
remediation or clean-up activities that would not be reasonably
expected to have a Material Adverse Effect, or (C) that otherwise,
singly or in the aggregate, has, or may reasonably be expected to
have, a Material Adverse Effect; (ii) the Borrower and each Subsidiary
have been issued and are in material compliance with all permits,
certificates, approvals, orders, licenses and other authorizations
relating to environmental matters necessary for their respective
businesses; and (iii) there are no polychlorinated biphenyls (PCB's)
or asbestos-containing materials or surface impoundments in any of the
facilities now (or, to the knowledge of the Borrower, previously)
owned or leased by the Borrower or any Subsidiary, except for
asbestos-containing materials of the type and in quantities that, to
the knowledge of the borrower, do not currently require remediation,
and if remediation of such asbestos-containing materials is hereafter
required for any reason, such remediation activities would not
reasonably be expected to have a Material Adverse Effect; (iv)
Hazardous Materials have not been generated, used, treated, recycled,
stored or disposed of in any of the facilities or on any of the
property now (or, to the knowledge of the Borrower, previously) owned
or leased by the Borrower or any Subsidiary during the time of the
Borrower's or such Subsidiary's ownership or leased by the Borrower or
any Subsidiary during the time of the Borrower's or such Subsidiary's
ownership except in material compliance with all applicable
Environmental Laws; and (v) all underground storage tanks located on
the property now (or, to the knowledge of the Borrower, previously)
owned or leased by the Borrower or any Subsidiary have been (and to
the extent currently owned or leased are) operated in material
compliance with all applicable Environmental Laws.
7.17 No Agreements Prohibiting Pledge of Southern Union Panhandle Stock.
Except for the applicable negative covenants of this Agreement and the
Term Loan Facility, the Borrower is not a party to any contract or
other agreement with any Person that directly or indirectly prohibits
the Borrower from granting any Lien against the stock or other equity
interests in Southern Union Panhandle (whether common, preferred or
another class of equity ownership) at any time owned and held by the
Borrower as security for any Debt of the Borrower or any of its
Subsidiaries.
8. CONDITIONS
The obligation of the Banks to make any Loans or issue any Facility
Letters of Credit is subject to the following conditions:
8.1 Representations True and No Defaults
(a) The representations and warranties contained in Section 7
shall be true and correct on and as of the particular Borrowing Date
as though made on and as of such date;
(b) The Borrower shall not be in default in the due performance
of any covenant on its part contained in this Agreement;
(c) no material adverse change shall have occurred with respect
to the business, assets, properties or condition (financial or
otherwise) of the Borrower reflected in the quarterly financial
statements of the Borrower dated December 31, 2003 (copies of such
audited financial statements having been supplied to the Agent and
each Bank); and
(d) no Event of Default or Default shall have occurred and be
continuing.
8.2 Governmental Approvals. The Borrower shall have obtained all orders,
approvals or consents of all public regulatory bodies required for the
making and carrying out of this Agreement, the making of the
borrowings pursuant hereto, the issuance of the Notes to evidence such
borrowings, and the execution and delivery of the Security Documents.
8.3 Compliance With Law. The business and operations of the Borrower and
each Subsidiary as conducted at all times relevant to the transactions
contemplated by this Agreement to and including the close of business
on the particular Borrowing Date shall have been and shall be in
compliance in all material respects with all applicable State and
Federal laws, regulations and orders affecting the Borrower and each
Subsidiary and the business and operations of any of them.
8.4 Notice of Borrowing and Other Documents. On each Borrowing Date, the
Banks shall have received (a) a Notice of Borrowing; and (b) such
other documents and certificates relating to the transactions herein
contemplated as the Banks may reasonably request.
8.5 Payment of Fees and Expenses. The Borrower shall have paid (a) all
expenses of the type described in Section 13.3 through the date of
such Loan or the issuance of such Facility Letter of Credit and (b)
all closing, structuring and other invoiced fees owed as of the
Closing Date to the Agent, any of the Banks and/or X. X. Xxxxxx
Securities Inc. by the Borrower under this Agreement or any other
written agreement between the Borrower and the Agent, the applicable
Bank(s) or X. X. Xxxxxx Securities Inc.
8.6 Loan Documents, Opinions and Other Instruments. As of the Closing
Date, the Borrower shall have delivered to the Agent the following:
(a) this Agreement, each of the Notes and all other Loan Documents
required by the Agent and the Banks to be executed and delivered by
the Borrower in connection with this Agreement; (b) a certificate from
the Secretary of State of the State of Delaware as to the continued
existence and good standing of the Borrower in the State of Delaware;
(c) a certificate from Secretary of State of the State of Texas as to
the continued qualification of the Borrower to do business in the
State of Texas; (d) a current certificate from the Office of the
Comptroller of the State of Texas as to the good standing of the
Borrower in the State of Texas; (e) a Secretary's Certificate executed
by the duly elected Secretary or a duly elected Assistant Secretary of
the Borrower, in a form acceptable to the Agent, whereby such
Secretary or Assistant Secretary certifies that one or more corporate
resolutions adopted by the Board of Directors of the Borrower remain
in full force and effect authorizing the Borrower to secure Loans and
Facility Letters of Credit in accordance with the terms of this
Agreement; and (f) a legal opinion from in-house counsel for the
Borrower, dated as of the Closing Date, addressed to the Agent and the
Lenders and otherwise acceptable in all respects to the Agent in its
discretion.
9. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, so long as the Borrower may
borrow hereunder and until payment in full of the Notes, and its other
obligations under this Agreement and the other Loan Documents the Borrower will:
9.1 Financial Statements and Information. Deliver to the Banks:
(a) as soon as available, and in any event within 120 days after
the end of each fiscal year of the Borrower, a copy of the annual
audit report of the Borrower and the Subsidiaries for such fiscal year
containing a balance sheet, statements of income and stockholders
equity and a cash flow statement, all in reasonable detail and
certified by Price Waterhouse Coopers or another independent certified
public accountant of recognized standing satisfactory to the Banks.
The Borrower will obtain from such accountants and deliver to the
Banks at the time said financial statements are delivered the written
statement of the accountants that in making the examination necessary
to said certification they have obtained no knowledge of any Event of
Default or Default, or if such accountants shall have obtained
knowledge of any such Event of Default or Default, they shall state
the nature and period of existence thereof in such statement; provided
that such accountants shall not be liable directly or indirectly to
the Banks for failure to obtain knowledge of any such Event of Default
or Default; and
(b) as soon as available, and in any event within sixty (60) days
after the end of each quarterly accounting period in each fiscal year
of the Borrower (excluding the fourth quarter), an unaudited financial
report of the Borrower and the Subsidiaries as at the end of such
quarter and for the period then ended, containing a balance sheet,
statements of income and stockholders equity and a cash flow
statement, all in reasonable detail and certified by a financial
officer of the Borrower to have been prepared in accordance with GAAP,
except as may be explained in such certificate; and
(c) copies of all statements and reports sent to stockholders of
the Borrower or filed with the Securities and Exchange Commission; and
(d) such additional financial or other information as the Banks
may reasonably request including, without limitation, copies of such
monthly, quarterly, and annual reports of gas purchases and sales that
the Borrower is required to deliver to or file with governmental
bodies pursuant to tariffs and/or franchise agreements.
All financial statements specified in clauses (a) and (b) above shall be
furnished in consolidated and consolidating form for the Borrower and all
Subsidiaries with comparative consolidated figures for the corresponding period
in the preceding year. Together with each delivery of financial statements
required by clauses (a) and (b) above, the Borrower will deliver to the Banks
(i) such schedules, computations and other information as may be required to
demonstrate that the Borrower is in compliance with its covenants in Section
10.1 or reflecting any noncompliance therewith as at the applicable date and
(ii) an Officer's Certificate stating that there exists no Event of Default or
Default, or, if any such Event of Default or Default exists, stating the nature
thereof, the period of existence thereof and what action the Borrower has taken
or proposes to take with respect thereto. The Banks are authorized to deliver a
copy of any financial statement delivered to it to any regulatory body having
jurisdiction over them, and to disclose same to any prospective assignees or
participant Lenders.
9.2 Lease and Investment Schedules. Deliver to the Banks:
(a) from time to time and, in any event, with each delivery of
annual financial statements under Section 9.1(a), a current, complete
schedule (in the form of Schedule 9.2) of all agreements to rent or
lease any property (personal, real or mixed, but not including oil and
gas leases) to which the Borrower or any Subsidiary is a party lessee
and which, considered independently or collectively with other leases
with the same lessor, involve an obligation by the Borrower or a
Subsidiary to make payments of at least $1,000,000.00 in any year,
showing the total amounts payable under each such agreement, the
amounts and due dates of payments thereunder and containing a
description of the rented or leased property, and all other
information the Majority Banks may request; and
(b) with each delivery of annual financial statements under
Section 9.1(a) a current complete schedule (in the form of Schedule
9.2) listing all debt exceeding $1,000,000.00 in principal amount
outstanding and equity owned or held by the Borrower or any Subsidiary
containing all information required by, and in a form satisfactory to,
the Banks, except for such debt or equity of Subsidiaries.
9.3 Books and Records. Maintain, and cause each Subsidiary to maintain,
proper books of record and account in accordance with sound accounting
practices in which true, full and correct entries will be made of all
their respective dealings and business affairs.
9.4 Insurance. Maintain, and cause each Subsidiary to maintain, insurance
with financially sound, responsible and reputable companies in such
types and amounts and against such casualties, risks and contingencies
as is customarily carried by owners of similar businesses and
properties, and furnish to the Banks, together with each delivery of
annual financial statements under Section 9.1(a), an Officer's
Certificate containing full information as to the insurance carried.
9.5 Maintenance of Property. Cause its Significant Property and the
Significant Property of each Subsidiary to be maintained, preserved,
protected and kept in good repair, working order and condition so that
the business carried on in connection therewith may be conducted
properly and efficiently, except for normal wear and tear; provided,
however, that the improved properties of Lavaca Realty Company should
be maintained, preserved and protected in a manner consistent with the
maintenance, preservation and protection of improved real property
held for sale.
9.6 Inspection of Property and Records. Permit any officer, director or
agent of the Agent or any Bank, on written notice and at such Banks
expense, to visit and inspect during normal business hours any of the
properties, corporate books and financial records of the Borrower and
each Subsidiary and discuss their respective affairs and finances with
their principal officers, all at such times as the Agent or any Bank
may reasonably request.
9.7 Existence, Laws, Obligations. Maintain, and cause each Subsidiary to
maintain, its corporate existence and franchises, and any license
agreements and tariffs that permit the recovery of a return that the
Borrower considers to be fair (and as to licenses, franchises, and
tariffs that are subject to regulatory determinations of recovery of
returns, the Borrower has presented or is presenting favorable defense
thereof); and to comply, and cause each Subsidiary to comply, with all
statutes and governmental regulations noncompliance with which might
have a Material Adverse Effect, and pay, and cause each Subsidiary to
pay, all taxes, assessments, governmental charges, claims for labor,
supplies, rent and other obligations which if unpaid might become a
lien against the property of the Borrower or any Subsidiary except
liabilities being contested in good faith. Notwithstanding the
foregoing, the Borrower may dissolve those certain inactive and
minimally capitalized Subsidiaries designated as such on Schedule 7.1.
9.8 Notice of Certain Matters. Notify the Agent Bank immediately upon
acquiring knowledge of the occurrence of any of the following events:
(a) the institution or threatened institution of any lawsuit or
administrative proceeding affecting the Borrower or any Subsidiary
that is not covered by insurance (less applicable deductible amounts)
and which, if determined adversely to the Borrower or such Subsidiary,
could reasonably be expected to have a Material Adverse Effect; (b)
the occurrence of any material adverse change, or of any event that in
the good faith opinion of the Borrower is likely, to result in a
material adverse change, in the assets, liabilities, financial
condition, business or affairs of the Borrower or any Subsidiary; (c)
the occurrence of any Event of Default or any Default; or (d) a change
by Xxxxx'x Investors Service, Inc. or by Standard and Poor's Ratings
Group in the rating of the Borrower's Funded Debt.
9.9 ERISA. At all times:
(a) maintain and keep in full force and effect each Plan;
(b) make contributions to each Plan in a timely manner and in an
amount sufficient to comply with the minimum funding standards
requirements of ERISA;
(c) immediately upon acquiring knowledge of any "reportable
event" or of any "prohibited transaction" (as such terms are defined
in the Code ss. 4043) in connection with any Plan, furnish the Banks
with a statement executed by the president or chief financial officer
of the Borrower setting forth the details thereof and the action which
the Borrower proposes to take with respect thereto and, when known,
any action taken by the Internal Revenue Service with respect thereto;
(d) notify the Banks promptly upon receipt by the Borrower or any
Subsidiary of any notice of the institution of any proceeding or other
action which may result in the termination of any Plan and furnish to
the Banks copies of such notice;
(e) acquire and maintain in amounts satisfactory to the Banks
from either the Pension Benefit Guaranty Corporation or authorized
private insurers, when available, the contingent employer liability
coverage insurance required under ERISA;
(f) furnish the Banks with copies of the summary annual report
for each Plan filed with the Internal Revenue Service as the Agent or
the Banks may request; and
(g) furnish the Banks with copies of any request for waiver of
the funding standards or extension of the amortization periods
required by ss. 303 and ss. 304 of ERISA or ss. 412 of the Code
promptly after the request is submitted to the Secretary of the
Treasury, the Department of Labor or the Internal Revenue Service, as
the case may be.
9.10 Compliance with Environmental Laws. At all times: (a) use and operate,
and cause each Subsidiary to use and operate, all of their respective
facilities and properties in material compliance with all
Environmental Laws; keep, and cause each Subsidiary to keep, all
necessary permits, approvals, orders, certificates, licenses and other
authorizations relating to environmental matters in effect and remain
in material compliance therewith; handle, and cause each Subsidiary to
handle, all Hazardous Materials in material compliance with all
applicable Environmental Laws; and dispose, and cause each Subsidiary
to dispose, of all Hazardous Materials generated by the Borrower or
any Subsidiary or at any property owned or leased by them at
facilities or with carriers that maintain valid permits, approvals,
certificates, licenses or other authorizations for such disposal under
applicable Environmental Laws;
(b) promptly notify the Agent and provide copies upon receipt of
all written claims, complaints, notices or inquiries relating to the
condition of the facilities and properties of the Borrower and each
Subsidiary under, or their respective compliance with, applicable
Environmental Laws wherein the condition or the noncompliance that is
the subject of such claim, complaint, notice, or inquiry involves, or
could reasonably be expected to involve, liability of or expenditures
by the Borrower and its Subsidiaries of $10,000,000.00 or more; and
(c) provide such information and certifications which the Banks
may reasonably request from time to time to evidence compliance with
this Section 9.10.
9.11 PGA Clauses. The Borrower will use its best efforts to maintain in
force provisions in all of its tariffs and franchise agreements that
permit the Borrower to recover from customers substantially all of the
amount by which the cost of gas purchases exceeds the amount currently
billed to customers for the delivery of such gas (sometimes referred
to as PGA clauses).
10. NEGATIVE COVENANTS
So long as the Borrower may borrow hereunder and until payment in full
of the Notes, except with the written consent of the Banks:
10.1 Capital Requirements. The Borrower will not:
(a) permit its Consolidated Net Worth at the end of any fiscal
quarter to be less than the sum of (i) $1,267,663,000, (ii) 40% of
Consolidated Net Income (if positive) for the period commencing on
January 1, 2004 and ending on the date of determination, and treated
as a single accounting period; (iii) the difference between (A) 100%
of the net proceeds of any issuance of capital or preferred stock or
any other Equity-Preferred Securities by the Borrower or any
consolidated Subsidiary received by the Borrower or such consolidated
Subsidiary at any time after January 1, 2004; and (B) the aggregate
amount of all redemption or repurchase payments hereafter made, if
any, by the Borrower and any such consolidated Subsidiary in
connection with the repurchase by the Borrower or any such
consolidated Subsidiary of any of their respective capital or
preferred stock; (iv) without duplication, the difference between (A)
100% of the net proceeds heretofore and hereafter received by the
Borrower and any consolidated Subsidiary in respect of the issuance by
the Borrower or such consolidated Subsidiary of the Structured
Securities, and (B) the aggregate amount of all redemption payments
hereafter made, if any, by the Borrower and any such consolidated
Subsidiary in connection with the redemption of any of the Structured
Securities; and (v) the minority interests in the Borrower's
Subsidiaries; or
(b) permit the ratio of its Consolidated Total Indebtedness to
its Consolidated Total Capitalization to be greater than 0.65 to 1.00
at the end of any fiscal quarter; or
(c) acquire, or permit any Subsidiary to acquire, any assets
other than (i) investments permitted under Section 10.4, or (ii)
Qualifying Assets; or
(d) permit the ratio of EBDIT to Cash Interest Expense for the
four fiscal quarters most recently ended (considered as a single
accounting period) at any time to be less than 2.00 to 1.00 at all
times.
10.2 Mortgages, Liens, Etc. The Borrower will not, and will not permit any
Subsidiary to, create or permit to exist any Lien (including the
charge upon assets purchased under a conditional sales agreement,
purchase money mortgage, security agreement or other title retention
agreement) upon any of its respective assets, whether now owned or
hereafter acquired, or assign or otherwise convey any right to receive
income, except:
(a) Liens for taxes not yet due or that are being contested in
good faith by appropriate proceedings;
(b) other Liens incidental to the conduct of its business or the
ownership of its assets that were not incurred in connection with the
borrowing of money or the obtaining of advances or credit, and that do
not in the aggregate materially detract from the value of such assets
or materially impair the use thereof in the operation of such
business;
(c) Liens on assets of a Subsidiary to secure obligations of such
Subsidiary to the Borrower or another Subsidiary; and
(d) Liens on property existing at the time of acquisition thereof
by the Borrower or any Subsidiary, including without limitation, (i)
any property acquired by the Borrower in consummating and finalizing
any of the Prior Acquisitions, (ii) any Liens existing on any property
of Panhandle Eastern or any of its Subsidiaries to secure existing
Debt of Panhandle Eastern or any of its Subsidiaries as of the Closing
Date, and (iii) any Liens against any property of Panhandle Eastern or
any of its Subsidiaries to secure Panhandle Eastern Refinancing Debt
(provided such Liens are limited to property of Panhandle Eastern or
any of its Subsidiaries securing the Debt so extended, refinanced,
renewed, replaced, defeased or refunded), or purchase money Liens
placed on an item of real or personal property purchased by the
Borrower or any Subsidiary to secure a portion of the purchase price
of such property; provided that no such Lien may encumber or cover any
other property of the Borrower or any Subsidiary.
10.3 Debt. The Borrower will not, and will not permit any Subsidiary to,
incur or permit to exist any Debt, except:
(a) Debt evidenced by the Notes, the Facility Letter of Credit
Obligations or outstanding under the Term Loan Facility and any
Equity-Preferred Securities (to the extent the same constitutes Debt)
not in default, as well as (i) Debt of Panhandle Eastern and/or any of
its Subsidiaries outstanding as of the Closing Date, (ii) any
Panhandle Eastern Refinancing Debt, (iii) any loans or advances by the
Borrower to Panhandle Eastern and/or any of the Borrower's other
Subsidiaries permitted under Section 10.4(b) and (iv) any working
capital credit facility or facilities provided directly to Panhandle
Eastern and/or any of Panhandle Eastern's Subsidiaries by any party
other than the Borrower, so long as the principal amount of all such
outstanding working capital facilities, together with the outstanding
principal amount of any working capital loans or advances by the
Borrower to Panhandle Eastern and/or any of Panhandle Eastern's
Subsidiaries, does not exceed (A) $50,000,000 in the aggregate at any
time that the ratio of Consolidated Total Indebtedness to Consolidated
Total Capitalization for Panhandle Eastern and Panhandle Eastern's
Subsidiaries (excluding the Borrower and all other Subsidiaries of the
Borrower for purposes of such calculation) is greater 0.65 to 1.00 and
(B) $75,000,000 in the aggregate at any time that the ratio of
Consolidated Total Indebtedness to Consolidated Total Capitalization
for Panhandle Eastern and Panhandle Eastern's Subsidiaries (excluding
the Borrower and all other Subsidiaries of the Borrower for purposes
of such calculation) is less than or equal to 0.65 to 1.00;
(b) Debt of any Subsidiary to the Borrower or any other
Subsidiary, except to the extent limited by the terms of Section
10.4(b), and Debt of the Borrower to any Subsidiary;
(c) Debt existing as of December 31, 2003 as reflected on
financial statements delivered under Section 7.2(b) and refinancings
thereof other than Debt that has been refinanced by the proceeds of
Loans;
(d) endorsements in the ordinary course of business of negotiable
instruments in the course of collection;
(e) Debt of the Borrower or any Subsidiary representing the
portion of the purchase price of property acquired by the Borrower or
such Subsidiary that is secured by Liens permitted by the provisions
of Section 10.2(d); provided, however, that at no time may the
aggregate principal amount of such Debt outstanding exceed thirty
percent (30%) of the Consolidated Net Worth of the Borrower and its
Subsidiaries as of the applicable determination date;
(f) Debt evidenced by Senior Notes;
(g) additional Debt of the Borrower and Structured Securities of
the Borrower and the Southern Union Trusts provided that after giving
effect to the issuance thereof, there shall exist no Default or Event
of Default; and: (i) the ratio of Consolidated Total Indebtedness to
Consolidated Total Capitalization shall be no greater than 0.65 to
1.00 at all times; (ii) the ratio of EBDIT for the four fiscal
quarters most recently ended to pro forma Cash Interest Expense for
the following four fiscal quarters shall be no less than 2.00 to 1.0
at all times; provided, however, that if the additional Debt for which
the determinations required to be made by this subparagraph (g) will
be used to finance in whole or in part the consideration to be paid by
the Borrower for the acquisition of any entity otherwise permitted
under the terms of this Agreement, the determination of EBDIT for
purposes of this ratio shall include not only the EBDIT of the
Borrower and its Subsidiaries for the four fiscal quarters most
recently ended, but shall also include the EBDIT of such entity to be
acquired for such four fiscal quarters most recently ended; and (iii)
(A) such Debt and Structured Securities shall have a final maturity or
mandatory redemption date, as the case may be, no earlier than the
Maturity Date and shall mature or be subject to mandatory redemption
or mandatory defeasance no earlier than the Maturity Date (as so
extended) and shall be subject to no mandatory redemption or "put" to
the Borrower or any Southern Union Trust exercisable, or sinking fund
or other similar mandatory principal payment provisions that require
payments to be made toward principal, prior to such Maturity Date (as
so extended); or (B) (x) such additional Debt shall have a final
maturity date prior to the Maturity Date, (y) such additional Debt
shall not exceed Two Hundred Fifty Million Dollars ($250,000,000.00)
in the aggregate plus Twenty Million Dollars ($20,000,000.00) of
reimbursement obligations incurred in connection with Non-Facility
Letters of Credit issued by a Bank or Banks or by any other financial
institution; provided, however, that for purposes of determining the
aggregate amount of such additional Debt for purposes of this
subclause (y), the Debt of the Borrower under the Term Loan Facility
shall not be included and such Debt under the Term Loan Facility shall
be deemed to be permitted Debt for purposes of this subclause (y), and
(z) such additional Debt shall be borrowed from a Bank or Banks as a
loan or loans arising independent of this Agreement or the Term Loan
Facility or shall be borrowed from a financial institution that is not
a Bank under this Agreement or the Term Loan Facility; and
(h) additional Debt of Trunkline LNG Holdings or any of its
Subsidiaries, so long as (i) such Debt is to Trunkline LNG Holdings
and/or any of its Subsidiaries only and is not recourse in any respect
to the Borrower or any other Subsidiary of the Borrower (other than
Panhandle Eastern and its Subsidiaries), (ii) the proceeds of such
Debt is used solely to finance capital expenditures of Trunkline LNG
Holdings and/or its Subsidiaries, and (iii) after giving effect to
such Debt, no Default or Event of Default shall exist.
10.4 Loans, Advances and Investments. The Borrower will not, and will not
permit any Subsidiary to, make or have outstanding any loan or advance
to, or own or acquire any stock or securities of or equity interest or
other Investment in, any Person, except (without duplication):
(a) stock or other equity interests of (i) the Subsidiaries named
in Section 7.1; (ii) other entities that are acquired by the Borrower
or any Subsidiary but that are promptly merged with and into the
Borrower; (iii) Southern Union Panhandle, Panhandle Eastern and any
Subsidiaries of Panhandle Eastern acquired as a result of the
Panhandle Eastern Acquisition; and (iv) the same Qualifying Entities
as the Qualifying Entities under subparagraph (ii) of the definition
of "Qualifying Assets," provided that at any time the aggregate
purchase price paid for such stock and other equity interests in such
Qualifying Entities then held by the Borrower as of the applicable
determination date, including the aggregate amount of Debt assumed or
deemed incurred by Borrower in connection with the purchase of such
stock and other equity interests, is not more than twenty percent
(20%) of the Consolidated Net Worth of the Borrower and its
Subsidiaries as of the applicable determination date;
(b) loans or advances to a Subsidiary; provided, however, that
the principal amount of such loans and advances for working capital
purposes at any time outstanding to Panhandle Eastern and/or any of
Panhandle Eastern's Subsidiaries, together with the principal amount
of any outstanding working capital credit facility or facilities
provided directly to Panhandle Eastern and/or any of Panhandle
Eastern's Subsidiaries by any party other than the Borrower, does not
exceed $25,000,000 in the aggregate at any time;
(c) Securities maturing no more than 180 days after Borrower's
purchase that are either:
(i) readily marketable securities issued by the United
States or its agencies or instrumentalities; or
(ii) commercial paper rated "Prime 2" by Xxxxx'x Investors
Service, Inc. ("Moody's") or A-2 by Standard and Poor's Ratings
Group ("S & P"); or
(iii) certificates of deposit or repurchase contracts on
customary terms with financial institutions in which deposits are
insured by any agency or instrumentality of the United States; or
(iv) readily marketable securities received in settlement of
liabilities created in the ordinary course of business; or
(v) obligations of states, agencies, counties, cities and
other political subdivisions of any state rated at lest MIG2,
VMIG2 or Aa by Moody's or AA by S & P; or
(vi) loan participations in credits in which the borrower's
debt is rated at least Aa or Prime 2 by Moody's or AA or A-2 by S
& P; or
(vii) money market mutual funds that are regulated by the
Securities and Exchange Commission, have a dollar-weighted
average stated maturity of 90 days or fewer on their investments
and include in their investment objectives the maintenance of a
stable net asset value of $1 for each share.
(d) other equity interests owned by a Subsidiary on the date of
this Agreement and such additional equity interests to the extent (but
only to the extent) that such Subsidiary is legally obligated to
acquire those interests on the date of this Agreement, in each case as
disclosed to the Banks in writing;
(e) loans or advances by the Borrower to customers in connection
with and pursuant to marketing and merchandising products that the
Borrower reasonably expects to increase sales of the Borrower or
Subsidiaries, provided that: (i) such loans must be either less than
$2,000,000.00 to any one customer (or group of affiliated customers,
shown on the Borrower's records to be Affiliates) or must be disclosed
on Schedule 9.2 hereof; and (ii) all such loans must not exceed
$24,000,000.00 in the aggregate outstanding at any time;
(f) travel and expense advances in the ordinary course of
business to officers and employees;
(g) stock or securities of or equity interests in, any Person
provided that, after giving effect to the acquisition and ownership
thereof, the Borrower is in compliance with the provisions of Section
10.1(c) of this Agreement; and
(h) loans, advances or other Investments by the Borrower or any
Subsidiary not otherwise permitted under the other provisions of this
Section 10.4, so long as the sum of the outstanding balance of all of
such loans and advances and the purchase price paid for all of such
other Investments does not exceed in the aggregate seven percent (7%)
of the Consolidated Net Worth of the Borrower and its Subsidiaries as
of the applicable determination date.
10.5 Stock and Debt of Subsidiaries. The Borrower will not, and will not
permit any Subsidiary to, sell or otherwise dispose of any shares of
stock, other equity interests or Debt of any Subsidiary, or permit any
Subsidiary to issue or dispose of its stock (other than directors'
qualifying shares), except for the following: (i) the sale, transfer
or issuance of stock, other equity interests or Debt of any Subsidiary
to the Borrower or another Subsidiary of the Borrower; (ii) the sale
of stock in Trunkline LNG Holdings and Debt of Trunkline LNG Holdings
as a result of the Trunkline LNG Holdings Sale; (iii) the sale of
stock in Sea Xxxxx Pipeline Company and Debt of Sea Xxxxx Pipeline
Company, (iv) the issuance by Southern Union Trusts of preferred
beneficial interests in public offerings of Borrower's Structured
Securities, and (v) the issuance by other Subsidiaries of the Borrower
formed for the purpose of issuing Equity-Preferred Securities.
10.6 Merger, Consolidation, Etc. The Borrower will not, and will not permit
any Subsidiary to, merge or consolidate with any other Person or sell,
lease, transfer or otherwise dispose of (whether in one transaction or
a series of transactions) all or a substantial part of its assets or
acquire (whether in one transaction or a series of transactions) all
or a substantial part of the assets of any Person, except that:
(a) any Subsidiary may merge or consolidate with the Borrower
(provided that the Borrower shall be the continuing or surviving
corporation) or with any one or more Subsidiaries;
(b) any Subsidiary may sell, lease, transfer or otherwise dispose
of any of its assets to the Borrower or another Subsidiary;
(c) the Borrower may acquire the assets of any Person, provided
that, after giving effect to such acquisition, the Borrower is in
compliance with the provisions of Sections 10.1(c); and
(d) the Borrower or any Subsidiary may sell, lease, assign or
otherwise dispose of assets as otherwise permitted under Section 10.8.
10.7 Supply and Purchase Contracts. The Borrower will not, and will not
permit any Subsidiary to, enter into or be a party to any contract for
the purchase of materials, supplies or other property if such contract
requires that payment for such materials, supplies or other property
shall be made regardless of whether or not delivery is ever made or
tendered of such materials, supplies and other property, except in
those circumstances and involving those supply or purchase contracts
that the Borrower reasonably considers to be necessary or helpful in
its operations in the ordinary course of business and that the
Borrower reasonably considers not to be unnecessarily burdensome on
the Borrower or its Subsidiaries.
10.8 Sale or Other Disposition of Assets. The Borrower will not, and will
not permit any Subsidiary to, except as permitted under this Section
10.8, sell, assign, lease, or otherwise dispose of (whether in one
transaction or in a series of transactions) all or any part of its
Property (whether now owned or hereafter acquired); provided, however,
that (i) the Borrower or any Subsidiary may in the ordinary course of
business dispose of (a) Property consisting of Inventory; and (b)
Property consisting of goods or equipment that are, in the opinion of
the Borrower or any Subsidiary, obsolete or unproductive, but if in
the good faith judgment of the Borrower or any Subsidiary such
disposition without replacement thereof would have a Material Adverse
Effect, such goods and equipment shall be replaced, or their utility
and function substituted, by new or existing goods or equipment; (ii)
the Borrower may transfer or dispose of any of its Significant
Property (in any transaction or series of transactions) to any
Subsidiary or Subsidiaries only if such Property so transferred or
disposed of after the Closing Date has an aggregate value (determined
after depreciation and in accordance with GAAP) of not more than ten
percent (10%) of the aggregate value of all of the Borrower's and its
Subsidiaries' real property and tangible personal property other than
Inventory considered on a consolidated basis and determined after
depreciation and in accordance with GAAP, as of December 31, 2003;
(iii) the Borrower may dispose of its real property in one or more
sale/leaseback transactions, provided that any Debt incurred in
connection with such transaction does not create a Default as defined
herein; (iv) a Southern Union Trust may distribute the Borrower's
subordinated debt securities constituting a portion of the Structured
Securities, on the terms and under the conditions set out in the
registration statement therefor filed with the Securities and Exchange
Commission on March 25, 1995 or any similar registration statement
filed with the Securities and Exchange Commission in connection with
any other Structured Securities issued in connection with the Prior
Acquisitions; (v) the Borrower or any Subsidiary may dispose of real
property or tangible personal property other than Inventory (in
consideration of such amount as in the good faith judgment of the
Borrower or such Subsidiary represents a fair consideration therefor),
provided that the aggregate value of such property disposed of
(determined after depreciation and in accordance with GAAP) after the
Closing Date does not exceed ten percent (10%) of the aggregate value
of all of the Borrower's and its Subsidiaries' real property and
tangible personal property other than Inventory considered on a
consolidated basis and determined after depreciation and in accordance
with GAAP, as of December 31, 2003; (vi) the Borrower may dispose of
Qualifying Assets of the type described in clause (ii) of the
definition of Qualifying Assets, provided that the Borrower applies
the net proceeds from such disposition against the Borrower's Debt
under the Term Loan Facility, to the extent then outstanding, and the
balance of such net sales proceeds, if any, shall be applied against
the Loans in an amount equal to the lesser of (a) the balance of such
net sales proceeds not applied against the Term Loan Facility, and (b)
the amount of Loan proceeds previously advanced to finance the
acquisition of such clause (ii) Qualifying Assets; (vii) the Borrower
may dispose of other Investments of the type acquired under the terms
of Section 10.4(h), provided that the Borrower applies the net
proceeds from such disposition against the Borrower's Debt under the
Term Loan Facility, to the extent then outstanding, and the balance of
such net sales proceeds, if any, shall be applied against the Loans in
an amount equal to the lesser of (a) the balance of such net sales
proceeds not applied against the Term Loan Facility, and (b) the
amount of Loan proceeds previously advanced to finance the acquisition
of such other Investments; (viii) Panhandle Eastern may sell all stock
or all or substantially all of the assets in Trunkline LNG Holdings
pursuant to the Trunkline LNG Holdings Sale; and (ix) the Borrower may
sell all stock or all or substantially all of the assets in Sea Xxxxx
Pipeline Company.
10.9 Discount or Sale of Receivables. The Borrower will not, and will not
permit any Subsidiary, other than Southern Union Total Energy
Services, Inc., to discount or sell with recourse, or sell for less
than the face value thereof (including any accrued interest) any of
its notes receivable, receivables under leases or other accounts
receivable, unless all net proceeds received by the Borrower from any
such discount or sale are applied against the Borrower's Debt under
the Term Loan Facility.
10.10 Change in Accounting Method. The Borrower will not, and will not
permit any Subsidiary to, make any change in the method of computing
depreciation for either tax or book purposes or any other material
change in accounting method representing any departure from GAAP
without the Majority Banks' prior written approval.
10.11 Restricted Payment. The Borrower will not pay or declare any
Restricted Payment unless immediately prior to such payment and after
giving effect to such payment, the Borrower could incur at least $1 of
additional Debt without violating the provisions of Section 10.3(g)
and after giving effect thereto no Default or Event of Default exists
hereunder; provided, however, that the Borrower's ability to purchase
or agree to purchase its common stock and/or preferred equity
securities (including without limitation, Equity-Preferred Securities)
shall be limited as follows: (a) not more than $50,000,000 in the
aggregate of common stock and preferred equity securities may be
repurchased per each fiscal year of the Borrower at any time the ratio
of Consolidated Total Indebtedness to Consolidated Total
Capitalization for the Borrower and its Subsidiaries is greater than
0.60 to 1.00; (b) not more than $100,000,000 in the aggregate of
common stock and preferred equity securities may be repurchased per
each fiscal year of the Borrower at any time the ratio of Consolidated
Total Indebtedness to Consolidated Total Capitalization for the
Borrower and its Subsidiaries is less than or equal to 0.60 to 1.00;
and (c) no repurchases of common stock or preferred equity securities
may be made if the Borrower's unsecured, non-credit enhanced senior
debt as specified by Standard & Poor's Ratings Group and Xxxxx'x
Investor Service, Inc. falls below either BBB- or Baa3, respectively.
10.12 Securities Credit Regulations. Neither the Borrower nor any
Subsidiary will take or permit any action which might cause the Loans
or the Facility Letter of Credit Obligations or this Agreement to
violate Regulation G, Regulation T, Regulation U, Regulation X or any
other regulation of the Board of Governors of the Federal Reserve
System or a violation of the Securities Exchange Act of 1934, in each
case as now or hereafter in effect.
10.13 Nature of Business; Management. The Borrower will not, and will not
permit any Subsidiary to: (a) change its principal line of business;
or (b) enter into any business not within the scope of Section 7.15
and the definition of Qualifying Assets; or (c) permit any material
overall change in the management of the Borrower.
10.14 Transactions with Related Parties. The Borrower will not, and will
not permit any Subsidiary to, enter into any transaction or agreement
with any officer, director or holder of ten percent (10%) or more of
any class of the outstanding capital stock of the Borrower or any
Subsidiary (or any Affiliate of any such Person) unless the same is
upon terms substantially similar to those obtainable from wholly
unrelated sources.
10.15 Hazardous Materials. The Borrower will not, and will not permit any
Subsidiary to (a) cause or permit any Hazardous Materials to be
placed, held, used, located, or disposed of on, under or at any of
such Person's property or any part thereof by any Person in a manner
which could reasonably be expected to have a Material Adverse Effect;
(b) cause or permit any part of any of such Person's property to be
used as a manufacturing, storage, treatment or disposal site for
Hazardous Materials, where such action could reasonably be expected to
have a Material Adverse Effect; or (c) cause or suffer any liens to be
recorded against any of such Person's property as a consequence of, or
in any way related to, the presence, remediation, or disposal of
Hazardous Materials in or about any of such Person's property,
including any so-called state, federal or local "superfund" lien
relating to such matters, where such recordation could reasonably be
expected to have a Material Adverse Effect.
10.16 Limitations on Payments on Subordinated Debt. The Borrower will not,
and will not permit any Subsidiary to, make any payment in respect of
interest on, principal of, or otherwise relating to, the borrower's
subordinated debt securities issued in connection with the Structured
Securities if, after giving effect to such payment, a Default or Event
of Default would exist.
10.17 No Agreements Prohibiting Pledge of Southern Union Panhandle Stock.
The Borrower will not enter into any contract or other agreement with
any Person that directly or indirectly prohibits the Borrower from
granting any Lien against the stock or other equity interests in
Southern Union Panhandle (whether common, preferred or another class
of equity ownership) at any time owned and held by the Borrower as
security for any Debt of the Borrower or any of its Subsidiaries,
other than the applicable negative covenants of this Agreement and the
Term Loan Facility.
11. EVENTS OF DEFAULT; REMEDIES
If any of the following events shall occur, then the Agent shall at the
request, or may with the consent, of the holders of more than fifty percent
(50%) in principal amount of the Notes then outstanding or, if no Note is then
outstanding, Banks having more than fifty percent (50%) of the Commitments, (a)
by notice to the Borrower, declare the Commitment of each Bank and the several
obligation of each Bank to make Loans hereunder to be terminated, whereupon the
same shall forthwith terminate, and (b) declare the Notes and all interest
accrued and unpaid thereon, and all other amounts payable under the Notes, this
agreement and the other Loan Documents, to be forthwith due and payable,
whereupon the Notes, all such interest and all such other amounts, shall become
and be forthwith due and payable without presentment, demand, protest, or
further notice of any kind (including, without limitation, notice of default,
notice of intent to accelerate and notice of acceleration), all of which are
hereby expressly waived by the Borrower; provided, however, that with respect to
any Event of Default described in Sections 11.7 or 11.8 hereof, (i) the
Commitment of each Bank and the obligation of the Banks to make Loans shall
automatically be terminated and (ii) the entire unpaid principal amount of the
Notes, all interest accrued and unpaid thereon, and all such other amounts
payable under the Notes, this Agreement and the other Loan Documents, shall
automatically become immediately due and payable, without presentment demand,
protest, or any notice of any kind (including, without limitation, notice of
default, notice of intent to accelerate and notice of acceleration), all of
which are hereby expressly waived by the Borrower:
11.1 Failure to Pay Principal or Interest. The Borrower does not pay, repay
or prepay any principal of or interest on any Note when due.
11.2 Failure to Pay Commitment Fee or Other Amounts. The Borrower does not
pay any commitment fee or any other obligation or amount payable under
this Agreement, the Notes, or any Letter of Credit Reimbursement
Agreement within five (5) calendar days after the same shall have
become due.
11.3 Failure to Pay Other Debt. The Borrower or any Subsidiary fails to pay
principal or interest on any other Debt aggregating more than
$3,000,000.00 when due and any related grace period has expired, or
the holder of any of such other Debt declares such Debt due prior to
its stated maturity because of the Borrower's or any Subsidiary's
default thereunder and the expiration of any related grace period.
11.4 Misrepresentation or Breach of Warranty. Any representation or
warranty made by the Borrower herein or otherwise furnished to the
Bank in connection with this Agreement or any other Loan Document
shall be incorrect, false or misleading in any material respect when
made.
11.5 Violation of Negative Covenants. The Borrower violates any covenant,
agreement or condition contained in Sections 10.2, 10.3, 10.5, 10.6,
10.8, 10.9, 10.10, 10.11, or 10.15.
11.6 Violation of Other Covenants, Etc. The Borrower violates any other
covenant, agreement or condition contained herein (other than the
covenants, agreements and conditions set forth or described in
Sections 11.1, 11.2, 11.3, 11.4, and 11.5 above) or in any other Loan
Document and such violation shall not have been remedied within (30)
days after the earlier of (i) actual discovery by the Borrower of such
violation or (ii) written notice has been received by the Borrower
from the Bank or the holder of the Note.
11.7 Bankruptcy and Other Matters. The Borrower or any Subsidiary (a) makes
an assignment for the benefit of creditors; or (b) admits in writing
its inability to pay its debts generally as they become due; or (c)
generally fails to pay its debts as they become due; or (d) files a
petition or answer seeking for itself, or consenting to or acquiescing
in, any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any applicable
Debtor Law (including, without limitation, the Federal Bankruptcy
Code); or (i) there is appointed a receiver, custodian, liquidator,
fiscal agent, or trustee of the Borrower or any Subsidiary or of the
whole or any substantial part of their respective assets; or (ii) any
court enters an order, judgment or decree approving a petition filed
against the Borrower or any Subsidiary seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under any Debtor Law and either such order, decree or
judgment so filed against it is not dismissed or stayed (unless and
until such stay is no longer in effect) within thirty (30) days of
entry thereof or an order for relief is entered pursuant to any such
law.
11.8 Dissolution. Any order is entered in any proceeding against the
Borrower or any Subsidiary decreeing the dissolution, liquidation,
winding-up or split-up of the Borrower or such Subsidiary, and such
order remains in effect for thirty (30) days.
11.9 Undischarged Judgment. Final Judgment or judgments in the aggregate,
that might be or give rise to Liens on any property of the Borrower or
any Subsidiary, for the payment of money in excess of $5,000,000.00
shall be rendered against the Borrower or any Subsidiary and the same
shall remain undischarged for a period of thirty (30) days during
which execution shall not be effectively stayed.
11.10 Environmental Matters. The occurrence of any of the following events
that could result in liability to the Borrower or any Subsidiary under
any Environmental Law or the creation of a Lien on any property of the
Borrower or any Subsidiary in favor of any governmental authority or
any other Person for any liability under any Environmental Law or for
damages arising from costs incurred by such Person in response to a
Release or threatened Release of Hazardous Materials into the
environment if any such asserted liability or Lien exceeds
$10,000,000.00 and if any such lien would cover any property of the
Borrower or any Subsidiary which property is or would reasonably be
considered to be integral to the operations of the Borrower or any
Subsidiary in the ordinary course of business:
(a) the Release of Hazardous Materials at, upon, under or within
the property owned or leased by the Borrower or any Subsidiary or any
contiguous property;
(b) the receipt by the Borrower or any Subsidiary of any summons,
claim, complaint, judgment, order or similar notice that it is not in
compliance with or that any governmental authority is investigating
its compliance with any Environmental Law;
(c) the receipt by the Borrower or any Subsidiary of any notice
or claim to the effect that it is or may be liable for the Release or
threatened Release of Hazardous Materials into the environment; or
(d) any governmental authority incurs costs or expenses in
response to the Release of any Hazardous Material which affects in any
way the properties of the Borrower or any Subsidiary.
11.11 Other Remedies. In addition to and cumulative of any rights or
remedies expressly provided for in this Section 11, if any one or more
Events of Default shall have occurred, the Agent shall at the request,
and may with the consent, of the Majority Banks proceed to protect and
enforce the rights of the Banks hereunder by any appropriate
proceedings. The Agent shall at the request, and may with the consent,
of the Majority Banks also proceed either by the specific performance
of any covenant or agreement contained in this Agreement or by
enforcing the payment of the Notes or by enforcing any other legal or
equitable right provided under this Agreement or the Notes or
otherwise existing under any law in favor of the holder of the Notes.
11.12 Remedies Cumulative. No remedy, right or power conferred upon the
Banks is intended to be exclusive of any other remedy, right or power
given hereunder or now or hereafter existing at law, in equity, or
otherwise, and all such remedies, rights and powers shall be
cumulative.
11.13 Default under Term Loan Facility. The occurrence of an Event of
Default (as defined under the credit agreement evidencing the Term
Loan Facility) shall also constitute an Event of Default under this
Agreement.
12. THE AGENT
12.1 Authorization and Action. Each Bank hereby appoints JPMorgan as its
Agent under and irrevocably authorizes the Agent (subject to Sections
12.1 and 12.7) to take such action as the Agent on its behalf and to
exercise such powers under this Agreement and the Notes as are
delegated to the Agent by the terms thereof, together with such powers
as are reasonably incidental thereto. Without limitation of the
foregoing, each Bank expressly authorizes the Agent to execute,
deliver, and perform its obligations under this Agreement, and to
exercise all rights, powers, and remedies that the Agent may have
hereunder. As to any matters not expressly provided for by this
Agreement (including, without limitation, enforcement or collection of
the Notes), the Agent shall not be required to exercise any discretion
or take any action, but shall be required to act, or to refrain from
acting (and shall be fully protected in so acting or refraining from
acting), upon the instructions of the Majority Banks, and such
instructions shall be binding upon all the Banks and all holders of
any Note; provided, however, that the Agent shall not be required to
take any action which exposes the Agent to personal liability or which
is contrary to this Agreement or applicable law. The Agent agrees to
give to each Bank prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
12.2 Agent's Reliance, Etc. Neither the Agent nor any of its directors,
officers, agents, or employees shall be liable to any Bank for any
action taken or omitted to be taken by it or them under or in
connection with this Agreement, the Notes and the other Loan
Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Agent: (a) may treat the original or any successor holder of any Note
as the holder thereof until the Agent receives notice from the Bank
which is the payee of such Note concerning the assignment of such
Note; (b) may employ and consult with legal counsel (including counsel
for the Borrower), independent public accountants, and other experts
selected by it and shall not be liable to any Bank for any action
taken, or omitted to be taken, in good faith by it or them in
accordance with the advice of such counsel, accountants, or experts
received in such consultations and shall not be liable for any
negligence or misconduct of any such counsel, accountants, or other
experts; (c) makes no warranty or representation to any Bank and shall
not be responsible to any Bank for any opinions, certifications,
statements, warranties, or representations made in or in connection
with this Agreement; (d) shall not have any duty to any Bank to
ascertain or to inquire as to the performance or observance of any of
the terms, covenants, or conditions of this Agreement or any other
instrument or document furnished pursuant thereto or to satisfy itself
that all conditions to and requirements for any Loan have been met or
that the Borrower is entitled to any Loan or to inspect the property
(including the books and records) of the Borrower or any Subsidiary;
(e) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency, or value
of this Agreement or any other instrument or document furnished
pursuant thereto; and (f) shall incur no liability under or in respect
of this Agreement by acing upon any notice, consent, certificate, or
other instrument or writing (which may be by telegram, cable, telex,
or otherwise) believed by it to be genuine and signed or sent by the
proper party or parties.
12.3 Defaults. The Agent shall not be deemed to have knowledge of the
occurrence of a Default (other than the nonpayment of principal of or
interest hereunder or of any fees) unless the Agent has received
notice from a Bank or the Borrower specifying such Default and stating
that such notice is a Notice of Default. In the event that the Agent
receives such a notice of the occurrence of a Default, the Agent shall
give prompt notice thereof to the Banks (and shall give each Bank
prompt notice of each such nonpayment). The Agent shall (subject to
Section 12.7) take such action with respect to such Default; provided
that, unless and until the Agent shall have received the directions
referred to in Sections 12.1 or 12.7, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action,
with respect to such Default as it shall deem advisable and in the
best interest of the Banks.
12.4 JPMorgan and Affiliates. With respect to its Commitment, any Loan made
by it, and the Note issued to it, JPMorgan shall have the same rights
and powers under this Agreement as any other Bank and may exercise the
same as though it were not the Agent; and the term "Bank" or "Banks"
shall, unless otherwise expressly indicated, include JPMorgan in its
individual capacity. JPMorgan and its respective Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, the Borrower, any of
its respective Affiliates and any Person who may do business with or
own securities of the Borrower or any such Affiliate, all as if
JPMorgan were not the Agent and without any duty to account therefor
to the Banks.
12.5 Non-Reliance on Agent and Other Banks. Each Bank agrees that it has,
independently and without reliance on the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate,
made its own credit analysis of the Borrower and each Subsidiary and
its decision to enter into the transactions contemplated by this
Agreement and that it will, independently and without reliance upon
the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own analysis and decisions in taking or not taking action under
this Agreement. The Agent shall not be required to keep itself
informed as to the performance or observance by the Borrower of this
Agreement or to inspect the properties or books of the Borrower or any
Subsidiary. Except for notices, reports, and other documents and
information expressly required to be furnished to the Banks by the
Agent hereunder, the Agent shall not have any duty or responsibility
to provide any Bank with any credit or other information concerning
the affairs, financial condition, or business of the Borrower or any
Subsidiary (or any of their Affiliates) which may come into the
possession of the Agent or any of its Affiliates.
12.6 Indemnification. Notwithstanding anything to the contrary herein
contained, the Agent shall be fully justified in failing or refusing
to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Banks against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, and disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against the Agent in
any way relating to or arising out of its taking or continuing to take
any action. Each Bank agrees to indemnify the Agent (to the extent not
reimbursed by the Borrower), according to such Bank's Commitment, from
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, and
disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating to
or arising out of this Agreement or the Notes or any action taken or
omitted by the Agent under this Agreement or the Notes; provided that
no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements resulting from the gross negligence
or willful misconduct of the person being indemnified; and provided
further that it is the intention of each Bank to indemnify the Agent
against the consequences of the Agent's own negligence, whether such
negligence be sole, joint, concurrent, active or passive. Without
limitation of the foregoing, each Bank agrees to reimburse the Agent
promptly upon demand for its Pro Rata Percentage of any out-of-pocket
expenses (including attorneys' fees) incurred by the Agent in
connection with the preparation, administration, or enforcement of, or
legal advice in respect of rights or responsibilities under, this
Agreement and the Notes, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
12.7 Successor Agent. The Agent may resign at any time as Agent under this
Agreement by giving written notice thereof to the Banks and the
Borrower and may be removed at any time with or without cause by the
Majority Banks. Upon any such resignation or removal, the Majority
Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Banks or
shall have accepted such appointment within thirty (30) days after the
retiring Agent's giving of notice of resignation or the Majority
Banks' removal of the retiring Agent, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of
America or of any State thereof and having a combined capital and
surplus of at least $500,000,000.00. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Section 12 shall
inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement.
12.8 Agent's Reliance. The Borrower shall notify the Agent in writing of
the names of its officers and employees authorized to request a Loan
on behalf of the Borrower and shall provide the Agent with a specimen
signature of each such officer or employee. The Agent shall be
entitled to rely conclusively on such officer's or employee's
authority to request a Loan on behalf of the Borrower until the Agent
receives written notice from the Borrower to the contrary. The Agent
shall have no duty to verify the authenticity of the signature
appearing on any Notice of Borrowing, and, with respect to any oral
request for a Loan, the Agent shall have no duty to verify the
identity of any Person representing himself as one of the officers or
employees authorized to make such request on behalf of the Borrower.
Neither the Agent nor any Bank shall incur any liability to the
Borrower in acting upon any telephonic notice referred to above which
the Agent or such Bank believes in good faith to have been given by a
duly authorized officer or other Person authorized to borrow on behalf
of the Borrower or for otherwise acting in good faith.
13. MISCELLANEOUS
13.1 Representation by the Banks. Each Bank represents that it is the
intention of such Bank, as of the date of its acquisition of its Note,
to acquire the Note for its account or for the account of its
Affiliates, and not with a view to the distribution or sale thereof,
and, subject to any applicable laws, the disposition of such Bank's
property shall at all times be within its control. The Notes have not
been registered under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be transferred, sold or otherwise
disposed of except (a) in a registered Offering under the Securities
Act; (b) pursuant to an exemption from the registration provisions of
the Securities Act; or (c) if the Securities Act shall not apply to
the Notes or the transactions contemplated hereunder as commercial
lending transactions.
13.2 Amendments, Waivers, Etc. No amendment or waiver of any provision of
any Loan Document, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower and the Majority Banks, and then
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided,
however, that no amendment, waiver, or consent shall, unless in
writing and signed by each Bank, do any of the following: (a) waive
any of the conditions specified in Section 8; (b) increase the
Commitment of any Bank or alter the term thereof, or subject any Bank
to any additional or extended obligations; (c) change the principal
of, or rate of interest on, any Note, or any fees or other amounts
payable hereunder; (d) postpone any date fixed for any payment of
principal of, or interest on, any Note, or any fees (including,
without limitation, any fee) or other amounts payable hereunder; (e)
change the percentage of the Commitments or of the aggregate unpaid
principal amount of any Note, or the number of Banks which shall be
required for Banks, or any of them, to take any action hereunder; or
(f) amend this Section 13.2; and provided, further, that no amendment,
waiver, or consent shall, unless in writing and signed by the Agent in
addition to each Bank, affect the rights or duties of the Agent under
any Loan Document. No failure or delay on the part of any Bank or the
Agent in exercising any power or right hereunder shall operate as a
waiver thereof nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. No course of
dealing between the Borrower and any Bank or the Agent shall operate
as a waiver of any right of any Bank or the Agent. No modification or
waiver of any provision of this Agreement or the Note nor consent to
any departure by the Borrower therefrom shall in any event be
effective unless the same shall be in writing, and then such waiver or
consent shall be effective only in the specific instance and for the
purpose for which given. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances.
13.3 Reimbursement of Expenses. The Borrower agrees to reimburse each Bank
for its reasonable out-of-pocket expenses, including the reasonable
fees and expenses of counsel to each Bank, in connection with the
transactions contemplated by this Agreement, whether or not such
contemplated transactions shall be consummated, or any of them, or
otherwise in connection with this Agreement, including its
negotiation, preparation, execution, administration, modification and
enforcement, and all reasonable fees, including the reasonable fees
and expenses of counsel to the Agent and each Bank, costs and expenses
of the Agent for environmental consultants and costs and expenses of
the Agent and each Bank in connection with due diligence,
transportation, computer time and research and duplication. The
Borrower agrees to pay any and all stamp and other taxes which may be
payable or determined to be payable in connection with the execution
and delivery of this Agreement or the Notes, and to save any holder of
any Note harmless from any and all liabilities with respect to or
resulting from any delay or omission to pay any such taxes. The
obligations of the Borrower under this Section 13.3 shall survive the
termination of this Agreement and/or the payment of the Notes.
13.4 Notices. All notices and other communications provided for herein
shall be in writing (including telex, facsimile, or cable
communication) and shall be mailed, telecopied, telexed, cabled or
delivered addressed as follows:
(a) If to the Borrower, to it at: Southern Union Company
Xxx XXX Xxxxxx
Xxxxxx-Xxxxx, Xxxxxxxxxxxx
00000-0000
Attention: Xx.Xxxxxxx X.Xxxxxxxx
Fax:(000) 000-0000
with copies to: Southern Union Company
Xxx XXX Xxxxxx
Xxxxxx-Xxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
(b) If to the Agent,to it at: JPMorgan Chase Bank
000 Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx
00000 Attention:
Manager/Commercial
Lending Fax: (512)
479-2853
with a copy to: JPMorgan Chase Bank
Loan and Agency Services
0000 Xxxxxx, Xxxxx 00
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Fax: (000) 000-0000
and if to any Bank, at the address specified below its name on the signature
pages hereof, or as to the Borrower or the Agent, to such other address as shall
be designated by such party in a written notice to the other party and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent. All such notices and
communications shall, when mailed, telecopied, telexed, transmitted, or cabled,
become effective when deposited in the mail, confirmed by telex answer back,
transmitted to the telecopier, or delivered to the cable company, except that
notices and communications to the Agent under Sections 2.1(c) or 2.2 shall not
be effective until actually received by the Agent.
13.5 Governing Law; Venue. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND
THE UNITED STATES OF AMERICA; provided, however, that Chapter 346 of
the Texas Finance Code, as amended, shall not apply to this Agreement
and the Notes issued hereunder. Xxxxxx County, Texas shall be a proper
place of venue to enforce payment or performance of this Agreement and
the other Loan Documents by the Borrower, unless the Agent shall give
its prior written consent to a different venue. The Borrower hereby
irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to any of
the Loan Documents in the District Courts of Xxxxxx County, Texas, or
in the United States District Court for the Western District of Texas,
Austin Division, and hereby further irrevocably waives any claims that
any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. The Borrower hereby irrevocably
agrees that, provided that the Borrower can obtain personal
jurisdiction over and service of process upon the Agent or the
applicable Bank, any legal proceeding against the Agent or any Bank
arising out of or in connection with this Agreement or the other Loan
Documents shall be brought in the district courts of Xxxxxx County,
Texas, or in the United States District Court for the Western District
of Texas, Austin Division. Nothing contained in this Section or in any
other provision of any Loan Document (unless expressly provided
otherwise) shall be deemed or construed as an agreement by any Bank to
be subject to the jurisdiction of such courts.
13.6 Survival of Representations, Warranties and Covenants. All
representations, warranties and covenants contained herein or made in
writing by the Borrower in connection herewith shall survive the
execution and delivery of this Agreement and the Notes, and will bind
and inure to the benefit of the respective successors and assigns of
the parties hereto, whether so expressed or not, provided that the
undertaking of the Banks to make the Loans to the Borrower shall not
inure to the benefit of any successor or assign of the Borrower. No
investigation at any time made by or on behalf of the Banks shall
diminish the Banks' rights to rely on any representations made herein
or in connection herewith. All statements contained in any certificate
or other written instrument delivered by the Borrower or by any Person
authorized by the Borrower under or pursuant to this Agreement or in
connection with the transactions contemplated hereby shall constitute
representations and warranties hereunder as of the time made by the
Borrower.
13.7 Counterparts. This Agreement may be executed in several counterparts,
and by the parties hereto on separate counterparts, and each
counterpart, when so executed and delivered, shall constitute an
original instrument and all such separate counterparts shall
constitute but one and the same instrument.
13.8 Separability. Should any clause, sentence, paragraph or section of
this Agreement be judicially declared to be invalid, unenforceable or
void, such decision shall not have the effect of invalidating or
voiding the remainder of this Agreement, and the parties hereto agree
that the part or parts of this Agreement so held to be invalid,
unenforceable or void will be deemed to have been stricken herefrom
and the remainder will have the same force and effectiveness as if
such part or parts had never been included herein. Each covenant
contained in this Agreement shall be construed (absent an express
contrary provision herein) as being independent of each other covenant
contained herein, and compliance with any one covenant shall not
(absent such an express contrary provision) be deemed to excuse
compliance with one or more other covenants.
13.9 Descriptive Headings. The section headings in this Agreement have been
inserted for convenience only and shall be given no substantive
meaning or significance whatsoever in construing the terms and
provisions of this Agreement.
13.10 Accounting Terms. All accounting terms used herein which are not
expressly defined in the Agreement, or the respective meanings of
which are not otherwise qualified, shall have the respective meanings
given to them in accordance with GAAP.
13.11 Limitation of Liability. No claim may be made by the Borrower or any
other Person against the Agent or any Bank or the Affiliates,
directors, officers, employees, attorneys, or agents of the Agent or
any Bank for any special, indirect, consequential, or punitive damages
in respect to any claim for breach of contract arising out of or
related to the transactions contemplated by this Agreement, or any
act, omission, or event occurring in connection herewith and the
Borrower hereby waives, releases, and agrees not to xxx upon any claim
for any such damages, whether or not accrued and whether or not known
or suspected to exist in its favor.
13.12 Set-Off. The Borrower hereby gives and confirms to each Bank a right
of set-off of all moneys, securities and other property of the
Borrower (whether special, general or limited) and the proceeds
thereof, now or hereafter delivered to remain with or in transit in
any manner to such Bank, its Affiliates, correspondents or agents from
or for the Borrower, whether for safekeeping, custody, pledge,
transmission, collection or otherwise or coming into possession of
such Bank, its Affiliates, correspondents or agents in any way, and
also, any balance of any deposit accounts and credits of the Borrower
with, and any and all claims of security for the payment of the Notes
and of all other liabilities and obligations now or hereafter owed by
the Borrower to such Bank, contracted with or acquired by such Bank,
whether such liabilities and obligations be joint, several, absolute,
contingent, secured, unsecured, matured or unmatured, and the Borrower
hereby authorizes each Bank, its Affiliates, correspondents or agents
at any time or times, without prior notice, to apply such money,
securities, other property, proceeds, balances, credits of claims, or
any part of the foregoing, to such liabilities in such amounts as it
may select, whether such liabilities be contingent, unmatured or
otherwise, and whether any collateral security therefor is deemed
adequate or not. The rights described herein shall be in addition to
any collateral security, if any, described in any separate agreement
executed by the Borrower.
13.13 Sale or Assignment
(a) Subject to the prior written consent of the Agent and the
Borrower, such consent not to be unreasonably withheld or delayed,
each Bank may assign to an Eligible Assignee all or a portion of its
rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments and the Note held by
it); provided, however, that: (i) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning Banks
rights and obligations under this Agreement; (ii) the amount of the
Commitments so assigned shall equal or exceed $5,000,000.00; (iii) the
Commitment of each Bank shall be not less than $5,000,000.00 (subject
only to reductions pursuant to Sections 4.6 and 11 hereof); (iv) the
parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register (as
hereinafter defined), an Assignment and Acceptance in the form of
Exhibit C attached hereto and made a part hereof (the "Assignment and
Acceptance"), together with any Note subject to such assignment and a
processing and recordation fee of $5,000.00; (v) any such assignment
from one Bank to another Bank shall not require the consent of the
Agent or the Borrower if such assignment does not result in any Bank
holding more than 60% of the aggregate outstanding Commitments; and
(vi) any such assignment shall not require the consent of the Borrower
if a Default or Event of Default shall have occurred and is then
continuing. Upon such execution, delivery, acceptance, and recording,
from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be the date on which such
Assignment and Acceptance is accepted by the Agent, (A) the Eligible
Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations of a
Bank under the Loan Documents, and (B) the Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Loan
Documents (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Bank's rights and
obligations under the Loan Documents, such Bank shall cease to be a
party thereto).
(b) By executing and delivering an Assignment and Acceptance, the
Bank assignor thereunder and the Eligible Assignee thereunder confirm
to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such
assigning Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties, or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness,
sufficiency, or value of any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Bank makes no
representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower of any of its obligations
under any Loan Document or any other instrument or document furnished
pursuant thereto; (iii) such Eligible Assignee confirms that it has
received a copy of the Loan Documents, together with copies of the
financial statements referred to in Section 7.2 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such Eligible Assignee, independently and without
reliance upon the Agent, such assigning Bank, or any Bank and based on
such documents and information as it shall deem appropriate at the
time, will continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such Eligible Assignee
appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under any Loan Document as are
delegated to the Agent by the terms thereof, together with such powers
as are reasonably incidental thereto; and (vi) such Eligible Assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of any Loan Document are required to be
performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in
Section 13.4 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of Banks and the Commitment of, and principal amount of the
Loans owing to, each Bank from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agent, and
Banks may treat each Person whose name is recorded in the Register as
Bank hereunder for all purposes of the Loan Documents. The Register
shall be available for inspection by the Borrower or any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Bank, together with any Note subject to such assignment,
the Agent, if such Assignment and Acceptance has been completed and is
in substantially the form of Exhibit C, shall (i) accept such
Assignment and Acceptance; (ii) record the information contained
therein in the Register; and (iii) give prompt notice thereof to the
Borrower. Within three (3) Business Days after its receipt of such
notice, the Borrower at its own expense, shall execute and deliver to
the Agent in exchange for each surrendered Note a new Note to the
order of such Eligible Assignee in an amount equal to the Commitment
assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Bank has retained a Commitment hereunder, a new Note to the
order of the assigning Bank in an amount equal to the Commitment
retained by it hereunder. The new Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the
form of Exhibit C attached hereto and made a part hereof. Upon receipt
by the Agent of each such new Note conforming to the requirements set
forth in the preceding sentences, the Agent shall return to the
Borrower each such surrendered Note marked to show that each such
surrendered Note has been replaced, renewed, and extended by such new
Note.
(e) Each Bank may sell participations to one or more banks or
other entities in or to all or a portion of its rights and/or
obligations under this Agreement (including, without limitation, all
or a portion of its Commitment and the Note held by it); provided,
however, that (i) each Bank's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged; (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such
obligations; (iii) except as provided below, such Bank shall remain
the holder of any such Note for all purposes of this Agreement; and
(iv) the participating banks or other entities shall be entitled to
the benefits of Sections 2.3 and 4.6 to recover costs, losses and
expenses in the circumstances, and to the extent provided in Section
2.3, as though such participant were a Bank; provided, however, the
amounts to which a participant shall be entitled to obtain pursuant to
Sections 2.3 and 4.6 shall be determined by reference to such
participant's selling Bank and shall be recoverable solely from such
selling Bank and (v) the Borrower, the Agent and the other Banks shall
continue to deal solely and directly with the selling Bank in
connection with such Bank's rights and obligations under this
Agreement and the other Loan Documents; provided, however, the selling
Bank may grant a participantrights with respect to amendments,
modification or waivers with respect to any fees payable hereunder to
such Bank (including the amount and the dates fixed for the payment of
any such fees) or the amount of principal or the rate of interest
payable on, the dates fixed for any payment of principal or interest
on, the Loans, or the release of any obligations of the Borrower
hereunder and under the other Loan Documents, or the release of any
security for any of the Obligations. Except with respect to cost
protections contained in Sections 2.3 and 4.6, no participant shall be
a third party beneficiary of this Agreement and shall not be entitled
to enforce any rights provided to its selling Bank against the Company
under this Agreement.
(f) Notwithstanding anything herein to the contrary, each Bank
may pledge and assign all or any portion of its rights and interests
under the Loan Documents to any Federal Reserve Bank.
(g) Notwithstanding anything herein to the contrary, each Bank
may assign all or a portion of its interests, rights and obligations
under this Agreement (including, without limitation, all or a portion
of its Commitments and the Note held by it) to one or more Bank
Affiliates without the prior written consent of the Borrower. For
purposes of this Section 12.13, "Bank Affiliate" shall mean (a) with
respect to any Bank, (i) an Affiliate of such Bank or (ii) any entity
(whether a corporation, partnership, trust or otherwise) that is
engaged in making, purchasing, holding or otherwise investing in bank
loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Bank or an Affiliate of
such Bank and (b) with respect to any Bank that is a fund which
invests in bank loans and similar extensions of credit, any other fund
that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Bank or by an Affiliate
of such investment advisor. Each Bank Affiliate shall be deemed for
purposes hereof to be an "Eligible Assignee."
13.14 Non U.S. Banks. Prior to the date of the initial Borrowings
hereunder, and from time to time thereafter if requested by the
Borrower or the Agent, each Bank organized under the laws of a
jurisdiction outside the United States of America shall provide the
Agent and the Borrower with the forms prescribed by the Internal
Revenue Service of the United States of America certifying such Banks
exemption from United States withholding taxes with respect to all
payments to be made to such Bank hereunder or under such Bank's Note.
Unless the Borrower and the Agent have received forms or other
documents satisfactory to them indicating that payments hereunder or
under such Bank's Note are not subject to United States withholding
tax or are subject to such tax at a rate reduced by an applicable tax
treaty, the Borrower or the Agent shall withhold taxes from such
payments at the applicable statutory rate in the case of payments to
or for any Bank organized under the laws of a jurisdiction outside the
United States.
13.15 Interest. All agreements between the Borrower, the Agent or any Bank,
whether now existing or hereafter arising and whether written or oral,
are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of demand being made on any Note or
otherwise, shall the amount paid, or agreed to be paid, to the Agent
or any Bank for the use, forbearance, or detention of the money to be
loaned under this Agreement or otherwise or for the payment or
performance of any covenant or obligation contained herein or in any
document related hereto exceed the amount permissible at the Highest
Lawful Rate. If, as a result of any circumstances whatsoever,
fulfillment of any provision hereof or of any of such documents, at
the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by applicable usury law,
then, ipso facto, the obligation to be filled shall be reduced to the
limit of such validity, and if, from any such circumstance, the Agent
or any Bank shall ever receive interest or anything which might be
deemed interest under applicable law which would exceed the amount
permissible at the Highest Lawful Rate, such amount which would be
excessive interest shall be applied to the reduction of the principal
amount owing on account of the Notes or the amounts owing on other
obligations of the Borrower to the Agent or any Bank under this
Agreement or any document related hereto and not to the payment of
interest, or if such excessive interest exceeds the unpaid principal
balance of the Notes and the amounts owing on other obligations of the
Borrower to the Agent or any Bank under this Agreement or any document
related hereto, as the case may be, such excess shall be refunded to
the Borrower. All sums paid or agreed to be paid to the Agent or any
Bank for the use, forbearance, or detention of the indebtedness of the
Borrower to the Agent or any Bank shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread
throughout the full term of such indebtedness until payment in full of
the principal thereof (Including the period of any renewal or
extension thereof) so that the interest on account of such
indebtedness shall not exceed the Highest Lawful Rate. The terms and
provisions of this Section 13.15 shall control and supersede every
other provision of all agreements between the Borrower and the Banks.
13.16 Indemnification. THE BORROWER AGREES TO INDEMNIFY, DEFEND, AND SAVE
HARMLESS THE AGENT, EACH BANK AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, AND ATTORNEYS, AND EACH OF THEM (THE
"INDEMNIFIED PARTIES"), FROM AND AGAINST ALL CLAIMS, ACTIONS, SUITS,
AND OTHER LEGAL PROCEEDINGS, DAMAGES, COSTS, INTEREST, CHARGES, TAXES,
COUNSEL FEES, AND OTHER EXPENSES AND PENALTIES (INCLUDING WITHOUT
LIMITATION ALL ATTORNEY FEES AND COSTS OR EXPENSES OF SETTLEMENT)
WHICH ANY OF THE INDEMNIFIED PARTIES MAY SUSTAIN OR INCUR BY REASON OF
OR ARISING OUT OF (a) THE MAKING OF ANY LOAN HEREUNDER, THE EXECUTION
AND DELIVERY OF THIS AGREEMENT AND THE NOTES AND THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED THEREBY AND THE EXERCISE OF ANY OF THE
BANKS' RIGHTS UNDER THIS AGREEMENT AND THE NOTES OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, DAMAGES, COSTS, AND EXPENSES INCURRED
BY ANY OF THE INDEMNIFIED PARTIES IN INVESTIGATING, PREPARING FOR,
DEFENDING AGAINST, OR PROVIDING EVIDENCE, PRODUCING DOCUMENTS, OR
TAKING ANY OTHER ACTION IN RESPECT OF ANY COMMENCED OR THREATENED
LITIGATION UNDER ANY FEDERAL SECURITIES LAW OR ANY SIMILAR LAW OF ANY
JURISDICTION OR AT COMMON LAW OR (b) ANY AND ALL CLAIMS OR PROCEEDINGS
(WHETHER BROUGHT BY A PRIVATE PARTY, GOVERNMENTAL AUTHORITY OR
OTHERWISE) FOR BODILY INJURY, PROPERTY DAMAGE, ABATEMENT, REMEDIATION,
ENVIRONMENTAL DAMAGE, OR IMPAIRMENT OR ANY OTHER INJURY OR DAMAGE
RESULTING FROM OR RELATING TO THE RELEASE OF ANY HAZARDOUS MATERIALS
LOCATED UPON, MIGRATING INTO, FROM, OR THROUGH OR OTHERWISE RELATING
TO ANY PROPERTY OWNED OR LEASED BY THE BORROWER OR ANY SUBSIDIARY
(WHETHER OR NOT THE RELEASE OF SUCH HAZARDOUS MATERIALS WAS CAUSED BY
THE BORROWER, ANY SUBSIDIARY, A TENANT, OR SUBTENANT OF THE BORROWER
OR ANY SUBSIDIARY, A PRIOR OWNER, A TENANT, OR SUBTENANT OF ANY PRIOR
OWNER OR ANY OTHER PARTY AND WHETHER OR NOT THE ALLEGED LIABILITY IS
ATTRIBUTABLE TO THE HANDLING, STORAGE, GENERATION, TRANSPORTATION, OR
DISPOSAL OF ANY HAZARDOUS MATERIALS OR THE MERE PRESENCE OF ANY
HAZARDOUS MATERIALS ON SUCH PROPERTY; PROVIDED THAT THE BORROWER SHALL
NOT BE LIABLE TO THE INDEMNIFIED PARTIES WHERE THE RELEASE OF SUCH
HAZARDOUS MATERIALS OCCURS AT ANY TIME AT WHICH THE BORROWER OR ANY
SUBSIDIARY CEASES TO OWN OR LEASE SUCH PROPERTY); AND PROVIDED FURTHER
THAT NO INDEMNIFIED PARTY SHALL BE ENTITLED TO THE BENEFITS OF THIS
SECTION 13.16 TO THE EXTENT ITS OWN GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT CONTRIBUTED TO ITS LOSS; AND PROVIDED FURTHER THAT IT IS
THE INTENTION OF THE BORROWER TO INDEMNIFY THE INDEMNIFIED PARTIES
AGAINST THE CONSEQUENCES OF THEIR OWN NEGLIGENCE. THIS AGREEMENT IS
INTENDED TO PROTECT AND INDEMNIFY THE INDEMNIFIED PARTIES AGAINST ALL
RISKS HEREBY ASSUMED BY THE BORROWER. FOR PURPOSES OF THE FOREGOING
SECTION 13.16, THE PHRASE "CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED THEREBY" SET FORTH IN SUBPARAGRAPH (a) ABOVE SHALL
INCLUDE, BUT NOT BE LIMITED TO, THE FINANCING OF ANY CORPORATE
TAKEOVER PERMITTED HEREUNDER AND THE BORROWER'S USE OF THE LOAN
PROCEEDS FOR THE PURPOSE OF ACQUIRING ANY EQUITY INTERESTS DESCRIBED
IN SUBPARAGRAPH (ii) OF THE DEFINITION OF "QUALIFYING ASSETS" SET
FORTH IN THIS AGREEMENT (AS AMENDED). THE OBLIGATIONS OF THE BORROWER
UNDER THIS SECTION 13.16 SHALL SURVIVE ANY TERMINATION OF THIS
AGREEMENT AND THE REPAYMENT OF THE NOTES.
13.17 Payments Set Aside. To the extent that the Borrower makes a payment
or payments to the Agent or any Bank or the Agent or any Bank
exercises its right of set off, and such payment or payments or the
proceeds of such set off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other
Person under any Debtor Law or equitable cause, then, to the extent of
such recovery, the obligation or part thereof originally intended to
be satisfied, and all rights and remedies therefor, shall be revived
and shall continue in full force and effect as if such payment had not
been made or set off had not occurred.
13.18 Loan Agreement Controls. If there are any conflicts or
inconsistencies among this Agreement and any other document executed
in connection with the transactions connected herewith, the provisions
of this Agreement shall prevail and control.
13.19 Obligations Several. The obligations of each Bank under this
Agreement and the Note to which it is a party are several, and no Bank
shall be responsible for any obligation or Commitment of any other
Bank under this Agreement and the Note to which it is a party. Nothing
contained in this Agreement or the Note to which it is a party, and no
action taken by any Bank pursuant thereto, shall be deemed to
constitute the Banks to be a partnership, an association, a joint
venture, or any other kind of entity.
13.20 Pro Rata Treatment. All Loans under, and all payments and other
amounts received in connection with this Agreement (including, without
limitation, amounts received as a result of the exercise by any Bank
of any right of set off) shall be effectively shared by the Banks
ratably in accordance with the respective Pro Rata Percentages of the
Banks. If any Bank shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set off, or
otherwise) on account of the principal of, or interest on, or fees in
respect of, any Note held by it (other than pursuant to Section
2.3(d)) in excess of its Pro Rata Percentage of payments on account of
similar Notes obtained by all the Banks, such Bank shall forthwith
purchase from the other Banks such participations in the Notes or
Loans made by them as shall be necessary to cause such purchasing Bank
to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from
each Bank shall be rescinded and such Bank shall repay to the
purchasing Bank the purchase price to the extent of such recovery
together with an amount equal to such Bank's ratable share (according
to the proportion of (a) the amount of such Bank's required repayment
to (b) the total amount so recovered from the purchasing Bank) of any
interest or other amount paid or payable by the purchasing Bank in
respect of the total amount so recovered. Disproportionate payments of
interest shall be shared by the purchase of separate participations in
unpaid interest obligations, disproportionate payments of fees shall
be shared by the purchase of separate participations in unpaid fee
obligations, and disproportionate payments of principal shall be
shared by the purchase of separate participations in unpaid principal
obligations. The Borrower agrees that any Bank so purchasing a
participation from another Bank pursuant to this Section 13.20 may, to
the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the
Borrower in the amount of such participation. Notwithstanding the
foregoing, a Bank may receive and retain an amount in excess of its
Pro Rata Percentage to the extent but only to the extent, that such
excess results from such Bank's Highest Lawful Rate exceeding another
Bank's Highest Lawful Rate.
13.21 No Rights, Duties or Obligations of Syndication Agent or
Documentation Agent. The Borrower, the Agent and each Bank acknowledge
and agree that except for the rights, powers, obligations and
liabilities under this Agreement and the other Loan Documents as a
Bank, Fleet National Bank, as Syndication Agent, and WestLB AG, New
York Branch, as Documentation Agent, shall have no additional rights,
powers, obligations or liabilities under this agreement or any other
Loan Documents in their capacities as Syndication Agent or
Documentation Agent, respectively
13.22 Final Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT'S OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
13.23 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
IN WITNESS WHEREOF, the parties hereto, by their respective officers
thereunto duly authorized, have executed this Agreement on the dates set forth
below to be effective as of May 28, 2004.
SOUTHERN UNION COMPANY
By: s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Title: Vice President and Treasurer
--------------------------------------------
Commitment: JPMORGAN CHASE BANK,
$28,000,000 for itself and as Agent for the Banks
By: s/ Xxx X. Sample
--------------------------------------------
Name: Xxx X. Sample
--------------------------------------------
Title: Vice President
--------------------------------------------
Commitment: FLEET NATIONAL BANK
$20,000,000
By: s/ Xxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
--------------------------------------------
Title: Vice President
--------------------------------------------
Address for Notices:
Fleet National Bank
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
Fax No.: (000) 000-0000
Separate Domestic and Eurodollar Lending
Office:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Commitment: WESTLB AG, NEW YORK BRANCH
$20,000,000
By: s/ Xxxxxx Xxxxxxxxx s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Title: Executive Director Associate Director
------------------------------------------------
Address for Notices:
WestLB AG, New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
Commitment: KBC BANK N.V.
$20,000,000
By: s/ Xxxxxx Xxxxxxxx s/ Xxxx Xxxxxx
-----------------------------------------------
Name:Xxxxxx Xxxxxxxx Xxxx Xxxxxx
-----------------------------------------------
Title: First Vice President Vice President
------------------------------------------------
Address for Notices:
KBC Bank, N.V.
Atlanta Representative Xxxxxx
000 Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxx Xxxxx
Fax No.: (000) 000-0000
Separate Domestic and Eurodollar Lending Office:
KBC Bank, N.V.
New York Branch
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Commitment: XXXXX FARGO BANK, NA
$20,000,000
By: s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-----------------------------------------------
Title: Relationship Manager
-----------------------------------------------
Address for Notices:
Xxxxx Fargo Bank, NA
0000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Fax No.: (000) 000-0000
Separate Domestic and Eurodollar Lending Office:
Xxxxx Fargo Bank, NA
0000 Xxxxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Commitment: CALYON NEW YORK BRANCH
$20,000,000
By: s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------------------------
Title:Managing Director
------------------------------------------
Address for Notices:
Calyon New York Branch
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxx
Fax No.: (000) 000-0000
Separate Domestic and Eurodollar Lending Office:
Calyon New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Commitment: XXXXXXX XXXXX BANK USA
$20,000,000
By: s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
-------------------------------------
Title: Director
-------------------------------------
Address for Notices:
Xxxxxxx Xxxxx Bank USA
00 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx Xxxxx
Fax No.: (000) 000-0000
Commitment: SOVEREIGN BANK
$20,000,000
By: s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
---------------
Title: Senior Vice President
-------------------------------------
Address for Notices:
Sovereign Bank
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Fax No.: (000) 000-0000
Commitment: MANUFACTURERS AND TRADERS TRUST
$20,000,000 COMPANY
By: s/ Xxxxxx X. Xxxxx
---------------------
Name: Xxxxxx X. Xxxxx
---------------------
Title: Vice President
---------------------
Address for Notices:
Manufacturers and Traders Trust Company
00 Xxxxx Xxxxxxxx
Xxxxxx-Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax No.: (000) 000-0000
Separate Domestic and Eurodollar Lending Office:
Manufacturers and Traders Trust Company
Xxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Commitment: THE NORINCHUKIN BANK,
NEW YORK BRANCH
$20,000,000
By: s/ Xxxxxxx Xxx
------------------
Name: Xxxxxxx Xxx
------------------
Title: General Manager
------------------
Address for Notices:
The Norinchukin Bank, New York Branch
000 Xxxx Xxx., 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Fax No.: (000) 000-0000
Commitment: BAYERISCHE LANDESBANK,
$15,000,000 CAYMAN ISLANDS BRANCH
By: s/ Xxxxxxx Xxxx s/ Xxxxxxx Xxxxxxx Jr.
-------------------------------------------
Name: Xxxxxxx Xxxx Xxxxxxx Xxxxxxx Jr.
-------------------------------------------
Title:Senior Vice President Second Vice President
-------------------------------------------
Address for Notices:
Bayerische Landesbank,
Cayman Islands Branch
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx
Fax No.: (000) 000-0000
Commitment: BANK HAPOALIM B.M.
$15,000,000
By: s/ Xxxxx X. Xxxxxxx s/ Xxxxx Xxxx Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx Xxxxx Xxxx Xxxxx
------------------------------------------
Title:Vice President Exec VP & Corp. Manager
------------------------------------------
Address for Notices:
Bank Hapoalim B.M.
1177 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax No.: (000) 000-0000
Commitment: CREDIT SUISSE FIRST BOSTON
$15,000,000
By: s/ Xxxxx Xx s/ Xxxxx X. Xxxx
-------------------------------------------
Name: Xxxxx Xx Xxxxx X. Xxxx
-------------------------------------------
Title:Vice President Associate
-------------------------------------------
Address for Notices:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010
Attention: Xxxxx Xx
Fax No.: (000) 000-0000
Commitment: PNC BANK, NATIONAL ASSOCIATION
$15,000,000
By: s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
-----------------
Title:Managing Director
-----------------
Address for Notices:
PNC Bank, National Association
Xxx Xxxxx Xxxxxx Xxxx.
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxx
Fax No.: (000) 000-0000
Commitment: SUMITOMO MITSUI BANKING CORP.,
$15,000,000 NEW YORK
By: s/ Xxx X. Xxxxxxxxx
--------------------------------------
Name: Xxx X. Xxxxxxxxx
--------------------------------------
Title: Senior Vice President
-------------------------
Address for Notices:
Sumitomo Mitsui Banking Corp., New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Fax No.: (000) 000-0000
Commitment: UFJ BANK LIMITED, NEW YORK BRANCH
$15,000,000
By: s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
------------------
Title: Vice President
-----------------
Address for Notices:
UFJ Bank Limited, New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Fax No.: (000) 000-0000
Commitment: MIZUHO CORPORATE BANK (USA)
$15,000,000
By: s/ Michisuke Araki
-----------------------
Name: Michisuke Araki
-----------------------
Title: President & CEO
-----------------------
Address for Notices:
Mizuho Corporate Bank (USA)
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Fax No.: (000) 000-0000
Commitment: CITIZENS BANK OF RHODE ISLAND
$12,000,000
By: s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------
Title: Vice President
-----------------------
Address for Notices:
Citizens Bank of Rhode Island
One Citizens Plaza
Mail Stop RC0480
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
Commitment: BANK OF TOKYO-MITSUBISHI, LTD.
$12,000,000
By: s/ Xxxxxx X. Xxxxxxx Xx.
-------------------------
Name: Xxxxxx X. Xxxxxxx Xx.
-------------------------
Title:Vice President
-------------------------
Address for Notices:
Bank of Tokyo-Mitsubishi, Ltd.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax No.: (000) 000-0000
Commitment: XXXXX XXX COMMERCIAL BANK, LTD.,
$12,000,000 LOS ANGELES BRANCH
By: s/ Xxx Xxxx
----------------------
Name: Xxx Xxxx
----------------------
Title:VP & General Manager
----------------------
Address for Notices:
Xxxxx Xxx Commercial Bank, Ltd.,
Los Angeles Branch
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Fax No.: (000) 000-0000
Commitment: BANK OF CHINA, NEW YORK BRANCH
$12,000,000
By: s/ Xxxxxxx X. Xxxxx Xx.
-------------------------
Name: Xxxxxxx X. Xxxxx Xx.
-------------------------
Title: Chief Lending Officer
-------------------------
Address for Notices:
Bank of China, New York Branch
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Fax No.: (000) 000-0000
Commitment: ROYAL BANK OF CANADA
$12,000,000
By: s/ Xxxxx X. XxXxxxxxx
--------------------------
Name: Xxxxx X. XxXxxxxxx
--------------------------
Title: Authorized Signatory
--------------------------
Address for Notices:
Royal Bank of Canada
New York Branch
Xxx Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxx
Fax No.: (000) 000-0000
Commitment: UMB BANK, N.A.
$12,000,000
By: s/ Xxxxx X. Xxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxx
------------------
Title:Senior Vice President
----------------------
Address
for Notices:
UMB Bank, N.A.
0000 Xxxxx Xxxx.
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
Commitment: BANK OF COMMUNICATIONS,
$5,000,000 NEW YORK BRANCH
By: s/ Hong Tu
--------------------
Name: Hong Tu
--------------------
Title: General Manager
--------------------
Address for Notices:
Bank of Communications,
New York Branch
One Exchange Plaza
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxx
Fax No.: (000) 000-0000
Commitment: BANK OF TAIWAN, NEW YORK AGENCY
$5,000,000
By: s/ Xxxxxx X. X. Teh
---------------------
Name: Xxxxxx X. X. Xxx
---------------------
Title: SVP & GM
------------
Address for Notices:
Bank of Taiwan, New York Agency
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx
Fax No.: (000) 000-0000
Commitment: CHINATRUST COMMERCIAL BANK,
$5,000,000 NEW YORK BRANCH
By: s/ Xxxx Xxx
-----------------------
Name: Xxxx Xxx
-----------------------
Title: Senior Vice President
-----------------------
Address for Notices:
Chinatrust Commercial Bank,
New York Branch
000 Xxxxxxx Xxxxxx, 0/X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Fax No.: (000) 000-0000
EXHIBIT A
REVOLVING NOTE
$___________ ____________, 200__
FOR VALUE RECEIVED, the undersigned, SOUTHERN UNION COMPANY, a
corporation organized under the laws of Delaware (the "Borrower"), HEREBY
PROMISES TO PAY to the order of ___________________________________ (the
"Bank"), on or before _______________________ (the "Maturity Date"), the
principal sum of ________________ Million and No/ 100ths Dollars ($_,000,000.00)
in accordance with the terms and provisions of that certain Third Amended and
Restated Revolving Credit Agreement dated May ____, 2004, by and among the
Borrower, the Bank, the other banks named on the signature pages thereof, and
JPMORGAN CHASE BANK, as Agent (the "Credit Agreement"). Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to such terms
in the Credit Agreement.
The outstanding principal balance of this Revolving Note shall be
payable at the Maturity Date. The Borrower promises to pay interest on the
unpaid principal balance of this Revolving Note from the date of any Loan
evidenced by this Revolving Note until the principal balance thereof is paid in
full. Interest shall accrue on the outstanding principal balance of this
Revolving Note from and including the date of any Loan evidenced by this
Revolving Note to but not including the Maturity Date at the rate or rates, and
shall be due and payable on the dates, set forth in the Credit Agreement. Any
amount not paid when due with respect to principal (whether at stated maturity,
by acceleration or otherwise), costs or expenses, or, to the extent permitted by
applicable law, interest, shall bear interest from the date when due to and
excluding the date the same is paid in full, payable on demand, at the rate
provided for in Section 2.2(b) of the Credit Agreement.
Payments of principal and interest, and all amounts due with respect to
costs and expenses, shall be made in lawful money of the United States of
America in immediately available funds, without deduction, set off or
counterclaim to the account of the Agent at the principal office of JPMorgan
Chase Bank in Houston, Texas (or such other address as the Agent under the
Credit Agreement may specify) not later than noon (Houston time) on the dates on
which such payments shall become due pursuant to the terms and provisions set
forth in the Credit Agreement.
If any payment of interest or principal herein provided for is not paid
when due, then the owner or holder of this Revolving Note may at its option, by
notice to the Borrower, declare the unpaid, principal balance of this Revolving
Note, all accrued and unpaid interest thereon and all other amounts payable
under this Revolving Note to be forthwith due and payable, whereupon this
Revolving Note, all such interest and all such amounts shall become and be
forthwith due and payable in full, without presentment, demand, protest, notice
of intent to accelerate, notice of actual acceleration or further notice of any
kind, all of which are hereby expressly waived by the Borrower.
If any payment of principal or interest on this Revolving Note shall
become due on a Saturday, Sunday, or public holiday on which the Agent is not
open for business, such payment shall be made on the next succeeding Business
Day and such extension of time shall in such case be included in computing
interest in connection with such payment.
In addition to all principal and accrued interest on this Revolving
Note, the Borrower agrees to pay (a) all reasonable costs and expenses incurred
by the Agent and all owners and holders of this Revolving Note in collecting
this Revolving Note through any probate, reorganization bankruptcy or any other
proceeding and (b) reasonable attorneys' fees when and if this Revolving Note is
placed in the hands of an attorney for collection after default.
All agreements between the Borrower and the Bank, whether now existing
or hereafter arising and whether written or oral, are hereby expressly limited
so that in no contingency or event whatsoever, whether by reason of demand being
made on this Revolving Note or otherwise, shall the amount paid, or agreed to be
paid, to the Bank for the use, forbearance, or detention of the money to be
loaned under the Credit Agreement and evidenced by this Revolving Note or
otherwise or for the payment or performance of any covenant or obligation
contained in the Credit Agreement or this Revolving Note exceed the amount
permissible at Highest Lawful Rate. If as a result of any circumstances
whatsoever, fulfillment of any provision hereof or of the Credit Agreement at
the time performance of such provision shall be due, shall involve transcending
the limit of validity prescribed by applicable usury law, then, ipso facto, the
obligation to be fulfilled shall be reduced to the limit of such validity, and
if from any such circumstance, the Bank shall ever receive interest or anything
which might be deemed interest under applicable law which would exceed the
amount permissible at the Highest Lawful Rate, such amount which would be
excessive interest shall be applied to the reduction of the principal amount
owing on account of this Revolving Note or the amounts owing on other
obligations of the Borrower to the Bank under the Credit Agreement and not to
the payment of interest, or if such excessive interest exceeds the unpaid
principal balance of this Revolving Note and the amounts owing on other
obligations of the Borrower to the Bank under the Credit Agreement, as the case
may be, such excess shall be refunded to the Borrower. In determining whether or
not the interest paid or payable under any specific contingencies exceeds the
Highest Lawful Rate, the Borrower and the Bank shall, to the maximum extent
permitted under applicable law, (a) characterize any nonprincipal payment as an
expense, fee or premium rather than as interest; (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate and
spread in equal parts during the period of the full stated term of this
Revolving Note, all interest at any time contracted for, charged, received or
reserved in connection with the indebtedness evidenced by this Revolving Note.
This Revolving Note is one of the Notes provided for in, and is
entitled to the benefits of, the Credit Agreement, which Credit Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events, for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions and with the
effect therein specified, and provisions to the effect that no provision of the
Credit Agreement or this Revolving Note shall require the payment or permit the
collection of interest in excess of the Highest Lawful Rate. It is contemplated
that by reason of prepayments or repayments hereon prior to the Maturity Date,
there may be times when no indebtedness is owing hereunder prior to such date;
but notwithstanding such occurrence this Revolving Note shall remain valid and
shall be in full force and effect as to Loans made pursuant to the Credit
Agreement subsequent to each such occurrence.
Except as otherwise specifically provided for in the Credit Agreement,
the Borrower and any and all endorsers, guarantors and sureties severally waive
grace, demand, presentment for payment, notice of dishonor or default, protest,
notice of protest, notice of intent to accelerate, notice of acceleration and
diligence in collecting and bringing of suit against any party hereto, and agree
to all renewals, extensions or partial payments hereon and to any release or
substitution of security hereof, in whole or in part, with or without notice,
before or after maturity.
THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
executed and delivered by its officer thereunto duly authorized effective as of
the date first above written.
SOUTHERN UNION COMPANY
By:_________________________________
Name:_______________________________
Title:________________________________
EXHIBIT B
NOTICE OF BORROWING
The undersigned hereby certifies that s/he is an officer of SOUTHERN
UNION COMPANY, a corporation organized under the laws of Delaware (the
"Borrower"), authorized to execute this Notice of Borrowing on behalf of the
Borrower. With reference to that certain Third Amended and Restated Revolving
Credit Agreement dated May ___, 2004 (as same may be amended, modified,
increased, supplemented and/or restated from time to time, the "Credit
Agreement") entered into by and between the Borrower, JPMORGAN CHASE BANK, as
Agent, and the Banks identified therein, the undersigned further certifies,
represents and warrants to Banks on behalf of the Borrower that to his best
knowledge and belief after reasonable and due investigation and review, all of
the following statements are true and correct (each capitalized term used herein
having the same meaning given to it in the Credit Agreement unless otherwise
specified):
(a) Borrower requests that the Banks advance to the Borrower the
aggregate sum of $__________by no later than ____________, 200__ (the "Borrowing
Date"). Immediately following such Loan, the aggregate outstanding balance of
Loans shall equal $__________. Borrower requests that the Loans bear interest as
follows:
(i) The principal amount of the Loans, if any, which shall
bear interest at the Alternate Base Rate requested to be made by the
Banks is $________. The initial Rate Period for such Loans shall be 90
days.
(ii) The principal amount of the Loans, if any, which shall
bear interest at the Eurodollar Rate for which the Rate Period shall be
fifteen days requested to be made by the Banks is
$----------------.
(iii) The principal amount of the Loans, if any, which shall
bear interest at the Eurodollar Rate for which the Rate Period shall be
one month requested to be made by the Banks is $__________.
(iv) The principal amount of the Loans, if any, which shall
bear interest at the Eurodollar Rate for which the Rate Period shall be
two months requested to be made by the Banks is $_________.
(v) The principal amount of the Revolving Loans, if any,
which shall bear interest at the Eurodollar Rate for which the Rate
Period shall be three months requested to be made by the Banks is
$---------.
(vi) The principal amount of the Revolving Loans, if any,
which shall bear interest at the Eurodollar Rate for which the Rate
Period shall be six months requested to be made by the Banks is
$----------.
(b) The proceeds of the borrowing shall be deposited into Borrower's
demand deposit account at JPMorgan Chase Bank more fully described as follows:
Account No. 09916100522, styled Southern Union Company.
(c) Of the aggregate sum to be advanced, $_____________ will be
advanced to provide working capital pursuant to Section 6.1(a) of the Credit
Agreement and $__________will be advanced for the purposes set forth in Section
6.1(b) of the Credit Agreement; and $__________ will be advanced for the
purposes set forth in Section 6.1(c) of the Credit Agreement; and $___________
will be advanced for the purposes of replacing Loans currently outstanding under
the Credit Agreement.
(d) The Expiration Date of each Rate Period specified in (a) above
shall be the last day of such Rate Period.
(e) As of the date hereof, and as a result of the making of the
requested Loans, there does not and will not exist any Default or Event of
Default.
(f) The representations and warranties contained in Section 7 of the
Credit Agreement are true and correct in all material respects as of the date
hereof and shall be true and correct upon the making of the requested Loan, with
the same force and effect as though made on and as of the date hereof and
thereof.
(g) No change that would cause a material adverse effect on the
business, operations or condition (financial or otherwise) of the Borrower has
occurred since the date of the most recent financial statements provided to the
Banks dated as of __________, 200__.
EXECUTED AND DELIVERED this _____ day of _______________, 200__.
SOUTHERN UNION COMPANY
By:_________________________
Name:_______________________
Title:________________________
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
[NAME AND ADDRESS OF
ASSIGNING BANK]
_______________, 200__
Re: Southern Union Company Third Amended and Restated Revolving
Credit Agreement
Ladies and Gentlemen:
We have entered into a Third Amended and Restated Revolving Credit
Agreement dated as of May ___, 2004 (the "Credit Agreement"), among certain
banks (including us), JPMorgan Chase Bank (the "Agent") and Southern Union
Company (the "Company"). Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Credit Agreement.
Each reference to the Credit Agreement, the Notes, or any other
document evidencing or governing the Loans (all such documents collectively, the
"Financing Documents") includes each such document as amended, modified,
extended or replaced from time to time. All times are Houston times.
1. ASSIGNMENT. We hereby sell you and assign to you without recourse, and you
hereby unconditionally and irrevocably acquire for your own account and risk, a
percent ( %) undivided interest ("your assigned share") in each of the following
(the "Assigned Obligations"):
a. our Note;
b. all Loans and interest thereon as provided in Section 2 of the
Credit Agreement [,except that interest shall accrue on your assigned share in
the principal of Alternate Base Rate Loans and Eurodollar Rate Loans at an
annual rate equal to the rate provided in the Credit Agreement minus _____%];
and
c. commitment fees payable pursuant to Section 5 of the Credit
Agreement[, except that your assigned share in such fees shall be at an annual
rate equal to the rate provided in the Credit Agreement minus ____%].
2. MATERIALS PROVIDED ASSIGNEE
a. We will promptly request that the Company issue new Notes to us and
to you in substitution for our Note to reflect the assignment set forth herein.
Upon issuance of such substitute Notes, (i) you will become a Bank under the
Credit Agreement, (ii) you will assume our obligations under the Credit
Agreement to the extent of your assigned share, and (iii) the Company will
release us from our obligations under the Credit Agreement to the extent, but
only to the extent, of your assigned share. The Company consents to such release
by signing this Agreement where indicated below. As a Bank, you will be entitled
to the benefits and subject to the obligations of a "Bank", as set forth in the
Credit Agreement, and your rights and liabilities with respect to the other
Banks and the Agent will be governed by the Credit Agreement, including without
limitation Section 12 thereof.
b. We have furnished you copies of the Credit Agreement, our Note and
each other Financing Document you have requested. We do not represent or warrant
(i) the priority, legality, validity, binding effect or enforceability of any
Financing Document or any security interest created thereunder, (ii) the
truthfulness and accuracy of any representation contained in any Financing
Document, (iii) the filing or recording of any Financing Document necessary to
perfect any security interest created thereunder, (iv) the financial condition
of the Company or any other Person obligated under any Financing Document, any
financial or other information, certificate, receipt or other document furnished
or to be furnished under any Financing Document or (v) any other matter not
specifically set forth herein having any relation to any Financing Document,
your interest in one Note, the Company or any other Person. You represent to us
that you are able to make, and have made, your own independent investigation and
determination of the foregoing matters, including, without limitation, the
credit worthiness of the Company and the structure of the transaction.
3. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas. You irrevocably
submit to the jurisdiction of any State or Federal court sitting in Austin,
Texas in any suit, action or proceeding arising out of or relating to this
Agreement and irrevocably waive any objection you may have to this laying of
venue of any such suit, action or proceeding brought in any such court and any
claim that any such suit, action or proceeding has been brought in an
inconvenient forum. We may serve process in any manner permitted by law and may
bring proceedings against you in any other jurisdiction.
4. NOTICES. All notices and other communications given hereunder to a party
shall be given in writing (including bank wire, telecopy, telex or similar
writing) at such party's address set forth on the signature pages hereof or such
other address as such party may hereafter specify by notice to the other party.
Notice may also be given by telephone to the Person, or any other officer in the
office, listed on the signature pages hereof if confirmed promptly by telex or
telecopy. Notices shall be effective immediately, if given by telephone; upon
transmission, if given by bank wire, telecopy or telex; five days after deposit
in the mails, if mailed; and when delivered, if given by other means.
5. AUTHORITY. Each of us represents and warrants that the execution and delivery
of this Agreement have been validly authorized by all necessary corporate action
and that this Agreement constitutes a valid and legally binding obligation
enforceable against it in accordance with its terms.
6. COUNTERPARTS. This Agreement may be executed in one or more counterparts, and
by each party on separate counterparts, each of which shall be an original but
all of which taken together shall be but one instrument.
7. AMENDMENTS. No amendment modification or waiver of any provision of this
Agreement shall be effective unless in writing and signed by the party against
whom enforcement is sought.
If the foregoing correctly sets forth our agreement, please so indicate
by signing the enclosed copy of this Agreement and returning it to us.
Very truly yours,
------------------------------------------
By: _________________________________________
Name: _______________________________________
Title: _____________________________________
[Street Address]
____________________________
[City, State, Zip Code]
______________________
Telephone:
___________________________________
Telecopy:
___________________________________
AGREED AND ACCEPTED:
-------------------------------
By:____________________________
____________________________
____________________________
____________________________
Attention: ___________________
Telephone: ___________________
Telecopy: ___________________
Account for Payments: _______________
ASSIGNMENT APPROVED PURSUANT TO SECTION 13.13 OF THE CREDIT AGREEMENT
AND RELEASE APPROVED IN SECTION 2 OF THIS AGREEMENT:
SOUTHERN UNION COMPANY
By: _______________________
Name: _______________________
Title: _______________________
