Contract
Exhibit
99.1
AMENDMENT AGREEMENT NO. 5 to Credit
Agreement (as defined below) and AMENDMENT AGREEMENT NO. 1 to Security Agreement
(as defined below) dated as of February 13, 2008 (this “Amendment”), with respect to
(i) the Fourth Amended and Restated Credit Agreement dated as of August 15,
2006, as amended by a first amendment dated as of June 15, 2007, as further
amended by a second amendment dated as of June 29, 2007, as further amended by a
third amendment dated as of September 28, 2007 and as further amended by a
fourth amendment dated as of January 15, 2008 (as further amended, amended and
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among
REGENCY GAS SERVICES LP, a Delaware limited partnership, REGENCY ENERGY PARTNERS
LP, a Delaware limited partnership, the Subsidiary Guarantors, the Lenders, UBS
SECURITIES LLC (“UBSS”)
and WACHOVIA CAPITAL MARKETS, LLC (“Wachovia Capital Markets”), as
joint lead arrangers and joint bookmanagers for the Tranche B-1 Term Loans,
WACHOVIA CAPITAL MARKETS, CITIGROUP GLOBAL MARKETS INC. (“CGMI”) and UBSS, as joint lead
arrangers and joint bookmanagers for the Revolving Loans, WACHOVIA BANK,
NATIONAL ASSOCIATION, as administrative agent (in such capacity, the “Administrative Agent”) for the
Lenders and as collateral agent for the Secured Parties (in such capacity, the
“Collateral Agent”), as
issuing bank and swingline lender, UBS LOAN FINANCE LLC, as syndication agent
for the Loans, CGMI, as co-syndication agent for the Revolving Loans and FORTIS
CAPITAL CORP., JPMORGAN CHASE BANK, N.A., THE ROYAL BANK OF SCOTLAND PLC and
XXXXXX XXXXXXX BANK, as co-documentation agents and (ii) the Security Agreement
dated as of December 1, 2004 among the Loan Parties and the Collateral Agent (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the “Security
Agreement”).
A. The Borrower has
requested that the Administrative Agent and Required Lenders agree to amend
certain provisions of the Credit Agreement in order to increase the Revolving
Commitment in an aggregate principal amount of $150,000,000.
B. The Administrative Agent
and Required Lenders are willing so to agree and to amend certain provisions of
the Credit Agreement pursuant to the terms and subject to the conditions set
forth herein.
C. The Borrower has
requested that the Administrative Agent and Required Lenders agree to waive a
provision of the Credit Agreement as set forth herein.
D. The Administrative Agent
and Required Lenders are willing to so agree and to waive a provision of the
Credit Agreement pursuant to the terms and subject to the conditions set forth
herein.
E. The Borrower has
requested that the Administrative Agent, the Collateral Agent and Required
Lenders agree to amend certain provisions of the Security
Agreement.
F. The Administrative Agent,
Collateral Agent and Required Lenders are willing so to agree and to amend
certain provisions of the Security Agreement pursuant to the terms and subject
to the conditions set forth herein.
G. The Administrative Agent
shall be entitled to make such payments among Lenders such that the Revolving
Loans and participation interests in LC Exposure and Swingline Loans will be
held ratably by the Lenders holding Revolving Commitments in accordance with
their Revolving Commitments after giving effect to this
Amendment.
H. Capitalized terms used
and not otherwise defined herein shall have the meanings ascribed to them in the
Credit Agreement.
In consideration of the premises and
the agreements, provisions and covenants contained herein, the parties hereto
hereby agree, on the terms and subject to the conditions set forth herein, as
follows:
SECTION
1. Amendments
to the Credit Agreement.
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(a)
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Section
1.01 of the Credit Agreement shall be amended as
follows:
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(i)
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the
definition of “New Revolving Commitment” shall be amended by (i) deleting
“or Amendment No. 4” and replacing it with “, Amendment No. 4 or Amendment
No. 5” and (ii) deleting “delivered pursuant to Amendment No. 4 or” and
replacing it with “delivered pursuant to Amendment No. 4 and Amendment No.
5 and”;
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(ii)
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the
definition of “Revolving Commitment” shall be amended by (i) inserting,
immediately following “Amendment Xx. 0,”, xxx xxxxxx “Xxxxxxxxx Xx. 0,”,
(xx) deleting “and” in the last sentence thereof and replacing it with “,”
and (iii) adding the following at the end of such definition “and the
aggregate principal amount of the Revolving Commitments on the Amendment
No. 5 Effective Date is $900.0
million.”;
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(b)
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Section
2.19(a) of the Credit Agreement shall be amended by deleting “$1.0
billion” therein and replacing it with
“$1,150,000,000.00”;
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(c)
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Section
8.04 of the Credit Agreement shall be amended by adding the following at
the end of such section “In each Test Period, (x) there shall be at least
two fiscal quarters in which no cure set forth in this Section
8.04 is made and (y) the Cure Amount applied to the Cure Right
shall not exceed 15% of Consolidated EBITDA for such Test
Period.”
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(d)
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the
following defined terms shall be added to Section 1.01 in appropriate
alphabetical order:
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(i)
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“Amendment No. 5” shall mean Amendment No. 5
to Fourth Amended and Restated Credit Agreement, which amends this
Agreement, dated as of the Amendment No. 5 Effective Date, among the
Borrower, the Guarantors, the Administrative Agent and the Required
Lenders.”;
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(ii)
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“Amendment No. 5
Effective Date” shall
mean February 13,
2008.”.
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SECTION
2. Amendments
to the Security Agreement. Section 1.1 of the Security
Agreement shall be amended as follows:
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(a)
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the
definition of “Special Property” shall be amended as
follows:
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(i)
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amending
and restating clause (a) in its entirety to read as
follows:
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“any
permit, lease or agreement held by any Pledgor, in each case, only to the extent
and for so long as the terms of such permit, license or agreement (i) validly
prohibit or restrict, or require the consent of any Person for the creation by
such Pledgor of a security interest in such permit, license or agreement in
favor of the Collateral Agent, or the attachment or perfection of such security
interest, or (ii) validly provide that such creation, attachment or perfection
would result in a default, breach, right of recoupment, claim, defense,
termination, right of termination or remedy under such permit, lease
or agreement (in each case, other than to the extent that such prohibitions,
restrictions or obligations referred to in clauses (i) and (ii) would be
rendered ineffective pursuant to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409
of the UCC (or any successor provision or provisions) or any other applicable
law (including the Bankruptcy Code) or principles of equity);”
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(ii)
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amending
and restating clause (b) in its entirety to read as
follows:
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“any
permit, lease or agreement held by any Pledgor to the extent that any
Requirement of Law applicable thereto prohibits the creation of a security
interest therein (other than to the extent that such prohibition would be
rendered ineffective pursuant to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409
of the UCC (or any successor provision or provisions) or any other applicable
law (including the Bankruptcy Code) or principles of equity);”
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(iii)
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adding
“and” at the end of clause (c);
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(iv)
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adding
the following new clause (d):
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“(d) all
personal property of WGP-KHC, LLC, including, but not limited to, all
Pipelines, Pipeline Systems, Plant Easements, Leases and Rights of Way, Plant
Permits, oil, gas and other Hydrocarbons, mineral interests and As-Extracted
Collateral, Equipment, Goods, Inventory and Fixtures, that comprise or is
otherwise associated with WGP-KHC, LLC's gas gathering system located in
Hamilton, Kearny, Finney, Gray, Haskell, Grant, Stanton, Morton, Xxxxxxx, Xxxxxx
and Xxxxx Counties, Kansas, and Beaver, Texas and Cimarron Counties, Oklahoma,
whether such property is now existing or hereafter arising or acquired from time
to time, only to the extent and for so long as the WGP-KHC Agreement restricts
the granting of security interests in such personal property, provided,
that each Pledgor also agrees to promptly (and, in any event, within ten
Business Days of knowledge thereof) notify the Collateral Agent if the WGP-KHC
Agreement no longer restricts the granting of a security interest in such
personal property;” and
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(v)
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deleting
“(a), (b) and (c)” and replacing it with “(a), (b), (c) and
(d)”.
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(b)
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the
following defined term shall be added to Section 1.1 in appropriate
alphabetical order:
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“"WGP-KHC
Agreement" shall mean the Construction and Operating Agreement between
WGP-KHC, LLC (as successor-in-interest to Xxxxxxxx Field Services - Midcontinent
Region Company, as agent for Xxxxxxxx Gas Processing - Kansas Hugoton Company)
and BP America Production Company (as successor-in-interest to Amoco Production
Company) dated as of October 3, 1994.”
SECTION
3. Limited
Waiver. The Required Lenders hereby waive Borrower’s obligation to comply
with:
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(a)
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Section
5.11(a) of the Credit Agreement with respect to WGP-KHC, LLC until the
Amendment No. 5 Effective Date; and
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(b)
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Sections
5.11(c)(i) and 5.11(d)(i) of the Credit Agreement with respect to the Real
Property and Pipelines owned by WGP-KHC, LLC located in Hamilton, Kearny,
Finney, Gray, Haskell, Grant, Stanton, Morton, Xxxxxxx, Xxxxxx and Xxxxx
Counties, Kansas, and Beaver, Texas and Cimarron Counties, Oklahoma, to
the extent and for so long as the WGP-KHC Agreement (as defined in the
Security Agreement) restricts the granting of security interests in such
Real Property or Pipelines; provided,
that each Loan Party also agrees to promptly (and, in any event, within
ten Business Days of knowledge thereof) notify the Administrative Agent if
the WGP-KHC Agreement no longer restricts the granting of a security
interest in such Real Property or
Pipelines.
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SECTION
4. Conditions
Precedent. The effectiveness of this Amendment is subject to
the condition that the Administrative Agent shall have received:
A. signature
pages of this Amendment from the Borrower, Regency MLP, the Subsidiary
Guarantors and the Administrative Agent;
B. fully
executed Confidential Lender Authorizations (as defined below) from the Required
Lenders;
C. with
respect to each Mortgaged Property (as defined in the Mortgages) located within
the states of Louisiana, Colorado, Kansas and Texas (except the “Texas Excluded
Properties” as defined herein), the following:
with
respect to each Mortgage encumbering Mortgaged Property, an amendment to the
principal amount secured thereby to include the increase to the Revolving
Commitment under Amendment No. 4 and Amendment No. 5 (each a “Mortgage
Amendment”) duly executed and acknowledged by the applicable Loan Party, and in
form for recording in the recording office where each such Mortgage was
recorded, together with such certificates, affidavits, questionnaires or returns
as shall be required in connection with the recording or filing thereof under
applicable law, in each case in form and substance reasonably satisfactory to
the Collateral Agent;
to
the extent reasonably requested by the Administrative Agent, with respect to
each Mortgage Amendment, opinions of local counsel to the Loan Parties, which
opinions (x) shall be addressed to each Agent and each of the Lenders, (y) shall
cover the enforceability of the respective Mortgage as amended by the Mortgage
Amendment, and (z) shall be in form and substance reasonably satisfactory to the
Agents; and
D. the
Borrower shall deliver or cause to be delivered any legal opinions or other
documents reasonably requested by the Administrative Agent in connection
herewith.
SECTION
5. Post-Closing
Obligations.
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(a)
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The
Borrower shall obtain and deliver to the Collateral Agent, within 60 days
after the Amendment No. 5 Effective Date (unless extended by the
Collateral Agent in its sole discretion), to the extent such items have
not been delivered as of the Amendment No. 5 Effective Date, with respect
to each Mortgaged Property (as defined in the Mortgages) located within
the state of Oklahoma, the
following:
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(i)
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with
respect to each Mortgage encumbering Mortgaged Property, an amendment to
the principal amount secured thereby to include the increase to the
Revolving Commitment under Amendment No. 4 and Amendment No. 5 (each a
“Mortgage Amendment”) duly executed and acknowledged by the applicable
Loan Party, and in form for recording in the recording office where each
such Mortgage was recorded, together with such certificates, affidavits,
questionnaires or returns as shall be required in connection with the
recording or filing thereof under applicable law, in each case in form and
substance reasonably satisfactory to the Collateral
Agent;
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(ii)
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with
respect to each Mortgage Amendment, opinions of local counsel to the Loan
Parties, which opinions (x) shall be addressed to each Agent and each of
the Lenders, (y) shall cover the enforceability of the respective Mortgage
as amended by the Mortgage Amendment, and (z) shall be in form and
substance reasonably satisfactory to the
Agents.
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(b)
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The
Borrower shall obtain and deliver to the Collateral Agent, within 30 days
after the Amendment No. 5 Effective Date (unless extended by the
Collateral Agent in its sole discretion), to the extent such items have
not been delivered as of the Amendment No. 5 Effective Date, with respect
to (A) Wood County, Texas by Regency Field Services LLC as Grantor (as
defined in the Mortgages), (B) Franklin County, Texas by Regency Field
Services LLC as Grantor, and (C) Atascosa County, Texas by Pueblo
Midstream Gas Corporation as Grantor (collectively the “Excluded Texas
Properties”), the following:
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(i)
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with
respect to each Mortgage encumbering Mortgaged Property, an amendment to
the principal amount secured thereby to include the increase to the
Revolving Commitment under Amendment No. 4 and Amendment No. 5 (each a
“Mortgage Amendment”) duly executed and acknowledged by the applicable
Loan Party, and in form for recording in the recording office where each
such Mortgage was recorded, together with such certificates, affidavits,
questionnaires or returns as shall be required in connection with the
recording or filing thereof under applicable law, in each case in form and
substance reasonably satisfactory to the Collateral
Agent;
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(ii)
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with
respect to each Mortgage Amendment, opinions of local counsel to the Loan
Parties, which opinions (x) shall be addressed to each Agent and each of
the Lenders, (y) shall cover the enforceability of the respective Mortgage
as amended by the Mortgage Amendment, and (z) shall be in form and
substance reasonably satisfactory to the
Agents.
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SECTION
6. Representations and
Warranties. The Borrower represents and warrants to the
Administrative Agent and each of the Lenders that:
(a) This
Amendment is within the Borrower’s and the Guarantor’s organizational powers and
has been duly authorized by all necessary organizational action on the part the
Borrower and the Guarantors. This Amendment has been duly executed
and delivered by the Borrower and Guarantors and constitutes, a legal, valid and
binding obligation of the Borrower and the Guarantors , enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
(b) After
giving effect to this Amendment, the representations and warranties set forth in
Article III of the Credit Agreement or in any Loan Document are true and correct
in all material respects (it being understood and agreed that any representation
or warranty that by its terms is made as of a specified date shall be required
to be true and correct in all material respects as of a specified
date).
(c) After
giving effect to this Amendment, no Default has occurred or is
continuing.
SECTION
7. Credit
Agreement. Except as specifically provided hereby, the Credit
Agreement shall continue in full force and effect in accordance with the
provisions thereof as in existence on the date hereof. After the date
hereof, any reference to the Credit Agreement in any Loan Document shall mean
the Credit Agreement as modified hereby. This Amendment shall be a
Loan Document for all purposes. For the avoidance of doubt, any Loans
made pursuant to the increased Revolving Commitments as provided for in
this Amendment are not Revolving Loans made pursuant to Section 2.19 of the
Credit Agreement, and as of the Amendment No. 5 Effective Date the available
amount of increased or new Commitments pursuant to Section 2.19 of the Credit
Agreement is $250.0 million.
SECTION
8. Security
Agreement. Except as specifically provided hereby, the
Security Agreement shall continue in full force and effect in accordance with
the provisions thereof as in existence on the date hereof. After the
date hereof, any reference to the Security Agreement in any Loan Document shall
mean the Security Agreement as modified hereby.
SECTION
9. Applicable
Law. This Amendment shall be construed in accordance with and
governed by the law of the State of New York, without regard to conflicts of law
principles that would require the application of the laws of another
jurisdiction.
SECTION
10. Counterparts. This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute one
contract. Delivery of an executed signature page of this Amendment by
facsimile or “pdf file” transmission shall be effective as delivery of a
manually executed counterpart hereof.
SECTION
11. Expenses. Borrower
agrees to reimburse the Administrative Agent for its reasonable out-of-pocket
expenses incurred by it in connection with this Amendment, including the
reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx llp,
counsel for the Administrative Agent.
SECTION
12. Headings. The
Section headings used herein are for convenience of reference only, are not part
of this Amendment and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amendment.
SECTION
13. Confidential Lender
Authorizations. “Confidential Lender Authorizations” are the confidential
lender authorizations in the form distributed to each of the Lenders in
connection with this Amendment. Each Lender that signs a Confidential
Lender Authorization shall be deemed to have approved this Amendment and shall
be further deemed for the purposes of the Loan Documents to have approved this
Amendment. Each Lender signatory to a Confidential Lender
Authorization agrees that such Lender shall not be entitled to receive a copy of
any other Lender’s Confidential Lender Authorization, but agrees that a copy of
such Confidential Lender Authorization may be delivered to
Borrower.
[Signature
pages to follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
written above.
REGENCY
GAS SERVICES LP,
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By:
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Regency
OLP GP LLC, its general partner
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/s/ Xxxxxxx X. Xxxxx | ||
By:
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Xxxxxxx
X. Xxxxx
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Vice
President
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WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Administrative Agent and Collateral Agent
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By:
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/s/ Xxxxx X. Xxxxxxxxxx | |
Name:
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Xxxxx X. Xxxxxxxxxx | |
Title:
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Director |
Each of
the undersigned, in its capacity as a Guarantor, hereby acknowledges the terms
and conditions set forth in this Amendment and hereby ratifies and confirms its
obligations under the Credit Agreement as amended by this Amendment, including,
without limitation, its guarantee of the Guaranteed Obligations.
By:
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Regency
GP LP, its General Partner
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By:
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Regency
GP LLC, its General Partner
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/s/ Xxxxxxx X. Xxxxx | ||
By:
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Xxxxxxx
X. Xxxxx
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Executive
Vice President and Chief Financial Officer
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REGENCY
FIELD SERVICES LLC
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REGENCY
INTRASTATE GAS LLC
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REGENCY
LIQUIDS PIPELINE LLC
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GULF
STATES TRANSMISSION CORPORATION
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REGENCY
GAS MARKETING LLC
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PUEBLO
HOLDINGS, INC.
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PUEBLO
MIDSTREAM GAS CORPORATION
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REGENCY
OIL PIPELINE LLC
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REGENCY
GAS UTILITY LLC
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CDM
RESOURCE MANAGEMENT LLC
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FRONTSTREET
HUGOTON LLC
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/s/ Xxxxxxx X. Xxxxx | ||
By:
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Xxxxxxx
X. Xxxxx
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Vice
President
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XXXXXXX
JOINT VENTURE
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By:
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Regency
Field Services LLC
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/s/ Xxxxxxx X. Xxxxx | ||
By:
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Xxxxxxx
X. Xxxxx
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Vice
President
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By:
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Regency
Gas Services LP, its Venturer
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By:
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Regency
OLP GP LLC, its General Partner
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/s/ Xxxxxxx X. Xxxxx | ||
By:
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Xxxxxxx
X. Xxxxx
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Vice
President
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