CONSTRUCTION AND TERM LOAN AGREEMENT Dated as of February 5, 2008 Among CITRUS CORP. asBorrower and PIPELINE FUNDING COMPANY, LLC asLender and PIPELINE FUNDING COMPANY, LLC as Administrative Agent
EXECUTION
COPY
$500,000,000
Dated
as
of February 5, 2008
Among
CITRUS
CORP.
asBorrower
and
PIPELINE
FUNDING COMPANY, LLC
asLender
and
PIPELINE
FUNDING COMPANY, LLC
as
Administrative Agent
MIAMI/4210166.14
TABLE
OF CONTENTS
|
Page
|
||
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ARTICLE
I
|
DEFINITIONS
AND ACCOUNTING TERMS
|
1
|
|
Section
1.01.
|
Certain
Defined Terms
|
1
|
|
Section
1.02.
|
Computation
of Time Periods
|
15
|
|
Section
1.03.
|
Accounting
Terms
|
15
|
|
Section
1.04.
|
Miscellaneous
|
15
|
|
Section
1.05.
|
Ratings
|
15
|
|
ARTICLE
II
|
AMOUNT
AND TERMS OF THE LOAN
|
16
|
|
Section
2.01.
|
The
Loan
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16
|
|
Section
2.02.
|
Making
the Construction Loan
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16
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|
Section
2.03.
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Repayment;
Noteless Agreement
|
17
|
|
Section
2.04.
|
Interest
|
18
|
|
Section
2.05.
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Interest
Rate Determination
|
18
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|
Section
2.06.
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Default
Rate
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18
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|
Section
2.07.
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Prepayments;
Deferrals
|
19
|
|
Section
2.08.
|
Payments
and Computations
|
19
|
|
Section
2.09.
|
Taxes
|
20
|
|
Section
2.10.
|
Sharing
of Payments, Etc
|
22
|
|
ARTICLE
III
|
CONDITIONS
PRECEDENT
|
22
|
|
Section
3.01.
|
Conditions
Precedent to Closing Date
|
22
|
|
Section
3.02.
|
Conditions
Precedent to Construction Loan
|
23
|
|
Section
3.03.
|
No
Approval of Work
|
26
|
|
ARTICLE
IV
|
REPRESENTATIONS
AND WARRANTIES
|
26
|
|
Section
4.01.
|
Representations
and Warranties of the Borrower
|
26
|
|
ARTICLE
V
|
COVENANTS
OF THE BORROWER
|
31
|
|
Section
5.01.
|
Affirmative
Covenants
|
31
|
|
Section
5.02.
|
Negative
Covenants
|
37
|
|
Section
5.03.
|
Disclosure
Limitations
|
40
|
|
ARTICLE
VI
|
EVENTS
OF DEFAULT
|
41
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|
Section
6.01.
|
Events
of Default
|
41
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MIAMI/4210166.14
i
TABLE
OF CONTENTS
(continued)
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Page
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ARTICLE
VII
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THE
AGENT
|
45
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Section
7.01.
|
Authorization
and Action
|
45
|
|
Section
7.02.
|
Administrative
Agent’s Reliance, Etc
|
45
|
|
Section
7.03.
|
Administrative
Agent and Its Affiliates
|
46
|
|
Section
7.04.
|
Lender
Credit Decision
|
46
|
|
Section
7.05.
|
Certain
Rights of the Administrative Agent
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46
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|
Section
7.06.
|
Holders
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47
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|
Section
7.07.
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Indemnification
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47
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|
Section
7.08.
|
Resignation
or Removal of the Administrative Agent
|
47
|
|
ARTICLE
VIII
|
MISCELLANEOUS
|
49
|
|
Section
8.01.
|
Amendments,
Etc
|
49
|
|
Section
8.02.
|
Notices,
Etc
|
49
|
|
Section
8.03.
|
No
Waiver; Remedies
|
50
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|
Section
8.04.
|
Costs,
Expenses and Indemnity
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50
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|
Section
8.05.
|
Right
of Set-Off
|
51
|
|
Section
8.06.
|
Binding
Effect; Assignments; Participations
|
52
|
|
Section
8.07.
|
Governing
Law; Entire Agreement
|
57
|
|
Section
8.08.
|
Interest
|
57
|
|
Section
8.09.
|
Confidentiality
|
58
|
|
Section
8.10.
|
Execution
in Counterparts
|
59
|
|
Section
8.11.
|
Survival
of Representations, Warranties and Certain Obligations
|
60
|
|
Section
8.12.
|
Severability
|
60
|
|
Section
8.13.
|
WAIVER
OF JURY TRIAL
|
60
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|
Section
8.14.
|
Submission
to Jurisdiction
|
60
|
|
Section
8.15.
|
USA
Patriot Act Notice
|
61
|
MIAMI/4210166.14
ii
SCHEDULES
AND EXHIBITS
Exhibit A - Form
of Note
Exhibit B - Form
of Funding Certificate
|
Exhibit
C
|
Form
of Assignment and Acceptance
|
SCHEDULE
1 Description
of Existing Pipeline
SCHEDULE
2 [INTENTIONALLY
OMITTED]
SCHEDULE
3 Material
Applicable Permit Schedule
SCHEDULE
4 UCC
Reports
SCHEDULE
5 Borrower
Subsidiaries
SCHEDULE
6 Third-Party
Ownership of Existing Pipeline
SCHEDULE
7 Borrower
Quarterly Certificate
SCHEDULE
8 Opinion
Points
SCHEDULE
9 Suretyship
Agreements, Guarantees and other Contingent Liabilities
SCHEDULE
10 Litigation
MIAMI/4210166.14
Dated
as
of February 5, 2008
This
CONSTRUCTION AND TERM LOAN AGREEMENT (the “Agreement”) is among CITRUS
CORP., a Delaware corporation (“Citrus” or the “Borrower”),
PIPELINE FUNDING COMPANY, LLC, a Delaware limited liability company, and the
additional lenders party hereto from time to time (collectively, the
“Lenders”), and PIPELINE FUNDING COMPANY, LLC, a Delaware limited
liability company, as Administrative Agent (as defined below) (the Borrower,
the
Lenders and the Agent are sometimes referred as a “Party” and
collectively as the “Parties”).
W
I T N E
S S E T H:
WHEREAS,
the Borrower is the direct parent of Florida Gas Transmission Company, LLC,
a
Delaware limited liability company (formerly known as Florida Gas Transmission
Company, a Delaware corporation) (“FGT”), which in turn owns and operates
the Existing Pipeline (as more fully described herein); and
WHEREAS,
FGT intends to develop, construct and operate the Project (as more fully
described herein) to provide for a critical expansion of the Existing Pipeline;
and
WHEREAS,
the agreement of the Lenders to provide the Loan hereunder (as more fully
described herein) will provide a necessary source of capital to the Borrower
to
contribute necessary funds to FGT to finance the development, construction
and
operation of the Project and, accordingly, the Borrower has agreed to accept
the
funding of the Loan at the time and in the amount contemplated
herein;
NOW,
THEREFORE, in consideration of the sum of Ten Dollars ($10) and in consideration
of the premises and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the Parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
SECTION
1.01. Certain Defined Terms. As used in
this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and the plural forms
of
the terms defined):
“Administrative
Agent” means Pipeline Funding Company, LLC, a Delaware limited liability
company, in its capacity as the administrative agent hereunder, together with
any assignee or successor thereto pursuant to Section 7.08.
“Affiliate”
of a specified Person means any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by or is under
common control with the Person specified, or, additionally in the case of the
Borrower, who holds or beneficially owns
MIAMI/4210166.14
1
20%
or
more of the equity interest in the Borrower or 20% or more of any class of
voting securities of the Borrower.
“Agreement”
means this Construction and Term Loan Agreement, as the same may be amended,
supplemented or modified from time to time.
“Applicable
Law” shall mean any constitution, statute, law, rule, regulation, ordinance,
judgment, order, decree or Governmental Rule, or any published directive or
requirement which has the force of law, or other governmental restriction which
has the force of law, or any determination by, or interpretation of any of
the
foregoing by, any judicial authority, whether in effect as of the Closing Date
or thereafter and, in each case, as amended.
“Applicable
Margin” means five and thirty-five one hundredths percent (5.35%) per
annum.
“Applicable
Permit” means any Permit, including any zoning, environmental protection,
pollution (including air, water or noise), sanitation, FERC, PUC, import,
export, safety, siting or building Permit (a) that is necessary to be obtained
or maintained by or on behalf of the Borrower or any of its Subsidiaries at
the
time the determination is made in light of the stage of development,
construction or operation of the Existing Pipeline or the Project (to the extent
required by Legal Requirements or the Facility Agreements) to construct, test,
operate, maintain, repair, own or use the Existing Pipeline or the Project
as
contemplated by the Facility Agreements, to transport gas therein, for the
Borrower or any of its Subsidiaries to enter into any Facility Agreement or
to
consummate any transaction contemplated thereby, in each case in accordance
with
all applicable Legal Requirements, or (b) that is necessary to be obtained
or
maintained by or on behalf of any Person (other than the Borrower or any of
its
Subsidiaries) that is a party to a Facility Agreement in order to perform such
Person’s obligations under and as contemplated by the Facility Agreements to
which such Person is a party, or in order to consummate any transaction
contemplated thereby, in each case in accordance with all applicable Legal
Requirements.
“Assignment
and Acceptance” means an assignment and acceptance entered into by a Lender
and an Eligible Assignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit C.
“Bankruptcy
Code” means Title 11 of the United States Code, as now or hereafter in
effect, or any successor thereto.
“Borrower”
means Citrus Corp., a Delaware corporation and any permitted successor thereto
pursuant to Section 5.02(c).
"Borrower
Credit Agreement" means the $200,000,000 Revolving Credit Agreement dated
August 16, 2007 among the Borrower, the lenders party thereto from time to
time,
and Calyon New York Branch as the administrative agent, as amended,
supplemented, restated or otherwise modified from time to time.
“Borrower
Debt Agreements” means the Borrower Credit Agreement and the Borrower Note
Agreement.
MIAMI/4210166.14
2
“Borrower
Note Agreement” means the Note Agreement dated as of November 2, 1994, among
the Borrower and the purchasers party thereto from time to time, as amended,
supplemented, restated or otherwise modified from time to time.
“Borrower
Quarterly Certificate” means a certificate signed by a Responsible Officer
of the Borrower, in substantially the form of Schedule 7, which is delivered
by
the Borrower to the Administrative Agent on behalf of the Lenders pursuant
to
Section 5.01(a)(ii).
“Borrowing”
means the borrowing hereunder consisting of the Construction Loan made on the
same day by the Lenders.
“Business
Day” shall mean any day other than a Saturday, Sunday or any other day on
which national banks in the State of New York or the State of Florida are closed
for legal holiday or by government directive. When used with respect
to calculating the LIBOR Rate, “Business Day” shall mean a day upon which United
States dollar deposits may be dealt in on the London and New York City interbank
markets and commercial banks and foreign exchange markets are open in London
and
New York City.
"CERCLA"
means the Comprehensive Environmental Response, Compensation and Liability
Act,
42 U.S.C. § 9601 et seq. and all rules and regulations promulgated
thereunder.
“Change
of Control” means any Person or group of Persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall
have,
either directly or indirectly, acquired beneficial ownership (within the meaning
of Rule 13d-3 promulgated by the SEC under said Act) of more than 50% of the
Voting Securities of the Borrower; provided that, the acquisition by any
Permitted Holder of the Voting Securities of the Borrower which would have
the
effect of such Permitted Holder holding more than 50% of such Voting Securities
shall not constitute a Change of Control so long as after giving effect to
such
event, FGT's senior unsecured long term debt is rated at least BBB- by S&P
and Baa3 by ▇▇▇▇▇’▇.
“Closing
Date” means the date that this Agreement has been duly executed and
delivered by each of the parties hereto and each of the conditions precedent
set
forth in Section 3.01 shall have been met or performed (or waived by the
Lenders) as contemplated therein.
“Code”
means the Internal Revenue Code of 1986 as amended from time to time, or any
successor Federal tax code, and any reference to any statutory provision of
the
Code shall be deemed to be a reference to any successor provision or
provisions.
“Commitment”
has the meaning specified in Section 2.01.
“Consolidated”
with respect to any Person, refers to the consolidation of the accounts of
such
Person and its Subsidiaries in accordance with GAAP.
“Construction
Contracts” means each agreement that is entered into by the Borrower or any
of its Subsidiaries with respect to the Project with a Contractor for the
construction of all or any portion of the Project, or the supply or provision
by
or to the Borrower or any of its Subsidiaries of any goods or
services relating to the construction of the Project.
MIAMI/4210166.14
3
“Construction
Loan” means any extension of credit made by a Lender pursuant to its
Commitment and in accordance with Section 2.01(a).
“Contractor”
means each contractor, each project engineer, and any other Person who is
providing goods or services to the Project pursuant to a Construction
Contract.
“Debt”
of any Person means, at any date, without duplication, (a) all obligations
of
such Person for borrowed money, (b) all obligations of such Person evidenced
by
bonds, debentures, notes or other similar instruments, (c) all obligations
of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable arising in the ordinary course of business, (d) all
obligations of such Person under leases which are or should be, in accordance
with GAAP, recorded as capital leases in respect of which such Person is liable,
(e) all obligations of such Person to purchase securities (or other property)
which arise out of or in connection with the sale of the same or substantially
similar securities (or property), (f) all deferred obligations of such Person
to
reimburse any bank or other Person for amounts paid or advanced under a letter
of credit or other instrument, (g) all Debt of others secured by a Lien on
any
asset of such Person, whether or not such Debt is assumed by such Person, and
(h) all Debt (or other obligations) of others guaranteed directly or indirectly
by such Person or as to which such Person has an obligation substantially the
economic equivalent of a guarantee.
“Default”
means any Event of Default or any event which, after notice or lapse of time
or
both, would constitute an Event of Default.
“Default
Rate” means, as of the date of any determination thereof, the rate of
interest then applicable to the Loan plus two percent (2%) per
annum.
“Distributable
Amounts” means (a) all cash and cash equivalents (as defined in accordance
with GAAP) of the Borrower on hand at the date of determination of Distributable
Amounts, less (b) the amount of any cash reserves that is necessary or
appropriate in the reasonable discretion of the Borrower to (i) provide for
the
proper and prudent conduct of the business of the Borrower and its Subsidiaries
(including reserves for future capital expenditures and for anticipated future
credit needs of the Borrower and its Subsidiaries) subsequent to such
determination, (ii) comply with the financial and other covenants under the
Loan
Documents, or (iii) comply with Applicable Law or any loan agreement, security
agreement, mortgage, debt instrument or other agreement or obligation to which
the Borrower or any of its Subsidiaries is a party or by which it or any of
its
Subsidiaries is bound or its or their assets are subject.
“Dollars”
and “$” mean United States dollars of such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts in the United States of
America.
“Easements”
means the easements appurtenant, easements in gross, license agreements and
other rights running in favor of the Borrower or any of its Subsidiaries and/or
appurtenant to any Site relating to the Project and the Existing
Pipeline.
“EBITDA”
means, without duplication, for the Borrower, for any period, the sum of
(i) the Borrower’s and its Subsidiaries' Consolidated Net Income for such
period plus (ii) to the extent deducted in determining such
Consolidated Net Income, the Borrower’s and its
MIAMI/4210166.14
4
Subsidiaries'
Consolidated Interest Expense, income taxes, depreciation, amortization and
other non-cash charges for such period.
“Eligible
Assignee” means, in respect of any assignment, transfer or pledge by any
Lender to any Person pursuant to, or financing of any Lender’s investment in any
portion of the Loan hereunder as contemplated by, Section 8.06, (a) any
Affiliate of Pipeline Funding Company, LLC, (b) any commercial bank or other
financial institution that is regulated under the laws of any country that
is a
member of the Organization of Economic Cooperation and Development and having
a
combined capital and surplus of at least $500,000,000, (c) any “accredited
investor” within the meaning of Rule 501(a)(1), (2) or (3) under the Securities
Act of 1933, as amended (the “Securities Act”), or an entity in which all of the
equity owners are accredited investors within the meaning of Rule 501(a)(1),
(2)
or (3) under the Securities Act; (d) any Person that is a “qualified
institutional buyer” (as defined in Rule 144A under the Securities Act), or (e)
any Person in a transaction in accordance with Rule 904 under the Securities
Act; provided, however, that neither the Borrower nor any Subsidiary of the
Borrower shall be an Eligible Assignee, and (f) in the cases described in
clauses (b) through (e), inclusive, after giving effect to any such assignment,
transfer, pledge or financing, such assignee, transferee, pledgee or lender
shall hold at least $5,000,000 of principal amount of the Loan outstanding
or
the Commitments or such assignee, transferee, pledgee or lender shall hold
at
least $5,000,000 of principal amount of any indebtedness or other investment
made to finance all or any portion of any Lender’s investment in the
Loan.
“Environmental
Law” shall mean (a) CERCLA, (b) RCRA; (c) the Federal Water Pollution
Control Act, 33 U.S.C. § 1251 et seq.; (d) the Clean Air Act, 42 U.S.C.
§ 7401 et seq.; (e) the Hazardous Materials Transportation Act, 49 U.S.C.
§ 1471 et seq.; (f) the Toxic Substances Control Act, 15 U.S.C.
§§ 2601 through 2629; (g) the Oil Pollution Act, 33 U.S.C. § 2701 et
seq.; (h) the Emergency Planning and Community ▇▇▇▇▇-▇▇-▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇.
§ ▇▇▇▇▇ et seq.; (i) the Safe Drinking Water Act, 42 U.S.C. §§ 300f
through 300j; (j) the Occupational Safety and Health Act, 29 U.S.C. § 651 et.
seq.; (k) any and all rules and regulations promulgated under any of the
foregoing, and (l) any final, non-appealable orders applicable to the Borrower
or its Subsidiaries or any other federal, state or local statutes, laws, rules,
regulations, ordinances, permits, codes, and addressing pollution or protection
of the environment, natural resources or human health (including, without
limitation, those statutes, laws, rules, regulations, ordinances, permits,
and codes regulating the disposal, removal, storing, treatment or
transporting of Hazardous Materials).
“Environmental
Reports” means any reports prepared by or for (or provided to) the Borrower
or any of its Subsidiaries regarding environmental contamination conditions
at
any Site, whether with respect to the Project or the Existing Pipeline and
relating to such contamination that the Borrower reasonably expects to result
in
liability or exposure to the Borrower or any of its Subsidiaries in excess
of
$5,000,000 per Site.
“Equity
Contribution” means a cash equity contribution.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time, and any successor statute of similar import, together with the
regulations thereunder, as in effect from time to time.
MIAMI/4210166.14
5
“ERISA
Affiliate” means any trade or business (whether or not incorporated) which
is a member of a group of which the Borrower is a member and which is under
common control within the meaning of the regulations under Section 414 of
the Code.
“Event
of Eminent Domain” means any compulsory transfer or taking by condemnation,
eminent domain or exercise of a similar power, or transfer under threat of
such
compulsory transfer or taking, of any part of the Existing Pipeline or the
Project, by any agency, department, authority, commission, board,
instrumentality or political subdivision of any state, the United States or
another Governmental Authority having jurisdiction.
“Events
of Default” has the meaning specified in Section 6.01.
“Existing
Pipeline” means the natural gas pipeline owned by FGT that spans over parts
of Texas, Louisiana, Alabama, Mississippi and Florida and has a capacity of
approximately 2.1 billion cubic feet per day, as more fully described in
Schedule 1, and any additional natural gas pipeline (other than the Project)
owned by FGT on or after the date of this Agreement.
“Facility
Agreement” means any contract or agreement related to the construction,
testing, maintenance, repair, operation, ownership, real property rights or
use
of the Existing Pipeline or the Project entered into by the Borrower or any
of
its Subsidiaries and any other Person, or assigned to the Borrower or any of
its
Subsidiaries.
“FDIC”
means the Federal Deposit Insurance Corporation and its successors.
“Federal
Reserve Board” means the Board of Governors of the Federal Reserve System,
or any federal agency or authority of the United States from time to time
succeeding to its function.
“FERC”
means the Federal Energy Regulatory Commission, or any federal agency or
authority of the United States from time to time succeeding to its
function.
“FERC
Certificate” means an order of the FERC granting a certificate of public
convenience and necessity related to the Project.
"FGT"
means Florida Gas Transmission Company, LLC, a Delaware limited liability
company (formerly known as Florida Gas Transmission Company, a Delaware
corporation).
"FGT
Credit Agreement" means the $300,000,000 Revolving Credit Agreement dated
August 16, 2007 among FGT, the lenders party thereto from time to time, and
Calyon New York Branch as the administrative agent, as amended, supplemented,
restated or otherwise modified from time to time.
"FGT
Debt Agreements" means the FGT Credit Agreement, the FGT Indenture and the
FGT Note Agreements.
"FGT
Indenture" means the Indenture dated as of November 7, 1994, from FGT to
Chemical Bank, as trustee, as supplemented by the First Supplemental Indenture,
dated as of
MIAMI/4210166.14
6
July 17,
2002, to Wachovia Bank, N.A., as successor trustee, as the same may be further
amended, supplemented, restated or otherwise modified from time to
time.
"FGT
Note Agreements" means the Note Purchase Agreement dated as of April 4,
1991, from FGT to the Purchasers parties thereto, as amended by the Amendment
to
Note Purchase Agreement, dated as of October 7, 1993, the Note Purchase
Agreement, dated as of October 31, 1994, the Note Purchase Agreement, dated
November 30, 2000, and the Note Purchase Agreement, dated July 12, 2002, as
the
same may be further amended, supplemented, restated or otherwise modified from
time to time.
“Final
Maturity Date” means the earlier of (a) December 31, 2033, and (b) the date
that is twenty (20) years after the date the Loan is converted to a Term Loan
as
contemplated in Section 2.01(b).
“Fiscal
Quarter” means a fiscal quarter of a Fiscal Year.
“Fiscal
Year” means any period of twelve consecutive calendar months ending on
December 31.
“Funding
Certificate” has the meaning specified in
Section 3.02(a)(iii).
“Funding
Date” means the date of funding of the Construction Loan.
“GAAP”
means United States generally accepted accounting principles in effect from
time
to time.
“Governmental
Authority” means any national, state or local government (whether domestic
or foreign), any political subdivision thereof or any other governmental,
quasi-governmental, judicial, public or statutory instrumentality, authority,
body, agency, bureau or entity (including any zoning authority, FERC, the PUC,
the FDIC, the Comptroller of the Currency or the Federal Reserve Board, any
central bank or any comparable authority) or any arbitrator with authority
to
bind a party at law.
“Governmental
Rule” means any law, statute, rule, regulation, ordinance, order, code
interpretation, treaty, judgment, decree, directive, guidelines, policy or
similar form of decision of any Governmental Authority.
"Hazardous
Materials” shall mean any substance which is regulated under any
Environmental Law or 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 explosives or radioactive materials; and
(f)
any substance, the presence of which on any of the Borrower’s properties is
prohibited by any Environmental Law.
“Indebtedness”
of any Person means, at any date, without duplication, (a) all Debt of such
Person, and (b) all obligations of such Person in respect of repurchase
agreements, interest rate swaps, collars or caps and other interest rate
protection arrangements, foreign currency
MIAMI/4210166.14
7
exchange
agreements, commodity exchange, commodity future, commodity option agreements,
or other interest or exchange rate or commodity hedging
arrangements.
“Indemnified
Parties” has the meaning specified in Section 8.04(b).
“Insufficiency”
means, with respect to any Plan, the amount, if any, by which the present value
of the accrued benefits under such Plan exceeds the fair market value of the
assets of such Plan allocable to such benefits.
"Interest
Expense" means, for any period and with respect to any Person, total
interest expense, letter of credit fees and other fees and expenses incurred
by
such Person in connection with any Debt for such period, whether paid or accrued
(including that attributable to obligations which have been or should be, in
accordance with GAAP, recorded as capital leases), including all fees and
charges owed with respect to the Obligations.
“Interest
Payment Date” means, in respect of the Construction Loan, the last day of
each January, April, July and October, commencing with the first such day to
occur after the Funding Date, and continuing on each such successive date until
the date the Construction Loan is converted to a Term Loan in accordance with
Section 2.01(b), and on the date the Construction Loan is converted to a Term
Loan in accordance with Section 2.01(b).
“Investments”
means any loans, advances, or capital contributions to, or any investment in,
or
purchase or commitment to purchase, any stock, equity interest or other
securities or evidences of indebtedness of or interests in any Person or any
Property.
“Legal
Requirements” means, as to any Person, the articles of incorporation, bylaws
or other organizational or governing documents of such Person, and any
requirement under a Permit, Applicable Law and/or any Governmental Rule in
each
case applicable to or binding upon such Person or any of its properties or
to
which such Person or any of its property is subject.
“Lenders”
has the meaning specified in the first paragraph of this Agreement, and shall
include any financial institution which becomes a Lender in accordance with
the
terms and provisions of Section 8.06.
“LIBOR
Rate” means, as of the date of any determination thereof, the rate per annum
equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published
by Reuters (or other commercially available source providing quotations of
BBA
LIBOR as designated by the Administrative Agent from time to time), for Dollar
deposits with a term equivalent to three (3) months. The LIBOR Rate shall be
determined by the Administrative Agent two (2) Business Days prior to the
Funding Date for the Construction Loan and thereafter determined and adjusted
by
the Administrative Agent on a quarterly basis two (2) Business Days prior to
each Interest Payment Date occurring during the period in which such
Construction Loan bears interest on the basis of the LIBOR Rate for the three
(3) month period commencing on the Interest Payment Date for which such
determination is being made, commencing on the first such date to occur
following the Funding Date for the Construction Loan. Each
determination by the Administrative Agent pursuant to this definition shall
be
conclusive absent demonstrable error.
MIAMI/4210166.14
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“Lien”
means any mortgage, lien, pledge, assignment, charge, deed of trust, security
interest or encumbrance (or other type of arrangement having the practical
effect of the foregoing) to secure or provide for the payment of any obligation
of any Person, whether arising by contract, operation of law, or otherwise
(including, without limitation, the interest of a vendor or lessor under any
conditional sale agreement, synthetic lease, capital lease, or other title
retention agreement).
“Loan”
means a loan by a Lender to the Borrower pursuant to Article II.
“Loan
Document” means this Agreement, each Note, the Negative Pledge, the Funding
Certificate, each Borrower Quarterly Certificate, and any other loan or security
agreement or similar document entered into by the Borrower or one or more other
Affiliates of the Borrower in connection with the transactions contemplated
by
the Loan Documents.
“Majority
Lenders” means at any time Lenders, other than defaulting Lenders, holding
at least 51% of the then aggregate principal amount of the Loan outstanding
at
such time, or if no principal amount is then outstanding, the Lenders, other
than defaulting Lenders, having at least 51% of the Commitments.
“Material
Adverse Change” shall mean (a) any material adverse change (individually or
in the aggregate) in the business, assets, liabilities, operations, or financial
condition of the Borrower and its Subsidiaries, taken as a whole, (b) any
material adverse change (individually or in the aggregate) in the ability of
the
Borrower and its Subsidiaries, taken as a whole, to timely perform its payment
obligations or any of its other material obligations under the Loan Documents,
(c) any material adverse change (individually or in the aggregate) that is
reasonably likely to affect the ability of the Borrower and FGT to construct
or
complete the Project, or (d) any material adverse change (individually or in
the
aggregate) in the rights and remedies of the Administrative Agent or the Lenders
under any of the Loan Documents.
“Material
Applicable Permit” means (a) any Applicable Permit that is identified as a
Material Applicable Permit in the Permit Schedule, and (b) any other Applicable
Permit that, if not obtained, would reasonably likely be expected to result
in a
Material Adverse Change.
“Material
Facility Agreements” means (a) any Construction Contract that provides for
the payment by or to the Borrower or any of its Subsidiaries of $35,000,000
or
more, or the provision or supply by or to the Borrower or any of its
Subsidiaries of $35,000,000 or more in value of goods or services, (b) any
Shipper Contract that, when aggregated with all other Shipper Contracts of
the
same customer, represents five percent (5%) or more of the aggregate revenues
of
the Borrower and its Subsidiaries, taken as a whole, for the four (4) Fiscal
Quarters most recently ended prior to the date of such determination or
represents five percent (5%) or more of the aggregate contracted volume of
the
Borrower and its Subsidiaries, taken as a whole, for the four (4) Fiscal
Quarters most recently ended prior to the date of such determination, (c) any
other Facility Agreement that provides for the payment by or to the Borrower
or
any of its Subsidiaries of $35,000,000 or more, or the provision or supply
by or
to the Borrower or any of its Subsidiaries of $35,000,000 or more in value
of
goods or services, and (d) any contract or agreement entered into by the
Borrower or any of its Subsidiaries with respect to Indebtedness in excess
of
$30,000,000.
MIAMI/4210166.14
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"Material
Facility Parties" means, with respect to the Existing Pipeline and/or the
Project, any Person party to a Material Facility Agreement (other than the
Borrower or any of its Subsidiaries) and each guarantor that executes a guaranty
agreement in favor of the Borrower or any of its Subsidiaries providing credit
support in relation to any party’s (other than the Borrower’s or any of its
Subsidiaries’) obligations under a Material Facility Agreement.
“Moody’s”
means ▇▇▇▇▇’▇ Investors Service, Inc.
“Multiemployer
Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of
ERISA to which the Borrower or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five (5)
plan years made or accrued an obligation to make contributions.
“Multiple
Employer Plan” means an employee benefit plan, other than a Multiemployer
Plan, subject to Title IV of ERISA to which the Borrower or any ERISA Affiliate,
and more than one employer other than the Borrower or an ERISA Affiliate, is
making or accruing an obligation to make contributions or, in the event that
any
such plan has been terminated, to which the Borrower or any ERISA Affiliate
made
or accrued an obligation to make contributions during any of the five (5) plan
years preceding the date of termination of such plan.
"Negative
Pledge" means the Negative Pledge Agreement, of even date herewith, between
FGT and the Administrative Agent, as the same may be amended, supplemented,
and
otherwise modified from time to time.
"Net
Income" means, for any period and with respect to any Person, the net income
for such period for such Person after taxes as determined in accordance with
GAAP, excluding, however, (a) extraordinary items, including (i) any
net non-cash gain or loss during such period arising from the sale, exchange,
retirement or other disposition of capital assets (such term to include all
fixed assets and all securities) other than in the ordinary course of business,
and (ii) any write-up or write-down of assets and (b) the cumulative
effect of any change in GAAP.
“Note”
means a promissory note of the Borrower payable to the order of any Lender,
in
substantially the form of Exhibit A, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from the Loan owed to such
Lender.
“Obligations”
means all principal, interest, reimbursements, indemnifications, and other
amounts payable by (i) the Borrower to the Administrative Agent or the Lenders
under any of the Loan Documents or (ii) FGT to the Administrative Agent or
the
Lenders under the Negative Pledge.
“Other
Taxes” has the meaning specified in Section 2.09(c).
“Payment
Office” means the office of the Administrative Agent located at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ - ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other office or account
as
the Administrative Agent may designate by written notice to the other parties
hereto.
“PBGC”
means the Pension Benefit Guaranty Corporation, or any federal agency or
authority of the United States from time to time succeeding to its
function.
MIAMI/4210166.14
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“Permit”
means an action, approval, consent, waiver, exemption, variance, franchise,
order, permit, authorization, right or license of or from a Governmental
Authority.
“Permit
Schedule” means the Material Applicable Permit Schedule attached as
Schedule 3, as the same may be amended, supplemented, and otherwise
modified from time to time in accordance with the provisions
hereof.
“Permitted
Holder” means Southern Union Company, El Paso Corporation, or any of their
respective Subsidiaries.
“Permitted
Investments” shall mean for any Person (a) cash, (b) investments for the
account of such Person in direct obligations of the United States of America
or
any agency thereof maturing within 180 days from the date of any acquisition
thereof, (c) investments for the account of such Person in certificates of
deposit or time deposits of maturities less than one year and issued by
commercial banks in the United States having capital and surplus in excess
of
$500,000,000, (d) investments for the account of such Person in commercial
paper
of maturities less than one year rated at least A1 or P1 by S&P or Moody’s,
respectively, or any equivalent rating from any other rating agency satisfactory
to the Administrative Agent, and (e) investments in securities purchased by
such
Person under repurchase obligations pursuant to which arrangements are made
with
selling financial institutions (being a financial institution with a rating
of
at least A1 or P1 by S&P or Moody’s, respectively, and with capital and
surplus in excess of $500,000,000) for such financial institutions to repurchase
such securities within 30 days from the date of purchase by such
Person.
“Permitted
Liens” has the meaning given in Section 5.02(e).
“Person”
means an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture, firm or other entity, or a government or any political subdivision
or
agency, department or instrumentality thereof.
“Plan”
means an employee benefit plan (other than a Multiemployer Plan) which is (or,
in the event that any such plan has been terminated within five (5) years after
a transaction described in Section 4069 of ERISA, was) maintained for
employees of the Borrower or any ERISA Affiliate and covered by Title IV of
ERISA.
“Prescribed
Forms” shall mean such duly executed form(s) or statement(s), and in such
number of copies, which may, from time to time, be prescribed by Applicable
Law
and which, pursuant to applicable provisions of (a) an income tax treaty
between the United States and the country of residence of the Lender providing
the form(s) or statement(s), (b) the Code, or (c) any applicable rule
or regulation under the Code, permit the Borrower to make payments hereunder
for
the account of such Lender free of deduction or withholding of income or similar
taxes (except for any deduction or withholding of income or similar taxes as
a
result of any change in or in the interpretation of any such treaty, the Code
or
any such rule or regulation).
“Project”
means the Phase VIII expansion of the Existing Pipeline through the addition
of
new pipeline and compression, which, as of the date of this Agreement, is
contemplated to add up to approximately 800 million cubic feet (or more) of
capacity per day to the Existing Pipeline.
MIAMI/4210166.14
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“Project
Budget” has the meaning given in Section 3.01(a)(vii).
“Project
Completion” means the occurrence of the Project Completion
Date.
“Project
Completion Date” means the in-service date of the Project.
“Project
Costs” means, with respect to the Project, the Borrower or any of its
Subsidiaries, all of the costs of the development, design, engineering,
acquisition, equipping, construction, assembly, inspection, testing, completion,
and start-up of, and amounts required as initial working capital for, the
Project (including reimbursement for amounts spent in respect of such costs
and
reasonable contingencies), including but not limited to: (a) all amounts payable
under the Construction Contracts, any contractor bonuses, site acquisition
and
preparation costs; (b) financing, advisory, legal and other fees (including
but
not limited to upfront fees and commitment fees); (c) all other costs, including
startup and testing costs and cost of spare parts, costs that may be reimbursed
by construction contractors pursuant to warranty or other claims, costs of
mobilization of operational personnel, management services fees and expenses,
insurance expenses not relating to the operation of the Project (including
premiums therefor), pre-commercial operation fees and expenses under any
operation, costs to acquire line pack gas, maintenance or administration
agreements, and expenses to complete the development, acquisition, construction,
testing and financing of the Project; (d) interest and fees payable or in
respect of any Note or Commitments pursuant to this Agreement or any other
Loan
Document prior to Project Completion of the Project; and (e) the initial working
capital for the Project as included in the Project Budget.
“Project
Schedule” has the meaning given in Section 3.01(a)(viii).
“Projections”
has the meaning given in Section 3.02(a)(vii).
“Property”
of any Person means any property or assets (whether real, personal, or mixed,
tangible or intangible) of such Person.
“Prudent
Natural Gas Pipeline Practices” means, at a particular time, (a) any of the
practices, methods and acts engaged in or approved by a significant portion
of
the competitive natural gas pipeline industry operating in the United States
at
such time, or (b) with respect to any matter to which clause (a) does not apply,
any of the practices, methods and acts which, in the exercise of reasonable
judgment at the time the decision was made, could have been expected to
accomplish the desired results at a reasonable cost consistent with good
business practices, reliability, safety and expedition. “Prudent
Natural Gas Pipeline Practices” is not intended to be limited to the optimum
practice, method or act to the exclusion of all others, but rather to be a
spectrum of possible practices, methods or acts having due regard for, among
other things, manufacturer’s warranties and requirements of Applicable
Law.
“PUC”
means, with respect to the Existing Pipeline or the Project, the Public Utility
Commission, Public Service Commission or equivalent Governmental Authority
in
the state or states in which the Existing Pipeline or the Project, as
applicable, is located.
“PUHCA”
means the Public Utility Holding Company Act of 2005 and all rules and
regulations adopted thereunder.
MIAMI/4210166.14
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“RCRA”
means the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.
and all rules and regulations promulgated thereunder.
“Register”
has the meaning specified in Section 8.06(d).
“Repayment
Amount” means, (a) in respect of each Repayment Date occurring prior to the
date that is five and one-half (5½) years following the date the Construction
Loan is converted to a Term Loan in accordance with Section 2.01(b), an amount
of interest calculated by the Administrative Agent as of such date on the basis
of the Treasury Rate determined by the Administrative Agent as of the date
the
Construction Loan is converted to a Term Loan in accordance with Section 2.01(b)
plus the Applicable Margin, that accrued on the outstanding principal balance
of
the Loan during the period from the date the Construction Loan is converted
to a
Term Loan or the prior Repayment Date, as applicable, to the Repayment Date
for
which such determination is being made, (b) in respect of each Repayment Date
(other than the Final Maturity Date) occurring on or after the date that is
five
and one-half (5½) years following the date the Construction Loan is converted to
a Term Loan in accordance with Section 2.01(b), an amount of principal and
interest calculated by the Administrative Agent on the basis of the Treasury
Rate determined by the Administrative Agent as of as of the date the
Construction Loan is converted to a Term Loan in accordance with Section 2.01(b)
plus the Applicable Margin, to provide for equal semiannual payments of
principal and interest on each such Repayment Date (other than the Final
Maturity Date) in an amount sufficient to result in the principal balance of
the
Loan remaining outstanding on the Final Maturity Date to total $300,000,000,
and
(c) in respect of the Final Maturity Date, the amount equal to the aggregate
principal balance of the Loan outstanding, together with all accrued and unpaid
interest thereon and all other sums due and owing by the Borrower hereunder
and
under the other Loan Documents and by FGT under the Negative
Pledge. The Administrative Agent’s determination of the Repayment
Amount for each Repayment Date shall, absent manifest error, be binding and
conclusive.
“Repayment
Date” means (a) the date that is six (6) months following the date the
Construction Loan is converted to a Term Loan in accordance with Section
2.01(b), and the same day of each sixth (6th) month
thereafter
(or, if there is no numerically corresponding day in said sixth (6th) month,
the last
day of such sixth (6th) month),
and (b)
the Final Maturity Date.
“Responsible
Officer” means, as to any Person, its president, chief executive officer,
any vice president, treasurer, assistant treasurer, controller, assistant
controller, secretary or assistant secretary or any managing general partner
or
managing member (or any of the preceding with regard to such managing general
partner or managing member).
“SEC”
means the Securities and Exchange Commission and its successors.
“Shipper
Contract” means any customer agreement entered into by the Borrower or any
of its Subsidiaries for the transportation of gas on any part of the Existing
Pipeline and/or the Project.
“Site”
means, for the Project and the Existing Pipeline, the land, improvements,
fixtures and other real property upon which the Project or the Existing Pipeline
is located or comprised.
MIAMI/4210166.14
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“Standard
& Poor’s” and “S&P” each means Standard & Poor’s Ratings
Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. on the date hereof.
“Subsidiary”
of any Person means, at the time any determination thereof is to be made, any
corporation, partnership, limited liability company, joint venture or other
entity of which more than 50% of the outstanding capital stock or other equity
interests having ordinary voting power (irrespective of whether or not at the
time capital stock or other equity interest of any other class or classes of
such corporation, partnership, limited liability company, joint venture or
other
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person. Unless
otherwise indicated or the context otherwise requires, “Subsidiary” means a
Subsidiary of the Borrower and includes FGT.
“Taxes”
has the meaning specified in Section 2.09(a).
“Termination
Date” means the earlier of (a) December 31, 2013, (b) the Project Completion
Date, and (c) the date of termination in whole of the Commitments pursuant
to
Section 6.01.
“Termination
Event” means (a) a “reportable event”, as such term is described in
Section 4043 of ERISA (other than a “reportable event” not subject to the
provision for 30-day notice to the PBGC), or an event described in
Section 4062(e) of ERISA, or (b) the withdrawal of the Borrower or any
ERISA Affiliate from a Multiple Employer Plan during a plan year in which it
was
a “substantial employer”, as such term is defined in Section 4001(a)(2) of
ERISA, or the incurrence of liability by the Borrower or any ERISA Affiliate
under Section 4064 of ERISA upon the termination of a Multiple Employer
Plan, or (c) the distribution of a notice of intent to terminate a Plan
pursuant to Section 4041(a)(2) of ERISA or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, or (d) the
institution of proceedings to terminate a Plan by the PBGC under
Section 4042 of ERISA, or (e) any other event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan.
“Term
Loan” means the Construction Loan converted to a Term Loan in accordance
with the provisions of Section 2.01(b).
“Total
Capitalization” of any Person means the sum of (a) the principal amount
of Consolidated Debt at the time outstanding and (b) the total capital
represented by the capital stock of such Person at such time outstanding based,
in the case of stock having a par value, upon its par value, and, in the case
of
stock of no par value, upon the value stated on the books of such Person, plus
the total amount of paid-in capital surplus and earned surplus of such Person,
or less the amount of any net deficit in the surplus account of such Person
and
plus the amount of any premium on capital stock of such Person not included
in
surplus and less the amount, if any, by which capital surplus has at any time
been increased as a result of a restatement of the amount at which any assets
of
such Person are recorded on the books of such Person.
“Treasury
Rate” means, as of the date the Loan is converted to a Term Loan, the rate
per annum equal to the yield reported as of such date, as published on the
Bloomberg Financial Markets Service (or other commercially available source
providing quotations of U.S. Treasury
MIAMI/4210166.14
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rates
as
designated by the Administrative Agent from time to time), for actively traded
U.S. Treasury securities having a maturity equal (or, if not available,
approximately equal) to the period from the date the Loan is converted to a
Term
Loan to the Final Maturity Date. The determination by the
Administrative Agent pursuant to this definition shall be conclusive absent
demonstrable error.
“Voting
Securities” means shares of capital stock issued by a corporation, or
equivalent equity interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even
if
the right so to vote has been suspended by the happening of such a
contingency.
“Withdrawal
Liability” has the meaning given such term under Part I of
Subtitle E of Title IV of ERISA.
SECTION
1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified date to a
later
specified date, the word “from” means “from and including” and the words “to”
and “until” each means “to but excluding”. Unless otherwise
indicated, all references to a particular time are references to New York City
time.
SECTION
1.03. Accounting Terms. All accounting
terms not specifically defined herein shall be construed in accordance with,
and
certificates of compliance with financial covenants shall be based on,
GAAP.
SECTION
1.04. Miscellaneous. The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision
of
this Agreement, and Article, Section, Schedule and Exhibit references are to
Articles and Sections of and Schedules and Exhibits to this Agreement, unless
otherwise specified. The term “including” means “including, without
limitation,”.
SECTION
1.05. Ratings. A rating, whether public or
private, by Standard & Poor’s or Moody’s shall be deemed to be in effect on
the date of announcement or publication by Standard & Poor’s or Moody’s, as
the case may be, of such rating or, in the absence of such announcement or
publication, on the effective date of such rating and will remain in effect
until the date when any change in such rating is deemed to be in
effect. In the event any of the rating categories used by Moody’s or
Standard & Poor’s is revised or designated differently (such as by changing
letter designations to different letter designations or to numerical
designations), then the references herein to such rating shall be changed to
the
revised or redesignated rating for which the standards are closest to, but
not
lower than, the standards at the date hereof for the rating which has been
revised or redesignated. In the event either of Moody’s or Standard
& Poor’s ceases to provide ratings in respect of the obligations for which
determination of such rating is being made, then the references herein to such
rating shall be changed to the equivalent rating from any other rating agency
satisfactory to the Administrative Agent. Long-term debt supported by
a letter of credit, guaranty, insurance or other similar credit enhancement
mechanism shall not be considered as senior unsecured long-term
debt.
MIAMI/4210166.14
15
ARTICLE
II
AMOUNT
AND TERMS OF THE LOAN
SECTION
2.01. The Loan.
(a) Construction
Loan Availability. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make a Construction Loan to the Borrower
on
any Business Day (which shall be within fifteen (15) days following the (i)
the
issuance of the FERC Certificate (which may be subject to conditions) approving
the Project, and (ii) the earlier of (A) the date FGT shall have commenced
construction of any part of the Project and (B) acceptance by FGT of the FERC
Certificate) during the period from the date hereof until the Termination Date
so long as the aggregate outstanding principal amount of the Construction Loan
owing to such Lender does not exceed the amount set opposite such Lender’s name
on the signature pages hereof or if such Lender has entered into any Assignment
and Acceptance, then as set forth for such Lender in the Register maintained
by
the Administrative Agent pursuant to Section 8.06(d) (such Lender’s
“Commitment”). Monies borrowed under this Section 2.01,
once repaid, may not be reborrowed.
(b) Conversion
to Term Loan. Subject to the terms and conditions of this
Agreement, each Lender agrees that on the Project Completion Date, if not sooner
converted to a Term Loan as hereinafter provided, the aggregate principal amount
of the Construction Loan totaling Five Hundred Million and No/100’s Dollars
($500,000,000.00), shall automatically be converted to a Term
Loan. Notwithstanding the foregoing provision to the contrary, the
Administrative Agent, at the direction of the Majority Lenders, may, at any
time
on or after the Funding Date, elect to convert the outstanding Construction
Loan
to a Term Loan bearing interest at the Treasury Rate plus the Applicable Margin
as provided in Section 2.04(b), such conversion to be effective no sooner than
fourteen (14) days following notice thereof from the Administrative Agent to
the
Borrower.
SECTION
2.02. Making the Construction Loan.
(a) The
Borrower shall deliver a Funding Certificate to the Administrative Agent,
together with all supporting detail contemplated to be delivered therewith,
at
least seven (7) days prior to the Funding Date (which Funding Date shall be
within fifteen (15) days following (i) the issuance of the FERC Certificate
(which may be subject to conditions) approving the Project, and (ii) the earlier
of (A) the date FGT shall have commenced construction of any part of the Project
and (B) acceptance by FGT of the FERC Certificate). FGT shall
immediately provide written notice to the Administrative Agent upon each of
the
issuance and acceptance of the FERC Certificate and commencement of construction
of any part of the Project. The Borrower agrees (i) to accept the
full amount of the Construction Loan to be funded on the Funding Date, and
(ii)
to use commercially reasonable efforts to timely satisfy each of the Lenders’
conditions precedent to funding hereunder, including, without limitation, to,
and to cause FGT to, obtain the FERC Certificate on or before September 1,
2009;
provided that the Borrower and FGT reserve the right to file and prosecute
the
application for the FERC Certificate (including any supplements or amendments
thereto and, if necessary, any court review) in a manner they deem to
be in their best interest. The Administrative Agent shall promptly
notify each Lender of the contents of the Funding Certificate.
MIAMI/4210166.14
16
(b) Subject
to the terms and conditions of this Agreement, the Borrowing shall be funded
not
later than 2:00 P.M. (New York City time) on the Funding Date in the aggregate
principal amount of Five Hundred Million and No/100 Dollars ($500,000,000.00)
. Each Lender shall, before 11:00 A.M. (New York City time) on the
date of the Borrowing, make available to the Administrative Agent at its Payment
Office, in same day funds, such Lender’s ratable portion of the
Borrowing. After the Administrative Agent’s receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower by wire
transfer to an account designated by the Borrower in the writing given to the
Administrative Agent at least seven (7) Business Days prior to the Funding
Date,
provided that, if the Borrower shall fail to provide such wire transfer
instructions to the Administrative Agent, the Administrative Agent will make
such funds available to the Borrower at its address set forth in Section
8.02.
(c) Unless
the Administrative Agent shall have received notice from a Lender prior to
the
date of the Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s ratable portion of the Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of the Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative 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 Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative 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 Administrative Agent, at the interest
rate
applicable at such time to the Loan. If such Lender shall repay to
the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender’s Loan as part of the Borrowing for purposes of this
Agreement.
(d) The
failure of any Lender to make the Loan to be made by it as part of the Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to
make
its Loan on the date of the Borrowing, but no Lender shall be responsible for
the failure of any other Lender to make the Loan to be made by such other Lender
on the date of the Borrowing.
SECTION
2.03. Repayment; Noteless
Agreement.
(a) On
each Repayment Date, the Borrower shall repay to the Administrative Agent,
for
the account of the Lenders, an amount equal to the Repayment Amount due on
such
Repayment Date. On the Final Maturity Date, the Borrower shall repay
to the Administrative Agent, for the account of each Lender, the full unpaid
principal amount of the Loan made by such Lender, together will all accrued
and
unpaid interest thereon and all other sums due and payable hereunder and under
the other Loan Documents.
(b) Each
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting
from the Loan made by such Lender from time to time, including the amounts
of
principal and interest payable and paid to such Lender from time to time
hereunder.
MIAMI/4210166.14
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(c) The
Administrative Agent shall also maintain accounts in which it will record (i)
the amount of each Loan made hereunder, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each
Lender hereunder, and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d) The
entries maintained in the accounts maintained pursuant to paragraphs (b) and
(c)
above shall be prima facie evidence of the existence and amounts of the
Obligations therein recorded; provided, however, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any
error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.
(e) Any
Lender may request that the Loan owing to such Lender be evidenced by a
Note. In such event, the Borrower shall prepare, execute and deliver
to such Lender such Note payable to the order of such
Lender. Thereafter, the Loan evidenced by such Note and interest
thereon shall at all times (including after any assignment pursuant to Section
8.06) be represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 8.06, except to the extent
that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loan once again be evidenced as described
in
paragraphs (b) and (c) above.
SECTION
2.04. Interest. The Borrower shall pay
interest on the unpaid principal amount of the Loan owed to each Lender from
the
date of the Loan until such principal amount shall be paid in full, at the
following rates per annum:
(a) Construction
Loan. During such period as the Loan is a Construction Loan, a
rate per annum equal at all times to the sum of the LIBOR Rate in effect from
time to time plus the Applicable Margin, payable on each Interest Payment
Date occurring during such period.
(b) Term
Loan. From and after the date the Loan is converted to a Term
Loan in accordance with Section 2.01(b), a rate per annum equal at all times
to
the sum of the Treasury Rate plus the Applicable Margin per annum,
payable on each Repayment Date occurring during such period.
SECTION
2.05. Interest Rate Determination. The
Administrative Agent shall give prompt notice to the Borrower and the Lenders
of
the applicable interest rate determined by the Administrative Agent for purposes
of Section 2.04(a) or (b) and of the Repayment Amount and Repayment Dates
determined by the Administrative Agent as contemplated by the respective
definitions thereof.
SECTION
2.06. Default Rate. At the discretion of
the Administrative Agent or as directed by the Majority Lenders, upon the
occurrence and during the continuance of an Event of Default, the outstanding
Loan shall bear interest at the Default Rate. Without limiting the
generality of the foregoing, if any amounts required to be paid by the Borrower
or any of its Subsidiaries under this Agreement or the other Loan Documents
(including principal or interest payable on the Loan, and any fees or other
amounts otherwise payable to the Administrative
MIAMI/4210166.14
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Agent
or
any Lender) remain unpaid after such amounts are due, the Borrower shall pay
interest on the aggregate, unpaid balance of such amounts from the date due
until those amounts are paid in full at a per annum rate equal to the Default
Rate, such amounts to be payable upon demand.
SECTION
2.07. Prepayments; Deferrals.
(a) Voluntary
Prepayments. The Borrower may not voluntarily prepay the Loan in
whole or in part at any time.
(b) Mandatory
Prepayment. Upon the occurrence of a Change of Control, the
Lenders shall, at their sole option, have the right to require the Borrower
to
prepay the Loan (including the outstanding principal and any accrued and unpaid
interest) in whole or in part within ninety (90) days of the occurrence of
such
Change of Control at a prepayment premium equal to one hundred two percent
(102%) of the outstanding principal balance of the Loan to be prepaid, together
with all accrued and unpaid interest thereon and all other amounts then due
and
owing under the Loan Documents.
(c) Deferrals. The
Borrower shall not have the right to defer any principal or interest payments
at
any time.
SECTION
2.08. Payments and Computations.
(a) The
Borrower shall make each payment under any Loan Document not later than 11:00
A.M. (New York City time) on the day when due in Dollars to the Administrative
Agent at its Payment Office in same day funds. The Administrative
Agent will promptly thereafter cause to be distributed like funds relating
to
the payment of principal and interest ratably (other than amounts payable
pursuant to Section 2.09) to the Lenders (decreased, as to any Lender, for
any taxes withheld in respect of such Lender as contemplated by
Section 2.09(b)), and like funds relating to the payment of any other
amount payable to any Lender to such Lender, in each case to be applied in
accordance with the terms of this Agreement. All payments to be made
by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff.
(b) All
computations of interest in respect of the Construction Loan shall be made
by
the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable. All
computations of interest in respect of the Term Loan shall be made by the
Administrative Agent on the basis of a year of 360 days of twelve 30-day months,
and, in each case of an incomplete month, for the actual number of days
elapsed. Each determination by the Administrative Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever
any payment hereunder or under the Notes shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in
the
computation of payment of interest.
MIAMI/4210166.14
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(d) Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Administrative Agent may assume that
the
Borrower has made such payment in full to the Administrative Agent on such
date
and the Administrative Agent may, in reliance upon such assumption, cause to
be
distributed to each Lender on such due date an amount equal to the amount then
due such Lender. If and to the extent the Borrower shall not have so
made such payment in full to the Administrative Agent, each Lender shall repay
to the Administrative Agent forthwith on demand such amount distributed to
such
Lender together with interest thereon, for each day from the date such amount
is
distributed to such Lender until the date such Lender repays such amount to
the
Administrative Agent, at the interest rate applicable at the time to the
Loan.
SECTION
2.09. Taxes.
(a) Any
and all payments by the Borrower hereunder or under the Notes shall be made,
in
accordance with Section 2.08, free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges,
fees,
duties or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Administrative Agent,
(i) taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the Applicable Laws of which (or by a jurisdiction under
the
Applicable Laws of a political subdivision of which) such Lender or
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and (ii) any taxes imposed by the United States of
America by means of withholding at the source if and to the extent that such
taxes shall be in effect and shall be applicable, on the date hereof (or with
respect to any entity that becomes a Lender after the date hereof, on the date
such entity becomes a Lender), to payments to be made to such Lender or the
Administrative Agent (all such non-excluded taxes, levies, imposts, deductions,
charges, fees, duties, withholdings and liabilities being hereinafter referred
to as “Taxes”). If the Borrower shall be required by
Applicable Law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or the Administrative Agent,
(x) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.09) such Lender or the Administrative
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (y) the Borrower shall make such
deductions and (z) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with Applicable
Law.
(b) Notwithstanding
anything to the contrary contained in this Agreement, each of the Borrower
and
the Administrative Agent shall be entitled, to the extent it is required to
do
so by Applicable Law, to deduct or withhold income or other similar taxes
imposed by the United States of America from interest, fees or other amounts
payable hereunder for the account of any Lender (without the payment by the
Borrower of increased amounts to such Lender pursuant to Section 2.09(a))
other than a Lender (i) which is a domestic corporation (as such term is
defined in Section 7701 of the Code) for federal income tax purposes or
(ii) which has the Prescribed Forms on file with the Borrower and the
Administrative Agent for the applicable year to the extent deduction or
withholding of such taxes is not required as a result of the filing of such
Prescribed Forms; provided that if the Borrower shall so deduct or
withhold any such taxes, it shall provide a statement to the Administrative
Agent and such Lender, setting forth the
MIAMI/4210166.14
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amount
of
such taxes so deducted or withheld, the applicable rate and any other
information or documentation which such Lender or the Administrative Agent
may
reasonably request for assisting such Lender or the Administrative Agent to
obtain any allowable credits or deductions for the taxes so deducted or withheld
in the jurisdiction or jurisdictions in which such Lender is subject to
tax.
(c) In
addition, the Borrower agrees to pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement,
the
Notes or any other Loan Documents (hereinafter referred to as “Other
Taxes”).
(d) The
Borrower, to the fullest extent permitted by Applicable Law, will indemnify
each
Lender and the Administrative Agent, for the full amount of Taxes or Other
Taxes
(including, without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.09) paid by such
Lender or the Administrative Agent, (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto except as a result of the gross negligence or willful misconduct of
such
Lender or the Administrative Agent, whether or not such Taxes or Other Taxes
were correctly or legally asserted. This indemnification shall be
made within 30 days from the date such Lender or the Administrative Agent (as
the case may be) makes written demand therefor. Neither the
Administrative Agent nor any Lender shall be indemnified for Taxes incurred
or
accrued more than 90 days prior to the date that such Lender or the
Administrative Agent notifies the Borrower thereof.
(e) Within
30 days after the date of any payment of Taxes or Other Taxes by or at the
direction of the Borrower, the Borrower will furnish to the Administrative
Agent, at its address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing payment thereof. Should any
Lender or the Administrative Agent ever receive any refund, credit or deduction
from any taxing authority to which such Lender or the Administrative Agent
would
not be entitled but for the payment by the Borrower of Taxes or Other Taxes
as
required by Section 2.09 (it being understood that the decision as to
whether or not to claim, and if claimed, as to the amount of any such refund,
credit or deduction shall be made by such Lender or the Administrative Agent
in
its sole discretion), such Lender or the Administrative Agent, as the case
may
be, thereupon shall repay to the Borrower an amount with respect to such refund,
credit or deduction equal to any net reduction in taxes actually obtained by
such Lender or the Administrative Agent, as the case may be, and determined
by
such Lender or the Administrative Agent, as the case may be, to be attributable
to such refund, credit or deduction.
(f) Without
prejudice to the survival of any other agreement of the Borrower hereunder,
the
agreements and obligations of the Borrower contained in this Section 2.09
shall survive the payment in full of principal and interest hereunder and under
the Notes.
(g) Each
Lender (other than Pipeline Funding Company, LLC) shall use its commercially
reasonable efforts (consistent with its internal policies and legal and
regulatory restrictions) to select a jurisdiction for its applicable lending
office or change the jurisdiction for its applicable lending office, as the
case
may be, so as to avoid the imposition of any Taxes or
MIAMI/4210166.14
21
Other
Taxes or to eliminate the amount of any such additional amounts which may
thereafter accrue; provided that no such selection or change of the jurisdiction
of its applicable lending office shall be made if, in the sole and absolute
discretion of such Lender, such selection or change would be disadvantageous
to
such Lender.
SECTION
2.10. Sharing of Payments, Etc. If any
Lender shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of the Loan made
by
it (other than pursuant to Section 2.09), such Lender shall notify the
Administrative Agent and forthwith purchase from the other Lenders such
participations in the Loan made by them as shall be necessary to cause such
purchasing Lender 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 Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such Lender’s ratable share (according to the
proportion of (a) the amount of the participation purchased from such Lender
by
the purchasing Lender as a result of such excess payment to (b) the total amount
of such excess payment) of such recovery, together with an amount equal to
such
Lender’s ratable share (according to the proportion of (i) the amount of
such Lender’s required repayment to the purchasing Lender to (ii) the total
amount of all such required repayments to the purchasing Lenders) of any
interest or other amount paid or payable by the purchasing Lender in respect
of
the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.10
may, to the fullest extent permitted by Applicable Law, exercise all its rights
of payment (including the right of set-off) with respect to such participation
as fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
ARTICLE
III
CONDITIONS
PRECEDENT
SECTION
3.01. Conditions Precedent to Closing
Date. The obligations of the Lenders to make the Loan hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived by the Lenders in accordance with Section
8.01):
(a) Documents. The
Administrative Agent shall have received the following, each dated on or before
the Closing Date, in form and substance reasonably satisfactory to the
Administrative Agent:
(i) This
Agreement executed by the Borrower, the Administrative Agent and Lenders holding
Commitments which aggregate to $500,000,000, and all attached exhibits and
schedules, and the Negative Pledge executed by FGT.
(ii) Certified
copies of the resolutions of the Board of Directors of the Borrower approving
this Agreement, each Note and any other Loan Documents, and of all other
documents evidencing other necessary corporate action with respect to each
such
Loan Document and certified copies of the certificate of incorporation and
bylaws of the Borrower.
(iii) Certified
copies of the resolutions of the Board of Managers of FGT approving the Negative
Pledge and of all other documents evidencing other necessary
MIAMI/4210166.14
22
limited
liability company action with respect to the Negative Pledge and certified
copies of the certificate of formation and limited liability company agreement
of FGT.
(iv) A
certificate of the Secretary or an Assistant Secretary of the Borrower
certifying the names and true signatures of the officers of the Borrower
authorized to sign each Loan Document to which it is a party and the other
documents to be delivered hereunder.
(v) A
certificate of the Secretary or an Assistant Secretary of FGT certifying the
names and true signatures of the officers of FGT authorized to sign each Loan
Document to which it is a party and the other documents to be delivered
hereunder.
(vi) As
requested by the Lenders, the Notes executed by the Borrower and payable to
the
order of the Lenders.
(vii) A
budget for the Project, as of a recent date (as the same may be modified,
amended or supplemented from time to time as permitted herein, the “Project
Budget”) for all Project Costs incurred to date, and all anticipated Project
Costs to be incurred in connection with the construction of the Project,
certified by a Responsible Officer of the Borrower as being true, correct and
complete.
(viii) A
schedule for construction of the Project, as of a recent date (as the same
may
be modified, amended or supplemented from time to time as permitted herein,
the
“Project Schedule”) setting out the proposed construction and payment
schedule and amounts for the Project, which schedule shall be consistent with
the terms of the applicable Construction Contracts and the Project Budget,
certified by a Responsible Officer of the Borrower as being true, correct and
complete.
(ix) An
opinion of ▇▇▇▇▇ Lord ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as counsel to the Borrower, and
an opinion of in house counsel of Southern Union Company, as counsel to the
Borrower, in each case to be delivered to, and for the benefit of, the Lenders
and the Administrative Agent, at the express instruction of the Borrower, in
form and covering such matters as the Administrative Agent may reasonably
request including the matters set forth in Schedule 8.
(b) On
Closing Date, the Borrower shall have paid all reasonable costs and expenses
that have been invoiced and are payable pursuant to
Section 8.04.
SECTION
3.02. Conditions Precedent to Construction
Loan. The obligations of the Lenders to make the Construction
Loan hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived by the Lenders in accordance with
Section 8.01):
(a) Documents. The
Administrative Agent shall have received the following, each dated on or before
the Funding Date, in form and substance reasonably satisfactory to the
Administrative Agent:
MIAMI/4210166.14
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(i) A Uniform
Commercial Code (“UCC”) report as of a date reasonably close to the
Funding Date for each of the jurisdictions listed on Schedule 4, showing no
financing statements or Liens of record other than such statements relating
to
Permitted Liens.
(ii) A
schedule of all Indebtedness of the Borrower and each of its Subsidiaries,
in
each case indicating the amount, term and payment terms and the collateral
security therefor.
(iii) A
Funding Certificate, dated as of the Funding Date, signed by a Responsible
Officer of the Borrower, in substantially the form of Exhibit B (“Funding
Certificate”).
(iv) A
statement of a Responsible Officer of the Borrower describing its sources of
equity capital and debt financing by the Borrower and its Subsidiaries necessary
to fully develop, construct, complete and operate the Project.
(v) (i)
A certificate from Borrower’s insurance broker(s), dated as of the Funding Date
(or within two (2) Business Days prior thereto), and identifying underwriters,
types of insurance, insurance limits and policy terms, describing the insurance
obtained and stating that such insurance is in full force and effect and that
all premiums due thereon have been paid, and (ii) certified copies of all
policies evidencing such insurance (or a binder, commitment or certificates
signed by the insurer or a broker authorized to bind the insurer).
(vi) A
list, certified by a Responsible Officer of Borrower as being true, correct
and
complete, of all Material Facility Agreements (including any supplements or
amendments thereto) and, subject to Section 5.03 hereof, any summaries or copies
of such Material Facility Agreements requested by the Administrative
Agent.
(vii) Projections
(collectively, the “Projections”) of the (A) operating results for the
Existing Pipeline and the Project over a period beginning on the Funding Date
and ending on December 31, 2015, showing at a minimum the Borrower’s reasonable
good faith estimates, as of the date of delivery, of revenue, operating
expenses, and sources and uses of revenues over the forecast period, and (B)
operating results for the Project over a period beginning on the Funding Date
and ending on December 31, 2033, showing at a minimum the Borrower’s reasonable
good faith estimates, as of the date of delivery, of revenue, operating
expenses, and sources and uses of revenues over the forecast period and meeting
the requirements of the Project Budget for the Project.
(viii) An
update to the Project Budget reflecting all Project Costs incurred to date,
and
all anticipated Project Costs to be incurred, in connection with the
construction of the Project.
(ix) An
update to the Project Schedule setting out, as of the Funding Date, the proposed
construction and payment schedule and amounts for the Project, which schedule
shall be consistent with the terms of the applicable Construction Contracts
and
the Project Budget.
MIAMI/4210166.14
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(x) An
updated list of all Material Applicable Permits (whether by Borrower or any
Person that is party to any Facility Agreement in order to perform its
obligations thereunder), and, if requested by the Administrative Agent, copies
of each Material Applicable Permit listed on such Permit Schedule that has
been
obtained prior to the Funding Date.
(xi) A
list of Environmental Reports relating to the Project and the Existing Pipeline
as of the Funding Date and, if requested by the Administrative Agent, copies
of
such Environmental Reports.
(xii) Copies
of each presentation made by the Borrower and/or FGT to any rating agency on
or
after the Closing Date and, to the extent any such presentation gives any effect
to the Project, prior to the Closing Date.
(xiii) Subject
to Section 5.03, such other opinions, statements, certificates, documents and
information with respect to the Borrower, FGT, the Existing Pipeline or the
Project or matters contemplated by this Agreement as the Administrative Agent
or
the Lenders may reasonably request.
(b) Material
Adverse Change. Since December 31, 2006, there shall not have
occurred a Material Adverse Change.
(c) Absence
of Litigation. Except as set forth on Schedule 10, no action,
suit, proceeding or investigation shall have been instituted or, to the
Borrower’s knowledge, threatened, against the Borrower or any of its
Subsidiaries, which, if adversely determined, could reasonably be expected
to
result in a Material Adverse Change.
(d) No
Default or Event of Default. No Default or Event of Default shall
have occurred and be continuing (nor would result from such Borrowing or from
the application of the proceeds therefrom).
(e) Costs
and Expenses. The Borrower shall have paid all reasonable costs
and expenses that have been invoiced and are payable pursuant to
Section 8.04.
(f) Casualty.
If all or any portion of the Project shall have been materially damaged by
flood, fire or other casualty, the Administrative Agent shall have received
assurances sufficient, in the reasonable judgment of the Administrative Agent
to
assure restoration and the completion of the Project prior to the Project
Completion Date.
(g) Representations,
Warranties and Covenants. (x) The representations and
warranties contained in Section 4.01 of this Agreement shall be true and
correct in all material respects on and as of the Funding Date (other than
those
representations and warranties that expressly relate solely to an earlier date,
which shall be true and correct as of such earlier date), before and after
giving effect to the Loan and the Borrowing of which the Loan is a part and
to
the application of the proceeds therefrom, as though made on and as of such
date; (y) the Borrower shall not be in default in any material respect of any
covenant on its part contained in this Agreement; and (z) FGT shall not be
in
default in any material respect of any covenant on its part contained in the
Negative Pledge.
MIAMI/4210166.14
25
(h) FERC
Approval. The FERC Certificate approving the Project shall (i)
have been issued to, and accepted by FGT (for avoidance of doubt, FGT shall
be
entitled to accept or reject the FERC Certificate in its sole and absolute
discretion), (ii) be in full force and effect, (iii) be final and not subject
to
any appeals, stays or any similar rights, (iii) contain conditions as are
reasonably acceptable to the Administrative Agent and the Lenders, provided,
however, that, notwithstanding the foregoing, minor amendments or other minor
changes that may be necessary to such FERC Certificate during the remaining
construction of the Project would not cause a failure to meet the foregoing
condition so long as such amendments or changes are reasonably likely to be
granted.
SECTION
3.03. No Approval of Work. The making of
the Loan hereunder shall not be deemed an approval or acceptance by the
Administrative Agent or the Lenders of any work, labor, supplies, materials
or
equipment furnished or supplied with respect to the Project.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as
follows:
(a) The
Borrower and each Subsidiary is a corporation, limited liability company or
partnership, as applicable, and is duly formed, validly existing and in good
standing in each case under the laws of its jurisdiction of
formation. The Borrower and each Subsidiary have all limited
liability company, corporate or partnership powers and all material governmental
licenses, authorizations, consents and approvals required in each case to carry
on its business as now conducted. The Borrower has no Subsidiaries as
of the date hereof other than as set forth on Schedule 5, which Subsidiaries
listed on Schedule 5 (other than FGT) hold no assets and conduct no
business.
(b) The
execution, delivery and performance by the Borrower and FGT of each Loan
Document to which it is or will be a party are within the Borrower’s and FGT’s
corporate or limited liability company powers, have been duly authorized by
all
necessary corporate or limited liability company action of the Borrower and
FGT,
as applicable, require, in respect of the Borrower and FGT, no action by or
in
respect of, or filing with, any governmental body, agency or official and do
not
contravene, or constitute a default under, any provision of Applicable Law
or
regulation (including, without limitation, Regulation X issued by the Federal
Reserve Board) applicable to the Borrower or FGT or Regulation U issued by
the
Federal Reserve Board or the certificate of incorporation, bylaws, certificate
of formation, limited liability company agreement or other organizational
documents of the Borrower or FGT, as applicable, or any judgment, injunction,
order, decree or material (“material” for the purposes of this representation
means creating a liability of $35,000,000 or more) agreement binding upon the
Borrower or FGT or result in the creation or imposition of any Lien (other
than
Permitted Liens) on any asset of the Borrower or any of its
Subsidiaries.
(c) This
Agreement and each Note are, and each other Loan Document to which the Borrower
or FGT is or will be a party, when executed and delivered in accordance with
this Agreement will be valid and legally binding obligations of the Borrower
and
FGT, as
MIAMI/4210166.14
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the
case
may be, enforceable against the Borrower and FGT, as the case may be, in
accordance with their respective terms, except as the enforceability thereof
may
be limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general principles of equity.
(d) (i)
The audited Consolidated balance sheet of the Borrower as of December 31,
2006 and the related audited Consolidated statements of income and retained
earnings and cash flow of the Borrower for the Fiscal Year then ended, and
the
unaudited Consolidated balance sheets of the Borrower for the Fiscal Quarter
ending September 30, 2007 and the related Consolidated statements of income
and
retained earnings and cash flows of the Borrower for such Fiscal Quarter and
for
the period commencing at the end of the previous Fiscal Year and ending with
the
end of such Fiscal Quarter, copies of which, certified by the Chief Financial
Officer or Chief Accounting Officer of the Borrower as being true, complete
and
correct, have been delivered to each of the Lenders, fairly present, in
conformity with GAAP except as otherwise expressly noted therein and, in the
case of unaudited quarterly financial statements subject to normal year end
audit adjustments, the Consolidated financial position of the Borrower and
its
Subsidiaries as of such date and their Consolidated results of operations and
changes in financial position for the respective periods covered
thereby.
(ii) The
audited balance sheet of FGT as of December 31, 2006 and the related
audited statements of income and retained earnings and cash flow of FGT for
the
Fiscal Year then ended, and the unaudited balance sheets of FGT for the Fiscal
Quarter ending September 30, 2007 and the related statements of income and
retained earnings and cash flows of FGT for such Fiscal Quarter and for the
period commencing at the end of the previous Fiscal Year and ending with the
end
of such Fiscal Quarter, copies of which, certified by the Chief Financial
Officer or Chief Accounting Officer of FGT as being true, complete and correct,
have been delivered to each of the Lenders, fairly present, in conformity with
GAAP except as otherwise expressly noted therein and, in the case of unaudited
quarterly financial statements subject to normal year end audit adjustments,
the
financial position of FGT as of such date and its results of operations and
changes in financial position for the respective periods covered
thereby.
(iii) There
are no suretyship agreements, guarantees or other contingent liabilities of
the
Borrower or any of its Subsidiaries that are not disclosed (i) by the financial
statements referred to above in this Section 4.01(d), or (ii) on Schedule
9.
(e) Since
December 31, 2006, there has been no Material Adverse Change.
(f) There
is no action, suit, investigation or other proceeding pending or, to the
knowledge of Borrower, threatened, against the Borrower, any Subsidiary of
the
Borrower or any of their respective Properties, in any court or by or before
any
arbitrator or governmental authority which (i) in any manner draws into question
the validity or enforceability of this Agreement or any other Loan Document
to
which the Borrower or FGT is or will be a party or (ii) except as set forth
on
Schedule 10, other than to the extent that is fully covered by insurance, if
determined adversely could reasonably be expected to result in damages to the
Borrower or any of its Subsidiaries totaling more than $50,000,000 or otherwise
result in a Material Adverse Change. Without limiting the generality
of the foregoing, to the Borrower’s knowledge, there
MIAMI/4210166.14
27
are
no
investigations (formal or informal) currently pending before FERC’s Office of
Market Oversight and Investigation (“OMOI”) or before OMOI’s Division of
Investigations and Enforcement with respect to the Borrower or any of its
Subsidiaries.
(g) No
Termination Event has occurred or is reasonably expected to occur with respect
to any Plan for which an Insufficiency in excess of $50,000,000
exists. Neither the Borrower nor any ERISA Affiliate has received any
notification (or has knowledge of any reason to expect) that any Multiemployer
Plan is in reorganization or has been terminated, within the meaning of Title
IV
of ERISA, for which a Withdrawal Liability in excess of $50,000,000
exists.
(h) United
States federal income tax returns of the Borrower and its Subsidiaries have
been
examined and closed through the Fiscal Year ended December 31,
2001. The Borrower and its Subsidiaries have filed or caused to be
filed all United States federal income tax returns and all other material
domestic tax returns that to the knowledge of the Borrower are required to
be
filed by them and have paid or provided for the payment, before the same become
delinquent, of all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any Subsidiary, other than those taxes
contested in good faith by appropriate proceedings. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of taxes are, in the opinion of the Borrower, adequate to the extent
required by GAAP.
(i) Neither
the Borrower nor any of its Subsidiaries is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended. Neither
the Borrower nor any of its Subsidiaries is (I) a “holding company” under, or a
company subject to the registration requirements of, PUHCA, (II) a “subsidiary
company” of a company described in (I), or (III) an “affiliate” of either a
company described in (I) or a “subsidiary company” of a company described in
(I).
(j) Following
application of the proceeds of the Loan, not more than 25 percent of the value
of the assets (either of the Borrower only or of the Borrower and its
Subsidiaries on a Consolidated basis), which are subject to any arrangement
with
the Administrative Agent or any Lender (herein or otherwise) whereby the
Borrower’s or any Subsidiary’s right or ability to sell, pledge or otherwise
dispose of assets is in any way restricted, will be margin stock (within the
meaning of Regulation U issued by the Federal Reserve Board).
(k) Each
of the Borrower and its Subsidiaries (i) is in substantial compliance with
all
applicable Environmental Laws in all material respects and has obtained and
is
in substantial compliance with all related Permits necessary for the ownership
and operation of its Property and business, except where the failure to so
comply could not reasonably be expected to result in a Material Adverse Change,
and (ii) has not created, handled, transported, used, or disposed of any
Hazardous Materials except in substantial compliance with
all Environmental Laws in all material respects, nor, to its knowledge, has
any
of its currently or previously owned Property been used for those purposes,
except where any such action that fails to so comply could not reasonably be
expected to result in a Material Adverse Change.
(l) Neither
the Borrower nor any of its Subsidiaries (i) is responsible for the release
of
any Hazardous Materials into the environment except in
substantial compliance with
MIAMI/4210166.14
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all
applicable Environmental Laws in all material respects, except where any such
release that does not so comply could not reasonably be expected to result
in a
Material Adverse Change and, to its knowledge, neither the Borrower’s nor any of
its Subsidiaries’ currently or previously owned Property has been subjected to
any release of or is contaminated by any Hazardous Materials, except where
any
such release or contamination could not reasonably be expected to result in
a
Material Adverse Change; or (ii) has, since December 31, 2000, received
notice of or been investigated for any violation or alleged violation of any
Environmental Law which has not been remedied in accordance with Environmental
Laws, which violation or alleged violation could reasonably be expected to
result in a Material Adverse Change.
(m) Each
of the Borrower and its Subsidiaries has good title to, or valid leasehold
interests or Easements in, all its real and personal property material to its
business, subject to no Liens other than Permitted Liens. Each of the
Borrower and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to
its
business, and the use thereof by the Borrower and its Subsidiaries does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Change.
(n) Fifty
percent (50%) of the issued and outstanding stock and equity interests of the
Borrower are owned as of the date hereof by CrossCountry Citrus, LLC
and fifty percent (50%) of the issued and outstanding stock and
equity interests of the Borrower are owned as of the date hereof by El Paso
Citrus Holdings, Inc., free and clear of any Liens; provided that either such
entity may transfer stock and equity interests of the Borrower to any Permitted
Holder to the extent that, after giving effect thereto, no Change of Control
shall have occurred and be continuing. All of the issued and outstanding stock
and equity interests of the Subsidiaries of the Borrower are owned by the
Borrower, free and clear of any Liens. There are no outstanding rights to
purchase, options, warrants or similar rights or agreements pursuant to which
the Borrower or any of its Subsidiaries may be required to issue, sell,
repurchase or redeem any of its stock or other equity interests or any stock
or
equity interests of any of its Subsidiaries. Except as set forth on
Schedule 6, FGT owns one hundred percent (100%) of the Existing Pipeline and
the
Project.
(o) There
are no violations by the Borrower or any of its Subsidiaries or in connection
with any of their respective property or assets of any Legal Requirement
(including, without limitation, FERC rules and regulations) which could
reasonably be expected to result in a Material Adverse Change.
(p) Each
of Borrower and FGT (or such other Person responsible for operating the Existing
Pipeline or constructing and operating the Project) has all Permits necessary
for the conduct of its business as presently conducted, except for those Permits
the absence of which would not, individually or in the aggregate, reasonably
be
expected to result in a Material Adverse Change, and none of such Permits is
subject to any current legal proceeding or to any unsatisfied condition that
could reasonably be expected to allow material modification or revocation of
such Permits, and all applicable appeal periods have expired with respect
thereto, except to the extent that any of the foregoing, individually or in
the
aggregate, would not reasonably be expected to result in a Material Adverse
Change. Each of Borrower and FGT
MIAMI/4210166.14
29
owns
or
possesses all Easements, fee title and other real property rights necessary
to
conduct its business as presently conducted without any known conflict with
the
rights of others, except to the extent that the failure to own or possess such
Easements would not, individually or in the aggregate, reasonably be expected
to
result in a Material Adverse Change.
(q)
Neither Borrower nor FGT is or, but for the passage of time or giving of notice
or both, will be in breach or default of any Material Facility Agreement and,
to
Borrower’s knowledge, no other party to any such Material Facility Agreement is
or, but for the passage of time or giving of notice or both, will be in breach
or default of any obligation thereunder, except in each case for such breaches
or defaults that would not reasonably be expected to result in a Material
Adverse Change. The Project has been constructed to date (either by
the Borrower or FGT and, to Borrower’s knowledge, such other Persons responsible
for constructing the Project) in compliance with the terms of all applicable
Material Applicable Permits, Material Facility Agreements, Easements, Prudent
Natural Gas Pipeline Practices and other Applicable Laws, except where such
failure to comply would not reasonably be expected to result in a Material
Adverse Change.
(r) Neither
this Agreement nor any certificate or other documentation furnished by the
Borrower or any of its Subsidiaries to the Administrative Agent in connection
with the transactions contemplated by this Agreement (other than the
Projections) (as modified or supplemented by other information so furnished),
taken as a whole, contained or will contain at the time of delivery thereof
any
untrue statement of a material fact or omitted or will omit at the time of
delivery thereof to state a material fact necessary in order to make the
statements contained herein or therein, as the case may be, not misleading
in
any material respect under the circumstances in which they were made at the
time
such statements are made.
(s) The
Projections will be, and, to the extent that the Projections have been delivered
to the Administrative Agent and the Lenders at or prior to the time this
representation is made or deemed made, were, prepared by or on behalf of
Borrower in good faith (and in a manner consistent with the Project Budget)
based upon assumptions that Borrower believes to be reasonable as of such date
(it being understood that the Projections are subject to significant
uncertainties and contingencies, many of which are beyond the Borrower’s
control, and accordingly no assurance can be given and no representations are
made that the assumptions are correct or that the projections will be
realized).
(t) The
Project Budget (i) was prepared by or on behalf of the Borrower in good faith
based on assumptions that the Borrower believed to be reasonable as of the
date
of preparation of such Project Budget and (ii) was prepared in a manner
consistent with the Facility Agreements (if any).
(u) The
execution and delivery of the Financing Documents by the Borrower and its
Subsidiaries, as applicable, will not cause the Borrower or any of its
Subsidiaries to become insolvent.
(v) No
Default or Event of Default has occurred and is continuing.
MIAMI/4210166.14
30
(w) Except
for (i) the instruments and agreements evidencing Indebtedness that are
described on Schedule 9 attached hereto, (ii) instruments and agreements
evidencing Indebtedness described in the Citrus Corp. 2008 operating and
strategic plan dated December 12, 2007, and (iii) instruments and agreements
evidencing Indebtedness in the aggregate less than $3,000,000, as of the date
hereof, neither Borrower nor any of its Subsidiaries is a party to any other
instruments or agreements evidencing Indebtedness, including without limitation
lines of credit, security agreements, trust indentures, mortgages, deeds of
trust, guarantees, installment purchase agreements, financing leases, letters
of
credit, or financing statements for secured debt.
ARTICLE
V
COVENANTS
OF THE BORROWER
SECTION
5.01. Affirmative Covenants. The Borrower
covenants and agrees that so long as any Obligation remains outstanding or
any
Lender shall have any Commitment hereunder, the Borrower will, and will cause
each of its Subsidiaries to, unless the Majority Lenders shall otherwise consent
in writing (it being understood and agreed that each of the following covenants
shall apply to each Subsidiary of the Borrower, whether present or
future):
(a) Reporting
Requirements. Furnish to each Lender:
(i) (A)
as soon as available and in any event within 60 days after the end of each
of
the first three Fiscal Quarters of each Fiscal Year of the Borrower, a copy
of
the Borrower’s quarterly unaudited Consolidated balance sheet as of the end of
such Fiscal Quarter and Consolidated statement of income and retained earnings
and cash flow for such Fiscal Quarter and for the period commencing at the
end
of the previous Fiscal Year and ending with the end of such Fiscal Quarter,
(B) 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 Borrower’s audited Consolidated
balance sheet as of the end of such Fiscal Year and audited Consolidated
statement of income and retained earnings and cash flow for such Fiscal Year,
(C) as soon as available and in any event within 60 days after the end of each
of the first three Fiscal Quarters of each Fiscal Year of FGT, a copy of FGT’s
quarterly unaudited balance sheet as of the end of such Fiscal Quarter and
a
statement of income and retained earnings and cash flow for such Fiscal Quarter
and for the period commencing at the end of the previous Fiscal Year and ending
with the end of such Fiscal Quarter, and (D) as soon as available and in
any event within 120 days after the end of each Fiscal Year of FGT, a copy
of
FGT’s audited balance sheet as of the end of such Fiscal Year and an audited
statement of income and retained earnings and cash flow for such Fiscal
Year;
(ii) simultaneously
with the delivery of each of the annual or quarterly reports referred to in
Section 5.01(a)(i), a Borrower Quarterly Certificate, among other things,
(A) setting forth in reasonable detail the calculations required to
establish whether the Borrower and FGT were in compliance with the requirements
of Section 5.02(j) and Section 5.02(k) on the date of the financial statements
contained in such report, and (B) stating whether there exists on the date
of such certificate any Default, and, if so, setting forth the details thereof
and the action which the Borrower and/or FGT has taken and proposes to take
with
respect thereto;
(iii) as
soon as is possible and in any event within five (5) Business Days after a
change in, or issuance of, any rating or outlook of any of the Borrower’s or
FGT's
MIAMI/4210166.14
31
long-term
debt by Standard & Poor’s or ▇▇▇▇▇’▇, notice to the Administrative Agent of
such issuance or change;
(iv) promptly
after the sending or filing thereof, copies of all reports and registration
statements which the Borrower or any of its Subsidiaries files with the SEC
or
any national securities exchange, if any;
(v) promptly
after providing the same to any rating agency, copies of all presentations
made
by the Borrower or any of its Subsidiaries to any rating agency on or prior
to
the Project Completion Date; provided that nothing herein shall limit the
obligations of the Borrower set forth in Section 8.06(b) to, among other things,
provide information as contemplated therein, including, without limitation,
rating agency presentations, whether made prior to, on or after the Project
Completion Date;
(vi) as
soon as possible and in any event within five (5) Business Days after a
Responsible Officer of the Borrower having obtained knowledge thereof, notice
of
the occurrence of any Default or Event of Default, and a statement of the chief
financial officer or chief accounting officer of the Borrower setting forth
details of such Default or Event of Default and the action which the
Borrower has taken and proposes to take with respect
thereto;
(vii) as
soon as possible and in any event (A) within 30 Business Days after the
Borrower or any ERISA Affiliate knows or has reason to know that any Termination
Event described in clause (i) of the definition of “Termination Event” with
respect to any Plan for which an Insufficiency in excess of $50,000,000 exists,
has occurred and (B) within 10 Business Days after the Borrower or any
ERISA Affiliate knows or has reason to know that any other Termination Event
with respect to any Plan for which an Insufficiency in excess of $50,000,000
exists, has occurred or is reasonably expected to occur, a statement of the
chief financial officer or chief accounting officer of the Borrower describing
such Termination Event and the action, if any, which the Borrower or such ERISA
Affiliate proposes to take with respect thereto;
(viii) promptly
and in any event within five (5) Business Days after receipt thereof by the
Borrower or any ERISA Affiliate, copies of each notice received by the Borrower
or any ERISA Affiliate from the PBGC stating its intention to terminate any
Plan
for which an Insufficiency in excess of $50,000,000 exists or to have a trustee
appointed to administer any Plan for which an Insufficiency in excess of
$50,000,000 exists;
(ix) promptly
and in any event within five (5) Business Days after receipt thereof by the
Borrower or any ERISA Affiliate from the sponsor of a Multiemployer Plan, a
copy
of each notice received by the Borrower or any ERISA Affiliate indicating
liability in excess of $50,000,000 incurred or expected to be incurred by the
Borrower or any ERISA Affiliate in connection with (A) the imposition of a
Withdrawal Liability by a Multiemployer Plan, (B) the determination that a
Multiemployer Plan is, or is expected to be, in reorganization within the
meaning of Title IV of ERISA, or (C) the termination of a Multiemployer
Plan within the meaning of Title IV of ERISA; and
MIAMI/4210166.14
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(x) such
other information respecting the condition or operations, financial or
otherwise, of the Borrower or any of its Subsidiaries as any Lender through
the
Administrative Agent may from time to time reasonably request.
(b) Use
of Proceeds. Contribute the proceeds of the Loan to FGT and cause
FGT to apply the same to the payment of Project Costs.
(c) Maintenance
of Insurance. Maintain insurance with responsible and reputable
insurance companies or associations having an A.M. Best rating of at least
A- in
such coverage types and amounts as is customarily carried by companies engaged
in similar businesses and owning similar properties as the Borrower or such
Subsidiary; provided that self-insurance by the Borrower or any such
Subsidiary shall not be deemed a violation of this covenant to the extent that
other companies engaged in similar businesses and owning similar properties
as
the Borrower or such Subsidiary self-insure.
(d) Preservation
of Corporate Existence, Etc. Preserve and maintain its corporate
existence, rights (charter and statutory), and franchises; provided,
however, that this Section 5.01(d) shall not apply to any
transactions permitted by Section 5.02(c); and provided,
further, that the Borrower or any Subsidiary shall not be required
to
preserve any right or franchise if the Borrower or such Subsidiary shall
reasonably determine that the preservation thereof is no longer desirable in
the
conduct of the business of the Borrower or such Subsidiary, as the case may
be,
and that the Administrative Agent reasonably determines that the loss thereof
is
not disadvantageous in any material respect to the Lenders.
(e) Visitation
Rights. At any reasonable time and from time to time, after
reasonable notice, permit the Administrative Agent or any of the Lenders or
any
agents or representatives thereof, to, during normal business hours, to the
extent permitted by Applicable Law and subject to Section 5.03 hereof, examine
the records and books of account of, and visit the properties of, the Borrower
and any of its Subsidiaries, and to discuss the affairs, finances and accounts
of the Borrower and any of its Subsidiaries with any of their respective
officers or directors.
(f) Warranty
of Title. Maintain (i) good leasehold or fee title, as the case may be, to
the Site and good title to the related Easements (or the applicable undivided
portion thereof), and (ii) good title to all of its other properties and assets
(other than properties and assets disposed of in strict accordance with the
provisions of any of the Loan Documents and in the ordinary course of business,
or which are obsolete or are no longer used or useful in the business of the
Borrower or its Subsidiaries), in each such case, subject only to Permitted
Liens.
(g) Notices.
Promptly (unless otherwise expressly stated hereinafter), upon acquiring notice
or giving notice, as the case may be, or obtaining knowledge thereof, give
written notice to the Administrative Agent of:
(i) Any
notice (together with a copy thereof) required to be provided by the Borrower
or
any of its Subsidiaries to any holder of any other Indebtedness of the Borrower
or such Subsidiary pursuant to the agreement or agreements evidencing such
Indebtedness;
MIAMI/4210166.14
33
(ii) Any
litigation or other proceeding pending or, to the knowledge of the Borrower,
threatened against the Borrower or any of its Subsidiaries and (A) which involve
claims against the Borrower or any of its Subsidiaries in excess of $35,000,000
individually or $50,000,000 in the aggregate per calendar year or (B) that
could
reasonably be expected to result in a Material Adverse Change;
(iii) Any
dispute or disputes which may exist between the Borrower or any of its
Subsidiaries and any Governmental Authority and which involve (A) claims against
the Borrower or any of its Subsidiaries which exceed $35,000,000 individually
or
$50,000,000 in the aggregate per calendar year, or (B) any other matters that
could reasonably be expected to result in a Material Adverse
Change;
(iv) Any
casualty, damage or loss, whether or not insured, through fire, theft, other
hazard or casualty, if such casualty, damage or loss affects the Borrower,
any
of its Subsidiaries, the Existing Pipeline or the Project, in excess of
$35,000,000 for any one casualty or loss or $50,000,000 in the aggregate in
any
policy period;
(v) Any
cancellation or lapse of coverage of any insurance related to the Existing
Pipeline or the Project;
(vi) Any
matter which has had, or could reasonably be expected to result in, a Material
Adverse Change;
(vii) Any
material default or notice thereof (including any notice of default) under
any
Material Facility Agreement;
(viii) Any
(A) fact, circumstance, condition or occurrence at, on, or arising from, any
Site, improvements, or other Property related to the Existing Pipeline or the
Project that results in material noncompliance with any Environmental Law or
any
release of Hazardous Materials on or from such Site, improvements or other
Property related to the Existing Pipeline or the Project that has had or could
reasonably be expected to result in a Material Adverse Change, and (B) pending
or, to the Borrower’s knowledge, threatened, claim under or related to
Environmental Laws, against the Borrower or any of its Subsidiaries or, to
the
Borrower’s knowledge, any of its Affiliates, contractors, lessees or any other
Persons, arising in connection with their occupying or conducting operations
on
or at the Existing Pipeline or the Project or any related Site, improvements
or
other Property that has had or could reasonably be expected to result in a
Material Adverse Change; and
(ix) Initiation
of any condemnation proceedings against the Existing Pipeline or the Project
or
the related Site or a material portion thereof.
Notwithstanding
the foregoing or anything to the contrary contained in this Agreement, Borrower
shall not be required to provide further notices to the Administrative Agent
of
the proceedings between Borrower and the Florida Department of Transportation,
which matters have been disclosed prior to the Closing Date by Borrower to
the
Administrative Agent. Such matters, to the extent required by
Applicable Law, will be included in the public reports filed with the SEC by
Southern Union Company.
MIAMI/4210166.14
34
(h) Books,
Records. Maintain, or cause to be maintained, adequate books, accounts and
records and prepare all financial statements required hereunder in accordance
with GAAP and in compliance in all material respects with the regulations of
any
Governmental Authority having jurisdiction thereof, and, subject to requirements
of Governmental Rules and safety requirements.
(i) Compliance
with Laws, Instruments, Etc. Promptly comply, or cause compliance, in all
material respects, with all Legal Requirements relating to the Borrower, any
of
its Subsidiaries, the Existing Pipeline or the Project, including Legal
Requirements relating to pollution control, environmental protection, equal
employment opportunity or employee benefit plans, ERISA Plans and employee
safety, with respect to the Borrower, its Subsidiaries, the Existing Pipeline
and the Project.
(j) Reports.
(i)
Until
the Project Completion Date, deliver to the Administrative Agent (A) within
thirty (30) days of the end of each month a report describing in reasonable
detail the progress of the construction of the Project since the last prior
report hereunder, and (B) within thirty (30) days of the end of each Fiscal
Quarter, an updated Project Budget and Project Schedule.
(ii)
Until the Project Completion Date, to the extent reasonably available to the
Borrower or any of its Subsidiaries, provide to the Administrative Agent
(subject to Section 5.03 hereof), all material reports, analyses and/or
assessments of the Project, and all material amendments, modifications and
supplements thereto, including, without limitation, material reports, analyses
or assessments prepared by any independent engineer, market consultant,
environmental consultant or insurance consultant, and copies of all such
material reports, analyses and assessments, and any material amendments,
modifications and supplements thereto.
(iii)
To
the extent reasonably available to the Borrower or any of its Subsidiaries,
provide to the Administrative Agent promptly upon the Administrative Agent’s
reasonable request therefor, such reports, statements, lists of property,
accounts, budgets, forecasts and other information concerning the Existing
Pipeline, the Project and the Material Facility Parties relating to the Existing
Pipeline or the Project.
(k) Conduct
of Business, Properties, Etc. Except as otherwise expressly permitted under
this Agreement, (i) maintain and preserve all material rights, privileges and
franchises reasonably necessary in the normal conduct of its business, (ii)
perform (to the extent not excused by force majeure events or the nonperformance
of another party and not subject to a good faith dispute) all of its material
contractual obligations under the Material Facility Agreements to which it
is
party or by which it is bound, and (iii) obtain and maintain all necessary
Material Applicable Permits and use commercially reasonable efforts to cause
all
Material Facility Parties related to the Existing Pipeline and the Project
to
obtain and maintain all Material Applicable Permits.
MIAMI/4210166.14
35
(l) Construction
of the Project. Until the Project Completion Date, acquire in the name of
the Borrower or FGT adequate interests in real property for the Project to
be
constructed and operated in accordance with Prudent Natural Gas Pipeline
Practices and diligently cause the Project to be constructed and equipped
substantially in accordance with applicable Legal Requirements, Prudent Natural
Gas Pipeline Practices, and the Construction Contracts, the Project Budget
and
Project Schedule, as such Construction Contracts, Project Budget and Project
Schedule may be amended from time to time.
(m) Operation
. Operate and maintain the Existing Pipeline and, after the
Project Completion Date thereof, the Project, cause the same to be operated
and
maintained, in a manner consistent and in compliance with Prudent Natural Gas
Pipeline Practices and in all material respects with all applicable Legal
Requirements.
(n) Further
Assurances. Perform, upon the request of the Administrative
Agent, such reasonable acts as may be necessary to carry out the intent of
this
Agreement and the other Loan Documents.
(o) Taxes
and Other Government Charges. Pay, or cause to be paid, as and when due and
prior to delinquency, all material taxes, assessments and governmental charges
of any kind that may at any time be lawfully assessed or levied against or
with
respect to the Borrower, any of its Subsidiaries, the Existing Pipeline or
the
Project, including sales and use taxes and real estate taxes, all other charges
incurred in the operation, maintenance, use, occupancy and upkeep of the
Existing Pipeline and the Project, and all assessments and charges lawfully
made
by any Governmental Authority for public improvements that may be secured by
a
Lien on the Existing Pipeline or the Project. The Borrower or any of its
Subsidiaries may contest in good faith any such taxes, assessments and other
charges and, in such event, may permit the taxes, assessments or other charges
so contested to remain unpaid during any period, including appeals, when the
Borrower or any of its Subsidiaries is in good faith contesting the same, so
long as (i) reserves have been established in an amount sufficient to pay any
such taxes, assessments or other charges, accrued interest thereon and potential
penalties or other costs relating thereto, or, to the extent permitted by GAAP,
other adequate provision for the payment hereof shall have been made, (ii)
enforcement of the contested tax, assessment or other charge is effectively
stayed for the entire duration of such contest, and (iii) any tax, assessment
or
other charge determined to be due, together with any interest or penalties
thereon, is timely paid after resolution of such contest.
(p) Event
of Eminent Domain. If an Event of Eminent Domain shall occur with respect to
any portion of the Existing Pipeline or the Project, (i) promptly upon discovery
or receipt of notice of any such occurrence, provide written notice of the
same
to the Administrative Agent, and (ii) diligently pursue all its rights to
compensation against the relevant Governmental Authority in respect of such
Event of Eminent Domain, except where the failure to pursue its rights to
compensation in respect of such Event of Eminent Domain does not or could not
reasonably be expected to result in a Material Adverse Change.
(q) Other
Indebtedness. The Borrower shall ensure that at all times the
Loan ranks at least pari passu in respect of priority of payment and priority
of
Liens with all other senior indebtedness of the Borrower.
MIAMI/4210166.14
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(r) FGT
Distributions. The Borrower shall cause FGT to declare
distributions at the earliest time permitted under Applicable Law and the FGT
Debt Agreements, in each case as such agreements exist on the Closing Date
or as
the same may be amended in compliance with this Agreement, and any other
agreement evidencing Indebtedness of FGT which is entered into in compliance
with the provisions of this Agreement, to the extent necessary (after taking
into account all other sources of funds available to the Borrower) to cause
and
permit the Borrower to pay its Indebtedness as the same becomes due and payable;
provided, however, that notwithstanding the foregoing, the Borrower shall not
be
required to cause FGT to declare distributions in the event that such
distributions would materially impair FGT’s ability to operate in the ordinary
course or would reasonably be likely to have a material adverse effect on the
financial condition of FGT.
SECTION
5.02. Negative Covenants. The Borrower
covenants and agrees that so long as any Obligation remains outstanding or
any
Lender shall have any Commitment hereunder, the Borrower shall not, and shall
not permit any of its Subsidiaries to, unless the Majority Lenders shall
otherwise consent in writing (it being understood and agreed that each of the
following covenants shall apply to each Subsidiary of the Borrower, whether
present or future):
(a) Indebtedness. Create,
assume or otherwise incur or become liable in respect of any Indebtedness (or
permit any Subsidiary to do so) if, immediately thereafter and after giving
effect thereto, a Default or an Event of Default shall have occurred and be
continuing; provided that neither the Borrower nor any of its Subsidiaries
shall
incur any Indebtedness owed to any Affiliate of the Borrower that is not fully
and completely subordinated in all respects to the Obligations pursuant to
a
subordination agreement in form and substance satisfactory to the Administrative
Agent.
(b) Disposition
of Assets. Except as otherwise expressly permitted by this
Agreement, liquidate or dissolve, sell or lease or otherwise transfer or dispose
of all or any part of its property, assets or business (including, without
limitation, any Subsidiary) in any single calendar year having an aggregate
fair
market value of more than $50,000,000 or in any period of five (5) consecutive
calendar years having an aggregate fair market value of more than
$100,000,000.
(c) Mergers,
Etc. Merge or consolidate with or into, any Person, unless
(i) the Borrower or such Subsidiary, as applicable, is the survivor and
(ii) immediately after giving effect to such proposed transaction, no
Default would exist or result.
(d) Compliance
with ERISA. Terminate, or permit any ERISA Affiliate to
terminate, any Plan so as to result in any liability in excess of $50,000,000
of
the Borrower or any ERISA Affiliate to the PBGC, or permit circumstances which
give rise to a Termination Event described in clause (b), (d) or (e) of the
definition of “Termination Event” with respect to a Plan so as to result in any
liability in excess of $50,000,000 of the Borrower or any ERISA Affiliate to
the
PBGC.
(e) Liens,
Etc. Pledge, mortgage or hypothecate, or permit to exist, and/or
cause, suffer or permit any Subsidiary to pledge, mortgage or hypothecate,
or
permit to exist, any Lien upon, any Property at any time owned by it to secure
any Indebtedness or other obligations,
MIAMI/4210166.14
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without
making effective provisions whereby all Obligations of the Borrower and FGT
to
the Administrative Agent and the Lenders under this Agreement and each of the
other Loan Documents shall be equally and ratably secured with all such
Indebtedness or other obligations so secured and with any other Indebtedness
similarly entitled to be equally and ratably secured; provided,
however, that this restriction shall not apply to or prevent the creation
or existence of the following (collectively, “Permitted
Liens”):
(i) pledges
or deposits made to secure payment of worker's compensation insurance (or to
participate in any fund in connection with workers' compensation insurance),
unemployment insurance, pensions or social security programs,
(ii) Liens
imposed by mandatory provisions of Applicable Law such as for materialmen's,
mechanics', warehousemen's and other like Liens arising in the ordinary course
of business, securing Indebtedness whose payment is not yet due,
(iii) Liens
for taxes, assessments and governmental charges or levies imposed upon a Person
or such Person's income or profits or Property, if the same are not yet due
and
payable or if the same are being contested in good faith and as to which
adequate cash reserves have been provided,
(iv) Liens
arising from good faith deposits in connection with tenders, leases, real estate
bids or contracts (other than contracts involving the borrowing of money),
pledges or deposits to secure public or statutory obligations and deposits
to
secure (or in lieu of) surety, stay, appeal or custom bonds and deposits to
secure the payment of taxes, assessments, custom duties or other similar
charges,
(v) encumbrances
consisting of zoning restrictions, easements, or other restrictions on the
use
of real property for the purposes intended, and none of which is violated by
existing or proposed structures or land use,
(vi) Liens
existing on property acquired by the Borrower or any of its Subsidiaries at
the
time of acquisition, provided that such Liens were not created in contemplation
of such acquisition and do not extend to any assets other than the property
so
acquired; and
(vii) any
other Liens (other than the Liens described in clauses (i) through (vi)
inclusive), if the aggregate amount of all obligations secured by such Liens
does not exceed $30,000,000 at any one time outstanding.
In
case
the Borrower or any of its Subsidiaries shall propose to ▇▇▇▇▇ ▇ ▇▇▇▇ on any
property at any time owned by it to secure any Indebtedness or other
obligations, other than as permitted by clauses (i) to (vii), inclusive, of
this
Section 5.02(e), the Borrower will prior thereto give written notice thereof
to
the Administrative Agent and the Borrower will, or will cause its Subsidiary
to,
prior to or simultaneously with the granting of such Lien, by a mortgage,
security agreement or pledge agreement executed by the grantor to the
Administrative Agent for the benefit of the Administrative Agent and the Lenders
(or to the extent legally necessary to a trustee), in form and substance
satisfactory to the Administrative Agent, effectively secure all of the
Obligations with such Indebtedness or other obligations so secured.
MIAMI/4210166.14
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(f) Investments. Make
or permit to exist, or permit any of its Subsidiaries to make or permit to
exist
any Investments (including loans to and investment in third parties) other
than
as expressly permitted below:
(i) The
Borrower may make Permitted Investments which are made in the ordinary course
of
business in connection with the Borrower’s cash management practices;
and
(ii) As
long as, after giving effect thereto, no Default or Event of Default has
occurred and is continuing, the Borrower may make other Investments;
provided that such Investments are in the lines of business permitted
pursuant to, and subject to the limitations contained in, Section
5.02(g).
(g) Line
of Business. Engage in a line of business other than the
ownership and operation of a natural gas pipeline in the United States; provided
that, so long as after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing, the Borrower and/or FGT may invest up
to
twenty percent (20%) of the Consolidated net tangible assets of the Borrower
and
its Subsidiaries in other FERC regulated natural gas businesses that do not
involve any trading or marketing activities.
(h) Ownership
of FGT, Existing Pipeline and the Project. (i) In the case of the
Borrower, cause or permit FGT to at any time cease to be directly or indirectly
a wholly-owned, direct Subsidiary of the Borrower, and (ii) except as set forth
on Schedule 6, cause or permit FGT to at any time cease to own one hundred
percent (100%) of the Existing Pipeline and the Project.
(i) Use
of Proceeds. Use all or any portion of the proceeds of the Loan
for the purpose of purchasing or carrying margin stock within the meaning of
Regulation U issued by the Federal Reserve Board or for any other purpose except
as expressly permitted and authorized herein.
(j) Consolidated
Debt to Total Capitalization Ratio. Permit at any time the ratio
of (i) the Consolidated Debt of the Borrower, to (ii) the Total Capitalization
of the Borrower, to be more than 0.65 to 1.00.
(k) Interest
Coverage Ratio. Permit at any time the ratio of (a) the
Consolidated EBITDA of the Borrower, to (ii) the Consolidated Interest Expense
of the Borrower, to be less than 2.00 to 1.00.
(l) Affiliate
Transactions. Enter into or permit to exist, or permit any of its
Subsidiaries to enter into or permit to exist, directly or indirectly, any
transaction or series of transactions with any of their Affiliates unless such
transaction or series of transactions is on terms no less favorable to the
Borrower or any Subsidiary, as applicable, than those that could be obtained
in
a comparable arm's length transaction with a Person that is not such an
Affiliate.
(m) Dividends
and Distributions. Make or pay any dividends or distributions to,
or repay any Indebtedness owed to, any holder of an equity interest in the
Borrower, or redeem, purchase or otherwise acquire any interest in the Borrower
held by such Person;
MIAMI/4210166.14
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provided
that, (i) the Borrower may make or pay any dividend or distribution to, or
repay
any Indebtedness owed to, holders of an equity interest in the Borrower if
such
dividends or distributions or repayment of Indebtedness is paid with equity
interests of the Borrower, (ii) after the Funding Date and prior to the Project
Completion Date, the Borrower may make or pay any dividend or distribution,
or
repay any Indebtedness owed, to holders of equity interest in the Borrower
with
any Distributable Amounts only if (x) after giving effect thereto, no Default
or
Event of Default shall have occurred and be continuing and the Borrower shall
have provided to the Administrative Agent a certificate of the Borrower, signed
by a Responsible Officer of the Borrower, to the effect that the Borrower has
sufficient financial resources available to it (including access to capital
and
debt markets, either directly or indirectly through its Affiliates) to
construct, complete and equip the Project substantially in accordance with
applicable Legal Requirements, Prudent Natural Gas Pipeline Practices, and
the
Construction Contracts, the Project Budget and Project Schedule, as such
Construction Contracts, Project Budget and Project Schedule may be amended
from
time to time, and (y) the holders of such equity interests in the Borrower
agree
to contribute equity capital to the Borrower in an equal amount within twelve
months from the date of such dividend, distribution or repayment, as applicable,
(iii) prior to the Funding Date and after the Project Completion Date, the
Borrower may make or pay any other dividend or distribution, or repay any
Indebtedness owed, to holders of equity interests in the Borrower with any
Distributable Amounts so long as after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing, and (iv) and any
Subsidiary of the Borrower may make or pay any dividend or distribution to
the
Borrower.
(n) Abandonment
of the Existing Pipeline or the Project. Cease or abandon the
development, construction or operation of the Existing Pipeline or the
Project.
(o) FGT
Distributions. Cause or permit FGT to enter into any further agreement
limiting its ability to pay dividends or make distributions to the Borrower
on
terms more restrictive than those contained in the FGT Debt Agreements, in
each
case as such agreements exist on the Closing Date.
(p) Amendment
of Borrower Debt Agreements and FGT Debt Agreements. Agree to or
enter into or otherwise cause or permit any amendment, modification or
termination of any of the Borrower Debt Agreements or FGT Debt Agreements if
any
such amendment, modification or termination will result in a Material Adverse
Change or otherwise conflict with this Agreement.
SECTION
5.03. Disclosure
Limitations. Notwithstanding anything to the contrary contained
in this Agreement or any of the other Loan Documents, neither Borrower nor
any of its Affiliates, including, without limitation, FGT, shall be required
to
provide to Pipeline Funding Company, LLC (or any of its Affiliates), or any
other Person (or any of its Affiliates) that is a customer of the FERC-regulated
businesses of Borrower or any of its Subsidiaries, including, without
limitation, FGT(each such Person, a “Restricted Person”), any information
(including, without limitation, any contracts between FGT, on the one hand,
and
any customers of FGT, on the other hand), to the extent that, in the good faith,
reasonable determination of the Borrower and its regulatory counsel, such
disclosure would violate any Applicable Law (including, without limitation,
the
Energy Policy Act of 2005, the Natural Gas Act and FERC orders and regulations,
including FERC standards of conduct) (collectively, the "Disclosure
Limitations"); provided,
MIAMI/4210166.14
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however,
that to the extent that the disclosure of such information to a Restricted
Person would result in a violation of the Disclosure Limitations, in the good
faith, reasonable determination of Borrower and its regulatory counsel, Borrower
would agree to provide such information to a third party consultant or other
designee of the Restricted Person so long as (i) in the good faith, reasonable
determination of Borrower and its regulatory counsel, such disclosure would
not
violate the Disclosure Limitations, and (ii) Borrower receives a confidentiality
agreement (reasonably acceptable to Borrower in good faith) executed by such
consultant or designee who will receive such information that is the subject
of
such Disclosure Limitations. If the disclosure to such Restricted
Person’s consultant or designee may not be made without violating the Disclosure
Limitations, in the good faith, reasonable determination of Borrower and its
regulatory counsel, then the Borrower agrees that it will use, or will cause
its
Subsidiaries to use, as applicable, commercially reasonable efforts to determine
an acceptable alternative to achieve the intended objective of the requested
disclosure.
Notwithstanding
anything to the
contrary contained in this Agreement or any of the other Loan Documents,
Borrower shall not be required to disclose litigation-related information
(including information prepared in anticipation of litigation) to the
Administrative Agent, the Lenders or any Eligible Assignee pursuant to Section
8.06(j) to the extent that Borrower and its counsel reasonably determine in
good
faith that the disclosure of such information would result in a waiver of
Borrower’s attorney-client or work product privileges; it being understood and
agreed, however, that negotiated agreements and other agreements and
communications with third parties and notices of the occurrence of any event
and
non-privileged information (although there may be other privileged
communications related to such event or non-privileged information) shall not
be
deemed to be privileged communications.
In
no
event, however, shall the Disclosure Limitations or any other provision
contained in this Section 5.03 be deemed or construed to (i) excuse the Borrower
from its obligations hereunder to provide notice to the Administrative Agent
or
the Lenders of Defaults and Events of Default (whatever the cause), or (ii)
otherwise limit or preclude the disclosure of any information contemplated
in
this Agreement or any of the other Loan Documents (whether pursuant to Section
8.06(j) or otherwise) to any other Lender that is not a Restricted Person
subject to the Disclosure Limitations contained herein or the Administrative
Agent’s or any Lender’s actual or proposed pledgee, assignee, transferee or
lender(s), or any of their agents, representatives, advisors or trustees
(including, without limitation, any Person described in clauses (b) through
(e),
inclusive, of the definition of “Eligible Assignee”), so long as in any such
case such Person is not a Restricted Person subject to the Disclosure
Limitations contained herein, even though the Administrative Agent or the Lender
making or proposing any such pledge, assignment, transfer, participation or
financing may be precluded from receiving such information because of the
Disclosure Limitations contained herein.
ARTICLE
VI
EVENTS
OF DEFAULT
SECTION
6.01. Events of Default. If any of the
following events (“Events of Default”) shall occur and be
continuing:
MIAMI/4210166.14
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(a) The
Borrower shall fail to pay (i) any principal when due and payable hereunder
or (ii) any interest for more than five days after such interest becomes
due and payable hereunder or (iii) any other amount (other than principal
or interest on the Loan) due under any Loan Document for more than 15 days
after
such fee or amount becomes due and payable; or
(b) Any
representation or warranty made by the Borrower or any Subsidiary of the
Borrower (or any of their respective officers) under or in connection with
any
Loan Document shall prove to have been incorrect in any material respect when
made or deemed made and the same shall remain unremedied for 30 days after
a
Responsible Officer of the Borrower or such Subsidiary becomes aware of such
event or written notice thereof shall have been given to the Borrower by the
Administrative Agent at the request of any Lender; or
(c) The
Borrower or any of its Subsidiaries shall (i) fail to perform or observe any
term, covenant or agreement contained in Section 5.02 of this Agreement or
in
Article II of the Negative Pledge, or (ii) fail to perform or observe any other
term, covenant or agreement contained in any Loan Document and which is not
covered by clause (i) above or any other provision of this
Section 6.01 if, in the case of such other term, covenant or agreement
referenced in this clause (ii), such failure shall remain unremedied for 30
days
after a Responsible Officer of the Borrower or such Subsidiary becomes aware
of
such event or written notice thereof shall have been given to the Borrower
by
the Administrative Agent at the request of any Lender; or
(d) The
Borrower or any of its Subsidiaries shall fail to pay any principal of or
premium or interest on any Indebtedness which is outstanding in the principal
amount of at least $30,000,000 in the aggregate, of the Borrower or such
Subsidiary (as the case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace and/or notice period,
if any, specified in the agreement or instrument relating to such Indebtedness;
or any other event shall occur or condition shall exist under any agreement
or
instrument relating to any such Indebtedness and shall continue after the
applicable grace and/or notice period, if any, specified in such agreement
or
instrument, if the effect of such event or condition is to accelerate, or to
permit with notice or the passage of time the acceleration of, the maturity
of
such Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment or as a result of the giving of notice of a voluntary prepayment),
prior to the stated maturity thereof; or
(e) The
Borrower, FGT or any of the Borrower's Subsidiaries shall generally not pay
its
debts as such debts become due, or shall admit in writing its inability to
pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower,
FGT
or any of the Borrower's Subsidiaries seeking to adjudicate it as bankrupt
or
insolvent, or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any
law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or
seeking the entry of an order for relief or the appointment of a receiver,
trustee or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but
not
instituted by it), shall remain undismissed or unstayed for a period of 60
days;
or the Borrower, FGT or any of the Borrower's Subsidiaries shall take any
corporate, limited liability
MIAMI/4210166.14
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company
or partnership action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any
judgment, decree or order for the payment of money in excess of $50,000,000,
individually or in the aggregate, shall be rendered against the Borrower or
any
of its Subsidiaries and remains unsatisfied and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment, decree
or order or (ii) there shall be any period of 60 consecutive days during
which a stay of enforcement of such judgment, decree or order, by reason of
a
pending appeal or otherwise, shall not be in effect; or
(g) The
Borrower or any ERISA Affiliate shall have been notified by the sponsor of
a
Multiemployer Plan that such Multiemployer Plan is in reorganization or is
being
terminated, within the meaning of Title IV of ERISA, if as a result of such
reorganization or termination the aggregate annual contributions of the Borrower
and its ERISA Affiliates to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan years
which include the date hereof by an amount exceeding $50,000,000 in the
aggregate; or
(h) The
Borrower shall fail to own, directly or indirectly, one hundred percent (100%)
of the voting equity interests of FGT, or, except as may be permitted pursuant
to Section 5.02(b), FGT shall fail to own one hundred percent (100%) of the
Project and, except as set forth on Schedule 6, the Existing Pipeline;
or
(i) Failure
of the Borrower and its Subsidiaries to achieve Project Completion in respect
of
the Project on or prior to December 31, 2013; or
(j) Failure
by the holders of the equity interests in the Borrower to contribute equity
capital to the Borrower prior to such times and in such amounts required
pursuant to Section 5.02(m); or
(k) An
"Event of Default" (after giving effect to any applicable periods of grace
or
notice) shall have occurred under any of the Borrower Debt Agreements or the
FGT
Debt Agreements; or
(l) A
"Material Adverse Change" shall have occurred and the same shall remain
unremedied for 30 days after a Responsible Officer of the Borrower or such
Subsidiary becomes aware of such event or written notice thereof shall have
been
given to the Borrower by the Administrative Agent at the request of any
Lender;
then,
and
in any such event, the Administrative Agent may do any of the
following:
(i) at
the request, or may with the consent, of the Majority Lenders, by notice to
the
Borrower, declare the obligation of each Lender to make the Loan to be
terminated, whereupon the same shall forthwith terminate, and/or
(ii) at
the request, or may with the consent, of the Majority Lenders, by notice to
the
Borrower, recover any outstanding principal of or premium or interest on
any of the Obligations, and/or
MIAMI/4210166.14
43
(iii) declare
all or any portion of the Loan, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon all or such portion of the Loan, all such interest and
all such amounts, together with a premium equal to (A) in the case of the
occurrence of any Event of Default specified in Sections 6.01 (b), (c), (e)
(to the extent voluntary), (h) or (i), four percent (4%) of the principal
balance of the Loan so accelerated, and (B) in the case of any other Event
of
Default, two percent (2%) of the principal balance of the Loan so accelerated,
shall become and be forthwith due and payable, in any such case without
presentment, demand, protest, notice of intent to accelerate or further notice
of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to the Borrower under the Bankruptcy Code,
(A) the obligation of each Lender to make its Loan shall automatically be
terminated and (B) the Loan, all such interest, all such amounts, and all
other Obligations, together with a premium equal to four percent (4%) (to the
extent voluntary) or two percent (2%) (to the extent involuntary) of the
principal balance of the Loan, shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all
of
which are hereby expressly waived by the Borrower, and/or
(iv) at
the request, or may with the consent, of the Majority Lenders, by notice to
the
Borrower, collect interest at the Default Rate in accordance with Section 2.06,
and/or
(v) exercise
any or all remedies available at law; and/or
(vi) exercise
any or all remedies available in equity.
The
Borrower acknowledges, and the parties hereto agree, that each Lender has the
right to maintain its investment in the Loan free from prepayment and that,
as a
result, the right of acceleration shall not be the sole and exclusive remedy
available in the event of an Event of Default but rather shall be one of the
remedies available to the Administrative Agent and the Lenders (which the
Administrative Agent and the Lenders, in their sole and absolute discretion,
may
exercise). Without limiting the generality of any of the foregoing,
neither the Administrative Agent nor any Lender shall be subject to any "one
action" or "election of remedies" law or rule, and all rights, remedies and
privileges provided to the Administrative Agent and each Lender shall remain
in
full force and effect until the Administrative Agent and the Lenders shall
have
exhausted all of their remedies. Any such actions taken by the
Administrative Agent and/or any of the Lenders either at law or in equity shall
be cumulative and concurrent and may be pursued independently, singly,
successively, together or otherwise, at such time and in such order as the
Administrative Agent and the Majority Lenders may determine in their sole
discretion, to the fullest extent permitted by law, equity or
contract. Without limiting the generality of the foregoing, in the
event of the occurrence of an Event of Default incurred solely for the purpose
of intentionally circumventing the Lenders’ right to maintain its investment in
the Loan free from prepayment, the Borrower acknowledges that monetary damages
will be inadequate and the Lenders and the Administrative Agent shall be
entitled to exercise available equitable remedies.
MIAMI/4210166.14
44
ARTICLE
VII
THE
AGENT
SECTION
7.01. Authorization and Action. Each
Lender hereby appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Administrative Agent, by the terms hereof
and
thereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the
Loan), the Administrative 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 Lenders, and such instructions shall be binding
upon all Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action which exposes
the
Administrative Agent to personal liability or which is contrary to any Loan
Document or Applicable Law and shall not be required to initiate or conduct
any
litigation or other proceedings. The Administrative Agent agrees to
give to each Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION
7.02. Administrative Agent’s Reliance,
Etc. Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted
to
be taken by it or them under or in connection with any Loan Document, except
for
its or their own gross negligence or willful misconduct. The duties
of the Administrative Agent shall be mechanical and administrative in nature;
the Administrative Agent shall not have, by reason of this Agreement or any
other Loan Document, a fiduciary relationship in respect of any Lender or the
holder of any Note; and nothing in this Agreement or any other Loan Document,
expressed or implied, is intended or shall be so construed as to impose upon
the
Administrative Agent any obligations in respect of this Agreement or any other
Loan Document except as expressly set forth herein. Without
limitation of the generality of the foregoing, the Administrative
Agent: (a) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form satisfactory to the
Administrative Agent; (b) may consult with legal counsel (including counsel
for the Borrower), independent public accountants and other experts selected
by
it and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender and shall
not be responsible to any Lender for any statements, warranties or
representations made in or in connection with any Loan Document; (d) shall
not have any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of any Loan Document on the part
of
the Borrower or to inspect the property (including the books and records) of
the
Borrower; (e) shall not be responsible to any Lender for the due execution
(other than the Administrative Agent’s own due execution), legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document or any
other instrument or document furnished pursuant hereto; and (f) shall incur
no liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by
telecopier), believed by it to be genuine and signed or sent by the proper
party
or parties.
MIAMI/4210166.14
45
SECTION
7.03. Administrative Agent and Its
Affiliates. With respect to its Commitment, the Loan made by it
and the Notes, if any, issued to it, each Lender which is also the
Administrative Agent shall have the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though it were not
the Administrative Agent; and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated, include any Lender serving as the Administrative
Agent in its individual capacity. Any Lender serving as the
Administrative Agent and its 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 the Subsidiaries and any Person who may do business
with or own securities of the Borrower or any Subsidiary, all as if such Lender
were not the Administrative Agent and without any duty to account therefor
to
the Lenders.
SECTION
7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on the financial statements
referred to in Section 4.01(d) and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents. The
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to provide any Lender or the holder of any Note with
any credit or other information with respect thereto, whether coming into its
possession before the making of the Loan or at any time or times
thereafter. The Administrative Agent shall not be responsible to any
Lender or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, collectability, priority or sufficiency
of this Agreement or any other Loan Document or the financial condition of
the
Borrower or any Subsidiary or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions
of
this Agreement or any other Loan Document, or the financial condition of the
Borrower or any Subsidiary or the existence or possible existence of any
Default.
SECTION
7.05. Certain Rights of the Administrative
Agent. The Administrative Agent shall request instructions from
the Majority Lenders with respect to any act or action (including failure to
act) in connection with this Agreement or any other Loan Document, the
Administrative Agent shall be entitled to refrain from such act or taking such
action unless and until the Administrative Agent shall have received
instructions from Majority Lenders; and it shall not incur liability to any
Person by reason of so refraining. Without limiting the foregoing, no
Lender or the holder of any Note shall have any right of action whatsoever
against the Administrative Agent as a result of its acting or refraining from
acting hereunder or under any other Loan Document in accordance with the
instructions of the Majority Lenders or all of the Lenders, as the case may
be. Furthermore, except for action expressly required of the
Administrative Agent hereunder, the Administrative Agent shall in all cases
be
fully justified in failing or refusing to act hereunder unless it shall be
specifically indemnified to its satisfaction by the Lenders against any and
all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
MIAMI/4210166.14
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SECTION
7.06. Holders. Any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee, assignee or indorsee, as the case may
be,
of such Note or of any Note or Notes issued in exchange therefor.
SECTION
7.07. Indemnification. The Lenders agree
to indemnify the Administrative Agent (to the extent not reimbursed by the
Borrower), ratably according to the respective principal amounts of the Loan
then held by each of them (or if no principal of the Loan is at the time
outstanding or if any principal of the Loan is held by Persons who are not
Lenders, ratably according to the respective amounts of their Commitments then
existing, or, if no such principal amounts are then outstanding and no
Commitments are then existing, ratably according to the respective amounts
of
the Commitments existing immediately prior to the termination thereof), from
and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against
the
Administrative Agent in any way relating to or arising out of any of the Loan
Documents or any action taken or omitted by such Administrative Agent under
the
Loan Documents; provided that no Lender shall be liable for any portion of
such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's
gross
negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Administrative Agent promptly
upon demand for such Lender's ratable share of any reasonable out-of-pocket
expenses (including reasonable counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, the Loan Documents, or any of them, to the extent that
such Administrative Agent is not reimbursed for such expenses by the
Borrower.
SECTION
7.08. Resignation or Removal of the Administrative Agent
.
(a) The
Administrative Agent may resign from the performance of all its respective
functions and duties hereunder and under the other Loan Documents at any time
by
giving at least sixty (60) days’ prior written notice to the Borrower and the
Lenders. Additionally, the Administrative Agent may be removed at the
discretion of the Majority Lenders by giving at least sixty (60) days’ prior
written notice to the Administrative Agent, the Borrower and the
Lenders. Such resignation or removal shall take effect upon the
appointment of a successor Administrative Agent pursuant to Section 7.08(b)
and
Section 7.08(c) or as otherwise provided below.
(b) Upon
any such notice of resignation or removal, the Majority Lenders shall have
the
right to appoint a successor Administrative Agent which shall be another Lender,
or if none is amenable to such appointment, a commercial bank or trust company
experienced in the administration of loans such as the Loan and, so long as
no
Default or Event of Default shall have occurred and be continuing, otherwise
reasonably acceptable to the Borrower.
(c) If
a successor to a resigning Administrative Agent shall not have been so appointed
within such sixty (60) day period, the resigning Administrative Agent with
the
consent of the Borrower (which consent will not be unreasonably withheld),
shall
have the right to then
MIAMI/4210166.14
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appoint
a
successor Administrative Agent who shall serve as Administrative Agent until
such time, if any, as the Majority Lenders appoint a successor Administrative
Agent as provided above.
(d) If
no successor Administrative Agent has been appointed pursuant to Section 7.08(b)
or Section 7.08(c) and shall have accepted such appointment by the 70th day after
the date
such notice of resignation or removal was given by the resigning Administrative
Agent or the Majority Lenders, as the case may be, the resigning Administrative
Agent’s resignation shall become effective and the Lenders shall thereafter
perform all the duties of the resigning Administrative Agent hereunder and
under
any other Loan Document until such time, if any, as the Majority Lenders appoint
a successor Administrative Agent as provided above.
(e) After
any retiring Administrative Agent’s resignation or removal hereunder as
Administrative Agent the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan
Documents. Upon the acceptance of any appointment as Administrative
Agent by a successor Administrative Agent, such successor Administrative Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges, and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents.
MIAMI/4210166.14
48
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.01. Amendments, 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 Majority Lenders, 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 all the Lenders, do any of the
following: (a) waive any of the conditions specified in Article
III (it being understood and agreed that the conditions contained in Article
III
are for the benefit of the Lenders only and, accordingly, the Borrower shall
have no right to waive such conditions or to insist that any Lender waive or
not
waive any of the conditions contained in Article III, which right to waive
or
not waive shall be exercisable by the Lenders in their sole and absolute
discretion), (b) increase or extend the Commitments of the Lenders or
subject the Lenders to any additional obligations, (c) forgive or reduce
the principal of, or interest on, the Loan or any other amounts payable
hereunder, (d) postpone any date fixed for any payment of principal of, or
interest on, the Loan or any other amounts payable hereunder, (e) take any
action which requires the signing of all the Lenders pursuant to the terms
of
any Loan Document, (f) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loan which shall be required for the
Lenders or any of them to take any action under any Loan Document, (g) amend
the
definition of "Event of Default", or (h) amend this Section 8.01; and
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required
above
to take such action, affect the rights or duties of the Administrative Agent
under any Loan Document.
SECTION
8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be (except to the extent telephone
notice is expressly authorized or required herein) in writing (including
facsimile transmission communication) and mailed, telecopied or delivered,
if to
the Borrower, at its address or telecopy number set forth below:
c/o
Florida Gas Transmission Company, LLC
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice
President & Treasurer
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
if
to any
Lender, at its address set forth on its signature page hereto; if to the
Administrative Agent, at its address or telecopier number set forth
below:
MIAMI/4210166.14
49
Pipeline Funding Company, LLC
|
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
|
|
|
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇, President
|
|
|
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
|
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
or,
as to
the Borrower, the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties 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 Administrative Agent. All
such notices and communications shall be effective, if mailed, two Business
Days
after deposit in the mails; if sent by overnight courier, one Business Day
after
delivery to the courier company; and if sent by telecopier, when received by
the
receiving telecopier equipment, respectively; provided, however,
that (a) notices and communications to the Administrative Agent shall not
be effective until received by the Administrative Agent and (b) telecopied
notices received by any party after its normal business hours (or on a day
other
than a Business Day) shall be effective on the next Business Day.
SECTION
8.03. No Waiver; Remedies. No failure on
the part of any Lender or the Administrative Agent to exercise, and no delay
in
exercising, any right under any Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other
or
further exercise thereof or the exercise of any other right. The
remedies provided in the Loan Documents are cumulative and not exclusive of
any
remedies provided by law or at equity.
SECTION
8.04. Costs, Expenses and Indemnity.
(a) Expenses. The
Borrower agrees to pay on demand, (i) all reasonable costs and expenses in
connection with the preparation, execution and delivery of the Loan Documents
and the other documents to be delivered under the Loan Documents, including,
without limitation, the reasonable fees and out-of-pocket expenses of one law
firm as counsel for the Administrative Agent with respect to preparation,
execution and delivery of the Loan Documents and the satisfaction of the matters
referred to in Section 3.01, which (x) on or prior to the Closing Date
shall not exceed $250,000, and (y) after the Closing Date and on or prior to
the
Funding Date shall not exceed $62,500, and (ii) all reasonable legal and
other costs and expenses, if any, of the Administrative Agent and each Lender
in
connection with the administration, modification, amendment and enforcement
(whether through negotiations, legal proceedings or otherwise) of the Loan
Documents and the other documents to be delivered under the Loan Documents
or
incurred in connection with any workout, restructuring or
bankruptcy.
(b) Indemnity. The
Borrower shall, to the fullest extent permitted by Applicable Law, indemnify
and
hold harmless the Administrative Agent, each Lender, and each of their
respective Affiliates and any officers, directors, employees and agents of
the
Administrative Agent, any Lender or any of their respective Affiliates
(collectively the “Indemnified Parties”) from and against any and all
losses, claims, damages, liabilities, related reasonable costs and expenses
(including reasonable fees, expenses and disbursements of any
MIAMI/4210166.14
50
law
firm or other external counsel) to which any such Indemnified Party may become
subject arising out of or in connection with (i) the execution, delivery,
enforcement or performance of this Agreement or any other Loan Document or
any
other agreement, letter or instrument delivered pursuant to the Loan Documents
in connection with the transactions contemplated thereby or the consummation
of
the transactions contemplated thereby, (ii) any Commitment or Loan or the use
or
proposed use of the proceeds therefrom, or (iii) any liability imposed on an
Indemnified Party under any Environmental Law as a result of or in connection
with such Indemnified Party being a Lender, the Administrative Agent or an
Affiliate of a Lender or the Administrative Agent, regardless of whether any
Indemnified Party is a party thereto. The foregoing indemnity will
not, as to any Indemnified Party, apply to losses, claims, damages, liabilities
or related expenses to the extent they are found by a final, non-appealable
judgment of a court of competent jurisdiction to arise from the willful
misconduct, bad faith or gross negligence of such Indemnified
Party. No Indemnified Party shall be liable for any indirect or
consequential damages in connection with its activities related to this
Agreement, any other Loan Document or any of the transactions contemplated
hereby. Each Indemnified Party shall agree (or, if not a party
hereto, shall agree as a condition precedent to obtaining the benefits of this
indemnity) that it shall promptly notify the Borrower of each claim for
indemnity hereunder. Any Indemnified Party that proposes to settle or
compromise any indemnified claim for which the Borrower may be liable for
payment hereunder shall give the Borrower written notice of the terms of such
proposed settlement or compromise reasonably in advance of settling or
compromising such claim or proceeding and shall obtain the Borrower's prior
written consent thereto, which consent shall not be unreasonably withheld;
provided that nothing in this sentence shall restrict the right of any
Indemnified Party to settle or compromise any claim for which indemnity would
otherwise be available on any terms if such Indemnified Party waives its right
to indemnity from the Borrower in respect thereof. The agreements in
this Section shall survive in accordance with Section 8.11.
(c) Punitive
Damages. Except as set forth in the next succeeding sentence,
neither the Administrative Agent nor any Lender shall be liable to the Borrower
for amounts constituting punitive, treble or exemplary damages arising out
of or
in connection with any breach by any Lender or the Administrative Agent of
any
of their respective obligations hereunder. If the Borrower becomes
liable to an unaffiliated third party for amounts constituting punitive, treble
or exemplary damages as a result of a breach of an obligation hereunder (but
excluding the exercise of any rights hereunder or under the other Loan
Documents) by a Lender or the Administrative Agent, as the case may be, the
Borrower shall be entitled to claim and recover (and does not waive its rights
to claim and recover) such amounts from such Lender or the Administrative Agent,
as the case may be, to the extent such Lender or the Administrative Agent,
as
the case may be, would be liable to the Borrower for such amounts but for the
limitation set forth in the preceding sentence.
SECTION
8.05. Right of Set-Off. Upon (a) the
occurrence and during the continuance of any Event of Default and (b) the
making of the request or the granting of the consent specified by
Section 6.01 to authorize the Administrative Agent to declare the Loan due
and payable pursuant to the provisions of Section 6.01, each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by Applicable Law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the
account of the
MIAMI/4210166.14
51
Borrower
against any and all of the Obligations now or hereafter existing under this
Agreement and the Notes held by such Lender, irrespective of whether or not
such
Lender shall have made any demand under this Agreement or such Notes and
although such Obligations may be unmatured. For avoidance of doubt,
nothing herein shall be deemed or construed to permit any Lender to set off
any
contractual obligations that may be owed by any Affiliate of such Lender to
the
Borrower or any of its Subsidiaries to any Obligations owed to such Lender
hereunder or under any of the other Loan Documents. Each Lender
agrees promptly to notify the Borrower after any such set-off and application
made by such Lender; provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of
each Lender under this Section 8.05 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Lender may have.
SECTION
8.06. Binding Effect; Assignments;
Participations.
(a) This
Agreement shall become effective on the Closing Date if this Agreement shall
have been executed by the Borrower and the Administrative Agent and if the
Administrative Agent shall have, as to each Lender, either received a copy
of a
signature page hereof executed by such Lender or been notified by such Lender
that such Lender has executed it and thereafter shall be binding upon and inure
to the benefit of and be enforceable by the Borrower, the Administrative Agent
and each Lender and their respective successors and assigns, except that neither
the Borrower nor any of its Subsidiaries shall have the right to assign or
transfer any of its respective rights or obligations hereunder or under any
of
the other Loan Documents or any interest herein or therein without the prior
written consent of all of the Lenders.
(b) Each
Lender may, in accordance with Applicable Law, assign to one or more banks
or
other Persons all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments, the Loan owing to
it,
and the Note, if any, held by it); provided, however, that
(i) each such assignment shall be to an Eligible Assignee, and (ii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for acceptance by the Administrative Agent and recording by the
Administrative Agent in the Register, an Assignment and Acceptance, together
with any Note, if any, then held by such assigning Lender and any Note then
held
by such assignee; and providedfurther, that prior to the
occurrence of the Project Completion Date and so long as no Default or Event
of
Default shall have occurred and be continuing, no Lender shall assign any
portion of its obligation to fund the Construction Loan to any entity that
is
not an Affiliate of any Lender without the prior written consent of the Borrower
(which consent shall not be unreasonably conditioned, withheld or delayed).
Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the 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 Lender hereunder, (y) the Lender 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 this Agreement (and, in the case of an
Assignment and Acceptance covering all of an assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
except that the rights under Sections 2.09 and 8.04 of such Lender shall
continue with respect to events and occurrences occurring before or
MIAMI/4210166.14
52
concurrently
with its ceasing to be a party hereto), and (z) unless the Borrower in its
sole
discretion otherwise consents, no such assignee shall be entitled to receive
any
greater payment pursuant to Sections 2.09 than the assigning Lender would
have been entitled to receive with respect to the rights assigned to such
assignee, except as a result of circumstances arising after the date of such
assignment.
(c) By
executing and delivering an Assignment and Acceptance, the Lender assignor
thereunder and the 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 Lender 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
any other instrument or document furnished pursuant hereto or in connection
herewith or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument or document
furnished pursuant hereto or in connection herewith; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or any other Person or the
performance or observance by the Borrower or any other Person of any of its
respective obligations under any Loan Document or any other instrument or
document furnished pursuant hereto or in connection herewith; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01(d) 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
assignee will, independently and without reliance upon the Administrative Agent,
such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own
credit decisions in taking or not taking action under this Agreement, any of
the
other Loan Documents or any other instrument or document; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as Administrative Agent
on its behalf and to exercise such powers and discretion under the Loan
Documents as are delegated to the Administrative Agent by the terms hereof
or
thereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance
with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(d) The
Administrative Agent shall maintain at its address referred to in Section 8.02
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 the Lenders and
the
Commitment of, and the principal amount of the Loan owing to, each Lender 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 Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of
this
Agreement. The Register shall be available for inspection by the
Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender
and
an assignee representing that it is an Eligible Assignee, together with any
Note
then held by such assigning Lender and any Note then held by such assignee,
the
MIAMI/4210166.14
53
Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C, (i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the Borrower. At the request of the Eligible
Assignee, within five (5) Business Days after its receipt of such notice, an
authorized officer of the Borrower, upon surrender and cancellation of the
old
Note, shall execute and deliver to the Administrative Agent, at no cost to
the
Borrower, a new Note payable to the order of such Eligible Assignee in an amount
equal to its Commitment after giving effect to such Assignment and Acceptance
and if the assigning Lender has retained a Commitment hereunder, then at its
request, upon surrender and cancellation of the old Note, a new Note payable
to
the order of such assigning Lender in an amount equal to the Commitment retained
by it hereunder (such new Notes shall be dated the effective date of such
Assignment and Acceptance, shall be properly completed and shall otherwise
be in
substantially the form of Exhibit A).
(f) Each
Lender, in accordance with Applicable Law, may sell participations to one or
more banks or other entities (other than the Borrower or any of its Affiliates)
in or to all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments, the Loan owing to it, and the
Note, if any, held by it); provided, however, that (i) such
Lender’s obligations under this Agreement (including its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Notes for all purposes
of
this Agreement, (iv) the Borrower, the Administrative Agent, and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement, (v)
the terms of any such participation shall not restrict such Lender’s ability to
make any amendment or waiver of this Agreement or any Note or such Lender’s
ability to consent to any departure by the Borrower therefrom without the
approval of the participant, except that the approval of the participant may
be
required to the extent that such amendment, waiver or consent would (A) reduce
the principal of, or interest on, the Loan or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, (B)
postpone any date fixed for any payment of principal of, or interest on, the
Loan or any fees or other amounts payable hereunder, or (C) increase the amount
of such Lender’s Commitment, in each case to the extent subject to such
participation, and (vi) unless the Borrower in its sole discretion otherwise
consents, no such participant shall be entitled to receive any greater payment
pursuant to Section 2.09 than such Lender would have been entitled to receive
with respect to the rights assigned to such participant by such Lender except
as
a result of circumstances arising after the date of such participation to the
extent that such circumstances affect other Lenders and participants generally,
and (vii) each participant that is not a United States person (as such term
is
defined in Section 7701(a)(30) of the Code) shall provide to the Administrative
Agent and the Borrower a U.S. Internal Revenue Service Form W-8BEN or W-8ECI,
as
appropriate, or any successor form prescribed by the U.S. Internal Revenue
Service, duly completed and certifying that such participant is fully exempt
from United States withholding taxes with respect to all payments to be made
to
such participant under such participation agreement, or other documents
satisfactory to the Borrower and the Administrative Agent indicating that all
payments to be made to such participant under such participation agreement
are
fully exempt from such withholding taxes, and neither the Borrower nor the
Administrative Agent shall have any obligation to pay to any participant any
taxes, penalties, interest or other expenses, costs and losses incurred or
payable by the Borrower or the
MIAMI/4210166.14
54
Administrative
Agent as a result of the failure of such participant to obtain such additional
duly completed and signed copies of one or the other of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may be required under then-current United States
law or regulations to avoid United States withholding taxes on payments in
respect of all amounts to be received by such participant.
(g) Any
Lender may, in connection with any assignment, transfer, participation, pledge
or financing or proposed assignment, transfer, participation, pledge or
financing pursuant to this Section 8.06, disclose to the assignee, transferee,
participant, pledgee or lender or proposed assignee, transferee, participant,
pledgee or lender any information relating to the Borrower or any of its
Affiliates furnished to such Lender by or on behalf of the Borrower or any
of
its Affiliates; provided, that, prior to any such disclosure, the
assignee, transferee, participant, pledgee or lender or proposed assignee,
transferee, participant, pledgee or lender shall agree to comply with
Section 8.09.
(h) Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
create a security interest in all or any portion of its rights under this
Agreement (including the Loan owing to it and the Note held by it) in favor
of
any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve
Board.
(i) (i) Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time, without approval of
the
Borrower or any of its Subsidiaries, by security, charge or otherwise, encumber
its interest under this Agreement and the other Loan Documents in favor of
one
or more Eligible Assignees, their trustees and/or agents, for the purposes
of
financing all or any portion of the Loan made by it hereunder.
(ii) Promptly
after making such encumbrance or financing, such Lender shall notify the
Borrower in writing of the name, address, and telephone and facsimile numbers
of
each lender to which such Lender’s interest under this Agreement has been
encumbered or who otherwise has provided such financing. Such notice shall
include the names of the account managers or other representatives of the
lenders to whom all written and telephonic communications may be
addressed.
(iii)
After giving the Borrower such initial notice, such Lender shall promptly give
the Borrower notice of any change in the information provided in the initial
notice or any revised notice.
(iv) If
any Lender encumbers its interest under this Agreement as permitted by this
Section 8.06(i) or otherwise finances all or any portion of the Loan made by
it
with a Person that qualifies as an Eligible Assignee, the following provisions
shall apply:
(A)
The
parties hereto, except as provided by the terms of this Agreement, shall not
modify or cancel this Agreement without the prior written consent of the lenders
to whom such encumbrance is given or who otherwise provide such
financing;
MIAMI/4210166.14
55
(B)
The
Borrower and its Subsidiaries shall upon request by such Lender execute (1)
statements certifying that this Agreement is unmodified (or, modified and
stating the nature of the modification), in full force and effect and the
absence or existence (and the nature thereof) of Events of Default hereunder
by
any of the parties hereunder and (2) documents of consent (each, a “Consent”) to
such encumbrance and any assignment to such the lenders to whom such encumbrance
is given or who otherwise provide such financing; provided that the reasonable
third-party costs and expenses incurred by the Borrower or any of its
Subsidiaries in connection with any such request shall be borne by the Lender
or
Lenders making such request; and
(C)
Upon
the receipt of a written request from such Lender or any lender to whom such
encumbrance is given or who otherwise provides such financing, the Borrower
and
its Subsidiaries shall execute, or arrange for the delivery of, such
certificates, opinions (including, without limitation, opinions regarding the
enforceability as against the Borrower of any Consent given by the Borrower
hereunder) and other documents as may be reasonably necessary in order for
such
Lender to consummate any financing or refinancing of its investment in the
Loan
made by it hereunder or any part thereof and will enter into reasonable
agreements with such lenders to whom such encumbrance is given or who otherwise
provide such financing, which agreements will grant certain rights to such
lenders as more fully developed and described in such documents, including
(1)
this Agreement shall not be terminated (except for termination pursuant to
the
terms of this Agreement) without the consent of such lender, which consent
is
not to be unreasonably withheld or delayed, (2) such lenders shall be given
notice of, and the opportunity to cure any breach or default of this Agreement
by the assigning Lender, (3) that if any lender to whom such encumbrance is
given exercises its remedies pursuant to any security documents, then (x) the
Borrower and each of its Subsidiaries shall, at such lender’s request, continue
to perform all of its obligations hereunder, and such lender or its nominee
may
perform in the place of the assigning Lender, and may assign this Agreement
to
another Eligible Assignee in place of the assigning Lender, (y) such lender
shall have no liability under this Agreement except during the period of such
lender’s ownership of the assigning Lender’s Loan hereunder and (z) that the
Borrower and each of its Subsidiaries shall accept performance in accordance
with this Agreement by such lender or its nominee, and (4) that the Borrower
and
its Subsidiaries shall make representations and warranties to such lender as
such lender may reasonably request with regard to (w) the Borrower’s and its
Subsidiaries’ existence, (x) the Borrower’s and its Subsidiaries’ authority to
execute, deliver and perform this Agreement and the other Loan Documents to
which they are a party, (y) the binding nature of the document evidencing the
Borrower’s and its Subsidiaries’ consent to assignment to such lender and this
Agreement and each of the other Loan Documents on the Borrower and its
Subsidiaries, as the case may be, and (z) receipt of regulatory approvals by
the
Borrower and its Subsidiaries with respect to its execution and performance
under this Agreement and the other Loan Documents; provided that the reasonable
third-party costs and expenses incurred by the Borrower or any of its
Subsidiaries in connection with any such request shall be borne by the Lender
or
Lenders requesting such cooperation.
MIAMI/4210166.14
56
(j) The
Borrower shall, and shall cause each of its Subsidiaries to, cooperate, with
each Lender to consummate any proposed pledge, assignment, transfer,
participation or financing of the Loan by such Lender, including, without
limitation, to permit such Lender’s proposed pledgees, assignees, transferees
and lender(s), their agents, representatives, advisors and trustees (i) to
conduct due diligence concerning the Borrower and its Subsidiaries, the Existing
Pipeline and the Project as such Person may request, (ii) to the extent
reasonably available to the Borrower or any of its Subsidiaries, to provide
or
make available to such Person promptly upon such Person’s request therefor, such
agreements, reports, statements, lists of property, accounts, budgets, forecasts
and other due diligence information concerning the Existing Pipeline and the
Project, and, (iii) in connection therewith, to provide reasonable access to
the
appropriate officers, accountants, legal counsel and other parties and
facilities of the Borrower, its Subsidiaries and Affiliates; provided that
the
Lenders shall not be entitled to request such cooperation in respect of more
than three (3) separate and distinct financings; and, provided further, that
the
reasonable unaffiliated third-party costs and expenses incurred by the Borrower
or any of its Subsidiaries in connection with any such due diligence shall
be
borne by the Lender or Lenders requesting such cooperation.
SECTION
8.07. Governing Law; Entire
Agreement. This Agreement, the Negative Pledge and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of
New York, without reference to conflicts of laws (other than Section 5-1401
and
Section 5-1402 of the New York General Obligations Law). This
Agreement, the Notes, and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect
thereto.
SECTION
8.08. Interest. It is the intention of the
parties hereto that the Administrative Agent and each Lender shall conform
strictly to usury laws applicable to it, if any. Accordingly, if the
transactions with the Administrative Agent or any Lender contemplated hereby
would be usurious under Applicable Law, if any, then, in that event,
notwithstanding anything to the contrary in the Notes, this Agreement or any
other agreement entered into in connection with this Agreement or the Notes,
it
is agreed as follows: (a) the aggregate of all consideration
which constitutes interest under Applicable Law that is contracted for, taken,
reserved, charged or received by the Administrative Agent or such Lender, as
the
case may be, under the Notes, this Agreement or under any other agreement
entered into in connection with this Agreement or the Notes shall under no
circumstances exceed the maximum amount allowed by such Applicable Law and
any
excess shall be canceled automatically and, if theretofore paid, shall at the
option of the Administrative Agent or such Lender, as the case may be, be
applied on the principal amount of the Obligations owed to the Administrative
Agent or such Lender, as the case may be, by the Borrower or refunded by the
Administrative Agent or such Lender, as the case may be, to the Borrower, and
(b) in the event that the maturity of any Loan or other Obligation payable
to the Administrative Agent or such Lender, as the case may be, is accelerated
or in the event of any permitted prepayment, then such consideration that
constitutes interest under law applicable to the Administrative Agent or such
Lender, as the case may be, may never include more than the maximum amount
allowed by such Applicable Law and excess interest, if any, to the
Administrative Agent or such Lender, as the case may be, provided for in this
Agreement or otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall, at the option of
the
Administrative Agent or such Lender, as the case may be, be credited by the
Administrative Agent or such Lender, as the case may be, on the
MIAMI/4210166.14
57
principal
amount of the Obligations owed to the Administrative Agent or such Lender,
as
the case may be, by the Borrower or refunded by the Administrative Agent or
such
Lender, as the case may be, to the Borrower.
SECTION
8.09. Confidentiality.
(a) Each
Lender agrees that it will not disclose without the prior written consent of
the
Borrower (other than to its employees, auditors, advisors or counsel or to
another Lender if the disclosing Lender or the disclosing Lender’s holding or
parent company in its sole discretion determines that any such party should
have
access to such information) any information with respect to the Borrower or
its
Subsidiaries which is furnished pursuant to this Agreement or any other Loan
Document and which is designated by the Borrower to the Lenders in writing
as
confidential; provided that any Lender may disclose any such information
(i) as has become generally available to the public other than as a result
of a violation of this Agreement, (ii) as is required in any report,
statement or testimony submitted to any municipal, state or federal regulatory
body having or claiming to have jurisdiction over such Lender or its Affiliates
or to the Federal Reserve Board or the Federal Deposit Insurance Corporation
or
similar organizations (whether in the United States or elsewhere), (iii) as
is required or appropriate in response to any summons or subpoena or in
connection with any litigation, (iv) in order to comply with any law,
order, regulation or ruling applicable to such Lender (including, without
limitation, any law, order, regulation or ruling of the SEC or the FERC), (v)
the disclosure of any of this Agreement, the Notes, the Negative
Pledge and the Support Agreement and/or any summary or description of the terms
or provisions hereof or thereof by Pipeline Funding Company, LLC or its
Affiliates to the Florida Public Service Commission, (vi) to any rating
agency on a confidential basis, and (vii) to any prospective assignee,
participant, pledgee or other transferee or lender (or any of their agents,
trustees, advisors or representatives) in connection with any contemplated
assignment, participation, pledge or other transfer or financing of any of
the
Loan or any of the Notes or any interest therein by such Lender (including,
without limitation any Person (or their agents or trustees) providing financing
to a Lender of all or any portion of the Loan made by it hereunder); provided
that such prospective assignee, participant, pledgee or other transferee or
lender executes an agreement with the Borrower containing provisions
substantially identical to those contained in this Section 8.09(a); and
provided further that, in the event the Administrative Agent or any of the
Lenders is requested or required by any legal or regulatory authority pursuant
to any summons or subpoena or in connection with any litigation to disclose
any
confidential information, the Administrative Agent or such Lender or Lenders
shall, to the extent permitted by Applicable Law, promptly notify the Borrower
of such request or requirement prior to disclosure, if permitted by Applicable
Law, so that the Borrower may seek an appropriate protective order and/or waive
compliance with the terms of this Section 8.09(a). In the event that a
protective order or other remedy is not obtained, or the Borrower waives
compliance with the provisions hereof, the Administrative Agent and/or the
applicable Lender or Lenders agrees to furnish only that portion of the
confidential information that it reasonably determines, in consultation with
its
counsel, is consistent with the scope of the subpoena or demand, and to exercise
reasonable efforts to obtain assurance that confidential treatment will be
accorded such confidential information.
(b) The
Borrower agrees that it will, and will cause each of its Subsidiaries
to, not disclose without the prior written consent of the
Administrative Agent and the applicable
MIAMI/4210166.14
58
Lender
or Lenders (other than to its employees, auditors or counsel if the Borrower
in
its sole discretion determines that any such party should have access to such
information) any information with respect to the Administrative Agent or the
Lenders which is furnished pursuant to this Agreement or any other Loan Document
and which is designated by the Administrative Agent or the applicable Lender
or
Lenders to the Borrower in writing as confidential or any information with
respect to this Agreement or any other Loan Document or any of the terms or
provisions hereof or thereof; provided that the Borrower or its Subsidiary
may
disclose any such information (i) as has become generally available to the
public other than as a result of a violation of this Agreement, (ii) as is
required in any report, statement or testimony submitted to any municipal,
state
or federal regulatory body having or claiming to have jurisdiction over the
Borrower or such Subsidiary, (iii) as is required or appropriate in
response to any summons or subpoena or in connection with any litigation, (iv)
to any rating agency on a confidential basis, or (v) in order to comply
with any law, order, regulation or ruling applicable to the Borrower or such
Subsidiary (including, without limitation, any law, order, regulation or ruling
of the SEC or the FERC); provided that, in the event the Borrower or any of
its
Subsidiaries is requested or required by any legal or regulatory authority
pursuant to any summons or subpoena or in connection with any litigation to
disclose any confidential information, the Borrower shall, to the extent
permitted by Applicable Law, promptly notify the Administrative Agent and the
Lenders of such request or requirement prior to disclosure so that the
Administrative Agent and/or the applicable Lender or Lenders may seek an
appropriate protective order and/or waive compliance with the terms of this
Section 8.09(b). In the event that a protective order or other remedy is not
obtained, or the Administrative Agent and/or the applicable Lender or Lenders
waive compliance with the provisions hereof, the Borrower agrees, and agrees
to
cause its Subsidiaries, to furnish only that portion of the confidential
information that it reasonably determines, in consultation with its counsel,
is
consistent with the scope of the subpoena or demand, and to exercise reasonable
efforts to obtain assurance that confidential treatment will be accorded such
confidential information.
(c) Each
of the Lenders, the Borrower and the Administrative Agent shall
not, and hereby agrees to cause each of its respective Affiliates not to, make
or cause the publication of any press release or other announcement with respect
to this Agreement, the other Loan Documents or any of the transactions
contemplated hereby or thereby, or otherwise make any disclosures relating
thereto, without the prior written consent of the other parties, such consent
not to be unreasonably withheld or delayed; provided, however, that
such consent shall not be required in the case of disclosure of
any of this Agreement, the Notes, the Negative Pledge and the Support
Agreement and/or any summary or description of the terms or provisions hereof
or
thereof by Pipeline Funding Company, LLC or its Affiliates to the Florida Public
Service Commission or where such release or announcement is required by
Applicable Law (including, without limitation, any filing required to be made
or
information required to be furnished pursuant to applicable rules and
regulations of the SEC and the FERC) or the rules or regulations of a securities
exchange, in which event the party so required to issue such release or
announcement shall use good faith, commercially reasonable efforts, wherever
possible, to furnish an advance copy of the proposed release to the other
parties at least one (1) Business Day prior to the proposed
release.
SECTION
8.10. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which
MIAMI/4210166.14
59
when
so executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier or electronic
facsimile shall be effective as delivery of a manually executed counterpart
of
this Agreement.
SECTION
8.11. Survival of Representations, Warranties and Certain
Obligations. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the representations and warranties of
the
Borrower under Article IV and all obligations of the Borrower under Section
2.09
(including without limitation the Borrower’s indemnification obligations under
Section 2.09(d)), and Section 8.04 (including without limitation the Borrower’s
indemnification obligations under Section 8.04(b)), shall survive the
termination of the Commitments and this Agreement and the payment in full of
all
amounts due hereunder and under the Notes. Without prejudice to the
survival of any other agreement of the Lenders hereunder, each Lender’s
obligations under Section 7.07 shall survive the termination of its respective
Commitment, the total Commitments, and this Agreement and the payment in full
of
all amounts due hereunder and under the Notes.
SECTION
8.12. Severability. Any provision hereof
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of any provision in any other
jurisdiction.
SECTION
8.13. WAIVER OF JURY TRIAL. THE
BORROWER, THE ADMINISTRATIVE AGENT, AND THE LENDERS HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY, IRREVOCABLY, AND UNCONDITIONALLY WAIVE ALL RIGHTS
TO
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, COUNTERCLAIM, OR OTHER LITIGATION
THAT RELATES TO OR ARISES OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR
THE ACTS OR OMISSIONS OF THE ADMINISTRATIVE AGENT, OR ANY LENDER IN THE
ENFORCEMENT OF ANY OF THE TERMS OR PROVISIONS OF THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR OTHERWISE WITH RESPECT HERETO OR THERETO. THE
PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE
AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT.
SECTION
8.14. Submission to Jurisdiction. ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE
UNITED STATES OF AMERICA SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT
FROM
ANY THEREOF, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR BY THE
ACCEPTANCE OF THIS AGREEMENT, EACH PARTY TO THIS AGREEMENT HEREBY SUBMITS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THOSE
COURTS. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
MIAMI/4210166.14
60
JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. EACH PARTY
TO THIS AGREEMENT WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY APPLICABLE
LAW.
SECTION
8.15. USA Patriot Act
Notice. Each Lender and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant to
the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and
record information that identifies the Borrower, which information includes
the
name and address of the Borrower and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Borrower
in
accordance with the Act.
[The
signatures follow.]
MIAMI/4210166.14
61
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers thereunto duly authorized, as of the date first above
written.
BORROWER:
CITRUS
CORP.
By:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Vice
President and Treasurer
STATEOF
___________________ )
) ss.
COUNTY
OF_________________ )
Personally
appeared before me, the undersigned, a Notary Public in and for said County,
______________________, to me known and known to me, who, being by me first
duly
sworn, declared that he/she is the __________________ of Citrus Corp., and
that
being duly authorized he/she did execute the foregoing instrument before me
for
the purposes set forth therein.
IN
WITNESS WHEREOF, I have hereto set my hand and official seal at ______________,
______________, this ____ day of ____________, 20____
________________________________
Notary
Public
My
Commission Expires:
ADMINISTRATIVE
AGENT:
PIPELINE
FUNDING COMPANY, LLC
By:
Name:
Title:
STATEOF
___________________ )
) ss.
COUNTY
OF_________________ )
Personally
appeared before me, the undersigned, a Notary Public in and for said County,
______________________, to me known and known to me, who, being by me first
duly
sworn, declared that he/she is the __________________ of Pipeline Funding
Company, LLC, and that being duly authorized he/she did execute the foregoing
instrument before me for the purposes set forth therein.
IN
WITNESS WHEREOF, I have hereto set my hand and official seal at ______________,
______________, this ____ day of ____________, 20____
________________________________
Notary
Public
My
Commission Expires:
Commitment LENDER:
$500,000,000.00
PIPELINE FUNDING COMPANY, LLC
By:
Name:
Title:
Address for Notices:
|
|
Pipeline
Funding Company, LLC
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇, President
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
STATEOF
___________________ )
) ss.
COUNTY
OF_________________ )
Personally
appeared before me, the undersigned, a Notary Public in and for said County,
______________________, to me known and known to me, who, being by me first
duly
sworn, declared that he/she is the __________________ of Pipeline Funding
Company, LLC, and that being duly authorized he/she did execute the foregoing
instrument before me for the purposes set forth therein.
IN
WITNESS WHEREOF, I have hereto set my hand and official seal at ______________,
______________, this ____ day of ____________, 20____
________________________________
Notary
Public
My
Commission Expires:
Signature
page to Construction and Term Loan Agreement
(Citrus
Corp.)
MIAMI/4210166.14