FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT DATED AS OF SEPTEMBER 29, 2005 BY AND AMONG SOUTHERN UNION COMPANY as the Borrower AND THE BANKS NAMED HEREIN as the Banks AND JPMORGAN CHASE BANK, N.A. as the Administrative Agent AND BANK OF...
Exhibit
10.1
FOURTH
AMENDED AND RESTATED
DATED
AS
OF SEPTEMBER 29, 2005
BY
AND
AMONG
SOUTHERN
UNION COMPANY
as
the
Borrower
AND
THE
BANKS
NAMED HEREIN
as
the
Banks
AND
JPMORGAN
CHASE BANK, N.A.
as
the
Administrative Agent
AND
BANK
OF
AMERICA, NA
as
the
Syndication Agent
AND
▇.▇.
▇▇▇▇▇▇ SECURITIES INC. &
WACHOVIA
CAPITAL MARKETS, LLC
as
the
Co-Book Runners and Co-Lead Arrangers
FOURTH
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Reference
is hereby made to that certain Third Amended and Restated Revolving Credit
Agreement dated as of May 28, 2004, executed by and between SOUTHERN UNION
COMPANY, a corporation organized under the laws of Delaware (the “Borrower”),
the financial institutions listed on the signature pages of said Revolving
Credit Agreement (each of said financial institutions now or hereafter a
party
to said Revolving Credit Agreement being hereinafter referred to collectively
as
“Banks” and individually as a “Bank”), and JPMORGAN CHASE BANK, a New York
banking corporation association now known as JPMORGAN CHASE BANK, N.A., a
national banking association (“JPMorgan”), in its capacity as agent (the
“Agent”) for the Banks. Said Third Amended and Restated Revolving Credit
Agreement has been previously amended by that certain First Amendment to
Third
Amended and Restated Revolving Credit Agreement dated November 9, 2004, executed
by and among the Borrower, the Agent and the Majority Banks, and said Third
Amended and Restated Revolving Credit Agreement, as previously amended, is
referred to herein as the “Original Agreement.”
As
a
result of certain discussions between the Borrower, the Agent and the Banks,
the
parties to the Original Agreement now desire to amend and restate the Original
Agreement in its entirety. Accordingly, the Original Agreement is hereby
amended
and restated in its entirety to hereafter be and read as follows:
SOUTHERN
UNION COMPANY, a corporation organized under the laws of Delaware (hereinafter
called the “Borrower”), the financial institutions listed on the signature pages
hereof (collectively, the “Banks” and individually, a “Bank”), JPMORGAN CHASE
BANK, N.A., a national banking association (“JPMorgan”), in its capacity as
administrative agent (the “Agent”) for the Banks hereunder, and BANK OF AMERICA,
NA, in its capacity as syndication agent (“Syndication Agent”) for the Banks
hereunder, hereby agree as follows:
CERTAIN
DEFINITIONS.
As used
in this Agreement, the following terms shall have the following
meanings:
“Additional
Costs”
shall
mean, with respect to any Rate Period in the case of any Eurodollar Rate
Loan,
all costs, losses or payments, as determined by any Bank in its sole and
absolute discretion (which determination shall be conclusive in the absence
of
manifest error) that such Bank or its Domestic Lending Office or its Eurodollar
Lending Office does, or would, if such Eurodollar Rate Loan were funded during
such Rate Period by the Domestic Lending Office or the Eurodollar Lending
Office
of such Bank, incur, suffer or make by reason of:
(a) any
and
all present or future taxes (including, without limitation, any interest
equalization tax or any similar tax on the acquisition of debt obligations,
or
any stamp or registration tax or duty or official or sealed papers tax),
levies,
imposts or any other charge of any nature whatsoever imposed by any taxing
authority on or with regard to any aspect of the transactions contemplated
by
this Agreement, except such taxes as may be measured by the overall net income
of such Bank or its Domestic Lending Office or its Eurodollar Lending Office
and
imposed by the jurisdiction, or any political subdivision or taxing authority
thereof, in which such Bank's Domestic Lending Office or its Eurodollar Lending
Office is located; and
(b) any
increase in the cost to such Bank of agreeing to make or making, funding
or
maintaining any Eurodollar Rate Loan because of or arising from (i) the
introduction of, or any change (other than any change by way of imposition
or
increase of reserve requirements, in the case of any Eurodollar Rate Loan,
included in the Eurodollar Rate Reserve Percentage) in or in the interpretation
or administration of, any law or regulation or (ii) the compliance with any
request from any central bank or other governmental authority (whether or
not
having the force of law).
“Additional
Offering”
shall
mean, collectively, the previous issuance, offering and sale in any offering
or
issuance of capital stock, Equity-Preferred Securities or any other equity
interests in the Borrower (to the extent permitted under Section 10.5), where
all net cash proceeds thereof were applied to finance or refinance a portion
of
the acquisition costs for the Cross Country Acquisition.
“Affiliate”
shall
mean any Person controlling, controlled by or under common control with any
other Person. For purposes of this definition, “control” (including “controlled
by” and “under common control with”)
means
the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the
ownership of voting securities or otherwise. If any Person shall own, directly
or indirectly, beneficially or of record, twenty percent (20%) or more of
the
voting equity (whether outstanding capital stock, partnership interests or
otherwise) of another Person, such Person shall be deemed to be an
Affiliate.
“Agent”
shall
have the meaning set forth in the preamble hereto.
“Agreement”
shall
mean this Revolving Credit Agreement, as the same may be amended, modified,
supplemented or restated from time to time.
“Alternate
Base Rate”
shall
mean, for any day, a rate, per annum (rounds upward to the nearest 1/16 of
1%)
equal to: (a) the greatest of (i) the Prime Rate (computed on the basis of
the
actual number of days elapsed over a year of 365 or 366 days, as the case
may
be) in effect on such day; or (ii) the Federal Funds Rate in effect for such
day
plus
one-half
of one percent (1/2%) (computed on the basis of the actual number of days
elapsed over a year of 360 days).
“Alternate
Base Rate Loan”
shall
mean any Loan which bears interest at the Alternate Base Rate.
“Applicable
Lending Office”
shall
mean, with respect to each Bank, such Bank's (a) Domestic Lending
Office in
the case of an Alternate Base Rate Loan; and (b) Eurodollar Lending Office
in
the case of a Eurodollar Rate Loan.
“Approved
Fund”
means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a)
a
Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity
that administers or manages a Bank.
“Assignment
and Acceptance”
shall
have the meaning set forth in Section 13.13.
“Bank”
shall
have the meaning set forth in the preamble hereto and shall include the Agent,
in its individual capacity.
“Borrower”
shall
have the meaning set forth in the preamble hereto.
“Borrowing
Date”
shall
mean a date upon which the Borrower has requested a Loan is to be made in
a
Notice of Borrowing delivered pursuant to Section 2.1.
“Business
Day”
shall
mean a day when the Agent is open for business, provided that, if the
applic-able Business Day relates to any Eurodollar Rate Loan, it shall mean
a
day when the Agent is open for business and banks are open for business in
the
London interbank market and in New York City.
“Capital
Lease”
shall
mean any lease of any Property (whether real, personal, or mixed) which,
in
conformity with GAAP, is accounted for as a capital lease on the balance
sheet
of the lessee.
“Capitalized
Lease Obligations”
shall
mean, for the Borrower and its Subsidiaries, any of their obligations that
should, in accordance with GAAP, be recorded as Capital Leases.
“Cash
Interest Expense”
shall
mean, for any period, total interest expense to the extent paid in cash
(including the interest component of Capitalized Lease Obligations and
capitalized interest and all dividends and interest paid on or with respect
to
Borrower’s Structured Securities) of the Borrower and any Subsidiary for such
period all as determined in conformity with GAAP.
“CCE
Acquisition”
shall
mean CCE Acquisition LLC, a Delaware limited liability company formed by
the
Borrower for the purpose of ultimately owning and holding 50% of all issued
and
outstanding equity interest in CCE Holdings.
“CCE
Group”
means
CCE Holdings and its Subsidiaries.
“CCE
Holdings”
shall
mean CCE Holdings LLC, a Delaware limited liability company.
“CCE
Holdings LLC Agreement”
shall
mean the Limited Liability Company Agreement of CCE Holdings dated as June
18,
2004, as amended from time to time, among the members of CCE
Holdings.
“Closing
Date”
shall
mean September 29, 2005.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended, as now or hereafter in
effect, together with all regulations, rulings and interpretations thereof
or
thereunder issued by the Internal Revenue Service.
“Commitment”
shall
have the meaning set forth in Section 2.1(a) and “Commitments” shall mean,
collectively, the Commitments of all of the Banks.
“Consolidated
Net Income”
shall
mean for any period the consolidated net income of the Borrower and all
Subsidiaries, determined in accordance with GAAP, for such period.
“Consolidated
Net Worth”
shall
mean, for any period for the Borrower and all Subsidiaries, (a) the sum of
the
following consolidated items, all determined in accordance with GAAP and
without
duplication: the consolidated stockholders' equity of all classes of stock
(whether common, preferred, mandatorily convertible preferred or preference)
of
the Borrower and its Subsidiaries; the Equity-Preferred Securities; the other
preferred securities of the Borrower’s Subsidiaries not constituting
Equity-Preferred Securities; and the minority interests in the Borrower’s
Subsidiaries, less
(b) the
sum of the following consolidated items, without duplication: the book amount
of
any deferred charges (including, but not limited to, unamortized debt discount
and expenses, organization expenses, experimental and development expenses,
but
excluding prepaid expenses) that are not permitted to be recovered by the
Borrower or its applicable Subsidiaries under rates permitted under rate
tariffs, plus
(c) the
sum of all amounts contributed or paid by the Borrower to the Rabbi Trusts
for
purposes of funding the same, but only to the extent such contributions and
payments are required to be deducted from the consolidated stockholders’ equity
of the Borrower and its Subsidiaries in accordance with GAAP.
“Consolidated
Total Capitalization”
shall
mean at any time the sum of: (a) Consolidated Net Worth at such time;
plus
(b) the
principal amount of outstanding Debt (other than Equity-Preferred Securities
(to
the extent included in Debt of the Borrower and its Subsidiaries) not to
exceed
10% of Consolidated Total Capitalization [calculated for purposes of this
clause
without reference to any Equity-Preferred Securities]) of the Borrower and
its
Subsidiaries.
“Consolidated
Total Indebtedness”
shall
mean all Debt of the Borrower and all Subsidiaries including any current
maturities thereof, plus,
without
duplication, all amounts outstanding under Standby Letters of Credit and,
without duplication, all Facility Letter of Credit Obligations, less,
without
duplication and to the extent included in Debt of the Borrower and its
Subsidiaries, Equity-Preferred Securities not to exceed 10% of Consolidated
Total Capitalization (calculated for purposes of this clause without reference
to any Equity-Preferred Securities).
“Cross
Country”
shall
mean CrossCountry Energy, LLC, a Delaware limited liability
company.
“Cross
Country Acquisition”
shall
mean the acquisition by CCE Holdings of 100% of all issued and outstanding
equity interest in Cross Country in accordance with the Cross Country
Acquisition Agreement, so long as such acquisition is in substantial compliance
with the following specified terms:
(a) immediately
after the consummation of such acquisition, Cross Country is a wholly-owned
Subsidiary of CCE Holdings;
(b) the
aggregate consideration paid for all equity interest in Cross Country shall
be
approximately $2,450,000,000 (which amount includes the assumption of
approximately $461,000,000 of outstanding Debt of Transwestern Pipeline Company
and is subject to customary purchase price adjustment as set forth in the
Cross
Country Acquisition Agreement);
(c) neither
the Borrower nor any of its Subsidiaries shall have, incur or assume any
liability with respect to any Debt of Cross Country and its Subsidiaries
immediately after the consummation of such acquisition; and
(d) all
material requisite approvals and consents from any Governmental Authority
with
respect to such acquisition shall have been received by the Borrower and
its
Subsidiaries in a form acceptable to the Agent.
“Cross
Country Acquisition Agreement”
shall
mean that certain Purchase Agreement dated as of June 24, 2004 and amended
by
Amendment No. 1 dated as of September 1, 2004, by and among Enron Operations
Services, LLC, Enron Transportation Services, LLC, EOC Preferred, L.L.C.
and
Enron Corp., as sellers, and CCE Holdings, as purchaser, as the same may
hereafter be amended (the form of any such amendment to be approved by the
Agent, such approval not to be unreasonably withheld, conditioned or
delayed).
“Cross
Country Acquisition Closing Date”
means
the date on which the Cross Country Acquisition is consummated.
“Debt”
means
(without duplication), for any Person indebtedness for money borrowed determined
in accordance with GAAP but in any event including, (a) indebtedness of such
Person for borrowed money or arising out of any extension of credit to or
for
the account of such Person (including, without limitation, extensions of
credit
in the form of reimbursement or payment obligations of such Person relating
to
letters of credit issued for the account of such Person) or for the deferred
purchase price of property or services, except indebtedness which is owing
to
trade creditors in the ordinary course of business and which is due within
thirty (30) days after the original invoice date; (b) indebtedness of the
kind
described in clause (a) of this definition which is secured by (or for which
the
holder of such Debt has any existing right, contingent or otherwise, to be
secured by) any Lien upon or in Property (including, without limitation,
accounts and contract rights) owned by such Person, whether or not such Person
has assumed or become liable for the payment of such indebtedness or
obligations; (c) Capitalized Lease Obligations of such Person; (d) obligations
under direct or indirect Guaranties other than Guaranties issued by the Borrower
covering obligations of the Southern Union Trusts under the Structured
Securities. Whenever the definition of Debt is being used herein in order
to
compute a financial ratio or covenant applicable to the consolidated business
of
the Borrower and its Subsidiaries, Debt which is already included in such
computation by virtue of the fact that it is owed by a Subsidiary of the
Borrower will not also be added by virtue of the fact that the Borrower has
executed a guaranty with respect to such Debt that would otherwise require
such
guaranteed indebtedness to be considered Debt hereunder. Nothing contained
in
the foregoing sentence is intended to limit the other provisions of this
Agreement which contain limitations on the amount and types of Debt which
may be
incurred by the Borrower or its Subsidiaries.
“Debtor
Laws”
shall
mean all applicable liquidation, conservatorship, bankruptcy, moratorium,
arrangement, receivership, insolvency, reorganization, or similar laws, or
general equitable principles from time to time in effect affecting the rights
of
creditors generally.
“Default”
shall
mean any of the events specified in Section 11, whether or not there has
been
satisfied any requirement in connection with such event for the giving of
notice, or the lapse of time, or the happening of any further condition,
event
or act.
“Dollars”
and
“$”
shall
mean lawful currency of the United States of America.
“Domestic
Lending Office”
shall
mean, with respect to each Bank, the office of such Bank located at its “Address
for Notices” set forth below the name of such Bank on the signature pages hereof
or such other office of such Bank as such Bank may from time to time specify
to
the Borrower and the Agent.
“EBDIT”
shall
mean for any period the sum of (a) consolidated net earnings for the Borrower
and its Subsidiaries (excluding for all purposes hereof all extraordinary
items), plus
(b) each
of the following to the extent actually deducted in deriving such net earnings:
(i) depreciation and amortization expense; (ii) interest expense; (iii) federal
and state income taxes; and (iv) dividends charged against income on or with
respect to Structured Securities, in each case before adjustment for
extraordinary items, as shown in the financial statements of
Borrower
and
its
Subsidiaries referred to in Section 7.2 hereof (excluding for all
purposes
hereof all extraordinary items), and determined in accordance with GAAP,
and (c)
plus
(or
minus,
if
applicable) the net amount of non-cash deductions from (or additions to,
if
applicable) such net earnings for such period attributable to fluctuations
in
the market price(s) of securities which the Borrower is obligated to purchase
in
future periods under any of the Rabbi Trusts, but only to the extent that
such
deductions (or additions, if applicable) are required to be taken in accordance
with GAAP.
“Eligible
Assignee”
shall
mean: (i) any Bank, or any Affiliate of any Bank, any Approved Fund, or any
institution 100% of the voting stock of which is directly, or indirectly
owned
by such Bank or by the immediate or remote parent of such Bank; or (ii) a
commercial bank, a foreign branch of a United States commercial bank, a domestic
branch of a foreign commercial bank or other financial institution having
in
each case assets in excess of $1,000,000,000.00.
“Environmental
Law”
shall
mean (a) the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (as amended by the Superfund Amendments and Reauthorization Act
of
1986, 42 U.S.C.A. § 9601 et
seq.),
as
amended from time to time, and any and all rules and regulations issued or
promulgated thereunder (“CERCLA”); (b) the Resource Conservation and Recovery
Act (as amended by the Hazardous and Solid Waste Amendment of 1984, 42 U.S.C.A.
§ 6901 et
seq.),
as
amended from time to time, and any and all rules and regulations promulgated
thereunder (“RCRA”); (c) the Clean Air Act, 42 U.S.C.A. § 7401 et
seq.,
as
amended from time to time, and any and all rules and regulations promulgated
thereunder; (d) the Clean Water Act of 1977, 33 ▇.▇.▇▇ § 1251 et
seq.,
as
amended from time to time, and any and all rules and regulations promulgated
thereunder; (e) the Toxic Substances Control Act, 15 U.S.C.A. § 2601
et seq.,
as
amended from time to time, and any and all rules and regulations promulgated
thereunder; or (f) any other federal or state law, statute, rule, or emulation
enacted in connection with or relating to the protection or regulation of
the
environment (including, without limitation, those laws, statutes, rules,
and
regulations regulating the disposal, removal, production, storing, refining,
handling, transferring, processing, or transporting of Hazardous Materials)
and
any rules and regulations issued or promulgated in connection with any of
the
foregoing by any governmental authority, and “Environmental
Laws”
shall
mean each of the foregoing.
“EPA”
shall
mean the Environmental Protection Agency, or any successor
organization.
“Equity-Preferred
Securities”
means
(i) Debt, preferred equity or any other securities that are mandatorily
convertible by the issuer thereof at a date certain, without cash payment
by the
issuer, into common shares of stock of the Borrower or (ii) any other securities
(A) that are issued by the Borrower or any Subsidiary, (B) that are not subject
to mandatory redemption at any time, directly or indirectly, (C) that are
perpetual or mature not less than 30 years from the date of issuance, (D)
the
Debt component, if any, issued in connection therewith, including any guaranty,
is subordinate in right of payment to all other unsecured and unsubordinated
Debt of the issuer of such Debt component (including any such guaranty, if
applicable), and (E) the terms of which permit the issuer thereof to defer
at
any time, without any additional payment or premium, the payment of any and
all
interest and/or distributions thereon, as applicable, to a date occurring
after
the Maturity Date.
“ERISA”
shall
mean the Employee Retirement Income Security Act of 1974, as amended from
time
to time, and all rules, regulations, rulings and interpretations thereof
issued
by the Internal Revenue Service or the Department of Labor
thereunder.
“Eurocurrency
Liabilities”
shall
have the meaning assigned to that term in Regulation D of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
“Eurodollar
Lending Office”
shall
mean, with respect to each Bank, the office of such Bank located at its “Address
for Notices” set forth below the name of such Bank on the signature pages
hereof, or such other office of such Bank as such Bank may from time to time
specify to the Borrower and the Agent.
“Eurodollar
Rate”
shall
mean with respect to the applicable Rate Period in effect for each Eurodollar
Rate Loan, the sum of (a) the quotient obtained by dividing (i) the rate
appearing on Page 3750 of the Dow ▇▇▇▇▇ Market Service (or on any successor
or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided
on
such page of such Service, as determined by the
Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Rate Period, as the rate for dollar deposits with a maturity comparable to
such
Rate Period (or in the event that such rate quote is not available at such
time
for any reason, then utilizing the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Rate Period are offered by the principal
London office of the Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Rate Period) by (ii) a percentage equal
to
100% minus the Eurodollar Rate Reserve Percentage for such Rate Period,
plus
(b) an
additional percentage per annum changing with the rating of the Borrower’s
unsecured, non-credit enhanced Senior Funded Debt and determined in accordance
with the following grid:
|
Rating
of the Borrower’s unsecured,
non-credit enhanced Senior
Funded Debt
|
Additional
Percentage Per Annum
|
|
Equal
to or greater than A3 by ▇▇▇▇▇’▇ Investor Service, Inc. and
equal to or greater than A- by Standard and Poor’s Ratings Group
|
0.325%
|
|
Baa1
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BBB+ by Standard and Poor’s Ratings Group
|
0.400%
|
|
Baa2
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BBB by Standard and Poor’s Ratings Group
|
0.475%
|
|
Baa3
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BBB- by Standard and Poor’s Ratings Group
|
0.625%
|
|
Ba1
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BB+ by Standard and Poor’s Ratings Group
|
1.000%
|
|
Less
than Ba1 by ▇▇▇▇▇’▇ Investor Service, Inc. and
less than BB+ by Standard and Poor’s Ratings Group
|
1.250%
|
Notwithstanding
the foregoing provisions, in the event that ratings of the Borrower’s unsecured,
non-credit enhanced Senior Funded Debt under Standard & Poor’s Ratings Group
and under ▇▇▇▇▇’▇ Investor Service, Inc. fall within different rating categories
which are not functional equivalents, the Eurodollar Rate shall be based
on the
higher of such ratings if there is only one category differential between
the
functional equivalents of such ratings, and if there is a two category
differential between the functional equivalents of such ratings, the component
of pricing from the grid set forth above shall be based on the rating category
which is then in the middle of or between the two category ratings which
are
then in effect, and if there is greater than a two category differential
between
the functional equivalents of such ratings, the component of pricing from
the
grid set forth above shall be based on the rating category which is then
one
rating category above the lowest of the two category ratings which are then
in
effect. Additionally, in the event that Borrower withdraws from having its
unsecured, non-credit enhanced Senior Funded Debt being rated by ▇▇▇▇▇’▇
Investor Service, Inc. or Standard and Poor’s Ratings Group, so that one or both
of such ratings services fails to rate the Borrower’s unsecured, non-credit
enhanced Senior Funded Debt, the component of pricing from the grid set forth
above for purposes of determining the applicable Eurodollar Rate for all
Rate
Periods commencing thereafter shall be 1.250% until such time as Borrower
subsequently causes its unsecured, non-credit enhanced Senior Funded Debt
to be
rated by both of said ratings services.
“Eurodollar
Rate Loan”
shall
mean any Loan that bears interest at the Eurodollar Rate.
“Eurodollar
Rate Reserve Percentage”
of the
Agent for any Rate Period for any Eurodollar Rate Loan shall mean the reserve
percentage applicable during such Rate Period (or if more than one such
percentages shall be so applicable, the daily average of such percentages
for
those days in such Rate Period during which any such
percentage
shall be so applicable) under regulations issued from time to time by the
Board
of Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without limitation, any emergency,
supplemental, or other marginal reserve requirement) for member banks of
the
Federal Reserve System with deposits exceeding $1,000,000,000 with respect
to
liabilities or assets consisting of or including Eurocurrency Liabilities
having
a term equal to such Rate Period.
“Event
of Default”
shall
mean any of the events specified in Section 11, provided that
there
has been satisfied any requirement in connection with such event for the
giving
of notice, or the lapse of time, or the happening of any further condition,
event or act.
“Expiration
Date”
shall
mean the last day of a Rate Period.
“Facility
Letter(s) of Credit”
shall
mean, in the singular form, any Standby Letter of Credit issued by an Issuing
Bank for the account of the Borrower pursuant to Section 3 and, in the plural
form, all such Standby Letters of Credit issued for the account of the
Borrower.
“Facility
Letter of Credit Fee Percentage”
shall
mean a fee expressed as a percent per annum for all periods equal to a
percentage per annum changing with the rating of the Borrower’s unsecured,
non-credit enhanced Senior Funded Debt and determined in accordance with
the
following grid:
|
Rating
of the Borrower’s unsecured,
non-credit enhanced Senior Funded Debt
|
Additional
Percentage Per Annum
|
|
Equal
to or greater than A3 by ▇▇▇▇▇’▇ Investor Service, Inc. and
equal to or greater than A- by Standard and Poor’s Ratings Group
|
0.325%
|
|
Baa1
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BBB+ by Standard and Poor’s Rating
|
0.400%
|
|
Baa2
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BBB by Standard and Poor’s Rating Group
|
0.475%
|
|
Baa3
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BBB- by Standard and Poor’s Rating Group
|
0.625%
|
|
Ba1
▇▇▇▇▇’▇ Investor Service, Inc. or
BB+ by Standard and Poor’s Rating Group
|
1.000%
|
|
Less
than Ba1 by ▇▇▇▇▇’▇ Investor Service, Inc. and
less than BB+ by Standard and Poor’s Rating Group
|
1.250%
|
Notwithstanding
the foregoing provisions, in the event that ratings of the Borrower’s unsecured,
non-credit enhanced Senior Funded Debt under Standard & Poor’s Ratings Group
and under ▇▇▇▇▇’▇ Investor Service, Inc. fall within different rating categories
which are not functional equivalents, the Facility Letter of Credit Fee
Percentage shall be based on the higher of such ratings if there is only
one
category differential between the functional equivalents of such ratings,
and if
there is a two category differential between the functional equivalents of
such
ratings, the component of pricing from the grid set forth above shall be
based
on the rating category which is then in the middle of or between the two
category ratings which are then in effect, and if there is greater than a
two
category differential between the functional equivalents of such ratings,
the
component of pricing from the grid set forth above shall be based on the
rating
category which is then one rating category above the lowest of the two category
ratings which are then in effect. Additionally, in the event that Borrower
withdraws from having its unsecured, non-credit enhanced Senior Funded Debt
being rated by ▇▇▇▇▇’▇ Investor Service, Inc. or Standard and
Poor’s
Ratings Group, so that one or both of such ratings services fails to rate
the
Borrower’s unsecured, non-credit enhanced Senior Funded Debt, the component of
pricing from the grid set forth above for purposes of determining the applicable
Facility Letter of Credit Fee Percentage for all periods thereafter shall
be
1.250% until such time as the Borrower subsequently causes its unsecured,
non-credit enhanced Senior Funded Debt to be rated by both of said ratings
services.
“Facility
Letter of Credit Obligations”
shall
mean, at any particular time, the sum of (a) the Reimbursement Obligations,
plus
(b) the
aggregate undrawn face amount of all outstanding Facility Letters of Credit,
in
each case as determined by the Agent.
“Federal
Funds Rate”
shall
mean, for any period, a fluctuating interest rate per annum equal for each
day
during such period to the weighted average of the rates (rounded to the nearest
1/100 of 1%) on overnight federal fund transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day
(or,
if such day is not a Business Day, for the next preceding Business Day) by
the
Federal Reserve Bank of New York, or, if such rate is not so published for
any
day which is a Business Day, the average of the quotations for such day on
such
transactions received by the Agent from ▇▇▇▇▇▇ Prebon and ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
or
two other federal funds brokers of recognized standing selected by the
Agent.
“Funded
Debt”
means
all Debt of a Person which matures more than one year from the date of creation
or matures within one year from such date but is renewable or extendible,
at the
option of such Person, by its terms or by the terms of any instrument or
agreement relating thereto, to a date more than one year from such date or
arises under a revolving credit or similar agreement which obligates Banks
to
extend credit during a period of more than one year from such date, including,
without limitation, all amounts of any Funded Debt required to be paid or
prepaid within one year from the date of determination of the existence of
any
such Funded Debt.
“GAAP”
shall
mean generally accepted accounting principles, applicable to the circumstances
as of the date of determination, applied consistently with such principles
as
applied in the preparation of the Borrowers audited financial statements
referred to in Section 7.2.
“General
Intangibles”
shall
mean all of the Borrower’s contract rights now existing or hereafter acquired,
arising or created under contracts or arrangements for the purchase, sale,
storage or transportation of gas or other Inventory.
“Governmental
Authority”
shall
mean any (domestic or foreign) federal, state, county, municipal, parish,
provincial, or other government, or any department, commission, board, court,
agency (including, without limitation, the EPA), or any other instrumentality
of
any of them or any other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory, or administrative
functions of, or pertaining to, government, including, without limitation,
any
arbitration panel, any court, or any commission.
“Governmental
Requirement”
means
any Order, Permit, law, statute (including, without limitation, any
Environmental Protection Statute), code, ordinance, rule, regulation,
certificate, or other direction or requirement of any Governmental
Authority.
“Guaranty”
means,
with respect to any Person, any obligation, contingent or otherwise, of such
Person directly or indirectly guaranteeing any Debt of another Person,
including, without limitation, by means of an agreement to purchase or pay
(or
advance or supply funds for the purchase or payment of) such Debt or to maintain
financial covenants, or to assure the payment of such Debt by an agreement
to
make payments in respect of goods or services regardless of whether delivered
or
to purchase or acquire the Debt of another, or otherwise, provided that the
term
“Guaranty” shall not include endorsements for deposit or collection in the
ordinary course of business.
“Hazardous
Materials”
shall
mean any substance which, pursuant to any Environmental Laws, requires special
handling in its collection, use, storage, treatment or disposal, including
but
not limited to any of the following: (a) any “hazardous waste” as defined by
RCRA; (b) any “hazardous substance” as defined by CERCLA; (c) asbestos; (d)
polychlorinated biphenyls; (e) any flammables, explosives or radioactive
materials; and (f) any substance, the presence of which on any of the Borrower’s
or any Subsidiary's properties is prohibited by any Governmental
Authority.
“Highest
Lawful Rate”
shall
mean, with respect to each Bank, the maximum nonusurious interest rate, if
any,
that at any time or from time to time may be contracted for, taken, reserved,
charged, or received with respect to the Notes or on other amounts, if any,
due
to such Bank pursuant to this Agreement, under laws applicable to such Bank
which are presently in effect, or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
“Indemnified
Parties”
shall
have the meaning set forth in Section 13.16.
“Interest
Payment Date”
shall
mean (a) as to any Eurodollar Rate Loan in which the Rate Period with respect
thereto is not greater than three (3) months, the date on which such Rate
Period
ends; (b) as to any Eurodollar Rate Loan in which the Rate Period with respect
thereto is greater than three (3) months, the date on which the third month
of
such Rate Period ends, and the date on which each such Rate Period ends;
(c) as
to any Alternate Base Rate Loan in which the Rate Period with respect thereto
is
not greater than ninety (90) days, the date on which such Rate Period ends;
(d)
as to any Alternate Base Rate Loan in which the Rate Period with respect
thereto
is greater than ninety (90) days, the ninetieth (90th) day of such Rate Period,
and the date on which each such Rate Period ends; and (e) as to all Loans,
such
time as the principal of and interest on the Notes shall have been paid in
full.
“Inventory”
means,
with respect to Borrower or any Subsidiary, all of such -Person's now owned
or
hereafter acquired or created inventory in all of its forms and of every
nature,
wherever located, whether acquired by purchase, merger, or otherwise, and
all
raw materials, work in process therefor and finished goods thereof, and all
supplies, materials, and products of every nature and description used, usable,
or consumed in connection with the manufacture, packing, shipping, advertising,
selling, leasing, furnishing, or production of such goods, and shall include,
in
any event, all “inventory” (within the meaning of such term in the Uniform
Commercial Code in effect in any applicable jurisdiction), whether in mass
or
joint, or other interest or right of any kind in goods which are returned
to,
repossessed by, or stopped in transit by such Person, and all accessions
to any
of the foregoing and all products of any of the foregoing.
“Investment”
of any
Person means any investment so classified under GAAP, and, whether or not
so
classified, includes (a) any direct or indirect loan advance made by it to
any
other Person; (b) any direct or indirect Guaranty for the benefit of such
Person; provided,
however,
that
for purposes of determining Investments of Borrower hereunder, the existing
Guaranty by Borrower of certain tax increment financing extended by The Fidelity
Deposit and Discount Bank to The Redevelopment Authority of the County of
Lackawanna shall be deemed to not be an Investment; (c) any capital contribution
to any other Person; and (d) any ownership or similar interest in any other
Person; and the amount of any Investment shall be the original principal
or
capital amount thereof (plus
any
subsequent principal or capital amount) minus
all cash
returns of principal or capital thereof.
“Issuing
Bank”
shall
mean (a) any Bank and/or any Affiliate of any Bank listed on the signature
pages
of this Agreement attached hereto and made a part hereof, or (b) any Bank
or any
Affiliate of any Bank not listed on the signature pages of this Agreement,
but
only in the event that such Bank or such Affiliate agrees, in its sole
discretion at the request of the Borrower, and on the terms and conditions
mutually acceptable to such Bank or such Affiliate, as the case may be, to
become an Issuing Bank for the purpose of issuing one or more Facility Letters
of Credit pursuant to Section 3. When a Bank is referred to as an Issuing
Bank
under this Agreement, such reference to such Bank shall be interpreted to
refer
to such Bank solely in its capacity as an Issuing Bank.
“L/C
Subfacility”
shall
mean that portion of the Commitments equal to $40,000,000.00.
“Letter(s)
of Credit”
shall
mean, in the singular form, any letter of credit issued by any Person for
the
account of the Borrower and, in the plural form, all such letters of credit
issued by any Person for the account of the Borrower.
“Letter
of Credit Commitment”
shall
mean, with respect to each Issuing Bank, such Issuing Bank's commitment to
issue
Facility Letters of Credit.
“Letter
of Credit Reimbursement Agreement”
shall
mean, with respect to a Facility Letter of Credit, such form of application
therefor and form of reimbursement agreement therefor (whether in a single
or
several
documents,
taken together) as the Issuing Bank from which the Facility Letter of Credit
is
requested may employ in the ordinary course of business for its own account,
whether or not providing for collateral security, with such modifications
thereto as may be agreed upon by such Issuing Bank and the account party
and as
are not materially adverse to the interests of any Bank; provided,
however,
in the
event of any conflict between the terms of any Letter of Credit Reimbursement
Agreement and this Agreement, the terms of this Agreement shall control;
and
provided,
further,
that
any grant or purported grant of a security interest in favor of the Issuing
Bank
contained in any Letter of Credit Reimbursement Agreement shall be
void.
“Lien”
shall
mean any mortgage, deed of trust, pledge, security interest, encumbrance,
lien
(including without limitation, any such interest arising under any Environmental
Law), or similar charge of any kind (including without limitation, any agreement
to give any of the foregoing, any conditional sale or other title retention
agreement or any lease in the nature thereof), or the interest of the lessor
under any Capital Lease.
“Loan”
or
“Loans”
shall
mean a loan or loans, respectively, from the Banks to the Borrower made under
Section 2.1.
“Loan
Document”
shall
mean this Agreement, any Note, or any other document, agreement or instrument
now or hereafter executed and delivered by the Borrower or any other Person
in
connection with any of the transactions contemplated by any of the foregoing,
as
any of the foregoing may hereafter be amended, modified, or supplemented,
and
“Loan
Documents”
shall
mean, collectively, each of the foregoing.
“Majority
Bank”
shall
mean at any time Banks holding more than 50% of the unpaid principal amounts
outstanding under the Notes, or, if no such amounts are outstanding, more
than
50% of the Pro Rata Percentages.
“Material
Adverse Effect”
shall
mean any material adverse effect on (a) the financial condition, business,
properties, assets, prospects or operations of the Borrower and its Subsidiaries
taken as a whole, or (b) the ability of the Borrower to perform its obligations
under this Agreement, any Note or any other Loan Document on a timely
basis.
“Maturity
Date”
shall
mean May 28, 2010.
“Non-Facility
Letter of Credit”
shall
mean any Letter of Credit which is not a Facility Letter of Credit.
“Note”
or
“Notes”
shall
mean a promissory note or notes, respectively, of the Borrower, executed
and
delivered under this Agreement.
“Notice
of Borrowing”
shall
have the meaning set forth in Section 2.1(c).
“Obligations”
shall
mean (a) all obligations of the Borrower to the Bank under this Agreement,
the
Notes and all other Loan Documents to which it is a party; (b) all Reimbursement
Obligations; and (c) any other obligations of the Borrower with respect to
a
Facility Letter of Credit.
“Officer’s
Certificate”
shall
mean a certificate signed in the name of the Borrower or a Subsidiary, as
the
case may be, by either its President, one of its Vice Presidents, its Treasurer,
its Secretary, or one of its Assistant Treasurers or Assistant
Secretaries.
“Panhandle
Eastern”
shall
mean Panhandle Eastern Pipe Line Company, LP, a Delaware limited partnership.
“Panhandle
Eastern Refinancing Debt”
shall
mean any Debt of Panhandle Eastern and/or any of its Subsidiaries issued
in
exchange for, or the net proceeds of which are used to extend, refinance,
renew,
replace, defease or refund, any Debt of Panhandle Eastern and/or any of its
Subsidiaries existing as of the Closing Date, provided,
that:
(a) the
principal amount of such Panhandle Eastern Refinancing Debt does not exceed
the
then outstanding principal amount of the Debt so extended, refinanced, renewed,
replaced, defeased or refunded;
(b) the
interest rate or rates to accrue under such Panhandle Eastern Refinancing
Indebtedness do not exceed the lesser of (i) the interest rate or rates then
accruing on the Debt so extended, refinanced, renewed, replaced, defeased
or
refunded or (ii) the prevailing market interest rate or rates which are then
applicable to, and generally available for, Debt which is similar in type,
amount, maturity and other terms to the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded;
(c) the
maturities, amortization schedules, covenants, defaults, remedies, collateral
security provisions (or absence thereof) and other terms of such Panhandle
Eastern Refinancing Indebtedness, including without limitation, any restrictions
on the payment by Panhandle Eastern and/or its applicable Subsidiaries of
any
dividends or other shareholder distributions, are in each case the same or
more
favorable to Panhandle Eastern and/or its applicable Subsidiaries as those
in
the Debt so extended, refinanced, renewed, replaced, defeased or refunded;
and
(d) no
Default or Event of Default has occurred and is continuing or would result
from
the issuance or origination of such Panhandle Eastern Refinancing
Indebtedness.
“Person”
shall
mean an individual, partnership, joint venture, corporation, joint stock
company, bank, trust, unincorporated organization and/or a government or
any
department or agency thereof.
“Plan”
shall
mean any plan subject to Title IV of ERISA and maintained for employees of
the
Borrower or of any member of a “controlled group of corporations,” as such term
is defined in the Code, of which the Borrower or any Subsidiary is a member,
or
any such plan to which the Borrower or any Subsidiary is required to contribute
on behalf of its employees.
“Prime
Rate”
shall
mean, on any day, the rate determined by the Agent as being its prime rate
for
that day. Without notice to the Borrower or any other Person, the Prime Rate
shall change automatically from time to time as and in the amount by which
said
Prime Rate shall fluctuate, with each such change to be effective as of the
date
of each change in such Prime Rate. The Prime Rate is a reference rate and
does
not necessarily represent the lowest or best rate actually charged to any
customer. The Agent may make commercial or other loans at rates of interest
at,
above or below the Prime Rate.
“Prior
Acquisitions”
shall
mean collectively the Borrower’s previous acquisitions of and mergers with Fall
River Gas Company, Providence Energy Corporation and Valley Resources,
Inc.
“Pro-Rata
Percentage”
shall
mean with respect to any Bank, a fraction (expressed as a percentage), the
numerator of which shall be the amount of such Bank's Commitment and the
denominator of which shall be the aggregate amount of all the Commitments
of the
Banks, as adjusted from time to time in accordance with Section
4.6.
“Property”
shall
mean any interest or right in any kind of property or asset, whether real,
personal, or mixed, owned or leased, tangible or intangible, and whether
now
held or hereafter acquired.
“Qualifying
Assets”
shall
mean (i) equity interests owned one hundred percent (100%) by the Borrower
in
entities engaged primarily in one or more of the Borrower’s lines of business
described in Section 7.15 (singly, a “Qualified Entity,” collectively,
“Qualified Entities”), or productive assets used in one or more of such lines of
business; and (ii) equity interests of less than one hundred percent (100%)
owned by the Borrower in one or more Qualifying Entities, provided that at
any
time the aggregate amount of the Borrower’s investment in Qualifying Assets
described in clause (ii) that are then held by the Borrower as of the applicable
determination date (measured by the aggregate purchase price paid therefor,
including the aggregate amount of Debt assumed or deemed incurred by Borrower
in
connection with such acquisitions) does not exceed twenty percent (20%) of
the
Consolidated Net Worth of the Borrower and its Subsidiaries as of the applicable
determination date.
“Rabbi
Trusts”
shall
mean those four (4) certain non-qualified deferred compensation irrevocable
trusts existing as of the Closing Date, previously established by the Borrower
for the benefit of its executive employees, so long as the assets in each
of
such trusts which have not yet been distributed to one or more executive
employees of the Borrower remain subject to the claims of the Borrower’s general
creditors.
“Rate
Period”
shall
mean the period of time for which the Alternate Base Rate or the Eurodollar
Rate
shall be in effect as to any Alternate Base Rate Loan or Eurodollar Rate
Loan,
as the case may be, commencing with the Borrowing Date or the Expiration
Date of
the immediately preceding Rate Period, as the case may be, applicable to
and
ending on the effective date of any reborrowing made as provided in Section
2.2(a) as the Borrower may specify in the related Notice of Borrowing, subject,
however, to the early termination provisions of the second sentence of Section
2.3(c) relating to any Eurodollar Rate Loan; provided,
however,
that
any Rate Period that would otherwise end on a day which is not a Business
Day
shall be extended to the next succeeding Business Day unless such Business
Day
falls in another calendar month, in which case such Rate Period shall end
on the
next preceding Business Day. For any Alternate Base Rate Loan, the Rate Period
shall be 90 days; and for any Eurodollar Rate Loan the Rate Period may be
15
days, 1, 2, 3, or 6 months, in each case as specified in the applicable Notice
of Borrowing, subject to the provisions of Sections 2.2 and 2.3.
“Reimbursement
Obligations”
shall
mean the reimbursement or repayment obligations of the Borrower to Issuing
Banks
pursuant to this Agreement or the applicable Letter of Credit Reimbursement
Agreement with respect to Facility Letters of Credit issued for the account
of
the Borrower.
“Release”
shall
mean a “release”, as such term is defined in CERCLA.
“Restricted
Payment”
shall
mean the Borrower's declaration or payment of any dividend on, or purchase
or
agreement to purchase any of, or making of any other distribution with respect
to, any of its capital stock, except any such dividend, purchase or distribution
consisting solely of capital stock of the Borrower, and except any dividend
or
interest paid on or with respect to the Borrower’s Structured Securities to the
extent that such amounts are included in Cash Interest Expense.
“Securities
Act”
shall
have the meaning set forth in Section 13.1.
“Senior
Funded Debt”
shall
mean Funded Debt of the Borrower excluding Debt that is contractually
subordinated in right of payment to any other Debt.
“Senior
Notes”
means
(a) the $475,000,000 of 7.6% Senior Notes of the Borrower previously placed
with
investors on or about January 31, 1994, and (b) the $300,000,000 of 8.25%
Senior
Notes of the Borrower previously placed with investors on or about November
3,
1999, as such Senior Notes may be amended, modified, or supplemented from
time
to time in accordance with the terms of this Agreement; and “Senior
Note”
means
each such note individually.
“Significant
Property”
shall
mean at any time property or assets of the -Borrower or any Subsidiary having
a
book value (net of accumulated depreciation taken in accordance with GAAP)
of at
least $5,000,000.00 or that contributed (or is an integrated physical portion
of
an assemblage of assets that contributed) at least 5% of the gross income
of the
owner thereof for the fiscal quarter most recently ended.
“Southern
Union Panhandle” shall
mean Southern Union Panhandle LLC, a Delaware limited liability
company.
“Southern
Union Trust”
means
any of those certain Delaware business trusts organized for the sole purpose
of
purchasing Subordinated Debt Securities constituting a portion of, and described
in the definition of, Structured Securities and issuing the Preferred Securities
and Common Securities also constituting a portion of, and described in the
definition of, Structured Securities, and having no assets other than the
Borrower’s Subordinated Debt Securities, the Guaranties (as described in the
definition of Structured Securities) and the proceeds thereof. Southern Union
Trusts shall be considered to be Subsidiaries for purposes hereof so long
as
their affairs are consolidated under GAAP and for federal income tax purposes
with the affairs of the Borrower.
“Standby
Letter of Credit”
shall
mean any standby letter of credit issued to support obligations (contingent
or
otherwise) of the Borrower.
“Structured
Securities”
shall
mean collectively (a) the Subordinated Debt Securities, the Guaranties, the
Common Securities and the Preferred Securities of the Southern Union Trusts,
all
as described and defined in the Registration Statement on Form S-3 filed
by the
Borrower with the Securities and Exchange Commission on March
25,
1995,
and (b) subordinated debt securities, guaranties, common securities and/or
preferred securities issued in connection with the consummation of the Prior
Acquisitions in an aggregate face amount of not more than $150,000,000 upon
terms and conditions substantially similar in all material respects to the
terms
and conditions described and defined in such Registration Statement on Form
S-3
filed by the Borrower with the Securities and Exchange Commission on March
25,
1995. For all purposes of this Agreement, the amounts payable by Southern
Union
Trusts under the Preferred Securities and Common Securities (or similar
securities provided for under subclause (b) above) and the amounts payable
by
the Borrower under the Subordinated Debt Securities or the Guaranties (or
similar securities provided for under subclause (b) above) shall be treated
without duplication, it being recognized that the amounts payable by Southern
Union Trusts are funded with payments made or to be made by the Borrower
to
Southern Union Trusts and are also guaranteed by the Borrower under the
Guaranties described in the S-3 mentioned above (or similar guaranties provided
for under subclause (b) above).
“Subsidiary”
of a
Person shall mean a corporation, partnership, limited liability company or
other
business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only
by
reason of the happening of a contingency) are at the time beneficially owned,
or
the management of which is otherwise controlled, directly, or indirectly
through
one or more intermediaries, or both, by such Person. Notwithstanding the
fact
that the management of Cross Country is or may be controlled by the Borrower,
neither Cross Country nor any of its subsidiaries shall be deemed to constitute
a Subsidiary of the Borrower for purposes of this Agreement so long as the
Borrower does not beneficially own, directly, or indirectly, a majority of
the
shares of securities or other interests in Cross Country having ordinary
voting
power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening
of a
contingency).
“Trunkline
LNG Holdings”
shall
mean CMS Trunkline LNG Holdings, LLC, a Delaware limited liability
company.
“Type”
shall
mean, with respect to any Loan, any Alternate Base Rate Loan or any Eurodollar
Rate Loan.
“Unused
L/C Subfacility”
shall
mean, at any time, the amount, if any, by which the L/C Subfacility then
in
effect exceeds the aggregate outstanding amount of all Facility Letter of
Credit
Obligations.
THE
LOANS
The
Loans
Subject
to the terms and conditions and relying upon the representations and warranties
of the Borrower herein set forth, each Bank severally agrees to make Loans
to
the Borrower on any one or more Business Days prior to the Maturity Date,
up to
an aggregate principal amount of Loans not exceeding at any time outstanding:
(i) the amount set opposite such Banks name on the signature pages hereof
(such
Bank's “Commitment”); minus (ii) such
Bank’s Pro Rata Percentage of the Facility Letter of Credit Obligations. Within
such limits and during such period and subject to the terms and conditions
of
this Agreement, the Borrower may borrow, repay and reborrow
hereunder.
The
Borrower shall execute and deliver to the Agent for each Bank to evidence
the
Loans made by each Bank under such Bank’s Commitment, a Note, which shall be:
(i) dated the date of the Closing
Date;
(ii) in the principal amount of such Bank’s maximum Commitment; (iii) in
substantially the form attached hereto as Exhibit
A, with blanks appropriately filled; (iv) payable to
the
order of such Bank on the Maturity Date; and (v) subject to acceleration
upon
the occurrence of an Event of Default. Each Note shall bear interest on the
unpaid principal amount thereof from time to time outstanding at the rate
per
annum determined as specified in Sections 2.2(a), 2.2(b), 2.3(b) and
2.3(c), payable on each Interest Payment Date and at maturity, commencing
with
the first Interest Payment Date following the date of each
Note.
Each
Loan shall be: (i) in the case of any Eurodollar Rate Loan, in an amount
of not
less than $1,000,000.00 or an integral multiple of $1,000,000.00 in excess
thereof; or (ii) in the case of any Alternate Base Rate Loan, in an amount
of
not less than $500,000.00 or an integral multiple of $100,000.00 in excess
thereof and, at the option of the Borrower, any borrowing under this Section
2.1(c) may be comprised of two or more such Loans bearing different rates
of
interest. Each such borrowing shall be made upon prior notice from the Borrower
to the Agent in the form attached hereto as Exhibit
B
(the “Notice of Borrowing”) delivered to the Agent not later than 11:00 am
(Houston time): (i) on the third Business Day prior to the Borrowing Date,
if
such borrowing consists of Eurodollar Rate Loans; and (ii) on the Borrowing
Date, if such borrowing consists of Alternate Base Rate Loans. Each Notice
of
Borrowing shall be irrevocable and shall specify: (i) the amount of the proposed
borrowing and of each Loan comprising a part thereof; (ii) the Borrowing
Date;
(iii) the rate of interest that each such Loan shall bear; (iv) the Rate
Period
with respect to each such Loan and the Expiration Date of each such Rate
Period;
and (v) the demand deposit account of the Borrower at JPMorgan into which
the
proceeds of the borrowing are to be deposited by the Agent. The Borrower
may
give the Agent telephonic notice by the required time of any proposed borrowing
under this Section 2.1(c); provided that
such telephonic notice shall be confirmed in writing by delivery to the Agent
promptly (but in no event later than the Borrowing Date relating to any such
borrowing) of a Notice of Borrowing. Neither the Agent nor any Bank shall
incur
any liability to the Borrower in acting upon any telephonic notice referred
to
above which the Agent believes in good faith to have been given by the Borrower,
or for otherwise acting in good faith under this
Section 2.1(c).
In
the case of a proposed borrowing comprised of Eurodollar Rate Loans, the
Agent
shall promptly notify each Bank of the applicable interest rate under
Section 2.2. Each Bank shall, before 11:00 am (Houston time) on the
Borrowing Date, make available for the account of its Applicable Lending
Office
to the Agent at the Agent's address set forth in Section 13.4, in same day
funds, its Pro Rata Percentage of such borrowing. After the Agent's receipt
of
such funds and upon fulfillment of the applicable conditions set forth in
Section 8, on the Borrowing Date, the Agent shall make the borrowing
available to the Borrower at its Applicable Lending Office in immediately
available funds. Each Bank shall post on a schedule attached to its Note(s):
(i)
the date and principal amount of each Loan made under such Note; (ii) the
rate of interest each such Loan will bear; and (iii) each payment of principal
thereon; provided,
however,
that any failure of such Bank
so to ▇▇▇▇ such Note shall not affect the Borrower's obligations thereunder;
and
provided further
that such Bank's records as to such matters shall be controlling whether
or not
such Bank has so marked such Note. Any deposit to the Borrower’s demand deposit
account by the Agent or by JPMorgan Chase Bank (of funds received from the
Agent) pursuant to a request (whether written or oral) believed by the Agent
or
by JPMorgan Chase Bank to be an authorized request by the Borrower for a
Loan
hereunder shall be deemed to be a Loan hereunder for all purposes with the
same
effect as if the Borrower had in fact requested the Agent to make such
Loan.
Unless
the Agent shall have received notice from a Bank prior to the date of any
borrowing that such Bank will not make available to the Agent such Bank’s Pro
Rata Percentage of such borrowing, the Agent may assume that such Bank has
made
such portion available to the Agent on the date of such borrowing in accordance
with this Section 2.1 and the Agent may, in reliance upon such assumption,
make
available to the Borrower on such date a corresponding amount. If and to
the
extent that such Bank shall not have so made such Pro Rata Percentage available
to the Agent, such Bank and the Borrower severally agree to repay to the
Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower
until
the date such amount is repaid to the Agent, (i) in the case of the Borrower,
at
the interest rate applicable at the time to the Loans comprising such borrowing,
and (ii) in the case of such Bank, at the Federal Funds Rate. If such Bank
shall
repay to the Agent such corresponding amount, such amount so repaid shall
constitute such
Bank's
Loan as part of such borrowing for purposes of this
Agreement.
The
failure of any Bank to make the Loan to be made by it as part of any borrowing
shall not relieve any other Bank of its obligation, if any, hereunder to
make
its Loan on the date of such borrowing, but no Bank shall be responsible
for the
failure of any other Bank to make the Loan to be made by such other Bank
on the
date of any borrowing.
Interest
Rate Determination
Except
as specified in Sections 2.3(b) and 2.3(c), the Loans shall bear interest
on the
unpaid principal amount thereof from time to time outstanding, until maturity,
at a rate per annum (calculated based on a year of 360 days in the case of
the
Eurodollar Rate or the Alternate Base Rate based on the Federal Funds Rate
and a
year of 365 or 366 days, as the case may be, in the case of the Alternate
Base
Rate based on the Prime Rate) equal to the lesser of (A) the rate specified
in
the Notice of Borrowing with respect thereto or (B) the Highest Lawful Rate
from
the first day to, but not including, the Expiration Date of the Rate Period
then
in effect with respect thereto.
Any
principal, interest, fees or other amount owing hereunder, under any Note
or
under any other Loan Document that is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest at a rate per
annum
equal to the lesser of (i) two percent (2%) above the Alternate Base Rate
in
effect from time to time or (ii) the Highest Lawful Rate.
Additional
Interest Rate Provisions
The
Note may be held by each Bank for the account of its respective Domestic
Lending
Office or its respective Eurodollar Lending Office, and may be transferred
from
one to the other from time to time as each Bank may
determine.
If
the Borrower shall have chosen the Eurodollar Rate in a Notice of Borrowing
and
prior to the Borrowing Date, any Bank in good faith determines (which
determination shall be conclusive) that (i) deposits in Dollars in the principal
amount of such Eurodollar Rate Loan are not being offered to the Eurodollar
Lending Office of such
Bank
in the Eurodollar interbank market selected by such Bank in its sole discretion
in good faith or (ii) adequate and reasonable means do not exist for
ascertaining the chosen Eurodollar Rate in respect of such Eurodollar Rate
Loan
or (iii) the Eurodollar Rate for any Rate Period for such Eurodollar Rate
Loan
will not adequately reflect the cost to such Bank of making such Eurodollar
Rate
Loan for such Rate Period, then such Bank will so notify the Borrower and
the
Agent and such Eurodollar Rate shall not become effective as to such Eurodollar
Rate Loan on such Borrowing Date or at any time thereafter until such time
thereafter as the Borrower receives notice from the Agent that the circumstances
giving rise to such determination no longer apply.
Anything
in this Agreement to the contrary notwithstanding, if at any time any Bank
in
good faith determines (which determination shall be conclusive) that the
introduction of or any change in any applicable law, rule or regulation or
any
change in the interpretation or administration thereof by any governmental
or
other regulatory authority charged with the interpretation or administration
thereof shall make it unlawful for the Bank (or the Eurodollar Lending Office
of
such Bank) to maintain or fund any Eurodollar Rate Loan, such Bank shall
give
notice thereof to the Borrower and the Agent. With respect to any Eurodollar
Rate Loan which is outstanding when such Bank so notifies the Borrower, upon
such date as shall be specified in such notice the Rate Period shall end
and the
lesser of (i) the Alternate Base Rate or (ii) the Highest Lawful Rate shall
commence to apply in lieu of the Eurodollar Rate in respect of such Eurodollar
Rate Loan and shall continue to apply unless and until the Borrower changes
the
rate as provided in Section 2.2(a). No more than five (5) Business Days after
such specified date, the Borrower shall pay to such Bank (x) accrued and
unpaid
interest on such Eurodollar Rate Loan at the Eurodollar Rate in effect at
the
time of such notice to but not including such specified date
plus
(y) such amount or amounts (to the extent that such amount or amounts would
not
be usurious under applicable law) as may be necessary to compensate such
Bank
for any direct or indirect costs and losses incurred by it (to the extent
that
such amounts have not been included in the Additional Costs in calculating
such
Eurodollar Rate), but otherwise without penalty. If notice has been given
by
such Bank pursuant to the foregoing provisions of this Section 2.3(c), then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such notice no longer apply, such Eurodollar Rate shall not again
apply
to such Loan or any other Loan and the obligation of such Bank to
continue
any Eurodollar Rate Loan as a Eurodollar Rate Loan shall be suspended. Any
such
claim by such Bank for compensation under clause (y) above shall be accompanied
by a certificate setting forth the computation upon which such claim is based,
and such certificate shall be conclusive and binding for all purposes, absent
manifest error.
THE
BORROWER WILL INDEMNIFY EACH BANK AGAINST, AND REIMBURSE EACH BANK ON DEMAND
FOR, ANY LOSS (INCLUDING LOSS OF REASONABLY ANTICIPATED PROFITS DETERMINED
USING
REASONABLE ATTRIBUTION AND ALLOCATION METHODS), OR REASONABLE COST OR EXPENSE
INCURRED OR SUSTAINED BY SUCH BANK (INCLUDING WITHOUT LIMITATION, ANY LOSS
OR
EXPENSE INCURRED BY REASON OF THE LIQUIDATION OR REEMPLOYMENT OF DEPOSITS
OR
OTHER FUNDS ACQUIRED BY SUCH BANK TO FUND OR MAINTAIN ANY EURODOLLAR RATE
LOAN)
AS A RESULT OF (i) ANY ADDITIONAL COSTS INCURRED BY SUCH BANK; (ii) ANY PAYMENT
OR REPAYMENT (WHETHER AUTHORIZED OR REQUIRED HEREUNDER OR OTHERWISE) OF ALL
OR A
PORTION OF ANY LOAN ON A DAY OTHER THAN THE EXPIRATION DATE OF A RATE PERIOD
FOR
SUCH LOAN; (iii) ANY PAYMENT OR PREPAYMENT (WHETHER REQUIRED HEREUNDER OR
OTHERWISE) OF ANY LOAN MADE AFTER THE DELIVERY OF A NOTICE OF BORROWING BUT
BEFORE THE APPLICABLE BORROWING DATE IF SUCH PAYMENT OR PREPAYMENT PREVENTS
THE
PROPOSED BORROWING FROM BECOMING FULLY EFFECTIVE; OR (iv) AFTER RECEIPT BY
THE
AGENT OF A NOTICE OF BORROWING, THE FAILURE OF ANY LOAN TO BE MADE OR EFFECTED
BY SUCH BANK DUE TO ANY CONDITION PRECEDENT TO A BORROWING NOT BEING SATISFIED
BY THE BORROWER OR DUE TO ANY OTHER ACTION OR INACTION OF THE BORROWER. ANY
BANK
DEMANDING PAYMENT UNDER THIS SECTION 2.3(d) SHALL DELIVER TO THE BORROWER
AND
THE AGENT A STATEMENT REASONABLY SETTING FORTH THE AMOUNT AND MANNER OF
DETERMINING SUCH LOSS, COST OR EXPENSE. THE FACTS SET FORTH IN SUCH STATEMENT
SHALL BE CONCLUSIVE AND BINDING FOR ALL PURPOSES, ABSENT MANIFEST ERROR.
If,
after the date of this Agreement, any Bank shall have determined that the
adoption of any applicable law, rule, guideline, interpretation or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable
agency
charged with the interpretation or administration thereof, or compliance
by such
Bank with any request or directive regarding capital adequacy (whether or
not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Bank's capital as a consequence of its obligations hereunder and under similar
lending arrangements to a level below that which such Bank could have achieved
but for such adoption, change or compliance (taking into consideration such
Bank's policies with respect to capital adequacy) by an amount deemed by
such
Bank to be material then the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such
reduction.
A
certificate of such Bank setting forth such amount or amounts as shall be
necessary to compensate such Bank as specified in subparagraph (e) above
shall
be delivered as soon as practicable to the Borrower (with a copy thereof
to the
agent) and to the extent determined in accordance with subparagraph (e) above
shall be conclusive and binding, absent manifest error. The Borrower shall
pay
such Bank the amount shown as due on any such certificate within fifteen
(15)
days after such Bank delivers such certificate. In preparing such certificate,
such Bank may employ such assumptions and allocations (consistently applied
with
respect to advances made by such Bank or commitments by such Bank to make
advances) of costs and expenses as it shall in good ▇▇▇▇▇ ▇▇▇▇ reasonable
and
may use any reasonable averaging and attribution method (consistently applied
with respect to advances made by such Bank or commitments by such Bank to
make
advances).
Increase
of Commitments
At
any time after the Closing Date, provided that no Default or Event of Default
shall have occurred and be continuing, the Borrower may request from time
to
time one or more increases of the Commitments by notice to the Agent in writing
of the amount of each such proposed increase (each such notice, a
“Commitment Increase Notice”). Any such
Commitment Increase Notice must offer each Bank the opportunity to subscribe
for
its pro rata share of the requested increase in the Commitments, and the
Agent
shall promptly provide to each Bank a copy of any Commitment Increase Notice
received by the Agent. Within 10 Business Days after receipt by the Agent
of the
applicable Commitment Increase Notice, each Bank wishing to subscribe for
its
pro rata share of the requested
increase
in the Commitments must deliver written notice of such fact to the Agent.
If any
portion of the requested increase in the Commitments is not subscribed for
by
the Banks within such 10-day period, the Borrower may, in its sole discretion,
but with the consent of the Agent as to any Person that is not at such time
a
Bank (which consent shall not be unreasonably withheld or delayed so long
as
such Person is an Eligible Assignee), offer to any existing Bank or to one
or
more additional banks or financial institutions the opportunity to participate
in all or a portion of such unsubscribed portion of the requested increase
in
the Commitments pursuant to Section 2.4 (b) or (c) below, as
applicable;
Any
additional bank or financial institution that the Borrower selects to offer
a
participation in the unsubscribed portion of the increased Commitments, and
that
elects to become a party to this Agreement and obtain a Commitment, shall
execute an agreement (a “New
Bank Agreement”),
in the form required by the Agent, with the Borrower and the Agent, whereupon
such bank or financial institution (a “New
Bank”)
shall become a Bank for all purposes hereunder to the same extent as if
originally a party hereto and shall be bound by and entitled to the benefits
of
this Agreement, and the signature pages hereof shall be deemed to add the
name
and Commitment of such New Bank, provided that the Commitment of any such
New
Bank shall be in an amount not less than $5,000,000;
Any
Bank that accepts an offer by the Borrower to increase its Commitment pursuant
to this Section 2.4 shall, in each case, execute a commitment increase agreement
(a “Commitment
Increase Agreement”),
in the form required by the Agent, with the Borrower and the Agent, whereupon
such Bank shall be bound by and entitled to the benefits of this Agreement
with
respect to the full amount of its Commitment as so increased, and the signature
pages hereof shall be deemed to be amended to reflect such increase in the
Commitment of such Bank;
The
effectiveness of any New Bank Agreement or Commitment Increase Agreement
shall
be contingent upon receipt by the Agent of such corporate resolutions of
the
Borrower and legal opinions of in-house counsel to the Borrower, if any,
as the
Agent shall reasonably request with respect thereto;
If
any bank or financial institution becomes a New Bank pursuant to Section
2.4(b)
or if any Bank’s Commitment is increased pursuant to Section 2.4(c), additional
Loans and additional liability for
Facility
Letters of Credit made or issued on or after the effectiveness thereof (the
“Re-Allocation Date”) shall be made pro
rata based on each Bank’s (including each New Bank’s) respective Commitment in
effect on and after such Re-Allocation Date (except to the extent that any
such
pro rata borrowings or incurring of liability would result in any Bank making
an
aggregate principal amount of Loans and incurring liability for the Facility
Letters of Credit in excess of its Commitment, in which case such excess
amount
will be allocated to, and made or incurred by, such New Bank and/or Banks
with
such increased Commitments to the extent of, and pro rata based on, their
respective Commitments), and continuations of Eurodollar Rate Loans outstanding
on such Re-Allocation Date shall be effected by repayment of such Eurodollar
Rate Loans on the last day of the Rate Period applicable thereto and the
extension of new Eurodollar Rate Loans pro rata based on the Banks’ respective
Commitments in effect on and after such Re-Allocation Date. In the event
that on
any such Re-Allocation Date there are Alternate Base Rate Loans outstanding,
the
Borrower shall make prepayments thereof and borrow new Alternate Base Rate
Loans
so that, after giving effect thereto, the Alternate Base Rate Loans outstanding
are held pro rata based on the Banks’ respective Commitments in effect on and
after such Re-Allocation Date. In the event that on any such Re-Allocation
Date
there are Eurodollar Rate Loans outstanding, such Eurodollar Rate Loans shall
remain outstanding with the respective holders thereof until the expiration
of
their respective Rate Periods (unless the Borrower elects to prepay any thereof
in accordance with the applicable provisions of this Agreement), and interest
on
and repayments of such Eurodollar Rate Loans will be paid thereon to the
respective Banks holding such Eurodollar Rate Loans pro rata based on the
respective principal amounts thereof outstanding;
Notwithstanding
anything to the contrary in this Section 2.4, (i) no Bank shall have any
obligation to increase its Commitment under this Section 2.4 unless it agrees
in
writing to do so in its sole discretion, (ii) no Bank shall have any right
to
decrease the amount of its Commitment as a result of any requested increase
of
the Commitments pursuant to this Section 2.4, (iii) the Agent shall have
no
obligation to find or locate any New Bank to participate in any unsubscribed
portion of any increase in the Commitments requested by the Borrower, (iv)
each
increase in the Commitments requested by the Borrower shall not be less than
$10,000,000, (v) after giving effect to any increase in the Commitments pursuant
to this Section 2.4, the sum of the Commitments shall not exceed $500,000,000,
and (vi) in
the
event the Borrower reduces the Commitments pursuant to Section 4.6 or any
other
provision of this Agreement more than one time during the term of this
Agreement, the ability of the Borrower to request increases in the Commitments
pursuant to this Section 2.4 shall automatically terminate;
and
The
Borrower shall execute and deliver to the Agent (for delivery by the Agent
to
each applicable Bank) a new Note payable to each applicable Bank (including
each
New Bank) participating in any increase of the Commitments in the original
principal amount of such Bank’s Commitment after giving effect to any such
increase of the Commitments.
LETTERS
OF CREDIT
Obligation
to Issue. Subject to the terms and conditions of this Agreement,
and in reliance upon the representations and warranties of the Borrower set
forth herein or in any other Loan Document, each Issuing Bank hereby severally
agrees to issue, from time to time during the period commencing on the Closing
Date and ending on the Business Day immediately prior to the Maturity Date,
for
the account of the Borrower through such of the Issuing Bank's branches as
it
and the Borrower may jointly agree, one or more Facility Letters of Credit
in
accordance with this Section 3. Notwithstanding the foregoing, no
Issuing
Bank shall have any obligation to issue, and shall not issue, any Facility
Letter of Credit at any time if:
the
aggregate undrawn face amount of Facility Letters of Credit theretofore issued
by such Issuing Bank, after giving effect to all requested but unissued Facility
Letters of Credit, exceeds any limit imposed by law or regulation upon such
Issuing Bank;
after
taking into account the face amount of the requested Facility Letter of Credit
the aggregate principal amount of Facility Letter of Credit Obligations with
respect to Facility Letters of Credit issued by such Issuing Bank for the
account of the Borrower (which amount shall be calculated without giving
effect
to the participation of the Banks pursuant to Section 3.5) would exceed such
Issuing Bank's Letter of Credit Commitment;
immediately
after giving effect to the issuance of such Facility Letter of Credit, the
aggregate Facility Letter of Credit Obligations would exceed the L/C
Subfacility;
immediately
after giving effect to the issuance of such Facility Letter of Credit, the
aggregate of outstanding Loans, would exceed the Banks' aggregate Commitments;
or
such
Facility Letter of Credit has an expiry date (i) more than one year after
the
date of issuance; or (ii) after the Business Day immediately preceding the
Maturity Date.
Conditions.
The
obligation of an Issuing Bank to issue any Facility Letter of Credit, and
of
each Bank to participate therein as provided in Section 3.5 is subject to
the
satisfaction in full of the applicable conditions precedent set forth in
Section
8 and each of the following conditions:
the
Borrower shall have delivered to the Issuing Bank, at such times and -in
such
manner as such Issuing Bank may prescribe, a Letter of Credit application,
a
Letter of Credit Reimbursement Agreement, and such other documents and materials
as may be required pursuant to the terms thereof;
the
terms of the proposed Facility Letter of Credit shall not be inconsistent
with
any term or provision of this Agreement and otherwise shall be satisfactory
to
such Issuing Bank; and
as
of the date of issuance of such Facility Letter of Credit, no order, judgment,
or decree of any court, arbitrator, or governmental authority shall purport
by
its terms to enjoin or restrain the Issuing Bank from issuing such Facility
Letter of Credit, and no law, rule, or regulation applicable to such Issuing
Bank, and no request or directive (whether or not having the force of law)
from
any governmental authority having jurisdiction over such Issuing Bank, shall
prohibit or request that such Issuing Bank refrain from the issuance of Letters
of Credit, generally or the issuance of such Facility Letter of
Credit.
Issuance
of Facility Letters of Credit
The
Borrower shall give the Agent written notice (or telephonic notice confirmed
in
writing by the Borrower not later than the requested issuance date of the
Facility Letter of Credit) of its request for the issuance of a Facility
Letter
of Credit no later than 11:00 a.m. four (4) Business Days prior to the date
such
Facility Letter of Credit is requested to be issued. Such notice shall be
irrevocable and shall specify, with respect to such requested Facility Letter
of
Credit, the
face
amount, beneficiary, effective date of issuance, expiry date (which effective
date and expiry date shall be a Business Day and, with respect to the expiry
date, shall be no later than the Business Day immediately preceding the Maturity
Date), the identity of the Issuing Bank selected by the Borrower, and the
purpose for which such Facility Letter of Credit is to be issued. At the
time a
request for the issuance of a Facility Letter of Credit is made, the Borrower
shall also provide the Agent with a copy of the form of Letter of Credit
that
the proposed Issuing Bank has agreed to issue. If the face amount of the
requested Facility Letter of Credit is less than or equal to the Unused L/C
Subfacility, as determined by the Agent as of the close of business on the
date
of its receipt of written notice of the requested issuance, the Agent shall
so
notify the proposed Issuing Bank in writing (or by telephonic notice promptly
confirmed thereafter in writing) not later than the close of business on
the
second Business Day following the Agent’s receipt of the Borrower’s written
notice. The Issuing -Bank shall issue such Facility Letter of Credit on the
date
requested by the Borrower, unless (i)
on or before the Business Day prior to such issuance date, such Issuing Bank
shall have received written notice from the Agent or any Bank that the
conditions precedent to the issuance of a Facility Letter of Credit as set
forth
in Section 3.2 have not been met; or (ii) on the requested issuance date,
such
Issuing Bank has actual knowledge that such conditions precedent have not
been
met. If an Issuing Bank receives written notice, or has actual knowledge,
that
the conditions precedent to the issuance of a Facility Letter of Credit have
not
been met, then such Issuing Bank shall have no obligation to issue, and shall
not issue, any Facility Letter of Credit until (i) such notice is withdrawn;
or
(ii) such Issuing Bank receives a notice from the Agent that the condition(s)
described in such notice have been waived in accordance with the provisions
of
this Agreement. The Issuing Bank shall give the Agent prompt written notice
(or
telephonic notice promptly confirmed in writing) of the issuance of any Facility
Letter of Credit. Any Letter of Credit issued by an Issuing Bank in compliance
with the provisions of this Section 3.3 shall be a Facility Letter of
Credit.
An
Issuing Bank shall not extend or amend any Facility Letter of Credit unless
the
requirements of this Section 3.3 are met as though a new Facility Letter
of
Credit was being requested and issued.
An
Issuing Bank or any Bank may issue Non-Facility Letters of Credit for its
own
account, and at its own risk. None of the provisions of this Section 3 shall
apply to any Non-Facility Letter of Credit.
Reimbursement
Obligations; Duties of Issuing Bank
Notwithstanding
any provisions to the contrary in any Letter of Credit Reimbursement
Agreement:
the
Borrower shall reimburse the applicable Issuing Bank for a drawing under
a
Facility Letter of Credit issued by such Issuing Bank no later than the earlier
of (A) the time specified in the related Letter of Credit Reimbursement
Agreement; or (B) one (1) Business Day after the payment of such drawing
by such
Issuing Bank; and
the
Borrower’s Reimbursement Obligations with respect to a drawing under a Facility
Letter of Credit shall bear interest from the date of such drawing to the
date
paid in full at the higher of (A) the interest rate specified in the applicable
Letter of Credit Reimbursement Agreement; or (B) the interest rate for past
due
Alternate Base Rate Loans; but not
greater than the Highest Lawful Rate.
No
action taken or omitted to be taken by an Issuing Bank in connection -with
any
Facility Letter of Credit shall (i) result in any liability on the part of
such
Issuing Bank to any Bank, unless such Issuing Bank’s action or omission
constitutes willful misconduct or gross negligence; or (ii) relieve any Bank
of
any of its obligations to such Issuing Bank hereunder, unless the Facility
Letter of Credit in question was issued in contravention of the provisions
of
Section 3.3 or at a time during which a notice, described in Section 3.3,
from
such Bank to such Issuing Bank remained in effect. Each Bank agrees that,
prior
to making any payment to a beneficiary with respect to a drawing under a
Facility Letter of Credit, the Issuing Bank shall be responsible only to
confirm
that documents required by the terms of such Facility Letter of Credit to
be
delivered as a condition precedent to such drawing have been delivered and
that
the same appear on their face to conform with the requirements thereof. Each
Bank further agrees that such Issuing Bank may assume that documents appearing
on their face to be the documents required to be delivered as a condition
precedent to a drawing do in fact comply.
Participations
Immediately
upon the issuance by an Issuing Bank of any Facility Letter of Credit in
compliance with the provisions of Section 3.3, and immediately upon conversion
of a Letter of Credit of an Issuing Bank to a Facility Letter of Credit pursuant
to Section 3.10, each Bank shall be deemed to have irrevocably and
unconditionally purchased and received from such Issuing Bank, without recourse
or warranty, an undivided interest and participation to the extent of such
Bank's Pro Rata Percentage in such Facility Letter of Credit, including without
limitation, all obligations of the Borrower with respect thereto and any
security therefor or guaranty pertaining thereto.
An
Issuing Bank shall promptly notify the Agent, and the Agent shall promptly
notify the other Banks, if the Borrower fails to reimburse such Issuing Bank
for
payments made by such Issuing Bank in respect of drawings by a beneficiary
under
a Facility Letter of Credit. Upon each such other Banks receipt of such notice,
such Bank shall unconditionally pay to the Agent, for the account of such
Issuing Bank, an amount equal to such Bank's Pro Rata Percentage of the
unreimbursed payment made by such Issuing Bank under the Facility Letter
of
Credit. Such payment shall be made by such Bank in Dollars and in same day
funds
on the day such Bank receives notice from the Agent that such payment is
owing,
if such notice is received by such Bank prior to 11:00 a.m. (Houston
time)
on a Business Day; if such notice is not received by such time, then such
Bank
shall remit its payment on the next Business Day following the day such notice
is received. Any amount payable by a Bank under this Section 3.5(b) which
is not
paid when due pursuant to the terms hereof shall be payable on demand, together
with interest thereon at the Federal Funds Rate from the date such payment
was
due until paid in full. The failure of any Bank to make any payment owing
by it
under this Section 3.5(b) shall neither relieve nor increase the obligation
of
any other Bank to make any payment owing by it under this Section 3.5(b).
The
Agent shall promptly remit to the applicable Issuing Bank all amounts received
by the Agent, for the account of such Issuing Bank, from each Bank pursuant
to
this Section 3.5(b). No payment made by a Bank pursuant to this Section 3.5(b)
shall prejudice the ability of such Bank to claim that the Issuing Bank to
which
such payment is made is subject to liability under Section 3.4(b).
Whenever
an Issuing Bank receives a payment with respect to a Reimbursement Obligation
(including any interest thereon) for which such Issuing Bank has received
payments from a Bank pursuant to
Section
3.5(b), such Issuing Bank shall promptly remit to the Agent and the Agent
shall
promptly remit to each Bank which has funded its participating interest therein,
in Dollars and in the kind of funds so received, an amount equal to each
Bank's
Pro Rata Percentage thereof. Each such payment shall be made by the Issuing
Bank
or the Agent, as the case may be, on the Business Day on which such Person
receives the funds paid to such Person pursuant to the preceding sentence,
if
received prior to 11:00 a.m. (Houston time) on such Business Day,
and
otherwise on the next succeeding Business Day.
Upon
the request of the Agent or any Bank, an Issuing Bank shall furnish to the
Agent
or each Bank copies of any Facility Letter of Credit, Letter of Credit
Reimbursement Agreement, or Letter of Credit application to which Issuing
Bank
is party, and such other documentation as may reasonably be requested by
the
Agent or such Bank with respect to a Facility Letter of Credit issued by
such
Issuing Bank.
The
obligations of a Bank under Section 3.5(b) to make payments to the Agent
for the
account of an Issuing Bank with respect to a Facility Letter of Credit shall
be
irrevocable, not subject to any qualification or exception whatsoever, and
shall
be made in accordance with, but not subject to, the terms and conditions
of this
Agreement under all circumstances (assuming that such Issuing Bank has issued
such Facility Letter of Credit in compliance with the provisions of
Section 3.3), including, without limitation, any of the following
circumstances:
any
lack of validity or enforceability of this Agreement or any other Loan
Document;
the
existence of any claim, set off, defense, or other right which the Borrower
may
have at any time against a beneficiary named in a Facility Letter of Credit
or
any transferee of any Facility Letter of Credit (or any Person for whom any
such
transferee may be acting), the Agent, any Bank, the Issuing Bank, or any
Person,
whether in connection with this Agreement, any Facility Letter of Credit,
the
transactions contemplated herein, or any unrelated transactions (including
any
un-der-lying transactions between the Borrower and the beneficiary named
in any
Facility Letter of Credit);
any
draft, certificate, of any other document presented under the Facility Letter
of
Credit proving to be forged, fraudulent, invalid, or
insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
the
surrender or impairment of any security for the performance or observance
of any
of the terms of any Loan Document;
any
failure by the Agent or an Issuing Bank to make any reports required pursuant
to
Section 3.8; or
the
occurrence of any Default or Event of Default.
Payment
of Reimbursement Obligations
The
Borrower agrees to pay to each Issuing Bank the amount of all Reimbursement
Obligations, interest, and other amounts payable to such Issuing Bank under
or
in connection with any Facility Letter of Credit immediately when due,
irrespective of any claim, set off, defense, or other right which the Borrower
may have at any time against any Issuing Bank or any other
Person.
In
the event any payment by the Borrower received by an Issuing Bank with respect
to a Facility Letter of Credit and distributed to Banks on account of their
respective participation is thereafter set aside, avoided, or recovered from
such Issuing Bank in connection with any Debtor Laws, each Bank which received
such distribution shall, upon demand by such Issuing Bank, contribute each
Bank's Pro Rata Percentage of the amount set aside, avoided, or recovered
together with interest at the rate required to be paid by the Issuing Bank
upon
the amount required to be repaid by it.
Exoneration.
As between the Borrower, each Bank, and each Issuing Bank, the Borrower assumes
all risks of the acts and omissions of, or misuse of the Facility Letter
of
Credit issued by such Issuing Bank by, the respective beneficiaries of such
Facility Letter of Credit. In furtherance and not in limitation of the
foregoing, subject to the provisions of the Letter of Credit applications,
the
Issuing Bank and the Banks shall not be responsible for:
the
form, validity, sufficiency, accuracy, genuineness, or legal effect of any
document submitted by any party in connection with the application for and
issuance of a Facility Letter of Credit, even if it should in fact prove
to be
in any or all respects invalid, insufficient, inaccurate, fraudulent, or
forged;
the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Facility Letter of Credit or the rights
or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to
be invalid or ineffective for any reason;
failure
of the beneficiary of a Facility Letter of Credit to comply duly with conditions
required in order to draw upon such Facility Letter of Credit,
provided that
the Issuing Bank complies with the provisions of Section
3.4(b);
errors,
omissions, interruptions, or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex, or otherwise, whether or not they be in
cipher;
errors
in interpretation of technical terms;
any
loss or delay in the transmission or otherwise of any document required in
order
to make a drawing under any Facility Letter of Credit or of the proceeds
thereof;
the
misapplication by the beneficiary of a Facility Letter of Credit;
or
any
consequences arising from causes beyond the control of the Agent, any Bank,
or
any Issuing Bank, including, without limitation, any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto government
or
Governmental Authority. In furtherance and extension and not in limitation
of
the specific provisions hereinabove set forth, any action taken or omitted
by an
Issuing Bank under or in connection with the Facility Letters of Credit or
any
related certificates, if taken or omitted in good faith and not constituting
gross negligence or willful misconduct, shall not put the Issuing Bank, the
Agent, or any Bank under any resulting liability to the Borrower or relieve
the
Borrower of any of its obligations hereunder to any such
Person.
Issuing
Bank's Reporting Requirements. In addition to the reports required
by Section 3.5, each Issuing Bank shall, no later than the tenth (10th) Business
Day following the last day of each quarter of such Issuing Bank's fiscal
year,
provide to the Agent and the Borrower a schedule for Standby Letters of Credit
issued as Facility Letters of Credit, in form and substance reasonably
satisfactory to the Agent, showing the date of issue, beneficiary, face amount,
expiration date, and the reference number of each Facility Letter of Credit
issued
by
such Issuing Bank which was outstanding at any time during such quarter and
the
aggregate amount payable by the Borrower during the quarter pursuant to Section
3.9.
Compensation
for Facility Letters of Credit
Facility
Letter of Credit Fee. The Borrower agrees to pay to the
Agent, for the account of each Bank, in the case of each Letter of Credit
issued
as, or converted to (for transactions which convert Letters of Credit in
existence on the Closing Date to Facility Letters of Credit pursuant to Section
3.10), a Facility Letter of Credit, a facility letter of credit fee (the
“Facility Letter of Credit Fee”) payable quarterly in arrears equal to the
applicable Facility Letter of Credit Fee Percentage of the average amount
available to be drawn under such Letter of Credit during the quarter then
ending
multiplied by the actual number of days during such quarter on which such
Letter
of Credit was outstanding, divided by 360 but no less than $500.00 per Facility
Letter of Credit per year. The Borrower shall also pay to the Agent in the
event
of any extension or modification of a Facility Letter of Credit which extends
the expiration date or increases the maximum amount available for drawing
thereunder an additional fee calculated and payable on the same basis as
that
set forth in the first sentence of this Section 3.9(a) with respect to any
such
extension or additional amount. Whenever an Issuing Bank receives a payment
from
the Borrower with respect to any fees incurred in connection with any Facility
Letter of Credit issued by such Issuing Bank, such Issuing Bank shall promptly
remit to the Agent, and the Agent shall promptly remit to each Bank which
has
funded its participation in such Facility Letter of Credit, in Dollars and
in
same day funds, an amount equal to such Bank's Pro Rata Percentage of such
fees.
Issuing
Bank's Charges.
Each Issuing Bank shall have the right to receive, solely for its own account,
such amounts as it and the Borrower may agree, in writing, to compensate
such
Issuing Bank with respect to issuance fees and such Issuing Bank's out-of-pocket
costs of issuing and servicing Facility Letters of Credit.
Increased
Capital.
If either (i) the introduction of or any change in or in the interpretation
of
any law or regulation, or (ii) compliance by any Issuing Bank or any Bank
with
any guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law) affects or would affect (by an amount
deemed by such Issuing Bank to be material) the capital required or expected
to
be maintained by it or any corporation controlling it, and such Bank or such
Issuing Bank determines, on the basis of reasonable allocations, that the
amount
of such capital is increased by (an amount deemed by such Issuing Bank to
be
material) or is based (to a degree deemed by such Issuing Bank to be material)
upon its issuance or maintenance of or participation in, or commitment to
issue
or to participate in, the Facility Letters of Credit then, upon demand by
such
Bank or such Issuing Bank, the Borrower shall immediately pay to the Agent
(for
the account of each Bank) or such Issuing Bank, from time to time as specified
by such Bank or such Issuing Bank, additional amounts sufficient to compensate
such Bank or such Issuing Bank therefor. A certificate as to such amounts
submitted to the Borrower by such Bank or such Issuing Bank shall, in the
absence of manifest error, be conclusive and binding for all
purposes.
Transitional
Provisions. Schedule
3.10
contains a schedule of certain Letters of Credit issued for the account of
the
Borrower prior to the Closing Date by one or more of the Issuing Banks. Subject
to the satisfaction of the conditions precedent contained in Section 8, on
the
Closing Date (a) such Letters of Credit shall be deemed to be converted into
Facility Letters of Credit issued pursuant to Section 3.3; and (b) the face
amount of such Letters of Credit shall be included in the calculation of
the
Facility Letter of Credit Obligations.
PAYMENTS
AND PREPAYMENTS
Required
Prepayments
The
Borrower agrees that if at any time it or the Agent determines that the sum
of
(i) the aggregate principal amount of Loans outstanding and (ii) the face
amount
of Facility Letters of Credit issued hereunder exceeds the Commitments, then
the
Borrower shall make a prepayment of principal of the Loans in an amount at
least
equal to such excess.
Upon
the Borrower's reduction or termination of the Commitments under Section
4.6,
the Borrower shall make such prepayments as are required by the terms of
Section
4.6.
Repayment
of the Loans. Borrower shall repay the principal amount of each
Loan, on the last day of the Rate Period for such Loan, together with all
accrued and unpaid interest thereon as of such
date,
irrespective of any claim, set off, defense, or other right which the Borrower
may have at any time against any Bank, the Agent or any other
Person.
Place
of
Payment or Prepayment. All
payments and prepayments made in accordance with the provisions of this
Agreement or of the Notes or of any other Loan Document or of the Letter
of
Credit Reimbursement Agreements in respect of commitment fees or of principal
or
interest on the Notes shall be made to the Agent for the account of the Banks
at
its Domestic Lending Office, no later than noon, Houston time, in immediately
available funds. Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks hereunder that
the
Borrower will not make any payment due hereunder in full, the Agent may assume
that the Borrower has made such payment in full to the Agent on such date
and
the Agent may, in reliance upon such assumption, cause to be distributed
to each
Bank on such due date an amount equal to the amount then due to such Bank.
If
and to the extent the Borrower shall not have so made such payment in full
to
the Agent, each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from
the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Agent, at the Federal Funds Rate. If and to the extent
that
the Agent receives any payment or prepayment from the Borrower and fails
to
distribute such payment or prepayment to the Banks ratably on the basis of
their
respective Pro Rata Percentage on the day the Agent receives such payment
or
prepayment, and such distribution shall not be so made by the Agent in full
on
the required day, the Agent shall pay to each Bank such Bank's Pro Rata
Percentage thereof together with interest thereon at the Federal Funds Rate
for
each day from the date such amount is paid to the Agent by the Borrower until
the date the Agent pays such amount to such Bank.
No
Prepayment Premium or Penalty.
Each prepayment pursuant to Section 4.1 or 4.3 shall be without premium or
penalty, subject in the case of Eurodollar Rate Loans to the provisions of
Section 2.3(d).
Taxes.
All payments (whether of principal, interest, reimbursements or otherwise)
under
this Agreement or on the Notes or in respect of Facility Letter of Credit
Obligations shall be made by
the
Borrower without set off or counterclaim and shall be made free and clear
of and
without deduction for any present or future tax, levy, impost or any other
charge, if any, of any nature whatsoever now or hereafter imposed by any
taxing
authority. If the making of such payments is prohibited by law, unless such
a
tax, levy, impost or other charge is deducted or withheld therefrom, the
Borrower shall pay to the Banks, on the date of each such payment, such
additional amounts as may be necessary in order that the net amounts received
by
the Banks after such deduction or withholding shall equal the amounts which
would have been received if such deduction or withholding were not
required.
Reduction
or Termination of Commitments.
The Borrower may at any time or from time to time reduce or terminate the
Commitment of each Bank by giving not less than ten (10) full Business Days'
prior written notice to such effect to the Agent, provided that any partial
reduction shall be in the amount of $1,000,000.00 or an integral multiple
thereof. Concurrently with each such reduction or termination, all amounts
in
excess of the reduced Commitments shall be automatically due and payable
and it
is a condition to the effectiveness of such reduction that the Borrower shall
immediately prepay the entire amount of such excess together with all accrued
interest thereon and such other amounts that may be required to be paid in
consequence of such prepayment under Section 2.3(d). Promptly after the Agent's
receipt of such notice of reduction, the Agent shall notify each Bank of
the
proposed reduction and such reduction shall be effective on the date specified
in the Borrower's notice with respect to such reduction and shall reduce
the
Commitment of each Bank proportionately in accordance with its Pro Rata
Percentage (and such reduction shall also ratably reduce the Commitments
related
to Facility Letters of Credit). After each such reduction, the commitment
fee
shall be calculated upon the Commitments as so reduced. The Commitment of
each
Bank shall automatically terminate on the Maturity Date or in the event of
acceleration of the maturity date of the Notes. Each reduction of the Commitment
hereunder shall be irrevocable.
COMMITMENT
FEE AND OTHER FEES
Commitment
Fee. The
Borrower agrees to pay to the Agent for the account of each Bank a commitment
fee based on a year of 360
days,
from the Closing Date to, but not including, the Maturity Date (or such earlier
date as of which all Commitments shall have terminated), on the daily average
unused amount of each Bank’s Commitment, such commitment fee to be payable
quarterly in arrears on (a) the last day of each March, June, September,
and
December, commencing on September 30, 2005 and (b) the Maturity Date, at
a rate
per annum changing with the rating of the Borrower’s unsecured, non-credit
enhanced Senior Funded Debt, and determined in accordance with the following
grid:
|
Rating
of the Borrower’s
unsecured, non-credit enhanced Senior Funded Debt
|
Percentage
Per Annum
|
|
Equal
to or greater than A3 by ▇▇▇▇▇’▇ Investor Service, Inc. and
equal to or greater than A- by Standard and Poor’s Ratings
Group
|
0.080%
|
|
Baa1
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BBB+ by Standard and Poor’s Ratings Group
|
0.100%
|
|
Baa2
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BBB by Standard and Poor’s Ratings Group
|
0.110%
|
|
Baa3
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BBB- by Standard and Poor’s Ratings Group
|
0.150%
|
|
Ba1
by ▇▇▇▇▇’▇ Investor Service, Inc. or
BB+ by Standard and Poor’s Ratings Group
|
0.200%
|
|
Less
than Ba1 by ▇▇▇▇▇’▇ Investor Service, Inc. and
less than BB+ by Standard and Poor’s Ratings Group
|
0.250%
|
Notwithstanding
the foregoing provisions, in the event that ratings of the Borrower’s unsecured,
non-credit enhanced Senior Funded Debt under Standard & Poor’s Ratings Group
and under ▇▇▇▇▇’▇ Investor Service, Inc. fall within different rating categories
which are not functional equivalents, the above-described commitment fee
shall
be based on the higher of such ratings if there is only one category
differential between the functional equivalents of such ratings, and if there
is
a two category differential between the functional equivalents of such ratings,
the component of pricing from the grid set forth above shall be based on
the
rating category which is then in the middle of or between the two category
ratings which are then in effect, and if there is greater than a two category
differential between the functional equivalents of such ratings, the component
of pricing from the grid set forth above shall be based on the rating category
which is then one rating category above the lowest of the two category ratings
which are then in effect. Additionally, in the event that Borrower withdraws
from having its unsecured, non-
credit
enhanced Senior Funded Debt being rated by ▇▇▇▇▇’▇ Investor Service, Inc. or
Standard and Poor’s Ratings Group, so that one or both of such ratings services
fails to rate the Borrower’s unsecured, non-credit enhanced Senior Funded Debt,
the component of pricing from the grid set forth above for purposes of
determining the applicable commitment fee for all periods thereafter shall
be
0.250% until such time as the Borrower subsequently causes its unsecured,
non-credit enhanced Senior Funded Debt to be rated by both of said ratings
services.
Facility
Letter of Credit Fee. The
Borrower shall pay to the Agent, for the account of each Issuing Bank, the
Facility Letter of Credit Fees as set forth in Section
3.9.
Fees
Not
Interest; Nonpayment. The
fees described in this Agreement represent compen-sation for services rendered
and to be rendered separate and apart from the lending of money or the provision
of credit and do not constitute compensation for the use, detention, or
forbearance of money, and the obligation of the Borrower to pay each fee
described herein shall be in addition to, and not in lieu of, the obligation
of
the Borrower to pay interest, other fees described in this Agree-ment, and
expenses otherwise described in this Agreement. Fees shall be payable when
due
in Dollars and in immediately available funds. The commitment fee referred
to in
Section 5.1 shall be non-refundable, and shall, to the fullest extent permitted
by law, bear interest, if not paid when due, at a rate per annum equal to
the
lesser of (a) five percent (5%) above the Alternate Base Rate as in effect
from
time to time or (b) the Highest Lawful Rate.
Utilization
Fee.
The Borrower agrees to pay to Agent, for the account of each Bank, a utilization
fee at a rate per annum equal to 0.100%, based on a year of 360 days, from
the
Closing Date to, but not including, the Maturity Date (or such earlier date
as
of which the Commitments have been terminated), on the daily average of the
aggregate principal amount of the Loans outstanding on those days when such
aggregate principal amount of the Loans outstanding exceeds fifty percent
(50%)
of the aggregate amount of the Commitments, such utilization fee to be payable
quarterly in arrears on (a) the last day of each March, June, September,
and
December, commencing on September 30, 2005, and (b) the Maturity
Date.
APPLICATION
OF PROCEEDS
6.1 Application
of Proceeds. The
Borrower agrees that the proceeds of the Loans shall be used to provide working
capital and for general corporate purposes, including without limitation,
financing the Borrower’s (i) acquisition of Qualifying Assets, (ii) open market
acquisition of its Senior Notes, and (iii) repurchase of its own common stock
and preferred equity securities to the extent permitted under the terms of
Section
10.11.
REPRESENTATIONS
AND WARRANTIES
The
Borrower represents and warrants that:
Organization
and Qualification.
The Borrower and each Subsidiary: (a) are corporations duly organized, validly
existing, and in good standing under the laws of their respective states
of
incorporation; (b) have the corporate or organizational power to own their
respective properties and to carry on their respective businesses as now
conducted; and (c) are duly qualified as foreign corporations (or, in the
case
of any Southern Union Trust, trusts) to do business and are in good standing
in
every jurisdiction where such qualification is necessary except when the
failure
to so qualify would not or does not have a Material Adverse Effect. The Borrower
is a corporation organized under the laws of Delaware and has the Subsidiaries
listed on Schedule
7.1
attached hereto and made a part hereof for all purposes, and no others, each
of
which is a Delaware corporation unless otherwise noted on Schedule
7.1.
None of the Subsidiaries listed on Schedule
7.1
as “Inactive Subsidiaries” conducts or will conduct any business, and none of
such Subsidiaries has any assets other than minimum legal
capitalization.
Financial
Statements.
The Borrower has furnished the Banks with (a) the Borrower’s annual audit
reports containing the Borrower’s consolidated balance sheets, statements of
income and stockholder's equity and a cash flow statements as at and for
the
twelve month period ending December 31, 2004, accompanied by the certificate
of
Price Waterhouse Coopers and (b) the Borrower’s unaudited financial report as of
the fiscal quarter ending June 30, 2005. These statements are complete and
correct and present fairly in accordance with GAAP, consistently applied
throughout the periods involved, the consolidated financial position of the
Borrower and the Subsidiaries
and
the results of its and their operations as at the dates -and for the periods
indicated subject, as to interim statements only, to changes resulting from
customary end-of-year credit adjustments which in the aggregate will not
be
material.
Litigation.
Except as disclosed on Schedule
7.3
or pursuant to Section 7.16, there is no: (a) action or proceeding pending
or,
to the knowledge of the Borrower, threatened against the Borrower or any
Subsidiary before any court, administrative agency or arbitrator which is
reasonably expected to have a Material Adverse Effect; (b) judgment outstanding
against the Borrower for the payment of money; or (c) other outstanding
judgment, order or decree affecting the Borrower or any Subsidiary before
or by
any administrative or governmental authority, compliance with or satisfaction
of
which may reasonably be expected to have a Material Adverse Effect.
Default.
Neither the Borrower nor any Subsidiary is in default under or in violation
of
the provisions of any instrument evidencing any Debt or of any agreement
relating thereto or any judgment, order, writ, injunction or decree of any
court
or any order, regulation or demand of any administrative or governmental
instrumentality which default or violation might have a Material Adverse
Effect.
Title
to
Assets. The
Borrower and each Subsidiary have good and marketable title to their respective
assets, subject to no Liens except those permitted in Section
10.2.
Payment
of Taxes. The
Borrower and each Subsidiary have filed all tax returns required to be filed
and
have paid all taxes shown on said returns and all assessments which are due
and
payable (except such as are being contested in good faith by appropriate
proceedings for which adequate reserves for their payment have been provided
in
a manner consistent with the accounting practices followed by the Borrower
as of
June 30, 2005). The Borrower is not aware of any pending investigation by
any
taxing authority or of any claims by any governmental authority for any unpaid
taxes, except as disclosed on Schedule
7.6.
Conflicting
or Adverse Agreements or Restrictions.
Neither the Borrower nor any Subsidiary is a party to any contract or agreement
or subject to any restriction which would have a Material Adverse
Effect.
Neither the execution and delivery of this Agreement or the Notes or any
other
Loan Document nor the consummation of the transactions contemplated hereby
nor
fulfillment of and compliance with the respective terms, conditions and
provisions hereof or of the Notes or of any instruments required hereby will
conflict with or result in a breach of any of the terms, conditions or
provisions of, or constitute a default under, or result in any violation
of, or
result in the creation or imposition of any lien (other than as contemplated
or
permitted by this Agreement) on any of the property of the Borrower or any
Subsidiary pursuant to (a) the charter or bylaws applicable to the Borrower
or
any Subsidiary; (b) any law or any regulation of any administrative or
governmental instrumentality; (c) any order, writ, injunction or decree of
any
court; or (d) the terms, conditions or provisions of any agreement or instrument
to which the Borrower or any Subsidiary is a party or by which it is bound
or to
which it is subject.
Authorization,
Validity, Etc.
The Borrower has the corporate power and authority to make, execute, deliver
and
carry out this Agreement and the transactions contemplated herein, to make
the
borrowings provided for herein, to execute and deliver the Notes and to perform
its obligations hereunder and under the Notes and the other Loan Documents
to
which it is a party and all such action has been duly authorized by all
necessary corporate proceedings on its part. This Agreement has been duly
and
validly executed and delivered by the Borrower and constitutes the valid
and
legally binding agreement of the Borrower enforceable in accordance with
its
terms, except as limited by Debtor Laws; and the Notes and the other Loan
Documents, when duly executed and delivered by the Borrower pursuant to the
provisions hereof, will constitute the valid and legally binding obligation
of
the Borrower enforceable in accordance with the terms thereof and of this
Agreement, except as limited by Debtor Laws.
Investment
Company Act Not Applicable. Neither
the Borrower nor any Subsidiary is an "investment company” or a company
"controlled” by an "investment company”, within the meaning of the Investment
Company Act of 1940, as amended.
Public
Utility Holding Company Act Not Applicable. Neither
the Borrower nor any Subsidiary is a "holding company”, or a "subsidiary
company”
of a "holding company”, or an "affiliate” of a "holding company”, or an
affiliate of a "subsidiary company” of a "holding company”, as such terms are
defined in the Public Utility Holding Company Act of 1935, as
amended.
Regulations
G, T, U and X. No
Loan shall be a "purpose credit secured directly or indirectly by margin
stock”
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System ("margin stock”); none of the proceeds of any Loan will be used
to extend credit to others for the purpose of purchasing or carrying any
margin
stock, or for any other purpose which would constitute this transaction a
"purpose credit secured directly or indirectly by margin stock” within the
meaning of said Regulation U, as now in effect or as the same may hereafter
be
in effect. Neither the Borrower nor any Subsidiary will take or permit any
action which would involve the Banks in a violation of Regulation G, Regulation
T, Regulation U, Regulation X or any other regu-lation of the Board of Governors
of the Federal Reserve System or a violation of the Securities Exchange Act
of
1934, in each case as now or hereafter in effect. After applying proceeds
of the
Loans used to acquire the equity interests described in the definition of
"Qualifying Assets”, not more than twenty-five percent (25%) of the value (as
determined by any reasonable method) of the assets subject to the negative
pledge set forth in Section 10.2 of the Credit Agreement and the restrictions
on
dis-position of assets set forth in Section 10.8 of the Credit Agreement
is
represented by margin stock.
ERISA.
No
Reportable Event (as defined in § 4043(c) of ERISA) has occurred with respect to
any Plan. Except
as
provided in Schedule 7.12,
each Plan complies in all material respects with applicable provisions of
ERISA,
and the Borrower and each Subsidiary have filed all reports required by ERISA
and the Code to be filed with respect to each Plan. Except
as provided in Schedule 7.12, the
Borrower has no knowledge of any event which could result in a liability
of the
Borrower or any Subsidiary to the Pension Benefit Guaranty Corporation. The
Borrower and each Subsidiary have met all requirements with respect to funding
the Plans imposed by ERISA or the Code. Since the effective date of Title
IV of
ERISA, there have not been any, nor are there now existing any, events or
conditions that would permit any Plan to be terminated under circumstances
which
would cause the lien provided under § 4068 of ERISA to attach to any property of
the Borrower or any Subsidiary.
No
Financing of Certain Security Acquisitions.
None of the proceeds of any Loan will be used to acquire any security in
any
transaction that is subject to §▇▇ ▇▇ §▇▇ of the Securities Exchange Act of
1934, as amended, except the equity interests described in subparagraph (ii)
of
the definition of "Qualifying Assets”.
Franchises,
Co-Licenses, Etc. The
Borrower and each Subsidiary own or have obtained all the material governmental
permits, certificates of authority, leases, patents, trademarks, service
marks,
trade names, copyrights, franchises and licenses, and rights with respect
thereto, required or necessary (or, in the sole and independent judgment
of the
Borrower, prudent) in connection with the conduct of their respective businesses
as presently conducted or as proposed to be conducted.
Lines
of
Business. The
nature of the Borrower's lines of business are predominately the following:
(a)
the operation of energy distribution and transportation services, including
without limitation, natural gas sales, storage and transportation and
distribution, propane sales and distribution and promotion, marketing and
sale
of compressed natural gas and the terminalling and storage of liquefied natural
gas; (b) the development and marketing of fuel cell and distributive energy
options; (c) electric marketing/generation; (d) the operation of fuel oil
distribution and transportation networks; and (e) sales and rentals of
appliances utilizing one or more of the fuel or energy options specified
in this
Section 7.15.
Environmental
Matters.
Except as disclosed in Schedule
7.16,
all facilities and property owned or leased by the Borrower or any Subsidiary
have been and continue to be, owned or leased and operated by the Borrower
and
each Subsidiary in material compliance with all Environmental Laws; (i) there
has not been (during the period of the Borrower’s, or a Subsidiary's ownership
or lease) any Release of Hazardous Materials at, on or under any property
now
(or, to the Borrower’s knowledge, previously) owned or leased by the Borrower or
any Subsidiary (A) in quantities that would be required to be reported under
any
Environmental Law, (B) that required, or may reasonably be expected to require,
the Borrower to expend funds on
remediation
or cleanup activities pursuant to any Environmental Law except for remediation
or clean-up activities that would not be reasonably expected to have a Material
Adverse Effect, or (C) that otherwise, singly or in the aggregate, has, or
may
reasonably be expected to have, a Material Adverse Effect; (ii) the Borrower
and
each Subsidiary have been issued and are in material compliance with all
permits, certificates, approvals, orders, licenses and other authorizations
relating to environmental matters necessary for their respective businesses;
and
(iii) there are no polychlorinated biphenyls (PCB’s) or asbestos-containing
materials or surface impoundments in any of the facilities now (or, to the
knowledge of the Borrower, previously) owned or leased by the Borrower or
any
Subsidiary, except for PCB’s, surface impoundments, and asbestos-containing
materials of the type and in quantities that, to the knowledge of the borrower,
do not currently require remediation, and if remediation of such materials
or
conditions is hereafter required for any reason, such remediation activities
would not reasonably be expected to have a Material Adverse Effect; (iv)
Hazardous Materials have not been generated, used, treated, recycled, stored
or
disposed of in any of the facilities or on any of the property now (or, to
the
knowledge of the Borrower, previously) owned or leased by the Borrower or
any
Subsidiary during the time of the Borrower’s or such Subsidiary’s ownership or
leased by the Borrower or any Subsidiary during the time of the Borrower’s or
such Subsidiary's ownership except in material compliance with all applicable
Environmental Laws; and (v) all underground storage tanks located on the
property now (or, to the knowledge of the Borrower, previously) owned or
leased
by the Borrower or any Subsidiary have been (and to the extent currently
owned
or leased are) operated in material compliance with all applicable Environmental
Laws.
No
Agreements Prohibiting Pledge of Southern Union Panhandle Stock. Except
for the
applicable negative covenants of this Agreement, the Borrower is not a party
to
any contract or other agreement with any Person that directly or indirectly
prohibits the Borrower from granting any Lien against the stock or other
equity
interests in Southern Union Panhandle (whether common, preferred or another
class of equity ownership) at any time owned and held by the Borrower as
security for any Debt of the Borrower or any of its
Subsidiaries.
No
Agreements Prohibiting Pledge of CCE Holdings Equity. Except
for the applicable negative covenants of this Agreement
and the CCE Holdings LLC Agreement, neither the Borrower nor Southern Union
Panhandle is a party to any contract or other agreement with any Person that
directly or indirectly prohibits the Borrower or Southern Union Panhandle
from
granting any Lien against the equity interests in CCE Holdings (whether common,
preferred or another class of equity ownership) at any time owned and held
by
the Borrower or any of its Subsidiaries as security for any Debt of the Borrower
or any of its Subsidiaries.
CONDITIONS
The
obligation of the Banks to make any Loans or issue any Facility Letters of
Credit is subject to the following conditions:
Representations
True and No Defaults
The
representations and warranties contained in Section 7 shall be true and correct
on and as of the particular Borrowing Date as though made on and as of such
date;
The
Borrower shall not be in default in the due performance of any covenant on
its
part contained in this Agreement; and
no
Event of Default or Default shall have occurred and be
continuing.
Governmental
Approvals. The
Borrower shall have obtained all orders, approvals or consents of all public
regulatory bodies required for the making and carrying out of this Agreement,
the making of the borrowings pursuant hereto, the issuance of the Notes to
evidence such borrowings, and the execution and delivery of the Security
Documents.
Compliance
With Law.
The business and operations of the Borrower and each Subsidiary as conducted
at
all times relevant to the transactions contemplated by this Agreement to
and
including the close of business on the particular Borrowing Date shall have
been
and shall be in compliance in all material respects with all applicable State
and Federal laws, regulations and orders affecting the Borrower and each
Subsidiary and the business and operations of any of them.
Notice
of Borrowing and Other Documents. On
each Borrowing Date, the Banks shall have received (a) a Notice of Borrowing;
and (b) such other documents and certificates relating to the transactions
herein contemplated as the Banks may reasonably request.
Payment
of Fees and Expenses.
The Borrower shall have paid (a) all expenses of the type described in Section
13.3 through the date of such Loan or the issuance of such Facility Letter
of
Credit and (b) all closing, structuring and other invoiced fees owed as of
the
Closing Date to the Agent, any of the Banks and/or ▇. ▇. ▇▇▇▇▇▇ Securities
Inc.
by the Borrower under this Agreement or any other written agreement between
the
Borrower and the Agent, the applicable Bank(s) or ▇. ▇. ▇▇▇▇▇▇ Securities
Inc.
Loan
Documents, Opinions and Other Instruments.
As of the Closing Date, the Borrower shall have delivered to the Agent the
following: (a) this Agreement, each of the Notes and all other Loan Documents
required by the Agent and the Banks to be executed and delivered by the Borrower
in connection with this Agreement; (b) a certificate from the Secretary of
State
of the State of Delaware as to the continued existence and good standing
of the
Borrower in the State of Delaware; (c) a certificate from Secretary of State
of
the State of Texas as to the continued qualification of the Borrower to do
business in the State of Texas; (d) a current certificate from the Office
of the
Comptroller of the State of Texas as to the good standing of the Borrower
in the
State of Texas; (e) a Secretary’s Certificate executed by the duly elected
Secretary or a duly elected Assistant Secretary of the Borrower, in a form
acceptable to the Agent, whereby such Secretary or Assistant Secretary certifies
that one or more corporate resolutions adopted by the Board of Directors
of the
Borrower remain in full force and effect authorizing the Borrower to secure
Loans and Facility Letters of Credit in accordance with the terms of this
Agreement; and (f) a legal opinion from in-house counsel for the Borrower,
dated
as of the Closing Date, addressed to the Agent and the Lenders and otherwise
acceptable in all respects to the Agent in its discretion.
Financial
Condition.
As of the Closing Date only, no material adverse change shall have occurred
with
respect to the business, assets, properties or condition (financial or
otherwise) of the Borrower reflected in the quarterly financial statements
of
the
Borrower
dated June 30, 2005 (copies of such audited financial statements having been
supplied to the Agent and each Bank)
AFFIRMATIVE
COVENANTS
The
Borrower covenants and agrees that, so long as the Borrower may borrow hereunder
and until payment in full of the Notes, and its other obligations under this
Agreement and the other Loan Documents the Borrower will:
Financial
Statements and Information.
Deliver to the Banks:
as
soon as available, and in any event within 120 days after the end of each
fiscal
year of the Borrower, a copy of the annual audit report of the Borrower and
the
Subsidiaries for such fiscal year containing a balance sheet, statements
of
income and stockholders equity and a cash flow statement, all in reasonable
detail and certified by Price Waterhouse Coopers or another independent
certified public accountant of recognized standing satisfactory to the Banks.
The Borrower will obtain from such accountants and deliver to the Banks at
the
time said financial statements are delivered the written statement of the
accountants that in making the examination necessary to said certification
they
have obtained no knowledge of any Event of Default or Default, or if such
accountants shall have obtained knowledge of any such Event of Default or
Default, they shall state the nature and period of existence thereof in such
statement; provided that such
accountants shall not be liable directly or indirectly to the Banks for failure
to obtain knowledge of any such Event of Default or Default;
and
as
soon as available, and in any event within sixty (60) days after the end
of each
quarterly accounting period in each fiscal year of the Borrower (excluding
the
fourth quarter), an unaudited financial report of the Borrower and the
Subsidiaries as at the end of such quarter and for the period then ended,
containing a balance sheet, statements of income and stockholders equity
and a
cash flow statement, all in reasonable detail and certified by a financial
officer of the Borrower to have been prepared in accordance with GAAP, except
as
may be explained in such certificate; and
copies
of all statements and reports sent to stockholders of the Borrower or filed
with
the Securities and Exchange Commission; and
such
additional financial or other information as the Banks may reasonably request
including, without limitation, copies of such monthly, quarterly, and annual
reports of gas purchases and sales
that
the Borrower is required to deliver to or file with governmental bodies pursuant
to tariffs and/or franchise agreements.
All
financial statements specified in clauses (a) and (b) above shall be furnished
in consolidated and consolidating form for the Borrower and all Subsidiaries
with comparative consolidated figures for the corresponding period in the
preceding year. Together with each delivery of financial statements required
by
clauses (a) and (b) above, the Borrower will deliver to the Banks (i) such
schedules, computations and other information as may be required to demonstrate
that the Borrower is in compliance with its covenants in Section 10.1 or
reflecting any noncompliance therewith as at the applicable date and (ii)
an
Officer’s Certificate stating that there exists no Event of Default or Default,
or, if any such Event of Default or Default exists, stating the nature thereof,
the period of existence thereof and what action the Borrower has taken or
proposes to take with respect thereto. The Banks are authorized to deliver
a
copy of any financial statement delivered to it to any regulatory body having
jurisdiction over them, and to disclose same to any prospective assignees
or
participant Lenders.
Lease
and Investment Schedules.
Deliver to the Banks:
from
time to time and, in any event, with each delivery of annual financial
statements under Section 9.1(a), a current, complete schedule (in the form
of
Schedule 9.2) of all agreements to rent
or lease any property (personal, real or mixed, but not including oil and
gas
leases) to which the Borrower or any Subsidiary is a party lessee and which,
considered independently or collectively with other leases with the same
lessor,
involve an obligation by the Borrower or a Subsidiary to make payments of
at
least $1,000,000.00 in any year, showing the total amounts payable under
each
such agreement, the amounts and due dates of payments thereunder and containing
a description of the rented or leased property, and all other information
the
Majority Banks may request; and
with
each delivery of annual financial statements under Section 9.1(a) a current
complete schedule (in the form of Schedule
9.2)
listing all debt exceeding $1,000,000.00 in principal amount outstanding
and
equity owned or held by the Borrower or any Subsidiary containing all
information required by, and in a form satisfactory to, the Banks, except
for
such debt or equity of Subsidiaries.
Books
and Records. Maintain,
and cause each Subsidiary to maintain, proper books of record and account
in
accordance with sound accounting practices in which true, full and correct
entries will be made of all their respective dealings and business
affairs.
Insurance.
Maintain, and cause each Subsidiary to maintain, insurance with financially
sound, responsible and reputable companies in such types and amounts and
against
such casualties, risks and contingencies as is customarily carried by owners
of
similar
businesses
and properties, and furnish to the Banks, together with each delivery of
annual
financial statements under Section 9.1(a), an Officer's Certificate containing
full information as to the insurance carried.
Maintenance
of Property. Cause
its Significant Property and the Significant Property of each Subsidiary
to be
maintained, preserved, protected and kept in good repair, working order and
condition so that the business carried on in connection therewith may be
conducted properly and efficiently, except for normal wear and
tear.
Inspection
of Property and Records. Permit
any officer, director or agent of the Agent or any Bank, on written notice
and
at such Banks expense, to visit and inspect during normal business hours
any of
the properties, corporate books and financial records of the Borrower and
each
Subsidiary and discuss their respective affairs and finances with their
principal officers, all at such times as the Agent or any Bank may reasonably
request.
Existence,
Laws, Obligations. Maintain,
and cause each Subsidiary to maintain, its corporate existence and franchises,
and any license agreements and tariffs that permit the recovery of a return
that
the Borrower considers to be fair (and as to licenses, franchises, and tariffs
that are subject to regulatory determinations of recovery of returns, the
Borrower has presented or is presenting favorable defense thereof); and to
comply, and cause each Subsidiary to comply, with all statutes and governmental
regulations noncompliance with which might have a Material Adverse Effect,
and
pay, and cause each Subsidiary to pay, all taxes, assessments, governmental
charges, claims for labor, supplies, rent and other obligations which if
unpaid
might become a lien against the property of the Borrower or any Subsidiary
except liabilities being contested in good faith. Notwithstanding the foregoing,
the Borrower may dissolve those certain inactive and minimally capitalized
Subsidiaries designated as such on Schedule
7.1.
Notice
of
Certain Matters. Notify
the Agent Bank immediately upon acquiring knowledge of the occurrence of
any of
the following events: (a) the institution or threatened institution of any
lawsuit or administrative proceeding affecting the Borrower or any Subsidiary
that is not covered by insurance (less applicable deductible amounts)
and
which, if determined adversely to the Borrower or such Subsidiary, could
reasonably be expected to have a Material Adverse Effect; (b) the occurrence
of
any material adverse change, or of any event that in the good faith opinion
of
the Borrower is likely, to result in a material adverse change, in the assets,
liabilities, financial condition, business or affairs of the Borrower or
any
Subsidiary; (c) the occurrence of any Event of Default or any Default; or
(d) a
change by ▇▇▇▇▇'▇ Investors Service, Inc. or by Standard and Poor's Ratings
Group in the rating of the Borrower’s Funded Debt.
ERISA.
At all times:
to
the extent required of Borrower under applicable law, maintain
and keep in full force and effect each Plan,
subject to Borrower’s right, in accordance with applicable legal requirements,
(i) to amend any such Plans, (ii) to merge any such Plans, and to (iii) cease
benefit accruals under any such Plans;
to
the extent required of Borrower under applicable law, make
contributions to each Plan in a timely manner and in an amount sufficient
to
comply with the minimum funding standards requirements of
ERISA;
immediately
upon acquiring knowledge of any "reportable event” or of any "prohibited
transaction” (as such terms are defined in § 4043 and
§406 of ERISA)
in connection with any Plan, fur-nish the Banks with a statement executed
by the
president or chief financial officer of the Borrower setting forth the details
thereof and the action which the Borrower proposes to take with respect thereto
and, when known, any action taken by the Internal Revenue Service with respect
thereto;
notify
the Banks promptly upon receipt by the Borrower or any Subsidiary of any
notice
of the institution of any proceeding or other action which may result in
the
termination of any Plan and furnish to the Banks copies of such
notice;
to
the extent required of Borrower under applicable law, maintain
Pension Benefit Guaranty Corporation liability coverage insurance required
under
ERISA;
furnish
the Banks with copies of the summary annual report for each Plan filed with
the
Internal Revenue Service as the Agent or the Banks may request; and
furnish
the Banks with copies of any request for waiver of the funding standards
or
extension of the amortization periods required by § 303 and § 304 of
ERISA or § 412 of the Code promptly after the request is submitted to the
Secretary of the Treasury, the Department of Labor or the Internal Revenue
Service, as the case may be.
Compliance
with Environmental Laws.
At all times:
use
and operate, and cause each Subsidiary to use and operate, all of their
respective facilities and properties in material compliance with all
Environmental Laws; keep, and cause each Subsidiary to keep, all necessary
permits, approvals, orders, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material compliance
therewith; handle, and cause each Subsidiary to handle, all Hazardous Materials
in material compliance with all applicable Environmental Laws; and dispose,
and
cause each Subsidiary to dispose, of all Hazardous Materials generated by
the
Borrower or any Subsidiary or at any property owned or leased by them at
facilities or with carriers that maintain valid permits, approvals,
certificates, licenses or other authorizations for such disposal under
applicable Environmental Laws;
promptly
notify the Agent and provide copies upon receipt of all written claims,
complaints, notices or inquiries relating to the condition of the facilities
and
properties of the Borrower and each Subsidiary under, or their respective
compliance with, applicable Environmental Laws wherein the condition or the
noncompliance that is the subject of such claim, complaint, notice, or inquiry
involves, or could reasonably be expected to involve, liability of or
expenditures by the Borrower and its Subsidiaries of $10,000,000.00 or more;
and
provide
such information and certifications which the Banks may reasonably request
from
time to time to evidence compliance with this Section
9.10.
PGA
Clauses. The
Borrower will use its best efforts to maintain in force provisions in all
of its
tariffs and franchise agreements that permit the Borrower to recover from
customers substantially all of the amount by which the cost of gas purchases
exceeds the amount
currently
billed to customers for the delivery of such gas (sometimes referred to as
PGA
clauses).
NEGATIVE
COVENANTS
So
long
as the Borrower may borrow hereunder and until payment in full of the Notes,
except with the written consent of the Banks:
Capital
Requirements.
The Borrower will not:
permit
its Consolidated Net Worth at the end of any fiscal quarter to be less than
the
sum of (i) $1,267,663,000; (ii) 40% of Consolidated Net Income (if positive)
for
the period commencing on January 1, 2004 and ending on the date of
determination, and treated as a single accounting period; (iii) the difference
between (A) 100% of the net proceeds of any issuance of capital or preferred
stock or any other Equity-Preferred Securities by the Borrower or any
consolidated Subsidiary, including without limitation, the Additional Offering,
received by the Borrower or such consolidated Subsidiary at any time after
January 1, 2004; and (B) the aggregate amount of all redemption or repurchase
payments hereafter made, if any, by the Borrower and any such consolidated
Subsidiary in connection with the repurchase by the Borrower or any such
consolidated Subsidiary of any of their respective capital or preferred stock;
(iv) without duplication, the difference between (A) 100% of the net proceeds
heretofore and hereafter received by the Borrower and any consolidated
Subsidiary in respect of the issuance by the Borrower or such consolidated
Subsidiary of the Structured Securities, and (B) the aggregate amount of
all
redemption payments hereafter made, if any, by the Borrower and any such
consolidated Subsidiary in connection with the redemption of any of the
Structured Securities; and (v) the minority interests in the Borrower’s
Subsidiaries; or
permit
the ratio of its Consolidated Total Indebtedness to its Consolidated Total
Capitalization to be greater than 0.65 to 1.00 at the end of any fiscal quarter;
or
acquire,
or permit any Subsidiary to acquire, any assets other than (i) investments
permitted under Section 10.4, or (ii) Qualifying Assets;
or
permit
the ratio of EBDIT to Cash Interest Expense for the four fiscal quarters
most
recently ended (considered as a single accounting period) at any time to
be less
than 2.00 to 1.00 at all times.
Mortgages,
Liens, Etc. The
Borrower will not, and will not permit any Subsidiary to, create or permit
to
exist any Lien (including the charge upon assets purchased under a conditional
sales agreement, purchase money mortgage, security agreement or other title
retention agreement) upon any of its respective assets, whether now owned
or
hereafter acquired, or assign or otherwise convey any right to receive income,
except:
Liens
for taxes not yet due or that are being contested in good faith by appropriate
proceedings;
other
Liens incidental to the conduct of its business or the ownership of its assets
that were not incurred in connection with the borrowing of money or the
obtaining of advances or credit, and that do not in the aggregate materially
detract from the value of such assets or materially impair the use thereof
in
the operation of such business;
Liens
on assets of a Subsidiary to secure obligations of such Subsidiary to the
Borrower or another Subsidiary; and
(i)
Liens on property existing at the time of acquisition thereof by the Borrower
or
any Subsidiary, including without limitation, (A) any property acquired by
the
Borrower in consummating and finalizing any of the Prior Acquisitions, (B)
any
Liens existing on any property of Panhandle Eastern or any of its Subsidiaries
to secure existing Debt of Panhandle Eastern or any of its Subsidiaries as
of
the Closing Date and (C) any Liens against any property of Panhandle Eastern
or
any of its Subsidiaries to secure Panhandle Eastern Refinancing Debt
(provided such Liens are limited to
property of Panhandle Eastern or any of its Subsidiaries securing the Debt
so
extended, refinanced, renewed, replaced, defeased or refunded), or (ii) purchase
money Liens placed on an item of real or personal property purchased by the
Borrower or any Subsidiary to secure a portion of the purchase price of such
property; provided that no such Lien
may encumber or cover any other property of the Borrower or any
Subsidiary.
Debt.
The
Borrower will not, and will not permit any Subsidiary to, incur or permit
to
exist any Debt, except:
Debt
evidenced by the Notes or the Facility Letter of Credit Obligations, or issued
pursuant to the Additional Offering and any
Equity-Preferred
Securities (to the extent the same constitutes Debt) not in default, as well
as
(i) Debt of Panhandle Eastern and/or any of its Subsidiaries outstanding
as of
the Closing Date, (ii) any Panhandle Eastern Refinancing Debt, (iii) any
working
capital credit facility or facilities provided directly to Panhandle Eastern
and/or any of Panhandle Eastern’s Subsidiaries by any party other than the
Borrower, so long as the principal amount of all such outstanding working
capital facilities, together with the outstanding principal amount of any
working capital loans or advances by the Borrower to Panhandle Eastern and/or
any of Panhandle Eastern’s Subsidiaries, does not exceed (A) $50,000,000 in the
aggregate at any time that the ratio of Consolidated Total Indebtedness to
Consolidated Total Capitalization for Panhandle Eastern and Panhandle Eastern’s
Subsidiaries (excluding the Borrower and all other Subsidiaries of the Borrower
for purposes of such calculation) is greater than 0.65 to 1.00 and (B)
$75,000,000 in the aggregate at any time that the ratio of Consolidated Total
Indebtedness to Consolidated Total Capitalization for Panhandle Eastern and
Panhandle Eastern’s Subsidiaries (excluding the Borrower and all other
Subsidiaries of the Borrower for purposes of such calculation) is less than
or
equal to 0.65 to 1.00, (iv) any loans or advances of proceeds of the Additional
Offering by the Borrower (or Panhandle Eastern, if applicable) to CCE
Acquisition for purposes of financing the Cross Country Acquisition and (v)
any
loans or advances by the Borrower to Panhandle Eastern and/or any of the
Borrower’s other Subsidiaries permitted under Section 10.4(b);
Debt
of any Subsidiary to the Borrower or any other Subsidiary, except to the
extent
limited by the terms of Section 10.4(b), and Debt of the Borrower to any
Subsidiary;
Debt
existing as of June 30, 2005 as reflected on financial statements delivered
under Section 7.2(b) and refinancings thereof other than Debt that has been
refinanced by the proceeds of Loans;
endorsements
in the ordinary course of business of negotiable instruments in the course
of
collection;
Debt
of the Borrower or any Subsidiary representing the portion of the purchase
price
of property acquired by the Borrower or such Subsidiary that is secured by
Liens
permitted by the provisions of Section 10.2(d); provided,
however,
that at no time may the aggregate principal amount of such Debt outstanding
exceed thirty percent (30%) of the Consolidated Net Worth of the Borrower
and
its Subsidiaries as of the applicable determination date;
Debt
evidenced by Senior Notes;
additional
Debt of the Borrower and Structured Securities of the Borrower and the Southern
Union Trusts, provided that after
giving effect to the issuance thereof, there shall exist no Default or Event
of
Default; and: (i) the ratio of Consolidated Total Indebtedness to Consolidated
Total Capitalization shall be no greater than 0.65 to 1.00 at all times;
(ii)
the ratio of EBDIT for the four fiscal quarters most recently ended to pro
forma
Cash Interest Expense for the following four fiscal quarters shall be no
less
than 2.00 to 1.0 at all times;
provided,
however,
that if the additional Debt
for which the determinations required to be made by this subparagraph (g)
will
be used to finance in whole or in part the consideration to be paid by the
Borrower for the acquisition of any entity otherwise permitted under the
terms
of this Agreement, the determination of EBDIT for purposes of this ratio
shall
include not only the EBDIT of the Borrower and its Subsidiaries for the four
fiscal quarters most recently ended, but shall also include the EBDIT of
such
entity to be acquired for such four fiscal quarters most recently ended;
and
(iii) (A) such Debt and Structured Securities shall have a final maturity
or
mandatory redemption date, as the case may be, no earlier than the Maturity
Date
and shall mature or be subject to mandatory redemption or mandatory defeasance
no earlier than the Maturity Date (as so extended) and shall be subject to
no
mandatory redemption or “put” to the Borrower or any Southern Union Trust
exercisable, or sinking fund or other similar mandatory principal payment
provisions that require payments to be made toward principal, prior to such
Maturity Date (as so extended); or (B) (x) such additional Debt shall have
a
final maturity date prior to the Maturity Date, (y) such additional Debt
shall
not exceed Two Hundred Fifty Million Dollars ($250,000,000.00) in the aggregate
plus Twenty Million Dollars ($20,000,000.00) of reimbursement obligations
incurred in connection with Non-Facility Letters of Credit issued by a Bank
or
Banks or by any other financial institution, and (z) such additional Debt
shall
be borrowed from a Bank or Banks as a loan or loans arising independent of
this
Agreement or shall be borrowed from a financial institution that is not a
Bank
under this Agreement; and
additional
Debt of Trunkline LNG Holdings or any of its Subsidiaries, so long as (i)
such
Debt is to Trunkline LNG Holdings and/or any of its Subsidiaries only and
is not
recourse in any respect to the Borrower or any other Subsidiary of the Borrower
(other than Panhandle Eastern and its Subsidiaries), (ii) the proceeds of
such
Debt
is used solely to finance capital expenditures of Trunkline LNG Holdings
and/or
its Subsidiaries, and (iii) after giving effect to such Debt, no Default
or
Event of Default shall exist.
Loans,
Advances and Investments.
The Borrower will not, and will not permit any Subsidiary to, make or have
outstanding any loan or advance to, or own or acquire any stock or securities
of
or equity interest or other Investment in, any Person, except (without
duplication):
stock
or other equity interests of (i) the Subsidiaries named in Section 7.1; (ii)
other entities that are acquired by the Borrower or any Subsidiary but that
are
promptly merged with and into the Borrower; (iii) Southern Union Panhandle,
Panhandle Eastern and any Subsidiaries of Panhandle Eastern acquired as a
result
of the Panhandle Eastern Acquisition; (iv) CCE Holdings; and (v) the same
Qualifying Entities as the Qualifying Entities under subparagraph (ii) of
the
definition of "Qualifying Assets,”provided that at any one time the
aggregate purchase price paid for such stock and other equity interests in
such
Qualifying Entities then held by the Borrower as of the determination date,
including the aggregate amount of Debt assumed or deemed incurred by the
Borrower in connection with the purchase of such stock and other equity
interests, is not more than twenty percent (20%) of the Consolidated Net
Worth
of the Borrower and its Subsidiaries as of the applicable determination date;
loans
or advances to a Subsidiary, as well as advances of proceeds of the Additional
Offering by the Borrower or Panhandle Eastern to CCE Acquisition for purposes
of
facilitating the consummation of the Cross Country Acquisition;
provided,
however,
that the principal amount of such loans and advances for working capital
purposes at any time outstanding to Panhandle Eastern and/or any of Panhandle
Eastern’s Subsidiaries, together with the principal amount of any outstanding
working capital credit facility or facilities provided directly to Panhandle
Eastern and/or any of Panhandle Eastern’s Subsidiaries by any party other than
the Borrower, does not exceed $25,000,000 in the aggregate at any
time;
Securities
maturing no more than 180 days after Borrower’s purchase that are
either:
readily
marketable securities issued by the United States or its agencies or
instrumentalities; or
commercial
paper rated "Prime 2” by ▇▇▇▇▇’▇ Investors Service, Inc. ("Moody’s”) or A-2 by
Standard and Poor’s Ratings Group ("S&P”); or
certificates
of deposit or repurchase contracts on customary terms with financial
institutions in which deposits are insured by any agency or instrumentality
of
the United States; or
readily
marketable securities received in settlement of liabilities created in the
ordinary course of business; or
obligations
of states, agencies, counties, cities and other political subdivisions of
any
state rated at lest MIG2, VMIG2 or Aa by Moody’s or AA by S&P;
or
loan
participations in credits in which the borrower’s debt is rated at least Aa or
Prime 2 by Moody’s or AA or A-2 by S&P; or
money
market mutual funds that are regulated by the Securities and Exchange
Commission, have a dollar-weighted average stated maturity of 90 days or
fewer
on their investments and include in their investment objectives the maintenance
of a stable net asset value of $1 for each share.
other
equity interests owned by a Subsidiary on the date of this Agreement and
such
additional equity interests to the extent (but only to the extent) that such
Subsidiary is legally obligated to acquire those interests on the date of
this
Agreement, in each case as disclosed to the Banks in
writing;
loans
or advances by the Borrower to customers in connection with and pursuant
to
marketing and merchandising products that the Borrower reasonably expects
to
increase sales of the Borrower or Subsidiaries,
provided that: (i) such loans must be
either less than $2,000,000.00 to any one customer (or group of affiliated
customers, shown on the Borrower’s records to be Affiliates) or must be
disclosed on Schedule 9.2 hereof; and
(ii) all such loans must not exceed $24,000,000.00 in the aggregate outstanding
at any time;
travel
and expense advances in the ordinary course of business to officers and
employees;
stock
or securities of or equity interests in, any Person provided that, after
giving
effect to the acquisition and ownership
thereof,
the Borrower is in compliance with the provisions of Section 10.1(c) of this
Agreement;
loans
or advances to any member of the CCE Group by the Borrower or any Subsidiary
not
otherwise permitted under the other provisions of this Section 10.4, so long
as
the sum of such loans and advances does not exceed $25,000,000 in the aggregate
at any time; and
loans,
advances or other Investments by the Borrower or any Subsidiary not otherwise
permitted under the other provisions of this Section 10.4, so long as the
sum of
the outstanding balance of all of such loans and advances and the purchase
price
paid for all of such other Investments does not exceed in the aggregate seven
percent (7%) of the Consolidated Net Worth of the Borrower and its Subsidiaries
as of the applicable determination date.
Stock
and Debt of Subsidiaries. The
Borrower will not, and will not permit any Subsidiary to, sell or otherwise
dispose of any shares of stock, other equity interests or Debt of any
Subsidiary, or permit any Subsidiary to issue or dispose of its stock (other
than directors' qualifying shares), except for the following: (i) the sale,
transfer or issuance of stock, other equity interests or Debt of any Subsidiary
to the Borrower or another Subsidiary of the Borrower; (ii) the sale of stock
in
Sea ▇▇▇▇▇ Pipeline Company and Debt of Sea ▇▇▇▇▇ Pipeline Company, (iii)
the
issuance by Southern Union Trusts of preferred beneficial interests in public
offerings of Borrower’s Structured Securities, and (iv) the issuance by other
Subsidiaries of the Borrower formed for the purpose of issuing Equity-Preferred
Securities.
Merger,
Consolidation, Etc. The
Borrower will not, and will not permit any Subsidiary to, merge or consolidate
with any other Person or sell, lease, transfer or otherwise dispose of (whether
in one transaction or a series of transactions) all or a substantial part
of its
assets or acquire (whether in one transaction or a series of transactions)
all
or a substantial part of the assets of any Person, except
that:
any
Subsidiary may merge or consolidate with the Borrower
(provided that the Borrower shall be
the continuing or surviving corporation) or with any one or more
Subsidiaries;
any
Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets
to the Borrower or another Subsidiary;
the
Borrower may acquire the assets of any Person,
provided that, after giving effect to
such acquisition, the Borrower is in compliance with the provisions of Sections
10.1(c); and
the
Borrower or any Subsidiary may sell, lease, assign or otherwise dispose of
assets as otherwise permitted under Section 10.8.
Supply
and Purchase Contracts. The
Borrower will not, and will not permit any Subsidiary to, enter into or be
a
party to any contract for the purchase of materials, supplies or other property
if such contract requires that payment for such materials, supplies or other
property shall be made regardless of whether or not delivery is ever made
or
tendered of such materials, supplies and other property, except in those
circumstances and involving those supply or purchase contracts that the Borrower
reasonably considers to be necessary or helpful in its operations in the
ordinary course of business and that the Borrower reasonably considers not
to be
unnecessarily burdensome on the Borrower or its
Subsidiaries.
Sale
or
Other Disposition of Assets. The
Borrower will not, and will not permit any Subsidiary to, except as permitted
under this Section 10.8, sell, assign, lease, or otherwise dispose of (whether
in one transaction or in a series of transactions) all or any part of its
Property (whether now owned or hereafter acquired); provided,
however,
that (i) the Borrower or any Subsidiary may in the ordinary course of business
dispose of (a) Property consisting of Inventory; and (b) Property con-sist-ing
of goods or equipment that are, in the opinion of the Borrower or any
Subsidiary, obsolete or unproductive, but if in the good faith judgment of
the
Borrower or any Subsidiary such disposition with-out replacement thereof
would
have a Material Adverse Effect, such goods and equipment shall be replaced,
or
their utility and function substituted, by new or existing goods or equipment;
(ii) the Borrower may transfer or dispose of any of its Significant
Property (in any transaction or series of transactions) to any Subsidiary
or
Subsidiaries only if such Property so transferred or disposed of after the
Closing Date has an aggregate value (determined after depreciation and in
accordance with GAAP) of not
more
than ten percent (10%) of the aggregate value of all of the Borrower’s and its
Subsidiaries’ real property and tangible personal property other than Inventory
considered on a consolidated basis and determined after depreciation and
in
accordance with GAAP, as of June 30, 2005; (iii) the Borrower may dispose
of its
real property in one or more sale/leaseback transactions, provided that any
Debt
incurred in connection with such transaction does not create a Default as
defined herein; (iv) a Southern Union Trust may distribute the Borrower’s
subordinated debt securities constituting a portion of the Structured
Securities, on the terms and under the conditions set out in the registration
state-ment therefor filed with the Securities and Exchange Commission on
March
25, 1995 or any similar registration statement filed with the Securities
and
Exchange Commission in connection with any other Structured Securities issued
in
connection with the Prior Acquisitions; (v) the Borrower or any Subsidiary
may dispose of real property or tangible personal property other than Inven-tory
(in consideration of such amount as in the good faith judgment of the Borrower
or such Subsidiary represents a fair consideration therefor), provided that
the
aggregate value of such property disposed of (determined after depreciation
and
in accordance with GAAP) after the Closing Date does not exceed ten percent
(10%) of the aggregate value of all of the Borrower’s and its Subsidiaries’ real
property and tangible personal property other than Inventory considered on
a
consolidated basis and deter-mined after depreciation and in accordance with
GAAP, as of June 30, 2005; (vi) the Borrower may dispose of Qualifying
Assets of the type described in clause (ii) of the definition of Qualifying
Assets, provided that the Borrower applies the net proceeds from such
disposition against the Loans in an amount equal to the amount of Loan proceeds
previously advanced to finance the acquisition of such clause (ii) Qualifying
Assets; (vii) the Borrower may dispose of other Investments of the
type
acquired under the terms of Section 10.4(h), provided that the Borrower applies
the net proceeds from such disposition against the Loans in an amount equal
to
the amount of Loan proceeds previously advanced to finance the acquisition
of
such other Investments; and (viii) the Borrower may sell all stock or all
or
substantially all of the assets in Sea ▇▇▇▇▇ Pipeline
Company.
Discount
or Sale of Receivables. The
Borrower will not, and will not permit any Subsidiary, other than Southern
Union
Total Energy
Services,
Inc., to discount or sell with recourse, or sell for less than the face value
thereof (including any accrued interest) any of its notes receivable,
receivables under leases or other accounts
receivable.
Change
in
Accounting Method.
The Borrower will not, and will not permit any Subsidiary to, make any change
in
the method of computing depreciation for either tax or book purposes or any
other material change in accounting method representing any departure from
GAAP
without the Majority Banks' prior written approval.
Restricted
Payment. The
Borrower will not pay or declare any -Restricted Payment unless immediately
prior to such payment and
after giving effect to such payment, the Borrower could incur at least $1
of
additional Debt without violating the provisions of Section 10.3(g)
and
after giving effect thereto no Default or Event of Default -exists hereunder;
provided,
however,
that the Borrower’s ability to purchase or agree to purchase its common stock
and/or preferred equity securities (including without limitation,
Equity-Preferred Securities) shall be limited as follows: (a) not more than
$50,000,000 in the aggregate of common stock and preferred equity securities
may
be repurchased per each fiscal year of the Borrower at any time the ratio
of
Consolidated Total Indebtedness to Consolidated Total Capitalization for
the
Borrower and its Subsidiaries is greater than 0.60 to 1.00; (b) not more
than
$100,000,000 in the aggregate of common stock and preferred equity securities
may be repurchased per each fiscal year of the Borrower at any time the ratio
of
Consolidated Total Indebtedness to Consolidated Total Capitalization for
the
Borrower and its Subsidiaries is less than or equal to 0.60 to 1.00; and
(c) no
repurchases of common stock or preferred equity securities may be made if
the
Borrower’s unsecured, non-credit enhanced senior debt as specified by Standard
& Poor’s Ratings Group and ▇▇▇▇▇’▇ Investor Service, Inc. falls below either
BBB- or Baa3, respectively.
Securities
Credit Regulations.
Neither the Borrower nor any Subsidiary will take or permit any action which
might cause the Loans or the Facility Letter of Credit Obligations or this
Agreement to violate Regulation G, Regulation T, Regulation U, Regulation
X or
any other regulation of the Board of Governors of the Federal Reserve System
or
a violation of the Securities Exchange Act of 1934, in each case as now or
hereafter in effect.
Nature
of Business; Management. The
Borrower will not, and will not permit any Subsidiary to: (a) change its
principal line of business; or (b) enter into any business not within the
scope
of Section 7.15 and the definition of Qualifying Assets; or (c) permit any
material overall change in the management of the Borrower.
Transactions
with Related Parties.
The Borrower will not, and will not permit any Subsidiary to, enter into
any
transaction or agreement with any officer, director or holder of ten percent
(10%) or more of any class of the outstanding capital stock of the Borrower
or
any Subsidiary (or any Affiliate of any such Person) unless the same is upon
terms substantially similar to those obtainable from wholly unrelated
sources.
Hazardous
Materials. The
Borrower will not, and will not permit any Subsidiary to (a) cause or permit
any
Hazardous Materials to be placed, held, used, located, or disposed of on,
under
or at any of such Person's property or any part thereof by any Person in
a
manner which could reasonably be expected to have a Material Adverse Effect;
(b)
cause or permit any part of any of such Person's property to be used as a
manufacturing, storage, treatment or disposal site for Hazardous Materials,
where such action could reasonably be expected to have a Material Adverse
Effect; or (c) cause or suffer any liens to be recorded against any of such
Person's property as a consequence of, or in any way related to, the presence,
remediation, or disposal of Hazardous Materials in or about any of such Person’s
property, including any so-called state, federal or local "superfund” lien
relating to such matters, where such recordation could reasonably be expected
to
have a Material Adverse Effect.
Limitations
on Payments on Subordinated Debt. The
Borrower will not, and will not permit any Subsidiary to, make any payment
in
respect of interest on, principal of, or other-wise relating to, the borrower’s
subordinated debt securities issued in connection with the Structured Securities
if, after giving effect to such payment, a Default or Event of Default would
exist.
No
Agreements Prohibiting Pledge of Southern Union Panhandle Stock. The
Borrower will not enter into any contract or other agreement with any Person
that directly or indirectly prohibits the Borrower from granting any Lien
against the stock or other equity
interests
in Southern Union Panhandle (whether common, preferred or another class of
equity ownership) at any time owned and held by the Borrower as security
for any
Debt of the Borrower or any of its Subsidiaries, other than the applicable
negative covenants of this Agreement.
No
Agreements Prohibiting Pledge of CCE Holdings Equity. Neither
the Borrower nor Southern Union Panhandle nor CCE Acquisition will enter
into
any contract or other agreement with any Person that directly or indirectly
prohibits the Borrower or Southern Union Panhandle or CCE Acquisition from
granting any Lien against the equity interests in CCE Holdings (whether common,
preferred or another class of equity ownership) at any time owned and held
by
the Borrower or any of its Subsidiaries as security for any Debt of the Borrower
or any of its Subsidiaries, other than the applicable negative covenants
of this
Agreement and the CCE Holdings LLC Agreement.
EVENTS
OF DEFAULT; REMEDIES
If
any of
the following events shall occur, then the Agent shall at the request, or
may
with the consent, of the holders of more than fifty percent (50%) in principal
amount of the Notes then outstanding or, if no Note is then outstanding,
Banks
having more than fifty percent (50%) of the Commitments, (a) by notice to
the
Borrower, declare the Commit-ment of each Bank and the several obligation
of
each Bank to make Loans hereunder to be termi-nated, whereupon the same shall
forthwith terminate, and (b) declare the Notes and all interest accrued and
unpaid thereon, and all other amounts payable under the Notes, this agreement
and the other Loan Documents, to be forthwith due and payable, whereupon
the
Notes, all such interest and all such other amounts, shall become and be
forthwith due and payable without presentment, demand, protest, or further
notice of any kind (including, without limitation, notice of default, notice
of
intent to accelerate and notice of acceleration), all of which are hereby
expressly waived by the Borrower; provided,
however,
that
with respect to any Event of Default described in Sections 11.7 or 11.8 here-of,
(i) the Commitment of each Bank and the obligation of the Banks to make Loans
shall automati-cally be terminated and (ii) the entire unpaid principal amount
of the Notes, all interest accrued and unpaid thereon, and all such other
amounts payable under the Notes, this Agreement and the other Loan Documents,
shall automatically become immediately due and payable, without presentment
demand, protest, or any notice of any kind (including, without limitation,
notice of default, notice of intent to accelerate and notice of acceleration),
all of which are hereby expressly waived by the Borrower:
Failure
to Pay Principal or Interest.
The Borrower does not pay, repay or prepay any principal of or interest on
any
Note when due.
Failure
to Pay Commitment Fee or Other Amounts.
The Borrower does not pay any commitment fee or any other obligation or amount
payable under this Agreement, the Notes, or any Letter of Credit Reimbursement
Agreement within five (5) calendar days after the same shall have become
due.
Failure
to Pay Other Debt.
The Borrower or any Subsidiary fails to pay principal or interest on any
other
Debt aggregating more than $3,000,000.00 when due and any related grace period
has expired, or the holder of any of such other Debt declares such Debt due
prior to its stated maturity because of the Borrower's or any Subsidiary's
default thereunder and the expiration of any related grace
period.
Misrepresentation
or Breach of Warranty.
Any representation or warranty made by the Borrower herein or otherwise
furnished to the Bank in connection with this Agreement or any other Loan
Document shall be incorrect, false or misleading in any material respect
when
made.
Violation
of Negative Covenants. The
Borrower violates any covenant, agreement or condition contained in Sections
10.2, 10.3, 10.5, 10.6, 10.8, 10.9, 10.10, 10.11, or
10.15.
Violation
of Other Covenants, Etc. The
Borrower violates any other covenant, agreement or condition contained herein
(other than the covenants, agreements and conditions set forth or described
in
Sections 11.1, 11.2, 11.3, 11.4, and 11.5 above) or in any other Loan Document
and such violation shall not have been remedied within (30) days after the
earlier of (i) actual discovery by the Borrower of such violation or (ii)
written notice has been received by the Borrower from the Bank or the holder
of
the Note.
Bankruptcy
and Other Matters.
The Borrower or any Subsidiary (a) makes an assignment for the benefit of
creditors; or (b) admits in writing its inability to pay its debts generally
as
they become due; or (c) generally fails to pay its debts as they become due;
or
(d) files a petition or answer seeking for itself, or consenting to or
acquiescing in, any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any applicable Debtor Law
(including, without limitation, the Federal Bankruptcy Code); or (i) there
is
appointed a receiver, custodian, liquidator, fiscal agent, or trustee of
the
Borrower or any Subsidiary or of the whole or any substantial part of their
respective assets; or (ii) any court enters an order, judgment or decree
approving a petition filed against the Borrower or any Subsidiary seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any Debtor Law and either such order,
decree or judgment so
filed
against it is not dismissed or stayed (unless and until such stay is no longer
in effect) within thirty (30) days of entry thereof or an order for relief
is
entered pursuant to any such law.
Dissolution.
Any order is entered in any proceeding against the Borrower or any Subsidiary
decreeing the dissolution, liquidation, winding-up or split-up of the Borrower
or such Subsidiary, and such order remains in effect for thirty (30)
days.
Undischarged
Judgment.
Final Judgment or judgments in the aggregate, that might be or give rise
to
Liens on any property of the Borrower or any Subsidiary, for the payment
of
money in excess of $5,000,000.00 shall be rendered against the Borrower or
any
Subsidiary and the same shall remain undischarged for a period of thirty
(30)
days during which execution shall not be effectively
stayed.
Environmental
Matters. The
occurrence of any of the following events that could result in liability
to the
Borrower or any Subsidiary under any Environmental Law or the creation of
a Lien
on any property of the Borrower or any Subsidiary in favor of any governmental
authority or any other Person for any liability under any Environmental Law
or
for damages arising from costs incurred by such Person in response to a Release
or threatened Release of Hazardous Materials into the environment if any
such
asserted liability or Lien exceeds $10,000,000.00 and if any such lien would
cover any property of the Borrower or any Subsidiary which property is or
would
reasonably be considered to be integral to the operations of the Borrower
or any
Subsidiary in the ordinary course of business:
the
Release of Hazardous Materials at, upon, under or within the property owned
or
leased by the Borrower or any Subsidiary or any contiguous
property;
the
receipt by the Borrower or any Subsidiary of any summons, claim, complaint,
judgment, order or similar notice that it is not in compliance with or that
any
governmental authority is investigating its compliance with any Environmental
Law;
the
receipt by the Borrower or any Subsidiary of any notice or claim to the effect
that it is or may be liable for the Release or threatened Release of Hazardous
Materials into the environment; or
any
governmental authority incurs costs or expenses in response to the Release
of
any Hazardous Material which affects in any way the properties of the Borrower
or any Subsidiary.
Other
Remedies.
In addition to and cumulative of any rights or remedies expressly provided
for
in this Section 11, if any one or more Events of Default shall have occurred,
the Agent shall at the request, and may with the consent, of the Majority
Banks
proceed to protect and enforce the rights of the Banks hereunder by any
appropriate proceedings. The Agent shall at the request, and may with the
consent, of the Majority Banks also proceed either by the specific performance
of any covenant or agreement contained in this Agreement or by enforcing
the
payment of the Notes or by enforcing any other legal or equitable right provided
under this Agreement or the Notes or otherwise existing under any law in
favor
of the holder of the Notes.
Remedies
Cumulative. No
remedy, right or power conferred upon the Banks is intended to be exclusive
of
any other remedy, right or power given hereunder or now or hereafter existing
at
law, in equity, or otherwise, and all such remedies, rights and powers shall
be
cumulative.
THE
AGENT
Authorization
and Action.
Each Bank hereby appoints JPMorgan as its Agent under and irrevocably authorizes
the Agent (subject to Sections 12.1 and 12.7) to take such action as the
Agent
on its behalf and to exercise such powers under this Agreement and the Notes
as
are delegated to the Agent by the terms thereof, together with such powers
as
are reasonably incidental thereto. Without limitation of the foregoing, each
Bank expressly authorizes the Agent to execute, deliver, and perform its
obligations under this Agreement, and to exercise all rights, powers, and
remedies that the Agent may have hereunder. As to any matters not expressly
provided for by this Agreement (including, without limitation, enforcement
or
collection of the Notes), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act, or to refrain
from
acting (and shall be fully protected in so acting or refraining from acting),
upon the instructions of the Majority Banks, and such
instructions
shall be binding upon all the Banks and all holders of any Note;
provided,
however,
that the Agent shall not be
required to take any action which exposes the Agent to personal liability
or
which is contrary to this Agreement or applicable law. The Agent agrees to
give
to each Bank prompt notice of each notice given to it by the Borrower pursuant
to the terms of this Agreement.
Agent's
Reliance, Etc.
Neither the Agent nor any of its directors, officers, agents, or employees
shall
be liable to any Bank for any action taken or omitted to be taken by it or
them
under or in connection with this Agreement, the Notes and the other Loan
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (a) may
treat
the original or any successor holder of any Note as the holder thereof until
the
Agent receives notice from the Bank which is the payee of such Note concerning
the assignment of such Note; (b) may employ and consult with legal counsel
(including counsel for the Borrower), independent public accountants, and
other
experts selected by it and shall not be liable to any Bank for any action
taken,
or omitted to be taken, in good faith by it or them in accordance with the
advice of such counsel, accountants, or experts received in such consultations
and shall not be liable for any negligence or misconduct of any such counsel,
accountants, or other experts; (c) makes no warranty or representation to
any
Bank and shall not be responsible to any Bank for any opinions, certifications,
statements, warranties, or representations made in or in connection with
this
Agreement; (d) shall not have any duty to any Bank to ascertain or to inquire
as
to the performance or observance of any of the terms, covenants, or conditions
of this Agreement or any other instrument or document furnished pursuant
thereto
or to satisfy itself that all conditions to and requirements for any Loan
have
been met or that the Borrower is entitled to any Loan or to inspect the property
(including the books and records) of the Borrower or any Subsidiary; (e)
shall
not be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency, or value of this Agreement or any
other instrument or document furnished pursuant thereto; and (f) shall incur
no
liability under or in respect of this Agreement by acing upon any notice,
consent, certificate, or other instrument or writing (which may be by telegram,
cable, telex, or
otherwise)
believed by it to be genuine and signed or sent by the
proper party or
parties.
Defaults.
The Agent shall not be deemed to have knowledge of the occurrence of a Default
(other than the nonpayment of principal of or interest hereunder or of any
fees)
unless the Agent has received notice from a Bank or the Borrower specifying
such
Default and stating that such notice is a Notice of Default. In the event
that
the Agent receives such a notice of the occurrence of a Default, the Agent
shall
give prompt notice thereof to the Banks (and shall give each Bank prompt
notice
of each such nonpayment). The Agent shall (subject to Section 12.7) take
such
action with respect to such Default; provided that,
unless and until the Agent shall have received the directions referred to
in
Sections 12.1 or 12.7, the Agent may (but shall not be obligated to) take
such
action, or refrain from taking such action, with respect to such Default
as it
shall deem advisable and in the best interest of the
Banks.
JPMorgan
and Affiliates. With
respect to its Commitment, any Loan made by it, and the Note issued to it,
JPMorgan shall have the same rights and powers under this Agreement as any
other
Bank and may exercise the same as though it were not the Agent; and the term
"Bank" or "Banks" shall, unless otherwise expressly indicated, include JPMorgan
in its individual capacity. JPMorgan and its respective Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any of its respective
Affiliates and any Person who may do business with or own securities of the
Borrower or any such Affiliate, all as if JPMorgan were not the Agent and
without any duty to account therefor to the Banks.
Non-Reliance
on Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on the Agent
or
any other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and each Subsidiary
and its decision to enter into the transactions contemplated by this Agreement
and that it will, independently and without reliance upon the Agent or any
other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or
not
taking action under this Agreement. The Agent shall not be required
to
keep itself informed as to the performance or observance by the Borrower
of this
Agreement or to inspect the properties or books of the Borrower or any
Subsidiary. Except for notices, reports, and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Bank with
any
credit or other information concerning the affairs, financial condition,
or
business of the Borrower or any Subsidiary (or any of their Affiliates) which
may come into the possession of the Agent or any of its
Affiliates.
Indemnification.
Notwithstanding anything to the contrary herein contained, the Agent shall
be
fully justified in failing or refusing to take any action hereunder unless
it
shall first be indemnified to its satisfaction by the Banks against any and
all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits,
costs, expenses, and disbursements of any kind or nature whatsoever which
may be
imposed on, incurred by or asserted against the Agent in any way relating
to or
arising out of its taking or continuing to take any action. Each Bank agrees
to
indemnify the Agent (to the extent not reimbursed by the Borrower), according
to
such Bank's Commitment, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against the Agent in any way relating to or arising out of
this
Agreement or the Notes or any action taken or omitted by the Agent under
this
Agreement or the Notes; provided that
no Bank
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or disbursements
resulting from the gross negligence or willful misconduct of the person being
indemnified; and provided further
that it
is the intention of each Bank to indemnify the Agent against the consequences
of
the Agent's own negligence, whether such negligence be sole, joint, concurrent,
active or passive. Without limitation of the foregoing, each Bank agrees
to
reimburse the Agent promptly upon demand for its Pro Rata Percentage of any
out-of-pocket expenses (including attorneys' fees) incurred by the Agent
in
connection with the preparation, administration, or enforcement of, or legal
advice in respect of rights or responsibilities under, this Agreement and
the
Notes, to the extent that the Agent is not reimbursed for such expenses by
the
Borrower.
Successor
Agent. The
Agent may resign at any time as Agent under this Agreement by giving written
notice thereof to the Banks and the Borrower and may be removed at any time
with
or without cause by the Majority Banks. Upon any such resignation or removal,
the Majority Banks shall have the right to appoint a successor Agent. If
no
successor Agent shall have been so appointed by the Majority Banks or shall
have
accepted such appointment within thirty (30) days after the retiring Agent's
giving of notice of resignation or the Majority Banks' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Banks, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of at least $500,000,000.00. Upon the acceptance of any appointment
as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this
Section 12 shall inure to its benefit as to any actions taken or omitted
to
be taken by it while it was Agent under this Agreement.
Agent's
Reliance.
The Borrower shall notify the Agent in writing of the names of its officers
and
employees authorized to request a Loan on behalf of the Borrower and shall
provide the Agent with a specimen signature of each such officer or employee.
The Agent shall be entitled to rely conclusively on such officer’s or employee's
authority to request a Loan on behalf of the Borrower until the Agent receives
written notice from the Borrower to the contrary. The Agent shall have no
duty
to verify the authenticity of the signature appearing on any Notice of
Borrowing, and, with respect to any oral request for a Loan, the Agent shall
have no duty to verify the identity of any Person representing himself as
one of
the officers or employees authorized to make such request on behalf of the
Borrower. Neither the Agent nor any Bank shall incur any liability to the
Borrower in acting upon any telephonic notice referred to above which the
Agent
or such Bank believes in good faith to have been given by a duly authorized
officer or other Person authorized to borrow on behalf of the Borrower or
for
otherwise acting in good faith.
MISCELLANEOUS
Representation
by the Banks. Each
Bank represents that it is the intention of such Bank, as of the date of
its
acquisition of its Note, to acquire the Note for its account or for the account
of its Affiliates, and not with a view to the distribution or sale thereof,
and,
subject to any applicable laws, the disposition of such Bank's property shall
at
all times be within its control. The Notes have not been registered under
the
Securities Act of 1933, as amended (the "Securities Act"), and may not be
transferred, sold or otherwise -disposed of except
(a) in a registered Offering under the Securities Act; (b) pursuant to an
exemption from the registration provisions of the Securities Act; or (c)
if the
Securities Act shall not apply to the Notes or the transactions contemplated
hereunder as commercial lending transactions.
Amendments,
Waivers, Etc.
No amendment or waiver of any provision of any Loan Document, nor consent
to any
departure by the Borrower therefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Borrower and the Majority Banks,
and
then such waiver or consent shall be effective only in the specific instance
and
for the specific purpose for which given; provided,
however,
that no amendment, waiver, or consent shall, unless in writing and signed
by
each Bank, do any of the following: (a) waive any of the conditions specified
in
Section 8; (b) increase the Commitment of any Bank or alter the term thereof,
or
subject any Bank to any additional or extended obligations; (c) change the
principal of, or rate of interest on, any Note, or any fees or other amounts
payable hereunder; (d) postpone any date fixed for any payment of principal
of,
or interest on, any Note, or any fees (including, without limitation, any
fee)
or other amounts payable hereunder; (e) change the percentage of the Commitments
or of the aggregate unpaid principal amount of any Note, or the number of
Banks
which shall be required for Banks, or any of them, to take any action hereunder;
or (f) amend this Section 13.2; and provided,
further,
that no amendment, waiver, or consent shall, unless in writing and signed
by the
Agent in addition to each Bank, affect the rights or duties of the Agent
under
any Loan Document. No failure or delay on the part of any Bank or the Agent
in
exercising any power or right hereunder shall operate as a waiver thereof
nor
shall any single or
partial
exercise of any such right or power, or any abandonment or discontinuance
of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. No course of dealing
between the Borrower and any Bank or the Agent shall operate as a waiver
of any
right of any Bank or the Agent. No modification or waiver of any provision
of
this Agreement or the Note nor consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be in writing,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on the Borrower
in
any case shall entitle the Borrower to any other or further notice or demand
in
similar or other circumstances.
Reimbursement
of Expenses.
The Borrower agrees to reimburse each Bank for its reasonable out-of-pocket
expenses, including the reasonable fees and expenses of counsel to each Bank,
in
connection with the transactions contemplated by this Agreement, whether
or not
such contemplated transactions shall be consummated, or any of them, or
otherwise in connection with this Agreement, including its negotiation,
preparation, execution, administration, modification and enforcement, and
all
reasonable fees, including the reasonable fees and expenses of counsel to
the
Agent and each Bank, costs and expenses of the Agent for environmental
consultants and costs and expenses of the Agent and each Bank in connection
with
due diligence, transportation, computer time and research and duplication.
The
Borrower agrees to pay any and all stamp and other taxes which may be payable
or
determined to be payable in connection with the execution and delivery of
this
Agreement or the Notes, and to save any holder of any Note harmless from
any and
all liabilities with respect to or resulting from any delay or omission to
pay
any such taxes. The obligations of the Borrower under this Section 13.3 shall
survive the termination of this Agreement and/or the payment of the
Notes.
Notices.
All
notices and other communications provided for herein shall be in writing
(including telex, facsimile, or cable communication) and shall be mailed,
telecopied, telexed, cabled or delivered addressed as
follows:
(a) If
to the
Borrower, to it at: Southern
Union Company
▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
copies to:
Southern
Union Company
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax:
(▇▇▇)
▇▇▇-▇▇▇▇
(b) If
to the
Agent, to it at: JPMorgan
Chase Bank, N.A.
▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇▇▇
Attention:
Manager/Commercial
Lending
Fax:
(▇▇▇)
▇▇▇-▇▇▇▇
with
a
copy to: JPMorgan
Chase Bank,
N.A.
Loan
and Agency
Services
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
and
if to
any Bank, at the address specified below its name on the signature pages
hereof,
or as to the Borrower or the Agent, to such other address as shall be designated
by such party in a written notice to the other party and, as to each other
party, at such other address as shall be designated by such party in a written
notice to the Borrower and the Agent. All such notices and communications
shall,
when mailed, telecopied, telexed, transmitted, or cabled, become effective
when
deposited in the mail, confirmed by telex answer back, transmitted to the
telecopier, or delivered to the cable company, except that notices and
communications to the Agent under Sections 2.1(c) or 2.2 shall not be effective
until actually received by the Agent.
Governing
Law; Venue.
THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH
THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA; provided,
however,
that Chapter 346 of the Texas Finance Code, as amended, shall not apply to
this
Agreement and the Notes issued hereunder. ▇▇▇▇▇▇ County, Texas shall be a
proper
place of venue to enforce payment or performance of this Agreement and the
other
Loan Documents by the Borrower, unless the Agent shall give its prior written
consent to a different venue. The
Borrower hereby irrevocably waives, to the fullest extent permitted by law,
any
objection which it may now or hereafter have to the laying of venue of any
suit,
action or proceeding arising out of or relating to any of the Loan Documents
in
the District Courts of ▇▇▇▇▇▇ County, Texas, or in the United States District
Court for the Western District of Texas, Austin Division, and hereby further
irrevocably waives any claims that any such suit, action or proceeding brought
in any such court has
been
brought in an inconvenient forum. The Borrower hereby irrevocably agrees
that,
provided that the Borrower can obtain personal jurisdiction over and service
of
process upon the Agent or the applicable Bank, any legal proceeding against
the
Agent or any Bank arising out of or in connection with this Agreement or
the
other Loan Documents shall be brought in the district courts of ▇▇▇▇▇▇ County,
Texas, or in the United States District Court for the Western District of
Texas,
Austin Division. Nothing contained in this Section or in any other provision
of
any Loan Document (unless expressly provided otherwise) shall be deemed or
construed as an agreement by any Bank to be subject to the jurisdiction of
such
courts.
Survival
of Representations, Warranties and Covenants.
All representations, warranties and covenants contained herein or made in
writing by the Borrower in connection herewith shall survive the execution
and
delivery of this Agreement and the Notes, and will bind and inure to the
benefit
of the respective successors and assigns of the parties hereto, whether so
expressed or not, provided that
the undertaking of the Banks to make the Loans to the Borrower shall not
inure
to the benefit of any successor or assign of the Borrower. No investigation
at
any time made by or on behalf of the Banks shall diminish the Banks' rights
to
rely on any representations made herein or in connection herewith. All
statements contained in any certificate or other written instrument delivered
by
the Borrower or by any Person authorized by the Borrower under or pursuant
to
this Agreement or in connection with the transactions contemplated hereby
shall
constitute representations and warranties hereunder as of the time made by
the
Borrower.
Counterparts.
This Agreement may be executed in several counterparts, and by the parties
hereto on separate counterparts, and each counterpart, when so executed and
delivered, shall constitute an original instrument and all such separate
counterparts shall constitute but one and the same
instrument.
Separability.
Should any clause, sentence, paragraph or section of this Agreement be
judicially declared to be invalid, unenforceable or void, such decision shall
not have the effect of invalidating or voiding the remainder of this Agreement,
and the parties hereto agree that the part or parts of this Agreement so
held to
be invalid, unenforceable or void will be deemed to have been stricken herefrom
and
the remainder will have the same force and effectiveness as if such part
or
parts had never been included herein. Each covenant contained in this Agreement
shall be construed (absent an express contrary provision herein) as being
independent of each other covenant contained herein, and compliance with
any one
covenant shall not (absent such an express contrary provision) be deemed
to
excuse compliance with one or more other covenants.
Descriptive
Headings.
The section headings in this Agreement have been inserted for convenience
only
and shall be given no substantive meaning or significance whatsoever in
construing the terms and provisions of this Agreement.
Accounting
Terms.
All accounting terms used herein which are not expressly defined in the
Agreement, or the respective meanings of which are not otherwise qualified,
shall have the respective meanings given to them in accordance with
GAAP.
Limitation
of Liability. No
claim may be made by the Borrower or any other Person against the Agent or
any
Bank or the Affiliates, directors, officers, employees, attorneys, or agents
of
the Agent or any Bank for any special, indirect, consequential, or punitive
damages in respect to any claim for breach of contract arising out of or
related
to the transactions contemplated by this Agreement, or any act, omission,
or
event occurring in connection herewith and the Borrower hereby waives, releases,
and agrees not to ▇▇▇ upon any claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its
favor.
Set-Off.
The Borrower hereby gives and confirms to each Bank a right of set-off of
all
moneys, securities and other property of the Borrower (whether special, general
or limited) and the proceeds thereof, now or hereafter delivered to remain
with
or in transit in any manner to such Bank, its Affiliates, correspondents
or
agents from or for the Borrower, whether for safekeeping, custody, pledge,
transmission, collection or otherwise or coming into possession of such Bank,
its Affiliates, correspondents or agents in any way, and also, any balance
of
any deposit accounts and credits of the Borrower with, and any and all claims
of
security for the payment of the Notes and of all other liabilities and
obligations now or hereafter owed by the Borrower to such Bank, contracted
with
or acquired by such
Bank,
whether such liabilities and obligations be joint, several, absolute,
contingent, secured, unsecured, matured or unmatured, and the Borrower hereby
authorizes each Bank, its Affiliates, correspondents or agents at any time
or
times, without prior notice, to apply such money, securities, other property,
proceeds, balances, credits of claims, or any part of the foregoing, to such
liabilities in such amounts as it may select, whether such liabilities be
contingent, unmatured or otherwise, and whether any collateral security therefor
is deemed adequate or not. The rights described herein shall be in addition
to
any collateral security, if any, described in any separate agreement executed
by
the Borrower.
Sale
or
Assignment
Subject
to the prior written consent of the Agent and the Borrower, such consent
not to
be unreasonably withheld or delayed, each Bank may assign to an Eligible
Assignee all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitments and the
Note
held by it); provided,
however,
that: (i) each such assignment
shall be of a constant, and not a varying, percentage of all of the assigning
Banks rights and obligations under this Agreement; (ii) the amount of the
Commitments so assigned shall equal or exceed $5,000,000.00; (iii) the
Commitment of each Bank shall be not less than $5,000,000.00 (subject only
to
reductions pursuant to Sections 4.6 and 11 hereof); (iv) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance
and
recording in the Register (as hereinafter defined), an Assignment and Acceptance
in the form of Exhibit C attached
hereto and made a part hereof (the "Assignment and Acceptance"), together
with
any Note subject to such assignment and a processing and recordation fee
of
$5,000.00; (v) any such assignment from one Bank to another Bank shall not
require the consent of the Agent or the Borrower if such assignment does
not
result in any Bank holding more than 60% of the aggregate outstanding
Commitments; and (vi) any such assignment shall not require the consent of
the
Borrower if a Default or Event of Default shall have occurred and is then
continuing. Upon such execution, delivery, acceptance, and recording, from
and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be the date on which such Assignment and Acceptance
is
accepted by the Agent, (A) the Eligible Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder
have
been assigned to it pursuant to such Assignment and Acceptance, have the
rights
and obligations of a Bank under the Loan Documents, and (B) the Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have
been
assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights
and be released from its obligations under the Loan Documents (and, in the
case
of an Assignment and Acceptance covering all or the remaining portion of
an
assigning Bank's rights and obligations under the Loan Documents, such Bank
shall cease to be a party thereto).
By
executing and delivering an Assignment and Acceptance, the Bank assignor
thereunder and the Eligible Assignee thereunder confirm to and agree with
each
other and the other parties hereto as follows: (i) other than as provided
in
such Assignment and Acceptance, such assigning Bank makes no representation
or
warranty and assumes no responsibility with respect to any statements,
warranties, or representations made in or in connection with any Loan Document
or the execution, legality, validity, enforceability, genuineness, sufficiency,
or value of any Loan Document or any other instrument or document furnished
pursuant thereto; (ii) such assigning Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of
the
Borrower or any Subsidiary or the performance or observance by the Borrower
of
any of its obligations under any Loan Document or any other instrument or
document furnished pursuant thereto; (iii) such Eligible Assignee confirms
that
it has received a copy of the Loan Documents, together with copies of the
financial statements referred to in Section 7.2 and such other documents
and
information as it has deemed appropriate to make its own credit analysis
and
decision to enter into such Assignment and Acceptance; (iv) such Eligible
Assignee, independently and without reliance upon the Agent, such assigning
Bank, or any Bank and based on such documents and information as it shall
deem
appropriate at the time, will continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such Eligible Assignee
appoints and authorizes the Agent to take such action as agent on its behalf
and
to exercise such powers under any Loan Document as are delegated to the Agent
by
the terms thereof, together with such powers as are reasonably incidental
thereto; and (vi) such Eligible Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
any
Loan Document are required to be performed by it as a
Bank.
The
Agent shall maintain at its address referred to in Section 13.4 a copy of
each
Assignment and Acceptance delivered to and accepted by it and a register
for the
recordation of the names and addresses of Banks and the Commitment of, and
principal amount of the Loans owing to, each Bank from time to time (the
"Register"). The entries in the Register shall be conclusive and binding
for all
purposes, absent manifest error, and the Borrower, the Agent, and Banks may
treat each Person whose name is recorded in the Register as Bank hereunder
for
all purposes of the Loan Documents. The Register shall be available for
inspection by the Borrower or any Bank at any reasonable time and from time
to
time upon reasonable prior notice.
Upon
its receipt of an Assignment and Acceptance executed by an assigning Bank,
together with any Note subject to such assignment, the Agent, if such Assignment
and Acceptance has been completed and is in substantially the form of
Exhibit C, shall (i) accept such
Assignment and Acceptance; (ii) record the information contained therein
in the
Register; and (iii) give prompt notice thereof to the Borrower. Within three
(3)
Business Days after its receipt of such notice, the Borrower at its own expense,
shall execute and deliver to the Agent in exchange for each surrendered Note
a
new Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and,
if the
assigning Bank has retained a Commitment hereunder, a new Note to the order
of
the assigning Bank in an amount equal to the Commitment retained by it
hereunder. The new Notes shall be in an aggregate principal amount equal
to the
aggregate principal amount of the surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of
Exhibit C attached hereto and made
a part hereof. Upon receipt by the Agent of each such new Note conforming
to the
requirements set forth in the preceding sentences, the Agent shall return
to the
Borrower each such surrendered Note marked to show that each such surrendered
Note has been replaced, renewed, and extended by such new
Note.
Each
Bank may sell participations to one or more banks or other entities in or
to all
or a portion of its rights and/or obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and the Note held
by it);
provided,
however,
that (i) each Bank's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain
unchanged;
(ii) such Bank shall remain solely responsible to the other parties hereto
for
the performance of such obligations; (iii) except as provided below, such
Bank
shall remain the holder of any such Note for all purposes of this Agreement;
and
(iv) the participating banks or other entities shall be entitled to the benefits
of Sections 2.3 and 4.6 to recover costs, losses and expenses in the
circumstances, and to the extent provided in Section 2.3, as though such
participant were a Bank; provided,
however,
the amounts to which a
participant shall be entitled to obtain pursuant to Sections 2.3 and 4.6
shall
be determined by reference to such participant's selling Bank and shall be
recoverable solely from such selling Bank and (v) the Borrower, the Agent
and
the other Banks shall continue to deal solely and directly with the selling
Bank
in connection with such Bank's rights and obligations under this Agreement
and
the other Loan Documents; provided,
however,
the selling Bank may grant a
participant rights with respect to amendments, modification or waivers with
respect to any fees payable hereunder to such Bank (including the amount
and the
dates fixed for the payment of any such fees) or the amount of principal
or the
rate of interest payable on, the dates fixed for any payment of principal
or
interest on, the Loans, or the release of any obligations of the Borrower
hereunder and under the other Loan Documents, or the release of any security
for
any of the Obligations. Except with respect to cost protections contained
in
Sections 2.3 and 4.6, no participant shall be a third party beneficiary of
this
Agreement and shall not be entitled to enforce any rights provided to its
selling Bank against the Company under this Agreement.
Notwithstanding
anything herein to the contrary, each Bank may pledge and assign all or any
portion of its rights and interests under the Loan Documents to any Federal
Reserve Bank.
Notwithstanding
anything herein to the contrary, each Bank may assign all or a portion of
its
interests, rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments and the Note held by it)
to one
or more Bank Affiliates without the prior written consent of the Borrower.
For
purposes of this Section 12.13, “Bank Affiliate” shall mean (a) with respect to
any Bank, (i) an Affiliate of such Bank or (ii) any entity (whether a
corporation, partnership, trust or otherwise) that is engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business and is administered or managed
by a Bank or an Affiliate
of
such Bank and (b) with respect to any Bank that is a fund which invests in
bank
loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Bank or by an Affiliate of such investment advisor. Each
Bank
Affiliate shall be deemed for purposes hereof to be an “Eligible
Assignee.”
Non
U.S. Banks. Prior
to the date of the initial Borrowings hereunder, and from time to time
thereafter if requested by the Borrower or the Agent, each Bank organized
under
the laws of a jurisdiction outside the United States of America shall provide
the Agent and the Borrower with the forms prescribed by the Internal Revenue
Service of the United States of America certifying such Banks exemption from
United States withholding taxes with respect to all payments to be made to
such
Bank hereunder or under such Bank's Note. Unless the Borrower and the Agent
have
received forms or other documents satisfactory to them indicating that payments
hereunder or under such Bank's Note are not subject to United States withholding
tax or are subject to such tax at a rate reduced by an applicable tax treaty,
the Borrower or the Agent shall withhold taxes from such payments at the
applicable statutory rate in the case of payments to or for any Bank organized
under the laws of a jurisdiction outside the United
States.
Interest.
All agreements between the Borrower, the Agent or any Bank, whether now existing
or hereafter arising and whether written or oral, are hereby expressly limited
so that in no contingency or event whatsoever, whether by reason of demand
being
made on any Note or otherwise, shall the amount paid, or agreed to be paid,
to
the Agent or any Bank for the use, forbearance, or detention of the money
to be
loaned under this Agreement or otherwise or for the payment or performance
of
any covenant or obligation contained herein or in any document related hereto
exceed the amount permissible at the Highest Lawful Rate. If, as a result
of any
circumstances whatsoever, fulfillment of any provision hereof or of any of
such
documents, at the time performance of such provision shall be due, shall
involve
transcending the limit of validity prescribed by applicable usury law, then,
ipso facto, the obligation to be filled shall be reduced to the limit of
such
validity, and if, from any such circumstance, the Agent or any Bank shall
ever
receive interest or anything which might be deemed interest under applicable
law
which would exceed the amount
permissible
at the Highest Lawful Rate, such amount which would be excessive interest
shall
be applied to the reduction of the principal amount owing on account of the
Notes or the amounts owing on other obligations of the Borrower to the Agent
or
any Bank under this Agreement or any document related hereto and not to the
payment of interest, or if such excessive interest exceeds the unpaid principal
balance of the Notes and the amounts owing on other obligations of the Borrower
to the Agent or any Bank under this Agreement or any document related hereto,
as
the case may be, such excess shall be refunded to the Borrower. All sums
paid or
agreed to be paid to the Agent or any Bank for the use, forbearance, or
detention of the indebtedness of the Borrower to the Agent or any Bank shall,
to
the extent permitted by applicable law, be amortized, prorated, allocated,
and
spread throughout the full term of such indebtedness until payment in full
of
the principal thereof (Including the period of any renewal or extension thereof)
so that the interest on account of such indebtedness shall not exceed the
Highest Lawful Rate. The terms and provisions of this Section 13.15 shall
control and supersede every other provision of all agreements between the
Borrower and the Banks.
Indemnification.
THE BORROWER AGREES TO INDEMNIFY, DEFEND, AND SAVE HARMLESS THE AGENT, EACH
BANK
AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ATTORNEYS,
AND
EACH OF THEM (THE "INDEMNIFIED PARTIES”), FROM AND AGAINST ALL CLAIMS, ACTIONS,
SUITS, AND OTHER LEGAL PROCEEDINGS, DAMAGES, COSTS, INTEREST, CHARGES, TAXES,
COUNSEL FEES, AND OTHER EXPENSES AND PENALTIES (INCLUDING WITHOUT LIMITATION
ALL
ATTORNEY FEES AND COSTS OR EXPENSES OF SETTLEMENT) WHICH ANY OF THE INDEMNIFIED
PARTIES MAY SUSTAIN OR INCUR BY REASON OF OR ARISING OUT OF (a) THE MAKING
OF
ANY LOAN HEREUNDER, THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE
NOTES
AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED THEREBY AND THE EXERCISE
OF ANY OF THE BANKS' RIGHTS UNDER THIS AGREEMENT AND THE NOTES OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, DAMAGES, COSTS, AND EXPENSES INCURRED BY ANY
OF
THE INDEMNIFIED PARTIES IN INVESTIGATING, PREPARING FOR, DEFENDING AGAINST,
OR
PROVIDING EVIDENCE, PRODUCING DOCUMENTS, OR TAKING ANY
OTHER
ACTION IN RESPECT OF ANY COMMENCED OR THREATENED LITIGATION UNDER ANY FEDERAL
SECURITIES LAW OR ANY SIMILAR LAW OF ANY JURISDICTION OR AT COMMON LAW OR
(b)
ANY AND ALL CLAIMS OR PROCEEDINGS (WHETHER BROUGHT BY A PRIVATE PARTY,
GOVERNMENTAL AUTHORITY OR OTHERWISE) FOR BODILY INJURY, PROPERTY DAMAGE,
ABATEMENT, REMEDIATION, ENVIRONMENTAL DAMAGE, OR IMPAIRMENT OR ANY OTHER
INJURY
OR DAMAGE RESULTING FROM OR RELATING TO THE RELEASE OF ANY HAZARDOUS MATERIALS
LOCATED UPON, MIGRATING INTO, FROM, OR THROUGH OR OTHERWISE RELATING TO ANY
PROPERTY OWNED OR LEASED BY THE BORROWER OR ANY SUBSIDIARY (WHETHER OR NOT
THE
RELEASE OF SUCH HAZARDOUS MATERIALS WAS CAUSED BY THE BORROWER, ANY SUBSIDIARY,
A TENANT, OR SUBTENANT OF THE BORROWER OR ANY SUBSIDIARY, A PRIOR OWNER,
A
TENANT, OR SUBTENANT OF ANY PRIOR OWNER OR ANY OTHER PARTY AND WHETHER OR
NOT
THE ALLEGED LIABILITY IS ATTRIBUTABLE TO THE HANDLING, STORAGE, GENERATION,
TRANSPORTATION, OR DISPOSAL OF ANY HAZARDOUS MATERIALS OR THE MERE PRESENCE
OF
ANY HAZARDOUS MATERIALS ON SUCH PROPERTY; PROVIDED THAT THE BORROWER
SHALL NOT BE LIABLE TO THE INDEMNIFIED PARTIES WHERE THE RELEASE OF SUCH
HAZARDOUS MATERIALS OCCURS AT ANY TIME AT WHICH THE BORROWER OR ANY SUBSIDIARY
CEASES TO OWN OR LEASE SUCH PROPERTY); AND PROVIDED FURTHER THAT NO
INDEMNIFIED PARTY SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION 13.16
TO THE
EXTENT ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT CONTRIBUTED TO ITS
LOSS;
AND PROVIDED FURTHER THAT IT IS THE INTENTION OF THE BORROWER TO
INDEMNIFY THE INDEMNIFIED PARTIES AGAINST THE CONSEQUENCES OF THEIR OWN
NEGLIGENCE. THIS AGREEMENT IS INTENDED TO PROTECT AND INDEMNIFY THE INDEMNIFIED
PARTIES AGAINST ALL RISKS HEREBY ASSUMED BY THE BORROWER. FOR PURPOSES OF
THE
FOREGOING SECTION 13.16, THE PHRASE "CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED THEREBY” SET FORTH IN SUBPARAGRAPH (a) ABOVE SHALL INCLUDE, BUT NOT
BE LIMITED TO, THE FINANCING OF ANY CORPORATE TAKEOVER PERMITTED HEREUNDER
AND
THE BORROWER’S USE OF THE LOAN PROCEEDS FOR THE PURPOSE OF ACQUIRING ANY EQUITY
INTERESTS DESCRIBED IN
SUBPARAGRAPH
(ii) OF THE DEFINITION OF "QUALIFYING ASSETS” SET FORTH IN THIS AGREEMENT (AS
AMENDED). THE OBLIGATIONS OF THE BORROWER UNDER THIS SECTION 13.16 SHALL
SURVIVE
ANY TERMINATION OF THIS AGREEMENT AND THE REPAYMENT OF THE
NOTES.
Payments
Set Aside.
To the extent that the Borrower makes a payment or payments to the Agent
or any
Bank or the Agent or any Bank exercises its right of set off, and such payment
or payments or the proceeds of such set off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other Person under any
Debtor Law or equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all rights
and remedies therefor, shall be revived and shall continue in full force
and
effect as if such payment had not been made or set off had not
occurred.
Loan
Agreement Controls. If
there are any conflicts or inconsistencies among this Agreement and any other
document executed in connection with the transactions connected herewith,
the
provisions of this Agreement shall prevail and control.
Obligations
Several. The
obligations of each Bank under this Agreement and the Note to which it is
a
party are several, and no Bank shall be responsible for any obligation or
Commitment of any other Bank under this Agreement and the Note to which it
is a
party. Nothing contained in this Agreement or the Note to which it is a party,
and no action taken by any Bank pursuant thereto, shall be deemed to constitute
the Banks to be a partnership, an association, a joint venture, or any other
kind of entity.
Pro
Rata
Treatment.
All Loans under, and all payments and other amounts received in connection
with
this Agreement (including, without limitation, amounts received as a result
of
the exercise by any Bank of any right of set off) shall be effectively shared
by
the Banks ratably in accordance with the respective Pro Rata Percentages
of the
Banks. If any Bank shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set off, or otherwise) on account of
the
principal of, or interest on, or fees in respect of, any Note held by it
(other
than pursuant to Section 2.3(d)) in excess of its
Pro
Rata Percentage of payments on account of similar Notes obtained by all the
Banks, such Bank shall forthwith purchase from the other Banks such
participations in the Notes or Loans made by them as shall be necessary to
cause
such purchasing Bank to share the excess payment ratably with each of them;
provided, however, that if all or
any portion of such excess payment is thereafter recovered from such purchasing
Bank, such purchase from each Bank shall be rescinded and such Bank shall
repay
to the purchasing Bank the purchase price to the extent of such recovery
together with an amount equal to such Bank's ratable share (according to
the
proportion of (a) the amount of such Bank's required repayment to (b) the
total
amount so recovered from the purchasing Bank) of any interest or other amount
paid or payable by the purchasing Bank in respect of the total amount so
recovered. Disproportionate payments of interest shall be shared by the purchase
of separate participations in unpaid interest obligations, disproportionate
payments of fees shall be shared by the purchase of separate participations
in
unpaid fee obligations, and disproportionate payments of principal shall
be
shared by the purchase of separate participations in unpaid principal
obligations. The Borrower agrees that any Bank so purchasing a participation
from another Bank pursuant to this Section 13.20 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right
of
set-off) with respect to such participation as fully as if such Bank were
the
direct creditor of the Borrower in the amount of such participation.
Notwithstanding the foregoing, a Bank may receive and retain an amount in
excess
of its Pro Rata Percentage to the extent but only to the extent, that such
excess results from such Bank’s Highest Lawful Rate exceeding another Bank’s
Highest Lawful Rate.
No
Rights, Duties or Obligations of Syndication Agent.
The Borrower, the Agent and each Bank acknowledge and agree that except for
the
rights, powers, obligations and liabilities under this Agreement and the
other
Loan Documents as a Bank, Fleet National Bank, as Syndication Agent, shall
have
no additional rights, powers, obligations or liabilities under this agreement
or
any other Loan Documents in its capacity as Syndication
Agent.
Final
Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN
THE
PARTIES AND MAY NOT BE
CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT'S OF
THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
WAIVER
OF
JURY TRIAL. EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO
ENTER INTO THIS AGREE-MENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
IN
WITNESS WHEREOF, the parties hereto, by their respective officers thereunto
duly
authorized, have executed this Agreement on the dates set forth below to
be
effective as of September 29, 2005.
SOUTHERN
UNION COMPANY
By:
Name:
Title:
Commitment: JPMORGAN
CHASE BANK, N.A.,
$36,000,000 for
itself and as Agent for the Banks
By:
Name:
Title:
WACHOVIA
BANK, N.A.
Commitment
$36,000,000
By:
Name:
Title:
Address
for Notices:
Wachovia
Bank, N.A.
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Attention:
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Fax
No.:
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Commitment: BANK
OF
AMERICA, N.A.
$35,000,000
By:
Name:
Title:
Address
for Notices:
Bank
of
America, N.A.
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Attention:
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Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Separate
Domestic and Eurodollar Lending Office:
Bank
of
America, N.A.
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Commitment: UFJ
BANK
LIMITED, NEW YORK BRANCH
$25,000,000
By:
Name:
Title:
Address
for Notices:
UFJ
Bank
Limited, New York Branch
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Attention:
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Fax
No.:
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Commitment: KBC
BANK
N.V.
$20,000,000
By:
Name:
Title:
Address
for Notices:
KBC
Bank,
N.V.
Atlanta
Representative ▇▇▇▇▇▇
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Attention:
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Fax
No.:
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Separate
Domestic and Eurodollar Lending Office:
KBC
Bank,
N.V.
New
York
Branch
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Commitment: ▇▇▇▇▇
FARGO BANK, NA
$20,000,000
By:
Name:
Title:
Address
for Notices:
▇▇▇▇▇
Fargo Bank, NA
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Attention:
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Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Separate
Domestic and Eurodollar Lending Office:
▇▇▇▇▇
Fargo Bank, NA
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Commitment: CALYON
NEW YORK BRANCH
$20,000,000
By:
Name:
Title:
Address
for Notices:
Calyon
New York Branch
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Attention:
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Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Separate
Domestic and Eurodollar Lending Office:
Calyon
New York Branch
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Commitment: ▇▇▇▇▇▇▇
▇▇▇▇▇ BANK USA
$20,000,000
By:
Name:
Title:
Address
for Notices:
▇▇▇▇▇▇▇
▇▇▇▇▇ Bank USA
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Attention:
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Fax
No.:
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Commitment: SOVEREIGN
BANK
$20,000,000
By:
Name:
Title:
Address
for Notices:
Sovereign
Bank
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Attention:
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Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Commitment: LASALLE
BANK N.A.
$20,000,000
By:
Name:
Title:
Address
for Notices:
LaSalle
Bank N.A.
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Attention:
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Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Commitment: THE
BANK
OF TOKYO-MITSUBISHI, LTD.
$20,000,000 HOUSTON
AGENCY
By:
Name:
Title:
Address
for Notices:
The
Bank
of Tokyo-Mitsubishi, Ltd.,
Houston
Agency
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Attention:
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Fax
No.:
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Commitment: UMB
BANK,
N.A.
$19,000,000
By:
Name:
Title:
Address
for Notices:
UMB
Bank,
N.A.
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Attention:
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Fax
No.:
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Commitment: BAYERISCHE
LANDESBANK,
$15,000,000 CAYMAN
ISLANDS BRANCH
By:
Name:
Title:
Address
for Notices:
Bayerische
Landesbank,
Cayman
Islands Branch
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Attention:
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Fax
No.:
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Commitment: CREDIT
SUISSE, CAYMAN ISLANDS
$15,000,000 BRANCH
By:
Name:
Title:
Address
for Notices:
Credit
Suisse, Cayman Islands Branch
Eleven
Madison Avenue
New
York,
New York 10010
Attention:
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Fax
No.:
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Commitment: PNC
BANK,
NATIONAL ASSOCIATION
$15,000,000
By:
Name:
Title:
Address
for Notices:
PNC
Bank,
National Association
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Attention:
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Fax
No.:
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Commitment: SUMITOMO
MITSUI BANKING
$15,000,000 CORPORATION
By:
Name:
Title:
Address
for Notices:
Sumitomo
Mitsui Banking Corporation
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Attention:
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Fax
No.:
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Commitment: MIZUHO
CORPORATE BANK (USA)
$15,000,000
By:
Name:
Title:
Address
for Notices:
Mizuho
Corporate Bank (USA)
1251
Avenue of the Americas
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Attention:
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Fax
No.:
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Commitment: BANK
OF
CHINA, NEW YORK BRANCH
$12,000,000
By:
Name:
Title:
Address
for Notices:
Bank
of
China, New York Branch
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Attention:
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Fax
No.:
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Commitment: ROYAL
BANK OF CANADA.
$12,000,000
By:
Name:
Title:
Address
for Notices:
Royal
Bank of Canada
New
York
Branch
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Attention:
▇▇▇▇▇▇▇ Singh
Fax
No.:
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Commitment: BANK
OF
COMMUNICATIONS,
$5,000,000 NEW
YORK
BRANCH
By:
Name:
Title:
Address
for Notices:
Bank
of
Communications,
New
York
Branch
One
Exchange Plaza
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Attention:
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Fax
No.:
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Commitment: CHINATRUST
COMMERCIAL BANK,
$5,000,000 NEW
YORK
BRANCH
By:
Name:
Title:
Address
for Notices:
Chinatrust
Commercial Bank,
New
York
Branch
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Attention:
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Fax
No.:
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EXHIBIT
A
REVOLVING
NOTE
$___________ ____________,
200__
FOR
VALUE
RECEIVED, the undersigned, SOUTHERN UNION COMPANY, a corporation organized
under
the laws of Delaware (the “Borrower”), HEREBY PROMISES TO PAY to the order of
___________________________________ (the “Bank”), on or before
_______________________ (the "Maturity Date”), the principal sum of
________________ Million and No/ 100ths Dollars ($_,000,000.00) in accordance
with the terms and provisions of that certain Fourth Amended and Restated
Revolving Credit Agreement dated August ____, 2005, by and among the Borrower,
the Bank, the other banks named on the signature pages thereof, and JPMORGAN
CHASE BANK, N.A., as Agent (the “Credit Agreement”). Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to such
terms
in the Credit Agreement.
The
outstanding principal balance of this Revolving Note shall be payable at
the
Maturity Date. The Borrower promises to pay interest on the unpaid principal
balance of this Revolving Note from the date of any Loan evidenced by this
Revolving Note until the principal balance thereof is paid in full. Interest
shall accrue on the outstanding principal balance of this Revolving Note
from
and including the date of any Loan evidenced by this Revolving Note to but
not
including the Maturity Date at the rate or rates, and shall be due and payable
on the dates, set forth in the Credit Agreement. Any amount not paid when
due
with respect to principal (whether at stated maturity, by acceleration or
otherwise), costs or expenses, or, to the extent permitted by applicable
law,
interest, shall bear interest from the date when due to and excluding the
date
the same is paid in full, payable on demand, at the rate provided for in
Section
2.2(b) of the Credit Agreement.
Payments
of principal and interest, and all amounts due with respect to costs and
expenses, shall be made in lawful money of the United States of America in
immediately available funds, without deduction, set off or counterclaim to
the
account of the Agent at the principal office of JPMorgan Chase Bank, N.A.
in
Houston, Texas (or such other address as the Agent under the Credit Agreement
may specify) not later than noon (Houston time) on the dates on which such
payments shall become due pursuant to the terms and provisions set forth
in the
Credit Agreement.
If
any
payment of interest or principal herein provided for is not paid when due,
then
the owner or holder of this Revolving Note may at its option, by notice to
the
Borrower, declare the unpaid, principal balance of this Revolving Note, all
accrued and unpaid interest thereon and all other amounts payable under this
Revolving Note to be forthwith due and payable, whereupon this Revolving
Note,
all such interest and all such amounts shall become and be forthwith due
and
payable in full, without presentment, demand, protest, notice of intent to
accelerate, notice of actual acceleration or further notice of any kind,
all of
which are hereby expressly waived by the Borrower.
If
any
payment of principal or interest on this Revolving Note shall become due
on a
Saturday, Sunday, or public holiday on which the Agent is not open for business,
such payment shall be made on the next succeeding Business Day and such
extension of time shall in such case be included in computing interest in
connection with such payment.
In
addition to all principal and accrued interest on this Revolving Note, the
Borrower agrees to pay (a) all reasonable costs and expenses incurred by
the
Agent and all owners and holders of this Revolving Note in collecting this
Revolving Note through any probate, reorganization bankruptcy or any other
proceeding and (b) reasonable attorneys' fees when and if this Revolving
Note is
placed in the hands of an attorney for collection after default.
All
agreements between the Borrower and the Bank, whether now existing or hereafter
arising and whether written or oral, are hereby expressly limited so that
in no
contingency or event whatsoever, whether by reason of demand being made on
this
Revolving Note or otherwise, shall the amount paid, or agreed to be paid,
to the
Bank for the use, forbearance, or detention of the money to be loaned under
the
Credit Agreement and evidenced by this Revolving Note or otherwise or for
the
payment or performance of any covenant or obligation contained in the Credit
Agreement or this Revolving Note exceed the amount permissible at Highest
Lawful
Rate. If as a result of any circumstances whatsoever, fulfillment of any
provision hereof or of the Credit Agreement at the time performance of such
provision shall be due, shall involve transcending the limit of validity
prescribed by applicable usury law, then, ipso
facto,
the
obligation to be fulfilled shall be reduced to the limit of such validity,
and
if from any such circumstance, the Bank shall ever receive interest or anything
which might be deemed interest under applicable law which would exceed the
amount permissible at the Highest Lawful Rate, such amount which would be
excessive interest shall be applied to the reduction of the principal amount
owing on account of this Revolving Note or the amounts owing on other
obligations of the Borrower to the Bank under the Credit Agreement and not
to
the payment of interest, or if such excessive interest exceeds the unpaid
principal balance of this Revolving Note and the amounts owing on other
obligations of the Borrower to the Bank under the Credit Agreement, as the
case
may be, such excess shall be refunded to the Borrower. In determining whether
or
not the interest paid or payable under any specific contingencies exceeds
the
Highest Lawful Rate, the Borrower and the Bank shall, to the maximum extent
permitted under applicable law, (a) characterize any nonprincipal payment
as an
expense, fee or premium rather than as interest; (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate
and
spread in equal parts during the period of the full stated term of this
Revolving Note, all interest at any time contracted for, charged, received
or
reserved in connection with the indebtedness evidenced by this Revolving
Note.
This
Revolving Note is one of the Notes provided for in, and is entitled to the
benefits of, the Credit Agreement, which Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events, for prepayments on account of principal hereof
prior
to the maturity hereof upon the terms and conditions and with the effect
therein
specified, and provisions to the effect that no provision of the Credit
Agreement or this Revolving Note shall require the payment or permit the
collection of interest in excess of the Highest Lawful Rate. It is contemplated
that by reason of prepayments or repayments hereon prior to the Maturity
Date,
there may be times when no indebtedness is owing hereunder prior to such
date;
but notwithstanding such occurrence this Revolving Note shall remain valid
and
shall be in full force and effect as to Loans made pursuant to the Credit
Agreement subsequent to each such occurrence.
Except
as
otherwise specifically provided for in the Credit Agreement, the Borrower
and
any and all endorsers, guarantors and sureties severally waive grace, demand,
presentment for payment, notice of dishonor or default, protest, notice of
protest, notice of intent to accelerate, notice of acceleration and diligence
in
collecting and bringing of suit against any party hereto, and agree to all
renewals, extensions or partial payments hereon and to any release or
substitution of security hereof, in whole or in part, with or without notice,
before or after maturity.
THIS
REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS
OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW.
IN
WITNESS WHEREOF, the Borrower has caused this Revolving Note to be executed
and
delivered by its officer thereunto duly authorized effective as of the date
first above written.
SOUTHERN
UNION COMPANY
By:_________________________________
Name:_______________________________
Title:________________________________
EXHIBIT
B
NOTICE
OF BORROWING
The
undersigned hereby certifies that s/he is an officer of SOUTHERN UNION COMPANY,
a corporation organized under the laws of Delaware (the “Borrower”), authorized
to execute this Notice of Borrowing on behalf of the Borrower. With reference
to
that certain Fourth Amended and Restated Revolving Credit Agreement dated
September 29, 2005 (as same may be amended, modified, increased, supplemented
and/or restated from time to time, the “Credit Agreement”) entered into by and
between the Borrower, JPMORGAN CHASE BANK, N.A., as Agent, and the Banks
identified therein, the undersigned further certifies, represents and warrants
to Banks on behalf of the Borrower that to his best knowledge and belief
after
reasonable and due investigation and review, all of the following statements
are
true and correct (each capitalized term used herein having the same meaning
given to it in the Credit Agreement unless otherwise specified):
(a) Borrower
requests that the Banks advance to the Borrower the aggregate sum of
$__________by no later than ____________, 200__ (the “Borrowing Date”).
Immediately following such Loan, the aggregate outstanding balance of Loans
shall equal $__________. Borrower requests that the Loans bear interest as
follows:
(i) The
principal amount of the Loans, if any, which shall bear interest at the
Alternate Base Rate requested to be made by the Banks is $________. The initial
Rate Period for such Loans shall be 90
days.
(ii) The
principal amount of the Loans, if any, which shall bear interest at the
Eurodollar Rate for which the Rate Period shall be fifteen
days
requested to be made by the Banks is $________________.
(iii) The
principal amount of the Loans, if any, which shall bear interest at the
Eurodollar Rate for which the Rate Period shall be one
month
requested to be made by the Banks is $__________.
(iv) The
principal amount of the Loans, if any, which shall bear interest at the
Eurodollar Rate for which the Rate Period shall be two
months
requested to be made by the Banks is $_________.
(v) The
principal amount of the Revolving Loans, if any, which shall bear interest
at
the Eurodollar Rate for which the Rate Period shall be three
months
requested to be made by the Banks is $_________.
(vi) The
principal amount of the Revolving Loans, if any, which shall bear interest
at
the Eurodollar Rate for which the Rate Period shall be six
months
requested to be made by the Banks is $__________.
(b) The
proceeds of the borrowing shall be deposited into Borrower's demand deposit
account at JPMorgan Chase Bank, N.A. more fully described as
follows:
Account
No. 09916100522, styled Southern Union Company.
(c) Of
the
aggregate sum to be advanced, $_____________ will be advanced to provide
working
capital pursuant to Section 6.1(a) of the Credit Agreement and $__________will
be advanced for the purposes set forth in Section 6.1(b) of the Credit
Agreement; and $__________ will be advanced for the purposes set forth in
Section 6.1(c) of the Credit Agreement; and $___________ will be advanced
for
the purposes of replacing Loans currently outstanding under the Credit
Agreement.
(d) The
Expiration Date of each Rate Period specified in (a) above shall be the last
day
of such Rate Period.
(e) As
of the
date hereof, and as a result of the making of the requested Loans, there
does
not and will not exist any Default or Event of Default.
(f) The
representations and warranties contained in Section 7 of the Credit Agreement
are true and correct in all material respects as of the date hereof and shall
be
true and correct upon the making of the requested Loan, with the same force
and
effect as though made on and as of the date hereof and thereof.
EXECUTED
AND DELIVERED this _____ day of _______________, 200__.
SOUTHERN
UNION COMPANY
By:_________________________
Name:_______________________
Title:________________________
EXHIBIT
C
ASSIGNMENT
AND ACCEPTANCE
[NAME
AND
ADDRESS OF
ASSIGNING
BANK]
_______________,
200__
________________
________________
________________
________________
|
Re:
|
Southern
Union Company Fourth Amended and Restated Revolving Credit Agreement
|
Ladies
and Gentlemen:
We
have
entered into a Fourth Amended and Restated Revolving Credit Agreement dated
as
of September 29, 2005 (the “Credit Agreement”), among certain banks (including
us), JPMorgan Chase Bank, N.A. (the "Agent") and Southern Union Company (the
"Company"). Capitalized terms used herein and not otherwise defined shall
have
the meanings ascribed to such terms in the Credit Agreement.
Each
reference to the Credit Agreement, the Notes, or any other document evidencing
or governing the Loans (all such documents collectively, the "Financing
Documents”) includes each such document as amended, modified, extended or
replaced from time to time. All times are Houston times.
1. Assignment.
We hereby sell you and assign to you without recourse, and you hereby
unconditionally and irrevocably acquire for your own account and risk, a
percent
( %) undivided interest ("your assigned share”) in each of the following (the
"Assigned Obligations”):
a. our
Note;
b. all
Loans
and interest thereon as provided in Section 2 of the Credit Agreement [,except
that interest shall accrue on your assigned share in the principal of Alternate
Base Rate Loans and Eurodollar Rate Loans at an annual rate equal to the
rate
provided in the Credit Agreement minus _____%]; and
c. commitment
fees payable pursuant to Section 5 of the Credit Agreement[, except that
your
assigned share in such fees shall be at an annual rate equal to the rate
provided in the Credit Agreement minus ____%].
| 2. |
Materials
Provided Assignee
|
a. We
will
promptly request that the Company issue new Notes to us and to you in
substitution for our Note to reflect the assignment set forth herein. Upon
issuance of such substitute Notes, (i) you will become a Bank under the Credit
Agreement, (ii) you will assume our obligations under the Credit Agreement
to
the extent of your assigned share, and (iii) the Company will release us
from
our obligations under the Credit Agreement to the extent, but only to the
extent, of your assigned share. The Company consents to such release by signing
this Agreement where indicated below. As a Bank, you will be entitled to
the
benefits and subject to the obligations of a "Bank”, as set forth in the Credit
Agreement, and your rights and liabilities with respect to the other Banks
and
the Agent will be governed by the Credit Agreement, including without limitation
Section 12 thereof.
b. We
have
furnished you copies of the Credit Agreement, our Note and each other Financing
Document you have requested. We do not represent or warrant (i) the priority,
legality, validity, binding effect or enforceability of any Financing Document
or any security interest created thereunder, (ii) the truthfulness and accuracy
of any representation contained in any Financing Document, (iii) the filing
or
recording of any Financing Document necessary to perfect any security interest
created thereunder, (iv) the financial condition of the Company or any other
Person obligated under any Financing Document, any financial or other
information, certificate, receipt or other document furnished or to be furnished
under any Financing Document or (v) any other matter not specifically set
forth
herein having any relation to any Financing Document, your interest in one
Note,
the Company or any other Person. You represent to us that you are able to
make,
and have made, your own independent investigation and determination of the
foregoing matters, including, without limitation, the credit worthiness of
the
Company and the structure of the transaction.
3. Governing
law; Jurisdiction.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Texas. You irrevocably submit to the jurisdiction of any State
or
Federal court sitting in Austin, Texas in any suit, action or proceeding
arising
out of or relating to this Agreement and irrevocably waive any objection
you may
have to this laying of venue of any such suit, action or proceeding brought
in
any such court and any claim that any such suit, action or proceeding has
been
brought in an inconvenient forum. We may serve process in any manner permitted
by law and may bring proceedings against you in any other
jurisdiction.
4. Notices. All
notices and other communications given hereunder to a party shall be given
in
writing (including bank wire, telecopy, telex or similar writing) at such
party's address set forth on the signature pages hereof or such other address
as
such party may hereafter specify by notice to the other party. Notice may
also
be given by telephone to the Person, or any other officer in the office,
listed
on the signature pages hereof if confirmed promptly by telex or telecopy.
Notices shall be effective immediately, if given by telephone; upon
transmission, if given by bank wire, telecopy or telex; five days after deposit
in the mails, if mailed; and when delivered, if given by other
means.
5. Authority.
Each of
us represents and warrants that the execution and delivery of this Agreement
have been validly authorized by all necessary corporate action and that this
Agreement constitutes a valid and legally binding obligation enforceable
against
it in accordance with its terms.
6. Counterparts. This
Agreement may be executed in one or more counterparts, and by each party
on
separate counterparts, each of which shall be an original but all of which
taken
together shall be but one instrument.
7. Amendments. No
amendment modification or waiver of any provision of this Agreement shall
be
effective unless in writing and signed by the party against whom enforcement
is
sought.
If
the
foregoing correctly sets forth our agreement, please so indicate by signing
the
enclosed copy of this Agreement and returning it to us.
Very
truly yours,
__________________________________________
By:
______________________________________
Name:
____________________________________
Title:
_____________________________________
[Street
Address]
[City,
State, Zip Code]
Telephone:
Telecopy:
AGREED
AND ACCEPTED:
_______________________________
By: _________________________
_________________________
_________________________
_________________________
Attention: ___________________
Telephone: ___________________
Telecopy: ___________________
Account
for Payments: ____________
ASSIGNMENT
APPROVED PURSUANT TO SECTION 13.13 OF THE CREDIT
AGREEMENT
AND RELEASE APPROVED IN SECTION 2 OF THIS AGREEMENT:
SOUTHERN
UNION COMPANY
By: _______________________
Name: _______________________
Title: _______________________