Exhibit 4.1
U.S. $400,000,000
CREDIT AGREEMENT
Dated as of June 30, 2005
Among
CENTERPOINT ENERGY RESOURCES CORP.
as Borrower,
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders,
and
CITIGROUP GLOBAL MARKETS INC., BARCLAYS CAPITAL
and BANC OF AMERICA SECURITIES LLC
as Lead Arrangers,
and
CITIBANK, N.A.
as Administrative Agent,
and
BARCLAYS BANK PLC and BANK OF AMERICA, N.A.
as Co-Syndication Agents
and
CITIBANK, N.A., BARCLAYS BANK PLC and BANK OF AMERICA, N.A.
as Issuing Banks
and
CREDIT SUISSE, CAYMAN ISLANDS BRANCH, DEUTSCHE BANK AG NEW YORK BRANCH,
JPMORGAN CHASE BANK, N.A., THE ROYAL BANK OF SCOTLAND PLC AND WACHOVIA BANK,
NATIONAL ASSOCIATION
as Documentation Agents
CERC 5-Year Revolving Credit Agreement
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms................................................................. 1
SECTION 1.02 Computation of Time Periods........................................................... 17
SECTION 1.03 Accounting Terms...................................................................... 17
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The Revolving Advances and Letters of Credit.......................................... 17
SECTION 2.02 Making the Revolving Advances......................................................... 18
SECTION 2.03 Issuance of and Drawings and Reimbursement Under Letters of Credit.................... 19
SECTION 2.04 The CAF Advances...................................................................... 20
SECTION 2.05 Competitive Bid Procedure............................................................. 20
SECTION 2.06 Fees.................................................................................. 22
SECTION 2.07 Termination or Reduction of the Revolving Commitments................................. 23
SECTION 2.08 Repayment............................................................................. 23
SECTION 2.09 Interest.............................................................................. 24
SECTION 2.10 Interest Rate Determination........................................................... 25
SECTION 2.11 Optional Conversion of Revolving Advances............................................. 25
SECTION 2.12 Optional Prepayments of Revolving Advances............................................ 25
SECTION 2.13 Increased Costs....................................................................... 26
SECTION 2.14 Illegality............................................................................ 26
SECTION 2.15 Payments and Computations............................................................. 27
SECTION 2.16 Taxes................................................................................. 27
SECTION 2.17 Sharing of Payments, Etc.............................................................. 29
SECTION 2.18 Use of Proceeds....................................................................... 30
SECTION 2.19 Increase in the Aggregate Revolving Commitments....................................... 30
SECTION 2.20 Evidence of Debt...................................................................... 31
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01 Conditions Precedent to Effectiveness of Sections 2.01 and 2.04....................... 31
SECTION 3.02 Conditions Precedent to Each Revolving Borrowing, Issuance and Commitment Increase.... 32
SECTION 3.03 Conditions Precedent to Each CAF Borrowing............................................ 33
SECTION 3.04 Determinations Under Section 3.01..................................................... 33
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower........................................ 34
CERC 5-Year Revolving Credit Agreement
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PAGE
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01 Affirmative Covenants................................................................. 35
SECTION 5.02 Negative Covenants.................................................................... 37
SECTION 5.03 Financial Covenants................................................................... 41
SECTION 5.04 Borrower's Accounting Reorganization.................................................. 41
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default..................................................................... 41
SECTION 6.02 Actions in Respect of the Letters of Credit upon Default.............................. 43
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01 Authorization and Action.............................................................. 44
SECTION 7.02 Administrative Agent's Reliance, Etc.................................................. 44
SECTION 7.03 Citibank and Affiliates............................................................... 44
SECTION 7.04 Lender Credit Decision................................................................ 44
SECTION 7.05 Indemnification....................................................................... 45
SECTION 7.06 Successor Administrative Agents....................................................... 45
SECTION 7.07 Co-Syndication Agents; Lead Arrangers................................................. 46
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendments, Etc....................................................................... 46
SECTION 8.02 Notices, Etc.......................................................................... 46
SECTION 8.03 No Waiver; Remedies................................................................... 48
SECTION 8.04 Costs and Expenses.................................................................... 48
SECTION 8.05 Right of Set off...................................................................... 49
SECTION 8.06 Binding Effect........................................................................ 49
SECTION 8.07 Assignments and Participations........................................................ 49
SECTION 8.08 Patriot Act Notification.............................................................. 52
SECTION 8.09 Confidentiality....................................................................... 52
SECTION 8.10 Governing Law......................................................................... 52
SECTION 8.11 Counterparts.......................................................................... 52
SECTION 8.12 Removal of Lender..................................................................... 52
SECTION 8.13 Jurisdiction, Etc..................................................................... 53
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Schedules
---------
Schedule I List of Applicable Lending Offices
Schedule II Lead Arrangers Addresses
Schedule III Commitment Percentages
Exhibits
--------
Exhibit A Form of Promissory Note
Exhibit B Form of Notice of Borrowing
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of CAF Note
Exhibit E Form of Competitive Bid Request
Exhibit F Form of Competitive Bid
Exhibit G Form of Competitive Bid Confirmation
Exhibit H Form of Notice of Letter of Credit Issuance
Exhibit I Form of Assumption Agreement
CERC 5-Year Revolving Credit Agreement
CREDIT AGREEMENT
Dated as of June 30, 2005
CENTERPOINT ENERGY RESOURCES CORP., a Delaware corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, CITIGROUP GLOBAL
MARKETS INC. ("CGMI"), BARCLAYS CAPITAL, the investment banking division of
BARCLAYS BANK PLC and BANC OF AMERICA SECURITIES LLC, as lead arrangers (the
"Lead Arrangers"), and BARCLAYS BANK PLC ("Barclays") and BANK OF AMERICA, N.A.,
as syndication agents (the "Co-Syndication Agents"), CITIBANK, N.A.
("Citibank"), BARCLAYS and BANK OF AMERICA, N.A., as Issuing Banks, and
Citibank, as administrative agent (the "Administrative Agent") for the Lenders
(as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Accounting Reorganization" has the meaning specified in Section
5.02(c).
"Acquired Entity" has the meaning set forth in the definition of
"Permitted Liens".
"Advance" means a Revolving Advance, a Letter of Credit Advance or a
CAF Advance, as the case may be, by a Lender to the Borrower pursuant to
Article II, and refers to a Base Rate Advance or a Eurodollar Rate Advance
(each of which shall be a "Type" of Advance).
"Affiliate" of any Person means any other Person that, directly or
indirectly, Controls or is Controlled by or is under common Control with
such first Person.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank,
N.A. with its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇, Attention: Global Loans/Agency.
"Aggregate Outstanding Extensions of Credit" means, as to any Lender
at any time, an amount equal to the aggregate principal amount of all
Revolving Advances, Letters of Credit, Letter of Credit Advances and CAF
Advances made by such Lender then outstanding.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance or CAF Eurodollar Rate Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/▇▇▇▇▇'▇/Fitch Base Rate Advances Eurodollar Rate Advances
----------------------------- --------------------- ------------------------
Level 1
BBB+/Baa1/BBB+ or
above 0.0% 0.35%
▇▇▇▇▇ ▇
▇▇▇/▇▇▇▇/▇▇▇ 0.0% 0.425%
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Public Debt Rating Applicable Margin for Applicable Margin for
S&P/▇▇▇▇▇'▇/Fitch Base Rate Advances Eurodollar Rate Advances
----------------------------- --------------------- ------------------------
▇▇▇▇▇ ▇
▇▇▇-/▇▇▇▇/▇▇▇- 0.0% 0.50%
Level 4
BB+/Ba1/BB+ 0.0% 0.80%
▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇ or
unrated by S&P, ▇▇▇▇▇'▇
and Fitch 0.0% 1.00%
"Applicable Percentage" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on such
date as set forth below:
Public Debt Rating Applicable
S&P/▇▇▇▇▇'▇/Fitch Percentage
-------------------------------- -----------
▇▇▇▇▇ ▇ 0.10%
BBB+/Baa1/BBB+ or above
▇▇▇▇▇ ▇ 0.125%
BBB/Baa2/BBB
▇▇▇▇▇ ▇ 0.15%
BBB-/Baa3/BBB-
▇▇▇▇▇ ▇ 0.20%
BB+/Ba1/BB+
▇▇▇▇▇ ▇ 0.25%
Lower than Level 4 or unrated by
S&P, ▇▇▇▇▇'▇ and Fitch
"Applicable Utilization Fee" means, as of any date on which the
aggregate principal amount of the Advances plus the Letters of Credit
exceeds 50% of the aggregate amount of the Lenders' Revolving Commitments,
a percentage per annum equal to 0.10%.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit assuming
compliance at such time with all conditions to drawing.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as its base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Advance that bears interest as
provided in Section 2.08(a)(i).
"Board" means the Board of Governors of the Federal Reserve System
of the United States (or any successor).
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"Borrowed Money" of any Person means any Indebtedness of such Person
for or in respect of money borrowed or raised by whatever means (including
acceptances, deposits and lease obligations under Capital Leases);
provided, however, that Borrowed Money shall not include (a) any
guarantees that may be incurred by endorsement of negotiable instruments
for deposit or collection in the ordinary course of business or similar
transactions, (b) any obligations or guarantees of performance of
obligations under a franchise, performance bonds, franchise bonds,
obligations to reimburse drawings under letters of credit issued in
accordance with the terms of any safe harbor lease or franchise or in lieu
of performance or in lieu of franchise bonds or other obligations that do
not represent money borrowed or raised, which reimbursement obligations in
each case shall be payable in full within ten (10) Business Days after the
date upon which such obligation arises, (c) trade payables, (d) customer
advance payments and deposits arising in the ordinary course of such
Person's business, (e) operating leases and (f) obligations under swap
agreements.
"Borrowing" means either a Revolving Borrowing or a CAF Borrowing.
"Borrowing Date" means any Business Day specified by the Borrower as
a date on which the Borrower requests the relevant Lenders to make
Advances hereunder.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"CAF Advance" means an Advance made to the Borrower pursuant to
Section 2.05 by a Lender in response to a Competitive Bid Request.
"CAF Borrowing" means a borrowing consisting of CAF Advances under
Section 2.05 consisting of CAF Advances of the same Type made on the same
day by the Lender or Lenders whose Competitive Bid or Bids have been
accepted pursuant to Section 2.05(d).
"CAF Eurodollar Rate Advance" means any CAF Advance that bears
interest at the Eurodollar Rate.
"CAF Facility" has the meaning as set forth in Section 2.04(a).
"CAF Margin" means, as to any Competitive Bid relating to a CAF
Eurodollar Rate Advance, the margin (expressed as a percentage rate per
annum in the form of a decimal to no more than four decimal places) to be
added to or subtracted from the Eurodollar Rate in order to determine the
interest rate acceptable to such Lender with respect to such CAF
Eurodollar Rate Advance.
"CAF Note" means a promissory note of the Borrower payable to the
order of any Lender that has requested a CAF Note pursuant to Section
2.19(a), in substantially the form of Exhibit D hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the
CAF Advances made by such Lender.
"CAF Rate" means, as to any Competitive Bid made by a Lender
pursuant to Section 2.05(b), (i) in the case of a CAF Eurodollar Rate
Advance, the CAF Margin added to or subtracted from, as the case may be,
the Eurodollar Rate, and (ii) in the case of a Fixed Rate Advance, the
fixed rate of interest, in each case, offered by such Lender.
"Capital Lease" means a lease that, in accordance with GAAP, would
be recorded as a capital lease on the balance sheet of the lessee.
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, and any and all equivalent ownership interests in a Person
(other than a corporation), including without limitation, partnership
interests in partnerships and member
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interests in limited liability companies, and any and all warrants or
options to purchase any of the foregoing or securities convertible into
any of the foregoing.
"Cash Interest" means interest expense of the Borrower and its
Subsidiaries, to the extent actually paid in cash, during the relevant
period.
"Commitment" means the Revolving Commitment and the Letter of Credit
Commitment.
"Commitment Increase" has the meaning as set forth in Section
2.19(a).
"Commitment Percentage" means, for each Lender, the percentage
identified as its Commitment Percentage opposite such Lender's name on
Schedule III attached hereto, as such percentage may be modified by
assignment in accordance with the terms of this Agreement or by reductions
or increases in the Revolving Commitment pursuant to Section 2.07 and
Section 2.19.
"Communications" has the meaning specified in Section 8.02(b).
"Competitive Bid" has the meaning as set forth in Section 2.05(b).
"Competitive Bid Confirmation" has the meaning as set forth in
Section 2.05(d).
"Competitive Bid Request" has the meaning as set forth in Section
2.05(a).
"Confidential Information" means information that the Borrower or
any of its Subsidiaries furnishes to the Administrative Agent or any
Lender in a writing designated as confidential or which in the Borrower's
or its Subsidiaries' course of dealing with the Administrative Agent or
such Lender has been designated as confidential, but does not include any
such information that is or becomes generally available to the public or
that is or becomes available to the Administrative Agent or such Lender
from a source other than the Borrower or its Subsidiaries.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Capitalization" means the sum of (a) Consolidated
Shareholders' Equity, (b) Consolidated Indebtedness for Borrowed Money and
(c) without duplication, any Mandatory Payment Preferred Stock.
"Consolidated Shareholders' Equity" means, as of any date of
determination, the total assets of Borrower and its Consolidated
Subsidiaries less all liabilities of Borrower and its Consolidated
Subsidiaries. (As used in this definition, "liabilities" means all
obligations that, in accordance with GAAP consistently applied, would be
classified on a balance sheet as liabilities, including, without
limitation, (a) Indebtedness; (b) deferred liabilities; and (c)
Indebtedness of Borrower or any of its Consolidated Subsidiaries that is
expressly subordinated in right and priority of payment to other
liabilities of Borrower or such Consolidated Subsidiaries, but in any case
excluding as at such date of determination any Junior Subordinated Debt
owned by any Hybrid Preferred Securities Subsidiary and excluding any
adjustment, non-cash charge to net income or other non-cash charges or
write-offs resulting thereto from the application of SFAS No. 142 and
similar provisions of GAAP).
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any written agreement, instrument
or other written undertaking to which such Person is a party or by which
it or any of its property is bound.
"Controlled" means, with respect to any Person, the ability of
another Person (whether directly or indirectly and whether by the
ownership of voting securities, contract or otherwise) to appoint and/or
remove the majority of the members of the board of directors or other
governing body of that Person (and "Control" and "Controls" shall be
similarly construed).
CERC 5-Year Revolving Credit Agreement
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"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Advances of one Type into Revolving Advances of the other
Type pursuant to Section 2.10 or 2.11.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, for any period, net income (or net loss) plus the
sum of (a) interest expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense and (e) to the extent reflected as a
charge in the computation of net income for such period, any other
non-cash charges, in each case determined in accordance with GAAP for such
period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Administrative Agent,
the Issuing Banks and, unless an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with
Section 8.07, the Borrower, such approval not to be unreasonably withheld
or delayed; provided, however, that neither the Borrower nor an Affiliate
of the Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged injury
or threat of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance having the force
of law relating to pollution or protection of the environment, health,
safety or natural resources, including, without limitation, those relating
to the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equity Interests" means any capital stock, partnership, joint
venture, member or limited liability or unlimited liability company
interest, beneficial interest in a trust or similar entity or other equity
interest or investment of whatever nature.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30 day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA
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(without regard to subsection (2) of such Section) are met with respect to
a contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to
such Plan within the following 30 days; (b) the application for a minimum
funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate such Plan
pursuant to Section 4041(a)(2) of ERISA (including any such notice with
respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of the Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall have been met
with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307
of ERISA; or (h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds for
the termination of, or the appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has 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" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upward to the nearest whole multiple of 1/100 of 1% per
annum, if such rate per annum is not such a multiple) at which deposits in
U.S. dollars are offered by the principal office of Citibank, N.A. in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to the Administrative Agent's
Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means a Revolving Advance that bears
interest as provided in Section 2.09(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances or CAF Eurodollar Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two Business
Days before the first day of such Interest Period 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 a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Advances or CAF Eurodollar Rate Advances
is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1933, as
amended.
"Existing 3-Year Revolving Credit Facility" has the meaning
specified in Section 3.01(b).
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"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds 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 that is a Business Day, the
average of the quotations for such day on such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fee Letter" means the 5-Year Revolving Credit Facility Fee Letter
dated as of May 31, 2005 between Citibank, CGMI and the Borrower.
"Financial Officer" means, with respect to the Borrower, its chief
financial officer, chief accounting officer, treasurer, assistant
treasurer, comptroller or any other officer acceptable to the
Administrative Agent.
"Fitch" means Fitch Ratings, and any successors thereto.
"Fixed Rate Advance" means any CAF Advance made by a Lender pursuant
to Section 2.05(b) based upon a fixed percentage rate per annum offered by
such Lender, expressed as a decimal (to no more than four decimal places),
and accepted by the Borrower.
"Fully Hedged" means, with respect to any Indexed Debt Securities,
that Borrower or any Consolidated Subsidiary of Borrower either (i) owns
or has in effect rights providing substantially the economic effect, in
such context, of owning, a sufficient amount of the Indexed Asset relating
thereto to satisfy completely its obligations at maturity of the Indexed
Debt Securities or (ii) has in effect a hedging arrangement sufficient to
enable it to satisfy completely its obligations at maturity of the Indexed
Debt Securities.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Guarantee" means, as to any Person (the "guaranteeing person"), any
obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any principal of any Indebtedness
for Borrowed Money (the "primary obligations") of any other third Person
in any manner, whether directly or indirectly, including, without
limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds for the purchase or payment of any such primary obligation or
(iii) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof. The amount of any Guarantee of
any guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee, unless such primary obligation and
the maximum amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of such Guarantee
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by Borrower in good faith (and
"guaranteed" and "guarantor" shall be construed accordingly).
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos
containing materials, polychlorinated biphenyls and radon gas and
CERC 5-Year Revolving Credit Agreement
8
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hybrid Preferred Securities" means preferred securities issued by
any Hybrid Preferred Securities Subsidiary.
"Hybrid Preferred Securities Subsidiary" means any Delaware business
trust (or similar entity) (i) all of the common equity interest of which
is owned (either directly or indirectly through one or more Wholly-Owned
Subsidiaries) at all times by Borrower, (ii) that has been formed for the
purpose of issuing Hybrid Preferred Securities and (iii) substantially all
of the assets of which consist at all times solely of the Junior
Subordinated Debt and payments made from time to time on the Junior
Subordinated Debt.
"Indebtedness" of any Person means the sum of (a) all items (other
than capital stock, capital surplus and retained earnings) that, in
accordance with GAAP consistently applied, would be included in
determining total liabilities as shown on the liability side of a balance
sheet of such Person as at the date on which the Indebtedness is to be
determined and (b) the amount of all Guarantees by such Person; provided,
however, that Indebtedness of a Person shall not include any Junior
Subordinated Debt owned by any Hybrid Preferred Securities Subsidiary or
any Guarantee by Borrower of payments with respect to any Hybrid Preferred
Securities.
"Increase Date" has the meaning as set forth in Section 2.19(a).
"Increasing Lender" has the meaning as set forth in Section 2.19(b).
"Indexed Asset" means, with respect to any Indexed Debt Security,
(i) any security or commodity that is deliverable upon maturity of such
Indexed Debt Security to satisfy the obligations under such Indexed Debt
Security at maturity or (ii) any security, commodity or index relating to
one or more securities or commodities used to determine or measure the
obligations under such Indexed Debt Security at maturity thereof.
"Indexed Debt Securities" means any security issued by Borrower or
any Consolidated Subsidiary of Borrower that (a) in accordance with GAAP,
is shown on the consolidated balance sheet of Borrower and its
Consolidated Subsidiaries as Indebtedness or a liability and (b) the
obligations at maturity of which may be satisfied completely by the
delivery of, or the amount of such obligations are determined by reference
to, (1) an equity security issued by an issuer other than Borrower or any
such Consolidated Subsidiary or (2) an underlying index, commodity or
security.
"Information Memorandum" means the information memorandum dated June
3, 2005] used by the Lead Arrangers in connection with the syndication of
the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Revolving Borrowing and each CAF Eurodollar Rate Advance
comprising part of the same CAF Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or CAF Eurodollar Rate Advance or the
date of the Conversion of any Base Rate Advance into such Eurodollar Rate
Advance and ending on the last day of the period selected by the Borrower
pursuant to the provisions below and, thereafter, with respect to
Eurodollar Rate Advances, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last
day of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be two weeks or
one, two, three or six months (or such other period as may be approved by
the Administrative Agent), as the Borrower may, upon notice received by
the Administrative Agent not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the Termination Date;
CERC 5-Year Revolving Credit Agreement
9
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Borrowing or for CAF Eurodollar Rate Advances comprising part of the
same CAF Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, warrants, rights,
options, other securities or all or substantially all of the assets of
such Person or any capital contribution to such Person or any other
investment in such Person.
"Issuing Banks" means the banks listed on the signature pages hereof
as "Issuing Bank" and any other Lender approved as an Issuing Bank by the
Administrative Agent and any Eligible Assignee to which a Letter of Credit
Commitment hereunder has been assigned pursuant to Section 8.07 so long as
each such Lender or Eligible Assignee expressly agrees to perform in
accordance with their terms all of the obligations that by the terms of
this Agreement are required to be performed by an Issuing Bank and
notifies the Administrative Agent of its Applicable Lending Office and the
amount of its Letter of Credit Commitment (which information shall be
recorded by the Administrative Agent in the Register), for so long as such
Issuing Bank, Lender or Eligible Assignee, as the case may be, shall have
a Letter of Credit Commitment.
"Junior Subordinated Debt" means subordinated debt of Borrower or
any Subsidiary of Borrower (i) that is issued at par to a Hybrid Preferred
Securities Subsidiary in connection with the issuance of Hybrid Preferred
Securities, (ii) the payment of the principal of which and interest on
which is subordinated (with certain exceptions) to the prior payment in
full in cash or its equivalent of all senior indebtedness of the obligor
thereunder and (iii) that has an original tenor no earlier than 30 years
from the issuance thereof.
"Lead Arrangers" has the meaning specified in the recital of parties
to this Agreement.
"L/C Disbursement" means a payment or disbursement made by any
Issuing Bank pursuant to a Letter of Credit.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.
"Letter of Credit Advance" means an advance by any Issuing Bank or
any Lender pursuant to Section 2.03(c).
"Letter of Credit Commitment" means, with respect to any Issuing
Bank at any time, the amount set forth opposite such Issuing Bank's name
on Schedule III hereof under the caption "Letter of Credit Commitment" or,
if such Issuing Bank has entered into one or more Assignment and
Acceptances, set forth for such Issuing Bank in the Register maintained by
the Administrative Agent pursuant to Section 8.07.
CERC 5-Year Revolving Credit Agreement
10
"Letter of Credit Facility" means, at any time, an amount equal to
the amount of the Issuing Banks' Letter of Credit Commitments at such
time, as such amount may be reduced at or prior to such time pursuant to
Section 2.07.
"Letters of Credit" has the meaning specified in Section 2.01(b).
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, charge, security interest, encumbrance or
lien of any kind whatsoever (including any Capital Lease).
"Loan Documents" means this Agreement, the Notes or CAF Notes (if
any), each Letter of Credit, and all other documents executed in
connection herewith and therewith, including, without limitation, each
Notice of Borrowing.
"Mandatory Payment Preferred Stock" means any preference or
preferred stock of the Borrower or of any Consolidated Subsidiary (in each
case other than any issued to the Borrower or its Subsidiaries and other
than Hybrid Preferred Securities or Junior Subordinated Debt) that is
subject to mandatory redemption, sinking fund or retirement provisions;
provided, that any amounts subject to any mandatory redemption, sinking
fund or retirement provisions due and payable prior to the Termination
Date or within one year following the Termination Date will not be
considered Mandatory Payment Preferred Stock.
"Margin Stock" means any margin stock (as defined in Regulation U)
and any margin security (as defined in Regulation T).
"Material Adverse Change" means any material adverse change in the
ability of the Borrower to perform its obligations under the Loan
Documents on a timely basis (it being understood and agreed that a
Material Adverse Change shall not include the effect of any True-Up
Litigation) since December 31, 2004.
"Material Adverse Effect" means any material adverse effect on the
ability of the Borrower to perform its obligations under this Agreement or
any other Loan Document on a timely basis (it being understood and agreed
that a Material Adverse Effect shall not include the effect of any True-Up
Litigation).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and any successors
thereto.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Net Tangible Assets" means, with respect to the Borrower, the total
assets of the Borrower and its Consolidated Subsidiaries and Unrestricted
Subsidiaries, minus goodwill and other intangible assets as shown on the
balance sheet of the Borrower, its Consolidated Subsidiaries and the
Unrestricted Subsidiaries delivered pursuant to Section 5.01(j) in respect
of the most recently ended fiscal quarter of the Borrower and with respect
to any other Person, the total assets of such Person and its Consolidated
Subsidiaries, minus goodwill and other intangible assets as determined
pursuant to such Person's most recently available financial statements.
"Non-Recourse Debt" means (i) any Indebtedness for Borrowed Money
incurred by any Project Finance Subsidiary to finance the acquisition,
improvement, installation, design, engineering, construction,
CERC 5-Year Revolving Credit Agreement
11
development, completion, maintenance or operation of, or otherwise to pay
costs and expenses relating to or providing financing for any project,
which Indebtedness for Borrowed Money does not provide for recourse
against the Borrower or any Subsidiary of the Borrower (other than a
Project Finance Subsidiary and such recourse as exists under a Performance
Guaranty) or any property or asset of the Borrower or any Subsidiary of
the Borrower (other than Equity Interests in, or the property or assets
of, a Project Finance Subsidiary and such recourse as exists under a
Performance Guaranty) and (ii) any refinancing of such Indebtedness for
Borrowed Money that does not increase the outstanding principal amount
thereof (other than to pay costs incurred in connection therewith and the
capitalization of any interest, fees, premium or penalties) at the time of
the refinancing or increase the property subject to any Lien securing such
Indebtedness for Borrowed Money or otherwise add additional security or
support for such Indebtedness for Borrowed Money.
"Note" means a promissory note of the Borrower payable to the order
of any Lender that has requested a Note pursuant to Section 2.19(a), in
substantially the form of Exhibit A hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the Revolving
Advances made by such Lender.
"Notice" has the meaning specified in Section 8.02(c).
"Notice of Borrowing" has the meaning specified in Section 2.02.
"Notice of Letter of Credit Issuance" has the meaning specified in
Section 2.03(a).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not claim is discharged, stayed or otherwise affected by any proceeding
referred to in Section 6.01(f). Without limiting the generality of the
foregoing, the Obligations of the Borrower under the Loan Documents
include (a) the obligation to pay principal, interest, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by the Borrower under any Loan Document and (b) the obligation of
the Borrower to reimburse any amount in respect of any of the foregoing
that any Lender, in its sole discretion, may elect to pay or advance on
behalf of the Borrower.
"Parent" means CenterPoint Energy, Inc., a Texas corporation.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Performance Guaranty" means any guaranty issued in connection with
any Non-Recourse Debt that (i) if secured, is secured only by assets of or
Equity Interests in a Project Finance Subsidiary, and (ii) guarantees to
the provider of such Non-Recourse Debt or any other Person (a) performance
of the improvement, installation, design, engineering, construction,
acquisition, development, completion, maintenance or operation of, or
otherwise affects any such act in respect of, all or any portion of the
project that is financed by such Non-Recourse Debt, (b) completion of the
minimum agreed equity or other contributions or support to the relevant
Project Finance Subsidiary, or (c) performance by a Project Finance
Subsidiary of obligations to Persons other than the provider of such
Non-Recourse Debt.
"Permitted Liens" means with respect to any Person:
(a) Liens for current taxes, assessments or other governmental
charges that are not delinquent or remain payable without any penalty, or
the validity or amount of which is contested in good faith by appropriate
proceedings, provided, however, that adequate reserves with respect
thereto are maintained on the books of such Person in accordance with
GAAP, and provided further that any right to seizure, levy, attachment,
sequestration, foreclosure or garnishment with respect to Property of such
Person
CERC 5-Year Revolving Credit Agreement
12
or any Subsidiary of such Person by reason of such Lien has not matured,
or has been, and continues to be, effectively enjoined or stayed;
(b) landlord Liens for rent not yet due and payable and Liens for
materialmen, mechanics, warehousemen, carriers, employees, workmen,
repairmen and other similar nonconsensual Liens imposed by operation of
law, for current wages or accounts payable or other sums not yet
delinquent, in each case arising in the ordinary course of business or if
overdue, that are being contested in good faith by appropriate
proceedings, provided, however, that any right to seizure, levy,
attachment, sequestration, foreclosure or garnishment with respect to
Property of such Person or any Subsidiary of such Person by reason of such
Lien has not matured, or has been, and continues to be, effectively
enjoined or stayed;
(c) Liens (other than any Lien imposed pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code, ERISA or any
environmental law, order, rule or regulation) incurred or deposits made,
in each case, in the ordinary course of business, (i) in connection with
workers compensation, unemployment insurance and other types of social
security or (ii) to secure (or to obtain letters of credit that secure)
the performance of tenders, statutory obligations, surety and appeals
bonds, bids, leases, performance or payment bonds, purchase, construction,
sales contacts, and other similar obligations, in each case not incurred
or made in connection with the borrowing of money, the obtaining of
advances or the payment of the deferred purchase price of property;
(d) Liens arising out of or in connection with any litigation or
other legal proceeding that is being contested in good faith by
appropriate proceedings; provided, however, that adequate reserves with
respect thereto are maintained on the books of such Person in accordance
with GAAP; and provided further that subject to Section 6.01(f) (so long
as such Lien is discharged or released within 30 days of attachment
thereof), any right to seizure, levy, attachment, sequestration,
foreclosure or garnishment with respect to Property of such Person or any
Subsidiary of such Person by reason of such Lien has not matured, or has
been and continues to be, effectively enjoined or stayed;
(e) precautionary filings under the applicable Uniform Commercial
Code made by a lessor with respect to personal property leased to such
Person or any Subsidiary of such Person;
(f) other non-material Liens or encumbrances none of which secures
Indebtedness for Borrowed Money of the Borrower or any of its Subsidiaries
or interferes materially with the use of the Property affected in the
ordinary conduct of the Borrower's or its Subsidiaries' business and which
individually or in the aggregate do not have a Material Adverse Effect;
(g) easements, rights-of-way, restrictions and other similar
encumbrances and exceptions to title existing or incurred in the ordinary
course of business that, in the aggregate, do not in any case materially
detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Borrower and
its Subsidiaries, taken as a whole;
(h) Liens created by Capital Leases, provided that the Liens created
by any such Capital Lease attach only to the Property leased to the
Borrower or one of its Subsidiaries pursuant thereto, (ii) purchase money
Liens securing Indebtedness of the Borrower or any of its Subsidiaries
(including such Liens securing such Indebtedness incurred within twelve
months of the date on which such Property was acquired), provided that all
such Liens attach only to the Property purchased with the proceeds of the
Indebtedness secured thereby and only secure the Indebtedness incurred to
finance such purchase, (iii) Liens on receivables, customer charges,
notes, ownership interests, contracts or contract rights which are
transferred to the purchaser of such receivables, customer charges, notes,
ownership interests, contracts or contract rights in connection with such
sale, securitization or monetization, provided that such Liens secure only
the obligations of the Borrower or any of its Subsidiaries in connection
with such sale, securitization or monetization and (iv) Liens created by
leases that do not constitute Capital Leases at the time such leases are
entered into, provided that the Liens created thereby attach only to the
Property leased to the Borrower or one of its Subsidiaries pursuant
thereto.
CERC 5-Year Revolving Credit Agreement
13
(i) Liens on cash and short term investments (i) deposited by the
Borrower or any of its Subsidiaries in accounts with or on behalf of
futures contract brokers or other counterparties or (ii) pledged by the
Borrower or any of its Subsidiaries, in the case of clause (i) or (ii) to
secure its obligations with respect to contracts (including without
limitation, physical delivery, option (whether cash or financial),
exchange, swap and future contracts) for the purchase or sale of any
energy-related commodity or interest rate or currency rate management
contracts;
(j) Liens on (i) Property owned by a Project Financing Subsidiary or
(ii) equity interests in a Project Financing Subsidiary (including in each
case a pledge of a partnership interest, common stock or a membership
interest in a limited liability company) securing Indebtedness of the
Borrower or any of its Subsidiaries incurred in connection with a Project
Financing; and
(k) Liens on equity interests in an Unrestricted Subsidiary
(including in each case a pledge of a partnership interest, common stock
or a membership interest in a limited liability company) securing, subject
to Section 5.02(e), Indebtedness of such Unrestricted Subsidiary.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Platform" has the meaning specified in Section 8.02(b).
"Principal Property" means any natural gas distribution property,
natural gas pipeline or gas processing plant located in the United States,
except any such property that in the reasonable opinion of the board of
directors of Borrower is not of material importance to the total business
conducted by the Borrower and its Consolidated Subsidiaries. "Principal
Property" shall not include any oil or gas property or the production or
proceeds of production from an oil or gas producing property or the
production or any proceeds of production of gas processing plants or oil
or gas or petroleum products in any pipeline or storage field.
"Project Finance Subsidiary" and "Project Finance Subsidiaries"
means any Subsidiary of the Borrower (or any other Person in which the
Borrower directly or indirectly owns a 50% or less interest) whose
principal purpose is to incur Project Financing or to become an owner of
interests in a Person so created to conduct the business activities for
which such Project Financing was incurred, and substantially all the fixed
assets of which Subsidiary or Person are those fixed assets being financed
(or to be financed) in whole or in part by one or more Project Financings.
"Project Financing" means any Indebtedness or lease obligations that
do not constitute Capital Leases at the time such leases are entered into,
in each case that are incurred to finance a project or group of projects
(including any construction financing to the extent that such Indebtedness
(or other obligations) expressly are not recourse to the Borrower or any
of its Subsidiaries (other than a Project Financing Subsidiary) or any of
their respective Property other than the Property of a Project Financing
Subsidiary and equity interests in a Project Financing Subsidiary
(including in each case a pledge of a partnership interest, common stock
or a membership interest in a limited liability company).
"Property" means 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.
"Pro Rata Share" of any amount means, with respect to any Lender, at
any time, the product of such amount times a fraction the numerator of
which is the amount of such Lender's Revolving Commitment at such time
(or, if the Commitments shall have terminated pursuant to Section 2.07 or
6.01, such Lender's Revolving Commitment as in effect immediately prior to
such termination) and the denominator of which is the Revolving Facility
at such time (or, if the Commitments shall have been
CERC 5-Year Revolving Credit Agreement
14
terminated pursuant to Section 2.07 or 6.01, the Revolving Facility as in
effect immediately prior to such termination).
"Public Debt Rating" means, as of any date, (a) at any time the
non-credit enhanced senior unsecured long-term debt of the Borrower is
rated by S&P, by ▇▇▇▇▇'▇ and by Fitch and such ratings are equivalent,
such rating, (b) the middle of such ratings in the case where there is a
split between all such ratings or (c) if such ratings are split and two of
the ratings fall in the same level (the "Majority Level"), and the third
rating is in a different level then such rating shall be the Majority
Level. For purposes of the foregoing, (x) if only two of such three
agencies issue a rating, the higher of such ratings shall apply, provided
that if the higher rating is two or more levels above the lower rating,
the rating next above the lower of the two shall apply; if only one of
such three agencies issues a rating, such rating shall apply and (y) if
any such rating established by S&P, ▇▇▇▇▇'▇ or Fitch shall be changed,
such change shall be effective as of the date on which such change is
first announced publicly by the rating agency making such change and (z)
if S&P, ▇▇▇▇▇'▇ or Fitch shall change the basis on which ratings are
established, each reference to the Public Debt Rating announced by S&P,
▇▇▇▇▇'▇ or Fitch, as the case may be, shall refer to the then equivalent
rating by S&P, ▇▇▇▇▇'▇ or Fitch, as the case may be.
"Receivables Transaction" means, collectively, the transactions
contemplated by (i) the Receivables Purchase Agreement, dated as of January 21,
2004, as amended by Amendment #1 dated as of January 19, 2005, among CenterPoint
Energy Gas Receivables, LLC, as seller, the Borrower, as initial servicer, Blue
Ridge Asset Funding Corporation and Wachovia Bank, National Association, as
agent, (ii) the Receivables Sale Agreement, dated as of January 21, 2004, among
the Borrower, Arkansas Louisiana Finance Corporation, CenterPoint Energy Gas
Transmission Company, CenterPoint Energy-Mississippi River Transmission
Corporation, CenterPoint Energy Field Services, Inc., CenterPoint Energy
Intrastate Pipelines, Inc. and CenterPoint Energy Services, Inc. (formerly known
as CenterPoint Energy Gas Services, Inc.), as originators, and CenterPoint
Energy Gas Receivables, LLC, as buyer, and (iii) related agreements (as each
such agreement in clauses (i) through (iii) may be amended, supplemented or
otherwise modified from time to time, or replaced, refunded or refinanced).
"Register" has the meaning specified in Section 8.07(c).
"Regulation T" and "Regulation U" mean Regulation T and U,
respectively, of the Board or any other regulation hereafter promulgated
by the Board to replace the prior Regulation T or U, as the case may be,
and having substantially the same function.
"Required Lenders" means, at any time, Lenders owed or holding at
least 51% of the sum of (a) the then aggregate unpaid principal amount of
the Advances owing to the Lenders, (b) the aggregate Available Amount of
all Letters of Credit outstanding at such time and (c) the aggregate
Unused Revolving Credit Commitments at such time.
"Requirements of Law" means, as to any Person, any law, statute or
ordinance, decree, requirement, order, judgment, rule, or regulation of
any Governmental Authority.
"Responsible Officer" means, with respect to any Person, its chief
financial officer, chief accounting officer, assistant treasurer,
treasurer or comptroller of such Person or any other officer of such
Person whose primary duties are similar to the duties of any of the
previously listed officers of such Person.
"Restricted Subsidiary" means all Subsidiaries of the Borrower other
than Unrestricted Subsidiaries.
"Revolving Advances" has the meaning as set forth in Section 2.01.
"Revolving Borrowing" means a borrowing consisting of Revolving
Advances of the same Type, made by the Lenders on the same day under
Section 2.02.
"Revolving Commitment" has the meaning set forth in Section 2.01(a).
CERC 5-Year Revolving Credit Agreement
15
"Revolving Extensions of Credit" means, as to any Lender at any
time, an amount equal to the aggregate principal amount of all Revolving
Advances held by such Lender then outstanding.
"Revolving Facility" has the meaning as set forth in Section 2.01.
"Sale and Leaseback Transaction" means any arrangement with any
Person providing for the leasing to the Borrower or any Restricted
Subsidiary of any Principal Property (except for temporary leases for a
term, including any renewal thereof of not more than three years and
except for leases between the Borrower and a Restricted Subsidiary or
between Restricted Subsidiaries), which Principal Property has been or is
to be sold or transferred by the Borrower or any Restricted Subsidiary to
such Person.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., and any successors thereto.
"Significant Subsidiary" means (i) for the purposes of determining
what constitutes an "Event of Default" under Sections 6.01(d), (e), and
(f) a Subsidiary of the Borrower (other than a Project Finance Subsidiary)
whose total assets, as determined in accordance with GAAP, represent at
least 10% of the total assets of the Borrower, on a consolidated basis, as
determined in accordance with GAAP and (ii) for all other purposes the
"Significant Subsidiaries" shall be those Subsidiaries whose total assets,
as determined in accordance with GAAP, represent at least 10% of the total
assets of the Borrower on a consolidated basis, as determined in
accordance with GAAP for the Borrower's most recently completed fiscal
year and identified in the certificate most recently delivered pursuant to
Section 5.01(j)(ii).
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Solvent" means, with respect to any Person on a particular date,
that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that,
in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such limited liability company, partnership, joint
venture or other Person or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one
or more of such Person's other Subsidiaries.
"Termination Date" means the earlier of June 30, 2010 and the date
of termination in whole of the Commitments pursuant to Section 2.07 or
6.01.
"Total Aggregate Outstanding Extensions of Credit" means, at any
time, the aggregate amount of Aggregate Outstanding Extensions of Credit
of all Lenders outstanding at such time.
CERC 5-Year Revolving Credit Agreement
16
"Total Commitments" means, at any time, the aggregate amount of the
Commitments of all Lenders then in effect.
"Total Debt" means, as of any date of determination, the sum of (i)
the total Indebtedness for Borrowed Money as shown on the consolidated
balance sheet of Borrower and its Consolidated Subsidiaries, determined
without duplication of any Guarantee of Indebtedness for Borrowed Money of
Borrower by any of its Consolidated Subsidiaries or of any Guarantee of
Indebtedness of any such Consolidated Subsidiary by Borrower or any other
Consolidated Subsidiary of Borrower, and any Mandatory Payment Preferred
Stock, less (ii) such amount of Indebtedness for Borrowed Money
attributable to amounts then outstanding under receivables facilities or
arrangements to the extent that such amount would not have been shown as
Indebtedness for Borrowed Money on a balance sheet prepared in accordance
with GAAP prior to January 1, 1997, less (iii) with respect to any Indexed
Debt Securities that are Fully Hedged and the liabilities in respect of
which as shown on the consolidated balance sheet of Borrower and its
Consolidated Subsidiaries have increased from the amount of liabilities in
respect thereof at the time of their issuance by reason of an increase in
the price of the Indexed Asset relating thereto, the excess of (a) the
aggregate amount of liabilities in respect of such Indexed Debt Securities
at the time of determination over (b) the initial amount of liabilities in
respect of such Indexed Debt Securities at the time of their issuance,
provided that at the time of determination such increase in the price of
the Indexed Asset relating to such Indexed Debt Securities has not been
recorded on such consolidated balance sheet, less (iv) Non-Recourse Debt
of the Borrower and its Subsidiaries.
"True-Up Litigation" means any litigation or other Proceeding in
connection with the determination by the Public Utility Commission of
Texas of the recovery by Parent and its Subsidiaries of stranded costs and
other amounts to be recovered in the true-up process.
"Type" has the meaning as set forth in the definition of "Advance".
"Unused Revolving Credit Commitment" means, with respect to any
Lender at any time, (a) such Lender's Revolving Commitment at such time
minus, without duplication, (b) the sum of (i) the aggregate principal
amount of all Revolving Advances and Letter of Credit Advances made by
such Lender (in its capacity as a Lender) and outstanding at such time
plus (ii) such Lender's Pro Rata Share of (A) the aggregate principal
amount of all Letters of Credit outstanding at such time and (B) the
aggregate principal amount of all Letters of Credit Advances made by the
Issuing Banks pursuant to Section 2.03(c) and outstanding at such time.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower and
its direct or indirect Subsidiaries that is designated by a Responsible
Officer of the Borrower as an Unrestricted Subsidiary, but only if (x) the
aggregate amount of Net Tangible Assets of all Unrestricted Subsidiaries
at the time of designation does not exceed or would not exceed as a result
of such designation the lesser of (a) 10% of the Net Tangible Assets of
Parent and (b) 15% of the Net Tangible Assets of the Borrower, (y) such
designation and the Investment of Borrower in such Subsidiary complies
with the limitations in Section 5.02(j) and (z) such Subsidiary: (i) has
no Indebtedness with recourse to the Borrower and the Restricted
Subsidiaries except that permitted under Section 5.02(j); (ii) is not
party to any agreement, contract, arrangement or understanding with the
Borrower or any Significant Subsidiary of the Borrower unless the terms of
any such agreement, contract, arrangement or understanding and related
transactions are substantially no less favorable to the Borrower or such
Significant Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Borrower; (iii) is a Person with
respect to which neither the Borrower nor any of its Significant
Subsidiaries has any direct or indirect obligation that violates Section
5.02(j:, (a) to subscribe for additional Capital Stock of such Person or
(b) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results; and (iv)
does not, either alone or in the aggregate, operate, directly or
indirectly, all or substantially all of the business of the Borrower and
its Subsidiaries.
Any designation of a Subsidiary of the Borrower as an Unrestricted
Subsidiary shall be evidenced by a certificate of a Responsible Officer of
the Borrower giving effect to such designation and a certificate executed
by a Responsible Officer certifying that such designation complied with
the preceding conditions
CERC 5-Year Revolving Credit Agreement
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and was permitted by Section 5.02(j) delivered to the Administrative
Agent, for delivery to each Lender. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Agreement and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Significant Subsidiary of
the Borrower as of such date and, if such Indebtedness is not permitted to
be incurred as of such date under Section 5.02(j), the Borrower shall be
in default of such covenant. A Responsible Officer of the Borrower may at
any time designate any Unrestricted Subsidiary to be a Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Subsidiary of the Borrower of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall
only be permitted if (1) such Indebtedness is permitted under this
Agreement calculated on a pro forma basis as if such designation had
occurred at the beginning of the four-quarter reference period; and (2) no
Default or Event of Default would be in existence following such
designation.
"Value" means, with respect to a Sale and Leaseback Transaction, as
of any particular time, the amount equal to the greater of (1) the net
proceeds from the sale or transfer of the property leased pursuant to such
Sale and Leaseback Transaction or (2) the fair value, in the opinion of
the board of directors, of such property at the time of entering into such
Sale and Leaseback Transaction, in either case divided first by the number
of full years of the term of the lease and then multiplied by the number
of full years of such term remaining at the time of determination, without
regard to any renewal or extension options contained in the lease.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Wholly-Owned" means, with respect to any Subsidiary of any Person,
a Subsidiary, all the outstanding capital stock (other than directors'
qualifying shares required by law) or other ownership interest of which
are at the time owned by such Person or by one or more Wholly-Owned
Subsidiaries of such Person, or both.
SECTION 1.02 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles in effect from time to time in the United States of
America ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The Revolving Advances and Letters of Credit. (a) The
Revolving Advances. Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make advances to the Borrower (the "Revolving
Advances") from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount not to exceed
at any time outstanding the amount set forth opposite such Lender's name on
Schedule III hereof or, if such Lender has entered into any Assignment and
Acceptance, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(c), as such amount may be reduced
pursuant to Section 2.06 (such Lender's "Revolving Commitment", and, in the
aggregate, the "Revolving Facility"). Each Revolving Borrowing, in the case of a
Revolving Borrowing consisting of Eurodollar Rate Advances, shall be in minimum
principal aggregate amounts of $10,000,000 or an integral multiple of $1,000,000
in excess thereof, or in the case of a Revolving Borrowing consisting of Base
Rate Advances, shall be in minimum principal aggregate amounts of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof, and shall consist of
Revolving Advances of the same Type made on the same day by the Lenders ratably
according to
CERC 5-Year Revolving Credit Agreement
18
their respective Revolving Commitments. Within the limits of each Lender's
Revolving Commitment, the Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.12 and reborrow under this Section 2.01.
(b) The Letters of Credit. Each Issuing Bank severally agrees, on
the terms and conditions hereinafter set forth, to issue letters of credit (the
"Letters of Credit") in U.S. Dollars for the account of the Borrower in support
of obligations (including, without limitation, performance, bid and similar
bonding obligations and credit enhancement) of the Borrower and its Affiliates,
from time to time on any Business Day during the period from the Effective Date
until the Business Day before the Termination Date in an aggregate Available
Amount (i) for all Letters of Credit issued by such Issuing Bank not to exceed
at any time the lesser of (x) the Letter of Credit Facility at such time and (y)
such Issuing Bank's Letter of Credit Commitment at such time and (ii) for each
such Letter of Credit not to exceed the Unused Revolving Credit Commitments of
the Lenders at such time; provided, however, that in no event shall the
aggregate Available Amount for all Letters of Credit exceed $150,000,000. No
Letter of Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the Business Day
before the Termination Date. Within the limits of the Letter of Credit Facility,
and subject to the limits referred to above, the Borrower may request the
issuance of Letters of Credit under this Section 2.01(b), repay any Letter of
Credit Advances resulting from drawings thereunder pursuant to Section 2.03(c)
and request the issuance of additional Letters of Credit under this Section
2.01(b).
(c) Total Revolving Commitments. Notwithstanding anything else
contained herein, the obligations of the Lenders to make Advances and of the
Issuing Banks to issue Letters of Credit is subject to the condition that the
Total Aggregate Outstanding Extensions of Credit shall not exceed the total of
the Revolving Commitments.
SECTION 2.02 Making the Revolving Advances. (a) Each Revolving
Borrowing shall be made on notice, given not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed Revolving
Borrowing in the case of a Revolving Borrowing consisting of Eurodollar Rate
Advances, or on the same Business Day as the date of the proposed Revolving
Borrowing in the case of a Revolving Borrowing consisting of Base Rate Advances,
by the Borrower to the Administrative Agent, which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Revolving
Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed immediately
in writing, or telecopier or telex, complying in all material respects with the
form of Exhibit B hereto, specifying therein the requested (i) date of such
Revolving Borrowing, (ii) Type of Revolving Advances comprising such Revolving
Borrowing, (iii) aggregate amount of such Revolving Borrowing, (iv) in the case
of a Revolving Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Advance and (v) whether any of such
Revolving Borrowing shall be used by the Borrower to repay commercial paper.
Each Lender shall, before 11:00 A.M. (New York City time) on the date of such
Revolving Borrowing, in the case of a Revolving Borrowing consisting of
Eurodollar Rate Advances, or before 3:00 P.M. (New York City time) in the case
of a Revolving Borrowing consisting of Base Rate Advances, make available for
the account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of such Revolving Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower at
the Administrative Agent's address referred to in Section 8.02 no later than
12:00 P.M. (New York City time) on such date, in the case of a Revolving
Borrowing consisting of Eurodollar Rate Advances, or 4:00 P.M. (New York City
time) on such date, in the case of a Revolving Borrowing consisting of Base Rate
Advances.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Revolving Borrowing if the aggregate amount of such Revolving Borrowing is
less than $10,000,000 or if the obligation of the Lenders to make Eurodollar
Rate Advances shall then be suspended pursuant to Section 2.10 or 2.14 and (ii)
the Eurodollar Rate Advances may not be outstanding as part of more than twelve
separate Revolving Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Revolving Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Revolving Borrowing the applicable conditions
set forth in Article III, including, without limitation, any loss, cost or
expense
CERC 5-Year Revolving Credit Agreement
19
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Revolving Advance to be made by such Lender
as part of such Revolving Borrowing when such Revolving Advance, as a result of
such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of any Revolving Borrowing that such Lender will not
make available to the Administrative Agent such Lender's ratable portion of such
Revolving Borrowing, the Administrative Agent may assume that such Lender has
made such portion available to the Administrative Agent on the date of such
Revolving Borrowing in accordance with subsection (a) of this Section 2.02 and
the Administrative Agent may, in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent that
such Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Revolving Advances comprising such Revolving Borrowing and (ii) in the
case of such Lender, the greater of the Federal Funds Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation. If the Borrower and such Lender shall pay such interest
to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of such
interest paid by the Borrower for such period. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Revolving Advance as part of such Revolving Borrowing
for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Advance to be
made by it as part of any Revolving Borrowing shall not relieve any other Lender
of its obligation, if any, hereunder to make its Revolving Advance on the date
of such Revolving Borrowing, but no Lender shall be responsible for the failure
of any other Lender to make the Revolving Advance to be made by such other
Lender on the date of any Revolving Borrowing.
SECTION 2.03 Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
second Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give to the
Administrative Agent for delivery to each Lender prompt notice thereof by
telecopier or electronic communication. Each such notice of issuance of a Letter
of Credit shall be substantially in the form of Exhibit H attached hereto, or as
agreed between the Borrower and each Issuing Bank (a "Notice of Letter of Credit
Issuance"), shall be by telephone (conveying the information contained on
Exhibit H attached hereto), confirmed immediately in writing, or by telecopier
or electronic communication. If the requested form of such Letter of Credit is
acceptable to such Issuing Bank in its reasonable discretion, such Issuing Bank
will, upon fulfillment of the applicable conditions set forth in Article III,
make such Letter of Credit available to the Borrower at its office referred to
in Section 8.02 or as otherwise agreed with the Borrower in connection with such
issuance.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish to the
Administrative Agent (A) on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued by such
Issuing Bank during the previous week and drawings during such week under all
Letters of Credit issued by such Issuing Bank, (B) for delivery to each Lender
on the first Business Day of each month a written report summarizing issuance
and expiration dates of Letters of Credit issued by such Issuing Bank during the
preceding month and drawings during such month under all Letters of Credit
issued by such Issuing Bank and (C) to the Administrative Agent and each Lender
on the first Business Day of each calendar quarter a written report setting
forth the average daily aggregate Available Amount during the preceding calendar
quarter of all Letters of Credit issued by such Issuing Bank.
(c) Participations in Letters of Credit. Upon the issuance of a
Letter of Credit by any Issuing Bank under Section 2.03(a), such Issuing Bank
shall be deemed, without further action by any party hereto, to have sold to
each Lender, and each Lender shall be deemed, without further action by any
party hereto, to have purchased from such Issuing Bank, a participation in such
Letter of Credit in an amount for each Lender equal to such Lender's Pro Rata
Share of the Available Amount of such Letter of Credit, effective upon the
issuance of such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally
CERC 5-Year Revolving Credit Agreement
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agrees to pay such Lender's Pro Rata Share of each L/C Disbursement made by such
Issuing Bank and not reimbursed by the Borrower forthwith on the date due as
provided in Section 2.08(b) by making available for the account of its
Applicable Lending Office to the Administrative Agent for the account of such
Issuing Bank by deposit to the Administrative Agent's Account, in same day
funds, an amount equal to such Lender's Pro Rata Share of such L/C Disbursement.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this Section 2.03(c) in respect of Letters of Credit
is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or an Event of
Default or the termination of the Commitments, and that each such payment shall
be made without any off-set, abatement, withholding or reduction whatsoever. If
and to the extent that any Lender shall not have so made the amount of such L/C
Disbursement available to the Administrative Agent, such Lender agrees to pay to
the Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date such L/C Disbursement is due pursuant to
Section 2.08(b) until the date such amount is paid to the Administrative Agent,
at the Federal Funds Rate for its account or the account of such Issuing Bank,
as applicable. If such Lender shall pay to the Administrative Agent such amount
for the account of such Issuing Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Letter of Credit Advance made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Letter of Credit Advance made by such Issuing Bank shall
be reduced by such amount on such Business Day.
(d) Drawing and Reimbursement. The payment by any Issuing Bank of a
draft drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by such Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft.
(e) Failure to Make Letter of Credit Advances. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04 The CAF Advances. (a) From time to time on any Business
Day during the period from the Effective Date until the Termination Date, the
Borrower may request CAF Advances from the Lenders in amounts such that the
Total Aggregate Outstanding Extensions of Credit at any time shall not exceed
the total of the Revolving Commitments at such time (the "CAF Facility").
(b) Under the terms and conditions set forth below, the Borrower may
borrow, repay pursuant to Section 2.08 and reborrow under this Section 2.04.
SECTION 2.05 Competitive Bid Procedure. (a) In order to request a
CAF Advance, the Borrower shall deliver to the Administrative Agent a written
notice in the form of Exhibit E, attached hereto (a "Competitive Bid Request"),
to be received by the Administrative Agent (i) in the case of each CAF
Eurodollar Rate Advance, not later than 3:00 P.M. (New York City time), four (4)
Business Days before the Borrowing Date specified for such CAF Eurodollar Rate
Advance and (ii) in the case of each Fixed Rate Advance, not later than 11:00
A.M. (New York City time), one (1) Business Day before the Borrowing Date
specified for such Fixed Rate Advance. Each Competitive Bid Request shall in
each case refer to this Agreement and specify (i) the date of Borrowing of such
CAF Advances (which shall be a Business Day), (ii) the aggregate principal
amount thereof, (iii) whether the CAF Advances then being requested are to be
CAF Eurodollar Rate Advances or Fixed Rate Advances, (iv) the maturity date for
each CAF Advance requested to be made and (v) the interest payment dates for
each CAF Advance requested to be made. The Administrative Agent shall promptly
notify each Lender by telex or facsimile transmission of the contents of each
Competitive Bid Request received by it. Each Competitive Bid Request may solicit
bids for CAF Advances in an aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and for not more than three
alternative maturity dates for such CAF Advances. The maturity date for each CAF
Advance shall be not less than 15 days nor more than 180 days after the
applicable date of CAF Borrowing (and in any event shall not extend beyond the
Termination Date).
(b) Each Lender may, in its sole discretion, irrevocably offer to
make one or more CAF Advances to the Borrower responsive to each Competitive Bid
Request from the Borrower. Any such irrevocable offer by a Lender must be
received by the Administrative Agent, in the form of Exhibit F hereto (a
"Competitive Bid"), (i) in the case of each CAF Eurodollar Rate Advance, not
later than 10:30 A.M. (New York City time), three
CERC 5-Year Revolving Credit Agreement
21
(3) Business Days before the Borrowing Date specified for such CAF Eurodollar
Rate Advance and (ii) in the case of each Fixed Rate Advance, not later than
9:30 A.M. (New York City time) on the Borrowing Date specified for such Fixed
Rate Advance. Competitive Bids that do not conform substantially to the format
of Exhibit F may be rejected by the Administrative Agent after conferring with,
and upon the instruction of, the Borrower, and the Administrative Agent shall
notify the Lender of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and (i) specify the maximum principal amount of
CAF Advances for each maturity date (which shall be in an aggregate principal
amount not less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and which may equal, but not exceed, the principal amount requested for
such maturity date by the Borrower) and the aggregate maximum principal amount
of CAF Advances for all maturity dates (which amount, with respect to any
Lender, may exceed such Lender's Commitment) that the Lender is willing to make
to the Borrower, and (ii) specify the CAF Rate at which the Lender is prepared
to make each such CAF Advance. A Competitive Bid submitted by a Lender pursuant
to this Section 2.05(b) shall be irrevocable absent manifest error.
(c) The Administrative Agent shall (i) in the case of each CAF
Eurodollar Rate Advance, not later than 11:00 A.M. (New York City time) three
(3) Business Days before the Borrowing Date specified for such CAF Eurodollar
Rate Advance and (ii) in the case of each Fixed Rate Advance, not later than
10:00 A.M. (New York City time) on the Borrowing Date specified for such Fixed
Rate Advance, notify the Borrower in writing of all the Competitive Bids made
(arranging each such bid in ascending interest rate order), and the CAF Rate or
Rates and the maximum principal amount of each CAF Advance in respect of which a
Competitive Bid was made, and the identity of the Lender that made each bid. The
Administrative Agent shall send a copy of all Competitive Bids to the Borrower
for its records as soon as practicable after completion of the bidding process
set forth in this Section 2.05.
(d) The Borrower may in its sole and absolute discretion, subject
only to the provisions of this Section 2.05(d), accept or reject any Competitive
Bid referred to in Section 2.05(c); provided, however, that the aggregate amount
of the Competitive Bids for CAF Advances so accepted by the Borrower may not
exceed the lesser of (i) the principal amount of the applicable CAF Borrowing
requested by the Borrower in respect thereof and (ii) the amount of the
Commitments less the Total Aggregate Outstanding Extensions of Credit then
outstanding, after giving effect to the application of the proceeds of such
respective CAF Borrowing on the Borrowing Date therefor. The Borrower shall
notify the Administrative Agent in writing whether and to what extent it has
decided to accept or reject any or all of the bids referred to in Section
2.05(c) by delivering to the Administrative Agent a written notice in the form
of Exhibit G hereto (a "Competitive Bid Confirmation"), (i) in the case of each
CAF Eurodollar Rate Advance, not later than 1:00 P.M. (New York City time),
three (3) Business Days before the Borrowing Date specified for such CAF
Eurodollar Rate Advance and (ii) in the case of each Fixed Rate Advance, not
later than 11:00 A.M. (New York City time) on the Borrowing Date specified for
such Fixed Rate Advance, which Competitive Bid Confirmation shall specify the
principal amount of CAF Advances for each relevant maturity date to be made by
each such bidding Lender (which amount for each such maturity date shall be
equal to or less than the maximum amount for such maturity date specified in the
Competitive Bid of such Lender, and for all maturity dates included in such
Competitive Bid in respect thereof shall be equal to or less than the aggregate
maximum amount specified in such Competitive Bid for all such maturity dates);
provided, however, that (A) the failure by the Borrower to so deliver a
Competitive Bid Confirmation by the specified time shall be deemed to be a
rejection of all the bids referred to in Section 2.05(c) for the related
Competitive Bid Request; (B) the Borrower shall not accept a bid made at a
particular CAF Rate for a particular maturity if the Borrower has decided to
reject a bid made at a lower CAF Rate for such maturity; (C) if the Borrower
shall accept bids made at a particular CAF Rate for a particular maturity but
shall be restricted by other conditions hereof from borrowing the maximum
principal amount of CAF Advances in respect of which bids at such CAF Rate have
been made, then the Borrower shall accept a pro rata portion of each bid made at
such CAF Rate based as nearly as possible on the respective maximum principal
amounts of CAF Advances offered to be made by the relevant Lenders pursuant to
such bids; and (D) no bid shall be accepted for a CAF Advance by any Lender
unless such CAF Advance is in an aggregate principal amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof.
Notwithstanding the foregoing, if it is necessary for the Borrower to accept a
pro rata allocation of the bids made in response to a Competitive Bid Request
(whether pursuant to the events specified in clause (C) above or otherwise) and
the available principal amount of CAF Advances to be allocated among the Lenders
is not sufficient to enable CAF Advances to be allocated to each Lender in an
aggregate principal amount not less than $5,000,000 or in integral multiples of
$1,000,000 in excess thereof, then the Borrower shall, subject to clause (D)
above, select the Lenders to be allocated such CAF Advances and shall round
allocations up or down to the next higher or lower multiple of $1,000,000 as it
shall deem appropriate; provided that the allocations among the Lenders to be
allocated such CAF
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Advances shall be made pro rata based as nearly as possible on the respective
maximum principal amounts of CAF Advances offered to be made by such Lenders.
The Competitive Bid Confirmation given by the Borrower pursuant to this Section
2.05(d) shall be irrevocable.
(e) Upon receipt from the Administrative Agent of the Eurodollar
Rate applicable to any CAF Eurodollar Rate Advance to be made by any Lender
pursuant to a Competitive Bid that has been accepted by the Borrower pursuant to
this Section 2.05, the Administrative Agent shall notify such Lender of the
applicable Eurodollar Rate.
(f) If the Administrative Agent shall at any time elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such bid directly
to the Borrower by (i) in the case of a CAF Eurodollar Rate Advance, not later
than 10:15 A.M. (New York City time), and (ii) in the case of a Fixed Rate
Advance, not later than 9:15 A.M. (New York City time), in each case, on the
Business Day on which the other Lenders are required to submit their bids to the
Administrative Agent pursuant to Section 2.05(b) above.
(g) If the Borrower accepts pursuant to Section 2.05(d) one or more
of the offers made by any Lender or Lenders, the Administrative Agent shall
promptly notify each Lender that has made such an offer of the aggregate amount
of such CAF Advances to be made on the Borrowing Date for each maturity date and
of the acceptance or rejection of any offers to make such CAF Advances made by
such Lender. Each Lender that is to make a CAF Advance shall, before 12:00 Noon
(New York City time) on the Borrowing Date specified in the Competitive Bid
Request applicable thereto, make available to the Administrative Agent at its
office set forth in Section 8.02 the amount of CAF Advances to be made by such
Lender, in immediately available funds. The Administrative Agent shall, no later
than 1:00 P.M. (New York City time) on such Borrowing Date, make such funds
available to the Borrower at the Borrower's account as shall be designated by it
to the Administrative Agent from time to time. As soon as practicable after each
Borrowing Date, the Administrative Agent shall notify each Lender of the
aggregate amount of CAF Advances advanced on such Borrowing Date and the
respective maturity dates thereof.
(h) The Borrower shall repay to the Administrative Agent for the
account of each Lender that has made a CAF Advance (or the Eligible Assignee in
respect thereof, as the case may be) on the maturity date of each CAF Advance
(such maturity date being that specified by the Borrower for repayment of such
CAF Advance in the related Competitive Bid Request) the then unpaid principal
amount of such CAF Advance. The Borrower shall not, without the consent of the
relevant Lender, have the right to prepay, at its option, any principal amount
of any CAF Advance.
All notices required by this Section 2.05 shall be made in accordance with
Section 8.02 hereof; provided, however, that each request or notice required to
be made under Section 2.05(a) or 2.04(d) by the Borrower may be made by the
giving of telephone notice to the Administrative Agent that is promptly
confirmed by delivery of a notice in writing (complying in all material respects
with the form of Exhibit B or Exhibit E, as the case may be) to the
Administrative Agent.
SECTION 2.06 Fees. (a) Facility Fee. The Borrower agrees to pay to
the Administrative Agent for the account of each Lender a facility fee on the
aggregate amount of such Lender's Revolving Commitment, irrespective of usage,
from the Effective Date in the case of each Initial Lender and from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a
rate per annum equal to the Applicable Percentage in effect from time to time,
payable in arrears quarterly on the last day of each March, June, September and
December, commencing September 30, 2005, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Administrative Agent
for its own account such fees as may from time to time be agreed between the
Borrower and the Administrative Agent.
(c) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
Administrative Agent for the account of each Lender a commission, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing September 30, 2005, and on the Termination Date, on such Lender's Pro
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Rata Share of the average daily aggregate Available Amount during such quarter
of all Letters of Credit outstanding from time to time at the rate of the
Applicable Margin for Eurodollar Rate Advances under the Revolving Facility.
(ii) The Borrower shall pay to each Issuing Bank, for its own
account, issuance fees, fronting fees and transfer fees in connection with the
issuance or administration of each Letter of Credit as the Borrower and such
Issuing Bank shall agree.
(iii) The Borrower shall pay the Applicable Utilization Fees in
accordance with Section 2.09(a).
(iv) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Lenders all commissions received by the
Administrative Agent for their respective accounts pursuant to this Section
2.06(c).
SECTION 2.07 Termination or Reduction of the Revolving Commitments.
The Borrower shall have the right, upon at least three Business Days' notice to
the Administrative Agent, to terminate in whole or permanently reduce ratably in
part the unused portions of the respective Revolving Commitments of the Lenders,
provided that (i) each partial reduction shall be in a minimum aggregate amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii)
no such termination or reduction shall be permitted if, after giving effect
thereto and to any prepayments made under Section 2.12 by the Borrower on the
effective date thereof, the Total Aggregate Outstanding Extensions of Credit
then outstanding would exceed the Total Commitments then in effect. Any
terminated or permanently reduced portion of the respective Revolving
Commitments of the Lenders may not be reinstated.
Each reduction of Revolving Commitments pursuant to this Section
2.07 shall be applied pro rata to the Revolving Commitments of each Lender. If
at any time, including after giving effect to any reduction of the Revolving
Commitments pursuant to this Section 2.07, the Total Aggregate Outstanding
Extensions of Credit exceed the Total Commitments, the Borrower shall be
obligated, first, to prepay the Revolving Advances and the Letter of Credit
Advances in the amount of such excess and second, to prepay the CAF Advances
(whether or not consented to by the relevant Lender) to the extent that the
aggregate amount of CAF Advances exceeds such Total Commitments after prepayment
of all Revolving Advances and Letter of Credit Advances.
SECTION 2.08 Repayment. (a) Revolving Advances. The Borrower shall
repay to the Administrative Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Revolving Advances then
outstanding.
(b) Letter of Credit Advances. The Borrower shall repay to the
Administrative Agent for the account of each Issuing Bank and each other Lender
that has made a Letter of Credit Advance on or before the date of such payment
if the Borrower receives notice of such payment on or before 10:00 a.m. (New
York City time) on the date such payment is made by such Issuing Bank and if
such notice is received after 10:00 a.m. (New York City time) on the next
Business Day after such payment is to be made by such Issuing Bank, the
outstanding principal amount of each Letter of Credit Advance made by each of
them.
(c) Obligations Absolute.
(i) The Borrower's payment obligations under Section 2.08 shall be
absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment that the
Borrower may have or have had against the relevant Issuing Bank or any
beneficiary of a Letter of Credit other than a defense based upon the
gross negligence or willful misconduct of such Issuing Bank or violation
of the standards of care specified in the Uniform Commercial Code of the
State of New York.
(ii) The Borrower also agrees with each Issuing Bank that no Issuing
Bank shall be responsible for, and the Borrower's payment obligations
under Section 2.08 shall not be affected by, among other things, (i) the
validity or genuineness of documents or of any endorsements thereon, even
though
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such documents shall in fact prove to be invalid, fraudulent or forged,
(ii) any dispute between or among the Borrower and any beneficiary of any
Letter of Credit or any other party to which such Letter of Credit may be
transferred or (iii) any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee.
(iii) No Issuing Bank shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message
or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions caused by such Issuing Bank's gross
negligence or willful misconduct or in violation of the standards of care
specified in the Uniform Commercial Code of the State of New York.
(iv) The Borrower agrees that any action taken or omitted by any
Issuing Bank under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified
in the Uniform Commercial Code of the State of New York, shall be binding
on the Borrower and shall not result in any liability of such Issuing Bank
to the Borrower.
SECTION 2.09 Interest. (a) Scheduled Interest. The Borrower shall
pay interest on the unpaid principal amount of each Revolving Advance and Letter
of Credit Advance owing to each Lender from the date of such Revolving Advance
and Letter of Credit Advance to but excluding the date such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Advance or Letter of Credit Advance is a Base Rate Advance, a rate per
annum equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin in effect from time to time
plus (z) the Applicable Utilization Fee, payable in arrears quarterly on
the last day of each March, June, September and December, during such
periods and on the date such Base Rate Advance shall be Converted or paid
in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance
is a Revolving Advance or Letter of Credit Advance bearing interest at the
Eurodollar Rate, a rate per annum equal at all times during each Interest
Period for such Revolving Advance to the sum of (x) the Eurodollar Rate
for such Interest Period for such Revolving Advance or Letter of Credit
Advance plus (y) the Applicable Margin in effect from time to time plus
(z) the Applicable Utilization Fee, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on the
date such Eurodollar Rate Advance shall be Converted or paid in full.
(iii) CAF Eurodollar Rate Advances. In the case of each CAF
Eurodollar Rate Advance, a rate per annum equal at all times to the sum of
the Eurodollar Rate applicable to such CAF Advance plus or minus, as the
case may be, the CAF Margin specified by a Lender with respect to such CAF
Advance in its Competitive Bid submitted pursuant to Section 2.05(b),
payable on the date or dates specified in the relevant Competitive Bid
Request.
(b) Default Interest. Upon the occurrence and during the continuance
of any default in the payment of any amount owed hereunder, the Administrative
Agent may, and upon the request of the Required Lenders shall, require the
Borrower to pay interest ("Default Interest") on (i) the unpaid principal amount
of each Revolving Advance or Letter of Credit Advance past due and owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2.00% per annum above the rate
per annum required to be paid on such Revolving Advance or Letter of Credit
Advance pursuant to clause (a)(i), (a)(ii) or (a)(iii) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other amount
payable hereunder that is not paid when due, from the date such amount shall be
due until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2.00% per annum above the rate per annum required to be paid on Base
Rate Advances pursuant to clause (a)(i) above; provided, however, that following
acceleration of the Advances pursuant to Section 6.01, Default Interest shall
accrue and be payable hereunder whether or not previously required by the
Administrative Agent.
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SECTION 2.10 Interest Rate Determination. (a) The Administrative
Agent shall give prompt notice to the Borrower and the Lenders of the applicable
interest rate determined by the Administrative Agent for purposes of Section
2.09(a)(i), (ii) or (iii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Revolving Advances or Letter of Credit Advances will
not adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances for such Interest Period,
the Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon (i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance,
and (ii) the obligation of the Lenders to make, or to Convert Revolving Advances
or Letter of Credit Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
such Revolving Advances or Letter of Credit Advances will automatically, on the
last day of the then existing Interest Period therefor, Convert into Base Rate
Advances. If no Advances are outstanding at the time of delivery of a Notice of
Borrowing with respect to Eurodollar Rate Advances and the Borrower shall fail
to select an Interest Period for such Advances, such Advances shall be made as
Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Revolving Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Revolving
Advances shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Revolving Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.11 Optional Conversion of Revolving Advances. The Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.10 and
2.14, Convert all Revolving Advances of one Type comprising the same Borrowing
into Revolving Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Revolving Advances shall result in more separate Borrowings
than permitted under Section 2.02(b). Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Revolving Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Revolving Advance. Each notice of Conversion shall
be irrevocable and binding on the Borrower.
SECTION 2.12 Optional Prepayments of Revolving Advances. The
Borrower may, upon at least two Business Days' notice to the Administrative
Agent, in the case of a Revolving Borrowing consisting of Eurodollar Rate
Advances, or upon same day notice to the Administrative Agent, in the case of a
Revolving Borrowing consisting of Base Rate Advances, stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the outstanding principal amount of the Revolving
Advances comprising part of the same Revolving Borrowing in whole or ratably in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that (x) each partial prepayment
shall be in a minimum aggregate principal amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof and (y) in the event of any such
prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
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SECTION 2.13 Increased Costs. (a) If, after the date hereof, due to
either (i) the introduction of or any change in or in the interpretation of any
law or regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law), there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining Eurodollar Rate Advances or CAF Eurodollar
Rate Advances (excluding for purposes of this Section 2.13 any such increased
costs resulting from (A) Taxes or Other Taxes (as to which Section 2.16 shall
govern), (B) net income taxes and franchise taxes imposed on such Lender as a
result of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax and such Lender other than a
connection arising solely from such Lender having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or the Advances and (C) changes in the rate of tax on the overall net
income of such Lender), then the Borrower shall from time to time, upon demand
by such Lender (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such actual increased cost; provided,
however, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Lender, be
otherwise disadvantageous to such Lender. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Administrative Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines in good faith that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender, from time
to time as specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be
allocable to the existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to the Borrower and the Administrative
Agent by such Lender shall be conclusive and binding for all purposes, absent
manifest error. The Borrower shall pay to the Administrative Agent for the
account of such Lender or to the Administrative Agent for its own account, as
the case may be, the amount shown as due on any such certificate within 10
Business Days after receipt thereof.
(c) The agreements contained in this Section 2.13 shall survive the
termination of this Agreement and the payment of all amounts payable hereunder;
provided, however, that in no event shall the Borrower be obligated to reimburse
or compensate any Lender for amounts contemplated by this Section 2.13 for any
period prior to the date that is 90 days prior to the date upon which such
Lender requests in writing such reimbursement or compensation from the Borrower.
SECTION 2.14 Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Administrative Agent that it has
determined in good faith that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful, for any Lender or
its Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or CAF Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances or CAF Eurodollar Rate Advances hereunder, (a) each
Eurodollar Rate Advance or CAF Eurodollar Rate Advance, as the case may be, will
automatically, upon such demand, Convert into a Base Rate Advance or an Advance
that bears interest at the rate set forth in Section 2.09(a)(i), as the case may
be, and (b) the obligation of the Lenders to make Eurodollar Rate Advances or
CAF Eurodollar Rate Advances or to Convert Revolving Advances into, Eurodollar
Rate Advances shall be suspended until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist; provided, however, that before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Eurodollar Lending Office
if the making of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or CAF Eurodollar Rate Advances, as the case may be, or to continue to
fund or maintain Eurodollar Rate Advances or CAF Eurodollar Rate Advances, as
the case may be, and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
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SECTION 2.15 Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes (if any), irrespective of any right
of counterclaim or set-off, not later than 12:00 Noon (New York City time) on
the day when due in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or facility fees ratably (other than amounts payable
pursuant to Sections 2.05, 2.13, 2.16 or 8.04(c)) to the Lenders for the account
of their respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the Register pursuant to
Section 8.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder and
under the Notes or CAF Notes (if any) in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note or
CAF Note, as the case may be, held by such Lender (if any), to charge from time
to time against any or all of the Borrower's accounts with such Lender any
amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate,
the CAF Rate or the Federal Funds Rate or in respect of Fixed Rate Advances and
of facility fees and utilization fees shall be made by the Administrative Agent
on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or fees are payable. Each determination by the
Administrative Agent of an interest rate hereunder shall be prima facie evidence
of the correctness thereof.
(d) Whenever any payment hereunder or under the Notes or CAF Notes
(if any) shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment of interest or
facility fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances or
CAF Eurodollar Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.16 Taxes. (a) Any and all payments by the Borrower to or
for the account of any Lender or the Administrative Agent hereunder or under the
Notes or CAF Notes (if any) or any other documents to be delivered hereunder
shall be made, in accordance with Section 2.15 or the applicable provisions of
such other documents, free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges, or withholdings
and all liabilities with respect thereto, excluding, in the case of each Lender
and the Administrative Agent, net income taxes and franchise taxes imposed on it
as a result of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax and the Administrative Agent or
such Lender other than a connection arising solely from the Administrative Agent
or such Lender having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any Note or CAF Note,
if any (all such non excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes
or CAF Notes (if any) being hereinafter referred to as "Taxes"). If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable
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hereunder or under any Note or CAF Note or any other documents to be delivered
hereunder to any Lender or the Administrative Agent, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.16) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law; provided, however, that the Borrower shall
not be required to increase any such sums payable to any Lender with respect to
any Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of Section 2.16(e) or (ii) that are United States withholding taxes
imposed on sums payable to such Lender at the time such Lender becomes a party
to this Agreement, except to the extent that any such Lender's assignor (if any)
was entitled, at the time of assignment, to receive additional amounts from the
Borrower with respect to such Taxes pursuant to this Section 2.16. Whenever any
Taxes or Other Taxes (as defined in Section 2.16(b)) are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for the account of the relevant Lender or Administrative
Agent, as the case may be, either (A) official tax receipts or notarized copies
of such receipts to such Lender within thirty (30) days after payment of any
applicable tax or (B) a certificate executed by a Responsible Officer of the
Borrower confirming that such Taxes or Other Taxes have been paid, together with
evidence of such payment.
(b) In addition, the Borrower shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or CAF
Notes (if any) or any other documents to be delivered hereunder or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes or CAF Notes (if any) or any other
documents to be delivered hereunder (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Administrative
Agent for and hold it harmless against the full amount of Taxes or Other Taxes
(including, without limitation, taxes of any kind imposed or asserted by any
jurisdiction on amounts payable under this Section 2.16) imposed on or paid by
such Lender or the Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, including, without limitation or duplication, any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any failure by the Borrower to pay any Taxes or Other
Taxes when due to the appropriate taxing authority or to remit to any Lender the
receipts or other evidence of payment of Taxes or Other Taxes.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing such
payment to the extent such a receipt is issued therefor, or other written proof
of payment thereof that is reasonably satisfactory to the Administrative Agent.
In the case of any payment hereunder or under the Notes or CAF Notes (if any) or
any other documents to be delivered hereunder by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Administrative Agent, at
such address, an opinion of counsel acceptable to the Administrative Agent
stating that such payment is exempt from Taxes. For purposes of this subsection
(d) and subsection (e), the terms "United States" and "United States person"
shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender registered in the Register that is not a United
States person as defined in Section 7701(a)(30) of the Internal Revenue Code
agrees that it will deliver to the Borrower and the Administrative Agent on the
Effective Date, or on the date which it becomes a party to this Agreement, two
duly completed copies of United States Internal Revenue Service Form W-8BEN,
W-8ECI, W-8EXP or W-8IMY (or other appropriate corresponding form) or any
successor applicable form, as the case may be. Each such Lender also agrees to
deliver to the Borrower and the Administrative Agent two further copies of the
said Form W-8BEN, W-8ECI, W-8EXP or W-8IMY or successor applicable forms or
other manner of certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Borrower, and such extensions or renewals thereof as may reasonably be requested
by the Borrower or the Administrative Agent, unless in any such case an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would
CERC 5-Year Revolving Credit Agreement
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otherwise be required that renders all such forms inapplicable or that would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender so advises the Borrower and the Administrative
Agent. Each such Lender shall certify in the case of a Form W-8BEN, W-8ECI,
W-8EXP or W-8IMY that is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes. In
the event that any such Lender fails to deliver any forms required under this
Section 2.16(e), the Borrower's obligation to pay additional amounts shall be
reduced to the amount that it would have been obligated to pay had such forms
been provided.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form, certificate or other document
described in Section 2.16(e) (other than if such failure is due to a change in
law, or in the interpretation or application thereof, occurring subsequent to
the date on which a form, certificate or other document originally was required
to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.16(a) or (c) with respect to Taxes imposed by
the United States by reason of such failure; provided, however, that should a
Lender become subject to Taxes because of its failure to deliver a form,
certificate or other document required hereunder, the Borrower shall take such
steps as the Lender shall reasonably request to assist the Lender to recover
such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to
this Section 2.16 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
(h) If any Taxes or Other Taxes are not correctly or legally
asserted and the Administrative Agent or any Lender determines, in its sole
discretion, that it has received a refund of those Taxes or Other Taxes as to
which it has been indemnified by the Borrower, the Administrative Agent or such
Lender shall within 20 days after such refund pay to the Borrower the amount of
such refund to the extent that the Borrower indemnified the Administrative Agent
or such Lender for such Taxes or Other Taxes pursuant to this Section 2.16, net
of any out-of-pocket costs of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay
such refund to such Governmental Authority. This paragraph shall not be
construed to require the Administrative Agent or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
SECTION 2.17 Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set off, or otherwise) on account of the Revolving Advances owing to it
(other than pursuant to Sections 2.13, 2.16 or 8.04(c)) in excess of its ratable
share of payments on account of the Revolving Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Advances owing to them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of
them; provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.17 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 Lender were the direct creditor of the
Borrower in the amount of such participation.
CERC 5-Year Revolving Credit Agreement
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SECTION 2.18 Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
general corporate purposes, including capital expenditures, and to repay
commercial paper.
SECTION 2.19 Increase in the Aggregate Revolving Commitments. (a)
The Borrower may, at any time but in any event not more than once in any
calendar year prior to the Termination Date, whether or not the Revolving
Commitments have been reduced pursuant to Section 2.07, by notice to the
Administrative Agent, request that the aggregate amount of the Revolving
Commitments be increased by an amount of $10,000,000 or an integral multiple of
$5,000,000 in excess thereof (a "Commitment Increase") to be effective as of a
date that is at least 90 days prior to the scheduled Termination Date then in
effect (the "Increase Date") as specified in the related notice to the
Administrative Agent; provided, however that (i) in no event shall the aggregate
amount of the Commitments at any time exceed $525,000,000 and (ii) on the date
of any request by the Borrower for a Commitment Increase and on the related
Increase Date, the applicable conditions set forth in Section 3.02 shall be
satisfied.
(b) The Administrative Agent shall promptly notify the Lenders of a
request by the Borrower for a Commitment Increase, which notice shall include
(i) the proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective
Revolving Commitments (the "Commitment Date"). Each Lender that is willing, in
its sole discretion, to participate in such requested Commitment Increase (each
an "Increasing Lender") shall give written notice to the Administrative Agent
and the Borrower on or prior to the Commitment Date of the amount by which it is
willing to increase its Revolving Commitment. If the Lenders notify the
Administrative Agent and the Borrower that they are willing to increase the
amount of their respective Revolving Commitments by an aggregate amount that
exceeds the amount of the requested Commitment Increase, the requested
Commitment Increase shall be allocated among the Lenders willing to participate
therein in such amounts as are agreed between the Borrower and the
Administrative Agent.
(c) Promptly following each Commitment Date, the Administrative
Agent shall notify the Borrower as to the amount, if any, by which the Lenders
are willing to participate in the requested Commitment Increase. If the
aggregate amount by which the Lenders are willing to participate in any
requested Commitment Increase on any such Commitment Date is less than the
requested Commitment Increase, then the Borrower may request Lenders to increase
their participation and extend offers to one or more Eligible Assignees to
participate in any portion of the requested Commitment Increase that has not
been committed to by the Lenders as of the applicable Commitment Date; provided,
however, that the Revolving Commitment of each such Eligible Assignee shall be
in an amount not less than $10,000,000.
(d) On each Increase Date, each Eligible Assignee that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.19(b) (each such Eligible Assignee, an "Assuming Lender") shall become
a Lender party to this Agreement as of such Increase Date and the Revolving
Commitment of each Increasing Lender for such requested Commitment Increase
shall be so increased by such amount (or by the amount allocated to such Lender
pursuant to the last sentence of Section 2.19(b)) as of such Increase Date;
provided, however, that the Administrative Agent shall have received on or
before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors of
the Borrower or the Executive Committee of such Board approving the
Commitment Increase and the corresponding modifications to this Agreement
and (B) opinions of counsel for the Borrower (which may be in-house
counsel), in form and substance reasonably acceptable to the
Administrative Agent, covering the matters covered by the opinions of
counsel delivered pursuant to Section 3.01(d)(iv) and Section 3.01(d)(v)
hereof;
(ii) an assumption agreement from each Assuming Lender, if any,
substantially in the form of Exhibit I hereto (each an "Assumption
Agreement"), duly executed by such Eligible Assignee, the Administrative
Agent and the Borrower; and
(iii) confirmation from each Increasing Lender of the increase in
the amount of its Revolving Commitment in a writing satisfactory to the
Borrower and the Administrative Agent.
CERC 5-Year Revolving Credit Agreement
31
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.19(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier, of
the occurrence of the Commitment Increase to be effected on such Increase Date
and shall record in the Register the relevant information with respect to each
Increasing Lender and each Assuming Lender on such date.
(e) The Administrative Agent shall promptly notify the Borrower and
the Lenders of any increase in the amount of the aggregate Revolving Commitments
pursuant to this Section and of the respective adjusted Revolving Commitment and
Commitment Percentage of each Lender after giving effect thereto. The Borrower
acknowledges that, in order to maintain the Revolving Advances in accordance
with the Commitment Percentage of each Lender, a non-pro-rata increase in the
aggregate Revolving Commitment may require prepayment or funding of all or
portions of certain Revolving Advances on the date of such increase (and any
such prepayment or funding shall be subject to the other provisions of this
Agreement). Effective upon such increase, the amount of the participations held
by each Lender in each Letter of Credit then outstanding shall be adjusted such
that, after giving effect to such adjustments, each Lender shall hold
participations in each such Letter of Credit in accordance with the Commitment
Percentage of such Lender after giving effect to such increase.
SECTION 2.20 Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time hereunder. The Borrower agrees
that upon notice by any Lender to the Borrower (with a copy of such notice to
the Administrative Agent) to the effect that a promissory note or other evidence
of indebtedness is required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender, the Borrower shall promptly execute and
deliver to such Lender, with a copy to the Administrative Agent, a Note or a CAF
Note, as the case may be, in substantially the form of Exhibit A or Exhibit D
hereto, respectively and as the case may be, payable to the order of such Lender
in a principal amount equal to the amount of the Revolving Advance or the CAF
Advance, as the case may be, of such Lender. All references to Notes or CAF
Notes in the Loan Documents shall mean Notes or CAF Notes, respectively and if
any, to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent pursuant to
Section 8.07(c) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assignment and Acceptance delivered to and accepted by it,
(iii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder, and (iv) the amount of
any sum received by the Administrative Agent from the Borrower hereunder and
each Lender's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender and, in the case
of such account or accounts, such Lender, under this Agreement, absent manifest
error; provided, however, that the failure of the Administrative Agent or such
Lender Party to make an entry, or any finding that an entry is incorrect, in the
Register or such account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01 Conditions Precedent to Effectiveness of Sections 2.01
and 2.04. Sections 2.01 and 2.04 of this Agreement shall become effective on and
as of the first date (the "Effective Date") on which the following conditions
precedent have been satisfied:
CERC 5-Year Revolving Credit Agreement
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(a) The Lead Arrangers shall be satisfied that any and all amounts
outstanding (including without limitation all principal, interest, fees
and other amounts owed) under the $250,000,000 3-Year Revolving Credit
Agreement, dated as of March 23, 2004 (as amended, supplemented or
otherwise modified from time to time, the "Existing 3-Year Revolving
Credit Facility"), among the Borrower, the lenders party thereto, and
Citigroup Global Markets Inc., as sole lead arranger and sole bookrunning
manager, Citicorp USA, Inc., as administrative agent and Bank of America,
N.A., Deutsche Bank AG New York Branch, JPMorgan Chase Bank, Wachovia
Bank, National Association, Banc One Capital Markets, Inc., Credit Suisse
First Boston, Cayman Islands Branch, Keybank National Association and The
Royal Bank of Scotland PLC, as co-syndication agents, shall be paid by the
Borrower in full, and such Existing 3-Year Revolving Credit Facility shall
be cancelled or otherwise terminated prior to or immediately after the
initial Advances are made hereunder.
(b) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them to believe
that the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect.
(c) The Borrower shall have paid all accrued fees and expenses of
the Lenders and the Administrative Agent (including the accrued fees and
expenses of counsel to the Administrative Agent) and taxes, if any, due
and payable hereunder and under the Fee Letter.
(d) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such day, in form and substance
satisfactory to the Administrative Agent and (except for the Notes) in
sufficient copies for each Lender:
(i) The Notes, duly executed by the Borrower and made payable
to the order of each Lender who has requested a Note, pursuant to
Section 2.20(a).
(ii) Certified copies of the (A) resolutions of the board of
directors of the Borrower approving this Agreement and the Notes (if
any), and of all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this
Agreement and the Notes (if any) and (B) certificate of
incorporation and bylaws of the Borrower (such certificate, duly
executed by an authorized officer of the Borrower, shall state that
such resolutions, certificate of incorporation and bylaws are in
full force and effect as of the Effective Date).
(iii) A certificate of the Secretary or an Assistant Secretary
of the Borrower certifying the names and true signatures of the
officers of the Borrower authorized to sign this Agreement and the
Notes (if any) and the other documents to be delivered hereunder.
(iv) A favorable opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the
Borrower, in form and substance satisfactory to the Administrative
Agent.
(v) A favorable opinion of the in-house counsel of the
Borrower, in form and substance satisfactory to the Administrative
Agent.
(vi) A favorable opinion of Shearman & Sterling LLP, counsel
for the Administrative Agent, in form and substance satisfactory to
the Administrative Agent.
(e) The Administrative Agent shall have received from the Borrower
such other approvals, opinions or documents as any Lender through the
Administrative Agent may reasonably request.
SECTION 3.02 Conditions Precedent to Each Revolving Borrowing,
Issuance and Commitment Increase. The obligation of each Lender to make a
Revolving Advance on the occasion of each Revolving Borrowing and the Obligation
of each Issuing Bank to issue or amend a Letter of Credit (including the initial
issuance) or renewal of a Letter of Credit, other than in the case of an
automatic renewal, and each Commitment Increase shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of
CERC 5-Year Revolving Credit Agreement
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such Revolving Borrowing, issuance or the Commitment Increase (a) the following
statements shall be true (and each of the giving of the Applicable Notice of
Borrowing, Notice of Letter of Credit Issuance or request for Commitment
Increase and the acceptance by the Borrower of the proceeds of such Revolving
Borrowing or of such Letter of Credit or the renewal of such Letter of Credit,
other than in the case of an automatic renewal, shall constitute a
representation and warranty by the Borrower that on the date of such Revolving
Borrowing, Issuance, renewal or Commitment Increase such statements are true):
(i) the representations and warranties contained in Section 4.01
(except the last sentence of subsection (e) thereof and in subsection
(f)(i) thereof and other representations that by their terms are limited
to a specific date) are correct in all material respects on and as of such
date, before and after giving effect to such Revolving Borrowing, issuance
or renewal or Commitment Increase and to the application of the proceeds
therefrom, as through made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from
such Revolving Borrowing, issuance or renewal of any Letter of Credit or
such Commitment Increase or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03 Conditions Precedent to Each CAF Borrowing. The
obligation of each Lender that is to make a CAF Advance on the occasion of a CAF
Borrowing to make such CAF Advance as part of such CAF Borrowing is subject to
the conditions precedent that (i) the Administrative Agent shall have received
the written confirmatory Competitive Bid Request pursuant to Section 2.05(a)
with respect thereto, (ii) the Administrative Agent shall have received a
Competitive Bid Confirmation from the Borrower pursuant to Section 2.05(d),
(iii) on or before the date of such CAF Borrowing, but prior to such CAF
Advance, the Administrative Agent shall have received a CAF Note in accordance
with Section 2.20(a) payable to the order of such Lender for each of the one or
more CAF Advances to be made by such Lender as part of such CAF Borrowing, in a
principal amount equal to the principal amount of the CAF Advance to be
evidenced thereby and otherwise on such terms as were agreed to for such CAF
Advance in accordance with Section 2.05, and (iv) on the date of such CAF
Borrowing the following statements shall be true (and each of the giving of the
applicable Competitive Bid Request and the acceptance by the Borrower of the
proceeds of such CAF Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such CAF Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01
(except the last sentence of subsection (e) thereof and in subsection
(f)(i) thereof and other representations and warranties that by their
terms are limited to a specific date) are correct in all material respects
on and as of the date of such CAF Borrowing, before and after giving
effect to such CAF Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result from
such CAF Borrowing or from the application of the proceeds therefrom, that
constitutes a Default, and
(c) no event has occurred and no circumstance exists as a result of
which the information concerning the Borrower that has been provided to
the Administrative Agent and each Lender by the Borrower in connection
herewith would include an untrue statement of a material fact or omit to
state any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading.
SECTION 3.04 Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Lender prior to the date
that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Administrative Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.
CERC 5-Year Revolving Credit Agreement
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Borrower of this
Agreement and the Notes or CAF Notes (if any), and the consummation of the
transactions contemplated hereby, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, and
do not (i) contravene the Borrower's certificate of incorporation or by
laws or any law or any contractual restriction binding on or affecting the
Borrower, or (ii) constitute a default under any existing indenture, loan
agreement or other material agreement to which the Borrower or any
Subsidiary of the Borrower is a party.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and
performance by the Borrower of this Agreement or the Notes or CAF Notes
(if any), and no law or regulation is applicable that restrains, prevents
or imposes materially adverse conditions upon the transactions
contemplated hereby.
(d) This Agreement has been, and each of the Notes or CAF Notes (if
any) when delivered hereunder will have been, duly executed and delivered
by the Borrower. This Agreement is, and each of the Notes or CAF Notes (if
any) when delivered hereunder will be, the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance
with their respective terms.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 2004, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Deloitte &
Touche LLP, independent public accountants, copies of which have been
furnished to each Lender, fairly present, in all material respects, the
Consolidated financial condition of the Borrower and its Subsidiaries as
at such date and the Consolidated results of the operations of the
Borrower and its Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently
applied. Since December 31, 2004, there has been no Material Adverse
Change.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower or any of its Subsidiaries before any
court, governmental agency or arbitrator that (i) could be reasonably
likely to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement or any other Loan
Document or the consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance will be used to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying any
Margin Stock.
(h) Neither the Borrower nor any Subsidiary of the Borrower is an
"investment company" as defined in, or otherwise subject to regulation
under, the Investment Company Act of 1940, as amended. None of the
execution and delivery of the Loan Documents by the Borrower or the
performance of its obligations thereunder violate any regulation under the
Public Utility Holding Company Act of 1935, as amended.
(i) The Borrower is and each of its Subsidiaries are in substantial
compliance with all applicable laws, ordinances, rules, regulations, and
requirements of governmental authorities (including,
CERC 5-Year Revolving Credit Agreement
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without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except for any non-compliance that could not
reasonably be expected to have a Material Adverse Effect.
(j) All written information heretofore furnished by the Borrower to
the Administrative Agent or any Lender for purposes of or in connection
with this Agreement or any transaction contemplated hereby or thereby is,
and all such information hereafter furnished by the Borrower to the
Administrative Agent or any Lender will be, true and accurate in all
material respects on the date as of which such information is stated in
the light of the circumstances under which such information was provided
(as modified or supplemented by other information so furnished, when taken
together as a whole as of the date so stated); provided, that, with
respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based on assumptions
believed to be reasonable at the time, it being recognized by the Lenders
that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such
projections may differ from the projected results. The Borrower has
disclosed to the Administrative Agent any and all facts specific to the
Borrower and its Subsidiaries and known as of the date hereof to a
Responsible Officer of the Borrower that could reasonably be expected to
result in a Material Adverse Effect or which could reasonably be expected
to materially and adversely affect or may affect (to the extent the
Borrower can now reasonably foresee), the business, operations or
financial condition of the Borrower and its Subsidiaries, taken as a
whole.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01 Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder or any Letter of
Credit is outstanding under this Agreement, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and Environmental Laws, except to the
extent the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Significant Subsidiaries to pay and discharge, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property or unless
the failure to pay could not reasonably be expected to result in a
Material Adverse Effect; provided, however, that neither the Borrower nor
any of its Significant Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are
being maintained or unless the failure to pay could not reasonably be
expected to result in a Material Adverse Effect.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties; provided, however, that the Borrower and its
Subsidiaries may self-insure to the same extent as other companies engaged
in similar businesses and owning similar properties and to the extent
consistent with prudent business practice.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises, except (other
than in the case of the Borrower) to the extent such failure could not
reasonably be expected to have a Material Adverse Effect; provided,
however, that the Borrower and its Subsidiaries may consummate any merger
or consolidation permitted under Section 5.02(b) and provided further that
neither the Borrower nor any of its Subsidiaries shall be required to
preserve any right or franchise if the board of
CERC 5-Year Revolving Credit Agreement
36
directors of the Borrower or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Borrower or such Subsidiary, as the case may be, and that the loss
thereof is not disadvantageous in any material respect to the Borrower,
such Subsidiary or the Lenders.
(e) Visitation Rights. The Borrower will, and will cause each of its
Subsidiaries to, at any reasonable time and from time to time, permit up
to six representatives of the Lenders designated by the Required Lenders,
or representatives of the Administrative Agent, on not less than five (5)
Business Days' notice, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, the
Borrower and each Significant Subsidiary and to discuss the general
business affairs of the Borrower and each of its Subsidiaries with their
respective officers and independent certified public accountants; subject,
however, in all cases to the imposition of such conditions as the Borrower
and each of its Significant Subsidiaries shall deem necessary based on
reasonable considerations of safety and security; provided, however, that
neither the Borrower nor any of its Subsidiaries shall be required to
disclose to the Administrative Agent, any Lender or any agents or
representatives thereof any information which is the subject of
attorney-client privilege or attorney work-product privilege properly
asserted by the applicable Person to prevent the loss of such privilege in
connection with such information or which is prevented from disclosure
pursuant to a confidentiality agreement with third parties.
Notwithstanding the foregoing, none of the conditions precedent to the
exercise of the right of access described in the preceding sentence that
relate to notice requirements or limitations on the Persons permitted to
exercise such right shall apply at any time when a Default or an Event of
Default shall have occurred.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with GAAP.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its material
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(h) Maintenance of Existing Business. Maintain and preserve its
fundamental business of being a local gas distribution company and an
owner and operator of natural gas pipeline systems.
(i) Use of Proceeds. Use the proceeds of each Advance only for
general corporate purposes, including capital expenditures, of the
Borrower and its Subsidiaries, and the repayment of commercial paper.
(j) Reporting Requirements. Furnish to the Lenders:
(i) as soon as practicable and in any event within 60 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, unaudited Consolidated balance sheets of the
Borrower and its Subsidiaries, prepared in conformity with GAAP
consistently applied, as of the end of such quarter and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries, prepared in conformity with GAAP consistently applied,
for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, duly certified (subject to year
end audit adjustments and the inclusion of abbreviated footnotes) by
a Responsible Officer of the Borrower as having been prepared in
accordance with generally accepted accounting principles and
certificates of a Responsible Officer of the Borrower as to
compliance with the terms of this Agreement and setting forth in
reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03 (which requirement may be satisfied by
delivering the Borrower's quarterly report on Form 10-Q with respect
to such fiscal quarter as filed with the Securities and Exchange
Commission);
(ii) as soon as practicable and in any event within 120 days
after the end of each fiscal year of the Borrower commencing 2004, a
copy of the annual audit report for such year for the Borrower and
its Subsidiaries, containing Consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash
CERC 5-Year Revolving Credit Agreement
37
flows of the Borrower and its Subsidiaries for such fiscal year
accompanied by an opinion of an independent public accountants, in
each case prepared in conformity with GAAP consistently applied
(which requirement may be satisfied by delivering the Borrower's
annual report on Form 10-K with respect to such fiscal year as filed
with the Securities and Exchange Commission) together with a
certificate of a Responsible Officer of the Borrower identifying
Significant Subsidiaries determined with respect to such financial
statements;
(iii) as soon as practicable and in any event within seven
Business Days after a Responsible Officer of the Borrower becomes
aware of the occurrence of each Default continuing on the date of
such statement, a statement of a Responsible Officer of the Borrower
setting forth details of such Default and the action that the
Borrower has taken and proposes to take with respect thereto;
(iv) within ten (10) days of the filing thereof, copies of all
periodic reports (other than (x) reports on Form 11-K or any
successor form, (y) current reports on Form 8-K that contain no
information other than exhibits filed therewith and (z) reports on
Form 10-Q or 10-K or any successor forms) under the Exchange Act (in
each case other than exhibits thereto and documents incorporated by
reference therein)) filed by the Borrower with the Securities and
Exchange Commission;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(f); and
(vi) such other information respecting the Borrower or any of
its Subsidiaries as any Lender through the Administrative Agent may
from time to time reasonably request.
Information required to be delivered pursuant to the foregoing Sections
5.01(j)(i), (ii) and (iv) shall be deemed to have been delivered on the
date on which the Borrower provides notice (including notice by e-mail) to
the Administrative Agent (which notice the Administrative Agent will
convey promptly to the Lenders) that such information has been posted on
the Securities and Exchange Commission website on the internet at
▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇ or at another website identified in such notice
and accessible by the Lenders without charge; provided that such notice
may be included in a certificate delivered pursuant to Section 5.01(j)(i).
SECTION 5.02 Negative Covenants. So long as any Advance shall remain
unpaid or any Lender shall have any Commitment hereunder or any Letter of Credit
is outstanding under this Agreement, the Borrower will not:
(a) Restrictions on Liens. Pledge, mortgage or hypothecate, or
permit to exist, and will not permit any Subsidiary (other than a Project
Finance Subsidiary or an Unrestricted Subsidiary) to pledge, mortgage or
hypothecate, or permit to exist, except in favor of Borrower or any
Subsidiary (other than a Project Finance Subsidiary or an Unrestricted
Subsidiary), any Lien upon, any Principal Property or Equity Interest in
any Significant Subsidiary (other than a Project Finance Subsidiary or an
Unrestricted Subsidiary) owning any Principal Property, at any time owned
by Borrower or a Subsidiary (other than a Project Finance Subsidiary or an
Unrestricted Subsidiary), to secure any Indebtedness; provided, however,
that this restriction shall not apply to or prevent the creation or
existence of:
(i) Permitted Liens;
(ii) any Lien in existence on the date hereof securing
Indebtedness of the Borrower or any of its Subsidiaries; provided
that no such Lien described in this clause (ii) encumbers any
additional Property after the date hereof and that the principal
amount of Indebtedness secured thereby is not increased;
CERC 5-Year Revolving Credit Agreement
38
(iii) Liens required to be granted pursuant to "equal and
ratable" clauses existing on the date hereof under Contractual
Obligations of the Borrower and its Restricted Subsidiaries (and
extensions and renewals thereof);
(iv) Liens arising in connection with the securitization of
accounts receivable of the Borrower and its Subsidiaries, in the
case of the Borrower and its Subsidiaries, to the extent affecting
only the accounts receivable of the Borrower and its Subsidiaries
and assets customarily related thereto;
(v) Liens on fixed or capital assets and related inventory and
intangible assets acquired, constructed, improved, altered or
repaired by the Borrower or any Restricted Subsidiary; provided that
(A) such Liens secure Indebtedness otherwise permitted by this
Agreement, (B) such Liens and the Indebtedness secured thereby are
incurred prior to or within 365 days after such acquisition or the
later of the completion of such construction, improvement,
alteration or repair or the date of commercial operation of the
assets constructed, improved, altered or repaired, (C) the
Indebtedness secured thereby does not exceed the cost of acquiring,
constructing, improving, altering or repairing such fixed or capital
assets, as the case may be, and (D) such Lien shall not apply to any
other property or assets of the Borrower or of its Restricted
Subsidiaries (other than repairs, renewals, replacements, additions,
accessions, improvements and betterments thereto);
(vi) Liens on Property and repairs, renewals, replacements,
additions, accessions, improvements and betterments thereto existing
at the time such Property is acquired by the Borrower or any
Restricted Subsidiary and not created in contemplation of such
acquisition (or on repairs, renewals, replacements, additions,
accessions and betterments thereto), and Liens on the Property of
any Person at the time such Person becomes a Restricted Subsidiary
of the Borrower and not created in contemplation of such Person
becoming a Restricted Subsidiary of the Borrower (or on repairs,
renewals, replacements, additions, accessions and betterments
thereto);
(vii) rights reserved to or vested in any Governmental
Authority by the terms of any right, power, franchise, grant,
license or permit, or by any Requirements of Law, to terminate such
right, power, franchise, grant, license or permit or to purchase,
condemn, expropriate or recapture or to designate a purchaser of any
of the Property of the Borrower or any of its Restricted
Subsidiaries;
(viii) rights reserved to or vested in (or exercised by) any
Governmental Authority to control, regulate or use any Property of a
Person or its activities, including zoning, planning and
environmental laws and ordinances and municipal regulations;
(ix) Liens on Property of the Borrower or any of its
Restricted Subsidiaries securing non-recourse Indebtedness of the
Borrower or any such Restricted Subsidiary;
(x) any extension, renewal or refunding of any Lien permitted
by clauses (i) through (ix) above on the same Property previously
subject thereto; provided that no extension, renewal or refunding of
any such Lien shall increase the principal amount of any
Indebtedness secured thereby immediately prior to such extension,
renewal or refunding, unless such Indebtedness is permitted under
Section 5.03;
(xi) Liens on cash collateral to secure obligations of the
Borrower and its Restricted Subsidiaries in respect of cash
management arrangements with any Lender or Affiliate thereof; and
(xii) Liens not otherwise permitted by this Section 5.02(a)
securing Indebtedness of the Borrower and its Restricted
Subsidiaries so long as the aggregate outstanding principal amount
of the obligations secured thereby does not at any time exceed at
the time of incurrence of such obligations (including any such
incurrence resulting from any extension, renewal or refunding of
CERC 5-Year Revolving Credit Agreement
39
such obligations), as to the Borrower and all of its Restricted
Subsidiaries, 10% of Net Tangible Assets.
(b) Consolidation, Mergers or Disposal of Assets. And will not
permit any Significant Subsidiary to, (i) consolidate with, or merge into
or amalgamate with or into, any other Person; (ii) liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution); or (iii)
convey, sell, transfer, lease or otherwise dispose of all or substantially
all of its assets to any Person; provided, however, that nothing contained
in this Section 5.02(b) shall prohibit (A) a merger involving a Subsidiary
in which the Borrower or, if the Borrower is not a party to such merger, a
Wholly-Owned Significant Subsidiary is the surviving entity; (B) the
liquidation, winding up or dissolution of a Significant Subsidiary if all
of the assets of such Significant Subsidiary are conveyed, transferred or
distributed to the Borrower or a Wholly-Owned Significant Subsidiary; (C)
the conveyance, sale, transfer, lease or other disposal of all or
substantially all (or any lesser portion) of the assets of any Significant
Subsidiary to the Borrower or a Wholly-Owned Significant Subsidiary; or
(D) additional conveyances, sales, transfers, leases or other disposals of
assets of the Borrower and its Subsidiaries, provided, that the aggregate
net book value of all assets of the Borrower and its Subsidiaries
conveyed, sold, transferred, leased or otherwise disposed of pursuant to
this clause (D) shall not exceed $200,000,000 or shall constitute assets
that are no longer necessary for the operation of the business of the
Borrower and its Subsidiaries; provided that, in each case covered by this
Section 5.02(b), immediately before and after giving effect to any such
merger, dissolution or liquidation, or conveyance, sale, transfer, lease
or other disposition, no Default shall have occurred and be continuing.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries (other than a Project Finance Subsidiary or an Unrestricted
Subsidiary) to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by GAAP or as
contemplated by Section 5.04.
(d) Subsidiary Indebtedness. Permit any Significant Subsidiary
(other than a Project Finance Subsidiary or an Unrestricted Subsidiary) to
be a party to, guarantee, assume, create, incur, issue or otherwise be
liable in any manner in connection with or suffer to exist, any
Indebtedness or preferred stock other than (i) Indebtedness for Borrowed
Money and preferred stock which does not exceed at any time outstanding an
aggregate amount for all Significant Subsidiaries of $100,000,000 (for
purposes of this clause (i), the amount of Indebtedness for Borrowed Money
will be the outstanding principal amount thereof, and the amount of any
preferred stock will be the greater of the par value thereof or the
consideration received in the issuance thereof), (ii) assumed Indebtedness
for Borrowed Money and preferred stock of any Person that becomes a
Subsidiary (other than a Project Finance Subsidiary or an Unrestricted
Subsidiary) after the date hereof, if such Indebtedness for Borrowed Money
or preferred stock is in existence at the time such Person becomes a
Subsidiary (other than a Project Finance Subsidiary or an Unrestricted
Subsidiary) and was not created in contemplation thereof and no other
Subsidiary is liable therefor, (iii) Indebtedness for Borrowed Money owed
to and held by, and preferred stock held by, the Borrower or any
Wholly-Owned Subsidiary of the Borrower, (iv) Non-Recourse Debt and (v)
Indebtedness for Borrowed Money existing on the date hereof, any
refinancing thereof in an amount not greater than the outstanding amount
thereof at the time of such refinancing and any preferred stock existing
on the date hereof.
(e) Restrictions on Dividends, Intercompany Loans, or Investments.
Permit, or permit any Significant Subsidiary (other than a Project Finance
Subsidiary or an Unrestricted Subsidiary) to, create or otherwise cause or
permit to exist or become effective any explicit and direct restriction
under any agreement evidencing or providing for the issuance of
Indebtedness for Borrowed Money (other than this Agreement) on the ability
of any Significant Subsidiary (other than a Project Finance Subsidiary or
an Unrestricted Subsidiary) to (i) pay dividends or make any other
distributions on its capital stock or pay any Indebtedness owed to the
Borrower or any Subsidiary (other than a Project Finance Subsidiary or an
Unrestricted Subsidiary) of the Borrower, (ii) make any loans or advances
to or investments in the Borrower or any Subsidiary (other than a Project
Finance Subsidiary or an Unrestricted Subsidiary) of the Borrower, or
(iii) transfer any of its property or assets to the Borrower or any
Subsidiary (other than a Project Finance Subsidiary or an Unrestricted
Subsidiary) of the Borrower; provided, that the foregoing
CERC 5-Year Revolving Credit Agreement
40
shall not prohibit financial incurrence, maintenance and similar covenants
that indirectly have the practical effect of prohibiting or restricting
the ability of a Significant Subsidiary to make such payments or
provisions that require that a certain amount of capital be maintained, or
prohibit the return of capital to shareholders above certain dollar
limits; provided, further, that the foregoing shall not apply to (i)
restrictions and conditions imposed by law or by this Agreement, (ii)
restrictions and conditions existing on the date hereof, any amendment or
modification thereof (other than an amendment or modification expanding
the scope of any such restriction or condition and any restrictions or
conditions) that (x) replace restrictions or conditions existing on the
date hereof and (y) are substantially similar to such existing restriction
or condition, (iii) restrictions (including any extension of such
restrictions that does not expand the scope of any such restrictions)
existing at the time at which any such Subsidiary first becomes a
Significant Subsidiary, so long as such restriction was in existence prior
to such time in accordance with the other provisions of this Agreement and
was not agreed to or incurred in contemplation of such change of status
and (iv) any restrictions with respect to a Significant Subsidiary imposed
pursuant to an agreement that has been entered into in connection with a
disposition of all or substantially all of the Capital Stock or assets of
such Subsidiary (if such disposal is otherwise permitted under this
Agreement).
(f) Affiliate Transaction. And will not permit any Subsidiary of
Borrower to, make, directly or indirectly, (i) any transfer, sale, lease
or other disposition of any Property to any Affiliate of Borrower or any
Subsidiary of Borrower or any purchase or acquisition of any Property from
any such Affiliate; or (ii) any other arrangement or transaction directly
or indirectly with or for the benefit of any such Affiliate (including
without limitation, guaranties and assumptions of obligations of any such
Affiliate); provided, that (A) Borrower and any such Subsidiary may enter
into any arrangement or other transaction with any such Affiliate if the
monetary or business consideration arising therefrom would be
substantially at least as advantageous to Borrower or such Subsidiary as
the monetary or business consideration which would be obtained in a
comparable arm's length transaction with a Person not an Affiliate of
Borrower or any Subsidiary of Borrower; (B) Borrower and any Subsidiary of
Borrower may become liable in connection with guaranties of the
obligations of any such Affiliate in the ordinary course of business,
provided that, the amount of any such guaranty, to the extent such
guaranty relates to Indebtedness for Borrowed Money, of the obligations of
any such Affiliate shall be included in the determination of Total Debt
for purposes of Section 5.03(a) hereof; (C) Borrower and its Subsidiaries
may make purchases of receivables of any kind from the Borrower and the
Subsidiaries of Borrower on terms that any of them deem acceptable; (D)
intercompany borrowings between Borrower and any Subsidiary of Borrower
and between any Subsidiaries of the Borrower and other such Subsidiaries
of the Borrower may be on terms that they deem acceptable or under the
Parent's money pool; (E) Borrower may enter into any arrangement or other
transaction with any Wholly-Owned Subsidiary of Borrower, and any
Wholly-Owned Subsidiary of Borrower may enter into any arrangement or
other transaction with Borrower or any other Wholly Owned Subsidiary of
Borrower, in each case under this clause (E) only if such arrangements and
other transactions do not involve any Person other than Borrower and
Wholly-Owned Subsidiaries of Borrower; and (F) Borrower may enter into
arrangements or other transactions permitted by Section 5.02(b)(E).
(g) Investments in the Parent. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in the Parent, other than
money pool loans.
(h) Use of Proceeds: Regulation U. Use the proceeds of any Borrowing
(i) to purchase or carry, within the meaning of Regulation U, any Margin
Stock, (ii) to participate in any tender offer for the securities of any
Person, unless such tender offer has been approved by the board of
directors, general partners or other governing body of such Person or
(iii) for any purpose that would violate or result in a violation of any
law or regulation. Borrower will not, and will not permit any of its
Subsidiaries to engage principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or
carrying, within the meaning of Regulation U, any Margin Stock.
(i) Takeover Bids. Use the proceeds of any Borrowing to it to
participate in any unsolicited bid for any other Person.
(j) Certain Investments, Loans, Advances, Guaranties and
Acquisitions. Permit, or permit any of its Significant Subsidiaries to
purchase or acquire (including pursuant to any merger) any Capital
CERC 5-Year Revolving Credit Agreement
41
Stock, evidence of indebtedness or other securities of or other interest
in (including any option, warrant or other right to acquire any of the
foregoing), make any loans or advances to, Guarantee any obligation of, or
make any investment or other interest in or capital contribution to any
Unrestricted Subsidiary or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any Unrestricted
Subsidiary constituting a business unit, (any of the foregoing, an
"Investment") at any time if the aggregate amount of Net Tangible Assets
of all Unrestricted Subsidiaries at such time exceeds, or would exceed as
a result of any Investment the lesser of (i) 10% of the Consolidated Net
Tangible Assets of Parent and (ii) 15% of the Consolidated Net Tangible
Assets of the Borrower.
SECTION 5.03 Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Total Debt to Capitalization Ratio. Maintain a ratio of Total
Debt for Borrowed Money to Consolidated Capitalization of no greater than
0.65:1.00, calculated on a quarterly basis.
(b) Fixed Charge Coverage Ratio. Maintain a ratio of EBITDA to Cash
Interest for the immediately preceding four calendar quarters of no less
than 2.00:1.00, calculated on a quarterly basis.
SECTION 5.04 Borrower's Accounting Reorganization.
(a) The Borrower may undertake an accounting reorganization of its
operations and corporate structure that would involve the extinguishment
of a negative retained earnings balance and the restatement of its assets
and its liabilities to their fair values (the "Accounting
Reorganization").
(b) In the event that the Accounting Reorganization occurs, the
Borrower shall notify the Administrative Agent thereof and notwithstanding
any of the terms, conditions or provisions of this Agreement or the other
Loan Documents to the contrary, compliance with the financial covenants,
standards, terms and conditions in this Agreement and the Loan Documents
shall be based on the performance by the Borrower and its Subsidiaries
therewith as though the Accounting Reorganization had not occurred and the
Borrower shall deliver, together with the certificates required under
Section 5.01(j), pro forma financial statements prepared on the basis that
the Accounting Reorganization had not occurred.
(c) In addition, the Borrower may request various amendments to the
covenants, representations, Events of Defaults and the other standards,
terms and conditions of this Agreement and the Loan Documents. If so
requested, the Borrower and the Lenders agree to enter into negotiations
in order to amend such provisions (with the agreement of the Required
Lenders or, if required by Section 8.01, all of the Lenders) so as to
equitably reflect such changes with the desired result that the criteria
for evaluating any of the Borrower's and its Restricted Subsidiaries'
financial condition shall be the same after the Accounting Reorganization
as if such Accounting Reorganization had not occurred. Each of the Lenders
agrees to consider these requests and proposed amendments in good faith
and agrees not to unreasonably withhold or delay its consent to such
amendments. Unless and until such provisions have been so amended, this
Section shall govern the Borrower's compliance with this Agreement and the
Loan Documents.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay (i) any principal of any Advance
when the same becomes due and payable, or (ii) any interest on any
Advance, any fees payable under the Fee Letter, any Applicable Utilization
Fees, the Facility Fee payable pursuant to Section 2.06(a) or any Letter
of Credit fees under
CERC 5-Year Revolving Credit Agreement
42
Section 2.06(c) within five Business Days after the same becomes due and
payable or (iii) any other payment of fees or other amounts payable under
this Agreement or any Note or CAF Note, as the case may be, within ten
Business Days after notice of such payment is received by the Borrower
from the Administrative Agent or the Required Lenders; or
(b) Any representation or warranty made by the Borrower herein or by
the Borrower (or any of its officers) in this Agreement or any other Loan
Document shall prove to have been incorrect in any material respect when
made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Sections 5.01(d), (e), (h) or (j)(iii),
5.02 or 5.03, or (ii) the Borrower shall fail to perform or observe any
other term, covenant or agreement contained in this Agreement on its part
to be performed or observed if such failure shall not have been remedied
within 30 days after the earlier of notice thereof to it by the
Administrative Agent or the Required Lenders or discovery thereof by a
Responsible Officer of the Borrower; or
(d) The Borrower or any of its Significant Subsidiaries (other than
a Project Finance Subsidiary or an Unrestricted Subsidiary) shall fail to
pay any principal of or premium or interest on any Indebtedness for
Borrowed Money that is outstanding in a principal amount of at least
$50,000,000 in the aggregate (but excluding Indebtedness outstanding
hereunder) of the Borrower or such Subsidiary (as the case may be), when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Indebtedness; or any other event
shall occur or condition shall exist under any agreement or instrument
relating to any such Indebtedness and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable, or required to be
prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Indebtedness shall be required to be
made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Significant Subsidiaries (other than
a Project Finance Subsidiary or an Unrestricted Subsidiary) shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any of its Significant
Subsidiaries (other than any Project Finance Subsidiary or an Unrestricted
Subsidiary) seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding
shall remain undismissed or unstayed for a period of 30 days, or any of
the actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower or any of
its Significant Subsidiaries (other than any Project Finance Subsidiary or
an Unrestricted Subsidiary) shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts described in this subsection (e); or
(f) Judgments or orders for the payment of money (not paid or fully
covered by insurance as to which the relevant insurance company has
acknowledged coverage) in excess of $50,000,000 in the aggregate shall be
rendered against the Borrower or any of its Significant Subsidiaries
(other than a Project Finance Subsidiary or an Unrestricted Subsidiary)
and either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period of
60 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
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(g) For any reason, (i) the Parent fails to own, directly or
indirectly, at least 50% of the economic interest in Borrower, or (ii) the
Parent fails to own, directly or indirectly, at least 50% of the
outstanding shares of stock, Voting Stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect directors or other managers of Borrower, or (iii)
the Borrower fails to own, directly or indirectly, at least 50% of the
economic interest in CenterPoint Energy - Mississippi River Transmission
Corporation, a Delaware corporation ("MRT"), or (iv) the Borrower fails to
own, directly or indirectly, at least 50% of the economic interest in
CenterPoint Energy Gas Transmission Company, a Delaware corporation
("CEGT"), or (v) the Borrower fails to own at least 50% of the outstanding
shares of stock, Voting Stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect
directors or other managers of MRT or (vi) the Borrower fails to own at
least 50% of the outstanding shares of stock, Voting Stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect directors or other managers of CEGT;
or
(h) The Borrower or any of its ERISA Affiliates shall incur, or
could be reasonably expected to incur, liability in excess of $50,000,000
in the aggregate as a result of one or more of the following: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal of
the Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances (other than Letter of
Credit Advances by an Issuing Bank pursuant to Section 2.03(c)) and of each
Issuing Bank to issue Letters of Credit to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes
or CAF Notes (if any), the unpaid principal amount of all outstanding Advances,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes or CAF Notes (if any), all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to
make Advances shall automatically be terminated and (B) the Notes or CAF Notes
(if any), the unpaid principal amount of all outstanding Advances, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower.
SECTION 6.02 Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lenders in same day funds at the Administrative Agent's Office an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Federal Bankruptcy Code, the
Borrower shall be obligated to pay to the Administrative Agent on behalf of the
Lenders in same day funds at the Administrative Agent's Office, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. If at any time the Administrative Agent
determines that any funds held are subject to any right or claim of any Person
other than the Agents and the Lenders or that the total amount of such funds is
less than the aggregate Available Amount of all Letters of Credit, the Borrower
will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held, an amount
equal to the excess of (a) such aggregate Available Amount over (b) the total
amount of funds, if any, then held that the Administrative Agent determines to
be free and clear of any such right and claim. Upon the drawing of any Letter of
Credit for which funds are on deposit, such funds shall be applied to reimburse
the relevant Issuing Bank or Lenders, as applicable, to the extent permitted by
applicable law.
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ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01 Authorization and Action. Each Lender and Issuing Bank
hereby appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under this
Agreement and the other Loan Documents as are delegated to the Administrative
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes or CAF Notes, if any), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes or CAF
Notes (if any); provided, however, that the Administrative Agent shall be
required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender prompt notice of each notice
given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its respective directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent: (i) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iii) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or the existence at any
time of any Default or to inspect the property (including the books and records)
of the Borrower; (iv) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or, if applicable, the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant hereto; and (v)
shall incur no liability under or in respect of this Agreement by acting upon
any notice, consent, certificate or other instrument or writing (which may be by
telecopier, telegram or electronic communication) believed by it to be genuine
and signed or sent by the proper party or parties.
SECTION 7.03 Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note or CAF Note, if any, issued to
it, Citibank shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the Administrative
Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly
indicated, include Citibank in its respective individual capacities. Citibank
and its respective Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank was not the Administrative
Agent and without any duty to account therefor to the Lenders. The
Administrative Agent shall have no duty to disclose any information obtained or
received by it or any of its Affiliates relating to the Borrower or any of its
Subsidiaries to the extent such information was obtained or received in any
capacity other than as the Administrative Agent.
SECTION 7.04 Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
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SECTION 7.05 Indemnification. (a) The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to the respective principal amounts of the Notes (if any) then held by
each of them (or if no Notes are at the time outstanding or if any Notes are
held by Persons that are not Lenders, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement (collectively, the "Indemnified
Costs"), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for its ratable share of
any out of pocket expenses (including counsel fees) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent is not reimbursed for such expenses by the Borrower. In the
case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 7.05 applies whether any such investigation,
litigation or proceeding is brought by the Administrative Agent, any Lender or a
third party.
(b) Each Lender severally agrees to indemnify each Issuing Bank (to
the extent not promptly reimbursed by the Borrower) from and against such
Lender's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against such Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by such Issuing Bank under the Loan Documents; provided, however, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Issuing Bank's gross negligence or willful misconduct as
found in a final, non-appealable judgment by a court of competent jurisdiction.
Without limitation of the foregoing, each Lender agrees to reimburse such
Issuing Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the extent that such Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower.
(c) For purposes of this Section 7.05, each Lender's ratable share
of any amount shall be determined, at any time, according to the sum of (i) the
aggregate principal amount of the Advances outstanding at such time and owing to
such Lender's, (ii) such Lender's Pro Rata Shares of the aggregate Available
Amount of all Letters of Credit outstanding at such time, and (iii) such Lender
Party's Unused Revolving Credit Commitments at such time; provided that the
aggregate principal amount of Letter of Credit Advances owing to any Issuing
Bank shall be considered to be owed to the Lenders ratably in accordance with
their respective Revolving Commitments. The failure of any Lender to reimburse
any Agent or any Issuing Bank, as the case may be, promptly upon demand for its
ratable share of any amount required to be paid by the Lenders to such Agent or
such Issuing Bank, as the case may be, as provided herein shall not relieve any
other Lender of its obligation hereunder to reimburse such Agent or such Issuing
Bank, as the case may be, for its ratable share of such amount, but no Lender
shall be responsible for the failure of any other Lender to reimburse such Agent
or such Issuing Bank, as the case may be, for such other Lender's ratable share
of such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender contained in this
Section 7.05 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Loan Documents.
SECTION 7.06 Successor Administrative Agents. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders and
the Borrower and may be removed at any time with or without cause by the
Required Lenders; provided, however, that any removal of the Administrative
Agent will not be effective until it has also been replaced as Issuing Bank and
released from all of its obligations in respect thereof. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative 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
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combined capital and surplus of at least $500,000,000, provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and (2) all payments, communications and determinations provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender and Issuing Bank directly, until such time as the Required Lenders
appoint a successor Administrative Agent as provided for above in this
paragraph. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
SECTION 7.07 Co-Syndication Agents; Lead Arrangers. None of the
Lenders or other Persons identified on the facing page or signature pages of
this Agreement as a "co-syndication agent" or "lead arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such Lenders, those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes (if any), 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 Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by the relevant Lenders, do any of the
following: (a) waive any of the conditions specified in Section 3.01, without
the consent of any affected Lender, (b) increase the Commitments of any affected
Lender, (c) reduce the principal of, or interest on, the Notes (if any) or any
fees or other amounts payable hereunder to such Lender, (d) postpone any date
fixed for any payment of principal of, or interest on, the Notes (if any) or any
fees or other amounts payable hereunder to such Lender, (e) change the
percentage of the Commitments or the aggregate unpaid principal amount of the
Notes (if any), the number of Lenders, or the Available Amount of outstanding
Letters of Credit, that shall be required for the Lenders or any of them to take
any action hereunder without the consent of all Lenders, or (f) amend this
Section 8.01 without the consent of all Lenders; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by an Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the such Agent under this Agreement or any Note.
SECTION 8.02 Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered or
(y) as and to the extent set forth in Section 8.02(b) and in the proviso to this
Section 8.02(a), in an electronic medium and delivered as set forth in Section
8.02(b), if to the Borrower, at its address at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Assistant Treasurer (telecopy: ▇▇▇ ▇▇▇ ▇▇▇▇); if to any Lender, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender, at its Domestic Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender; if to the Lead Arrangers,
at the addresses specified on Schedule II hereto; and if to the Administrative
Agent, at its address at ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: Bank Loan Syndications Department/▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopy: 212 994
0961), with a copy to ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: Nietzsche Rodricks (telecopy: ▇▇▇ ▇▇▇ ▇▇▇▇); or, as to the Borrower
or the Administrative Agent, at such other address as shall be designated by
such party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written notice
to the Borrower and the Administrative Agent; provided, that materials required
to be delivered pursuant to Section 5.01(j)(i), (ii) and (iv) shall be delivered
to the Administrative Agent as specified in Section 8.02(b) or as otherwise
specified to the Borrower by the Administrative Agent. All
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such notices and communications shall, when mailed, telecopied, telegraphed or
emailed, be effective when deposited in the mails, telecopied, delivered to the
telegraph company or confirmed by email, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or CAF Notes (if any) or of any Exhibit
hereto to be executed and delivered hereunder shall be effective as delivery of
a manually executed counterpart thereof.
(b) The Borrower hereby agrees that, unless otherwise requested by
the Administrative Agent, it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to
the Administrative Agent pursuant to the Loan Documents, including, without
limitation, all notices, requests, financial statements, financial and other
reports, certificates and other information materials, but excluding any such
communication that (i) relates to a request for a new, or a conversion of an
existing, borrowing or other extension of credit (including any election of an
interest rate or interest period relating thereto), (ii) relates to the payment
of any principal or other amount due under this Agreement prior to the scheduled
date therefor, (iii) provides notice of any default or event of default under
this Agreement, (iv) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any borrowing or other
extension of credit hereunder or (v) initiates or responds to legal process (all
such non-excluded information being referred to herein collectively as the
"Communications") by transmitting the Communications in an electronic/soft
medium (provided such Communications contain any required signatures) in a
format acceptable to the Administrative Agent to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
(or such other e-mail address designated by the Administrative Agent from time
to time).
(c) Each party hereto agrees that the Administrative Agent may make
the Communications available to the Lenders and the Issuing Banks by posting the
Communications on IntraLinks or another relevant website, if any, to which each
Lender, Issuing Bank and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative
Agent) (the "Platform"). Nothing in this Section 8.02 shall prejudice the right
of the Administrative Agent to make the Communications available to the Lenders
and the Issuing Banks in any other manner specified in the Loan Documents.
(d) The Borrower hereby acknowledges that certain of the Lenders may
be "public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrower or its securities) (each, a
"Public Lender"). The Borrower hereby agrees that (i) Communications that are to
be made available on the Platform to Public Lenders shall be clearly and
conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word
"PUBLIC" shall appear prominently on the first page thereof, (ii) by marking
Communications "PUBLIC," the Borrower shall be deemed to have authorized the
Administrative Agent, the Issuing Banks and the Lenders to treat such
Communications as not containing any material non-public information with
respect to the Borrower or its securities for purposes of United States Federal
and state securities laws, it being understood that certain of such
Communications may be subject to the confidentiality requirements hereof, (iii)
all Communications marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor," and (iv) the
Administrative Agent shall be entitled to treat any Communications that are not
marked "PUBLIC" as being suitable only for posting on a portion of the Platform
not designated "Public Investor." Notwithstanding the foregoing, (A) the
Borrower shall be under no obligation to ▇▇▇▇ any Communications "PUBLIC," and
each Public Lender hereby waives its right to receive any Communications that
are not marked "PUBLIC"; and (B) the Administrative Agent shall treat
Communications that are deemed to have been delivered based on notice pursuant
to the last sentence of Section 5.01(j) as "PUBLIC."
(e) Each Lender agrees that e-mail notice to it (at the address
provided pursuant to the next sentence and deemed delivered as provided in the
next paragraph) specifying that Communications has been posted to the Platform
shall constitute effective delivery of such Communications to such Lender for
purposes of this Agreement. Each Lender agrees (i) to notify the Administrative
Agent in writing (including by electronic communication) from time to time to
ensure that the Administrative Agent has on record an effective e-mail address
for such Lender to which the foregoing notice may be sent by electronic
transmission and (ii) that the foregoing notice may be sent to such e-mail
address.
(f) Each party hereto agrees that any electronic communication
referred to in this Section 8.02 shall be deemed delivered upon the posting of a
record of such communication (properly addressed to such
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party at the e-mail address provided to the Administrative Agent) as "sent" in
the e-mail system of the sending party or, in the case of any such communication
to the Administrative Agent, upon the posting of a record of such communication
as "received" in the e-mail system of the Administrative Agent; provided that if
such communication is not so received by the Administrative Agent during the
normal business hours of the Administrative Agent, such communication shall be
deemed delivered at the opening of business on the next Business Day for the
Administrative Agent.
(g) Each party hereto acknowledges that (i) the distribution of
material through an electronic medium is not necessarily secure and there are
confidentiality and other risks associated with such distribution, (ii) the
Communications and the Platform are provided "as is" and "as available," (iii)
none of the Administrative Agent, its affiliates nor any of their respective
officers, directors, employees, agents, advisors or representatives
(collectively, the "Citigroup Parties") warrants the adequacy of the Platform or
the accuracy or completeness of any Communications, and each Citigroup Party
expressly disclaims liability for errors or omissions in any Communications or
the Platform, and (iv) no warranty of any kind, express, implied or statutory,
including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from
viruses or other code defects, is made by any Citigroup Party in connection with
any Communications or the Platform.
SECTION 8.03 No Waiver; Remedies. No failure on the part of any
Lender or Agent to exercise, and no delay in exercising, any right hereunder or
under any Note or CAF Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04 Costs and Expenses. (a) The Borrower agrees to pay on
demand all reasonable costs and expenses of the Administrative Agent and the
Lead Arrangers in connection with the preparation, execution, delivery,
administration, modification and amendment of or any consent or waiver under
this Agreement, the Notes (if any) and the other documents to be delivered
hereunder, including, without limitation, (A) all reasonable due diligence,
syndication (including printing, distribution and bank meetings), computer and
duplication expenses, (B) the reasonable fees and expenses of counsel for the
Administrative Agent and the Lead Arrangers with respect thereto and with
respect to advising the Administrative Agent as to its rights and
responsibilities under this Agreement and (C) all reasonable out-of-pocket
expenses incurred by the Issuing Banks in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder. The Borrower further agrees to pay on demand all costs and
expenses of the Administrative Agent and the Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Notes (if any) and the other documents to be delivered
hereunder, including, without limitation, reasonable fees and expenses of
counsel for the Administrative Agent, the Lead Arrangers and each Lender in
connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Lead Arrangers and each Lender and each of their
Affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
liabilities and reasonable expenses (including, without limitation, reasonable
fees and expenses of counsel) incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(i) the Notes or CAF Notes (if any), this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances or (ii) the actual or alleged presence of Hazardous Materials on any
property of the Borrower or any of its Subsidiaries or any Environmental Action
relating in any way to the Borrower or any of its Subsidiaries, except to the
extent such claim, damage, loss, liability or expense is found in a final, non
appealable judgment by a court of competent jurisdiction to have resulted from
such Indemnified Party's gross negligence or willful misconduct. In the case of
an investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, equityholders or creditors, any Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. Each of the
parties hereto agrees not to assert any claim for
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49
special, indirect, consequential or punitive damages against any other party
hereto, any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability arising out of or
otherwise relating to the Notes or CAF Notes (if any), this Agreement, the
Letters of Credit any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance or CAF Eurodollar Rate Advance is made by the Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to Sections
2.10(d) or (e), 2.12 or 2.14, acceleration of the maturity of the Notes or CAF
Notes (if any), as the case may be, pursuant to Section 6.01 or for any other
reason, the Borrower shall, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.12, 2.15 and 8.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes or CAF
Notes (if any).
SECTION 8.05 Right of Set off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes or CAF Notes, if any, due and payable
pursuant to the provisions of Section 6.01, each Lender, the Issuing Banks and
each of their respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, in
whatever currency) at any time held and other indebtedness at any time owing by
such Lender or such Affiliate to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note or CAF Note, as the case may be, held
by such Lender or the Issuing Banks, whether or not such Lender or Issuing Bank
shall have made any demand under this Agreement or such Note or CAF Note and
although such obligations may be unmatured or are owed to a branch or office of
such Lender or the Issuing Bank different from the branch or office holding such
deposit or obligated on such indebtedness. Each Lender and Issuing Bank agrees
promptly to notify the Borrower after any such set off and application, provided
that the failure to give such notice shall not affect the validity of such set
off and application. The rights of each Lender, the Issuing Bank and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set off) that such Lender,
Issuing Bank and its Affiliates may have.
SECTION 8.06 Binding Effect. This Agreement shall become effective
(other than Sections 2.01 and 2.03, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Administrative Agent and when
the Administrative Agent shall have been notified by each Lender that such
Lender has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent and each Lender and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of each Lender.
SECTION 8.07 Assignments and Participations. (a) Each Lender may
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Revolving Advances owing to it and the Note or Notes, if any,
held by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement (other than any right to make CAF Advances, CAF Advances owing to it
and CAF Note or CAF Notes, if any), (ii) except in the case of an assignment to
a Person that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
amount of the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, (iv) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note,
if any, subject
CERC 5-Year Revolving Credit Agreement
50
to such assignment, and (v) the parties to each such assignment shall deliver to
the Administrative Agent a processing and recordation fee of $3,500. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.13, 2.16 and 8.04 to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred
to in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be prima facie evidence of the correctness thereof, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note, if any, subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (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 five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the 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 Lender has retained a Commitment hereunder, a new Note to the order of
the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto.
(e) Each Issuing Bank may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under the undrawn portion of its
Letter of Credit Commitment at any time; provided, however, that (i) except in
the case of an assignment to a Person that immediately prior to such assignment
was an Issuing
CERC 5-Year Revolving Credit Agreement
51
Bank or an assignment of all of an Issuing Bank's rights and obligations under
this Agreement, the amount of the Letter of Credit Commitment of the assigning
Issuing Bank being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such assignment) shall
in no event be less than $10,000,000 and shall be in an integral multiple of
$1,000,000 in excess thereof, (ii) each such assignment shall be to an Eligible
Assignee and (iii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with a processing and recordation fee of
$3,500.
(f) Each Lender may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and the Note or Notes, if any, held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation. A Participant shall not be entitled to receive any greater
payment under Sections 2.13 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time and without the consent of the Borrower or the
Administrative Agent (i) create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System, and (ii) with notice to the Borrower and the Administrative Agent,
assign all or part of its rights and obligations under this Agreement to any of
its Affiliates.
(i) In the event that any Lender requests payments of reimbursement,
compensation or indemnification from the Borrower pursuant to Sections 2.02,
2.13 or 2.16 herein, then the Borrower shall have the right, but not the
obligation, at its own expense, upon 5 Business Days notice to such Lender and
the Administrative Agent, to replace such Lender with an assignee (in accordance
with and subject to the restrictions contained in paragraphs (a) and (b) above),
and such Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in paragraphs (a) and
(b) above) all its interests, rights and obligations in respect of its
Commitment to such assignee; provided, however, that (i) no such assignment
shall conflict with any law, rule and regulation or order of any governmental
authority, (ii) no Default has occurred or is continuing, (iii) the Borrower has
satisfied all of its obligations under this Agreement relating to such assigning
Lender through the date of such assignment, (iv) the Borrower shall pay to the
Administrative Agent the administrative fee in the amount of $3,500 if such
replacement Lender assignee is not an existing Lender, and (v) such assignee
shall pay to such assigning Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Advances made by such Lender hereunder and the Borrower, the Administrative
Agent or such assignee, as applicable, shall pay to such Lender all other
amounts accrued for such Lender's account or owed to it hereunder.
CERC 5-Year Revolving Credit Agreement
52
SECTION 8.08 Patriot Act Notification. Each Lender and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub.L. 107-56 (signed into law October 26, 2001)) (the "Patriot
Act"), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower
and other information that will allow such Lender or the Administrative Agent,
as applicable, to identify the Borrower in accordance with the Patriot Act. The
Borrower shall, and shall cause each of their Subsidiaries to, provide, to the
extent commercially reasonable, such information and take such actions as are
reasonably requested by the Administrative Agent or any Lenders in order to
assist the Administrative Agent and the Lenders in maintaining compliance with
the Patriot Act.
SECTION 8.09 Confidentiality. Neither the Administrative Agent nor
any Lender shall disclose any Confidential Information to any other Person
without the consent of the Borrower, other than (a) to the Administrative
Agent's or such Lender's Affiliates and their officers, directors, employees,
agents and advisors and, as contemplated by Section 8.07(f), to actual or
prospective assignees and participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking or any other regulatory or self-regulatory
authorities. The Borrower may disclose to any and all Persons, without
limitation of any kind, the U.S. tax treatment and U.S. tax structure of the
transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to the Borrower
relating to such U.S. tax treatment and U.S. tax structure.
SECTION 8.10 Governing Law. This Agreement and the Notes (if any)
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.11 Counterparts; Integration; Electronic Execution.
(a) Execution in Counterparts, Integration. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. This Agreement, and any separate letter agreements with respect to
fees payable to the Administrative Agent and the Lead Arrangers, constitute the
entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Agreement.
(b) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Acceptance
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
SECTION 8.12 Removal of Lender. Notwithstanding anything herein to
the contrary, the Borrower may, at any time in its sole discretion, remove any
Lender upon 15 Business Days' written notice to such Lender and the
Administrative Agent (the contents of which notice shall be promptly
communicated by the Administrative Agent to each other Lender), such removal to
be effective at the expiration of such 15-day notice period; provided, however,
that no Lender may be removed hereunder (i) at a time when an Event of Default
shall have occurred and be continuing or (ii) after giving effect to the
removal, the Total Aggregate Outstanding Extensions of Credit would exceed the
total of the Revolving Commitments. Each notice by the Borrower under this
Section shall constitute a representation by the Borrower that the removal
described in such notice is permitted under this Section. Concurrently with such
removal, the Borrower shall pay to such removed Lender all amounts owing to such
Lender hereunder and under any other Loan Document in immediately available
funds. Upon full and final payment hereunder of all amounts owing to such
removed Lender, such Lender shall make appropriate entries in its accounts
evidencing payment of all Loans hereunder and releasing the Borrower from all
obligations owing to the removed Lender in respect of the Loans hereunder and
surrender to the Administrative Agent for return to the
CERC 5-Year Revolving Credit Agreement
53
Borrower any Notes of the Borrower then held by it. Effective immediately upon
such full and final payment, such removed Lender will not be considered to be a
"Lender" for purposes of this Agreement except for the purposes of any provision
hereof that by its terms survives the termination of this Agreement and the
payment of the amounts payable hereunder. Effective immediately upon such
removal, the Commitments of such removed Lender shall immediately terminate and
such Lender's participation share in any outstanding Letters of Credit shall
immediately terminate and such participation share shall be divided among the
remaining Lenders according to their Pro Rata Share. Such removal will not,
however, affect the Commitments of any other Lender hereunder.
SECTION 8.13 Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes or CAF Notes (if any), or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or the Notes or CAF Notes (if any) in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
or CAF Notes (if any) in any New York State or federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
CERC 5-Year Revolving Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CENTERPOINT ENERGY RESOURCES CORP., as Borrower
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------------
Title: Vice President And Treasurer
CITIGROUP GLOBAL MARKETS INC., as Lead Arranger
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Title: Managing Director
BARCLAYS CAPITAL, the Investment Banking Division of
Braclays Bank PLC, as Lead Arranger
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
Title: Director
BANC OF AMERICA SECURITIES LLC, as Lead Arranger
By [Illegible]
-------------------------------------------
Title: [Illegible]
CITIBANK, N.A., as Administrative Agent and Issuing Bank
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
Title: Vice President
BARCLAYS BANK PLC., as Co-Syndication Agent
and Issuing Bank
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Director
BANK OF AMERICA, N.A., as Co-Syndication Agent
and Issuing Bank
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,as Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Associate
DEUTSCHE BANK AG NEW YORK BRANCH, as Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Title: Managing Director
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Director
JPMORGAN CHASE BANK, N.A., as Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC, as Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------
Title: Assistant Vice President
ROYAL BANK OF CANADA, as Lender
By /s/ ▇▇▇▇▇ Phaken
------------------------
Title: Authorized Signatory
KEYBANK NATIONAL ASSOCIATION, as Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Title: Vice President
▇▇▇▇▇ FARGO BANK, N.A., as Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD., as Lender
By /s/ ▇. ▇▇▇▇▇▇▇
------------------------
Title: Vice President & Manager
SUNTRUST BANK, as Lender
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Title: Vice President
HSBC BANK USA, NATIONAL ASSOCIATION, as Lender
By /s/ ▇▇▇▇ Aldeanueva
------------------------
Title: Vice President
ABN AMRO BANK N.V., as Lender
By /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Title: Assistant Vice President
SCHEDULE I
APPLICABLE LENDING OFFICES
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LENDER'S NAME DOMESTIC OFFICE EURODOLLAR OFFICE
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Citibank, N.A. Two Penns Way, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Reference: CenterPoint Energy Resources Reference: CenterPoint Energy Resources
-----------------------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Account Name: Utilities Clearing Account Account Name: Utilities Clearing Account
Attn: ▇▇▇▇▇▇ English Attn: ▇▇▇▇▇▇ English
Reference: CenterPoint Energy Resources Corp. Reference: CenterPoint Energy Resources Corp.
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Bank of America, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Account Name: Credit Services Account Name: Credit Services
Reference: CenterPoint Energy Resources Corp. Reference: CenterPoint Energy Resources Corp.
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ABN AMRO Bank, N.V.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Barclays Capital ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Credit Suisse, Cayman Islands ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Branch Eleven Madison Avenue Eleven Madison Avenue
New York, NY 10010 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Deutsche Bank AG New York Branch ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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HSBC Bank USA, National ▇▇▇▇ Aldeanueva ▇▇▇▇ Aldeanueva
Association ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Royal Bank of Canada ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Singh
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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SunTrust Bank ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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LENDER'S NAME DOMESTIC OFFICE EURODOLLAR OFFICE
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The Bank of Tokyo-Mitsubishi, Ltd. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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The Royal Bank of Scotland plc ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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Wachovia Bank, National ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Association ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇ Fargo Bank, N.A. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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KeyBank National Association ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Account Name: KCIB Loan Services Account Name: KCIB Loan Services
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Reference: CenterPoint Energy Reference: CenterPoint Energy
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SCHEDULE II
LEAD ARRANGERS ADDRESS
CITIGROUP GLOBAL MARKETS, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Reference: CenterPoint Energy Resources
BARCLAYS CAPITAL
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BANC OF AMERICA SECURITIES, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Reference: CenterPoint Energy Resources Corp.
SCHEDULE III
COMMITMENT PERCENTAGES & LETTER OF CREDIT COMMITMENT
--------------------------------------------------------------------------------
Institution Allocation
--------------------------------------------------------------------------------
Citibank, N.A. $ 40,000,000 10.00%
Barclays Bank PLC 40,000,000 10.00%
Bank of America, N.A. 40,000,000 10.00%
Credit Suisse, Cayman Islands Branch 33,000,000 8.25%
Deutsche Bank AG New York Branch 33,000,000 8.25%
JPMorgan Chase Bank, N.A. 33,000,000 8.25%
The Royal Bank of Scotland plc 33,000,000 8.25%
Wachovia Bank, National Association 33,000,000 8.25%
The Bank of Tokyo-Mitsubishi, Ltd. 25,000,000 6.25%
ABN AMRO Bank N.V. 15,000,000 3.75%
HSBC Bank USA, National Association 15,000,000 3.75%
KeyBank National Association 15,000,000 3.75%
Royal Bank of Canada 15,000,000 3.75%
SunTrust Bank 15,000,000 3.75%
▇▇▇▇▇ Fargo Bank, N.A. 15,000,000 3.75%
--------------------------------------------------------------------------------
Total $400,000,000 100.00%
--------------------------------------------------------------------------------
LETTER OF CREDIT COMMITMENT
--------------------------------------------------------------------------------
INSTITUTION COMMITMENT
--------------------------------------------------------------------------------
Citibank, N.A. $50,000
--------------------------------------------------------------------------------
Barclay's Bank PLC $50,000
--------------------------------------------------------------------------------
Bank of America, N.A. $50,000
--------------------------------------------------------------------------------
TOTAL $150,000
--------------------------------------------------------------------------------
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: __________ __, [___]
FOR VALUE RECEIVED, the undersigned, CENTERPOINT ENERGY RESOURCES
CORP., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Revolving Advances and the Letter of Credit Advances made by the Lender to the
Borrower pursuant to the Credit Agreement dated as of June 30, 2005 among the
Borrower, the Lenders listed on the signature pages thereto, Citigroup Global
Markets Inc., Banc of America Securities LLC and Barclays Capital, the
investment banking division of Barclays Bank PLC, as Lead Arrangers, Citibank,
N.A., as Administrative Agent for the Lenders, Barclays Bank PLC and Bank of
America, N.A. as Co-Syndication Agents and Citibank, N.A., Barclays Bank PLC and
Bank of America, N.A. as Issuing Banks (as amended or modified from time to
time, the "Credit Agreement"; the terms defined therein being used herein as
therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Advance and Letter of Credit Advance from the date of such
Revolving Advance and Letter of Credit Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, at ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, in same day funds. Each
Revolving Advance owing to the Lender by the Borrower pursuant to the Credit
Agreement, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Revolving Advances and the Letter
of Credit Advances by the Lender to the Borrower from time to time in an
aggregate amount not to exceed at any time outstanding the U.S. dollar amount
first above mentioned, the indebtedness of the Borrower resulting from each such
Revolving Advance and Letter of Credit Advance being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
CENTERPOINT ENERGY RESOURCES CORP.
By __________________________________
Title:
CERC 5-Year Revolving Credit Agreement
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF PRINCIPAL UNPAID PRINCIPAL
DATE AMOUNT OF ADVANCE PAID OR PREPAID BALANCE NOTATION MADE BY
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CERC 5-Year Revolving Credit Agreement
EXHIBIT B - FORM OF
NOTICE OF BORROWING
Citibank, N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ____________________
[DATE]
Ladies and Gentlemen:
The undersigned, CENTERPOINT ENERGY RESOURCES CORP., refers to the
Credit Agreement, dated as of June 30, 2005 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, the Lenders listed on the signature
pages thereto, Citigroup Global Markets Inc., Banc of America Securities LLC and
Barclays Capital, the investment banking division of Barclays Bank PLC, as Lead
Arrangers, Barclays Bank PLC and Bank of America, N.A., as Co-Syndication
Agents, Citibank, N.A., Barclays Bank PLC and Bank of America, N.A., as Issuing
Banks and Citibank, N.A., as Administrative Agent for said Lenders, and hereby
gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement
that the undersigned hereby requests a Revolving Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Revolving Borrowing (the "Proposed Borrowing") as required by Section
2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Borrowing is
_______________, 20__.
(ii) The Type of Revolving Advances comprising the Proposed
Revolving Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Borrowing is
$_______________.
(iv) [The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Revolving Borrowing is __________
[week][month][s].]
(v) All or a portion of the Proposed Revolving Borrowing [will][will
not] be used to repay commercial paper.
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Revolving
Borrowing:
(A) the representations and warranties contained in Section 4.01
(except the last sentence of subsection (e) thereof and in subsection
(f)(i) and other representations that by their terms are limited to a
specific date) are correct in all material respects on and as of such
date, before and after giving effect to such Revolving Borrowing, issuance
or renewal or Commitment Increase and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from
such Revolving Borrowing, issuance or renewal of any Letter of Credit or
Commitment Increase or from the application of the proceeds therefrom,
that constitutes a Default.
CERC 5-Year Revolving Credit Agreement
Very truly yours,
CENTERPOINT ENERGY RESOURCES CORP.
By__________________________
Title:(1)
-------------
(1) Signatory must be a Financial Officer, as defined in the Credit Agreement.
CERC 5-Year Revolving Credit Agreement
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of June 30, 2005
(as amended or modified from time to time, the "Credit Agreement") among
CenterPoint Energy Resources Corp., a Delaware corporation (the "Borrower"), the
Lenders (as defined in the Credit Agreement), Citigroup Global Markets Inc.,
Banc of America Securities LLC and Barclays Capital, the investment banking
division of Barclays Bank PLC, as Lead Arrangers, Barclays Bank PLC and Bank of
America, N.A., as Co-Syndication Agents, Citibank, N.A., Barclays Bank PLC and
Bank of America, N.A., as Issuing Banks and Citibank, N.A., as Administrative
Agent for the Lenders (the "Administrative Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the Credit Agreement as
of the date hereof (other than in respect of CAF Advances and CAF Notes)
equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than
in respect of CAF Advances and CAF Notes). After giving effect to such
sale and assignment, the Assignee's Commitment and the amount of the
Revolving Advances and Letter of Credit Advances owing to the Assignee
will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement
or any other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under the Credit
Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note (if any) held by the Assignor and requests that
the Administrative Agent exchange such Note for a new Note payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto or new Notes payable to the order of the Assignee
in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by
the Assignor under the Credit Agreement, respectively, as specified on
Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints
and authorizes the Administrative Agent to take such action as the
Administrative Agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a
Lender; and (vi) attaches any U.S. Internal Revenue Service forms required
under Section 2.16 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance and recording
by the Administrative Agent. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance hereof
by the Administrative Agent, unless otherwise specified on Schedule 1
hereto.
CERC 5-Year Revolving Credit Agreement
5. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the
Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes (if any) in respect of
the interest assigned hereby (including, without limitation, all payments
of principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the Notes (if any) for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and
Acceptance by telecopier shall be effective as delivery of a manually
executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
CERC 5-Year Revolving Credit Agreement
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned: _____%
Assignee's Commitment: $_______________
Aggregate outstanding principal amount of Revolving Advances
assigned: $_______________
Letter of Credit Commitment Assigned: $_______________
Letter of Credit Commitment Retained: $_______________
Principal amount of Note payable to Assignee: $_______________
Principal amount of Note payable to Assignor: $_______________
Effective Date(1): _______________, 20__
[NAME OF ASSIGNOR], as Assignor
By __________________________
Title:
Dated: _______________, 20__
[NAME OF ASSIGNEE], as Assignee
By ___________________________
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved](2) this
__________ day of _______________, 20__
CITIBANK, N.A., as Administrative Agent [and
Issuing Bank](2)
By ___________________________________
Title:
----------------------
(1) This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Administrative Agent.
(2) Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
CERC 5-Year Revolving Credit Agreement
[BARCLAYS BANK PLC, as Issuing Bank](2)
By ___________________________________
Title:
[BANK OF AMERICA, N.A., as Issuing Bank](2)
By ___________________________________
Title:
CERC 5-Year Revolving Credit Agreement
[Approved this __________ day of _______________, 20__
CENTERPOINT ENERGY RESOURCES CORP.
By _______________________________________](1)
Title:
------------------
(1) Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
CERC 5-Year Revolving Credit Agreement
EXHIBIT D - FORM OF
CAF NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, CENTERPOINT ENERGY RESOURCES
CORP., a Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Credit Agreement dated as of June
30, 2005 among the Borrower, the Lenders listed on the signature pages thereto,
Citigroup Global Markets Inc., Banc of America Securities LLC and Barclays
Capital, the investment banking division of Barclays Bank PLC, as Lead
Arrangers, Barclays Bank PLC and Bank of America, N.A., as Co-Syndication
Agents, Citibank, N.A., Barclays Bank PLC and Bank of America, N.A., as Issuing
Banks and Citibank, N.A., as Administrative Agent for the Lenders (as amended or
modified from time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined)), on _______________, 200_, the principal
amount of U.S.$_______________.
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year
of 360 days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the
United States of America to _________________________ for the account of the
Lender at the office of _________________________, at _________________________
in same day funds.
This Promissory Note is one of the CAF Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
CENTERPOINT ENERGY RESOURCES CORP.
By ____________________________
Title:
CERC 5-Year Revolving Credit Agreement
EXHIBIT E - FORM OF
COMPETITIVE BID REQUEST
Citibank, N.A.,
As Administrative Agent for the
Lenders parties to the Credit Agreement (as defined below)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of June 30, 2005
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the undersigned, the Lenders listed on the signature pages
thereto, Citigroup Global Markets Inc., Banc of America Securities LLC and
Barclays Capital, the investment banking division of Barclays Bank PLC, as Lead
Arrangers, Barclays Bank PLC and Bank of America, N.A., as Co-Syndication
Agents, Citibank, N.A., Barclays Bank PLC and Bank of America, N.A., as Issuing
Banks and Citibank, N.A., as Administrative Agent for said Lenders. Terms
defined in the Credit Agreement are used herein as therein defined.
This is a Competitive Bid Request pursuant to Section 2.05 of the
Credit Agreement requesting quotes for the following:
Aggregate Principal Amount $___________ $___________ $___________
Effective Date of CAF Advance ___________ ___________ ___________
Type of CAF Advance(1) ___________ ___________ ___________
Maturity Date(2) ___________ ___________ ___________
Interest Payment Dates ___________ ___________ ___________
Very truly yours,
CENTERPOINT ENERGY RESOURCES CORP.,
as Borrower
By ________________________________
Title:
Dated:_____________________
-----------------
(1) Fixed Rate Advance or CAF Eurodollar Rate Advance.
(2) A period of at least 15 days and no longer than 180 days.
CERC 5-Year Revolving Credit Agreement
EXHIBIT F - FORM OF
COMPETITIVE BID
Citibank, N.A.
As Administrative Agent for the
Lenders parties to the Credit Agreement (as defined below)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of June 30, 2005
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the undersigned, the Lenders listed on the signature pages
thereto, Citigroup Global Markets Inc., Banc of America Securities LLC and
Barclays Capital, the investment banking division of Barclays Bank PLC, as Lead
Arrangers, Barclays Bank PLC and Bank of America, N.A., as Co-Syndication
Agents, Citibank, N.A., Barclays Bank PLC and Bank of America, N.A., as Issuing
Banks and Citibank, N.A., as Administrative Agent for said Lenders. Terms
defined in the Credit Agreement are used herein as therein defined.
In accordance with Section 2.05(b) of the Credit Agreement, the
undersigned Lender offers to make a CAF Advance thereunder in the following
amounts with the following maturity dates:
Effective Date of CAF Advance: ___________________, 200_
Aggregate Maximum Amount: $__________________
Maturity Date 1 Maturity Date 2 Maturity Date 3
--------------- --------------- ---------------
Maximum Amount $ Maximum Amount $ Maximum Amount $
Rate(1) Amount Rate Amount Rate Amount
Rate Amount Rate Amount Rate Amount
The undersigned hereby confirms that it is prepared to extend credit
to the Borrower upon acceptance by the Borrower of this bid in accordance with
Section 2.05(d) of the Credit Agreement.
Very truly yours,
[NAME OF BIDDING LENDER]
By __________________________
Name:
Dated:____________________ Title:
Telephone No.:
Fax:
-----------------------
(1) In the case of CAF Eurodollar Rate Advances, insert CAF Margin; in the
case of Fixed Rate Advances, insert fixed rate bid.
CERC 5-Year Revolving Credit Agreement
EXHIBIT G - FORM OF
COMPETITIVE BID CONFIRMATION
Citibank, N.A.
As Administrative Agent for the
Lenders parties to the Credit Agreement (as defined below)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of June 30, 2005
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the undersigned, the Lenders listed on the signature pages
thereto, Citigroup Global Markets Inc., Banc of America Securities LLC and
Barclays Capital, the investment banking division of Barclays Bank PLC, as Lead
Arrangers, Barclays Bank PLC and Bank of America, N.A., as Co-Syndication
Agents, Citibank, N.A., Barclays Bank PLC and Bank of America, N.A., as Issuing
Banks and Citibank, N.A., as Administrative Agent for said Lenders. Terms
defined in the Credit Agreement are used herein as therein defined.
In accordance with Section 2.05(d) of the Credit Agreement, the
undersigned accepts and confirms the offers by the Lender[s] to make CAF
Advances to the undersigned on ___________, 200_ under said Section 2.05(d) in
the [respective] amount[s] set forth on the attached list of CAF Advances
offered.
By delivery of this Competitive Bid Confirmation and the acceptance
of any or all of the CAF Advances offered by the Lenders in response to this
Competitive Bid Confirmation, the undersigned shall be deemed to have
represented and warranted that the relevant conditions to making CAF Advances in
Section 3.03 of the Credit Agreement have been satisfied with respect to such
CAF Advances.
Very truly yours,
CENTERPOINT ENERGY RESOURCES CORP.,
as Borrower
By _________________________
Title:
Dated: __________________
[Borrower to attach CAF Advances offer list prepared by the Administrative Agent
with accepted amount entered by the Borrower to the right of each CAF Advance
offer]
CERC 5-Year Revolving Credit Agreement
EXHIBIT H- FORM OF
NOTICE OF LETTER OF CREDIT ISSUANCE
NOTICE OF LETTER OF CREDIT ISSUANCE
This Notice of Letter of Credit Issuance, dated as of ____________ __,
20__, sets forth the request of the undersigned to ___________________ (the
"Issuing Bank") to issue for the account party identified below its irrevocable
Letter of Credit pursuant to the Credit Agreement dated as of June 30, 2005
among CenterPoint Energy Resources Corp. (the "Borrower"), the initial lenders
named therein as Initial Lenders, Citigroup Global Markets Inc., Barclays
Capital, the investment banking division of Barclays Bank PLC, and Banc of
America Securities LLC, as Lead Arrangers, and Barclays Bank PLC and Bank of
America, N.A. as Co-Syndication Agents, Citibank, N.A., Barclays Bank PLC and
Bank of America, N.A., as Issuing Banks, and Citibank, N.A., as the
Administrative Agent (the "Credit Agreement"), the provisions of which Credit
Agreement are incorporated herein by reference. Capitalized terms used but not
otherwise defined in this Notice of Letter of Credit Issuance have the same
meanings as in the Credit Agreement.
The Borrower hereby requests that the Issuing Bank issue a Letter of
Credit (format attached) in the amount set forth below for the benefit of the
beneficiary identified below.
1. Beneficiary: __________________, Address; Attention:
_____________________; Fax (___)___-____; Phone (___)
___-____.
2. Account party: CenterPoint Energy Resources Corp.
3. Amount: U.S.$___________.
4. Requested date of issuance: ___________ __, 20__
5. Stated termination date: _______ __, 20__
[indicate whether Letter of Credit is to have evergreen
provisions]
6. Purpose of letter of credit: ______________________
7. Requirement for drawing: Original letter of credit, sight
draft marked "Drawn under ________________________ Letter of
Credit No. _________ dated ________". [additional requirements
to be added]
8. Letter of credit is not transferable.
9. Aggregate amount of Letters of Credit previously issued and
outstanding under the Credit Agreement is $____________.
(Aggregate L/C Obligations, including amount of requested
Letter of Credit, may not exceed $150,000,000.)
By each of the delivery of this Notice of Letter of Credit Issuance and
the acceptance of the issuance of the Letter of Credit referred to above, the
Borrower shall be deemed to have represented and warranted that the relevant
conditions to such issuance specified in Article III of the Credit Agreement
have been satisfied with respect to the issuance requested hereby.
IN WITNESS WHEREOF, the undersigned has caused this Notice of Letter of
Credit Issuance to be duly executed and delivered to Issuing Bank by its officer
thereunto duly authorized as of the date first set forth above.
CENTERPOINT ENERGY RESOURCES CORP.
Date:
CERC 5-Year Revolving Credit Agreement
By: ______________________
Name:
Title:
CERC 5-Year Revolving Credit Agreement
EXHIBIT I- FORM OF
ASSUMPTION AGREEMENT
ASSUMPTION AGREEMENT
Reference is made to the Credit Agreement dated as of June 30, 2005 (as
amended or modified from time to time, the "Credit Agreement") among CenterPoint
Energy Resources Corp., a Delaware corporation (the "Borrower"), the Lenders (as
defined in the Credit Agreement), Citigroup Global Markets Inc., Banc of America
Securities LLC and Barclays Capital, the investment banking division of Barclays
Bank PLC, as Lead Arrangers, Barclays Bank PLC and Bank of America, N.A., as
Co-Syndication Agents, Citibank, N.A., Barclays Bank PLC and Bank of America,
N.A., as Issuing Banks and Citibank, N.A., as Administrative Agent for the
Lenders (the "Administrative Agent"). Terms defined in the Credit Agreement are
used herein with the same meaning. Pursuant to Section 2.19 of the Credit
Agreement [_______] ("Assuming Lender") desires to participate in the Commitment
Increase on the terms and conditions set forth below.
Assuming Lender agrees as follows:
1. The Assuming Lender hereby assumes an interest in and to all
rights and obligations under the Credit Agreement as of the date hereof
(other than in respect of CAF Advances and CAF Notes) equal to the amount
specified on Schedule 1 hereto. After giving effect to the assumption, the
Assuming Lender's Revolving Commitment, Letter of Credit Commitment and
Commitment Percentage and the amount of the Revolving Advances owing to
the Assuming Lender will be as set forth on Schedule 1 hereto.
2. The Assuming Lender (a) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assumption Agreement; (b) agrees that it
will, independently and without reliance upon the Administrative Agent, or
any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (c) confirms that
it is an Eligible Assignee; (d) appoints and authorizes the Administrative
Agent to take such action as the Administrative Agent on its behalf and to
exercise such powers and discretion under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with
such powers and discretion as are reasonably incidental thereto; (e)
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (f) attaches any U.S. Internal Revenue
Service forms required under Section 2.16 of the Credit Agreement.
3. Following the execution of this Assumption Agreement it will be
delivered to the Administrative Agent for acceptance and recording by the
Administrative Agent. The effective date for this Assumption Agreement
(the "Effective Date") shall be the Increase Date listed on Schedule 1
hereto.
4. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, the Assuming Lender shall be a party to the
Credit Agreement and, to the extent provided in this Assumption Agreement,
have the rights and obligations of a Lender thereunder.
5. This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
6. This Assumption Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assumption
Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Assumption Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Assumption
Agreement to be executed by their officers thereunto duly authorized as of the
date specified thereon.
CERC 5-Year Revolving Credit Agreement
[NAME OF ASSUMING LENDER], as Assuming Lender
By ______________________________
Title:
Dated: _______________, 20__
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
CENTERPOINT ENERGY RESOURCES CORP.
By _______________________________
Title:
Accepted [and Approved](1) this
__________ day of _______________, 20__
CITIBANK, N.A., as Administrative Agent [and as Issuing Bank](1)
By __________________________
Title:
[BARCLAYS BANK PLC, as Issuing Bank](1)
By __________________________
Title:
[BANK OF AMERICA, N.A., as Issuing Bank](1)
By __________________________
Title:
-----------------------
(1) Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
CERC 5-Year Revolving Credit Agreement
SCHEDULE 1
TO
ASSUMPTION AGREEMENT
Assuming Lender's Commitment: $_______________
Principal amount of Note payable to Assuming Lender: $_______________
Increase Date: _______________, 20__
CERC 5-Year Revolving Credit Agreement